HomeMy WebLinkAboutAPA3242ALASKA POWER AUTHORITY
Researched by:
Bruce R. Bedard
Alaska Power Authority
12/07/82
FEDERAL
POWER
SITE
CLASSIFICATION
NO. 443
UPPER'"
SUSITNA RIVER
TALKEETNA MOUNTAIN S
CIRI LANDS 12(8)
VILLAGE RECONVEYANCES
SEC. ll(a) (1)-(3)
PART I I
LAND STATUS
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&LASKA POWER ,AIJTBORITY
LIB
Researched by:
Bruce R. Bedard
~laska Power Authority
12/07/82
RYCOP:t
FEDERAL
POWER
SITE
CLASS.! FICATION
NO. 443
UPP!'R"
SUSITNA RIVER
'TALKEETNA MOUNTAINS
CIRI LANDS 12(Bj
VILLAGE RECONVEYANCES
SEC. ll(a) (1)-(3),.
PART II
LAND STATUS
PROPERTY OF:
Alaska Power Authority:
334 W. 5th Ave.
Anchorage, Alaska, 9950f
L
ALASKA POWER AUTHORITY
Researched by:
Bruce R. Bedard
Alaska Power Authority
12/07/82
FEDERAL
POWER
SITE
CLASSIFICATION
NO. 443
UPPER
SUSITNA RIVER
TALKEETNA MOUNTAINS,
CIRI LANDS 12(8)
VILLAGE RECONVEYANCES
SEC. ll(a) (1)-(3) .
PART II
LAND STATUS
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Treaty of Cession: 1857:
HISTORICAL OVERVIEW
ALASKA LANDS
TALKEETNA MOUNTAINS
PGS #443 -·
March 30, 1867; ratified by the United States May 28t 1867;
exchanged June 20, 1867. (Russia ceded Alaska to the United States
for $7.2 million dollars.)
ARTICLE III
The inhabitants of the ceded terrftory, according to their
choice; reserving their natural allegiance,. may return to Russia
within three years; etc., the uncivilized tribes will be subject to
such laws and regulations as the United States may, from time to
time, adopt in regard to aboriginal tribes of that country. (This
set the pace for native lands and rights.)
The Organic Act of 1884:
The Organic Act of 1884, which established Alaska as a public
land district acknoMledged the existence of aboriginal claims but
reserved any settlement of these claims for a future time.
•• e. "the Indians or other persons in said district shall not
be disturbed in the possession of any lands actually in their use
or occupation or now c 1 aimed by them, but the terms under which
such persons may acquire the title to such 1 ands is reserved for
future legislation by Congress." (This established Native Alaskan
rights to their lands.)
Indian Allotment Act 1906:
Allowing Alaska Natives up to 160 acres each, not subject to
taxation, with no mineral rights, this Act was eliminated by the
Alaska Native Claims Settlement Act, from further entr·y after the
date of passage of ANCSA.
Voting ,~ights and citizenship awarded to Alaska Natives 1934.
Indian Lands Powersite Reserves 1910:
Act of June 25, 1910 (36 Stat. 855, 858, 850; Chap. 431;
U.S~C. 331-336.)
Power Site Reserves on Indian Lands are made under Sections 13
and 14 of this Act.
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Federal Power Act: June 10, 1920
Public Land Order PCS No. 443 established February 15, 1958.
{16 U.S.C. 818} (41 State 1075).
The Federal
withdraw lands
Classifications,
facilities~
.
Power Act of 1920 is the mechanism established to
for Federal Power Projects, Power Site
and Reservoirs as well as lands for support
The Federal Power CorTITlission now ident~}fied as the Federal
Energy Regulatory Commission (FERC) has the jurisdiction of this
Act and has the fi.)a l approva 1 for opening i ands under this Act
that have been withdrawn and are subject to Sec. 24 of this Act
unless superceded by the Congress of the United States.
Amendment to Sec. 24. FPA of June 10, 1920 dated August 26, 1935.
(see PCS 443}
P.C.S. 443 1958:
To be discussed in a separate section of this report
(Talkeetna Mountains. Withdrawal Upper Susitna River Basin).
Alaska Statehood Act July 7, 1958:
Admitting Alas~a to the Union of the United States as its 49th
State.
