Hearings and Business Meetings
May 24, 2006
SD-366 Energy Committee Hearing Room 02:30 PM
Mr. Chad Calvert
Deputy Assistant Secretary of Land and Minerals Management , Department of the Interior
Deputy Assistant Secretary for
Land and Minerals Management
U.S. Department of the Interior
Senate Energy & Natural Resources Committee
Subcommittee on Public Lands and Forests
S. 2466, the Southeast Arizona Land Exchange and Conservation Act of 2006
May 24, 2006
Thank you for the opportunity to testify on S. 2466, the Southeast Arizona Land Exchange and Conservation Act. The legislation provides for the exchange of a 3,025-acre parcel of Forest Service-managed land in exchange for a number of private parcels, three of which are identified for transfer to the Bureau of Land Management (BLM). In general, we defer to the United States Forest Service on those issues directly related to Forest Service lands. We are supportive of the principal goals of S. 2466, but we would like the opportunity to work with the sponsor and the Committee on a number of modifications to the legislation.
It is our understanding that the intent of the legislation is to facilitate an exchange of land with Resolution Copper Mining. Resolution Copper has indicated its intention to explore the possibility of a very deep copper mine near Superior, Arizona, and wishes to acquire the 3,025-acre Forest Service parcel overlying the copper deposit as well as the subsurface rights.
The legislation provides for the exchange of a number of parcels of private land to the Federal government. We note that while the bill states that three of these parcels are to be transferred to the Secretary of the Interior, it is our understanding that the intention of the sponsors is for the parcels to be under BLM management. These parcels include:
• 3,073 acres along the Lower San Pedro River near Mammoth, Arizona;
• 956 acres adjacent to the Las Cienegas National Conservation Area (NCA), near Sonoita, Arizona; and,
• 160 acres within the Dripping Springs area, near Kearny, Arizona.
The lower San Pedro parcel is east of the town of Mammoth, Arizona, and straddles the San Pedro River. The acquisition of these lands would enhance a key migratory bird habitat along the San Pedro River, and we would welcome them into BLM management. However, we recommend a modification to the withdrawal language in section 7(b) of the legislation. Rather than a permanent withdrawal of this parcel, we recommend a withdrawal of the later of two years from the date of enactment or the completion of the BLM’s land-management planning process. Generally, the Department believes it is most appropriate to leave determination of land withdrawals to an open, public land planning process.
Another parcel intended to be transferred to the BLM is the 956-acre parcel near the Appleton Ranch on the southern end of the Las Cienegas NCA. These lands lie within the “Sonoita Valley Acquisition Planning District” established by Public Law 106-538, which designated the Las Cienegas NCA. That law directs the Department of the Interior to acquire lands from willing sellers within the planning district for inclusion in the NCA to further protect the important resource values for which the NCA was designated. These particular lands provide bio-connectivity and expand a wildlife corridor stretching north through the NCA and beyond. We support this acquisition and would recommend only that the legislation be amended to make clear that these lands would become part of the Las Cienegas NCA upon acquisition and managed under the provisions of that Act.
For both of these acquisitions, we ask that the exchange language be clarified to make clear that all right, title and interest to these lands is to be conveyed to the Secretary of the Interior.
The final parcel presents several problems. The legislation proposes to transfer 160 acres in the Dripping Springs area northeast of Hayden to the BLM. The BLM is then directed in section 8(b) to transfer these 160 acres plus an additional approximately 2,000 acres to the Arizona State Parks Board (Board) for the purpose of a rock climbing area to replace a similar area currently managed by the Forest Service that is within the area to be transferred to Resolution Copper. The bill directs the transfer to Arizona State Parks at no cost within five years of the passage of the Act if requested by the Board.
The Department can support the transfer of the existing 2,000 acres to the State of Arizona. The vast majority of these lands were previously identified for disposal. However, we recommend that the legislation provide for an immediate transfer of these lands to the State. The BLM does not currently have the resources or staff to manage a rock climbing area to replace the existing one on Forest Service lands that would be taken over by Resolution Copper in this exchange. Therefore, since Dripping Springs has been designated as the replacement area, we urge its immediate transfer to the State so that appropriate management of the area can be arranged.
