[Senate Report 115-403]
[From the U.S. Government Publishing Office]
Calendar No. 690
115th Congress } { Report
SENATE
2d Session } { 115-403
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LAKE BISTINEAU LAND TITLE STABILITY ACT
_______
December 4, 2018.--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. 1219]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1219) to provide for stability of title
to certain land in the State of Louisiana, 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:
1. Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Lake Bistineau Land Title Stability
Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Claimant.--The term ``claimant'' means any individual,
group, or corporation authorized to hold title to land or
mineral interests in land in the State of Louisiana with a
valid claim to the omitted land, including any mineral
interests.
(2) Map.--The term ``Map'' means the map entitled ``Lands as
Delineated by Original Survey December 18, 1842 showing the
1969 Meander Line at the 148.6 Elevation Line'' and dated
January 30, 2018.
(3) Omitted land.--
(A) In general.--The term ``omitted land'' means the
land in lots 6, 7, 8, 9, 10, 11, 12, and 13 of sec. 30,
T. 16 N., R. 10 W., Louisiana Meridian, comprising a
total of approximately 229.72 acres, as depicted on the
Map, that--
(i) was in place during the Original Survey;
but
(ii) was not included in the Original Survey.
(B) Inclusion.--The term ``omitted land'' includes--
(i) Peggy's Island in lot 1 of sec. 17, T. 16
N., R. 10 W., Louisiana Meridian; and
(ii) Hog Island in lot 1 of sec. 29 , T. 16
N., R. 10 W., Louisiana Meridian.
(4) Original survey.--The term ``Original Survey'' means the
survey of land surrounding Lake Bistineau, Louisiana, conducted
by the General Land Office in 1838 and approved by the Surveyor
General on December 8, 1842.
(5) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
SEC. 3. CONVEYANCES.
(a) In General.--Consistent with the first section of the Act of
December 22, 1928 (commonly known as the ``Color of Title Act'') (45
Stat. 1069, chapter 47; 43 U.S.C. 1068), except as provided by this
Act, the Secretary shall convey to the claimant the omitted land,
including any mineral interests, that has been held in good faith and
in peaceful, adverse possession by a claimant or an ancestor or grantor
of the claimant, under claim or color of title, based on the Original
Survey.
(b) Confirmation of Title.--The conveyance or patent of omitted
land to a claimant under subsection (a) shall have the effect of
confirming title to the surface and minerals in the claimant and shall
not serve as any admission by a claimant.
SEC. 4. PAYMENT OF COSTS.
(a) In General.--Except as provided in subsection (b), the
conveyance required under section 3 shall be without consideration.
(b) Exception.--Before the conveyance of the omitted land under
section 3, the claimant shall pay to the Secretary any costs incurred
by the Secretary relating to any survey, platting, legal description,
or associated activities required to prepare and issue a patent under
that section.
SEC. 5. MAP AND LEGAL DESCRIPTION.
As soon as practicable after the date of enactment of this Act, the
Secretary shall file, and make available for public inspection in the
appropriate offices of the Bureau of Land and Management, the Map and
legal descriptions of the omitted land to be conveyed under section 3.
PURPOSE
The purpose of S. 1219 is to provide for stability of title
to certain land in the State of Louisiana.
BACKGROUND AND NEED
In 1842, the U.S. government completed a survey of lands in
the State of Louisiana that included the area surrounding Lake
Bistineau. Using the survey's results, Louisiana delineated its
ownership of lands under the Equal Footing Doctrine and
transferred 7,000 acres of land around Lake Bistineau to the
Commissioners of the Bossier Levee District in 1901. Three
years later, the Commissioners of the Bossier Levee District
conveyed this land to private ownership.
In September 1967, the Bureau of Land Management (BLM) re-
surveyed this land and two additional islands in the Lake. This
survey presented a new boundary-line based on what the BLM
believed was the size of Lake Bistineau when Louisiana was
admitted to the Union in 1812. Although BLM published a notice
in the Federal Register two years later stating that this new
survey occurred, many affected landowners were unaware of the
new survey and their resulting clouded title.