Sec~ 4 of this Act requires that the State and the people of
Alaska disciaim any rights to any land, the right or title to which
is he 1 d by the United States, except for those 1 ands granted or
confirmed by the statehood Act "Alaska also disclaims any rights to
any lands or other property (including fishing rights) that are
held by Alaska Natives or by the United States retains absolute
jurisdiction over these native lands. These native lands are not
subject to state taxation exc~pt as provided by Congt ... ess. Lands
that are conveyed to an Alaskan Native without restraint or
alienation under the Alaska Native Claims Act are not subject to
this absolute federal jurisdiction and may be treated substantially
the same as other private lands. (This. identified Alaska Native
rights to their lands, and confirmed taxable Native Properties.)
Alaska Native Claims Settlement Act...£:!-: 1971 (ANCSA) December 18, 1971 P.
L. 92-203 as amended P. L. 93-153 Nov. 16, 73, PlL. 94-456 Oct. 4, 76,
P. L. 95-'178 Nov. 15, 77, P. L. 95-600 Nov. 6, 78 P. L. 95-55 Aug. 14,
79, P.L. 96-487 Dec¥ 2, 80.
In 1966, United States Secretary of the Interior Stewart Udall
imposed an i nforma 1 1 and freeze on a 11 A 1 ask a Pub 1 i c Lands. The
freeze was formalized by PLO 4582 pending congressional
consideration'of legislation on Alaska Native Claims.
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These claims were extinguished by direct Congressional action
in 1971 by ANCSA.
Alaska Natives received,· in exchang~, the right to select 44
million acres of public lands and a native fund of $962.5 million
to be paid over a period of years. By ~mendment to the Act the
Natives were given 20 years from. date of conveyance of the land for
that 1 and which is not improved, free of any state or loca 1
taxation to the lands. Native selection rights were given priority
over State selection rights. However, State selections that were
Tentatively Patented (TP), Tentatively Approved (TA), or identified
ty the State prior to January 17, 1969 are recognized and protected
by ANCSA.
Sec. 11(a)(1) village lands 25 townships surrounding any
native village (does not include southeastern Alaska). The
following public lands are withdrawn, subject to valid existing
rights, from a 11 forms of appropriations under the pub 1 i c 1 ands
laws, including the mining and mineral leasing laws, and from
selection under the Alaska Statehood.Act, as amended:
The following lands are excepted from such withdrawal: lands
in the Nationa 1 Park System and 1 ands withdrawn or reserved for
national defense purposes other than Naval Petroleum Reserve No. 4.
(Note: does not include Power Project or Power Site Classification
or Water Power Withdrawals.)
Sec. (11)(a)(2) refers to Sec. (a)(l) lands selected or TA 1 d to the
state withdrawn. .
Sec. (ll)(a)(3) deficiency lands character similar to those on
which the village is located.
Sec. 3. (E) "Public Lands 11 determinations means all federal lands
and interest therein located in Alaska except: (1). the smallest
practicable tract, as determined by the Secretary of Interior,
enclosing land actually used in connection with the administration
of any federal installation, and (2) land selections of the State
of A 1 ask a which have been patented or tentatively approved under
Section 6(g) of the Alaska Statehood Act, as amended or identified
for selection by the. State prior to January 17, 1969.
Sec. 4 (A) all prior conveyances of publ·fc land and water areas in
A 1 aska, or interest therein, pursuant to Section 6 (g) of the
Alaska Statehood Act, shall be regarded as an extinguishment of the
aboriginal title thereto, if any.
(B) All aboriginal titles extinguished etc.
(C) All claims against the United States, the State and all
other persons etc. extinguished~
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Sec. 17-D-2 Creation of the Alaska National Interest Conservation
Act N LCA • P.L. 9 -4 Decem er , 19 sett1ng as1 e 0
mi 1on acres of land for the designation and conservation of
certain public lands in the State of Alaska, including the
designation of units of the National Parks, National Wildlife
Refuge, National Forest, National Wild and Scenic Rivers~ and'
Nation a 1 Wi 1 derness Preservation Systems, and for other purposes.
(Scenic Highway Study, Denali Highway, Parks Highway and Richardson
Edgarton Highway.)