In addition, we do not believe that it is appropriate for the 160-acre parcel to be a part of the Federal exchange when the BLM will simply act as a pass-through for the State. Any arrangements between Arizona State Parks and Resolution Copper should be handled outside of the Federal exchange.
Finally, S. 2466 requires the BLM to construct a road to the new rock climbing area. The proposed road stretches over approximately six miles of rough terrain and, in addition to crossing BLM-managed land, also crosses state and private property. The legislation would require Resolution Copper to pay up to $500,000 for the construction of the road. The BLM opposes the requirement that the Federal government build the road to a facility that, at least in the long run, will not be in Federal ownership. However, the BLM would be happy to provide a right-of-way over BLM-managed public lands to either the State or Resolution Copper to construct the new road.
Other issues requiring clarification include: timing of the exchange; appraisal-related provisions; and, the equalization of values provisions. Section 4(d) of the legislation requires that the exchange be completed within one year. Based on our experience with exchanges, we do not believe that this is sufficient time for the completion and review of a mineral report, completion and review of the appraisals, and final verification and preparation of title documents. Preparation of a mineral report is a crucial first step toward an appraisal of the Federal parcel because the report provides the foundation for an appraisal where the land is underlain by a mineral deposit. Accordingly, adequate information for the mineral report is essential. We recommend adding a provision requiring Resolution Copper to provide confidential access to the Secretaries of Agriculture and the Interior (and their representatives) to all exploration and development data and company analyses on the mineral deposits underlying the Federal land in order to ensure an accurate appraisal.
Sections 4 and 5 also provide that Resolution Copper will reimburse the Secretary of Agriculture for costs related to the exchanges and conveyances, including appraisals and all other reviews. It is important that the proponent of the exchange also reimburse the Secretary of the Interior for the Interior Department’s related costs.
Section 5(b) discusses equalization of values of the Federal parcel and the non-Federal parcels. We believe that standard language on reducing acreage to achieve equalization of values should be included, as well as the typical Federal Land Policy and Management Act (FLPMA) restriction that no more than 25% of value be permitted in cash. In addition, should the value of the Federal land exceed the value of the non-Federal land, we would be open to consideration of additional parcels of land to be transferred to the Federal government, subject to the discretion of the Secretary. We also note further that the bill requires the Secretary of the Interior to make cash equalization payments “subject to the availability of funds” if the value of the non-Federal parcels exceeds the value of the Federal parcels. This provision would provide better certainty for the parties if it allowed for a reduction in the lands to be transferred to the Federal government instead of a payment from the Interior Department. Furthermore, the transactions between the Forest Service and the town of Superior should not be complicated by involving the Secretary of the Interior. We would like the opportunity to work with the sponsor and the Committee on these and other technical concerns with sections 4 and 5.
Finally, we would like the opportunity to work with the sponsor and the Committee on miscellaneous technical items including maps for the areas to be exchanged. There are some minor errors on the maps and we prefer that, in the case of lands to be transferred to or from the Secretary of the Interior, the maps be completed by the BLM.
Thank you for the opportunity to testify, I will be happy to answer any questions.
Deputy Assistant Secretary for
Land and Minerals Management
U.S. Department of the Interior
Senate Energy & Natural Resources Committee
Subcommittee on Public Lands and Forests
S. 2788, Utah Recreational Land Exchange Act
May 24, 2006
Thank you for the opportunity to testify on S. 2788, the Utah Recreational Land Exchange Act. The bill would legislate a large-scale land exchange between the Bureau of Land Management (BLM) and the State of Utah. We strongly support the completion of major land exchanges with the State of Utah. We look forward to working with the sponsors and the Committee on S. 2788 and could support the bill with some additional modifications. As a matter of policy, we support working with states to resolve land tenure and land transfer issues that advance worthwhile public policy objectives. A great deal of progress has been made on this legislation over the last eight months and the bill as introduced in the Senate reflects much of that work.