Almost 50 years later, in September 2013, BLM notified
landowners that their property appeared ``to be still vested in
the United States'' based on the results of the 1967 survey.
Since then, the Federal government and over 100 private
landowners, with over 50 homes, have been in a dispute over the
ownership of roughly 200 acres of land. S. 1219 seeks to remove
the cloud from the landowners' title.
LEGISLATIVE HISTORY
S. 1219 was introduced by Senator Cassidy on May 24, 2017.
The Subcommittee on Public Lands, Forests, and Mining held a
hearing on S. 1219 on August 22, 2018.
A companion measure, H.R. 3392, was introduced in the House
of Representatives by Congressman Johnson on July 25, 2017.
H.R. 3392 was ordered reported by the Natural Resources
Committee, as amended, on April 11, 2018 (H. Rept. 115-768).
The measure passed the House of Representatives by voice vote
on June 25, 2018.
In the 114th Congress, Congressman Fleming introduced a
similar measure, H.R. 3342, in the House of Representatives on
July 29, 2015. The Natural Resources Committee's Subcommittee
on Federal Lands held a hearing on H.R. 3342 on November 11,
2015. The Natural Resources Committee favorably reported H.R.
3342 on September 6, 2016 (H. Rept. 114-716).
The Senate Committee on Energy and Natural Resources met in
open business session on October 2, 2018, and ordered S. 1219
favorable reported, as amended.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on October 2, 2018, by a majority voice
vote of a quorum present, recommends that the Senate pass S.
1219, if amended as described herein.
COMMITTEE AMENDMENT
During its consideration of S. 1219, the Committee adopted
an amendment in the nature of a substitute. The substitute
amendment strikes the findings and modifies the method to
clarify the clouded title by directing the Secretary of the
Interior (Secretary) to use the Color-of-Title Act (43 U.S.C.
1068) to convey the surface and mineral estate to the affected
claimants.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 provides a short title.
Section 2. Definitions
Section 2 defines key terms.
Section 3. Conveyances
Section 3 directs the Secretary to convey omitted land,
including any mineral interests, to claimants pursuant to the
Color-of-Title Act based on the Original Survey. This section
further makes clear that conveyance of omitted land shall
confirm the title to the surface and minerals and does not
serve as an admission by the claimant.
Section 4. Payment of costs
Section 4 directs the Secretary to make the conveyance to
the claimants without consideration but requires a claimant to
pay any patent-related costs to the Secretary prior to the
conveyance.
Section 5. Map and legal description
Section 5 directs the Secretary to file and make publically
available the map and legal description of the omitted land to
be conveyed.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of the costs of this measure has
been provided by the Congressional Budget Office:
S. 1219 would require the Secretary of the Interior to
convey, without consideration, roughly 230 acres of land and
associated minerals near Lake Bistineau in northwest Louisiana.
Using information from the Bureau of Land Management (BLM), the
Energy Information Administration (EIA), the oil and gas
industry, the state of Louisiana, and other interested parties,
CBO estimates that enacting the bill would reduce offsetting
receipts, which are treated as reductions in direct spending,
by about $1 million over the 2019-2028 period.
Because enacting S. 1219 would affect direct spending, pay-
as-you-go procedures apply. Enacting the bill would not affect
revenues.
CBO estimates that enacting S. 1219 would not increase net
direct spending or on-budget deficits by more than $5 billion
in any of the four consecutive 10-year periods beginning in
2029.
S. 1219 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
Background
The affected lands were omitted from a federal land survey
in 1842. The state of Louisiana subsequently deeded those lands
to the Bossier Levee District, which transferred them to
private individuals. Following a resurvey of the area published
in 1969, BLM determined that the lands, which were then held
privately, fell under federal jurisdiction. In recent years,
BLM and private titleholders have each claimed ownership of the
affected lands and the subsurface mineral estate; however, the
private titleholders are not currently pursuing any remedy
other than legislation similar to S. 1219.
Royalties from ongoing gas production
The affected lands contain one active natural gas well. The
well's operator has suspended royalty payments because of the
perceived uncertainty about ownership of the royalty interest.
