[Senate Report 114-349]
[From the U.S. Government Publishing Office]
Calendar No. 625
114th Congress } { Report
SENATE
2d Session } { 114-349
======================================================================
UTAH TEST AND TRAINING RANGE ENCROACHMENT PREVENTION AND TEMPORARY
CLOSURE ACT
_______
September 13, 2016.--Ordered to be printed
_______
Ms. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 2383]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 2383) to withdraw certain Bureau of Land
Management land in the State of Utah from all forms of public
appropriation, to provide for the shared management of the
withdrawn land by the Secretary of the Interior and the
Secretary of the Air Force to facilitate enhanced weapons
testing and pilot training, enhance public safety, and provide
for continued public access to the withdrawn land, to provide
for the exchange of certain Federal land and State land, and
for other purposes, having considered the same, reports
favorably thereon with an amendment in the nature of a
substitute and recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Utah Test and
Training Range Encroachment Prevention and Temporary Closure Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--AUTHORIZATION FOR TEMPORARY CLOSURE OF CERTAIN PUBLIC LAND
ADJACENT TO THE UTAH TEST AND TRAINING RANGE
Sec. 101. Definitions.
Sec. 102. Memorandum of agreement.
Sec. 103. Temporary closures.
Sec. 104. Liability.
Sec. 105. Community Resource Advisory Group.
Sec. 106. Savings clauses.
TITLE II--BUREAU OF LAND MANAGEMENT LAND EXCHANGE WITH STATE OF UTAH
Sec. 201. Definitions.
Sec. 202. Exchange of Federal land and non-Federal land.
Sec. 203. Status and management of non-Federal land acquired by the
United States.
Sec. 204. Hazardous materials.
TITLE I--AUTHORIZATION FOR TEMPORARY CLOSURE OF CERTAIN PUBLIC LAND
ADJACENT TO THE UTAH TEST AND TRAINING RANGE
SEC. 101. DEFINITIONS.
In this Act:
(1) Blm land.--The term ``BLM land'' means certain public
land administered by the Bureau of Land Management land in the
State comprising approximately 703,621 acres, as generally
depicted on the map entitled ``Utah Test and Training Range
Enhancement/West Desert Land Exchange'' and dated May 7, 2016.
(2) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(3) State.--The term ``State'' means the State of Utah.
(4) Utah test and training range.--The term ``Utah Test and
Training Range'' means the portions of the military land and
airspace operating area of the Utah Test and Training Area that
are located in the State, including the Dugway Proving Ground.
SEC. 102. MEMORANDUM OF AGREEMENT.
(a) Memorandum of Agreement.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary and the Secretary of the
Air Force shall enter into a memorandum of agreement to
authorize the Secretary of the Air Force, in consultation with
the Secretary, to impose limited closures of the BLM land for
military operations and national security and public safety
purposes, as provided in this title.
(2) Draft.--
(A) In general.--Not later than 180 days after the
date of enactment of this Act, the Secretary and the
Secretary of the Air Force shall complete a draft of
the memorandum of agreement required under paragraph
(1).
(B) Public comment period.--During the 30-day period
beginning on the date on which the draft memorandum of
agreement is completed under subparagraph (A), there
shall be an opportunity for public comment on the draft
memorandum of agreement, including an opportunity for
the Utah Test and Training Range Community Resource
Advisory Group established under section 105(a) to
provide comments on the draft memorandum of agreement.
(3) Management by secretary.--The memorandum of agreement
entered into under paragraph (1) shall provide that the
Secretary shall continue to manage the BLM land in accordance
with the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.) and applicable land use plans, while
allowing for the temporary closure of the BLM land in
accordance with this title.
(4) Permits and rights-of-way.--
(A) In general.--The Secretary shall consult with the
Secretary of the Air Force regarding Utah Test and
Training Range mission requirements before issuing new
use permits or rights-of-way on the BLM land.
(B) Framework.--The Secretary and the Secretary of
the Air Force shall establish within the memorandum of
agreement entered into under paragraph (1) a framework
agreed to by the Secretary and the Secretary of the Air
Force for resolving any disagreement on the issuance of
permits or rights-of-way on the BLM land.
(5) Termination.--
(A) In general.--The memorandum of agreement entered
into under paragraph (1) shall be for a term to be
determined by the Secretary and the Secretary of the
Air Force, not to exceed 25 years.
(B) Early termination.--The memorandum of agreement
may be terminated before the date determined under
subparagraph (A) if the Secretary of the Air Force
determines that the temporary closure of the BLM land
is no longer necessary to fulfill Utah Test and
Training Range mission requirements.
(b) Map.--The Secretary may correct any minor errors in the map
described in section 101(1).
(c) Land Safety.--If corrective action is necessary on the BLM land
due to an action of the Air Force, the Secretary of the Air Force
shall--
(1) render the BLM land safe for public use; and
(2) appropriately communicate the safety of the land to the
Secretary on the date on which the BLM land is rendered safe
for public use under paragraph (1).
(d) Consultation.--The Secretary shall consult with any federally
recognized Indian tribe in the vicinity of the BLM land before entering
into any agreement under this title.
(e) Grazing.--
(1) Effect.--Nothing in this title impacts the management of
grazing on the BLM land.
(2) Continuation of grazing management.--The Secretary shall
continue grazing management on the BLM land pursuant to the
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
et seq.) and applicable resource management plans.
(f) Memorandum of Understanding on Emergency Access and Response.--
Nothing in this section precludes the continuation of the memorandum of
understanding between the Department of the Interior and the Department
of the Air Force with respect to emergency access and response, as in
existence on the date of enactment of this Act.
(g) Withdrawal.--Subject to valid existing rights, the BLM land is
withdrawn from all forms of appropriation under the public land laws,
including the mining laws, the mineral leasing laws, and the geothermal
leasing laws.
SEC. 103. TEMPORARY CLOSURES.
(a) In General.--If the Secretary of the Air Force determines that
military operations (including operations relating to the fulfillment
of the mission of the Utah Test and Training Range), public safety, or
national security require the temporary closure to public use of any
road, trail, or other portion of the BLM land, the Secretary of the Air
Force may take such action as the Secretary of the Air Force, in
consultation with the Secretary, determines necessary to carry out the
temporary closure.
(b) Limitations.--Any temporary closure under subsection (a)--
(1) shall be limited to the minimum areas and periods during
which the Secretary of the Air Force determines are required to
carry out a closure under this section;
(2) shall not occur on a State or Federal holiday, unless
notice is provided in accordance with subsection (c)(1)(B);
(3) shall not occur on a Friday, Saturday, or Sunday, unless
notice is provided in accordance with subsection (c)(1)(B); and
(4)(A) if practicable, shall be for not longer than a 3-hour
period per day;
(B) shall only be for longer than a 3-hour period per day--
(i) for mission essential reasons; and
(ii) as infrequently as practicable and in no case
for more than 10 days per year; and
(C) shall in no case be for longer than a 6-hour period per
day.
(c) Notice.--
(1) In general.--Except as provided in paragraph (2), the
Secretary of the Air Force shall--
(A) keep appropriate warning notices posted before
and during any temporary closure; and
(B) provide notice to the Secretary, public, and
relevant stakeholders concerning the temporary
closure--
(i) at least 30 days before the date on which
the temporary closure goes into effect;
(ii) in the case of a closure during the
period beginning on March 1 and ending on May
31, at least 60 days before the date on which
the closure goes into effect; or
(iii) in the case of a closure described in
paragraph (3) or (4) of subsection (b), at
least 90 days before the date on which the
closure goes into effect.
(2) Special notification procedures.--In each case for which
a mission-unique security requirement does not allow for the
notifications described in paragraph (1)(B), the Secretary of
the Air Force shall work with the Secretary to achieve a
mutually agreeable timeline for notification.
(d) Maximum Annual Closures.--The total cumulative hours of
temporary closures authorized under this section with respect to the
BLM land shall not exceed 100 hours annually.
(e) Prohibition on Certain Temporary Closures.--The northernmost
area identified as ``Newfoundland's'' on the map described in section
101(1) shall not be subject to any temporary closure between August 21
and February 28, in accordance with the lawful hunting seasons of the
State of Utah.
(f) Emergency Ground Response.--A temporary closure of a portion of
the BLM land shall not affect the conduct of emergency response
activities on the BLM land during the temporary closure.
(g) Livestock.--Livestock authorized by a Federal grazing permit
shall be allowed to remain on the BLM land during a temporary closure
of the BLM land under this section.
(h) Law Enforcement and Security.--The Secretary and the Secretary
of the Air Force may enter into cooperative agreements with State and
local law enforcement officials with respect to lawful procedures and
protocols to be used in promoting public safety and operation security
on or near the BLM land during noticed test and training periods.
SEC. 104. LIABILITY.
The United States (including all departments, agencies, officers,
and employees of the United States) shall be held harmless and shall
not be liable for any injury or damage to any individual or property
suffered in the course of any mining, mineral, or geothermal activity,
or any other authorized nondefense-related activity, conducted on the
BLM land.
