[Senate Hearing 108-321]
[From the U.S. Government Publishing Office]
S. Hrg. 108-321
BOUNDARY CONFLICTS IN MISSOURI; BEND PINE NURSERY LAND CONVEYANCE ACT;
RIO GRANDE OUTSTANDING NATURAL AREA; ACQUISITION OF PROPERTY IN UTAH;
AND LANDS IN MENDOCINO NATIONAL FOREST
=======================================================================
HEARING
before the
SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
on
S. 1167 S. 1848
S. 1209 H.R. 708
S. 1467
__________
NOVEMBER 18, 2003
Printed for the use of the
Committee on Energy and Natural Resources
______
91-834 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee RON WYDEN, Oregon
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana EVAN BAYH, Indiana
GORDON SMITH, Oregon DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky CHARLES E. SCHUMER, New York
JON KYL, Arizona MARIA CANTWELL, Washington
Alex Flint, Staff Director
Judith K. Pensabene, Chief Counsel
Robert M. Simon, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
------
Subcommittee on Public Lands and Forests
LARRY E. CRAIG, Idaho, Chairman
CONRAD BURNS, Montana, Vice Chairmaa
GORDON SMITH, Oregon RON WYDEN, Oregon
JON KYL, Arizona DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
LAMAR ALEXANDER, Tennessee TIM JOHNSON, South Dakota
LISA MURKOWSKI, Alaska MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri EVAN BAYH, Indiana
DIANNE FEINSTEIN, California
Pete V. Domenici and Jeff Bingaman are Ex Officio Members of the
Subcommittee
Dick Bouts, Professional Staff Member
David Brooks, Democratic Senior Counsel
Kira Finkler, Democratic Counsel
C O N T E N T S
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STATEMENTS
Page
Bennett, Hon. Robert F., U.S. Senator from Utah.................. 4
Bobicki, Charlotte, County Commissioner, Alamosa County, CO...... 25
Bond, Hon. Christopher S., U.S. Senator from Missouri............ 1
Booth Doyle, Kate, San Luis Valley Ecosystem Council, Colorado... 28
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado........ 7
Craig, Hon. Larry E., U.S. Senator from Idaho.................... 1
Hughes, Jim, Deputy Director, Bureau of Land Management,
Department of the Interior..................................... 14
Talent, Hon. James M., U.S. Senator from Missouri................ 9
Thompson, Tom, Deputy Chief, National Forest System, Forest
Service, Department of Agriculture............................. 10
Wyden, Hon. Ron, U.S. Senator from Oregon........................ 8
APPENDIX
Additional material submitted for the record..................... 35
BOUNDARY CONFLICTS IN MISSOURI; BEND PINE NURSERY LAND CONVEYANCE ACT;
RIO GRANDE OUTSTANDING NATURAL AREA; ACQUISITION OF PROPERTY IN UTAH;
AND LANDS IN MENDOCINO NATIONAL FOREST
----------
TUESDAY, NOVEMBER 18, 2003
U.S. Senate,
Subcommittee on Public Lands and Forests,
Committee on Energy and Natural Resources,
Washington, D.C.
The committee met, pursuant to notice, at 2:31 p.m., in
room SD-366, Dirksen Senate Office Building, Hon. Larry E.
Craig presiding.
OPENING STATEMENT OF HON. LARRY E. CRAIG,
U.S. SENATOR FROM IDAHO
Senator Craig. The Subcommittee on Public Lands and Forest
will be convened. My colleague Ben Nighthorse Campbell and I
have opening statements.
But I understand, Senator Bond, you are on a bit of a tight
schedule. So we will withhold and take your testimony first,
and then you are certainly welcome to leave if you wish before
we convene our panelists. So with that, please proceed.
STATEMENT OF HON. CHRISTOPHER S. BOND,
U.S. SENATOR FROM MISSOURI
Senator Bond. Thank you, Mr. Chairman. And I very much
appreciate the opportunity to testify. I appreciate your
holding the hearing for this bill that Senator Talent, a member
of this committee, and I have introduced. Let me try to
summarize it for you.
This is the Mark Twain National Forest Reserve and Boundary
Readjustment Act introduced on June 2 of this year. It deals
with a very messy and unfortunate property line dispute in
Barry and Stone Counties, Missouri, next to the Cassville
District of the Mark Twain National Forest and to Table Rock
Lake.
About in the early 1960's and 1970's, the Corps of
Engineers, who were private surveyors, went around and tried to
lay out the boundary lines in that area, using--they found that
the original corner monuments that were established by the
General Land Office had disappeared. So they used existing de
facto land markers in the vicinity of the original GLO
monuments. But as you can imagine, for 30 years, the landowners
in Barry and Stone Counties bought and sold land in good faith
based on these surveys and on what the Federal Government told
them were the property lines.
Well, several years ago, the Forest Service performed new
land surveys using new surveying technology, and now claims
that the boundary lines conflict with--there are different
boundary lines, and the Forest Service said the Corps' surveys
are incorrect and they are all in the wrong places. And now,
the Forest Service is telling private landowners that their
land or some of their land belongs to the Federal Government
and they are going to have to reimburse the Forest Service.
Well, you might guess that that has caused a bit of
consternation, to put it gently. I have, just as one example, a
statement I would ask to be included in the record after my
testimony from Mr. Don Ayers, a former active realtor in the
area and one who is a victim of the boundary line dispute.
Senator Craig. Without objection, that will be included.
Senator Bond. He said he was in a position to place
cautionary contingencies in every listing for sale in the area,
and it has made it extremely difficult to sell property, and
listings have been withdrawn because of the uncertainty. But
now he is a property owner who has been told by the Forest
Service that his property encroaches on Federal land, and he
cannot sell the property. It has been on the market for 18
months, and he is totally tied up on this.
I really think this is unfair and devoid of any common
sense. My staff and I have worked and have asked the Forest
Service and the Corps to work together, but they cannot agree.
In the meantime, the people who live there are continuing to be
deprived of the use and the ability to sell their property.
And that is why we have concluded that legislation is the
only way to solve the boundary of property. It authorizes the
Secretary of Agriculture to convey without consideration title
to land on which there is a boundary conflict with adjoining
Federal land if the landowner can demonstrate a claim of
ownership because they relied on a land survey performed or
approved by the Federal Government previously.
Obviously, the local governments in the area strongly
support it. A similar version of this legislation, sponsored by
Representative Roy Blunt of southwest Missouri who has this in
his district, passed the House last night. And I would ask you,
out of a sense of fairness to the beleaguered property owners
who have been sliced and diced by the Federal Government, to
pass this legislation.
Thank you.
[The prepared statement of Senator Bond follows:]
Prepared Statement of Hon. Christopher S. Bond,
U.S. Senator From Missouri
Mr Chairman, I want to thank you for allowing me to testify before
this committee today regarding legislation I have introduced to resolve
a very unfortunate situation that has developed in Southwestern
Missouri. I also want to thank my colleague from Missouri and member of
this committee, Senator Jim Talent, who is a co-sponsor of this
important legislation.
On June 2, 2003, I introduced S. 1167, the Mark Twain National
Forest Resurvey and Boundary Readjustment Act of 2003, which would
resolve the unnecessary property line disputes in Southwestern Missouri
that have resulted from conflicting federal government land surveys
performed by the U.S. Army Corps of Engineers (Corps) and the United
States Forest Service (USFS), respectively. 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 order to understand this legislation, some historical background
is necessary. During the late 1960's and early 70's, the U.S. Army
Corps of Engineers, through various private land surveyors, surveyed
this area around 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 surveys performed in
the 1840's were either lost, stolen or had eroded over the years.
Instead of the original GLO monuments, Corps surveyors used
existing de-facto land markers in the vicinity of the original GLO
monuments as the basis for its new surveys. Prior to the Corps surveys,
these de-facto monuments were recognized by local surveyors as the
legitimate boundary markers and were used in survey after survey over
the decades.
For almost 30 years, private landowners in Barry and Stone Counties
bought and sold their land in good faith based on the surveys performed
by the Corps in the 60's and 70's. However, several years ago, the USFS
performed new land surveys using surveying technology that had only
recently become available. As a result of these new surveys, the USFS
now claims that the boundary lines in its surveys conflict with the
boundary lines established in the previous corps surveys. In addition
to this, the USFS has announced that the Corps surveys are incorrect
and that property lines all over this area are in the wrong place.
Because of these new revelations, many private property owners in
the vicinity of the Mark Twain National Forest, who bought and paid for
their land in good faith based on a previous federal government survey,
are now being told that they have encroached on USFS land.
The USFS has even begun telling these private landowners that their
land now belongs to the federal government, and that they will have to
reimburse the USFS for the federal land that the landowners now own and
occupy. Naturally, these actions have produced chaos, confusion and
anger among landowners in these two counties.
For example, Mr. Don Ayres of Shell Knob, MO states, ``As a former
active realtor in this area, I was in a position to place such a
cautionary contingency in every listing for sale of property with a
similar problem and there were many. It is very difficult to sell a
piece of property when the potential buyer is looking at a dispute with
a large federal agency (USFS). In at least one instance I know of, a
listing was withdrawn because of the uncertainty of the dispute.''
Not only is Mr. Ayres a realtor who has had his business impacted
by these property disputes, but he is also a property owner who has
been informed by the USFS that his property now ``encroaches'' on
federal land. Like other property owners in the area, Mr. Ayres has had
difficulty selling his property because of the aforementioned
cautionary contingency required under disclosure. His property has been
on the market for about 18 months, and he has yet to receive a contract
to purchase it from a potential buyer. I would like permission to
submit a copy of Mr. Ayres' statement regarding the problems that have
resulted from these disputes for the committee record.
Needless to say, it is inherently unfair and absolutely devoid of
any common sense to expect private landowners to compensate the federal
government for land that they have already purchased simply because the
government has changed its collective mind about where federal property
begins and ends.
Over the past two years, I have repeatedly asked the USFS and the
Army Corps of Engineers to work together to find a solution that would
resolve this problem. Unfortunately, after two years of debate and
disagreement, the Corps of Engineers and the USFS have been unable to
agree on a resolution of this problem. In the meantime, the lives of
many of these Missouri residents continue to be disrupted.
Therefore Mr. Chairman, I have concluded that federal legislation
represents the only feasible solution to this boundary problem. This
legislation authorizes the Secretary of the Agriculture to convey,
without consideration, title to land in which there is a boundary
conflict (with adjoining federal land) to private landowners, who can
demonstrate a claim of ownership because they relied on a subsequent
land survey performed or approved by the federal government.
This legislation is supported by the City of Cassville, the
Presiding Commissioner of Barry County and the countless number of
property owners who have been victimized by these unnecessary boundary
disputes.
A very similar version of this legislation, H.R. 2304, sponsored by
Rep. Roy Blunt passed the House of Representatives last night.
In closing, I urge you to pass this important legislation out of
committee and send it to the Senate floor for a vote.
Mr. Chairman, members of the committee, once again, I would like to
thank you for an opportunity to testify on behalf of S. 1167
Senator Craig. Well, Mr. Chairman, thank you very much for
that testimony. All additions will become a part of the record.
And we thank you for that.
Senator Bond. Thank you very much, Mr. Chairman.
Senator Craig. Thank you.
Before I turn to my other colleagues, we will go ahead with
our opening statements. Senator Talent, we will come to you on
this issue. We have just heard from Senator Bond in relation to
S. 1167.
Senator Bennett will not be here this afternoon, so I will
put his testimony in the record as it relates to S. 1209, a
land acquisition bill that he has introduced.
[The prepared statement of Senator Bennett follows:]
Prepared Statement of Hon. Robert F. Bennett, U.S. Senator From Utah
Thank you, Mr. Chairman, for this opportunity to present testimony
to the subcommittee on S. 1209. The bill would provide for the
acquisition of property in Washington County, Utah, for the
implementation of a desert tortoise habitat conservation plan. I come
to speak in favor of this solution that would bring to a close the
federal acquisition of privately held land, located within the
federally designated desert tortoise reserve in Washington County, UT.
This is an acquisition that, in my opinion, is long overdue. Mr.
Chairman, I would also like to ask consent that testimony for the
Washington County Commission, who are fully supportive of this
legislation, be submitted for the record.
As I'm sure many of you are aware, this is not the first time
legislation has been introduced in an attempt to resolve this issue. In
July 2000, I introduced S. 2873, which was referred to and eventually
reported favorably by the Committee on Energy and Natural Resources. In
addition, similar legislation was twice approved by the House, in both
the 106th and 107th Congress. Nevertheless, we have so far been unable
to resolve this issue in the full Senate.
For nearly a decade, the private property addressed by this bill
has been under federal control during which time the federal government
has been enjoying the environmental benefits of the property without
remitting any sort of compensation to the landowner. The time has
finally come to resolve this unfair arrangement.
First, let me begin with an account of the background leading up to
this legislation.
In March 1991, the desert tortoise was listed as an endangered
species under the Endangered Species Act. Researchers, both
governmental and environmental, determined that the land immediately
north of St. George, UT, was prime desert tortoise habitat.
Consequently, in February 1996, nearly five years after the listing,
the United States Fish and Wildlife Service (USFWS) issued Washington
County a section 10 permit under the Endangered Species Act which paved
the way for the adoption of a habitat conservation plan (HCP) and an
implementation agreement. Under the plan and agreement, the Bureau of
Land Management (BLM) committed to acquire all private lands in the
designated habitat area for the formation of the Red Cliffs Reserve for
the protection of the desert tortoise.
One of the private land owners within the reserve is Environmental
Land Technology, Limited (ELT) which had, for purposes of residential
and recreational development, begun acquiring lands from the State of
Utah in 1981--ten years prior to the listing of the species. Also, in
the years preceding the listing of the desert tortoise and the adoption
of the HCP, ELT completed master planning of the property including
appraisals, cost estimates, engineering studies, site plans, surveys,
utility layouts, and right-of-way negotiations. They staked out golf
courses, and obtained water rights for the development of this land.
Prior to the adoption of the HCP, it was not clear which lands the
federal and local governments would set aside for the desert tortoise,
although it was assumed that there were sufficient surrounding federal
lands to provide adequate habitat. However, when the HCP was adopted in
1996, the decision was made to include ELT's lands within the
boundaries of the reserve primarily because they contained high
concentrations of tortoises. The tortoise population on ELT land also
appeared to be one, if not the only, population without an upper
respiratory disease that afflicted virtually all of the other
populations. As a consequence of the inclusion of ELT lands, all
development efforts were halted.