The Utah School and Institutional Trust Lands Administration (SITLA) manages approximately 3.5 million acres of land and 4.5 million acres of mineral estate within the State of Utah primarily for the benefit of the schools of the State of Utah. Many of these parcels are scattered and interspersed with public lands managed by the BLM.
Managing 22.87 million acres of land within the State of Utah, the BLM’s mission is to sustain the health, diversity, and productivity of the public lands for the use and enjoyment of present and future generations. As the nation’s largest Federal land manager, the BLM administers the public lands for a wide range of multiple uses, including energy production, recreation, livestock grazing, conservation use, forestry and open space. The Federal Land Policy and Management Act (FLPMA) provides the BLM with a clear multiple-use mandate which the BLM implements through its land use planning process.
Section 206 of FLPMA provides the BLM with the authority to undertake land exchanges. Exchanges allow the BLM to acquire environmentally-sensitive lands while transferring public lands into private ownership for local needs and the consolidation of scattered tracts. Over the past five years, throughout the bureau, nearly 550,000 acres of public lands were disposed of through exchange, while 370,000 acres were acquired by the BLM through this process. During this same time period in Utah, the BLM has disposed of 110,178 acres while acquiring 112,842 acres through exchange. The vast majority of this was completed under the direction of Congress through the Utah West Desert Land Exchange Act (Public Law 106-301).
S. 2788 directs the exchange of approximately 40,000 acres of lands managed by SITLA for approximately 40,000 acres of BLM-managed Federal lands. Many of the lands that the State is proposing to transfer to the BLM are lands that the BLM has a high degree of interest in acquiring because they would consolidate Federal ownership within wilderness study areas, Areas of Critical Environmental Concern, or other sensitive lands. Among these are:
• 640 acres on the eastern boundary of Arches National Park which will provide important viewshed protections;
• 1,280 acres and 420 acres along the Colorado River west and east of Moab which includes Corona Arch and other popular recreation sites within the BLM’s Colorado Riverway Management Area;
• 4,500 Acres within the Castle Valley watershed which also has important wildlife habitat and scenic values;
• 2,560 acres of land currently leased by the BLM and Grand County from the State for recreation-related activities associated with the Sand Flats Recreation Area and the famous Slickrock Mountain Bike Trail; and,
• 800 acres within the Nine Mile Canyon containing significant cultural and recreational resources.
We support the provisions of the bill that establish a phasing process for the transfer of lands from SITLA to the BLM. This will allow BLM to prioritize the use of Federal resources in the appraisal and review process on the lands with the highest resource value for acquisition.
The bill also identifies a number of parcels for transfer to SITLA from the BLM. Some of these would improve manageability and encourage appropriate local development, including:
• 2,800 acres of scattered parcels near the town of Green River which are suitable for private agricultural development; and
• 80 acres adjacent to Canyonlands Field municipal airport operated by Grand County, Utah which are suitable for private development.
In addition, some of the lands identified for transfer to SITLA from the BLM have high energy potential.
In December of 2004, former Secretary of the Interior Norton issued policy guidance to all of the bureaus on legislative exchanges and land valuation issues. A copy of that guidance (Secretary of the Interior Order No. 3258) is included for the record. This policy was developed to ensure that land transactions are conducted with integrity and earn public confidence.
The policy states that all real property appraisals performed by the Department shall conform to nationally recognized appraisal standards (i.e., the Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA) and the Uniform Standards of Professional Appraisal Practice (USPAP)). Accordingly, the policy specifically prohibits the use by the Department of alternative methods of valuation in appraisals. However, the policy recognizes there may be times when Congress will direct, or the Department will propose, the use of alternative methods of valuation other than, or in addition to a standard appraisal. Under the policy guidance, if Congress directs the Department to use an alternative method of valuation in a specific transaction, the Department will expressly describe the alternative method of valuation applied; explain how the alternative method of valuation differs from appraisal methods applied under the Uniform Appraisal Standards or the Uniform Standards of Professional Appraisal Practice; and, if so directed by Congress, provide this material to the appropriate committees prior to or after completion of the transaction, as required by the direction.
The Department’s Inspector General has commented on the Department’s appraisal reform efforts. In testimony given before the Senate Committee on Finance, he commended the Department for the significant changes it has made to the land appraisal program and process.