SEC. 105. COMMUNITY RESOURCE ADVISORY GROUP.
(a) Establishment.--Not later than 90 days after the date of
enactment of this Act, there shall be established the Utah Test and
Training Range Community Resource Advisory Group (referred to in this
section as the ``Community Group'') to provide regular and continuing
input to the Secretary and the Secretary of the Air Force on matters
involving public access to, use of, and overall management of the BLM
land.
(b) Membership.--
(1) In general.--The Secretary shall appoint members to the
Community Group, including--
(A) 1 representative of Indian tribes in the vicinity
of the BLM land, to be nominated by a majority vote
conducted among the Indian tribes in the vicinity of
the BLM land;
(B) not more than 1 county commissioner from each of
Box Elder, Tooele, and Juab Counties, Utah;
(C) 2 representatives of off-road and highway use,
hunting, or other recreational users of the BLM land;
(D) 2 representatives of livestock permitees on
public land located within the BLM land;
(E) 1 representative of the Utah Department of
Agriculture and Food; and
(F) not more than 3 representatives of State or
Federal offices or agencies, or private groups or
individuals, if the Secretary determines that such
representatives would further the goals and objectives
of the Community Group.
(2) Chairperson.--The members described in paragraph (1)
shall elect from among the members of the Community Group--
(A) 1 member to serve as Chairperson of the Community
Group; and
(B) 1 member to serve as Vice-Chairperson of the
Community Group.
(3) Air force personnel.--The Secretary of the Air Force
shall appoint appropriate operational and land management
personnel of the Air Force to serve as a liaison to the
Community Group.
(c) Conditions and Terms of Appointment.--
(1) In general.--Each member of the Community Group shall
serve voluntarily and without compensation.
(2) Term of appointment.--
(A) In general.--Each member of the Community Group
shall be appointed for a term of 4 years.
(B) Original members.--Notwithstanding subparagraph
(A), the Secretary shall select \1/2\ of the original
members of the Community Group to serve for a term of 4
years and the \1/2\ to serve for a term of 2 years to
ensure the replacement of members shall be staggered
from year to year.
(C) Reappointment and replacement.--The Secretary may
reappoint or replace a member of the Community Group
appointed under subsection (b)(1), if--
(i) the term of the member has expired;
(ii) the member has retired; or
(iii) the position held by the member
described in subparagraph (A) through (F) of
paragraph (1) has changed to the extent that
the ability of the member to represent the
group or entity that the member represents has
been significantly affected.
(d) Meetings.--
(1) In general.--The community group shall meet not less than
once per year, and at such other frequencies as determined by 5
or more of the members of the Community Group.
(2) Responsibilities of community group.--The Community Group
shall be responsible for determining appropriate schedules for,
details of, and actions for meetings of the Community Group.
(3) Notice.--The Chairperson shall provide notice to each
member of the Community Group not less than 10 business days
before the date of a scheduled meeting.
(4) Exempt from federal advisory committee act.--The Federal
Advisory Committee Act (5 U.S.C. App.) shall not apply to
meetings of the Community Group.
(e) Recommendations of Community Group.--The Secretary and
Secretary of the Air Force, consistent with existing laws (including
regulations), shall take under consideration recommendations from the
Community Group.
(f) Termination of Authority.--The Community Group shall terminate
on the date that is 10 years after the date of enactment of this Act.
SEC. 106. SAVINGS CLAUSES.
(a) Effect on Weapon Impact Area.--Nothing in this title expands
the boundaries of the weapon impact area of the Utah Test and Training
Range.
(b) Effect on Special Use Airspace and Training Routes.--Nothing in
this title precludes--
(1) the designation of new units of special use airspace; or
(2) the expansion of existing units of special use airspace.
(c) Effect on Existing Military Special Use Airspace Agreement.--
Nothing in this title limits or alters the Military Operating Areas of
Airspace Use Agreement between the Federal Aviation Administration and
the Air Force in effect on the date of enactment of this Act.
(d) Effect on Existing Rights and Agreements.--
(1) Knolls special recreation management area; blm community
pits.--Except as otherwise provided in section 103, nothing in
this title limits or alters any existing right or right of
access to--
(A) the Knolls Special Recreation Management Area; or
(B)(i) the Bureau of Land Management Community Pits
Central Grayback and South Grayback; and
(ii) any other county or community pit located within
close proximity to the BLM land.
(e) Interstate 80.--Nothing in this title authorizes any additional
authority or right to the Secretary or the Secretary of the Air Force
to temporarily close Interstate 80.
(f) Effect on Limitation on Amendments to Certain Individual
Resource Management Plans.--Nothing in this title affects the
limitation established under section 2815(d) of the National Defense
Authorization Act for Fiscal Year 2000 (Public Law 106-65; 113 Stat.
852).
(g) Effect on Previous Memorandum of Understanding.--Nothing in
this title affects the memorandum of understanding entered into by the
Air Force, the Bureau of Land Management, the Utah Department of
Natural Resources, and the Utah Division of Wildlife Resources relating
to the reestablishment of bighorn sheep in the Newfoundland Mountains
and signed by the parties to the memorandum of understanding during the
period beginning on January 24, 2000, and ending on February 4, 2000.
(h) Effect on Federally Recognized Indian Tribes.--Nothing in this
title alters any right reserved by treaty or Federal law for a
Federally recognized Indian tribe for tribal use.
(i) Payments in Lieu of Taxes.--Nothing in this title diminishes,
enhances, or otherwise affects any other right or entitlement of the
counties in which the BLM land is situated to payments in lieu of taxes
based on the BLM land, under section 6901 of title 31, United States
Code.
(j) Wildlife Improvements.--The Secretary and the Utah Division of
Wildlife Resources shall continue the management of wildlife
improvements, including guzzlers, in existence as of the date of
enactment of this Act on the BLM land.
TITLE II--BUREAU OF LAND MANAGEMENT LAND EXCHANGE WITH STATE OF UTAH
SEC. 201. DEFINITIONS.
In this title:
(1) Exchange map.--The term ``Exchange Map'' means the map
prepared by the Bureau of Land Management entitled ``Utah Test
and Training Range Enhancement/West Desert Land Exchange'' and
dated May 7, 2016.
(2) Federal land.--The term ``Federal land'' means the Bureau
of Land Management land located in Box Elder, Millard, Juab,
Tooele, and Beaver Counties, Utah, that is identified on the
Exchange Map as ``BLM Lands Proposed for Transfer to State
Trust Lands''.
(3) Non-federal land.--The term ``non-Federal land'' means
the land owned by the State in Box Elder, Tooele, and Juab
Counties, Utah, that is identified on the Exchange Map as--
(A) ``State Trust Land Proposed for Transfer to
BLM''; and
(B) ``State Trust Minerals Proposed for Transfer to
BLM''.
(4) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(5) State.--The term ``State'' means the State of Utah,
acting through the School and Institutional Trust Lands
Administration.
SEC. 202. EXCHANGE OF FEDERAL LAND AND NON-FEDERAL LAND.
(a) In General.--If the State offers to convey to the United States
title to the non-Federal land, the Secretary shall--
(1) accept the offer; and
(2) on receipt of all right, title, and interest in and to
the non-Federal land, convey to the State (or a designee) all
right, title, and interest of the United States in and to the
Federal land.
(b) Applicable Law.--
(1) In general.--The land exchange shall be subject to
section 206 of the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1716) and other applicable law.
(2) Effect of study.--The Secretary shall carry out the land
exchange under this title notwithstanding section 2815(d) of
the National Defense Authorization Act for Fiscal Year 2000
(Public Law 106-65; 113 Stat. 852).
(3) Land use planning.--The Secretary shall not be required
to undertake any additional land use planning under section 202
of the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1712) before the conveyance of the Federal land under
this title.
(c) Valid Existing Rights.--The exchange authorized under
subsection (a) shall be subject to valid existing rights.
(d) Title Approval.--Title to the Federal land and non-Federal land
to be exchanged under this title shall be in a format acceptable to the
Secretary and the State.
(e) Appraisals.--
(1) In general.--The value of the Federal land and the non-
Federal land to be exchanged under this title shall be
determined by appraisals conducted by 1 or more independent and
qualified appraisers.
(2) State appraiser.--The Secretary and the State may agree
to use an independent and qualified appraiser retained by the
State, with the consent of the Secretary.
(3) Applicable law.--The appraisals under paragraph (1) shall
be conducted in accordance with nationally recognized appraisal
standards, including, as appropriate, the Uniform Appraisal
Standards for Federal Land Acquisitions and the Uniform
Standards of Professional Appraisal Practice.
(4) Minerals.--
(A) Mineral reports.--The appraisals under paragraph
(1) may take into account mineral and technical reports
provided by the Secretary and the State in the
evaluation of minerals in the Federal land and non-
Federal land.