Seco 12 a) 1 Land Selections Villa es. See subsection
11 a a Core owns 1 ps Sect1 ons 9, 120 acres from
{ll)(a)(2) withdrawals and the remainder are selected under 12(b)
selections any remainder of lands to be allocated to the villages
by the region on a village population basis. Sec 12(c} Reg·ional
Lands.
Sec. 13(a) Surveys. Secretary of Interiot', Bureau of Land
Management method or survey.
Sece 14. Conveyance of Lands Villaged. Sec 14(c)(3) Reconveyance
to mun1c·ipal£.govts. for community nee sup to 1,280 (see PL 96-487
Sec. 1405 (43 U.S.C. 1613.)
_pub 1 i c Law 94·:·204 January 2, 1976
ANCSA Amendment:
Sec. 12(a)(3} -PSC 443 Sec. 24 reservations. (See PSC 443 for
further detail.)
Public Law 94-579 October 21, 1976
An Act to establish Ptiblic Land Policy; to establish
guidelines, for its administration; to provide for the management,
protection, development, and enhancement of the Public Lands; JSeC.
701 .. (E) Protection to ANCSA (85 stat. 688, as amended; 43 U .. S ••
1601 et. seq.) excludes any rights to modify, revoke, or change any
of the provisions of ANCSA by this Act).
This Act did protect all existing withdrawals,
classifications, and designations under Sec. 70l(c) until modified
under the provision of this Act or other applicable Law.
Sec. 204(a)~~ Gives the Secretary of Interior the power to modify,
extenJ or revoke wi thdrawa 1 s, but only in accordance with the
provisions and limitations of this section. S2c. 204(1) in the
case of lands under the administration of any department or agency
other than the Department of Interior, the Secretary ,~hall make
modify, and revoke withdrawals only with the consent of the head of
the department or agency concerned, except when the pro'v'i s ions of
Subsection (E) of this Section apply. (FERC-DOE authority should
apply in Sec. 24 withdrawals.)
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POWER SITE CLASSIFICATION
PSC NO. 443
SUBJECT TO SECo 24 FEDERAL POWER ACT
Sixty-sixth Congress Sec. II, Ch. 25 Act the Federal Power Act
established June 10, 1920, established the Authority to classify and
withdraw 1 ands for Federa 11 y Licensed Power Projects and to reserve
Lands for future Power sites known as Power Site Classification.
Sec. 24. that any lands of the United States included in any
proposed project under the provisions of this Act shall from the
date of filing of aepl ication therefor be reserved from entry,
1 ocat ion, or other d 1 s~osa 1 under the laws of the United States
until otherwise directe by the Commission or by Congress. Not1ce
that such application has been made, together with the date of
filing thereof and a description of the lands of the United States
affected thereby; sha11 be filed in the local land office for the
district in which such lands are located. Whenever the Commission
shall determing that the value of any lands of the United States so
applied for, heretofore or hereafter reserved or cla!,:lified as
Power Sites, will not be injured or destroyed for the purposes or
PO'Wer deve 1 opment by 1 oca ti on, fntr~, or se 1 ect ion under the
Publ i <:::Land Laws, the Secreta rt o t e In~eri or, upon notice of
SUCh determination, shall dec are SUCh lands open to TocatiOI}_,
entr:l, or selection, subject to and with a reservation of the right
~he United St~s or its permittees or TTCensees to enter upon,
occupy, and -use any part or a 11 of said ·1 ands necessary, in the
Judgment of the Commission, for the purposes of this Act, which
right shall be expressly reserved in every patent issued for such
lands; and no claim or ri ht to compensat1on shall accrue from the
occupation or use o any o sa 1 an s ~r sa 1 purposes. e
United States or any 1 icensee for any such lands hereunder may
enter thereupon for the Purposes of this Act, upon payment of any
damages to crops, buildings, or other im rovement caused there~ to
the owner thereof, or upon giving a gao and su f1c1ent and to the
United States for the use and benefit of the owner to secure the
~ayment of such damages as may be determined and fixed in an action
brought upon the bond in a Court of competent jurisdiction, said
bond to be in the form prescribed by the Commission~ Provided, that
1 ocati ons, entries, se 1 ecti ons, or fi 1 i ngs heretofore mad~ for
lands reserved as water-ower sites or in connection with
water-power deve 1 opment or e ectri ca transmission may _Q!oce~d to
approval or patent under and subject to the iimitations arid
conditions in this section contained. ·
(Note Sec. 3. uPub 1 i c Lands" -means such 1 ands and interest in
lands owned by the United States as are subject to ~rebate,
appropriation, and disposal undeiPublic-land Laws. It s~all not
include 11 r·eservations 11 ) (16 U.S. C. 818.) (16 U.S.C. 796)
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16 U.S.C. 796 {1)(2) Definitions
1 nPublic Lands 11 means such lands and interest in lands owne~___Qy
t e Un1te tates az are subject to private appropriat1on ancf
disposal under public land laws. It shall not include
"reservations" as hereinafter defined;
(2) 11 Reservations 11 means national forest, tribal lands embraced
Wi1ll Indian reservations, military reservation, and other lands and
interest in lands owned by the United States, and withdrawn,
reserved, or withheld from private appropriation and disposal under
the public land laws, also lands and interest in lands acquired and
held for any public purposes; but shall not include National
Monuments or National Parks; (June 10, 1920, Ch. 285, §3,41 Stat.
