[Federal Register Volume 60, Number 68 (Monday, April 10, 1995)]
[Proposed Rules]
[Pages 18069-18071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8236]



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DEPARTMENT OF DEFENSE

Department of the Army
Corps of Engineers

33 CFR Part 211


Excessing of Lands within the Fort Berthold Reservation of the 
Three Affiliated Tribes at Lake Sakakawea and the Standing Rock Sioux 
Tribe Reservation at Lake Oahe

AGENCY: Army Corps of Engineers, DOD.

ACTION: Proposed rule.

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SUMMARY: The Corps of Engineers proposes to expand its policy regarding 
excess lands with Indian reservations. This action flows from 
Congressional intent expressed in Public Law 102-575, language in 
Public Law 103-211 encouraging the Corps to proceed with the Department 
of the Interior to identify excess lands and transfer them to the 
Tribes, the President's polices regarding Native Americans, and our 
desire to give to the Tribes as much interest in the project lands at 
Lakes Sakakawea and Oahe as possible under existing law. If approved, 
this policy will enable the Corps to retain sufficient real property 
interests in certain Corps administered lands to fulfill project 
purposes, yet declare certain other interests in the lands excess to 
project needs, thereby permitting eventual transfer to the Department 
of Interior to be held in trust for the Tribes.

DATES: Comments must be received on or before July 10, 1995; dates for 
public hearings will be announced to the public at a later date.

ADDRESSES: Comments should be mailed to U.S. Army Corps of Engineers 
District, Omaha, ATTN: CEMRO-OP-TN (Mike George), 215 North 17th 
Street, Omaha, NE 68102-4978. Addresses for public hearings will be 
announced to the public at a later date.

FOR FURTHER INFORMATION CONTACT: Mike George at (402) 221-3988.

SUPPLEMENTARY INFORMATION:

Background

    As part of the Garrison Diversion Unit Commission, authorized by 
P.L. 98-360, the Joint Tribal Advisory Committee (JTAC) was formed for 
the purpose of assessing impacts to the Three Affiliated Tribes (TAT) 
of the Fort Berthold Reservation and the Standing Rock Sioux Tribe 
(SRST) resulting from the construction of the Garrison Dam/Lake 
Sakakawea Project and the Oahe Dam and Lake Project. In its 
recommendations, the JTAC stated that [[Page 18070]] some former Indian 
lands should be returned to the tribes.
    The criteria used by the JTAC in identifying lands for return to 
the tribes was based on a contour elevation which approximated the 
reservoir maximum operating pool. As recommended in the Final Report of 
the Joint Tribal Advisory Committee, the Omaha District conducted a 
``Special Assessment of Project Lands'' with the intent of identifying 
project lands which would not have been acquired under current 
acquisition criteria. The ruling guide was the 1971 Joint Acquisition 
Policy adopted by the Secretary of Army and Secretary of Interior and 
recorded in 32 CFR 644.4 and 43 CFR part 8. As a result of the Special 
Assessment, 7,583 acres at lake Sakakawea and 3,218 acres at Lake Oahe 
were identified as lands which would not have been acquired under 
current acquisition criteria. Further analysis found that even though 
these lands would not have been acquired under current acquisition 
guidelines, some were nonetheless currently committed to project 
purposes such as recreation or fish and wildlife management. Corps 
policy, as expressed in Engineer Regulation (ER) 1130-2-400, provides 
that lands which otherwise would be excess (because they do not fall 
within current acquisition guidelines), but which are committed to 
valid project purposes, will not be declared excess. At Lakes Sakakawea 
and Oahe, 1,692 and 2,832 acres, respectively, were so identified. In 
addition, some lands were encumbered by outgrants of interests in the 
lands, such as leases and licenses.
    In 1989, in accordance with the policy expressed in ER 1130-2-400, 
the Secretary of Army decided to exclude the lands devoted to 
recreation or wildlife purposes, but to otherwise transfer the balance 
(5,891 acres at Lake Sakakawea and 386 acres at Lake Oahe). A report of 
excess was completed and the property was transferred to the GSA which, 
in turn, transferred it to the Department of the Interior to be held in 
trust for the tribes in accordance with P.L. 93-599. P.L. 93-599 
provides that excess federal lands within the reservation boundaries of 
a federally-recognized tribe be transferred to the Department of the 
Interior to be held in trust for that tribe. The TAT accepted the 
transfer of 5,878.25 acres at Lake Sakakawea (the 5,891 acre figure 
mentioned above was adjusted and refined when property descriptions 
were prepared), the SRST, however, rejected the transfer of 386 acres 
at Lake Oahe. The transfer to the TAT was completed in July, 1992.
    On October 30, 1992, the President signed the ``Reclamation Project 
Authorization and Adjustment Act'' (P.L. 102-575) into law. Title XXXV 
of this Law, ``The Three Affiliated Tribes and Standing Rock Sioux 
Tribe Equitable Compensation Act'' (106 Stat. 4731), specified that 
administrative jurisdiction over all lands above a specific contour 
(more or less the reservoir maximum operating pool) would be 
transferred from the Army to the Department of the Interior. Interior 
was then required to offer the former owners or their heirs (including 
tribal members, individual allottees, and non-Indians) a right to 
repurchase these lands. Any lands not repurchased were to be offered to 
the Tribes for purchase. The Army attempted to transfer administrative 
jurisdiction over the property to the Department of Interior in October 
1993, but the Department of Interior did not formally accept the 
transfer. The land transfer provisions of the Equitable Compensation 
Act were repealed on February 12, 1994 as part of the California 
Earthquake Emergency Appropriations Act (section 407 of Public Law 103-
211). Legislative history cited excessive costs of the proposed 
transfer as the reason for the repeal.
    The repeal of the land transfer provisions of the equitable 
Compensation Act included a proviso that ``the U.S. Army Corps of 
Engineers should proceed with the Secretary of Interior to designate 
excess lands and transfer them pursuant to Public Law 93-599.'' Again, 
P.L. 93-599 envisions the transfer of excess Federal lands within 
Indian reservations to the Department of the Interior to hold in trust 
for the tribes.
    As indicated, the Corps had determined previously that application 
of the existing excessing policy, as expressed in ER 1130-2-400, would 
not result in designation of additional excess lands. Because of the 
expression of congressional intent found in Public Laws 102-575 and 
103-211, and the great public interest in this issue, the Assistant 
Secretary of the Army (ASA(CW)) decided to look again at this issue and 
to determine whether a new policy could be developed that would take 
into account the competing interests, and allow us to declare certain 
interests in real estate not necessary for project purposes to be 
excess.
    Based on input from the North and South Dakota congressional 
delegations, state government, the Tribes, special interest groups, the 
public and others, the Office of the ASA(CW) developed proposed 
criteria for excessing certain interests in land for purposes of 
further public discussion. Under this concept, the Corps would retain 
only such interests in lands as are necessary for project purposes and 
transfer the remaining interests to GSA for ultimate disposition to the 
Department of the Interior for the benefit of the Tribes. In 
identifying the lands that could be transferred, the following 
criteria/factors would be considered: (1) Investments made by others in 
the property; (2) the need to maintain access to public and private 
land; (3) the need to maintain municipal and rural water supply 
systems; (4) precedential implications. Furthermore, the Office of the 
ASA(CW) proposed that only lands acquired from the SRST and TAT should 
be considered for excessing.

Public Input

    The ASA(CW) held public meetings in North and South Dakota in June 
of 1994 to solicit public input on the proposed criteria. Written input 
was also solicited and received. A Summary of Public Input can be 
examined. A general discussion of the public input follows:
    Most commentors, whether they favored or disfavored the proposed 
action, urged more public and state government participation in this 
effort, and encouraged an open process.
    Many commentors expressed concerns regarding continued access to 
shoreline for recreation purposes and grazing. Many commentors also 
noted concerns regarding existing recreation areas. Some of these 
commentors expressed the view that recreation areas should remain in 
government hands to guarantee continued public use.
    Some commentors stated that lands on which the government had 
expended tax dollars should remain open to the public. Others stated 
their desire that lands on which private investments have been made 
should be withheld from transfer, even though those lands were merely 
leased from the Corps.
    Many commentors stated that the repeal of the Equitable 
Compensation Act was a broken promise to the Indians. Many also 
expressed the need for the government to redress the flooding of Indian 
communities when the projects were built. Some commentors noted that 
the interests or investments of lessees on Corps lands should not be 
protected in perpetuity, because those interests are, by nature, only 
temporary.
    Many commentors stated that lands should be returned to non-Indian 
former owners also.
    Some commentors were concerned that this action would increase 
existing jurisdictional confusion. Other [[Page 18071]] commentors 
questioned the precedential implications of this action.

