H. Rept. 115-1060 - PROTECTION AND TRANSPARENCY FOR ADJACENT LANDOWNERS ACT115th Congress (2017-2018)
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115th Congress } { Rept. 115-1060
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
PROTECTION AND TRANSPARENCY FOR ADJACENT LANDOWNERS ACT
_______
December 3, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 6682]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 6682) to amend the Federal Land Policy and
Management Act of 1976 to improve the transparency and
oversight of land conveyances involving disposal or acquisition
of National Forest System lands or Bureau of Land Management
public lands, to provide protections and certainty for private
landowners related to resurveying such public lands, and for
other purposes, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protection and Transparency for
Adjacent Landowners Act''.
TITLE I--REQUIREMENTS FOR FOREST SERVICE AND BUREAU OF LAND MANAGEMENT
LAND ACQUISITIONS AND CONVEYANCES
SEC. 101. ADDITIONAL REQUIREMENTS FOR FOREST SERVICE AND BUREAU OF LAND
MANAGEMENT LAND ACQUISITIONS AND CONVEYANCES.
(a) Notice to Adjacent Landowners.--
(1) Land acquisitions.--Section 205 of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1715) is amended
by adding at the end the following new subsection:
``(f) Notice to Adjacent Landowners.--As part of the acquisition of a
parcel of non-Federal lands under this section, section 206, or other
applicable law that will become public lands or National Forest System
lands, the Secretary or the Secretary of Agriculture, as the case may
be, shall provide advance written notification to each owner of land
that is adjacent to the parcel of land to be acquired. To assist in
identifying adjacent landowners, and to meet the requirements of this
subsection, the Secretary concerned should use the most recently
available property tax records.''.
(2) Land conveyances.--Section 208 of the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1718) is amended--
(A) by inserting ``(a) Issuance of Patent and Other
Conveyance Documents.--'' before the first sentence and
``(b) Other Terms and Conditions.--'' before the second
sentence; and
(B) by adding at the end the following new
subsection:
``(c) Notice to Adjacent Landowners.--As part of the conveyance of a
parcel of public lands or National Forest System lands by sale,
exchange, or other disposal method under section 203 or 206 or other
applicable law, the Secretary or the Secretary of Agriculture, as the
case may be, shall provide advance written notification to each owner
of land that is adjacent to the parcel of land to be conveyed. To
assist in identifying adjacent landowners, and to meet the requirements
of this subsection, the Secretary concerned should use the most
recently available property tax records.''.
(b) Oversight of Use of Third-Party Facilitators.--
(1) Acquisition.--Section 205 of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1715) is amended by inserting
after subsection (f), as added by subsection (a)(1), the
following new subsection:
``(g) Oversight of Use of Third-Party Facilitators.--(1) If the
acquisition process for a parcel of non-Federal lands under this
section, section 206, or other applicable law that will become public
lands or National Forest System lands involves the use of a third-party
facilitator, the Secretary or the Secretary of Agriculture, as the case
may be, shall require, as a condition of the approval of the
acquisition--
``(A) submission of all purchase contracts and related
agreements held by the third-party facilitator related to the
parcel to be acquired on written request by the appropriate
official;
``(B) supervisor review of such purchase contracts and
related agreements, the purpose of the acquisition, and other
terms and conditions of the acquisition; and
``(C) a clear statement to Bureau of Land Management and
United States Forest Service employees that the Secretary or
the Secretary of Agriculture, as the case may be, has
determined that all business information submitted under
paragraphs (A), (B), and (C) of subsection (d) is confidential
and all information covered by the Privacy Act of 1974 (5
U.S.C. 552a) will be protected to the extent allowed by law.
``(2) In this subsection, the term `third-party facilitator' means
any entity (other than an agent of the United States) whose role in a
real estate transaction is to assist the buyer or seller, or both, in
reaching agreement in the transaction.''.