1063; Aug. 26, 1935, Ch.687 Title II §201,49 Stat. 838.)
16 U.S.C. 818 Public lands included in project; reservation of lands
from entry. .
Any lands of the United States included in any proposed
project under the provisions of this subchapter shall from the date
of filling of application therefore be reserved from entry,
location, or other land disposal under the laws of the United
States until otherwise directed b~ the Commission or by Congress.
Notice that such application haseen made, tofether with the date
of fi 1 i "r thereof and a description of the ands of the United
States a fected thereby, shall be filled in the local land office
for the district in which such 1 ands are 1 ocated. Whenever the
Commission shall determine that the value of anv lands of the
United States so applied for, or heretofore or he;eafter reserved
or classified as Power Sites, will not be injured or destroyed for
the purposes of Power development by location, entry, or selection
under the public land laws, the Secretary of the Interior, upon
notice of such determination, shall declare such lands open tc
location, entr~, or selection, for such purpose or purposes and
under such restrictions as the Commission may determine, subject to
and w·ith a reservation of the right of the United States or its
permittees or licensees to enter Upon, OC£!JpY, and USe any eart or
all of said. lands necessar~, in the jUdgement or the Comm1ssion,
for the purposes of this su chapter, which right shall be expressly
reserved in every patent issued for such 1 ands; and no c 1 aim or
right to compensation sha l 1 a-ccrue from the occupation or use of
any said 1ands for saia purposes. The United States or any
licensee for any such lands hereunder may enter thereupon for the
purposes of this subchapter, upon payment of any damages to crops,
buildings, or other improvements caused thereby to the o~ner
thereof, or upon giving a good and sufficient bond to the Uni tea
States for the use and the benefit of the owner to secure the
paymen~t of such damages as may be determined and fixed in an action
brought upon the bond in a court of competent juri sdi cti on, said
bond to be in the form prescribed by the Commission; Provided, that
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)
locations, entries, selections, or filings heretofore made fqr
lands reserved as water-Power sites, a~ in connection witfi
water-Power deve1o ment, or electrical transmissio-rr=ma·· rocee~ to
approva or patent under and su ject to t e im1 tat1 ons and
conditions in this section contained; provided further, that before
any lands applied for, heretofore or hereafter reserved, or
classified as Power sites, are declared open to location, entry, or
selection by the Secretar~ of the Interfor, notice of intention to
make such declaration sha 1 6e given to the Governor of the State
within which such lands are located, and such State shall have
ninety days from the date of such notice witn1n ~hisfi ... to file,
under any Statute or regulation applicable thereto, an app1icat1on
for the reservation to the State, or any polit.ical subdivision
thereof, of any 1 ands required as a right-of-way for a pub 1 i c
highway or as a source of material's for the construction and
maintenance of such highways: and a copy of such application snall
be filed with the Federal Power CoJJJllission; and any location,
entry, or se 1 ecti on of such 1 ands, or subse uent patent thereof,
shall be subject to any rights granted t e State ~ursuant to such
application.