With assurances from the federal government that the acquisition of
the ELT development lands was a high priority, the owner negotiated
with, and entered into, an assembled land exchange agreement with the
BLM in hopes of negotiating an intrastate land exchange. The private
landowner then began the costly process of identifying comparable
federal lands within the state that would be suitable for an exchange
for his lands in Washington County. Over the last seven years, BLM and
the private land owners, including ELT, have completed several
exchanges, and the federal government has acquired, through those
exchanges or direct purchases, nearly all of the private property
located within the reserve, except for approximately 1,516 acres of the
ELT development land. However, with the creation of the Grand
Staircase-Escalante National Monument in September 1996, and the
subsequent land exchanges between the state of Utah and the federal
government to consolidate federal lands within that monument, there are
no longer sufficient comparable federal lands within Utah to complete
the originally contemplated intrastate exchanges for the remainder of
the ELT land.
Faced with this problem, and in light of the high priority the
Department of the Interior has placed on acquiring these lands, BLM
officials recommended that the ELT lands be acquired by direct
purchase. During the FY 2000 budget process, BLM proposed that $30
million be set aside to begin acquiring the remaining lands in
Washington County. Unfortunately, because this project involves
endangered species habitat and the USFWS is responsible for
administering activities under the Endangered Species Act, the Office
of Management and Budget shifted the $30 million from the BLM budget
request to the USFWS's Cooperative Endangered Species Conservation Fund
budget request. Ultimately, none of those funds were made available for
BLM acquisitions within the federal section of the Reserve. Instead,
the funds in that account were made available on a matching basis for
the use of individual states to acquire wildlife habitat.
The lands within the Red Cliffs Reserve are ELT's main asset. The
establishment of the Washington County HCP has effectively taken this
property and prevented ELT from developing or otherwise disposing of
the property. ELT has been brought to the brink of financial ruin as it
has exhausted its resources in an effort to hold the property while
awaiting the compensation to which it is entitled. ELT has had to sell
its remaining assets, and the private land owner has also had to sell
personal assets, including his home, to simply hold the property. This
has become a financial crisis for the landowner.
It is simply wrong for the federal government to expect the
landowner to continue to bear the cost of the government's efforts to
provide habitat for an endangered species. This responsibility resides
with the federal government. Moreover, while the landowner is bearing
these costs, he continues to pay taxes on the property. This situation
is made more egregious by the failure of the Department of the Interior
to request any acquisition funding for FY 2004, even though the agency
has repeatedly designated this acquisition as a high priority.
Over the past several years, ELT has pursued all possible avenues
to complete the acquisition of these lands. The private land owner has
spent millions of dollars pursuing both intrastate and interstate land
exchanges and has worked cooperatively with the Department of the
Interior. Unfortunately, all of these efforts have thus far been
fruitless.
This bill will finally bring about this promised acquisition. It is
my view that a legislative taking should always be an action of last
resort. But, if there was ever a time that warranted legislative
condemnation and intervention, this is it. This bill will transfer all
right, title, and interest in the ELT development property within the
Red Cliffs Reserve, including an additional 34 acres of landlocked real
property owned by ELT adjacent to the land within the Reserve, to the
federal government. It provides an initial payment to ELT to pay off
existing debts accrued in holding the property, and provides 90 days
for both ELT and the Department of the Interior to attempt to reach a
negotiated settlement on the remaining value of the property.
I am aware that one of the difficulties in solving this issue is
the high value of the lands to be acquired. Due to the absence of
developable lands within the state for exchange, the legislation also
authorizes an interstate land exchange as one possible tool available
to the parties to ensure the acquisition. In the absence of a
negotiated amount, the Secretary of the Interior will be required to
bring an action in the Federal District Court for the District of Utah
to determine a value for the land. Payment for the land, whether
negotiated or determined by the court, will be made from the permanent
judgment appropriation or any other appropriate account, or, at the
option of the land owner, the Secretary of the Interior will credit a
surplus property account, established and maintained by the General
Services Administration, which the land owner can then use to bid on
surplus government property.
Unfortunately, when this bill has been introduced in the past,
there has been occasional misunderstanding regarding the inclusion of
the bill's reference to section 309(f) of Public Law 104-333, which
requires all federal appraisals and acquisitions of land within
Washington County to be conducted ``without regard'' to the presence of
an endangered species. This reference does not create a new appraisal
standard but rather restates the existing standard for all federal land
acquisition in Washington County, UT. Since its enactment, the
Department of the Interior has applied this standard to all its
acquisitions in the county, without exception. This language was
adopted to allay concerns that local landowners would not receive fair
compensation for their property which was being acquired for government
purposes. Some have supposed the inclusion of this language would
constitute preferential treatment. To the contrary, the absence of this
language would unfairly treat this landowner differently than every
other landowner in the Reserve whose land has thus far been acquired by
the federal government. Moreover, its omission at this point would
likely lead the Justice Department to argue that Congress did not
intend for this statutory standard to apply.
The bill also includes language to allow, as part of the
legislative taking, for the landowner to recover reasonable costs,
interest, and damages. It is important to realize that while federal
acquisitions should be completed on the basis of fair market value,
when the federal government makes the commitment to acquire private
land, the landowner should not have to be driven into financial ruin
while waiting upon the federal government to discharge its obligation.
While the federal government has never disputed its obligation to
acquire the property, it has had the benefit of the private land for
all these years without having to pay for it. The private landowner
should not have to bear the costs of this federal foot-dragging.
Clearly, this legislation is consistent with the high priority the
Department of the Interior has repeatedly placed on this land
acquisition, and is a necessary final step towards an equitable
resolution. The time for pursuing other options has long since expired
and it is unfortunate that it now requires legislative action. Without
commenting on the Endangered Species Act itself, it would seem that if
it is the government's objective to provide habitat for the benefit of
an endangered species, it is the government that ought to bear the
costs, rather than forcing them upon private citizens. It is also time
to address this issue so that the federal agencies may be single minded
in their efforts to recover the desert tortoise which remains the aim
of the creation of the Reserve. It is time to right this wrong and get
on with the efforts to recover the species and I encourage colleagues
in this subcommittee to support the timely enactment of this important
legislation.
Senator Craig. I would also welcome back to our committee
Tom Thompson, Deputy Chief of the National Forest Service and
Jim Hughes, a Deputy Director for the Bureau of Land
Management. Gentlemen, thank you for being here who are here to
testify on legislation.
I will also recognize my colleague from Colorado in a few
moments to introduce others who are in attendance here from
Colorado, a Charlotte Bobicki--did I pronounce that right?
Ms. Bobicki. Close enough.
Senator Craig. Close enough, all right.
[Laughter.]
Senator Craig. And Kate Booth Doyle. And we appreciate them
taking their time to be here to testify. I know that they have
traveled a bit of a long distance to deal with an interesting
issue and a fascinating concept that you are working on.
So we will be hearing testimony on five bills today, S.
1167, introduced by Senator Bond in June to resolve this
boundary conflict that he spoke to; S. 1209, introduced by
Senator Bennett, to acquire property in Washington County, Utah
for the implementation of the desert tortoise habitat
conservation plan. S. 1467 was introduced by Senator Campbell
at the end of July, a bill to establish the Rio Grande
Outstanding Natural Area in the State of Colorado; along with
S. 1848 introduced this month by Senators Wyden and Smith to
amend the Bend Pine Nursery Land Conveyance Act to direct the
Secretary of Agriculture to sell the Bend Pine Nursery
Administrative Site in Oregon.
And lastly, H.R. 708 was introduced in February 2003 by
Congressman Mike Thompson of California and passed by the House
of Representatives on November 8. The bill would require the
conveyance of certain national forest lands in Mendocino
National Forests in California, and would provide for use of
the proceeds from the conveyance for national forest purposes.
I have decided to forgo any additional opening statement as
it relates to the bills. We have those who are here to testify
so that we can expedite this hearing this afternoon. Let me
turn first to Senator Campbell. I will then turn to our ranking
member, Ron Wyden, who has just come in. We are pleased you
would join us, Ron. And then I will turn to our colleague from
Missouri.
Senator Campbell.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL,
U.S. SENATOR FROM COLORADO
Senator Campbell. Thank you, Mr. Chairman, and thank you
for including my bill, S. 1467, to designate a stretch of the
Rio Grande River as an Outstanding Natural Area. You have
already introduced our two witnesses, so I will not do that
again. But I noticed several other friends in the audience who
are here that are very interested in this bill.
This bill deals with the Rio Grande River and its
tributaries which rise in the San Juan Mountains and flow into
the San Luis Valley. And the valley, like so much of Colorado,
is very dependent on snow melt for water. In fact, 600,000
acres of irrigated farmland within the valley get only an
average of seven inches of precipitation each year. So it goes
without saying that the Rio Grande River is the lifeblood of
the valley, and thousands of farmers and landowners depend on
it, as well as the flora and fauna including several endangered
species.
I might add, Mr. Chairman, we need to thank you, too, for
your support of the Sand Dunes National Monument which is our
attempt, which was very successful last year, to be upgraded to
a National Park status, and the money we needed to buy out the
private land to protect that very, very sacred place.
A lot of that area sits on a large underground body of
water, and this snow melt is what recharges it every year. This
legislation, S. 1467, is the product of a careful collaboration
between interested stakeholders including environmental groups,
landowners, farmers, government officials too.
These parties all recognize that in order to protect this
important 33-mile stretch of watershed, something had to be
done. And after much deliberation, they all agreed that
designating that stretch of river from the southern edge of
Alamosa National Wildlife Refuge to the New Mexico State line
as an Outstanding Natural Area would be the best way to
maintain its critical reach.
This bill establishes a commission made up of Federal,
State and local stakeholders who are charged with developing a
management plan to restore and protect the area. The Secretary
of the Interior must review and approve the plan. And on
approval, the Secretary then must implement the management plan
coordinating with State and local governments and cooperating
with landowners, too. Private landowners, in fact, are
encouraged to participate in the commission.
As in much of the West, the Rio Grande River's water is
apportioned to downstream States through interstate compacts
and, in fact, an international compact. Therefore, make no
mistake about it, the bill does not include an implied or
reserved water right.
It is supported by many. This bill is supported by local
boards of county commissioners, local water users
organizations, local cattlemen's associations and the
environmental community, and affected private landowners, too.
And as you know, Mr. Chairman, those are not often groups you
see on the same side of any issue when we are dealing with land
in the West.
So I look forward to the hearing and certainly invite my
colleague, Senator Allard, who will be a co-sponsor of this
bill, to testify if he happens to come in today.
Senator Craig. Thank you very much, Senator, for those
opening comments and statements about that legislation.
Let me turn to the ranking member of the subcommittee for
any comments he would wish to make.
STATEMENT OF HON. RON WYDEN, U.S. SENATOR
FROM OREGON
Senator Wyden. Thank you. Thank you, Mr. Chairman. I will
be brief. Like all of us at the end of this session, I have to
be in about three places simultaneously.
I just have a couple of comments about a bill that Senator
Smith and I have been pursuing now for 4 years. It involves the
community of Bend in our home State that wants to take title to
property that the Forest Service has been eager to sell and
which the park district in the area was eager to acquire for
superb parks and ball fields.
We have been working on this for more than 4 years. We felt
we had a bipartisan bill. Somehow every time the Forest Service
has been involved, it has ended up taking more time and has
ended up costing more money. They apparently, have another idea
today which seems to be more of the same.
We hope that the committee will look favorably on the
bipartisan legislation Senator Smith and I have introduced. It
is embodied in the bill that the subcommittee is looking at
today that would direct the sell of the Bend Pine Nursery to
the Bend Pine Parks District for $3.5 million. That figure was
arrived at by assuming the $3 million value of the property on
the date the original act was passed, allowing for inflation
per the Forest Service calculation, and then deducting the
value of acreage the Forest Service decided not to sell, and 15
acres the Forest Service has the ability to transfer to a local
school district at no cost.
But as a result of all of this delay, I mean we looked at
one point recently at a cost of $5.8 million, a cost that was
inconsistent with what Senator Smith and I have been working on
for 4 years, and runs entirely contrary to the interest of Bend
taxpayers. So we are very hopeful that we can move this measure
expeditiously, possibly if we have a markup in the next day or
so. It continues to have very strong bipartisan support, strong
bipartisan support at home. And we are very hopeful that the
subcommittee will look favorably on it.
I suspect this may be the last meeting of our subcommittee
for the year. And I want to take this opportunity, Mr.
Chairman, to say thank you for all of your assistance and
cooperation. I think we are on the cusp of being able to have
the Healthy Forest, the bipartisan initiative that we have
worked on throughout this session going forward. And to a great
extent, it is because you have been willing to meet me more
than halfway. I am very appreciative of those efforts and
hopeful that, like we had with the county payments legislation
several years ago, we will have another breakthrough in a vital
area of natural resources. And I thank you. I see Frank
Gladdicks. There is Frank over there. I thank both of you for
all of the cooperation that you have shown us throughout the
session.
Senator Craig. Well, thank you for those generous words. I
hope that the session ends with our Forest Health legislation
becoming law. It is critical and necessary I think, not only
for forest health but for the safety of our citizens. We have
experienced some dramatic fire years.
With that, let me turn to my colleague, Jim Talent from
Missouri to tell us more about the fouled up boundaries of the
Mark Twain.
STATEMENT OF HON. JAMES M. TALENT, U.S. SENATOR
FROM MISSOURI
Senator Talent. Not much more, Mr. Chairman. You have been
kind enough to hold this hearing, and I am not going to
penalize you by going through a long opening statement.
To make clear what has happened here, the government--the
Corps of Engineers surveyed this land in 1970 and indicated it
had certain boundaries for the National Forest. And local
landowners, in reliance upon that, have bought and sold the
property, have built fences on the property. And now a
different government agency has come in and said, ``No. You did
not own the property after all,'' and refuses to convey it to
them except after a long administrative process and requiring
them to pay twice for the same property.