(2) Land conveyances.--Section 208 of the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1718) is amended by
inserting after subsection (c), as added by subsection (a)(2),
the following new subsection:
``(d) Oversight of Use of Third-Party Facilitators.--(1) If the
process by which a parcel of public lands or National Forest System
lands will be conveyed by sale, exchange, or other disposal method
under section 203 or 206 or other applicable law, involves the use of a
third-party facilitator, the Secretary or the Secretary of Agriculture,
as the case may be, shall require, as a condition of the approval of
the conveyance--
``(A) submission of all purchase contracts and related
agreements held by the third-party facilitator related to the
Federal land to be conveyed on written request by the
appropriate official;
``(B) submission to appraisers of contact information for
prospective end owners of the Federal land to be conveyed;
``(C) supervisor review of such purchase contracts and
related agreements, the purpose of the conveyance, and other
terms and conditions of the conveyance; and
``(D) a clear statement to Bureau of Land Management and
United States Forest Service employees that the Secretary or
the Secretary of Agriculture, as the case may be, has
determined that all business information submitted under
paragraphs (A), (B), and (C) of this subsection is confidential
and all information covered by the Privacy Act of 1974 (5
U.S.C. 552a) will be protected to the extent allowed by law.
``(2) In this subsection, the term `third-party facilitator' means
any entity (other than an agent of the United States) whose role in a
real estate transaction is to assist the buyer or seller, or both, in
reaching agreement in the transaction.''.
TITLE II--BUREAU OF LAND MANAGEMENT RESURVEY REQUIREMENTS
SEC. 201. BUREAU RESURVEY TRANSPARENCY; NOTICE REQUIREMENTS.
(a) Notice.--
(1) In general.--Not later than 30 days before the
commencement of a resurvey of Federal land under the
administrative jurisdiction of the Bureau of Land Management,
the Secretary shall notify all property owners with land
abutting or adjacent to the Federal land being resurveyed of
the pending resurvey. If a resurvey extends the boundaries of
Federal land, the Secretary shall notify affected landowners of
the results of the resurvey not later than 30 days after the
completion of the survey.
(2) Notification.--The Secretary shall use certified or
registered mail to notify landowners under this subsection.
(3) Identification of landowners.--When identifying affected
landowners for the purpose of notification under this
subsection, the Secretary shall use the most recently available
property tax records.
(b) Public Comment.--Not later than 30 days after completing a
resurvey, the Secretary shall publish a notice in the Federal Register.
Affected landowners may comment to the Secretary and by submitting
formal comments to the Federal Register notice.
SEC. 202. PROTECTION OF PERSONS.
If a resurvey results in land previously thought to be privately
owned to be reclassified as Federal land, the persons thought to be a
private owner of such land--
(1) shall--
(A) be given the right of first refusal to purchase
the land for fair market value minus the value of any
significant improvements made to such lands; or
(B) be reimbursed for the fair market value of any
significant improvements made to such lands; and
(2) may not be charged with willful trespass onto such land
unless the person used such lands with the knowledge that the
lands should be classified as Federal land.
SEC. 203. DEFINITIONS.
For the purposes of this title:
(1) Resurvey.--The term ``resurvey'' means an official
rerunning and remarking intended to supersede the records of
the original survey.
(2) Secretary.--The term ``Secretary'' means the Secretary of
the Interior, acting through the Director of the Bureau of Land
Management.
Purpose of the Bill
The purpose of H.R. 6682 is to amend the Federal Land
Policy and Management Act of 1976 to improve the transparency
and oversight of land conveyances involving disposal or
acquisition of National Forest System lands or Bureau of Land
Management public lands and to provide protections and
certainty for private landowners relating to resurveying such
public lands.
Background and Need for Legislation
The federal government manages roughly 640 million acres of
land throughout the United States.\1\ A majority of this land
is in western States, where the federal government controls
over 50 percent of the surface.\2\ The federal land management
agencies in charge of administering these lands frequently
acquire, convey, or exchange these lands with willing persons,
entities, or State and local governments. The notification and
oversight process of these actions has on occasion caused
confusion and frustration for landowners with land adjacent to
federal lands.\3\
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\1\Vincent, Carol Hardy. ``Federal Land Ownership: Overview and
Data.'' Congressional Research Service. March 3, 2017.
\2\Vincent, Carol Hardy. ``Federal Land Ownership: Overview and
Data.'' Congressional Research Service. March 3, 2017.
\3\Mountain Region Group, Letter to Congressman Scott Tipton
provided to the House Committee on Natural Resources, Detailing a
Colorado small business's dispute over the BLM notification process,
July 14, 2014.