Using information from Louisiana, CBO estimates that the
royalties due to the federal government for gas produced from
that land total less than $500,000. In addition, CBO estimates
that any royalties generated from future production of gas from
the existing well would total less than $10,000 over the next
10 years. Under the Mineral Leasing Act, 49 percent of those
amounts would be paid to Louisiana. Because of the uncertainty
regarding when the lease operator will deem the ownership of
the affected minerals resolved and make royalty payments to the
federal government, CBO estimates that there is a 50 percent
probability that those payments will be made over the next 10
years. Thus, enacting S. 1219, which would result in BLM's
disclaiming ownership of the royalty interest, would reduce
expected offsetting receipts by less than $125,000 over the
2019-2028 period.
Royalties from new gas production
The affected lands make up about one-third of a production
unit, which consists of one square mile of land and the
associated minerals. Based on information regarding the average
number of wells drilled on production units in northwest
Louisiana, CBO expects that between three and five additional
wells could be drilled on the unit and that each would produce
about 4 billion cubic feet of gas, nearly all within the first
10 years. That additional production would only occur if gas
prices are high enough to make new production economical.
Using information provided by EIA and individuals working
in the oil and gas industry, CBO expects that new drilling will
not occur on the affected lands unless gas prices at the
wellhead exceed $3.50 per thousand cubic feet (mcf). Under
CBO's April 2018 baseline, gas prices are not expected to
exceed that amount at any point over the next 10 years.
However, CBO's baseline projections of gas prices in each year
represent the midpoint of a range of possible prices. CBO
estimates that the probability that prices will be high enough
to spur new production on the affected lands over the next 10
years ranges from 18 percent to 27 percent in each year and
that the average wellhead price under those scenarios would
range from $5/mcf to $6/mcf.
Because of the perceived uncertainty concerning the
ownership of associated resources, CBO estimates that there is
a 50 percent probability that the federal government will
receive no royalty payments from new wells over the next 10
years, either because operators would choose not to drill new
wells or because they would suspend royalty payments on new
production. After accounting for a range of scenarios with
different prices and production volumes, CBO estimates that the
expected gross federal royalties from new wells on the affected
lands would range from $1 million to $2 million over the next
10 years. Of those amounts, 49 percent would be paid to
Louisiana. On that basis, CBO estimates that, on net, enacting
S. 1219 would reduce offsetting receipts from royalties paid on
production from new wells by between $500,000 and $1 million
over the 2019-2028 period.
Uncertainty
CBO aims to produce estimates that generally reflect the
middle of a range of the most likely budgetary outcomes that
would result if the legislation was enacted. In estimating the
effects of S. 1219, CBO had to account for two major sources of
uncertainty. CBO cannot predict if or when the leaseholder on
the affected lands will deem the dispute over ownership of
those lands settled, which will determine whether any payments
are made to the federal government. CBO also cannot foresee
future gas prices with certainty. The price of gas will
determine whether additional gas is produced from the affected
lands and when that production may occur, which will affect the
amount and timing of any royalty payments the leaseholder would
make to the federal government. Because of those uncertainties,
the budgetary effects of enacting S. 1219 could differ from
those provided in CBO's analysis.
Previous estimate
On June 13, 2018, CBO transmitted a cost estimate for H.R.
3392, the Lake Bistineau Land Title Stability Act, as ordered
reported by the House Committee on Natural Resources on April
11, 2018. The two pieces of legislation are similar, and CBO's
estimates of their budgetary effects are the same.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was reviewed 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. 1219. 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. 1219, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 1219, 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 Department of the Interior at
the February 7, 2018, hearing on S. 1219 follows:
Statement of Brian Steed, Deputy Director for Policy & Programs, Bureau
of Land Management, U.S. Department of the Interior
The Department of the Interior (DOI) appreciates the
opportunity to provide testimony on S. 1219, which, as drafted,
would direct the Secretary of the Interior to convey, through a
formal Disclaimer of Interest, any Federal Interest in lands
adjacent to Lake Bistineau in Section 30, Township 16 North,
Range 10 West (Section 30) Louisiana, including Peggys and Hog
Islands. S. 1219 would eliminate the legal effect on the
ownership of these lands of the Federal survey approved the
Bureau of Land Management (BLM) in 1969 and reaffirm the
original survey approved by the General Land Office (GLO) in
1842.