(B) Mining claims.--Federal land that is encumbered
by a mining or millsite claim located under sections
2318 through 2352 of the Revised Statutes (commonly
known as the ``Mining Law of 1872'') (30 U.S.C. 21 et
seq.) shall be appraised in accordance with standard
appraisal practices, including, as appropriate, the
Uniform Appraisal Standards for Federal Land
Acquisition.
(C) Validity examination.--Nothing in this title
requires the Secretary to conduct a mineral examination
for any mining claim on the Federal land.
(5) Approval.--An appraisal conducted under paragraph (1)
shall be submitted to the Secretary and the State for approval.
(6) Duration.--An appraisal conducted under paragraph (1)
shall remain valid for 3 years after the date on which the
appraisal is approved by the Secretary and the State.
(7) Cost of appraisal.--
(A) In general.--The cost of an appraisal conducted
under paragraph (1) shall be paid equally by the
Secretary and the State.
(B) Reimbursement by secretary.--If the State retains
an appraiser in accordance with paragraph (2), the
Secretary shall reimburse the State in an amount equal
to 50 percent of the costs incurred by the State.
(f) Conveyance of Title.--It is the intent of Congress that the
land exchange authorized under this title shall be completed not later
than 1 year after the date of final approval by the Secretary and the
State of the appraisals conducted under subsection (e).
(g) Public Inspection and Notice.--
(1) Public Inspection.--At least 30 days before the date of
conveyance of the Federal land and non-Federal land, all final
appraisals and appraisal reviews for the Federal land and non-
Federal land to be exchanged under this title shall be
available for public review at the office of the State Director
of the Bureau of Land Management in the State.
(2) Notice.--The Secretary or the State, as applicable, shall
publish in a newspaper of general circulation in Salt Lake
County, Utah, a notice that the appraisals conducted under
subsection (e) are available for public inspection.
(h) Consultation With Indian Tribes.--The Secretary shall consult
with any federally recognized Indian tribe in the vicinity of the
Federal land and non-Federal land to be exchanged under this title
before the completion of the land exchange.
(i) Equal Value Exchange.--
(1) In general.--The value of the Federal land and non-
Federal land to be exchanged under this title--
(A) shall be equal; or
(B) shall be made equal in accordance with paragraph
(2).
(2) Equalization.--
(A) Surplus of federal land.--
(i) In general.--If the value of the Federal
land exceeds the value of the non-Federal land,
the value of the Federal land and non-Federal
land shall be equalized by the State conveying
to the Secretary, as necessary to equalize the
value of the Federal land and non-Federal
land--
(I) State trust land parcel 1, as
described in the assessment entitled
``Bureau of Land Management
Environmental Assessment UT-100-06-
EA'', numbered UTU-82090, and dated
March 2008; or
(II) State trust land located within
any of the wilderness areas or national
conservation areas in Washington
County, Utah, established under
subtitle O of title I of the Omnibus
Public Land Management Act of 2009
(Public Law 111-11; 123 Stat. 1075).
(ii) Order of conveyances.--Any non-Federal
land required to be conveyed to the Secretary
under clause (i) shall be conveyed until the
value of the Federal land and non-Federal land
is equalized.
(B) Surplus of non-federal land.--If the value of the
non-Federal land exceeds the value of the Federal land,
the value of the Federal land and the non-Federal land
shall be equalized--
(i) by the Secretary making a cash
equalization payment to the State, in
accordance with section 206(b) of the Federal
Land Policy and Management Act of 1976 (43
U.S.C. 1716(b)); or
(ii) by removing non-Federal land from the
exchange.
(j) Grazing Permits.--
(1) In general.--If the Federal land or non-Federal land
exchanged under this title is subject to a lease, permit, or
contract for the grazing of domestic livestock in effect on the
date of acquisition, the Secretary and the State shall allow
the grazing to continue for the remainder of the term of the
lease, permit, or contract, subject to the related terms and
conditions of user agreements, including permitted stocking
rates, grazing fee levels, access rights, and ownership and use
of range improvements.
(2) Renewal.--To the extent allowed by Federal or State law,
on expiration of any grazing lease, permit, or contract
described in paragraph (1), the holder of the lease, permit, or
contract shall be entitled to a preference right to renew the
lease, permit, or contract.
(3) Cancellation.--
(A) In general.--Nothing in this title prevents the
Secretary or the State from canceling or modifying a
grazing permit, lease, or contract if the Federal land
or non-Federal land subject to the permit, lease, or
contract is sold, conveyed, transferred, or leased for
non-grazing purposes by the Secretary or the State.
(B) Limitation.--Except to the extent reasonably
necessary to accommodate surface operations in support
of mineral development, the Secretary or the State
shall not cancel or modify a grazing permit, lease, or
contract because the land subject to the permit, lease,
or contract has been leased for mineral development.
(4) Base properties.--If non-Federal land conveyed by the
State under this title is used by a grazing permittee or lessee
to meet the base property requirements for a Federal grazing
permit or lease, the land shall continue to qualify as a base
property for--
(A) the remaining term of the lease or permit; and
(B) the term of any renewal or extension of the lease
or permit.
(k) Withdrawal of Federal Land From Mineral Entry Prior to
Exchange.--Subject to valid existing rights, the Federal land to be
conveyed to the State under this title is withdrawn from mineral
location, entry, and patent under the mining laws pending conveyance of
the Federal land to the State.
SEC. 203. STATUS AND MANAGEMENT OF NON-FEDERAL LAND ACQUIRED BY THE
UNITED STATES.
(a) In General.--On conveyance to the United States under this
title, the non-Federal land shall be managed by the Secretary in
accordance with the Federal Land Policy and Management Act of 1976 (43
U.S.C. 1701 et seq.) and applicable land use plans.
(b) Non-federal Land Within Cedar Mountains Wilderness.--On
conveyance to the Secretary under this title, the non-Federal land
located within the Cedar Mountains Wilderness shall, in accordance with
section 206(c) of the Federal Land Policy Act of 1976 (43 U.S.C.
1716(c)), be added to, and administered as part of, the Cedar Mountains
Wilderness.
(c) Non-federal Land Within Wilderness Areas or National
Conservation Areas.--On conveyance to the Secretary under this title,
non-Federal land located in a national wilderness area or national
conservation area shall be managed in accordance with the applicable
provisions of subtitle O of title I of the Omnibus Public Land
Management Act of 2009 (Public Law 111-11).
SEC. 204. HAZARDOUS MATERIALS.
(a) Costs.--Except as provided in subsection (b), the costs of
remedial actions relating to hazardous materials on land acquired under
this title shall be paid by those entities responsible for the costs
under applicable law.
(b) Remediation of Prior Testing and Training Activity.--The
Secretary of the Air Force shall bear all costs of evaluation,
management, and remediation caused by the previous testing of military
weapons systems and the training of military forces on non-Federal land
to be conveyed to the United States under this title.
PURPOSE
The purpose of S. 2383, as ordered reported, is to direct
the Secretary of the Interior and the Secretary of the Air
Force to enter into a memorandum of agreement to authorize the
Air Force to impose limited closures of certain public land
adjacent to the Utah Test and Training Range for military
operations, including enhanced weapons testing and pilot
training, national security and public safety purposes, and to
authorize a land exchange between the Bureau of Land Management
and the State of Utah.
BACKGROUND AND NEED
The Utah Test and Training Range (UTTR), located in the
western Utah desert, is the largest Department of Defense (DOD)
overland airspace test and training range. It is used by the
U.S. Air Force (USAF), U.S. Army, and U.S. Marine Corps. The
UTTR is home to ground and operational training and the testing
of explosive ordinance, weapons, and other military equipment.
In a 2015 report to Congress, the DOD listed several
factors that may ultimately limit the long-term sustainability
of UTTR, including the inability to accommodate more advanced
aircraft and weapons, specifically the F-22 Raptor, F-35 Joint
Strike Fighter, and Long Range Strike Bomber, as well as the
crews to train them. The flight speeds of these aircraft and
weapons require a significant amount of space for testing
purposes. While the current size of UTTR is significant, the
range is not large enough to accommodate training and testing
maneuvers for these aircraft and hypersonic weapons.
As ordered reported, S. 2383 would direct the Secretary of
the Interior and the Secretary of the Air Force to enter into a
memorandum of agreement to allow the Air Force, in consultation
with the Secretary of the Interior, to impose limited closure
of certain lands administered by the Bureau of Land Management
adjacent to the UTTR for military operations, national
security, and public safety purposes.
According to testimony provided to the Committee by the Air
Force, as guided munitions become more accurate and reliable,
the safety footprints become larger due to greater deployment
distances. For safety reasons, the Air Force needs to be able
to close, for limited duration, public access to adjacent
public lands during weapon testing sessions.
S. 2383 will enable the Air Force to continue testing
weapons of significant military importance while ensuring that
adjacent public lands remain open and accessible to the public,
except during limited weapons testing periods.
S. 2383 also provides for an equal value land exchange
between the State of Utah and the Bureau of Land Management
under which the State will convey State school trust lands
located in the vicinity of the UTTR for other public lands that
can be developed by the State, thereby avoiding potential
conflicts with the purposes and mission of the UTTR.