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Resurveys carried out by the Bureau of Land Management
(BLM) have also created conflicts, with BLM citing inaccurate
existing boundaries as it has reclassified lands that were
previously thought to be private as federal lands. One specific
example of the negative impact caused by these
reclassifications took place in 2009, when BLM conducted a
resurvey of federal land in Mesa County, Colorado.\4\ The
resurvey resulted in the reclassification of land, originally
thought to be owned by a private owner, as federal land. BLM
subsequently charged that individual with trespassing and with
the illegal removal of sand and gravel from federal lands,
which resulted in a fine of over $250,000.\5\ Similar
reclassifications have created other conflicts elsewhere in
United States, with private land owners having their property
rights put into jeopardy.\6\
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\4\Herald, P. M. (n.d.). Tipton slams federal land managers. The
Durango Herald. Retrieved from https://durangoherald.com/articles/76357
\5\Id.
\6\Anderson, S. (2018, February 09). Cassidy: Federal government
must keep word to Lake Bistineau landowners. //bossierpress.com/
cassidy-federal-government-must-keep-word-lake-bistineau-landowners/
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H.R. 6682 institutes much needed transparency and oversight
to the federal land acquisition and sale process by requiring
BLM and the U.S. Forest Service to provide written notification
to landowners with land adjacent to any parcel that is set to
be acquired or sold. Additionally, this legislation requires
BLM, in the event of a land resurvey, to notify property owners
with land that abuts the federal land identified for resurvey.
This bill will also protect landowners from instances when BLM
determines that land, previously believed to be private, should
be reclassified as federal land. The bill further provides that
landowners are given the right of first refusal to purchase the
reclassified land for fair market value, or to be reimbursed
for any significant improvements they made to the reclassified
land. This bill also prevents private landowners from being
punished for trespassing unless they used the land after they
had been properly notified that the land was owned by the
federal government.
Committee Action
H.R. 6682 was introduced on August 28, 2018, by Congressman
Scott R. Tipton (R-CO). The bill was referred to the Committee
on Natural Resources and within the Committee, to the
Subcommittee on Federal Lands. The Subcommittee held a hearing
on the bill on September 6, 2018. On September 26, 2018, the
Natural Resources Committee met to consider the bill. The
Subcommittee was discharged by unanimous consent. Congressman
Tipton offered an amendment designated #1; it was adopted by
voice vote. No additional amendments were offered, and the
bill, as amended, was ordered favorably reported to the House
of Representatives by voice vote.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional
Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 1, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 6682, the
Protection and Transparency for Adjacent Landowners Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 6682--Protection and Transparency for Adjacent Landowners Act
H.R. 6682 would require the Bureau of Land Management (BLM)
and the Forest Service to provide written notification to any
adjacent landowner when the federal government acquires or
conveys an adjoining parcel of land. The bill also would direct
BLM to notify adjacent landowners 30 days in advance of
commencing a resurvey of federal land.
Under the bill, if a resurvey resulted in land previously
thought to be privately owned to be reclassified as federal
land, the former owner would be given the right of first
refusal to purchase the land or would be reimbursed for the
fair market value of any improvements made to the land.
According to BLM, implementing that provision would not change
existing practices. In addition, using information from the
agencies on existing public notification activities, CBO
estimates that any additional costs to notify landowners under
H.R. 6682 would be less than $500,000 over the 2019-2023
period; such spending would be subject to the availability of
appropriated funds.
Enacting H.R. 6682 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 6682 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 6682 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Federal Land Policy and
Management Act of 1976 to improve the transparency and
oversight of land conveyances involving disposal or acquisition
of National Forest System lands or Bureau of Land Management
public lands and to provide protections and certainty for
private landowners relating to resurveying such public lands.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976
* * * * * * *
TITLE II--LAND USE PLANNING; LAND ACQUISITION AND DISPOSITION
* * * * * * *
acquisitions
Sec. 205. (a) Notwithstanding any other provisions of law,
the Secretary, with respect to the public lands and the
Secretary of Agriculture, with respect to the acquisition of
access over non-Federal lands to units of the National Forest
System, are authorized to acquire pursuant to this Act by
purchase, exchange, donation, or eminent domain, lands or
interests therein: Provided, That with respect to the public
lands, the Secretary may exercise the power of eminent domain
only if necessary to secure access to public lands, and then
only if the lands so acquired are confined to as narrow a
corridor as is necessary to serve such purpose. Nothing in this
subsection shall be construed as expanding or limiting the
authority of the Secretary of Agriculture to acquire land by
eminent domain within the boundaries of units of the National
Forest System.