In a private dispute, the party which was responsible for
the incorrect survey in the first place would almost certainly
be estopped from claiming that survey as a basis for now
claiming the land, but since you cannot estop the Government we
are in a position where if we do not act, these landowners are
going to have to pay twice, plus all of the other problems that
Senator Bond reported. So I hope that we will just sort of make
an executive decision here that with regard to the small tracts
of land, that we will go ahead and do justice for these
individuals and let the agencies sort out responsibility for
themselves afterward.
I do want to close by saying that Senator Bond has been
working on this and really has done yeoman's works and deserves
a lot of credit for the attention he has paid to the concerns
of these landowners and the, I think, the requirements of
justice here.
And thank you, Mr. Chairman, for letting me make a comment.
Senator Craig. Well, thank you very much.
We have a fundamental problem today. It is called GPS. Now
we can very accurately track boundary lines and after you have
spent decades and decades with a deed and you have paid taxes
on property you thought was yours and it has been cleared
through numerous title companies over the years, and we go back
and start realigning because we can now survey more accurately
than ever before, I think that if--I would be a strong
supporter of your legislation if it outlawed the Federal
Government from using GPS'es to establish new boundary
relationships.
[Laughter.]
Senator Craig. With that, let me invite our first panel of
Tom Thompson, Deputy Chief, National Forest Service Systems,
Department of Agriculture, and Jim Hughes, the Deputy Director,
Bureau of Land Management, Department of the Interior, to come
forward. And no, gentlemen, I do not expect you to address the
GPS comment. But then again, it is not a bad idea.
[Laughter.]
Senator Craig. Please proceed, gentlemen. Tom, if you would
start, we will go in that order to testify on all of the bills
that you are here to testify on today.
STATEMENT OF TOM THOMPSON, DEPUTY CHIEF, NATIONAL FOREST
SYSTEM, FOREST SERVICE, DEPARTMENT OF AGRICULTURE
Mr. Thompson. Well, thank you, Mr. Chairman, and members of
the subcommittee. I appreciate this opportunity to be before
you today.
I would like to present the Department's view on H.R. 708,
the Mendocino National Forest Land Exchange, S. 1167, to
resolve boundary conflicts in Barry and Stone Counties, in the
State of Missouri, and S. 1848, which is the Bend Pine
Administrative Site, or the Nursery Site Act. The Department
supports H.R. 708. We object to S. 1167 unless the bill is
amended to address some concerns that we have in our testimony.
And we would like to discuss a different alternative for S.
1848.
We start with H.R. 708, which authorizes the direct sale of
two parcels comprising 120.9 acres of National Forest System
land on the Mendocino National Forest in California to the
Faraway Ranch. Various improvements and facilities have been
constructed on these lands, and they have lost much of their
National Forest character. This bill provides Faraway Ranch the
opportunity to acquire these lands associated with their
improvements and activities.
At the time of conveyance, Faraway Ranch will make full
payment of the fair market value as determined by an appraisal
that conforms to the Federal appraisal standards and is
acceptable to the Secretary, as well as cover all direct costs
associated with completing this transaction. The Department
supports this bill because it will certainly improve management
efficiency for the forest while recognizing the value of the
public's assets. That concludes my comments on H.R. 708.
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
in Missouri, who have innocently and in good faith relied upon
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.
The basic facts in this situation are not in dispute.
Surveyors under contract to the U.S. Army Corps of Engineers 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 corners. Subsequent private land surveys,
who relied upon the incorrectly located corners, have confused
landowners in Barry and Stone Counties regarding the location
of what these private boundaries adjoining National Forest
System lands were, 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 lands.
The administration shares Senator Bond's concern that we
need to find an equitable way to resolve the problems faced by
these landowners. For the committee's information, I have
attached to my testimony a January 22, 2003, letter from the
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.
However, the Department objects to the approach to this
problem that S. 1167 would provide. Our primary concern is that
S. 1167 would transfer land, which is the property of all U.S.
citizens, at no cost. But in addition, S. 1167 does not aid
other landowners in the area with potential title claims and
questionable boundaries with adjoining private landowners.
At this point, we believe that the Corps should take the
necessary actions to correctly establish the 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.
In the case of boundary conflicts on National Forest
Systems lands, those boundary disputes would be resolved under
the Small Tracts Act. We would like to work with the Committee
so that correct boundaries can be established for all
potentially affected private landowners in Barry and Stone
Counties, as well as for agencies of the Federal Government.
That concludes my comments on S. 1167.
S. 1848, the Bend Pine Nursery Administrative Site: S. 1848
would amend the Bend Pine Nursery Land Conveyance Act to
require the Secretary to offer to sell 170 acres of the Bend
Pine Nursery Administrative Site on the Deschutes National
Forest to the Bend Metro Park and Recreation District in
Deschutes, County, Oregon for $3.5 million. Proceeds from this
sale would be deposited in the fund established under the Sisk
Act. These funds would then be available to the Forest Service
for the acquisition, construction, or improvement of
administrative and visitor facilities and associated land in
connection with the Deschutes National Forest in the Bend
community, and the acquisition of lands and interests in lands
in Oregon. The Forest Service has been working with the
community of Bend, Oregon to implement Public Law 106-526.
S. 1848 would also direct the conveyance of 15 acres
located in the northwest corner of this Administrative Site,
for no consideration, to the Administrative School District,
Number 1, Deschutes County, in accordance with section 202 of
the Education Land Grant Act.
The Department believes that a better approach would be for
the 170-acres to be reappraised for recreational purposes. We
would point out that the severing of the 15-acre tract for
conveyance under the Education Land Grant Act to the Bend-La
Pine School District may cause unintended delay, because
additional survey work and analysis would be needed beyond what
has already occurred. In lieu of this two-conveyance process,
we suggest a single conveyance of the 185-acre tract, which has
already been surveyed, to the District, with the requirement
that the District then convey the 15-acres as envisioned in the
legislation.
This concludes my statement. And I would be pleased to
answer any questions that you may have.
Senator Craig. Tom, thank you very much.
[The prepared statement of Mr. Thompson follows:]
Prepared 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 H.R. 708, the Mendocino National Forest Land
Exchange, S. 1167, to resolve boundary conflicts in Barry and Stone
Counties, in the State of Missouri, and S. 1848, the Bend Pine Nursery
Administrative Site Act. The Department supports H.R. 708, objects to
S. 1167 unless the bill is amended to address the concerns identified
in my testimony, and would like to discuss a different alternative for
S. 1848.
H.R. 708--THE MENDOCINO NATIONAL FOREST LAND EXCHANGE
H.R. 708 authorizes the direct sale of two parcels comprising 120.9
acres of National Forest System lands on the Mendocino National Forest
in California to the Faraway Ranch. Various improvements and facilities
have been constructed on these lands and they have lost much of their
National Forest character. This bill provides Faraway Ranch the
opportunity to acquire these lands associated with their improvements
and activities.
At the time of conveyance, Faraway Ranch will make full payment of
the fair market value as determined by an appraisal that conforms to
the Federal appraisal standards and is acceptable to the Secretary, as
well as cover all direct costs associated with completing this
transaction. The Department supports this bill because it will improve
management efficiency for the forest while recognizing the value of the
public's assets.
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 (P.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.
S. 1848--THE BEND PINE NURSERY ADMINISTRATIVE SITE
S. 1848 would amend the Bend Pine Nursery Land Conveyance Act (P.L.
106-526) to require the Secretary to offer to sell 170 acres of the
Bend Pine Nursery Administrative Site, on the Deschutes National Forest
to the Bend Metro Park and Recreation District in Deschutes, County,
Oregon for $3.5 million. Proceeds from this sale would be deposited in
the fund established under Public Law 90-171 (16 U.S.C. 484a), commonly
known as the Sisk Act. The funds would then be available to the Forest
Service for the acquisition, construction, or improvement of
administrative and visitor facilities and associated land in connection
with the Deschutes National Forest in the Bend community, and the
acquisition of lands and interests in lands in Oregon. The Forest
Service has been working with the community of Bend, Oregon to
implement P.L. 106-526.
S. 1848 would also direct the conveyance of 15 acres located in the
northwest corner of the Bend Pine Nursery Administrative Site, for no
consideration, to the Administrative School District, No. 1, Deschutes
County, Oregon, in accordance with section 202 of the Education Land
Grant Act (16 U.S. C. 479a).
The Department believes a better approach would be for the 170-
acres to be appraised for recreational purposes. We would point out
that the severing of the 15-acre tract for conveyance under the
Education Land Grant Act to the Ben-La Pine School District may cause
unintended delay, because additional survey work and analysis would be
needed beyond what has already occurred. In lieu of this two-conveyance
process, we suggest a single conveyance of the 185-acre tract, which
has already been surveyed, to the District, with the requirement that
the District then convey the 15-acre tract as envisioned in the
legislation.
This concludes my statement. I would be pleased to answer any
questions that you may have.
Senator Craig. Let us turn to Jim for his testimony and
then we will question you all jointly. Thank you.
Jim.
STATEMENT OF JIM HUGHES, DEPUTY DIRECTOR, BUREAU OF LAND
MANAGEMENT, DEPARTMENT OF THE INTERIOR
Mr. Hughes. Thank you, Mr. Chairman. I thank the Committee
for the opportunity to testify on S. 1209, to provide for the
acquisition of land in Washington County, Utah, and S. 1467,
the Rio Grande Outstanding Natural Area Act. The administration
supports the purposes and goals of S. 1209 and S. 1467. While
the administration supports acquisition of the lands identified
in S. 1209, it does not support some of the specific provisions
in this legislation. Regarding S. 1467, the administration
could support the legislation with a number of modifications.
On the first bill, S. 1209, the Washington County, Utah
Desert Tortoise Habitat Conservation Plan: The HCP was adopted
in 1996 in order to protect important desert tortoise habitat,
while also allowing continuing development in the fast growing
St. George, Utah area. Since 1996, the BLM, as a Federal
partner in the HCP, has coordinated the acquisition of 7,955
acres within the reserve from willing sellers. Among those
willing sellers has been Environmental Land Technology, ELT. To
date, the BLM has acquired a total of 527 acres of land from
ELT.
Approximately 1,400 acres of private land remain to be
acquired within the Red Cliffs Desert Reserve. Of those lands,
1,365 acres are controlled by ELT. The Interior Department
Appropriations Act for fiscal year 2004 includes $500,000 in
LWCF funds for Washington County HCP acquisitions. While we
will certainly move forward to complete an ELT acquisition
using these funds, with lands most recently appraising at
$23,000 an acre, we would only be able to acquire a very small
portion of the remaining lands in the Reserve.
The BLM's most recent appraisal of the remaining ELT
holdings was valued at approximately $28 million when it was
completed in 2001. The BLM's overall land acquisition project
budget under the LWCF for fiscal year 2004, in contrast, was
$13.6 million, and those dollars are designated by Congress for
a variety of other specific projects.
The BLM continues to look for other solutions to completing
the acquisition of ELT's lands within the Red Cliffs Desert
Reserve at an appraised value under the Uniformed Appraisal
Standards for Federal Land Acquisitions. However, the bill does
not exempt the BLM from following its existing land acquisition
standards.
The Department supports acquisition of those remaining
acres. And this legislation, as we understand it, would affect
a Federal taking of private property and require payment of
compensation, which is within congressional prerogative.
However, the Department does not support the specific
mechanisms provided in the bill to decide and pay ELT the
compensation for these lands.
We would like the opportunity to work with the sponsor and
the committee to improve this legislation to make it consistent
with the BLM, Department of the Interior, and Department of
Justice standards and to find the best and most direct way to
resolve this matter.
Regarding S. 1467, north from the New Mexico border into
Colorado is a 33-mile stretch of the Rio Grande River that is
outstanding for many reasons. Through multiple land
acquisitions from willing sellers, the BLM has acquired a
continuous 20-mile stretch of lands along the western bank of
the Rio Grande, now designated as the Rio Grande Corridor Area
of Critical Environmental Concern.
The people who live in the San Luis Valley have come
together in a collaborative fashion to find ways to further
protect and enhance this stretch of this historic river.
S. 1467 establishes the Rio Grande Outstanding Natural Area
along a 33.3 mile segment of the Rio Grande from the New Mexico
border north to the Alamosa National Wildlife Refuge in a
corridor about one-quarter mile wide on either side of the
River. The overall area includes over 10,000 acres,
approximately 35 percent of which is BLM-managed public land.
The remainder is private land.
The bill establishes a commission whose purpose is to work
with Federal, State and local authorities to develop an
integrated resource management plan for the area. We support
this type of collaborative effort. However, as currently
drafted, we have concerns about the bill's use of a commission
as a means of advising the Secretary on land management
decisions affecting this area. We believe an advisory council
is a more appropriate vehicle for this collaboration. Chartered
under the Federal Advisory Committee Act (FACA), an advisory
council would be able to fill many of the same roles as the
proposed commission.
In addition, we would like to work on clarifications to
this section to ensure that the BLM continues to have final
responsibility for planning for the Federal lands. A single
plan covering the entire river corridor is still viable,
provided it is clear that the BLM has ultimate planning
authority for the Federal lands.
While the southern Colorado stretch of the Rio Grande is
truly outstanding, we would recommend that the sponsors of the
bill consider whether a different designation for this area
might be preferred. We would be pleased to work with the
sponsor and the committee to resolve this concern.
There are additional technical issues we would like to work
on as well. They would include a map, clarification of the
revocations in section 11(a) and improvement of the withdrawal
in section 11(c).
Mr. Chairman, we believe the goals of this legislation are
worthy, and we support them wholeheartedly. The local support
for this proposal is just the kind of effort that this
Department and this Administration encourages. We believe that
by working together cooperatively, this area of the Rio Grande
can be a model for responsible stewardship of the land.
Thank you for the opportunity to testify. I would be happy
to answer any questions.
Senator Craig. Well, Jim, thank you very much.
[The prepared statement of Mr. Hughes follows:]
Prepared Statement of Jim Hughes, Deputy Director,
Bureau of Land Management, Department of the Interior
Thank you for the opportunity to testify on S. 1209, to provide for
the acquisition of land in Washington County, Utah, and S. 1467, the
Rio Grande Outstanding Natural Area Act. Both bills are currently being
discussed by the Administration. The Administration supports the
purposes and goals of S. 1209 and S. 1467. While the Administration
supports acquisition of the lands identified in S. 1209, it does not
support some of the specific provisions in this legislation. Regarding
S. 1467, the Administration could support the legislation with a number
of modifications.