LEGISLATIVE HISTORY
S. 2383 was introduced by Senators Hatch and Lee on
December 10, 2015. The Senate Energy and Natural Resources
Committee's Subcommittee on Public Lands, Forests, and Mining
held a hearing on S. 2383 on April 21, 2016.
In the House of Representatives, Representatives Stewart,
Bishop of Utah, Chaffetz, and Love introduced a similar bill,
H.R. 4579, on February 12, 2016. The House Natural Resources
Subcommittee on Federal Lands held a hearing on H.R. 4579 on
February 25, 2016. The House Natural Resources Committee
ordered H.R. 4579 to be reported, as amended, on March 16,
2016.
The Committee on Energy and Natural Resources met in open
business session on July 13, 2016, and ordered S. 2383
favorably reported as amended.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on July 13, 2016, by a majority voice
vote of a quorum present, recommends that the Senate pass S.
2383, if amended as described herein.
COMMITTEE AMENDMENT
During its consideration of S. 2383, the Committee adopted
an amendment in the nature of the substitute to S. 2383 that
provides for the authorization of temporary closure of certain
public land in adjacent to the UTTR and the exchange of BLM
land and non-Federal land with the State of Utah.
The amendment is described in detail in the section-by-
section analysis, below.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title; Table of contents
Section 1 contains the short title and table of contents.
TITLE I--AUTHORIZATION FOR TEMPORARY CLOSURE OF CERTAIN PUBLIC LAND
ADJACENT TO THE UTAH TEST AND TRAINING RANGE
Section 101. Definitions
Section 1 contains the definitions for title I.
Section 102. Memorandum of agreement
Section 102(a) requires the Secretary and the Secretary of
the Air Force to enter into a memorandum of agreement (MOA) to
authorize the Secretary of the Air Force, in consultation with
the Secretary, to impose limited closures of the BLM land for
military operations and national security and public safety
purposes within one year after the date of enactment. The draft
MOA shall be completed not later than 180 days after enactment,
after which there shall be a 30-day period for public comment
on the draft MOA, including the opportunity for the UTTR
Community Resource Advisory Group to provide comment. The
Secretary shall continue to manage BLM land in accordance with
the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1701 et seq.) and applicable use plans, while allowing for
temporary closure of BLM land. The Secretary is directed to
consult with the Secretary of the Air Force regarding UTTR
Range mission requirements before issuing new use permits or
rights-of-way on the BLM land. The Secretary and the Secretary
of the Air Force shall establish within the MOA a framework for
resolving any disagreements on the issuance of permits or
rights-of way on the BLM land. The term for the MOA shall be
agreed upon by the Secretary and the Secretary of the Air Force
but is not to exceed 25 years. The MOA may be terminated early
should the Secretary of the Air Force determine that the
temporary closure of the BLM land is no longer necessary to
fulfill UTTR mission requirements.
Subsection (b) provides the Secretary the authority to
correct any minor errors in the referenced map.
Subsection (c) states that if corrective action is
necessary on the BLM land due to an action of the Air Force,
the Secretary of the Air Force shall render the BLM land safe
for public use; and appropriately communicate the safety of the
land to the Secretary on the date on which the BLM land is
rendered safe.
Section (d) requires the Secretary to consult with any
federally recognized Indian tribe in the vicinity of the BLM
land before entering into any agreement.
Subsection (e) states that nothing in the title impacts the
management of grazing on the BLM land. The Secretary is
directed to continue grazing management on BLM land pursuant to
applicable law and resource management plans.
Subsection (f) states that nothing in this section
precludes the continuation of the existing memorandum of
understanding between the Department of the Interior and
Department of the Air Force with respect to emergency access
and response.
Subsection (g) withdraws the BLM land, subject to valid
existing rights, from all forms of appropriation under the
public land laws.
Section 103. Temporary closures
Section 103(a) authorizes the Secretary of the Air Force,
in consultation with the Secretary, to require temporary
closures on BLM land if the Secretary of the Air Force
determines that military operations, public safety, or national
security require the temporary closure to public use of any
road, trail, or other portion of the BLM land.
Subsection (b) places limitations on the temporary
closures. Any temporary closures shall be limited to the
minimum areas and time periods during which the Secretary of
the Air Force determines are require to carry out a closure;
shall not occur on a State or Federal holiday, unless notice is
provided; shall not occur on a Friday, Saturday, or Sunday,
unless notice is provided; and shall be for not longer than a
three-hour period per day, if practicable. If closures are
required beyond a three-hour period in a day, such closures
should only be for mission essential reasons; should incur as
infrequently as practicable and in no case for more than 10
days per year; and shall in no case be for longer than a six-
hour period per day.
Subsection (c) requires the Secretary of the Air Force to
post appropriate warning notices before and during and
temporary closures and to provide notice to the Secretary,
public, and relevant stakeholders concerning the temporary
closure at least 30 days in advance. In each case for which a
mission-unique security requirement does not allow for advance
notifications, the Secretary of the Air Force shall work with
the Secretary to achieve a mutually agreeable timeline for
notification.
Subsection (d) limits the total cumulative hours of
temporary closures authorized with respect to the BLM land to
100 hours annually.
Subsection (e) prohibits any temporary closures between
August 21 and February 28 on the northernmost area of the
referenced map, in accordance with the lawful hunting seasons
of the State of Utah.
Subsection (f) states that a temporary closure of a portion
of the BLM land shall not affect the conduct of emergency
response activities on the BLM land during the temporary
closure.
Subsection (g) allows livestock authorized by a Federal
grazing permit to remain on the BLM land during a temporary
closure of the BLM land.
Subsection (h) authorizes the Secretary and the Secretary
of the Air Force to enter into cooperative agreements with
State and local law enforcement officials with respect to
lawful procedures and protocols to be used in promoting public
safety on or near BLM land during test and training procedures.
Section 104. Liability
Section 104 specifies that the United States (including all
departments, agencies, officers, and employees of the United
States) shall be held harmless and shall not be liable for any
injury or damage to any individual or property suffered in the
course of any mining, mineral, or geothermal activity, or any
other authorized nondefense-related activity, conducted on the
BLM land.
Section 105. Community Resource Advisory Group
Section 105(a) establishes the UTTR Community Resource
Advisory Group (Community Group) to provide regular and
continuing input to the Secretary and the Secretary of the Air
Force on matter involving public access to, use of, and overall
management of the BLM land within 90 days of the Act's
enactment.
Subsection (b) sets forth the membership of the Community
Group as follows: one representative of Indian tribes in the
vicinity of the BLM land; not more than one county commissioner
from each of Box Elder, Tooele, and Juab Counties, Utah; two
representatives of off-road and highway use, hunting, or other
recreational users of the BLM land; two representatives of
livestock permittees on public land within the BLM land; one
representative of the Utah Department of Agriculture and Food;
and not more than three representatives of State or Federal
offices or agencies, or private groups or individuals. The
Community Group members shall elect a Chairperson and a Vice-
Chairperson. Additionally, the Secretary of the Air Force is
directed to appoint appropriate Air Force operational and land
management personnel to serve as a liaison to the Community
Group.
Subsection (c) outlines the terms and conditions of
appointment to the Community Group. Each member shall serve
voluntarily and without compensation, and shall be appointed
for a term of four years. The Secretary shall select one half
of the original members of the Community Group to serve for a
term of four years and the other half to serve for a term of
two years in order to ensure that replacement of members are
staggered from year to year. The Secretary may reappoint or
replace a member of the Community Group if the term of the
member has expired; the member has retired; or the position
held by the member has changed to the extent that the member's
ability to represent the group or entity has been significantly
affected.
Subsection (d) directs the Community Group to hold at least
one meeting per year and sets forth the Community Group's
responsibilities and notice requirements. This subsection
further exempts the Community Group from the Federal Advisory
Committee Act (5 U.S.C. App.).
Subsection (e) requires the Secretary and the Secretary of
the Air Force, consistent with existing laws and regulations,
to consider recommendations from the Community Group.
Subsection (f) terminates the Community Group ten years
after the date of enactment of the Act.
Sec. 106. Savings clauses
Section 106(a) clarifies that nothing in the Act expands
the boundaries of the weapon impact area of the UTTR.
Subsection (b) states that nothing in the title precludes
the designation of new units of special use airspace or the
expansion of existing units.
Subsection (c) states that nothing in this title limits or
alters the Military Operating Areas of Airspace Use Agreement
between the Federal Aviation Administration and the Air Force
in effect on the date of enactment.
Subsection (d) states that nothing in the title limits or
alters any existing right or right of access to the Knolls
Special Recreation Management Area; or the BLM Community Pits
Central Grayback and South Grayback; and any other county or
community pit location within close proximity to the BLM land.
Subsection 106(e) states that nothing in this title
authorizes any additional authority or right to the Secretary
or the Secretary of the Air Force to temporarily close
Interstate 80.
Subsection (f) states that nothing in this title affects
the limitation established under section 2815(d) of the
National Defense Authorization Act for Fiscal Year 2000 (Public
Law 106-55).