The Department of the Interior supports the goal of
providing stability to current residents in Section 30 near
Lake Bistineau by resolving their land title conflicts, and
recognizes the Sponsor's commitment to working with the
Department on a fair and equitable resolution. As a general
matter, Secretary Zinke is opposed to the wide-scale sale or
transfer of Federal lands. However, the Secretary will work
with Congress on proposals of this nature that are unique to
local communities and would help resolve longstanding title
conflicts.
federal survey authority
The Land Ordinance of 1785 provided original authority for
the federal government to conduct public land surveys and
provided the mechanism for the sale and transfer of public
domain lands. This authority was historically exercised by the
GLO under the Department of Treasury and under the Department
of the Interior, later becoming part of the BLM's mission. In
addition to being the official surveyor of our nation's public
lands, the BLM has the authority to examine the accuracy of
surveys of Federal interest land and to execute supplemental
surveys of areas within the public domain which may have been
``omitted'' from an original survey. When appropriate, the BLM
is responsible for correcting previous surveys of public lands.
Surveys requiring corrections frequently involve cases with
land that borders bodies of water.
Given this enormous responsibility, the DOI is acutely
aware that the decisions we make and the actions we take can
have long-lasting impacts on communities all across the
country. As such, the Department is committed to being a good
steward of the public land which requires us to be a good
neighbor who is responsive and adaptive to local voices.
lake bistineau boundary
Lake Bistineau is located in Bienville, Bossier, and
Webster Parishes in Louisiana and was formed when the Red River
became blocked by an accumulation of trees and other debris
prior to Louisiana statehood in 1812. The debris was largely
removed in 1845, causing Lake Bistineau to reach its normal
level. Beginning in 1935, a dam was built which recreated an
artificial lake over much of the original (1812) lake bed. This
lake is in place today.
Boundaries along water bodies are called riparian
boundaries, which typically extend to the actual water and
change with the water level. However, in the case of Lake
Bistineau, the boundary line does not move with the water,
because many of the changes that occurred over time occurred
unnaturally, such as the physical removal of debris in 1845.
Under the Equal Footing Doctrine, the states assume title,
including mineral rights, to beds of navigable water bodies, in
their natural condition, up to the Ordinary High Water Mark
(OHWM). All parties agree that the Lake is navigable.
The State of Louisiana and the United States have managed
the boundary of Lake Bistineau at the 148.6 contour line.
a complicated history
In 1838, the GLO conducted the original subdivision survey
of the township which includes a portion of the boundary of
Lake Bistineau. This survey was officially approved in 1842. In
1967, the BLM received a Color-of-Title Application (process
described in detail below) for lands that were omitted from the
original 1838 survey in Section 30. In response, the BLM issued
special instructions calling for the examination and survey of
lands bordering Lake Bistineau in Section 30. After this
review, the BLM determined that an area of land had been
erroneously omitted from the original survey in 1838. These
``omitted lands,'' which accounted for nearly 230 acres, were
identified, surveyed, and platted as public lands, pending
completion of a public comment period and official approval by
the BLM of the changes.
On February 26, 1969, the BLM provided an opportunity for
public engagement by publishing a notice of the plat filing
from the 1967 resurvey in the Federal Register. The BLM also
sent notice letters to several local and State entities and to
individuals, including the original claimant, which are
maintained in the BLM Easter States Office. The BLM did not
receive any protests or comments during the 30-day public
notification period. On March 31, 1969, the resurvey and
extension to the 1838 survey line was officially filed.
A continuing title conflict between the current residents
and the United States was created in 1901 when the state of
Louisiana mistakenly conveyed the omitted public lands to
Bossier Levee District, which subsequently conveyed the lands
to private individuals. In recent years, local residents have
raised concerns about this situation. The title conflict is
further complicated by active oil and gas production in the
Section 30 omitted lands.