Test

    As a result of the public input received, the ASA(CW) determined 
that the proposed criteria were appropriate, but that they should be 
tested by practical application. Corps headquarters directed the Omaha 
District to randomly sample 10 parcels of former tribal land at Lake 
Oahe and Lake Sakakawea an apply the four criteria/factors mentioned 
above to each parcel to illustrate, by example, the effect of 
implementing this policy.
    The Omaha District selected 10 sections (one square mile) of land 
at each reservoir that contained former tribal lands. Once the sections 
were chosen, a map was prepared showing the relationship of the former 
tribal land to all other project lands within that section.
    Applying a 2.5 acre blockout using close tangents above the contour 
of the maximum operating pool, parcels were identified which could be 
considered candidates for transfer. Each of these former tribal tracts 
were then inventoried, and the four mentioned criteria were applied to 
the candidate transfer parcels. A matrix was prepared for the purpose 
of summarizing the parcels and providing a basis for comparison.
    The findings of this study indicate that along the 828 miles of 
shoreline at lake Sakakawea, using these criteria, there would be less 
than 800 acres available for excess. The findings at Lake Oahe indicate 
that along the 265 miles of shoreline less than 1,600 acres would be 
available for excess. Depending on the application of the above 
mentioned criteria, these numbers will likely be less.
    The results of the study, as well as the maps prepared for the 
study, are on file at the Omaha District office, and may be examined.

Conclusion

    After reviewing and considering the public input received and upon 
examining the results of this study, the Acting Assistant Secretary of 
the Army (Civil Works), in consultation with the Commander, U.S. Army 
Corps of Engineers, Missouri River Division and the Commander, U.S. 
Army Corps of Engineers, Omaha District, determined that the three of 
the four proposed criteria were valid criteria/factors that should be 
considered in determining which lands could be declared excess at Lakes 
Sakakawea and Oahe. The fourth criterion, ``consider precedential 
implications,'' was deemed unnecessary since this rule is limited to 
Corps lands within the Standing Rock Sioux Reservation and the Fort 
Berthold Reservation of the Three Affiliated Tribes and does not apply 
to other Corps projects. Also, the ASA(CW) determined that it would be 
appropriate and desirable to consider all former trust lands, allotted 
as well as tribal, for excessing for the following reasons: Inclusion 
of all trust lands is consistent with the manner in which lands were 
acquired for the project, and it creates more manageable land units for 
both the tribe and the Corps of Engineers. Further, including all 
former trust lands would be consistent with congressional intent.

Public Participation

    Dates and addresses for public meetings will be announced at a 
later date.
    Although this document is a notice of proposed rulemaking that 
solicits public comment, the Corps of Engineers has concluded that the 
regulations proposed herein are interpretative and that the notice and 
public procedure requirements of 5 U.S.C. 553 do not apply. 
Accordingly, these proposed regulations do not constitute regulations 
subject to the Regulatory Flexibility Act. The requirements of 
Executive Order No. 12291 do not apply to these procedures. These 
regulations do not constitute a ``major rule within the meaning of the 
Executive Order.''

List of Subjects in 33 CFR Part 211

    Claims, Flood control, Indian reservations, Public lands, Real 
property acquisition, Reservoirs, Rights-of-way, Waterworks.

    For the reasons set forth in the preamble, the Corps of Engineers 
proposes to amend 33 CFR Part 211, as set forth below:

Part 211--Real Estate Activities of the Corps of Engineers in 
Connection with Civil Works Projects

    1. The authority citation for Sec. 211.148 is added to read as 
follows:

    Authority: Section 211.148 issued under 40 U.S.C. 483, 486.

    2. A new center heading and Sec. 211.148 are added, to read as 
follows:

Excessing of Lands Within Indian Reservations


Sec. 211.148  Excessing of lands within the Fort Berthold Reservation 
of the Three Affiliated Tribes at Lake Sakakawea and the Standing Rock 
Sioux Tribe Reservation at Lake Oahe.

    For the projects at Lake Oahe and Lake Sakakawea, interests in real 
estate that are not required for project purposes may be considered 
excess to project purposes when:
    (a) The lands lie within the external boundaries of the Standing 
Rock Sioux Tribe Reservation or the Fort Berthold Reservation of the 
Three Affiliated Tribes;
    (b) The lands are former trust lands, either allotted or tribal, 
acquired for the project; and
    (c) Appropriate interests in the lands may be retained, or 
conditions imposed, as are necessary to preserve the integrity of 
legislatively authorized project operations; provided:
    (1) There has been no substantial capital investment in the 
property which cannot be recovered by the investor prior to excessing;
    (2) There will be no unreasonable impact on access to public and 
private land; and
    (3) There will be no unreasonable impact on municipal and rural 
water supply systems.

    Dated: March 23, 1995.

    Approved:
Elizabeth L. Fagot,
Deputy Director of Real Estate.
[FR Doc. 95-8236 Filed 4-7-95; 8:45 am]
BILLING CODE 3710-62-M