Subsection (g) states that nothing in this title affects
the memorandum of understanding entered into by the Air Force,
BLM, the Utah Department of Natural Resources, and the Utah
Division of Wildlife Resources relating to the reestablishment
of bighorn sheep in the Newfoundland Mountains.
Subsection (h) states that nothing in this title alters any
right reserved by treaty or Federal law for a Federally
recognized Indian tribe for tribal use.
Subsection (i) states that nothing in this title
diminishes, enhances, or otherwise affects any other right or
entitlement of the counties in which the BLM land is situated
to payments in lieu of taxes based on the BLM land, under 31
U.S.C. 6901.
Subsection (j) directs the Secretary and the Utah Division
of Wildlife Resources to continue the management of wildlife
improvements, including guzzlers, in existence as of the date
of enactment.
TITLE II--BUREAU OF LAND MANAGEMENT LAND EXCHANGE WITH THE STATE OF
UTAH
Section 201. Definitions
Section 201 contains the definitions for title II.
Section 202. Exchange of Federal land and non-Federal land
Section 202(a) specifies the terms of a land exchange. If
the State offers to convey to the United States title to the
non-Federal land, the Secretary is directed to accept the offer
and upon receipt of all right, title, and interest in and to
the non-Federal land, convey to the State (or a designee) all
right, title, and interest of the United States in and to the
Federal land.
Subsection (b) subjects the land exchange to section 206 of
the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1712) and other applicable law. The Secretary is directed to
carry out the land exchange notwithstanding Public Law 106-65.
Prior to the conveyance of the Federal land under this title,
the Secretary is not required to undertake any additional land
use planning under section 202 of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1712).
Subsection (c) subjects the authorized exchange to valid
existing rights.
Subsection (d) requires title to the Federal land and non-
Federal land to be exchanged in a format acceptable to the
Secretary and the State.
Subsection (e) requires that the value of the Federal land
and the non-Federal land to be exchanged be determined by
appraisals conducted by one or more independent and qualified
appraisers. The Secretary and the State may agree to use an
independent and qualified appraiser retained by the State. The
appraisals must be conducted in accordance with nationally
recognized appraisal standards, and may take into account
mineral and technical reports provided by the Secretary and the
State. An appraisal shall be submitted to the Secretary and the
State for approval, and is valid for three years after the
approval date. The cost of the appraisal shall be paid equally
by the Secretary and the State.
Subsection 202(f) sets forth the intent of Congress for the
authorized land exchange to be completed not later than one
year after the date of final approval by the Secretary and the
State of the conducted appraisals.
Subsection (g) requires that at least thirty days before
the date of conveyance of the Federal land and non-Federal
land, all final appraisal and appraisal reviews for the Federal
land and non-Federal land to be exchanged shall be available
for public review at the office of the State Director of the
BLM in the State. The Secretary or the State, as appropriate,
shall publish notice that the appraisals are available for
public inspection.
Subsection (h) requires the Secretary to consult with any
federally recognized Indian tribe in the vicinity of the
Federal land and non-Federal land to be exchanged before the
completion of the land exchange.
Subsection (i) requires that the value of the Federal land
and non-Federal land to be exchanged under this title shall be
equal or shall be made equal in accordance with the outlined
equalization process. Specifically, if the value of the Federal
land exceeds the value of non-Federal land, the values shall be
equalized as necessary by the State conveying to the Secretary
certain parcels of State Trust land. If the value of non-
Federal land exceeds the value of Federal land, the values
shall be equalized as necessary by the Secretary making a cash
payment to the State or by removing non-Federal land from the
exchange.
Subsection (j) requires that if the Federal land or non-
Federal land to be exchanged under this title is subject to a
lease, permit, or contract for the grazing of domestic
livestock in effect on the date of acquisition, the Secretary
and the State shall allow grazing to continue for the remainder
of the term of the lease, permit, or contract. To the extent
allowed by Federal or State law, on expiration of any grazing
lease, permit, or contract, the holder shall be entitled to a
preference right to renew the lease, permit, or contract.
Nothing in this title prevents the Secretary or the State from
cancelling or modifying a grazing permit, lease, or contract if
the Federal land or non-Federal land subject to the permit,
lease, or contract is sold, conveyed, transferred, or leased
for non-grazing purposes by the Secretary or the State. If non-
Federal land conveyed by the State under this title is used by
a grazing permittee or lessee to meet the base property
requirements for a Federal grazing permit, the land shall
continue to qualify as a base property for the remaining term
of the lease or permit and the term of any renewal or
extension.
Subsection (k) withdraws from the Federal land to be
conveyed to the State under this title from mineral location,
entry, and patent under the mining laws, subject to valid
existing rights, pending conveyance of the Federal land to the
State.
Section 203. Status and management of non-Federal land acquired by the
United States
Section 203(a) requires that, upon conveyance to the United
States, the non-Federal land shall be managed by the Secretary
in accordance with applicable law and land use plans.
Subsection (b) requires that, upon conveyance to the United
States, the non-Federal land located within the Cedar Mountain
Wilderness shall be added to, and administered as a part of,
the Cedar Mountain Wilderness.
Subsection (c) requires that, upon conveyance to the United
States, the non-Federal land located in a national wilderness
area or national conservation area shall be managed in
accordance with the applicable provisions of subtitle O of
title I of the Omnibus Public Land Management Act of 2009
(Public Law 111-11).
Section 204. Hazardous materials
Section 204(a) requires that the costs of remedial actions
relating to hazardous materials on land acquired under this
title shall be paid by those entities responsible for the costs
under applicable law, except as provided for in subsection (b).
Subsection (b) requires that the Secretary of the Air Force
bear all costs of evaluation, management, and remediation
caused by the previous testing of military weapons systems and
the training of military forces on non-Federal land to be
conveyed to the United States under this title.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of costs of this measure has been
provided by the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 10, 2016.
Hon. Lisa Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2383, the Utah Test
and Training Range Encroachment Prevention and Temporary
Closure Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Keith Hall.
Enclosure.
S. 2383--Utah Test and Training Range Encroachment Prevention and
Temporary Closure Act
S. 2383 would require the Bureau of Land Management (BLM)
to exchange 98,000 acres of federal lands in Utah for at least
84,000 acres of land and mineral estate administered by Utah's
School and Institutional Trust Lands Administration (SITLA).
The bill also would impose certain requirements on how BLM
would manage 700,000 acres of federal lands near a military
training range operated by the U.S. Air Force.
Because S. 2383 could affect direct spending, pay-as-you-go
procedures apply. However, CBO estimates that any net change in
direct spending would not be significant over the 2017-2026
period. Enacting the bill would not affect revenues.
CBO estimates that enacting S. 2383 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2027.
The bill would require BLM to convey 98,000 acres of
federal land in western Utah to SITLA in exchange for at least
84,000 acres of state lands. CBO expects that the value of the
federal lands would equal or exceed the value of the state
lands. If the value of the state lands is less than the value
of the federal lands, the state would be required to convey
additional lands in order to equalize values of the exchange.
The federal lands that would be conveyed to SITLA are not
located near mineral resources that are expected to generate
receipts for the federal government under current law.
Conveying those lands would reduce offsetting receipts from
grazing on the affected lands and could reduce receipts from
the development of geothermal resources; however, CBO estimates
that the amount of lost receipts would not be significant and
could be partially offset by proceeds from grazing on the state
lands that BLM would acquire in the exchange.
S. 2383 also would prohibit mineral development on 700,000
acres of federal land located adjacent to the Utah Test and
Training Range and could limit BLM's ability to grant new use
permits or rights-of-way on those lands. Limiting those
activities in the future could reduce offsetting receipts over
the next 10 years; however, based on information from BLM, CBO
estimates that any loss of receipts would be negligible.
S. 2383 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would benefit
the State of Utah and local governments through a land
exchange. The land exchange could increase revenue from
resource development on state trust lands that is used to fund
public schools in Utah. Any costs incurred by the State of Utah
or local governments associated with the land exchange or with
agreements with federal agencies would result from voluntary
commitments.
S. 2383 would impose a private-sector mandate, as defined
in UMRA, by eliminating an individual's existing right to seek
compensation from the federal government for damages occurring
in the course of any authorized nondefense-related activity
conducted on BLM land. Under current law private entities may
seek compensation from the United States in a federal court for
damages committed by persons acting on behalf of the United
States. The cost of the mandate would be the net forgone value
of awards and settlements in such claims. Information from the
Department of the Interior indicates that few, if any, of those
types of claims related to activities on BLM land are brought
against the United States. Because such claims would probably
continue to be uncommon, CBO estimates that the cost of the
mandate would be small and thus would fall below the annual
threshold established in UMRA for private-sector mandates ($154
million in 2016, adjusted annually for inflation).
On May 16, 2016, CBO transmitted a cost estimate for H.R.
4579, the Utah Test and Training Range Encroachment Prevention
and Temporary Closure Act, as ordered reported by the House
Committee on Natural Resources on March 16, 2016. H.R. 4579
contains provisions that are similar to S. 2383, and CBO's
estimate of the costs for those provisions are the same.