S. 1209
The Washington County, Utah Desert Tortoise Habitat Conservation
Plan (HCP) was adopted in 1996 in order to protect important desert
tortoise habitat, while also allowing continued development in the fast
growing St. George, Utah area. The establishment of the 62,000 acre Red
Cliffs Desert Reserve was a critical element of the HCP. Since 1996,
the BLM, as a Federal partner to the HCP, has coordinated the
acquisition of 7,955 acres within the reserve from willing sellers
through donation, exchange, purchase and conservation easements. Among
those willing sellers has been Environmental Land Technology (ELT). To
date, the BLM has acquired a total of 527 acres of land from ELT. Of
that total, some 157 acres have been acquired through three separate
land exchanges valued at approximately $2.72 million, and the remaining
370 acres have been purchased through four different transactions using
over $6 million of Land and Water Conservation Fund (LWCF) monies
appropriated by Congress.
Approximately 1,412 acres of private land remain to be acquired
within the Red Cliffs Desert Reserve. Of those lands, 1,365 are
controlled by ELT. The Department of the Interior and Related Agencies
Appropriations Act of 2004 (Public Law 108-108) includes $500,000 in
LWCF funds for Washington County HCP acquisitions. While we will
certainly move forward to complete an ELT acquisition using these
funds, with lands most recently appraising at approximately $23,000 an
acre, we would only be able to acquire a very small portion of the
remaining ELT acreage in the Reserve.
The BLM's most recent appraisal of the remaining ELT inholding was
valued at approximately $28 million when it was completed in 2001. The
BLM's overall land acquisition project budget under the LWCF for FY2004
is $13.6 million, and those dollars are designated by Congress for a
variety of other specific projects.
The BLM continues to look for other solutions to completing the
acquisition of ELT's lands within the Red Cliffs Desert Reserve. We are
exploring the possibility of a competitive land sale under the Federal
Land Transaction Facilitation Act of 2000 (Public Law 106-248), using
the proceeds potentially to acquire the remaining ELT lands at
appraised value. This is would take over a year to complete.
S. 1209 is similar to a bill considered in the 107th Congress, H.R.
880. On May 10, 2001, the BLM testified before this subcommittee on
H.R. 880 expressing views similar to those I will share with you today.
S. 1209 provides that, 30 days after the date of enactment, the
United States would acquire the remaining ELT lands within the Reserve
and 34 acres adjacent to the Reserve, and would make an initial payment
of $15 million within 60 days of enactment. The bill further provides
that just compensation for the property would be reached either through
a negotiated settlement between the property owner and the Secretary,
plus interest from the date of enactment, or through a judgment
obtained in a civil action brought by the Secretary in Federal Court.
If a negotiated settlement cannot be reached, then compensation would
be based on the valuation of the property determined by the court, plus
interest from the date of enactment, reasonable costs and expenses of
holding the property from February 1990 to the date of final payment,
including possible damages, and reasonable costs and attorney's fees.
As stated before, the Department supports acquisition of these
remaining acres within the Reserve. This legislation would affect a
Federal taking of private property and require payment of compensation,
which is within congressional prerogative. However, the Department does
not support the specific mechanisms provided in the bill to decide and
pay ELT the compensation for these lands.
As written, the $15 million ``initial payment'' would likely come
from existing programs because no other source is specified in the
bill. Additionally, it is unclear whether the Department would avoid
having to make this payment if a negotiated agreement is reached within
two months from the date of enactment. It is also unclear what latitude
the Secretary would have in ``negotiating'' a price outside litigation.
The BLM is subject to the Uniform Appraisal Standards for Federal Land
Acquisitions, which requires that land be purchased for the appraised
value, not a higher ``negotiated'' amount. The bill does not exempt the
BLM from following its existing land acquisition standards.
We believe the bill should include a mechanism that specifically
directs the source of funds. The judgment fund may not be the most
appropriate source of funds to pay for a directed taking. Moreover, the
Department would be unable to complete a time-consuming exchange or
acquisition of land subject to all existing laws, including the Federal
Land Transaction Facilitation Act, within the mandatory timelines in
the bill. The Committee should address these issues before the bill
passes.
The Administration objects to those provisions of S. 1209 that
deviate from standard land acquisition practices and substitute
procedures that provide compensation beyond that received by other
landowners in previous acquisitions in this area. However, the
Administration supports the goal of acquiring this property for the
Federal government, and would like the opportunity to work with the
sponsor and the Committee to improve this legislation to make it
consistent with BLM, Department of the Interior, and Department of
Justice standards and to find the best and most direct way to resolve
this matter.
S. 1467
From its headwaters in Colorado's San Juan Mountains, the Rio
Grande flows south through Colorado, bisecting New Mexico, then
crossing into Texas where it forms the U.S./Mexico border until
emptying into the Gulf of Mexico. At 1,885 miles long, the Rio Grande
is the fifth longest river in North America (and among the 20 longest
in the world). Its flowing waters have been essential to survival for
prehistoric, historic, and present day populations.
North from the New Mexico border into Colorado is a 33-mile stretch
of the Rio Grande River that is outstanding for many reasons. Natural
and undeveloped, this free flowing river is home to extensive wildlife.
Significant for its recreational, scientific and educational uses, the
area is dominated by sweeping views and a long history. Through
multiple land acquisitions from willing sellers, the BLM has acquired a
continuous 20-mile stretch of lands along the western bank of the Rio
Grande now designated as the Rio Grande Corridor Area of Critical
Environmental Concern.
The people who live in the San Luis Valley have come together in a
collaborative fashion to find ways to further protect and enhance this
stretch of this historic river. Discussions about protection of the
corridor began following completion of the BLM's 1991 San Luis Resource
Management Plan. As part of the plan, BLM conducted a wild and scenic
rivers eligibility and suitability analysis and ultimately recommended
that stakeholders interested in the river create ``some enduring form
of protection.'' The legislation being considered today is a result of
that stakeholder process.
S. 1467, the Rio Grande Outstanding Natural Area Act, was
introduced on July 28th of this year. The bill's stated purpose is to
conserve, restore, and protect this special resource. It does this by
establishing the Rio Grande Outstanding Natural Area along a 33.3 mile
segment of the Rio Grande from the New Mexico border north to the
Alamosa National Wildlife Refuge in a corridor about , mile wide on
either side of the river. The overall area includes over 10,000 acres,
approximately 35% of which is BLM-managed public land. The remainder is
private land.
The bill establishes a commission whose purpose is to work with
Federal, State and local authorities to develop an integrated resource
management plan for the area. We support this type of collaborative
effort. The Secretary's 4Cs envision just this type of endeavor.
However, as currently drafted, we have concerns about the bill's use of
a commission as a means of advising the Secretary on land management
decisions affecting this area. Specifically, the bill does not address
the funding source for the commission, does not make clear the nature
of the commission's advisory role, or its impact on affected private
property interests. Given these concerns, we believe an advisory
council is a more appropriate vehicle for this collaboration. Chartered
under the Federal Advisory Committee Act (FACA), an advisory council
would be able to fill many of the same roles as the proposed
commission. The BLM currently works with 39 advisory councils. They
range from our 23 Resource Advisory Councils (RACs), which provide
advice on multiple use management of public lands within a state or
region of a state, to area-specific advisory councils, such as the
Steens Mountain Advisory Council or the Canyons of the Ancients
National Monument Advisory Committee in southwestern Colorado. All
recommendations by advisory councils are considered by the BLM's State/
field offices and by the Washington office when making decisions about
the management of public lands.
In addition, we would like to work on clarifications to this
section to ensure that the BLM continues to have final responsibility
for planning for the Federal lands. A single plan covering the entire
river corridor is still viable, provided it is clear that the BLM has
ultimate planning authority for the Federal lands. It is our
understanding that the focus of this process would be restoration of
the historic riparian community along the river. Specifically, issues
of livestock movement through the largely unfenced river corridor,
designation of vehicle access routes to minimize impact on riparian
vegetation, and management of riparian habitat on BLM lands are likely
to be addressed.
Undertaking a management plan is a time-consuming task requiring
extensive resources and expertise. We believe the time deadlines and
other specifics of the planning sections established in the bill may be
overly optimistic. In order to ensure a fully cooperative,
collaborative, and consultative process that is consistent with the
National Environmental Protection Act (NEPA) and other laws and
regulations, we would urge longer timeframes. We would be pleased to
work with the sponsor and the Committee to address this concern.
While the southern Colorado stretch of the Rio Grande is truly
outstanding, we would recommend that the sponsor of the bill consider
whether a different designation for this area might be preferred.
Currently, the BLM manages only one ``Outstanding Natural Area'' (ONA),
the Yaquina Head ONA, located on the Oregon coast. Yaquina Head ONA is
a tourist destination with an emphasis on visitation. Because
visitation is not a stated goal in this area, we are concerned that
using the same terminology could result in confusion. Possible
alternatives would be a ``cooperative management and protection area,''
such as exists in eastern Oregon in the Steens Mountains, or
``cooperative river management area.'' We would be pleased to work with
the sponsor and the Committee to resolve this concern.
There are additional technical issues we would like to work on as
well. For example, we would like the opportunity to work with the
sponsor and the Committee on an accurate map of the proposed area.
Additionally, Section 11(a) of the bill calls for the revocation of
any existing reservations on the public lands within the area. There
are two such reservations. The first is a 1949 administrative
withdrawal of approximately 2,700 acres for the purpose of future
hydroelectric development (this withdrawal covers lands both in
southern Colorado and northern New Mexico.) The second is a 1939
Executive Order creating public water reserves for the purpose of
livestock and domestic access. These reservations are no longer
necessary, because in the former case, hydroelectric development has
been rejected as a viable option for this section of the river and in
the later case because access to the Rio Grande now exists due to
subsequent BLM land acquisitions. As written, the language only revokes
the portion of the reservation within the 1/4-mile river corridor, and
could result in unnecessary management confusion. As all of these
reservations are river-based, we advocate a complete revocation of the
reservations in lieu of a partial revocation.
Section 11(c) of the bill withdraws the public lands within the
newly designated area from a host of public laws and provisions. To
avoid confusion, we would recommend a standard withdrawal from
location, entry, appropriation and/or patent under the public land laws
and mining laws as well as from operations of the mineral leasing,
mineral materials, and geothermal leasing laws. Such a standard
withdrawal will foster clear understanding and, we believe, reflects
the intent of the sponsor.
The Administration supports sections 9(c), 13, and 14 regarding
water rights. This language makes clear that the designations in this
Act shall not be construed to constitute an express or implied water
right.
Mr. Chairman, we believe the goals of this legislation are worthy
and we support them wholeheartedly. The local support for this proposal
is just the kind of effort that this Department and this Administration
encourages. We believe that by working together cooperatively, this
area of the Rio Grande can be a model for responsible stewardship of
the land.
Thank you for the opportunity to testify, I would be happy to
answer any questions.
Senator Craig. Tom, thank you for your testimony. We will
run through a round of questions here to see if can get this
wrapped up as quickly as possible.
Tom, on S. 1167 as it relates to the boundary conflicts on
the Mark Twain, the approach you are proposing sounds labor
intensive and time consuming. Is there not a more expedient
process that gets these surveys corrected and private land
titles resolved?
Mr. Thompson. Mr. Chairman, the approach that we are
suggesting is to do two things. One is to deal on a case-by-
case basis with these differences that exist, that have been
brought about because of an erroneous location of boundaries.
The original corners were set in the 1840's. The surveys that
were done in the 1970's erroneously located those. The original
corners are where they are.
And what we are saying is, number one, let us find the
original ones and correct the boundaries so that we do not
perpetuate this problem for years and years and years to come.
At the same time, we are suggesting that we deal with these
cases. And for us with the Forest Service, we would use the
Small Tracts Act to take care of these disputes.
It is a two-pronged thing. One is to solve the long-term
problem of having bad surveys. And the other one is to deal
with the differences that exist and use whatever authorities we
can to make the appropriate transfers that need to be made.
Senator Craig. Well, you all know a great deal more about
it than I, as do my colleagues from Missouri. I hope we can
count on the Forest Service working with this committee over
the next month or so, so that we can resolve this and move this
legislation out to get a solution to it.
Mr. Thompson. We look forward to doing that. We really do.
Senator Craig. It is awfully difficult to say to somebody
who thought they bought their land in good faith, that, ``You
are going to have to re-buy it again,'' especially if you have
owned it for 25 or 30 years and you have paid taxes on it.
Mr. Thompson. Yes.
Senator Craig. And that is a conflict that is, you know,
speaking loudly to a resolution.
On S. 1848, the Bend Pine Nursery, this legislation seems
straightforward, a straightforward solution to a problem in
Oregon. And the Forest Service cannot support the bill as it
is?
Mr. Thompson. Well, it is our belief that we have an
opportunity through a new survey, which is not to look at the
value in the best and highest use, but to do the appraisal
based upon recreational use which is what its use would be
under this sale. And so it is just to get a focused appraisal
based upon the use that it is going to be. That is not the way
the appraisal was done. And it is a matter of going back,
taking 6 months to do that, and----
Senator Craig. How much would a new appraisal cost?
Mr. Thompson. Oh, I am not sure. I think it----
Senator Craig. You suggested 6 months, so we understand
where the time is. How about the money?
Mr. Thompson. I am not sure exactly what the amount for the
new survey would be. I think it is somewhere around $500,000.
Senator Craig. And how many acres are we talking about?
Mr. Thompson. 185 acres total, but 15 of that would be
conveyed under the ELGA provisions.
Senator Craig. And what is that land worth per acre?
Mr. Thompson. I am sorry?
Senator Craig. And what is that land worth per acre?
Mr. Thompson. The----
Senator Craig. I know Bend.
Mr. Thompson. Yes. The appraisal that we completed over the
last year came in at $5.8 million.
Senator Craig. I see.
Mr. Thompson. And so that is what--but that is under a
different assumption.
Senator Craig. The Forest Service has a half a million
dollar in their budget to complete the survey?
Mr. Thompson. We feel that this is an important resolution
that we want to have, an equitable and an expeditious way of
resolving this and we want to be fair.
Senator Craig. Yes.
Mr. Thompson. And we want to make sure that we have the
right information and data to support it.
Senator Craig. Okay.
Mr. Thompson. It is an alternative.
Senator Craig. Sure.