(Jun 10, 1920, Ch. 285 §24, 41 Stat. 1075; Aug. 26,1935, Ch. 687,
title II, §211, 49 Stat. 846; May 28, 1948, Ch. 351, 62 Stat. 275.)
AMENDMENTS
1948 -Act May 28, 1948, added second proviso to the last sentence so
that States may apply for reservations of portions of Power sites
released for entry, location, or selection to the States for highway
purposes.
1935 -Act Aug 26, 1935, added "for such purpose or purposes and under
such restrictions as the Commission may determine", substituted "part"
for "chapter" wherever appearing, and eliminated from the Proviso 11 prior
to June 10, 1920" following 11 made".
The Sec. 24 reference to the Public Land Laws, referred intent, are
classified generally to Title 43, Public -Lands. Refer to 43CFR
Part 2340 Subpart 2344 Sec. 2344.03 Authority.
2344.2 General determination under Sec. 24@
2344.3 Petitions for restorations.
Authority: R.S. 2478 43 U.S.C. 1201 .
Source: 35 FR 9556, June 13, 1970, unless otherwise noted.
18 CFR Chapter I. for rights-of-way over Indian Lands; Power
projects see Indians 25CFR161.27.
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Sec .. _21. License rights to Eminent Domain when property cannot be
assfgned by other legal means. (District Court).
Sec. 23. Affects ·on Valid existing rights protection etc. (not
navi,gabl e where dams are proposed) must confonn to State Law only •
Subeart E -Application for License for major unconstructed
proJect. Fedaral Energy Regulatory Commission §4.41 12, 041
dated 12-1-81 Exhibit K. in Part 11,011.
Detail map covering entire project area. Scale shall be such as to
show clearly, but without unnecessary multiplicity of sheets, the
essenti a 1 pet a i 1 s of surveys and of notes as to ownership or right to
occupanc~ of lands within the Project area. (Note: BLM Permit
AK-017-0 96 dated June 27, 1980, and CIRI Villages and Regional
Corporation dated January 4, 1980 .. ) In general a scale of approximately
400 feet to the inch is appropriate for featuref.containing a relatively
large amount of detail, and scales of 1,000 or 2,000 feet to the inch
where there is little detail, etc.
(1) It shall show the project area and the project boundary.
( i)
( i i)
(iii)
(v)
The project area for reservoirs may be shown by metes and
bounds, or by contour, etc.
The project boundary for continuous structures, such as
transmission lines, conduits, roads, etc., may be
described by center or offset lines of survey specifying
distances of the project boundary therefrom.
Except with respect to lands necessary or appropriate for
recreation purposes, for which it is recognized that
add.itional proJect area v1ill generally be required, the
project boundary shall be no more than 200 feet
( hori zonta 1 measurement) frnm the exterior rna rgi n (in
general, high-water level) of reservoirs, nor shall the
width of the rroject area for canals, ditches, pipelines,
transmissionines, roads, and other so~called continuous
structures exceed 200 feet, un 1 ess satisfactory reasons
are g1ven to the contrary, etc.
The project boundary, if described other than by a
contour, shall be accur·ately plotted on the map with
courses and distances fully and legibly shown either
along the plotted boundary or in tabular form on the map.
The project boundary, if described by a contour shall be
accurately plotted on the map with such data as
completely and accurately fixes its location and permits
its recovery in the field. (Note here comments from FERC
May 1982 Cultural Resources is a critical element and can
stop a project. Dr. E. Slatter.)