As stated, there are circumstances in which the Congress or the Administration may decide that alternative methods of valuation are appropriate for achieving worthwhile public policy objectives. It is our duty to be clear and transparent about the details of proposed exchanges and to be clear that an alternative method of valuation is being used.
S. 2788 is not an Administration legislative proposal. It is a legislative proposal from Congress. Its stated purpose is to facilitate the exchange of certain Federal lands for non-Federal lands to further the public interest by exchanging Federal land that has limited recreational and conservation resources and acquiring State trust land with important recreational, scenic, and conservation resources for permanent public management and use. To meet these legitimate public policy objectives, Congress may determine that alternative methods of valuation are consistent with the intent of the legislation.
S. 2788 directs that all appraisals shall be in accordance with the requirements of FLPMA and with the BLM’s regulations governing appraisals. The bill further directs the use of two alternative methods of valuation for two different purposes. I will describe the Department’s view of each of these and the relative benefits or risks of using these methods.
Sec. 5(b)(4) requires that, for Federal lands that are not under mineral lease at the time of appraisal, such lands shall be valued without regard to the presence of any minerals that are subject to leasing under the Mineral Leasing Act of 1920. This provision would not affect the appraisals for lands that contain no mineral values. Additionally, it would not affect the appraisals for those lands that are already under Federal mineral lease. Rather, this provision would modify a standard appraisal by directing a reduction in the value of any eligible parcel by the value of any present minerals which are subject to leasing under the Mineral Leasing Act of 1920, but not under lease. For such lands, the transaction value would be reduced by the value of those minerals. In exchange for this reduction in value, the State or its successors in interest to the property (by virtue of covenant language in Section 5(b)(4)(B)) would have to agree to pay the United States 50% of whatever bonus or rentals are paid to the State for any mineral development in the future; and an amount equal to the Federal royalties that would have otherwise been collected by any future mineral development conducted pursuant to the Mineral Leasing Act, minus amounts that would have otherwise been due to the State under Section 35 of that Act.
This is a complicated methodology that departs from a standard appraisal and valuation practice. We note that currently under standard appraisals oil shale, the mineral that, in addition to oil and gas, is likely to be found in the unleased lands that would be convey to the State, does not factor into the value because there are no comparable oil shale transactions, or there is no reasonably foreseeable oil shale development on the property. The result of using a standard appraisal process might therefore be that properties with significant oil shale resources will probably have no additional value attributed to them by virtue of the presence of this resource. This could lead to the criticism that the United States is “giving away” potentially millions of dollars in oil shale. The material purpose of the provisions contained in section 5(b)(4) is to address that risk by ensuring that the United States receives the value for any future oil shale or other leasable mineral development it would have received if the Federal government had retained the lands and leased them.
We would like to work with the Committee to further refine this section. In particular, we would like the bill to clarify that under Section 5(b)(4), the royalty rate for which the State would compensate the Federal government in the event that currently unleased minerals are eventually developed is the standard Federal onshore rate established at the time the resource is developed. Also, it may be more appropriate to narrow the scope of this provision expressly to oil shale and allow for an appraisal that would capture the value of any other leasable minerals according to general appraisal standards. In addition, as currently drafted, the provision conditions the use of the alternative method of valuation on an agreement the State would make after conveyance of the lands. The lands, however, cannot be conveyed until they are valued.
The second alternative method of valuation is found in Sec. 5(b)(6)(B). This provision would apply only to parcels under Federal mineral lease at the time of the appraisal. Clause (ii) in that subparagraph would direct the BLM to reduce the value of an applicable appraisal by an amount equal to what would be the State’s share under Section 35 of the Mineral Leasing Act. A standard appraisal would identify the value of the parcel based on a net present value of the future royalty stream. That valued revenue stream would comprise the entire Federal collection, without an offset or reduction for the portion of the revenue stream that the Federal government remits to a state. It is the Department’s understanding that this provision is included to recognize that the Mineral Leasing Act currently provides that 50% of all the money received by the United States in accordance with Section 35 of the Mineral Leasing Act shall be paid to the State within the boundaries of which the leased lands or deposits are or were located.