Mr. Thompson. And we certainly believe that it is one
approach.
Senator Craig. Thank you.
On H.R. 708, Mendocino National Forest Conveyance, this
legislation calls for the proceeds to be used for acquisition
of non-Federal lands adjacent to the Forest Service which seems
to be a common approach for revenue generated from the sale of
Federal lands. Would the Forest Service support this language
that provides authority to use these funds for forest health
such as fuel reduction?
Mr. Thompson. I do not think we would oppose that.
Senator Craig. Yes. Okay. Well, Jim, I will get to you on
the next round. Let me turn to my colleague who may be asking
all of the right questions at the time specifically to the BLM
issues. So let me turn to him.
Senator Campbell. Thank you, Mr. Chairman.
Senator Craig. Senator Campbell.
Senator Campbell. Jim, as I understand your testimony as I
read it and listened to you, you used the word ``outstanding.''
Mr. Hughes. Yes.
Senator Campbell. That is what we put in the title, as you
know. I guess it can be outstanding if we do not call it
outstanding, is that correct?
[Laughter.]
Mr. Hughes. I do not want to mislead you, Senator. I think
one of the issues we have--it is our understanding that the
people--you know, many times a community or a group will come
together and they want to designate a monument or a park and,
quite frankly, one of the reasons is they want tourism and they
want to attract people there.
Senator Campbell. Sure.
Mr. Hughes. It is our understanding that that may not be
the case in this area. And we just raised that issue, so----
Senator Campbell. Well, in the BLM, is it like the Park
Service in that they have certain specified, I do not know,
attributes or topography or so on for different kinds of names?
That is the difference between ``national monument'' and
``national park'' as an example. Does the BLM have that same
kind of a stratified system when you use a certain name?
Mr. Hughes. Yes, that is correct. And again, I do not--we
do not have great opposition. We just raise that as an issue to
the community.
Senator Campbell. Well, reading it and hearing you, the
changes you recommended do not seem unreasonable to me, but I
would like to withhold judgment until we hear from the Colorado
witnesses.
Have you been out there, by any chance, been to that
valley? They say it is the largest valley in the United States
at that elevation.
Mr. Hughes. No. I have heard a lot about it though,
Senator.
[Laughter.]
Senator Campbell. Well, it is a great place. I go through
every few weeks myself, and you would not believe that one of
the nicknames is ``A Land of Cool Sunshine,'' because it can be
sunny and just brilliant and 20 below at the same time. And yet
there is an alligator farm out there. And I never would have
believed alligators could be raised at 20 below if I had not
gone to visit it one time.
[Laughter.]
Mr. Hughes. They wear coats.
[Laughter.]
Senator Campbell. Of course, the water they are in is not
that cold either, but----
[Laughter.]
Senator Campbell. I thought I would point that out. If you
get there, there are some terrific things to see.
Mr. Hughes. Thank you, Senator.
Senator Campbell. Well, I have no further questions. But I
would ask you if you would be willing to work with staff if we
can work out, you know, some of the nomenclatures and the
different small things.
Mr. Hughes. Oh, yes. And with the people out there, we
would be happy to work with them also.
Senator Campbell. Thank you.
Mr. Hughes. Thank you.
Senator Campbell. Thank you, Mr. Chairman.
Senator Craig. Thank you.
Now, let me turn to my colleague, Senator Talent.
Senator Talent. Thank you, Mr. Chairman.
Tom, we would all like to get this resolved. And I
appreciate the good faith in which you are acting. The concerns
that you raise, it seems to me, that are or may be legitimate
from 40,000 feet if you are the government, but really are not
when you apply it to these landowners.
One of them is that we should not convey property without
cost, but these people have paid. What we really are doing is
asking them to pay twice, would we not be? Because, as the
chairman said, they have paid for the land and they have paid
taxes all of this time. They just paid the wrong person, is
their claim, but that is not their fault. So I mean, it is not
without cost to them. I mean, is that not fair?
Mr. Thompson. Well, the issue would be if they were
acquiring additional land. I mean, obviously, we want to get
the boundaries----
Senator Talent. Clarified.
Mr. Thompson. Yes. I mean, it is the assumption that lands
that they have improvements on, that, you know, from a legal
standpoint, really is not theirs if you will not go back, but
the idea of giving them that land that they have improvements
on, transferring that to them, and having an equitable return,
compensation to the citizens of the country, so----
Senator Talent. Well, the point is that they have paid in
reliance, good faith reliance on the Government survey which
the Act requires, that they have acted in reliance and in good
faith and innocently. They have paid for the property, and they
have also paid the taxes.
So if we say to them, ``Now, you cannot have your property
unless you pay again,'' effectively they will have to pay
twice. That is the point I am making.
So this would be a basis, it seems to me, for you all
making an exception to what I understand is an important
administrative policy for you. You do not want to be
transferring land without getting some payment, but in this
case you could say, ``Well, you know, we can make an exception
because there was payment to somebody for this.''
The point I wanted to make is, Mr. Chairman, as Tom
mentioned, case-by-case claims, well, the Act would require
that. They would have to file a claim and they would have to
prove under procedures set forth that they had innocently and
in good faith relied on the Federal survey and occupied and
improved the claimed land. So it is not like we are just going
to sweepingly, in the Act, give this property. They are going
to have to go through an administrative process. It just
expedites things. And I guess what I--it is not really a
question so much as a comment. It does deal with the concern
about a case-by-case adjudication of it.
Another thing is, Mr. Chairman--and maybe you could comment
on this--we would all like to resolve all of the disputes at
once, including disputes between private landowners. But that
will have to be resolved according to State law, will it not?
Mr. Thompson. Well, obviously, if we can get the survey
corrected those will be much easier to resolve in the long-
term. And I think all parties agree that that would be the----
Senator Talent. That we want to get this resolved.
Mr. Thompson [continuing]. Best thing to do.
Senator Talent. Yes, we want----
Mr. Thompson. We want to get the survey----
Senator Talent. We want to get the survey correct.
Mr. Thompson. Yes.
Senator Talent. And I think we have to do that before we
resolve these claims.
But the point I am making, Mr. Chairman, is that if we wait
to do anything for these people who have--against whom the
Federal Government is claiming something, until all of the
private disputes are finished, we are going to have to wait for
the whole State law process to work itself out, because this is
a case where the State courts are going to have to determine
what the impact of this improper Federal survey is on State
law, you know, because that is a Missouri question, unless we
want to try in this legislation to take that from them which
Senator Bond and I certainly do not want to do.
So I guess what I am saying is: Let us resolve the piece of
it we can resolve. I think it is without prejudice to the good
policy that we do not transfer Federal property without
payment, because they have paid. And I appreciate the chance to
ask some questions, Mr. Chairman.
Senator Craig. Sure.
Senator Talent. And I do appreciate that you all have been
working with Senator Bond's office in particular. And I know
that you are just trying to stand up for the interests of the
people in this land. I think we can resolve it, and I think the
bill really does.
Thank you, Mr. Chairman.
Senator Craig. Senator Talent, thank you very much.
Jim, let me come back to you for a final question on S.
1209, the Washington County, Utah land acquisition. In your
testimony, you mentioned that the BLM had already coordinated
the acquisition of some 4,400 acres of land within the Red
Cliffs Desert tortoise reserve. How important is the 1,550
acres currently held by ELT to the effectiveness of the
reserve?
Mr. Hughes. I am not a biologist, from that standpoint, but
according to what I have seen in terms of the map, et cetera,
there is a highway very close to this property. And I think
from that standpoint, it would represent sort of a corridor to
the highway. So I think it is an important portion for both
keeping people out of there and for protecting the tortoise.
And I would point out the habitat conservation plan has
been very successful up to this point. I think it has the
largest population of desert tortoise in the West right now in
a confined area. So it seems to be, at least in that location,
working.
Senator Craig. Well, a highway----
Mr. Hughes. Right.
[Laughter.]
Senator Craig. A highway would be pretty critical to a
tortoise.
Mr. Hughes. Right, right. That is what I thought, too.
[Laughter.]
Senator Craig. Cars tend to move a lot faster than
tortoises do.
Mr. Hughes. Right. That is what I thought.
[Laughter.]
Senator Craig. All right. In your testimony, it is clear
that BLM is eager to find a way to complete acquisition of this
critical tortoise habitat. How would this legislation need to
be changed to accommodate BLM's major concerns?
Mr. Hughes. I think there are probably several things. I
think, first of all, the method of payment that is proscribed
in here, the legal taking that is authorized. I think there are
serious questions about those that we would have to work out
with the Justice Department. The question really is: How do we
compensate? I think the Department feels strongly that we have
an obligation to acquire this property, you know, because that
is what we agreed to when the Department in 1996 entered into
this habitat conservation plan.
Senator Craig. Yes.
Mr. Hughes. So it will take, I think, some degree of staff
work at the administration level and then working with staff up
here to resolve it.
Senator Craig. Well, we will work with you to resolve that
issue before this legislation moves, and hope we can do that.
Gentlemen, thank you very much for your time and your
involvement with these issues and this legislation.
Mr. Hughes. Thank you.
Mr. Thompson. Thank you.
Senator Craig. I will now turn to my colleague from
Colorado, Senator Ben Nighthorse Campbell, to introduce our
guest and witness from his State.
Ben.
Senator Campbell. Yes. Mr. Chairman, I think we only have
two witnesses. There are, in fact, none for the other bills
other than S. 1467.
Senator Craig. That is right.
Senator Campbell. I would like to introduce Mrs. Charlotte
Bobicki who is the Alamosa County Commissioner, and Ms. Kate
Booth Doyle, San Luis Valley Ecosystem Council, both towns in
the Big Valley.
If you ladies would, just go ahead in the order I
introduced you. Welcome to Washington.
Ms. Bobicki. Thank you.
Senator Craig. Thank you, Ben.
Please proceed.
STATEMENT OF CHARLOTTE BOBICKI,
COUNTY COMMISSIONER, ALAMOSA COUNTY, CO
Ms. Bobicki. Thank you, Mr. Chairman and members of the
committee. I am Charlotte Bobicki, a county commissioner from
Alamosa County, Colorado. Alamosa County is located in the San
Luis Valley, a high mountain valley in south central Colorado
which is drained by the Rio Grande.
The Rio Grande and its tributaries rise in the San Juan
Mountains and are fed almost exclusively by snow melt. From the
mountains, the Rio Grande flows into the San Luis Valley,
across the Valley floor, and then south into New Mexico. The
San Luis Valley has an average elevation of more than 7,000
feet above sea level and is about 100 miles north to south and
75 miles east to west. Portions of the Valley floor receive an
average of only 7 inches of precipitation per year, while the
surrounding mountains receive precipitation principally in the
form of snow that averages more than 30 inches of moisture
annually.
More than 70 percent of the annual flow of the Rio Grande
and its tributary streams occurs in a 3- to 4-month period,
from early May to the end of July. There is a map at the back
of our testimony that shows the precipitation distribution in
our area.
There are approximately 600,000 acres of irrigated farmland
in the San Luis Valley which depend upon the waters of the Rio
Grande and its tributaries for irrigation supplies. The great
majority of the irrigation systems were privately constructed
more than 100 years ago and remain privately operated today.
The San Luis Valley grows some of the finest potatoes in the
United States as well as small grains, alfalfa and grass hay,
and vegetables such as lettuce and carrots.
Along the Rio Grande, near the city of Alamosa in the
center of the Valley is the Alamosa National Wildlife Refuge.
There is another map at the back of our testimony which shows
the location of the San Luis Valley in Colorado, as well as a
smaller scale map showing the location of the proposed
Outstanding Natural Area. And I need to mention that there is a
correction on two of the maps in the back showing this
location.
The water of the Rio Grande and its tributaries is the
subject of an Interstate Compact between the States of
Colorado, New Mexico and Texas that was signed in 1938. The
Compact apportions the waters of the Rio Grande using an
inflow/outflow technique under which the native flows of the
River that are coming out of the mountains are measured, and
Colorado's obligation to make deliveries to New Mexico are
calculated as a percentage of that inflow.
Every year, there are deliveries to New Mexico as required
by the Compact, although the quantities vary significantly from
years of severe drought to years with extremely high water
conditions. As the result of the Compact-required deliveries,
there is always water flowing in the Rio Grande south of
Alamosa.
In the southern part of the San Luis Valley, the Rio Grande
flows across the broad, relatively treeless valley floor, where
the vegetation consists primarily of sage and other sparse,
drought-resistant plants. Only along the River are there
significant amounts of willow and cottonwood. More than half of
the land bordering the River is in private ownership, with the
rest being controlled by the Bureau of Land Management.
In many places, the riparian zone along the River is
degraded because of past land use practices, on both private
property and BLM lands. For a number of years, Federal, State
and local officials have looked for a way to restore and
protect the riparian zone of the River without creating a
management structure that would conflict with the long-standing
water uses upstream in the San Luis Valley. Our agricultural
economy is more than a century old and it is very important to
maintain our ability to continue to use water for the benefit
of our residents and those who use our agricultural products.
We believe a Federal designation of an Outstanding Natural
Area along the Rio Grande as proposed by Senator Campbell, will
permit the cooperative restoration and protection of the River
corridor by both the private and public landowners. The
Outstanding Natural Area Legislation before you today provides
for the creation of a commission made up of Federal, State and
local stakeholders whose charge is to develop a management plan
for submission to the Secretary of the Interior that
establishes the procedures that will be used to restore and
protect the Area. Participation by private landowners in the
plan is encouraged, but it is entirely voluntary.
Because of the Compact delivery requirements, this bill
would recognize that no implied or Federal reserved water
rights would be required for the Area, thereby eliminating
potential conflicts between the Federal land management agency
and the upstream private water right holders.
The Board of County Commissioners of all of the counties in
the San Luis Valley have voted unanimously to support the
Outstanding Natural Area legislation. We believe the ability to
create cooperative, win-win solutions such as this are few and
far between, but in this instance there is a willingness on the
part of local government, State government, citizen groups,
affected landowners as well as local Federal agency
representatives to work together for the benefit of the Valley
and its environment. We are in agreement that the Outstanding
Natural Area proposed by this bill is in all of our interests.
All we need now is your support.