The CBO staff contacts for this estimate are Jeff LaFave
(for federal costs), Jon Sperl (for intergovernmental
mandates), and Paige Piper-Bach (for private-sector mandates).
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
REGULATORY IMPACT EVALUATION
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 2383. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 2383, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 2383, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The testimony provided by the Bureau of Land Management and
the Air Force at the April 21, 2016, Subcommittee on Public
Lands, Forests, and Mining hearing on S. 2383 follows:
Statement of Mike Pool, Acting Deputy Director for Operations,
Department of the Interior, Bureau of Land Management
Thank you for the opportunity to present testimony on S.
2383, the Utah Test and Training Range Encroachment Prevention
and Temporary Closure Act, which would allow the U.S. Air Force
(USAF) to periodically use and close to public access
approximately 703,621 acres of public lands (``shared use
area'') surrounding the Utah Test and Training Range (UTTR) in
Box Elder, Juab, and Tooele Counties, Utah. The Administration
supports the appropriate and responsible use of public lands
for military purposes, and appreciates the efforts of Senator
Hatch and the Subcommittee to begin addressing the concerns we
raised in testimony on the House version of this bill. We look
forward to continuing that discussion, but our testimony today
is based on the currently introduced version of the bill. While
we believe that the bill's concept of short, periodic closures
would serve the public interest better than the alternative of
complete withdrawal, reservation, and closure of the lands at
issue, the Administration opposes several provisions in the
bill that would prevent the effective management of these
lands. We would like the opportunity to work with the
Subcommittee and Senator Hatch to address these significant
concerns.
S. 2383 would also direct the exchange of approximately
70,650 acres of State-owned school trust land and approximately
13,886 acres of State-owned school trust mineral estate in Box
Elder, Juab, and Tooele Counties, Utah, for approximately
98,253 acres of public lands in Beaver, Box Elder, Millard,
Juab, and Tooele Counties, Utah. The Administration supports
the completion of major land exchanges that further the public
interest, consolidate ownership of scattered tracts of land to
make them more manageable, and enhance resource protection. The
Administration also supports the concept of this particular
exchange, which would make management of the proposed shared
use area more efficient during periodic closures. We have
several concerns with the land exchange provisions in this
bill, however. For example, some of the public lands proposed
for exchange with the State contain a number of important
resources and uses, including general habitat for the Greater
Sage-Grouse, a historic mining district with several sites
eligible for inclusion on the National Register of Historic
Places, and lands withdrawn for public water reserves. We would
like to work with the Subcommittee and the sponsor to resolve
these concerns.
Finally, S. 2383 would recognize the existence and validity
of certain unsubstantiated claims of road rights-of-way in Box
Elder, Juab, and Tooele Counties, Utah, and require the
conveyance of easements across Federal lands for the current
disturbed widths of these purported roads plus any additional
acreage the respective counties determine is necessary. The
resolution of these disputed claims is not necessary for the
management of the periodic closures around the UTTR.
For this and many other reasons, the Administration
strongly opposes the resolution of these right-of-way claims in
the manner laid out in this bill.
background
Public land withdrawals
Public lands are managed by the Department of the Interior
(DOI) through the Bureau of Land Management (BLM). Public land
withdrawals are formal lands actions that set aside, withhold,
or reserve public land by statute or administrative order for
public purposes. Withdrawals are established for a wide variety
of purposes, e.g., power site reserves, military reservations,
administrative facilities, recreation sites, national parks,
reclamation projects, and wilderness areas. Withdrawals are
most often used to preserve sensitive environmental values and
major Federal investments in facilities or other improvements,
to support national security, and to provide for public health
and safety. Withdrawals of public lands for military use
require joint actions by DOI and the Department of Defense
(DoD). DoD has a number of installations, training areas, and
ranges that are located partially or wholly on temporarily or
permanently withdrawn public lands. Many of these withdrawals
support installations that are critical to the readiness of our
country's Armed Forces. Nationwide, approximately 16 million
acres of public lands are currently withdrawn for military
purposes.
Utah Test & Training Range
The UTTR is a military testing and training area located in
Utah's West Desert, approximately 80 miles west of Salt Lake
City, Utah. The lands in this area are principally salt desert
shrub lands located within the valley bottoms of the Great
Basin. Prominent features surrounding the UTTR include the
Bonneville Salt Flats, the Great Salt Lake, and the Pony
Express and Emigrant Trails. The Fish Springs National Wildlife
Refuge, located south of the UTTR and adjacent to Dugway
Proving Ground, is an example of the springs and wetlands that
sporadically occur in this desert landscape.
Most of the lands that comprise the UTTR--1,690,695 acres--
are public lands withdrawn between 1940 and 1959 for use by the
Armed Forces. According to the USAF, the range contains the
largest block of overland contiguous special use airspace
(approximately 12,574 square nautical miles measured from
surface or near surface) within the continental United States.
It is divided into North and South ranges, with Interstate 80
dividing the two sections. The UTTR's large airspace,
exceptionally long supersonic corridors, extensive shoot box,
large safety footprint area, varying terrain, and remote
location make it an important asset for both training and test
mission capabilities.
Utah School and Institutional Trust Lands Administration
The Utah School and Institutional Trust Lands
Administration (SITLA) manages approximately 3.4 million acres
of land and 4.5 million acres of mineral estate within the
State of Utah. Many of these parcels are interspersed with
public lands managed by the BLM, including in the areas under
consideration in this bill. Although State trust lands support
select public institutions, trust lands are not public lands.
State trust lands generate revenue to support designated State
institutions, including public schools, hospitals, teaching
colleges, and universities.
Public land exchanges
Under FLPMA, 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. FLPMA provides the
BLM with a clear multiple-use and sustained yield mandate that
the agency implements through its land use planning process.
Among other purposes, land exchanges allow the BLM to
acquire environmentally-sensitive lands while transferring
public lands into non-Federal ownership for local needs and the
consolidation of scattered tracts. The BLM conducts land
exchanges pursuant to Section 206 of FLPMA, which provides the
agency with the authority to undertake such exchanges, or when
given specific direction by Congress. To be eligible for
exchange under Section 206 of FLPMA, BLM-managed lands must
have been identified as potentially available for disposal
through the land use planning process. Extensive public
involvement is critically important for such exchanges to be
successful. The Administration notes that the process of
identifying lands as potentially available for exchange does
not include the clearance of impediments to disposal or
exchange, such as the presence of threatened and endangered
species, cultural or historic resources, mining claims, oil and
gas leases, rights-of-way, and grazing permits. Under FLPMA,
this clearance must occur before the exchange can be completed.
The BLM manages 22.8 million acres of public lands within
the State of Utah for a wide range of uses, including energy
production, recreation, livestock grazing, and conservation. In
the recent past, the BLM has completed three large-scale
exchanges with the State of Utah at the direction of Congress
through the Utah Recreational Land Exchange Act of 2009 (P.L.
111-53), the Utah West Desert Land Exchange Act of 2000 (P.L.
106-301), and the Utah Schools and Land Exchange Act of 1998
(P.L. 105-335). Through these exchanges, over 296,000 acres of
Federal land were conveyed to the State of Utah, and the United
States acquired over 596,000 acres from the State.
Revised Statute 2477
Revised Statute (R.S.) 2477 was enacted as part of the
Mining Law of 1866 to promote the settlement and development of
the West. R.S. 2477 was the primary authority under which many
existing State and county highways were constructed and
operated over Federal lands and did not require notification to
the United States because the roads were automatically conveyed
as a matter of law once certain conditions were met. In 1976,
Congress repealed R.S. 2477 through the passage of FLPMA as
part of a national policy shift to retain public lands in
Federal ownership unless disposal ``will serve the national
interest.'' The repeal of R.S. 2477 did not affect valid rights
in existence when Congress passed FLPMA.
Between 2005 and 2012, the State of Utah and 22 counties in
Utah filed 31 lawsuits under the Quiet Title Act, alleging
title to over 12,000 claimed R.S. 2477 rights-of-way. All of
the cases are in Federal district court in Utah, and all but
two are currently pending. Included in the pending lawsuits are
two filed by Juab County, involving 671 claimed R.S. 2477
rights-of-way, one filed by Box Elder County involving 191
claimed rights-of-way, and one filed by Tooele County involving
692 claimed rights-of-way.
s. 2383, utah test and training range encroachment prevention and
temporary closure act
Utah Test & Training Range (Title I)
Title I of S. 2383 would authorize the USAF to periodically
use and close to public access approximately 703,621 acres of
public lands (``shared use area'') surrounding the UTTR in Box
Elder, Juab, and Tooele Counties, Utah. (Note, the text of the
bill mentions 625,643 acres of BLM-managed land, but the BLM
calculates that the legislative map's ``Proposed Exchange
Expansion Areas'' actually total 703,621 acres.) Specifically,
the bill directs the Secretary of the Interior and the
Secretary of the Air Force to enter into a Memorandum of
Agreement (MOA) that provides for continued management of the
shared use area by the BLM and for limited use by the USAF.