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(viii)
(Paul Carrier indicated that the lands required for th~
project are tho
1
se minimall.~ necessar~ to con~truct of~~
operate the proJect. Tne r1 ghts in t ose 1 ands must be,
at a minimum, those neC'e$1iary to in~ure the operation of
the proJect. . FERC prefers fee sim~le ownership, but
easements or leases are acc,eptable lan rights. However,
the agreements for those easements and leases must be for
a minimum of fifty years1r~ keeping. with the period of
the license. Generally FERC will be flexible on the
project boundaries. The key in the reservoir area is to
insure sufficient land has been identified to take care
of maximum anticipated inundation. FERC indicated that
the Powe.r Authority is free to awat~d contra 1 of any or
all recreational development within the project
boundaries to a private corporation. Paul indicated that
the temporary facilities, such as construction camps, do
not have to be within the project boundaries, although it
does not adversely affect the license to include them
within the boundary. ) ·
There shall be shown the status as to ownership ~nd the
boundary lines and area of each parcel of land within, or
partly within, the project area, designating separately
lands owned by the applicant, lands to be ac¥uired by the
applicant, lands for which the applicant ho ds rights of
use and occu anc for purposes of the project,
reservations 1n 1cating separately each reservation),
and Public lands (indicating separately lands, full title
to which remains in the United States, and lands in which
the United States retains only an interest). {Native
Lands and Power Site Classifications could be identified
as retaining an interest in land by thH United Statf!s
before patent takes place.) Where the project works
occupy lands not owned by the applicant, but as to which
the applicant holds only an easement, franchise, lease,
or other right of occupancy and use, the map shall show
the nature of such right and shall give appropriate
reference to Exhibit 11 F11 for further details. (See BLM
Permit and CIRI Native Agreement).
Power Site Classification:
PSC No. 443 is a United States Department of the Interior
Geological Survey Powersite Classification withdrawn February 13,
1958, under WRC 1905 compris1ng currently 143,725 Acres primarily
located on the Susitna River, Caribou Creek, and Teklanika River
Basin No. 14. Tafkeetna Mountains, Alaska.
(WRC-Water Resource Council Basin Code USGS.)
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Federal Register:
Pursuant to authority vested to me by the act of March 3, 1879 (20
Stat. 394 43 USC 31) and by Departmental Order No .. 2333 of June 10,
1947 (43 CFR 4623~ 12 F.R. 4025), the following deseribed lands are
hereby classified as power sites insofar as title t~ereto remains
in the United States and subject to valid existinJ r~shts; and the
classification shall have full force and ef ect under the
Qrgv1sions of Sec. 24 of the Act of June 10, 1920, as amended by
Sec. 211 of the Act of August 28! 1935 (16 U.S.C. 818). The lands
classified are all in unsurveyed areas. The locations are referred
ta the U.S. Geological Survey topographic quadrangles and defined
hy limiting elevations. (Note~ Title thereto remains in the
United States.)
SUSITNA RIVER
OLSON PROJECT
Beginning at a point on the Susitna River Longitude
140 1 23'17 1 W., Latitude 62' 40' 50" N., approximately .02 miles
downstream from the mouth of Portage Creek. A 11 1 ands upstream
from this point below the 930-foot contour. See Talkeetna
Mountains D-5 Quadrange 175 acres.
DEVIL CANYON PROJECT
Beginning at a point on the Susitna River Longitude
140'20'40" W., Latitude 62'48'58' N., approximately 1.4 miles
upstream from the mouth of Portage creek. All lands upstream from
this point below the 1,500-Foot contour. See Talkeetna Mountains
D-5, D-4, and D-3 Quadrangels. 9,450 Acres. (Not enough land for
recreation, roads, transmission lines, campsites, etc.)
WATANA PROJECT
Beginning at a point on the Susitna River Longitude
148'34'10', \~., Latitude 62'49 1 23 11 N. approximately 1 .. 5 miles
upstream from Tsusena Creek. All lands upstream from Tsusena
Creek. A 11 1 ands upstream from the point be 1 ow the 1, 910-foot
contour. See Ta 1 keetna Mountains D-4, D-2, and C-2 quadrangles
15,000 Acres. (Not enough lands for recreation, etc., see Devil
Canyon).
VEE PROJECT
Beginning at ·a point on the Susitna River Longitude
148'34'10' W., Latitude 62'49'23' N., approximately 15 miles
upstream from Tsusena Creek. A 11 1 ands upstream from this point
below the 2,000-foot contour. See Talkeetna Mountains C-2, c-1,
and D-1 quadrargels. 12,3000 Acres.
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DENALI PROJECT
Beginning at a point on the Susitna River Longitude
147'12'57 11 W., Latitude 62'57'38 11 N .. , approximately 7.5 miles
upstream from the Clearwater River. All lands upstream from this
point below th'e 2,600-foot contour. See Talkeetna Mountains D-1
and D-2; Gulkana D-6, Healy A-1, A-2; B-1, and B-2 quadrangles.