On behalf of the county commissioners of the counties of
the San Luis Valley, Costilla, Conejos, Alamosa, Rio Grande,
Sagauche and Mineral, we ask that you favorably consider
Senator Campbell's S. 1467 and give us the opportunity to
restore and protect the riparian zone of the Rio Grande in a
way that does not create conflicts between the interests of
Federal agencies and the interests of the citizens of our
community.
Thank you very much for the opportunity to appear before
you today.
Senator Craig. Madam Commissioner, thank you very much for
that testimony.
[The prepared statement of Ms. Bobicki follows:]
Prepared Statement of Charlotte Bobicki, County Commissioner,
Alamosa County, CO
Mr. Chairman and members of the Committee. I am Charlotte Bobicki,
a County Commissioner from Alamosa County, Colorado. Alamosa County is
located in the San Luis Valley, a high mountain valley in south central
Colorado which is drained by the Rio Grande. The Rio Grande and its
tributaries rise in the San Juan Mountains and are fed almost
exclusively by snowmelt. From the mountains the Rio Grande flows into
the San Luis Valley, across the Valley floor, and then south into New
Mexico. The San Luis Valley has an average elevation of more than 7,000
feet above sea level and is about 100 miles north to south and 75 miles
east to west. Portions of the Valley floor receive an average of only
seven inches of precipitation per year, while the surrounding mountains
receive precipitation principally in the form of snow that averages
more than 30 inches of moisture annually. More than 70% of the annual
flow of the Rio Grande and its tributary streams occurs in a three or
four month period, from early May to the end of July. There is a map at
the back of our testimony that shows the precipitation distribution in
our area.*
---------------------------------------------------------------------------
* The accompanying maps have been retained in subcommittee files.
---------------------------------------------------------------------------
There are approximately 600,000 acres of irrigated farmland in the
San Luis Valley which depend upon the waters of the Rio Grande and its
tributaries for irrigation supplies. The great majority of the
irrigation systems were privately constructed more than 100 years ago
and remain privately operated today. The San Luis Valley grows some of
the finest potatoes in the United States as well as small grains,
alfalfa and grass hay, and vegetables, such as lettuce and carrots.
Along the Rio Grande, near the city of Alamosa in the center of the
Valley is the Alamosa National Wildlife Refuge. There is another map at
the back of our testimony which shows the location of the San Luis
Valley in Colorado as well as a smaller scale map showing the location
of the proposed Outstanding Natural Area.
The water of the Rio Grande and its tributaries is the subject of
an Interstate Compact between the states of Colorado, New Mexico and
Texas that was signed in 1938. The Compact apportions the waters of the
Rio Grande using an inflow/outflow technique under which the native
flows of the rivers coming out of the mountains are measured and
Colorado's obligation to make deliveries to New Mexico are calculated
as a percentage of that inflow. Every year, there are deliveries to New
Mexico as required by the Compact, although the quantities vary
significantly from years of severe drought to years with extremely high
water conditions. As the result of Compact required deliveries, there
is always water flowing in the Rio Grande south of Alamosa.
In the southern part of the San Luis Valley, the Rio Grande flows
across the broad, relatively treeless valley floor, where the
vegetation consists primarily of sage and other sparse, drought
resistant plants. Only along the River are there significant amounts of
willow and cottonwood. More than half of the land bordering the River
is in private ownership, with the rest being controlled by the Bureau
of Land Management. In many places, the riparian zone along the River
is degraded because of past land use practices, on both private
property and BLM lands.
For a number of years, federal, state and local officials have
looked for a way to restore and protect the riparian zone of the River
without creating a management structure that would conflict with the
long-standing water uses upstream in the San Luis Valley. Our
agricultural economy is more than a century old and it is very
important to maintain our ability to continue to use water for the
benefit of our residents and those who use our agricultural products.
We believe a federal designation of an Outstanding Natural Area
along the Rio Grande as proposed by Senator Campbell, will permit the
cooperative restoration and protection of the River corridor by both
the private and public landowners. The Outstanding Natural Area
Legislation before you today provides for the creation of a Commission
made up of federal, state and local stakeholders whose charge is to
develop a management plan for submission to the Secretary of the
Interior that establishes the procedures that will be used to restore
and protect the Area. Participation by private landowners in the plan
is encouraged, but it is entirely voluntary.
Because of the Compact delivery requirements, this bill would
recognize that no implied or Federal reserved water rights would be
required for the Area, thereby eliminating potential conflicts between
the federal land management agency and the upstream private water right
holders. The Board of County Commissioners of all of the counties in
the San Luis Valley have voted unanimously to support the Outstanding
Natural Area legislation. We believe the ability to create cooperative,
win-win solutions such as this are few and far between, but in this
instance there is a willingness on the part of local government, state
government, citizen groups, affected landowners as well as local
federal agency representatives to work together for the benefit of the
Valley and its environment. We are in agreement that the Outstanding
Natural Area proposed by this bill is in all of our interests. All we
need now is your support.
On behalf of the County Commissioners of the counties in the San
Luis Valley: Costilla, Conejos, Alamosa, Rio Grande, Sagauche and
Mineral, we ask that you favorably consider Senator Campbell's S. 1467
and give us the opportunity to restore and protect the riparian zone of
the Rio Grande in a way that does not create conflicts between the
interests of federal agencies and the interests of the citizens of our
community. Thank you very much for the opportunity to appear before you
today.
Senator Craig. Before we ask questions of you, let me turn
to Ms. Kate Booth Doyle of the San Luis Valley Ecosystem
Council. Please proceed.
Ms. Booth Doyle. Thank you.
STATEMENT OF KATE BOOTH DOYLE, SAN LUIS VALLEY ECOSYSTEM
COUNCIL, COLORADO
Ms. Booth Doyle. Thank you for the opportunity to speak.
And thank you, Senator Campbell, for introducing the bill. I
appreciate that.
Mr. Chairman and members of the committee, my name is Kate
Booth Doyle. I am a member of the San Luis Valley Ecosystem
Council, and have been actively involved in the development of
the Outstanding Natural Area Legislation for many years. I am
also a landowner along the Rio Grande in the area to be
encompassed by the Outstanding Natural Area.
I wish to first explain that the San Luis Valley Ecosystem
Council is an umbrella group of citizens concerned about the
environment and is active in other nationally recognized groups
such as the Sierra Club, the Wilderness Society, the National
Wildlife Federation, Ducks Unlimited and Trout Unlimited. We
work together under the banner of the Ecosystem Council on
issues of specific concern to our beloved San Luis Valley.
All of the citizens of the Valley are very proud of their
ability to work together on issues of common concern. Although
you may find it surprising, the members of the environmental
community, the members of agricultural community, the business
men and women and the residents of the cities and towns and
their elected officials have been able to work out cooperative
win-win solutions to many problems they have faced over the
years.
We consider the Federal land managers from the Bureau of
Land Management, the Forest Service and the Fish and Wildlife
Service to be our allies and friends, not our enemies, and we
have attempted to establish a model where compromise among all
of the interest groups is always the goal.
Senator Campbell's Rio Grande Outstanding Natural Area
Legislation before you today is just such an effort. It is the
result of a significant amount of consultation and cooperation.
It is supported not simply by the environmental community in
the San Luis Valley, but also by the irrigation districts, the
mutual ditch companies, the conservancy and conservation
districts, the Cattlemen's Association, and many landowners
along the affected reach of the River. In addition, we have
enjoyed the cooperation of local Federal officials, both from
the Bureau of Land Management and the Fish and Wildlife
Service. We all hope you will give us your support in this very
positive and proactive effort.
There is another reason that S. 1467 is an important
initiative. After discussions had started about the
opportunities to create an Outstanding Natural Area to better
manage the River's riparian zone, we were informed that an
endangered species, the Southwest Willow Flycatcher was
believed to exist in the San Luis Valley. As a result, we
promptly began the process of developing a habitat conservation
plan to protect that species and the Outstanding Natural Area
will be an important part of that Plan by giving us another
reason to work together to restore the willow stands along the
riparian fringe of the River. These willows are the primary
habitat of the Southwest Willow Flycatcher.
Our local community wishes to continue its successful
practice of working together to take a proactive approach in
solving environmental problems. In this case, the identified
problem is the need to protect and restore the riparian zone of
the Rio Grande between the Alamosa National Wildlife Refuge and
the State line.
The Outstanding Natural Area approach will provide
significant private landowner input into the development of the
management plan and will allow the Federal land and private
land to be managed cooperatively.
I want to emphasize that there is nothing in the
legislation that can compel an unwilling landowner to
participate. However, we believe that there will be
overwhelming interest in participating in the plan as
landowners begin to strive to meet their responsibilities to be
good stewards.
I should be clear that there are some who would prefer to
see the Rio Grande designated as a Wild and Scenic River.
However, the environmental community in the Valley recognizes
that to do so would create the potential of a Federal reserve
water right with all of the inherent conflicts and
controversies with private water users. We do support the
acquisition of a minimum stream flow by the State of Colorado
under Colorado law, as the legislation recognizes.
The beauty of this legislation is that it provides an
opportunity to improve and restore the River, while at the same
time avoiding those very conflicts over water rights between
private water users and Federal agencies. As Charlotte
explained, the Rio Grande Compact mandates that water be
delivered through this area every year.
We request that you give favorable consideration to S.
1467, and I thank you most sincerely for the opportunity to
appear before you today.
[The prepared Statement of Ms. Booth Doyle follows:]
Prepared Statement of Kate Booth Doyle, San Luis Valley
Ecosystem Council, Colorado
Mr. Chairman and members of the Committee, my name is Kate
Booth Doyle. I am a member of the San Luis Valley Ecosystem
Council, and have been actively involved in the development of
the Outstanding Natural Area Legislation for many years. I am
also a landowner along the Rio Grande in the area to be
encompassed by the Outstanding Natural Area. I wish to first
explain that the San Luis Valley Ecosystem Council is an
umbrella group of citizens concerned about the environment and
is active in other nationally recognized groups such as the
Sierra Club, the Wilderness Society, the National Wildlife
Federation, Ducks Unlimited and Trout Unlimited. We work
together under the banner of the Ecosystem Council on issues of
specific concern to our beloved San Luis Valley.
All of the citizens of the Valley are very proud of their
ability to work together on issues of common concern. Although
you may find it surprising, the members of the environmental
community, the members of agricultural community, the business
men and women and the residents of the cities and towns and
their elected officials have been able to work out cooperative
win-win solutions to many problems they have faced over the
years. We consider the federal land managers from the Bureau of
Land Management, the Forest Service and the Fish and Wildlife
Service to be our allies and friends, not our enemies, and we
have attempted to establish a model where compromise among all
of the interest groups is always the goal.
Senator Campbell's Rio Grande Outstanding Natural Area
Legislation before you today is just such an effort. It is the
result of a significant amount of consultation and cooperation.
It is supported not simply by the environmental community in
the San Luis Valley, but also by the irrigation districts, the
mutual ditch companies, the conservancy and conservation
districts, the Cattlemen's Association, and many landowners
along the affected reach of the River. In addition, we have
enjoyed the cooperation of local federal officials, both from
the Bureau of Land Management and the Fish and Wildlife
Service. We all hope you will give us your support in this very
positive and proactive effort.
There is another reason that S. 1467 is an important
initiative. After discussions had started about the
opportunities to create an Outstanding Natural Area to better
manage the river's riparian zone, we were informed that an
endangered species, the Southwest Willow Flycatcher was
believed to exist in the San Luis Valley. As a result we
promptly began the process of developing a Habitat Conservation
Plan to protect that species and the Outstanding Natural Area
will be an important part of that Plan by giving us another
reason to work together to restore the willow stands along the
riparian fringe of the River. These willows are the primary
habitat of the Southwest Willow Flycatcher.
Our local community wishes to continue its successful
practice of working together to take a proactive approach in
solving environmental problems. In this case, the identified
problem is the need to protect and restore the riparian zone of
the Rio Grande between the Alamosa National Wildlife Refuge and
the state line. The Outstanding Natural Area approach will
provide significant private landowner input into the
development of the management plan and will allow the federal
land and private land to be managed cooperatively.
I want to emphasize that there is nothing in the
Legislation that can compel an unwilling landowner to
participate. However, we believe that there will be
overwhelming interest in participating in the plan as
landowners begin to strive to meet their responsibilities to be
good stewards.
I should be clear that there are some who would prefer to
see the Rio Grande designated as a Wild and Scenic River
however, the environmental community in the Valley recognizes
that to do so would create the potential of a federal reserve
water right with all of the inherent conflicts and
controversies with private water users. We do support the
acquisition of a minimum stream flow by the State of Colorado
under Colorado law, as the legislation recognizes. The beauty
of this legislation is that it provides an opportunity to
improve and restore the River, while at the same time avoiding
those very conflicts over water rights between private water
users and federal agencies. As Charlotte explained, the Rio
Grande Compact mandates that water be delivered through this
area every year. We request that you give favorable
consideration to S. 1467 and I thank you most sincerely for the
opportunity to appear before you.
Senator Craig. Ms. Booth Doyle, thank you very much for
that testimony.
Commissioner, both you and Ms. Booth Doyle have spoken to
the broad base of support that this legislation has. Who is
opposed to it?
Ms. Bobicki. To my knowledge, I do not--there is no one
because the private landowners are voluntarily taking part in
this, and the BLM is wanting to work with this. So I think it
is something that is a win-win-win situation.
Senator Craig. And how does this encumber, or could it
encumber private land ownership?
Ms. Bobicki. It is strictly voluntary, so there should be
no takings, and there should be no conflict at all with the
private landowners because it is voluntary.
Senator Craig. Section 10(d) prohibits permitting or
approving any new impoundments within the designated area.
Would this include stock ponds for grazing allotments or such
management tools as might be needed for grazing?
Ms. Booth Doyle. Yes, sir. There has been some discussion
regarding the management plan that would allow for the cattle
to be able to get to water with--I forget what the call the
little watering avenues that cattle go through. Mr. Campbell, I
am sure you know it.
Senator Campbell. A ditch.
[Laughter.]
Ms. Booth Doyle. No, sir, not a ditch. No, sir, not a
ditch.
[Laughter.]
Ms. Booth Doyle. But basically allowing access where
possible for cattle grazing. And at the present time, there is
no cattle grazing on the private portion of the land involved.
And BLM has a very minimal grazing on the BLM section because
they are in the process of some restoration within the BLM.