Under the legislation, a draft MOA would be required within
90 days of enactment of the bill, followed by a 30-day public
comment period. Also under the bill, the MOA would have to be
finalized within 180 days of enactment. The lands in the shared
use area would remain eligible for county payments under the
DOI Payments in Lieu of Taxes (PILT) program, but would be
subject to use by the USAF. These federal payments to local
governments that help offset losses in property taxes due to
non-taxable Federal lands within their boundaries are not
generally made for military installations. With respect to
civilian land uses, the BLM Resource Management Plans in
existence on the date of enactment would continue to apply to
the shared use area, and the BLM would be required to take over
administration of existing grazing leases and permits on lands
currently owned by the State of Utah that would become Federal
land under the land exchange provisions of the bill.
The bill would allow any BLM-issued grazing leases or
permits in effect on the date of enactment and covering the
shared use area to continue at current stocking levels, subject
to reasonable increases or decreases and reasonable
regulations, policies, and practices. In addition, the
legislation would withdraw the shared use area from all forms
of appropriation under the public land, mining, mineral
leasing, and geothermal leasing laws. Valid existing rights
would be preserved. S. 2383 would also allow the Secretary of
the Air Force to prevent the Secretary of the Interior from
issuing any new use permits or rights-of-way in the shared use
area if the Secretary of the Air Force were to find such uses
to be incompatible with current or projected military
requirements. The USAF would be responsible to take action if
any USAF activity causes a safety hazard on the public lands.
Under Title I, the Secretary of the Air Force could close
the shared use area to the public for up to 100 hours annually,
subject to various time and seasonal limitations, public
notification requirements, and consultation with a community
resource group to be established within 60 days of enactment of
the bill. The community resource group, which would be exempt
from the provisions of the Federal Advisory Committee Act
(FACA), would include representatives of the USAF, Indian
Tribes in the vicinity of the lands at issue, local county
commissioners, recreational groups, livestock grazers, and the
Utah Department of Agriculture and Food. The bill would also
release the United States from liability for any injury or
damage suffered in the course of any authorized nondefense-
related activity on the specified public lands.
Analysis
The Administration believes that the bill's concept of
short, periodic closures would serve the public interest better
than the alternative of complete withdrawal, reservation, and
closure of the shared use area, but we oppose several
provisions in the bill because they would prevent the effective
management of these lands. These provisions include the grant
of USAF authority to prevent the issuance of new use permits
and rights-of-way in the shared use area; limitations on
resource management planning; treatment of current land uses;
timeframes for completing actions required under the bill;
permanent withdrawal of the shared use area from appropriation
under various laws; and more technical matters.
The Administration opposes the provision that would allow
the USAF to preclude the approval of any new use authorizations
or rights-of-way in the shared use area because we believe that
current processes sufficiently protect USAF interests. This is
particularly true with respect to future rights-of-way that may
be needed for electricity transmission projects through this
area. In the past, consultation and cooperation between the BLM
and the USAF have resulted in conditions and stipulations on
new uses. For example, as part of the approval process for the
Kiewit Mine Project in Tooele County, the BLM placed height
restrictions on tailings piles and required intermittent
shutdowns of mining and blasting to accommodate USAF testing
events approximately eight times per year. The Administration
believes that the USAF and DOI could continue to resolve any
resource use conflicts through consultation and
interdepartmental cooperation.
The Administration also opposes any limits on the BLM's
ability to amend or revise its Resource Management Plans (RMPs)
with respect to lands in the shared use area. Since BLM RMPs
form the basis for every action and approved use on the public
lands, they are periodically revised as changing conditions and
resource demands require. Any limits on the planning process
would undermine the collaborative process by which local,
state, and tribal governments, the public, user groups, and
industry work with the BLM to identify appropriate multiple
uses of the public lands. Furthermore, the shared use area
contains major recreational sites that are enjoyed by the
public and have been developed at significant expense. At a
minimum, access to these sites would be discontinued when the
shared use area is closed. In addition, the Administration
notes that many of the timeframes outlined in the bill are not
feasible, especially given the detailed coordination that would
be necessary to draft and finalize the MOA.
The withdrawal under the bill would prohibit many uses that
may not be incompatible with military requirements. Currently,
the BLM has discretion on whether and under what conditions to
authorize these activities. The BLM and USAF currently work
together to ensure compatibility between these types of
resource use activities and national defense requirements. The
Administration believes that this cooperative arrangement
should continue.
Finally, the Administration believes that there should be
an opportunity for periodic review of the withdrawal and shared
use arrangement established under the bill, and provisions
related to termination of the withdrawal and the shared use
arrangement if they were to become unnecessary. Furthermore,
while the USAF would be responsible for implementing the
closures, it is unclear how the 703,621-acre shared use area
could be reliably closed for only hours at a time. We look
forward to working with the Subcommittee and the sponsor to
address these concerns.
Land Exchange (Title II)
Title II of the bill would require the exchange of
approximately 70,650 acres of State-owned land and 13,886 acres
of State-owned mineral estate in Box Elder, Juab, and Tooele
Counties, Utah, for 98,253 acres of public lands in Beaver, Box
Elder, Millard, Juab, and Tooele Counties, Utah. The purpose of
many of these exchanges would be to consolidate ownership of
scattered State parcels within the shared use area discussed
above, to transfer a number of public lands to the State for
economic development, and--in the event that the public lands
are of greater value than the State parcels--to equalize the
exchange by acquiring additional environmentally sensitive
State lands.
The land exchanges would be completed subject to valid
existing rights, and appraisals would be conducted. The
Secretary of the Interior would be required to reimburse the
State of Utah for 50 percent of the appraisal costs. If the
value of the public lands proposed for exchange exceeds the
value of the State lands, the State must convey additional
parcels of trust land in Washington County, Utah. One parcel of
this State land, located near the Arizona-Utah border, contains
critical habitat for the Federally-endangered Holmgren milk-
vetch and is within the West-15 Preserve established by the
U.S. Fish and Wildlife Service in 2006 for preservation of the
plant species.
The remainder of the potential State parcels are located
within the wilderness areas or National Conservation Areas in
Washington County, Utah, established by the Omnibus Public Land
Management Act of 2009 (P.L. 111-11). These additional parcels
must be conveyed in a specific order until their appraised
value matches that of the public lands proposed for exchange.
If the value of the State lands proposed for exchange exceeds
the value of the public lands, however, the Secretary of the
Interior must make a cash equalization payment to the State, in
accordance with the land exchange provisions of FLPMA.
Analysis
The Administration supports the completion of major land
exchanges that consolidate ownership of scattered tracts of
land, thereby easing BLM and State land management tasks and
enhancing resource protection. We have several concerns with
the land exchange provisions in this bill, however, and we
would like the opportunity to work with the Subcommittee and
the sponsor on amendments and other technical modifications to
address these issues.
First, the public lands proposed for exchange with the
State contain a number of important resources and uses, which
include general habitat for the Greater Sage-Grouse, a historic
mining district with several sites eligible for the National
Register of Historic Places, wildlife guzzlers, portions of
active BLM grazing allotments, off-highway vehicle recreational
trails and access points, various utility and railroad rights-
of-way, withdrawals for public water reserves, and lands
withdrawn for a Solar Energy Zone. The Administration would
like the opportunity to work with the Subcommittee and the
sponsor on language and boundary modifications to ensure the
protection of these resources and uses.
Furthermore, the Administration notes that the public lands
proposed for exchange have not yet been analyzed under the
National Environmental Policy Act (NEPA), the Endangered
Species Act (ESA), the National Historic Preservation Act
(NHPA), or the FLPMA public interest determination. The
Administration strongly supports these important review
requirements because they provide for public engagement,
opportunities to consider environmental and cultural impacts,
and mitigation opportunities, and they help to ensure that
unknown or unforeseen issues are not overlooked. As a result,
the Administration would like the opportunity to work with the
Subcommittee and the sponsor on language clarifying that these
exchanges are subject to all parts of the FLPMA Section 206
land exchange process and other important environmental laws.
In addition, the public lands proposed for exchange exceed
the State lands by more than 12,000 acres, and more than 14,000
of the State's acreage is mineral estate that will likely be
nominal in value. This leads to an apparent value difference
from the onset of the exchange. The addition of State land to
equalize values would require the completion of additional
appraisals near the end of the exchange, making it nearly
impossible to meet the 1-year time frame directed under the
bill. This would cause the prior appraisals to become outdated.
On the other hand, the Administration notes that if the
public lands are of lower value than the State lands, any cash
equalization payment made by the Secretary of the Interior to
the State would be capped at 25 percent of the total value of
the lands transferred out of Federal ownership, as required by
the bill's reference to Section 206(b) of FLPMA. Even with this
limitation, however, such a payment could significantly affect
the BLM's other resource priorities. It is typical in
administrative exchanges between governmental entities that all
costs of the exchange, including but not limited to surveys and
clearances, are split equally between the two parties. We trust
that is the intention of S. 2383, but it is not specified and
we recommend that this be made clear.