This provision would reduce the net present valuation by an amount equal to what would be the State’s share under the Mineral Leasing Act.
The overall result of the proposed valuation methods will be a greater number of Federal acres exchanged for a lesser number of state acres. This may be the desired outcome given Congress’ stated public policy objectives.
The Department opposes section 5(d) of the bill requiring a “resource report” on the lands to be transferred out of Federal ownership. Under S. 2788 the Secretary has no discretion regarding the lands to be transferred out of Federal ownership; therefore the intent and usefulness of this section is unclear. Resource reports on the parcels will be time-consuming and costly, will delay the purposes of the bill, and will not ultimately affect the directed exchange. We urge the Committee to delete this provision.
Additionally, the Department has serious concerns with section 6(a)(2)(B) which places permanent withdrawals from the mineral leasing and mineral materials laws on certain state parcels once they are transferred to the Federal government. We would support the short term withdrawals envisioned in 6(a)(2)(A) because they are consistent with the present public planning process. Generally the Department prefers to identify lands for permanent withdrawal from mineral entry or leasing through the public land use planning process because it gives all interested parties an opportunity to be heard. A short-term withdrawal of these lands from mineral leasing would preserve the option of more permanent withdrawal for any final record of decision. This is standard BLM practice.
We would like the opportunity to continue to fine tune some technical provisions, including section 4(a), to insure that the implementation of the exchange is correctly and appropriately completed.
Finally, we understand that the current maps created by the BLM, dated March 16, 2006, are works in progress. We look forward to the opportunity to finalize these in the coming weeks in coordination with the sponsors and the Committee.
The Department of the Interior supports the intent of this legislation. Large-scale land exchanges can resolve management issues, improve public access, and facilitate greater resource protection, and we support such exchanges. To that end, we are ready to work with the Committee and the sponsor to resolve remaining issues in the bill. I would be happy to answer any questions.
THE SECRETARY OF THE INTERIOR
ORDER NO. 3258
SIGNATURE DATE: December 30, 2004
Subject: Policy Guidance Concerning Land Valuation and Legislative Exchanges
Sec. 1 Purpose. This Order provides policy for land valuation issues, real property appraisals, and legislative land exchanges.
Sec. 2 Background. During the past year, the Department has taken significant steps to ensure that land transactions are conducted with integrity and earn public confidence. These steps include implementing reforms to improve the management of real property appraisals, establishing the Appraisal Services Directorate, and issuing the Land Transaction Principles. This Order provides the following: (a) a policy on alternative methods of valuation (AMV) that addresses the need to comport with nationally applicable appraisal standards; (b) a policy on appraisals prepared for third (i.e., non-Federal) parties; and (c) a policy on legislative exchanges that reinforces existing Departmental guidance and further provides for a Departmental determination on how to review such proposals internally to ensure appropriate coordination and decision making. The legislative exchange policy also underscores the importance of adhering to applicable appraisal standards in developing applicable legislative provisions.
Sec. 3 Authority. The policy in this Order is being issued in accordance with the Uniform Appraisal Standards for Federal Land Acquisitions and the Uniform Standards of Professional Appraisal Practice.
Sec. 4 Policy.
a. Alternative Methods of Valuation.
(1) All real property appraisals performed by the Department shall conform to nationally recognized appraisal standards (i.e., the Uniform Appraisal Standards for Federal Land Acquisitions and the Uniform Standards of Professional Appraisal Practice, as applicable). Accordingly, the use of public interest value, contingent valuation, habitat equivalency analysis, and any other AMV in appraisals is expressly prohibited.
(2) If Congress directs the Department to utilize AMV other than or in addition to an appraisal in a specific transaction, the Department shall (a) expressly describe the AMV applied; (b) using the assistance of the Appraisal Services Directorate (ASD), explain how the AMV differ from appraisal methods applied under UASFLA or USPAP; and (c) upon Congressional direction, provide this material to the appropriate committees prior to or after completion of the transaction, in accordance with such direction.
(3) Requirement for Congressional Authorization or Notification.