In 2013, the BLM responded to a request for information
regarding the status of the lands in this area from several of
the individuals holding a title derived from the 1901 deed from
the State. The BLM responded with an informational letter
containing a brief summary of general laws and information
contained in the BLM records. Three land holders filed an
appeal with the Interior Board of Land Appeals (IBLA) based on
the letter. On September 9, 2014, the IBLA dismissed the appeal
on the basis that the letter was not a formal decision but
rather a summary of the information contained in the BLM
records. The appellants filed for reconsideration, and the IBLA
issued an order upholding the dismissal on February 4, 2015.
public land disposal authority
Federal Land Policy and Management Act of 1976 (FLPMA)
A variety of statutes provide the BLM the authorities
necessary to address issues and disputes in land ownership.
Under FLPMA, the BLM is authorized to transfer or dispose of
lands that have been identified as potentially suitable for
disposal in an approved land use plan or through an amendment
to an existing plan. Under FLPMA, lands may only be disposed of
for no less than their appraised fair market value. Through
these authorities, the BLM has been able to effectively manage
and resolve many land use conflicts.
In limited cases, the DOI has the authority to issue a
Recordable Disclaimer of Interest (RDI) to resolve title
uncertainty. In these instance, the Department provides an
official statement that the United States has no interest in
the lands or mineral estate. A RDI does not grant, convey,
transfer, remise, quitclaim, release or renounce any title or
interest in the lands, nor does a disclaimer release or
discharge any tax, mortgage, deed of trust, or other security
interest in lands that are held by or for the benefit of the
United States. Further, this administrative process is used
where lands have not been surveyed by the BLM, and it cannot be
used in areas where there is an existing Federal interest. The
approval of the survey in 1969 formally identified the Federal
interest in these lands; therefore, this process is not
applicable to this case in the absence of specific legislation
directing the Secretary to issue an RDI.
Color-of-Title Act
The Color-of-Title Act provides a statutory mechanism for
the BLM to resolve certain private party claims on public land.
Any individual, group, or corporation who presents evidence of
having color of title--for example an instrument from a non-
Federal source which erroneously purports to convey title to
public lands--may file a color-of-title claim with the BLM.
Accepted filings grant the applicant a patent conveying clear
title to the lands upon payment of a fair and reasonable sale
price which reflects the current market value of the lands, but
may be discounted to account for improvements made on the land
or previous property taxes paid.
The obligation to establish a valid color-of-title claim is
upon the claimant and the BLM has encouraged the residents in
the Lake Bistineau area to pursue color-of-title opportunities.
The BLM has previously expressed interest in further
discussions with those who hold title derived from the State to
identify ways to streamline the color-of-title process wherever
possible to minimize time and cost.
s. 1219
S.1219 eliminates the legal effect on the ownership of the
land described in the Federal resurvey approved in 1969, which
identified omitted public lands near Lake Bistineau. S. 1219
reaffirms the boundaries identified in the original survey that
was approved in 1842. Finally, S. 1219 directs the Secretary of
the Interior to disclaim any Federal interest for those omitted
lands.
The DOI shares the goal of providing legal certainty to
those who hold title through the State in the approximately 230
acres outlined in S. 1219. However, the Department is concerned
that the bill transfers Federal lands and mineral estate out of
Federal ownership without equitable compensation to U.S.
Taxpayers. We are mindful that legislated transfers of land and
interests in land often promote varied public interest
considerations. In these instances, the balancing of important
public policy considerations, including ensuring a fair return
for the American taxpayer, ultimately rests with Congress. The
Department acknowledges the historical complexities associated
with these lands and recognizes Congress' authority to resolve
title conflicts unique to local communities where the public
benefit may outweigh financial considerations.
We would also like to work with the sponsor on language to
simplify the proposal in order to achieve the sponsor's goals.
conclusion
Thank you for the opportunity to testify on S. 1219. I will
be glad to answer any questions.
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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