(b) Acquisitions pursuant to this section shall be consistent
with the mission of the department involved and with applicable
departmental land-use plans.
(c) Except as provided in subsection (e), lands and interests
in lands acquired by the Secretary pursuant to this section or
section 206 shall, upon acceptance of title, become public
lands, and, for the administration of public land laws not
repealed by this Act, shall remain public lands. If such
acquired lands or interests in lands are located within the
exterior boundaries of a grazing district established pursuant
to the first section of the Act of June 28, 1934 (48 Stat.
1269, as amended; 43 U.S.C. 315) (commonly known as the
``Taylor Grazing Act''), they shall become a part of that
district. Lands and interests in lands acquired pursuant to
this section which are within boundaries of the National Forest
System may be transferred to the Secretary of Agriculture and
shall then become National Forest System lands and subject to
all the laws, rules, and regulations applicable thereto.
(d) Lands and interests in lands acquired by the Secretary of
Agriculture pursuant to this section shall, upon acceptance of
title, become National Forest System lands subject to all the
laws, rules, and regulations applicable thereto.
(e) Lands acquired by the Secretary pursuant to this section
or section 206 in exchange for lands which were revested in the
United States pursuant to the provisions of the Act of June 9,
1916 (39 Stat. 218) or reconveyed to the United States pursuant
to the provisions of the Act of February 26, 1919 (40 Stat.
1179), shall be considered for all purposes to have the same
status as, and shall be administered in accordance with the
same provisions of law applicable to, the revested or
reconveyed lands exchange for the lands acquired by the
Secretary.
(f) Notice to Adjacent Landowners.--As part of the
acquisition of a parcel of non-Federal lands under this
section, section 206, or other applicable law that will become
public lands or National Forest System lands, the Secretary or
the Secretary of Agriculture, as the case may be, shall provide
advance written notification to each owner of land that is
adjacent to the parcel of land to be acquired. To assist in
identifying adjacent landowners, and to meet the requirements
of this subsection, the Secretary concerned should use the most
recently available property tax records.
(g) Oversight of Use of Third-Party Facilitators.--(1) If the
acquisition process for a parcel of non-Federal lands under
this section, section 206, or other applicable law that will
become public lands or National Forest System lands involves
the use of a third-party facilitator, the Secretary or the
Secretary of Agriculture, as the case may be, shall require, as
a condition of the approval of the acquisition--
(A) submission of all purchase contracts and related
agreements held by the third-party facilitator related
to the parcel to be acquired on written request by the
appropriate official;
(B) supervisor review of such purchase contracts and
related agreements, the purpose of the acquisition, and
other terms and conditions of the acquisition; and
(C) a clear statement to Bureau of Land Management
and United States Forest Service employees that the
Secretary or the Secretary of Agriculture, as the case
may be, has determined that all business information
submitted under paragraphs (A), (B), and (C) of
subsection (d) is confidential and all information
covered by the Privacy Act of 1974 (5 U.S.C. 552a) will
be protected to the extent allowed by law.
(2) In this subsection, the term ``third-party facilitator''
means any entity (other than an agent of the United States)
whose role in a real estate transaction is to assist the buyer
or seller, or both, in reaching agreement in the transaction.
* * * * * * *
conveyances
Sec. 208. (a) Issuance of Patent and Other Conveyance
Documents._The Secretary shall issue all patents or other
documents of conveyance after any disposal authorized by this
Act.
(b) Other Terms And Conditions.--The Secretary shall insert
in any such patent or other document of conveyance he issues,
except in the case of land exchanges, for which the provisions
of subsection 206(b) of this Act shall apply, such terms,
covenants, conditions, and reservations as he deems necessary
to insure proper land use and protection of the public
interest: Provided, That a conveyance of lands by the
Secretary, subject to such terms, covenants, conditions, and
reservations, shall not exempt the grantee from compliance with
applicable Federal or State law or State land use plans:
Provided further, That the Secretary shall not make conveyances
of public lands containing terms and conditions which would, at
the time of the conveyance, constitute a violation of any law
or regulation pursuant to State and local land use plans, or
programs.