Senator Craig. Ms. Doyle, in your testimony you speak to an
amazing collaborative effort and a broad-based group of
stakeholders. If this is true, and in most instances where
these kinds of things meet little opposition and I have found
that to be the case, maybe we could export your approach to
other areas of the West where considerable conflict still rages
over new designations for land use or land management.
Ms. Booth Doyle. Thank you.
Senator Craig. But I congratulate both of you on that kind
of effort. I think that when we do reach out to all groups
involved, and allow them to have an effective say in the
shaping of this kind of an approach, then we work well
together.
The only problem that you might have with Senator Campbell
and I teaming up together to do something is that we did that
in the late 1980's on an issue that is still in question.
[Laughter.]
Senator Craig. I will not mention its name. It is still in
conflict out in that great State of yours. We were able to pass
the legislation, but never to resolve the issue. It just shows
how powerful members of the Congress are. We past it, Ben
reminds me, twice into law, and yet I do not think any dirt has
been moved. Has it?
Senator Campbell. Oh, yes, they are now.
Senator Craig. Oh, they are now. Okay.
Senator Campbell. Yes.
Senator Craig. All right.
Senator Campbell. The Senator is speaking about the Animas
La Plata project over by Durango that we worked on together for
15 years.
Senator Craig. Yes.
Ms. Booth Doyle. Oh, wow.
Senator Campbell. Yes.
Senator Craig. Let me turn to my colleague for any
questions he might have.
Senator Campbell. Thank you, Mr. Chairman. I am sure you
would agree that it would be nice if most of the bills dealing
with the public lands that you have introduced or that I have
introduced could be this nice. But it certainly says something
to the local people's ability to work together, because they
really brought it to the table pretty much done.
While you were testifying, Charlotte and Kate, I was
looking at your map and I was showing the chairman your map and
pointing out to him some of the very, very famous places that
we are proud of out there, such as----
Senator Craig. We were still listening----
Senator Campbell [continuing]. Where Manassas is,
commissioner, but I was giving this moving geographic analysis.
Senator Craig. We do a few different things at the same
time.
Senator Campbell. That is right. We have to.
[Laughter.]
Senator Campbell. I showed him where Manassas was, where
the home of Jack Dempsey was. And he is certainly an
afficionado of the West as I am, and I had to show him where
Wolf Creek Pass was because he was reminiscing on the C.W.
McCall song ``Wolf Creek Pass,'' although I still cannot figure
out how C.W. McCall got that tunnel on the wrong side of the
pass if you listen to the words of that song.
[Laughter.]
Senator Campbell. And Creede, where Bat Masterson was
reportedly once the sheriff and where the killer of Jesse
James, in turn, was killed. So there are some very, very famous
places within this boundary of the Big Valley.
And I would hope that someday if you have the chance, you
could visit it.
Senator Craig. Not in the wintertime.
Senator Campbell. No, not in the winter.
[Laughter.]
Senator Craig. It tends to get a bit chilly up there.
Ms. Bobicki. It is just cool sunshine. It is not cold.
[Laughter.]
Senator Craig. Just cool, just cool, all right.
Senator Campbell. Coming from Idaho, you know what 20 below
is like.
Senator Craig. Oh, yes.
[Laughter.]
Senator Campbell. All right. Let me just ask a couple of
questions. You heard the BLM testify. What was the local
community's intent on calling it a ``commission'' rather than
something else like an advisory council, as the BLM has
recommended?
Ms. Bobicki. I think that the word ``commission'' implies
maybe a bigger commitment and stronger responsibility for their
duties. It is just the implication of the word ``commission.''
Senator Campbell. Yes. As I understand it from the BLM,
``commission'' somehow implies that they would have the
decision-making that could complicate things for the BLM. So
would that--they did say that that was not a big issue, but it
is an issue. And so how locked in are you that you call it a
``commission''? If there is some other word that is agreeable
to the BLM and you, would you be willing to deal with that?
Ms. Bobicki. Oh, yes.
Senator Campbell. Okay.
Ms. Booth Doyle. If I may say a word about that also, Mr.
Campbell, that in the past, already in this particular portion,
the corridor, the Rio Grande Advisory Council was put together
to garner support for protection of this area with the BLM and
private land owners. So I do not think that there would be an
objection----
Senator Campbell. So there already is an advisory council
that helped work on this.
Ms. Booth Doyle. Yes, sir. It is dormant right now, but
this has already been in place.
Senator Campbell. And another question they had was calling
it the ``Outstanding Natural Area,'' and you heard me ask him
about how they define different topographical areas to
designate, park, monument and so on. Would that be a major
issue, if that was called--I do not know--Rio Grande Natural
Area or something else, something-else kind of area?
Ms. Bobicki. No, sir. That is not----
Senator Campbell. Okay.
Ms. Bobicki. What it is called would not be an issue.
Senator Campbell. Okay. Well, great. Well, then we will
look forward to working with you and with the BLM, too. And
hopefully, this is a kind of a bill that we will be able to get
through without too much trouble. We are only going to be in
probably until this Saturday or Sunday, so it will not be this
year, but next year I look forward to starting up on it again
in January when we come back in.
Ms. Bobicki. Thank you.
Ms. Booth Doyle. Thank you.
Senator Campbell. Thank you, Mr. Chairman.
Senator Craig. Well, to the panelists, let me thank you for
traveling out for the purpose of testimony on this legislation.
I will work closely with your Senator to see if we cannot
resolve any conflicts that might exist and move the legislation
on.
Thank you very much.
Ms. Bobicki. Thank you for your interest.
Senator Craig. We will hold the committee record open for
how long for additional----
Staff. Ten days.
Senator Craig. Ten days for any additional information that
we would want to put in the files in relation to these pieces
of legislation.
With that, the subcommittee will stand adjourned.
[Whereupon, at 3:38 p.m., the hearing was adjourned.]
APPENDIX
Additional Material Submitted for the Record
----------
Statement of Don Ayres to Senator Christopher S. Bond (MO) regarding S.
1167, The Mark Twain National Forest Resurvey and Boundary Readjustment
Act of 2003
I am a landowner in Stone County, Missouri who, along with many
other landowners in Stone and Barry counties, has been affected by the
boundary dispute with the U.S. Forest Service and the Army Corps on
Engineers. A new survey was commissioned by the U.S. Forest Service
that had the effect of changing the historical boundary markers that
had been used for generations. In this new survey, I lost a strip of
property approximately 30 feet wide including, among other things, my
driveway, one-half of my garage and my entire 20' x 30' storage shed.
This inequity was addressed by your introduction of S. 1167 on June
2, 2003. My wife and I strongly urge Congress to pass this legislation
and give the affected landowners relief from this boundary dispute.
This dispute has adversely affected me, both personally and
professionally, in several ways, as follows:
1. Foremost is the uncertainty, aggravation, and threat of
financial loss that this presents. I am faced with having to purchase
what is, injustice, already my own improved land. I originally
purchased this property in good faith, relying on a survey that I (and
the surveyor) had every right to believe was accurate and correct. It
has taken a considerable amount of my time and attention to try and
find, and follow-up on, a way to resolve this problem in a fair and
equitable way. You and your staff have provided such a vehicle with
your proposed S. 1167.
2. I have had my property listed for sale for the last two years.
The listing has had to contain a warning to any potential buyer that
the legal ownership of the affected parcel and improvements is in
dispute. If I am lucky enough to find a buyer not put off by this
situation, I would have to repurchase this parcel from the National
Forest at current market price (again) in order to legally convey it to
a buyer. I know you agree that such a solution would be terribly
unfair.
3. As a former active Realtor, I was in the position of having to
place such a cautionary contingency in every listing for sale of
property with a similar problem--and there were many. It is very
difficult to sell a piece of property when the potential buyer is
looking at a dispute with a large Federal agency (USFS). In at least
one instance I know of, a listing was withdrawn because of the
uncertainty of the dispute.
4. Finally, this is simply an inherently unfair situation that
deserves Congressional intervention.
I would like to express my appreciation for your, and Congressman
Blunt's efforts in introducing legislation to remedy this unfair
situation.
______
Statement of James Doyle, General Partner, Environmental
Land Technology, Ltd.
Mr. Chairman and members of the Subcommittee, I appreciate this
opportunity to appear before you today to testify on behalf of S. 1209,
a bill to provide for the acquisition of property in Washington County,
Utah, for implementation of a desert tortoise habitat conservation
plan. As a resident of Idaho, I would like to extend my appreciation
for the leadership of Chairman Craig and for the support and hard work
of his capable staff. I would also like to thank Senator Bennett and
his staff for their support of S. 1209, as well as Senators Hatch, Kyl,
and other members of the Subcommittee. I am also grateful for the work
of Chairman Domenici and his staff and for the cooperation of Senator
Bingaman and others.
My name is James Doyle. I am a resident of Sun Valley, Idaho.
Through my family's limited partnership known as Environmental Land
Technology, Ltd. (ELT), a Utah limited partnership, I own the largest
parcel of private property located within the Red Cliffs Reserve, which
is part of the Washington County Habitat Conservation Plan, established
to preserve critical habitat for the desert tortoise in southern Utah.
It is in connection with my property in Utah that I appear before you
today.
Simply stated, S. 1209 is what is commonly referred to as a
legislative taking or legislative condemnation bill. This legislation
is a measure of last resort. It is a measure appropriately reserved for
enactment in only the most extreme cases. I believe, for reasons which
I would like to discuss with you today, that this is such a case.
S. 1209 provides a fair resolution to what has been a costly and
protracted process which, absent this legislation, will not be resolved
by itself. It is a resolution to a process that the government
originally estimated would take no more than one year to complete. That
one year has now stretched to fourteen. This protracted process has
cost me my business. To cover costs of holding the property and getting
the government to meet its obligations, I have had to sell my business
assets, including my airplane and my office building in St. George,
Utah. I have also had to sell my home in St. George and my family home
in Idaho. Ironically, the Department of the Interior has from the
outset characterized the acquisition of my land in Utah as a high
priority acquisition, but the Department has yet to include the
necessary funding to complete the acquisition in any of its budget
requests. Now, creditors have started foreclosure on my land. I have a
signed forbearance agreement which suspends the foreclosure activities
pending the successful completion of this legislation. It is for these
reasons that the passage of this legislation is urgently needed.
Upon enactment, S. 1209 will immediately vest all of my rights in
my Washington County property in the United States government.
Thereafter, the Department of the Interior and I will have 90 days to
reach a negotiated agreement on fair compensation for this land. If we
are unable to reach an agreement, the Secretary of the Interior is
required to initiate a proceeding in the Federal District Court for the
District of Utah for a judicial determination of just compensation.
Whether or not the compensation is determined through negotiations
or by the Federal Court, this bill provides a choice of payments in
cash, credits in a surplus property account that can be used to bid on
surplus U.S. property, or through intra and interstate land exchanges
as originally contemplated in the HCP agreement. These provisions, for
which there is congressional precedence, are included to afford greater
payment flexibility than a cash outlay only. S. 1209 also provides an
up-front payment in the amount of $15 million which will enable me to
forestall forfeiture of any more of my property to creditors. This
amount is well below all of the valuation estimates of my property and
will be credited against final payment.
This legislation does not address the value of the land. It is not
a legislative end run around the government's appraisal process. On the
contrary, this legislation allows for the determination of fair market
value according to the standards set forth in the Uniform Appraisal
Standards for Federal Land Acquisitions prepared by the Department of
Justice and the Uniform Standards of Professional Appraisal Practice
(USPAP). Absent a negotiated settlement, the courts will decide the
value of the land through this appraisal process and this legislation
does not, in any way, legislate a value to the land.
I believe it is important to draw a distinction between the
determination of economic value for property within a habitat
conservation area and the biological value of that property. In other
words, the question about whether the government should pay a certain
price to preserve a critical habitat is very different from the
determination of fair market value of that property. Fair market value,
highest and best use, is determined pursuant to established law,
including section 309(f) of the Omnibus Parks and Public Lands
Management Act of 1996 (Public Law 104-333), and generally accepted
appraisal standards. On the other hand, the value of property as
critical habitat is far more illusive and rooted more in public policy
than appraisal standards.
In recent years, there has been considerable controversy
surrounding certain land purchases by the Department of the Interior.
Critics have argued that the government has paid too much for the land
it has acquired. Admittedly, appraising land is not a fine science.
There are, however, safeguards which protect the public. One such
safeguard is included in this legislation which provides for a judicial
determination of value if an agreement cannot be reached with the
Department of the Interior.
Since 1990, when the desert tortoise was first listed as endangered
and the time when the land that now lies within the Red Cliffs Reserve
was identified as critical habitat, every attempt to resolve this
matter has been unsuccessful. I have exhausted both my personal and
company resources trying to obtain fair compensation for my property. I
have run out of money and can no longer hold this land. After reviewing
alternatives with officials in the Department of the Interior and with
members of the Utah delegation, and taking into account pending
foreclosure action, we have concluded that this legislation is the only
viable option.
It is important to mention that legislation similar to S. 1209 has
twice passed the House of Representatives in the 106th and 107th
Congresses. I am grateful for the cooperation and support of members in
both the House and the Senate.
I would like to briefly summarize the events and circumstances
which have led me to this position. Time will not permit a detailed
review, but I would be pleased to provide whatever additional
background information you may desire.
I am by profession a land developer. I have developed lands
throughout the United States and in several foreign countries. In 1981,
I began to focus on potential development property north of the City of
St. George, Utah, as part of a logical growth pattern for the City.
This property is one of the last remaining prime developable properties
in the Southwest. The State of Utah owned the land, which it had
acquired as part of its in lieu selection and which was administered by
the State and Institutional Trust Lands Administration on behalf of the
State school system. Over the next few years, 2,440 acres of this land
was approved for a predevelopment lease, and in 1985, my business
acquired the lease for this property. Thereafter, I worked closely with
the Washington County Commission, as well as the cities of St. George
and Washington, in preparation for the development of what was intended
to be the largest single real estate project ever developed in that
part of the State. We regularly met with the government officials,
financial backers, and engineering firms and prepared initial
engineering studies, proposals for transportation quarters, multiple
golf course layouts, bubble diagrams for the various development units,
and a major transportation artery that would traverse the development
property. All of these efforts are fully documented and can be easily
verified by public records.