(a) If the Department proposes to utilize AMV other than or in addition to an appraisal in a specific transaction that requires Congressional authorization, the Department shall expressly describe to the appropriate committees of Congress the AMV applied and, using the assistance of the ASD, explain how they differ from appraisal methods applied under UASFLA or USPAP.
(b) If the Department proposes to utilize AMV other than or in addition to an appraisal in a specific transaction that does not require Congressional authorization, the Department shall notify the appropriate committees of Congress and the Office of the Inspector General prior to the completion of the transaction and, upon Congressional direction, explain, using the assistance of the ASD, to the appropriate committees how the AMV differ from appraisal methods applied under UASFLA or USPAP.
(4) The Associate Director, ASD, has overall authority and responsibility to ensure the effective implementation of this policy, in coordination with the Office of the Special Trustee for American Indians (OST), as applicable, and the Office of Congressional and Legislative Affairs (OCL).
b. Appraisals Prepared for Third (i.e., non-Federal) Parties.
(1) Appraisals prepared for third (i.e., non-Federal) parties may assist in achieving mutually beneficial outcomes for the Department and the proponent. The Department of the Interior, however, is not obligated to review land transaction proposals supported by such appraisals that do not comport with its land management missions, priorities, and plans.
(2) Upon bureau request, the Department, acting through the ASD or the OST, as applicable, shall review a third party appraisal if: (a) the third party consults with ASD or OST prior to the initiation of the appraisal on the scope of work and the selection of the appraiser, and agree that ASD or OST, as applicable, is both the client for and an intended user of the appraisal; (b) a senior bureau or Departmental manager (i.e., Senior Executive Service level in the field or headquarters, as applicable) has transmitted the appraisal with a determination that the land transaction proposal supported by the appraisal comports with applicable missions, priorities, and plans; and (c) ASD or OST, as applicable, has determined that the appraisal was prepared by a certified appraiser and meets applicable appraisal standards.
(3) ASD or OST review of an appraisal does not create an expectation that such appraisal will be approved.
(4) In cases where an appraisal is reviewed by ASD or OST, a second appraisal may be required. If so, ASD or OST shall conduct or oversee that appraisal, which shall be performed in accordance with procedures determined by ASD or OST, as applicable.
(5) The Associate Director, ASD, has overall authority and responsibility to ensure the implementation of this policy in coordination with OST, as applicable, and the OCL.
c. Legislative Exchanges.
(1) All officials and employees of the Department shall adhere to 461 DM 1, which addresses requests for information, drafting, or other assistance regarding legislation from sources outside the Department, and specifically requires coordination with the Legislative Counsel in OCL.
(2) Similar coordination with the OCL shall occur on legislative exchange proposals initiated by any entity, official, or employee of the Department.
(3) The OCL shall determine the appropriate means for the review of each legislative exchange proposal, including the involvement of appropriate policy officials of other offices (e.g., the ASD or the OST as appropriate, and the Solicitor).
(4) Appropriate documentation shall support the key provisions of all legislative exchange proposals.
(5) All appraisals used in legislative exchanges shall conform to nationally recognized appraisal standards (i.e., the Uniform Appraisal Standards for Federal Land Acquisitions and the Uniform Standards of Professional Appraisal Practice, as applicable). When the Department proposes the application of alternative methods of valuation other than or in addition to an appraisal for a legislative exchange, it shall expressly describe the alternative methods of valuation and explain how they differ from methods utilized in an appraisal consistent with nationally recognized appraisal standards (i.e., the Uniform Appraisal Standards for Federal Land Acquisitions and the Uniform Standards of Professional Appraisal Practice, as applicable).
(6) The Director, OCL, has overall authority and responsibility to ensure the effective implementation of this policy, in coordination with the Associate Director, ASD, as applicable.
Sec. 5 Expiration Date. This Order is effective immediately. It will remain in effect until its provisions are converted to the Departmental Manual or until it is amended, superseded, or revoked, whichever occurs first. In the absence of any of the foregoing actions, the provisions of this Order will terminate and be considered obsolete on July 30, 2006.
/s/ Gale A. Norton
Secretary of the Interior