(c) Notice to Adjacent Landowners.--As part of the conveyance
of a parcel of public lands or National Forest System lands by
sale, exchange, or other disposal method under section 203 or
206 or other applicable law, the Secretary or the Secretary of
Agriculture, as the case may be, shall provide advance written
notification to each owner of land that is adjacent to the
parcel of land to be conveyed. To assist in identifying
adjacent landowners, and to meet the requirements of this
subsection, the Secretary concerned should use the most
recently available property tax records.
(d) Oversight of Use of Third-Party Facilitators.--(1) If the
process by which a parcel of public lands or National Forest
System lands will be conveyed by sale, exchange, or other
disposal method under section 203 or 206 or other applicable
law, involves the use of a third-party facilitator, the
Secretary or the Secretary of Agriculture, as the case may be,
shall require, as a condition of the approval of the
conveyance--
(A) submission of all purchase contracts and related
agreements held by the third-party facilitator related
to the Federal land to be conveyed on written request
by the appropriate official;
(B) submission to appraisers of contact information
for prospective end owners of the Federal land to be
conveyed;
(C) supervisor review of such purchase contracts and
related agreements, the purpose of the conveyance, and
other terms and conditions of the conveyance; and
(D) a clear statement to Bureau of Land Management
and United States Forest Service employees that the
Secretary or the Secretary of Agriculture, as the case
may be, has determined that all business information
submitted under paragraphs (A), (B), and (C) of this
subsection is confidential and all information covered
by the Privacy Act of 1974 (5 U.S.C. 552a) will be
protected to the extent allowed by law.
(2) In this subsection, the term ``third-party facilitator''
means any entity (other than an agent of the United States)
whose role in a real estate transaction is to assist the buyer
or seller, or both, in reaching agreement in the transaction.
* * * * * * *
DISSENTING VIEWS
While we understand the sponsor's concern about the need
for transparency and accountability, this bill is an overreach
that would create confusion and slow down routine land
management activities.
The Bureau of Land Management's Cadastral Survey Program
updates surveys of federal land using modern technology to
ensure the accuracy of records and maps, some of which date
back to the 19th Century. This is an involved but necessary
process.
A re-survey can lead to a determination that land thought
to be private actually belongs to the federal government. This
is a frustrating result and the government has a responsibility
to communicate clearly about ongoing survey activities and
results. Unfortunately, this bill addresses that concern in a
manner that is bound to cause confusion and slow down agency
planning efforts.
The term 'adjacent land' is extremely vague and makes it
difficult to determine which landowners must be notified. This
creates an additional burden on agencies and would only serve
to generate additional litigation.
The bill also mandates a ``right of first refusal'' for
land resurveyed into federal ownership and reimbursement for
structures or other improvements that exist on the land. This
blanket right could disrupt land exchanges or other public
interest conveyances of public land, and it does not allow for
alternative means of resolving an already challenging
situation.
We also have concerns with the provision regarding the use
of third-party facilitators. As drafted, the bill would make it
more difficult to carry out routine exchanges and acquisitions
intended to make federal land management more efficient and
advance American conservation priorities. Prior to markup, the
committee received a letter signed by the American Fly Fishing
Trade Association, Backcountry Hunters and Anglers, Izaak
Walton League of America, the National Deer Alliance, The
Conservation Fund, The Trust for Public Lands, and the Theodore
Roosevelt Conservation Partnership outlining concerns with this
section of the bill. The letter states that ``H.R. 6682 would
impose unnecessary bureaucratic requirements on private
landowner transitions facilitated by conservation organizations
. . . The proposal is likely to cause undue delays, frustrate
landowner needs and result in conservation losses that prevent
public access.''
While we appreciate the sponsor's intent, this bill is a
bridge too far and simply creates additional red tape and
bureaucratic hurdles designed to slow down land acquisition.
Raul M. Grijalva,
Ranking Member.
Alan Lowenthal.
Grace F. Napolitano.
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