My company performed considerable onsite work in surveying and
staking the roadways, golf courses, and developments. Utility layouts
for water, sewer, and power were established. Extensive rights of way
were negotiated and agreements were reached with the City of St. George
in anticipation of annexation by the City of various parts of the
project and the location of a debris basin and water storage tanks on
the property. From 1985 through 1989, I also spent considerable time
and money in converting the development lease into a fee title and
obtaining additional water rights for the property. I also applied for
an additional 9,560 acres of State lands which was being considered as
part of the master plan development project. By the end of 1989, I had
lined up financial partners and was anticipating a ground breaking for
the initial phase of the project in the summer of 1990.
Then, in March 1990, the U.S. Fish and Wildlife Service listed the
desert tortoise as an endangered species. Initially, neither I nor the
local city and county officials understood the impact of this decision.
We were informed that the land could not be developed until such time
as the Fish and Wildlife Service completed a considerable biological
assessment and field work necessary to determine the critical habitat
for the tortoise. In effect, a large portion of the County was placed
off limits to development until the government could determine which
parts of the land were needed to protect the tortoise.
Although all on-site work had ceased with the listing of the desert
tortoise, and because no one was certain which lands would be needed,
over the next few years we continued forward with our planning and work
under the assumption that at some point we would be allowed to proceed
with our development subject to some reasonable restrictions for
protecting the tortoise. By 1994, it became apparent that the Federal
government intended to designate a 60,000-acre tract of land
immediately north of St. George, including our 2,440 acres, as the
desert tortoise preserve. In 1996, the Habitat Conservation Plan went
into effect, the Bureau of Land Management created the Red Cliff
Reserve, and a fence was placed around my land, further enforcing the
on-site work prohibition that went into effect in 1990. The HCP also
destroyed the option agreement I had signed for the additional 9,560
acres.
As soon as it was clear that the Federal government intended to
prohibit the development of my land, officials with the Department of
the Interior assured me that a quick equitable solution could be
reached. They represented that the process of acquiring my land would
take no longer than a year. The time to complete the acquisition was
very important because conventional financing needed to hold the
property was not available. Even with a high loan-to-value ratio,
bankers were unwilling to lend money against the land without a clear
payoff schedule, due to the fact there was no consistency or certainty
in payment of funds from the Federal government upon which banks could
rely. Today, virtually all of my net worth is tied to this land. I have
no other income-producing property, investments, or businesses. To
simply sustain this effort to get the government to discharge its
obligation to me, I have had to borrow substantial amounts of money,
sometimes at interest rates as high as 100 percent. Representations
were made that Federal money would be available to help defer the
acquisition costs. Unfortunately, those representations never
materialized and I have since run into one dead end after another,
turning to Congress after having pursued and exhausted all of the other
known methods by which to receive compensation for my land save
litigation against the federal government and Washington County.
The other private land owners within the HCP boundaries and I
originally proposed that Section 10 permits be issued to allow us to
develop our land consistent with a plan to protect the tortoise
habitat. The HCP Steering Committee concurred and voted favorably on
that recommendation. However, the Federal government did not approve
this approach and determined all of the land within the HCP would be
off limits to development. BLM proposed instead an interstate land
exchange involving an exchange of all the private lands within the
Reserve for lands of comparable value in southern Nevada. Although we
pursued this effort for more than two years, it ultimately failed for
various reasons unrelated to the private land owners in Utah.
Within the boundaries of the 60,000 acres of the Reserve, there
were approximately 21 private and non-federal government land owners.
The use of this large tract of land varied from grazing to development.
My property was identified by the Department as biologically
significant for the gene pool exchange among different populations of
the tortoise, and as such was originally slated as a high priority
acquisition among the land holdings within the HCP. Despite this
priority designation, the Department of the Interior nevertheless
proceeded to acquire, by purchase or exchange, the lands of all the
other private land owners. I was told that the rationale behind this
acquisition sequence was the government's desire to first acquire the
smaller holdings. Ironically, many of these smaller holdings were held
by interests with far greater staying power than I. The Department of
the Interior has spent nearly $50 million in direct purchases, cash
equalization payments, and costs. To date, the government has acquired
approximately one third of my land.
After the Nevada exchange fell through, I was encouraged by BLM to
enter into an Assembled Land Exchange Agreement with BLM whereby we
would choose comparable lands within the State of Utah to be exchanged
for my lands. I signed the Agreement and spent nearly a year looking
for comparable lands within the State. By late 1997 and early 1998, it
appeared we were moving toward possible exchanges.
In 1998, however, I had reached a point where I could no longer
hold the land without receiving some compensation to pay off creditors.
Under protest, I agreed to a series of sales in which approximately
$5.3 million was paid by the BLM in exchange for 349 acres of my land.
This was done based on a flawed appraisal promoting a clear downward
bias as to value, which had been provided by appraisers recommended by
BLM. My creditors were demanding payment, and the government knew it.
At closing, the Federal officials, knowing of my financial situation,
reduced the amount on which we had previously agreed. Reluctantly, I
agreed to a closing where over $10 million worth of my real estate was
sold to the Federal government for less than half of its value. Of the
proceeds that I received, I had to pay 30% off the top to the State of
Utah, based on my original purchase agreement for the acquisition of
the state trust lands. Most of the rest went to creditors who had lent
me money to cover development and holding costs.
On another occasion, the BLM identified a 505-acre parcel near
Leeds, Utah for an exchange. I borrowed a substantial amount of money
and proceeded to resolve several closing issues, which included
clearing the property with the Washington County Water Conservancy
District, engineering evaluations of the property, purchasing water
rights, and other related work. Then, after ten months of effort, and
shortly before the planned closing date, I received a letter from BLM
which indicated that for archeological reasons the 505 acres was being
withdrawn from consideration.
Discouraged and heavily in debt, I began to look for comparable
lands outside of Washington County for possible intrastate land
exchanges. In 1996, President Clinton created the Grand Staircase
National Monument. Though it was not anticipated at the time of its
creation, by 1998, the Monument had a significant adverse impact on my
ability to complete an intrastate exchange. Because lands within the
designated area of the Grand Staircase included both Federal and non-
federal land, the Department of the Interior and the State of Utah
commenced a massive exchange to consolidate Federal holdings within the
Monument.
In September 1998, the then-Acting Director of the Utah office of
BLM concluded that because of the large Federal/State exchange for the
Monument, there were no longer sufficient comparable lands within the
State of Utah to complete an intrastate exchange for my lands within
the HCP. At this time, the Acting Director recommended a direct
purchase by the Department of the Interior of my land as the most
feasible approach to acquisition. Without the possibility of an
intrastate exchange, my only remaining options were a direct Federal
purchase, congressionally approved interstate land exchanges or
legislative condemnation.
Since 1998, I have unsuccessfully pursued both interstate land
exchanges and a small intrastate exchange. I have traveled to various
sites around the country from California to Florida looking for
interstate exchange sites that might meet with Congressional approval.
I have met with literally dozens of BLM, Forest Service. county, and
municipal officials in the States of Idaho, Utah, Nevada, New Mexico,
and Arizona.
Because of the difficulties inherent in an interstate land
exchange, officials at the Department of the Interior continued to
encourage a direct purchase. Based on preliminary value estimates, BLM
requested $30 million in the FY2000 budget cycle for the purchase of
land within the Washington County HCP. In discussions with Department
officials, I understood that most or all this money was to be made
available to acquire a significant portion of my lands.
The FY2000 monies were initiated by and included in the BLM land
acquisition account and, along with the entire BLM budget request, were
forwarded to the Office of Management and Budget for approval. Even
though the land within the Red Cliffs Reserve is acquired and owned by
BLM, and BLM officials had been involved with all the prior
acquisitions within the Reserve, OMB arbitrarily redirected BLM's
request to the land acquisition account of the Fish and Wildlife
Service Cooperative Endangered Species Conservation Fund. Presumably
OMB transferred the funds to the Fish and Wildlife Service account
because it involved the purchase of lands within an existing HCP. Not
surprisingly, the Fish and Wildlife Service felt no compelling interest
to purchase property for BLM. This bifurcation of responsibility within
the Department effectively left me in a bureaucratic ``no-man's-land.''
I received none of the money originally requested by BLM for the
partial acquisition of my land.
My efforts and the efforts of others to resolve this situation have
been totally unavailing. The government has repeatedly acknowledged its
obligation to acquire my land, and has characterized the acquisition of
my land as a high priority. However, the Department has failed to
request sufficient monies for this acquisition in any budget request.
I have reluctantly concluded that, although this property has been
designated as a high priority acquisition, it is clear there is no real
incentive for the Department of the Interior to timely complete this
transaction. The Federal government has effectively ``owned'' my land
for the last fourteen years. The land is fenced off and I have no
access to it. Without having to actually purchase it, the Department of
the Interior enjoys all of the benefits of ownership. Still, I have had
to bear all of the holding costs, including payment of taxes and the
considerable cost of getting the government to discharge its
obligation.
There have been promises upon unfulfilled promises from the
Department of the Interior that a solution was just yet around the next
corner. But just as I reach that illusive corner, I discover it leads
to yet another dead end.
S. 1209 is now the only feasible solution to this problem. I have
already forfeited a portion of my interest in the property and I cannot
afford to sustain this costly effort any longer. I respectfully urge
the Committee to support S. 1209. I appreciate this opportunity to
appear before you, and I am ready to answer any questions or provide
any information that you require for your consideration of this bill.
______
Statement of the Washington County Commission,
Washington County, Utah
The Washington County Commission wishes to thank the Subcommittee
for holding this hearing on S. 1209, a bill to provide for the
acquisition of property in Washington County, Utah, for implementation
of a desert tortoise habitat conservation plan, introduced by Senator
Bennett and cosponsored by Senator Hatch, that will finally acquire
critical private lands within the Red Cliffs Reserve. We offer our
unconditional support for S. 1209 and urge the Committee to pass this
legislation to insure that our efforts to create the Red Cliffs Reserve
in Washington County are fulfilled. We have also attached a copy of a
letter from the Washington County Commission to Secretary Norton and to
the members of the Utah delegation, dated June 23, 2003, and
respectfully request that it be included as part of our testimony.
The Washington County Commission has favorably dealt with the issue
of endangered species in Washington County, and in particular, the
desert tortoise, by working with the Federal Government and the Utah
State Institutional Trust Lands Administration for many years, and has
established a Habitat Conservation Plan that we have been told by many
was a model for others to follow. Notwithstanding all of the good
things that have happened with the plan, one thing that we continue to
be sorely disappointed with is the failure to timely accomplish one of
the major objectives of the Habitat Conservation Plan, which is
acquisition of the land located in the Plan. The HCP agreement, which
was signed by the County, the Bureau of Land Management, and the Fish
and Wildlife Service, calls for the acquisition of all private lands
within the Reserve. This legislation completes the acquisition of the
last remaining private property which, as a result of federal action,
has been left undevelopable for 14 years.
For many years there have been attempts made to acquire a very key
property in the heart of the HCP owned by Environmental Land
Technology, Ltd., Rocky Mountain Ventures, and James Doyle. Smaller
portions of this property have been acquired; however, the main portion
of the property (which is also the heart of the main area of the
preserve) has not.
When we contracted to spend literally millions of local tax dollars
on this Plan, together with effectively retiring over 60,000 prime
acres from development, the property owners and the State School Trust
were promised they would be fairly compensated, either in the form of
land trades or cash buyouts. When this solution was first undertaken,
we knew that this process would take some time; however, we believe
that the time it has taken to finish the job has simply gone on too
long. The property referred to in Senator Bennett's bill would have
otherwise been developed as prime residential golf course development
real estate. It always has been immediately adjacent to the Green
Springs Golf Course (which is owned by the City of Washington) and
related prime development grounds.
______
Bend Metro Park & Recreation District,
Bend, OR, November 17, 2003.
Senator Ron Wyden,
Hart Senate Office Building, Washington, DC.
Senator Gordon Smith,
Russell Office Building, Washington, DC.
Congressman Greg Walden,
Longworth House Office Building, Washington DC.
Re: Senate Bill 1848, Energy and Natural Resources Committee Testimony
Gentleman: On behalf of the Board of the Bend Metro Park and
Recreation District, please enter the following testimony into the
record of the Energy and Natural Resources Committee.
The Board of Bend Metro Park and Recreation District is in support
of Senate Bill 1848, directing the Secretary of Agriculture to offer to
the Bend Metro Park and Recreation District approximately 170 acres of
land identified as Tract A, Bend Pine Nursery. We believe that
consideration in the amount of $3,505,676 is a fair price, allowing the
Park District to move expeditiously to make this property available to
the citizens of Bend.
It is my understanding that the original bill, signed in December
2001, had a very simple objective of transferring the Pine Nursery
property to the Bend Metro Park and Recreation District for use as a
public park. Up until now this process has been controlled by the U.S.
Forest Service. For whatever reason, the Forest Service did not offer
the property to the District until July 17, 2003. By that time the
value of the property had risen from a Forest Service estimate of
$3,000,000 to $5,800,000, an increase of almost 100 percent, taking the
property out of reach for the Park District. It is greatly appreciated
that the Central Oregon delegation has moved forward to resolve this
simple but very important issue.
The Bend Pine Nursery will be used as a Regional Park serving
people within the boundary of the Park District, City of Bend, and
surrounding communities. The preliminary site development plan calls
for 22 sports fields, trails, open space, disc golf, and a neighborhood
park equipped with playgrounds, skate facilities, and picnic shelters.
The park will one day be one of the finest municipal recreation
facilities in Oregon.
The Park District also understands that there is a provision in the
bill that will require a deed restriction, allowing the property to
only be used and developed for the purpose of providing recreational
opportunities. The Park District's full intent is to use the property
for recreation purposed, therefore the deed restriction is welcome.
Even though we are not involved in governing the Bend LaPine School
District, we fully support the transfer of the 15-acre elementary
school site to the school district for no consideration. The Pine
Nursery master plan, prepared by the Park District, has always
considered an elementary school to be located on this property as it
will seamlessly be integrated into the grander concept of a community
recreation and education facility.
It has been a pleasure working in a non-partisan environment to
bring together the desires of this community. Senators, on behalf of
the Board, I appreciate the efforts that both of you as well as
Congressman Walden have given toward this important community issue.
Should you need additional information from me about the intent of the
Park District to use this property, please don't hesitate to call.
Sincerely,
Don P. Horton,
Executive Director.