The Administration would like the opportunity to work with
the Subcommittee and the sponsor on language ensuring adequate
time for conducting appraisals, boundary modifications to
reduce the need for a potential cash equalization payment, and
amendments to provide consistency with FLPMA and other laws and
to address other minor and technical concerns. Furthermore, the
bill and its provisions are open-ended with no sunset date. To
avoid unexchanged lands being held indefinitely without any
certainty as to their status, we believe a 10-year sunset
provision would be reasonable.
Additionally, the Administration opposes an appraisal
taking into account the encumbrance created by mining claims
for purposes of determining the value of the parcel of Federal
land. It is BLM policy that in instances in which Federal land
would be conveyed subject to mining claims, the appraisal would
disregard the presence of the claims. Finally, the
Administration is committed to continuing its adherence to the
Uniform Appraisal Standards for Federal Land Acquisition and
Uniform Standards of Professional Appraisal Practice and
recommends the appraisal process be managed within DOI by the
Office of Valuation Services.
Highway rights-of-way (Title III)
Title III of S. 2383 would recognize the existence and
validity of certain claims of road rights-of-way in Box Elder,
Juab, and Tooele Counties, Utah. It would also require
conveyance to the respective county and the State of Utah as
joint tenants with undivided interests of easements across
Federal lands for the current disturbed widths of the purported
roads plus any additional acreage the respective county
determines is necessary for maintenance, repair, signage,
administration, and use.
Analysis
The Administration strongly opposes Title III for the
following reasons. First, it is difficult for the BLM to
evaluate the potential impacts of Title III's validation of
claimed roads on the public lands based only on the official
transportation maps for Box Elder, Tooele, and Juab counties
referenced in the bill, which we have not yet received for
review. It is unclear whether purported roads included on these
maps coincide with the State and county claims included in the
pending Quiet Title Act lawsuits, but other maps provided to
the BLM show that they do. It is also unclear whether the
official maps include additional purported roads that would be
recognized under this bill. In order to fully evaluate the
impacts of S. 2383 on the public lands, copies of these maps
should be made available for analysis.
Second, regardless of whether the purported roads included
on the official maps referenced in S. 2383 fully coincide with
the State's and counties' pending R.S. 2477 claims, the
Administration does not believe that R.S. 2477 rights-of-way
asserted by State and county governments should be
automatically recognized as valid and existing rights-of-way.
In establishing the validity of an R.S. 2477 claim through the
judicial process, the burden of proof is on the claimant to
demonstrate that they have satisfied the applicable legal
standard.
In contrast, S. 2383 would recognize all county assertions
as valid and establish perpetual rights over public lands
without applying that legal test. We are also troubled that the
bill would give the counties complete discretion to decide
whether additional Federal land outside of the current
disturbed width is necessary for maintenance or other purposes.
S. 2383 would not limit the widths or acreages that could be
claimed as easements, and it is ambiguous as to whether the
Secretary of the Interior would retain the authority to impose
reasonable stipulations and conditions on these easements.
Such reasonable stipulations and conditions, which the BLM
can impose under its current right-of-way authority under Title
V of FLPMA, may be appropriate, for example, to ensure the
continued management and protection of sensitive and critical
resources within the area of these claimed highways. Courts
have determined that BLM can similarly reasonably regulate R.S.
2477 rights-of-way. Therefore, while we support the
identification of reasonable alternatives to Federal court
adjudication of claimed R.S. 2477 rights-of-way, the
Administration strongly opposes this bill's approach to these
claims.
Third, Title III would likely validate many claimed rights-
of-way that cross areas of environmental significance. For
example, the BLM is aware of approximately 35 claimed rights-
of-way located in the Deep Creeks, North Stansbury, Fish
Springs, and Rockwell Wilderness Study Areas (WSAs), and eight
claimed rights-of-way located in the Cedar Mountain Wilderness
Area, which was designated in 2006 (P.L. 109-163). Furthermore,
recognizing the validity of claimed rights-of-way that have not
yet been litigated would limit the BLM's ability to manage
travel and transportation in an approximately 814,000-acre area
designated as priority sage-grouse habitat.
conclusion
Thank you for the opportunity to provide testimony on S.
2383, the Utah Test and Training Range Encroachment Prevention
and Temporary Closure Act. The Administration is committed to
supporting military missions and training needs, while
protecting natural resources and other traditional uses of the
public lands. I would be happy to answer your questions.
----------
Statement of Maj Gen Martin Whelan, Director of Future Operations,
Deputy Chief of Staff for Operations, Headquarters, U.S. Air Force and
Ms. Jennifer L. Miller, Deputy Assistant Secretary of the Air Force for
Installations
The Air Force's operational capabilities are advancing at a
rate that challenges the geographic boundaries of our ranges;
these constraints compromise effective test and evaluation and
our ability to conduct realistic and relevant live training.
One important aspect driving the need for larger geographic
containment is the increasing size of weapon safety footprints.
Paradoxically, as precision guided munitions become more
accurate and reliable, the safety footprints become larger in
part due to design but also due to greater employment
distances. For safety reasons, the Air Force must control, for
the duration of a mission, access by non-mission related
personnel and the public to areas where there is even a very
remote chance that debris or components could land if the
weapon employment went catastrophically wrong. The Air Force's
enviable test safety record is testimony to this extraordinary
level of caution.
In the last 20 months, the Air Force expended over 27,000
munitions in support of OPERATION INHERENT RESOLVE, which is
more than we expended during all of OPERATION IRAQI FREEDOM.
The Air Force's involvement in such combat operations is not
expected to decrease in the future. A well-trained force and
continued testing and training of our improved combat
capabilities are critical to our continued success supporting
these operations. Technological advances incorporated in both
our legacy and newest combat aircraft, and the weapons
associated with those systems, represent an unprecedented leap
in combat capability. These advances enable crews to identify
and engage multiple targets from greater distances with
improved accuracy. The technology that enables the greater
employment distances and the ever increasing precision in
weapons require larger segments of range and airspace to
maintain the historically excellent record of weapons test and
training safety. Safely containing large footprint weapons
testing, like that historically accomplished at the Utah Test
and Training Range (UTTR), is especially challenging. Some
standoff weapon footprints will soon exceed the capability of
our existing range enterprise configuration to provide the
superior live-weapons testing, tactics, and techniques and the
procedures validation environment that has long been a U.S.
strategic advantage in capability and readiness. We are working
diligently and creatively to overcome these limitations. In
some cases, we have relied on modeling and simulation to
accomplish specific events. In other cases, we simply accept
certain levels of artificiality that degrade training quality
for live events at the local and regional level. Given this
gradual drift from realistic local training, it is imperative
that we maintain certain irreplaceable live environments, like
the UTTR, to accomplish those unique and uncompromising test
and training events that require a highly relevant and
realistic environment.
In the past and under select circumstances, the Department
of Defense (DOD) components have assumed administrative
jurisdiction over buffer lands, with full responsibility for
land management. Generally, however, it is not efficient for
the components to expend resources on full-time land management
when all that is required is restricted access for short
periods. Most military missions affecting extended buffer areas
will only last a matter of hours; DOD component jurisdiction
would result in significant additional restrictions on other
government agencies and on compatible public uses such as
recreation, hunting, and grazing.
As I previously stated, the Utah Test and Training Range
provides a singular capability to test our advanced systems and
to improve warfighting capabilities. Additional with the first
operational basing of the F-35 Lighting at Hill AFB, the
current safety buffers will be insufficient to meet future test
and training requirements. If enacted, S. 2383 would provide
the Air Force the capability to employ larger safety buffers at
the UTTR through the temporary closure and use of current
Bureau of Land Management (BLM) land and any State land
transferred to BLM. This capability would only be exercised
when needed, thus resulting in fewer impacts on other Federal,
State, and local agencies and the public. The Air Force and the
Department of the Interior (DOI) would enter into a Memorandum
of Agreement (MOA) to address the management of the affected
lands, and no land would be transferred to the Air Force.
Exercise of the new measures provided in the legislation would
be limited to a maximum of 100 hours per year in increments of
no more than three hours.
This bill is similar to legislation allowing the overlap of
weapon safety footprints on the Cabeza Prieta wilderness in
Arizona. The use of the Cabeza Prieta is an example commonly
cited by the Air Force on how to successfully enable the
military mission while minimizing the impact on other agencies
and the public. We believe that the bill's concept of short,
periodic closures would serve the public interest better than
the alternative of a complete withdrawal, reservation, and
closure of the lands at issue. The Air Force believes that this
bill as it pertains to Air Force mission matters would achieve
the needed capabilities; however, the Air Force acknowledges
the Administration continues to have concerns about several
provisions in S. 2383 (as introduced) that may create
challenges for the effective management of these lands. We
welcome the opportunity to continue to working with the sponsor
and the Department of the Interior to address these concerns.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill as ordered
reported.
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