83,500 Acres.
Teklanika River 21,500 Acres and Caribou Creek 1,800 Acres
(Revoked not subject to Sec. 24.) The area aggregates 143,725
Acres less 23,300 Acres for a remaining total of 120,4254 Acres.
This action signed QY Thomas B. .Nolan, D1rect'or, dated
February 13, 1958. April 18, 1958 notice stated (PSC No~ 443)
Please note subject order in the Fed era 1 Re~i ster of
February 19 at Page 1072 and have the manager post h1 s records
signed by W. HQ Koegher copy to: AA, Area 4 June 1, 1961, DA-74
Sec 24. Determination.
See Document attached.
(Note Denali Planning Block Section 1008 of the Alaska
National Interest Lands Conservation Act (ANILCA). Lands open to
mineral entry and leasing includes the bulk of the lands reserved
under Sec. 24 PSC 443 known as the Dena 1 i Project. ) See map
attached. Lands were open to entry on September 14, 1982. Pub 1 i c
Land Order 2961 (Fairbanks 030474,) dated March 4, 1963 open1ng
lands under Section 24 of Federal Power Act DA-74-Alaska notice to
the Governor of the State was given.
(See attached PLO 2961.)
Pub'lic Law -96-487 December 2, 1980, Section 1311(a) Scenic H'irhway
Study Denali Highway reserving a corridor of one· mile each side o the
existing road$
(See attached).
Letter from State Director, Bureau of Land Management dated May 21,
1970-Revocation of PSC 443 (Revoking Caribou Creek and Teklanika River
Projects).
(See attached.)
PLO 5174 dated 3-9-72. Reference No. 2480 Section 1l(a)(3) withdrawals
Cook Inlet Region Village Selections. Remaining lands to region under
Sec. 12.
(See attached.)
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PLO 5180 dated 3-9-72. Reference No. 2486 Section 17{_Q)(1) withdrawals
public value lands reserved.
(See attached.)
.
PLO 5186 dated 3-15-72. Reference No. 2492 Section 17(0)(1) withdrawals
S:tate selections under the Statehood Act. Public value tind~ reserved.
(See attached.)
* PLO 5255 dated 9-12-72. Reference No. 2515 Amendsd PLO No. 5174, 5179,
5180, and 5186. Sections 1l(a)(3), 17(0)(1), 17(0}(2)(A). Section 12
of the Act by the Village Corporations -(fnclucfedthe lands within PSC
No. 443. No mention in this withdrawal to the cla·ssification other than
say1ng subject to valid existing rights.)
(See attached.)
PLO 5321 dated 12-7-72. Reference No. 2520, 2520(AL· Section 11(a)(3)
and 17(d)(l) withdrawals amended PLO 5173.
(See attached.)
Title 43 -Public Lands Interi~~. Withdrawal for other Agencies.
Subpart 2344-Federal Powe.r Conmdssion
(See attached.) (Sec.24 procedures of the Federal Power Act.)
.
Public Law -92-203. Alaska Native Cleims Settlement Act (ANCSA) dated
December 18, 1971.
(See attached key sections of this Act.)
Draft Locate Easement Study -Fed era 1 State Land Use Po 1 icy Counci 1
(FSLUPC) dated September 6,1974.
(See attached.)
* Pub 1 i c Law 94-204 dated January 2, 1976, Section 12 (a) LJok In 1 et
Region, Inc., Land Exchange.
(See attached,) *Sec. 12(E) condition relating to Sec. 24
within the exter1or Boundaries of PSC No. 443.}
(16 U.SoC. 818.) (16 U.S.C. 791)
Reviews, and Comments. Sec. 24 of the Fed era 1 :..-;.......;...;.__;,~----------...;..,------
Ltr. dated May 3, 1976~ State Director, BL~.
Ltr. dated May 14, 1976~ Regional Solicitor, DOl, Anchorage.
Ltr. dated June 1, 1977, State Director, BLM.
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Ltr. dated June 19, 1977, State Director, BLM.
Ltr\' dated Oct. 27, 1977, Assoc. Solicitor, Div .. of Energy and
Resource$, Wash., D.C.
Ltr. dated Jan. 13, 1978, State Director BLM.
Ltr. dated Feb. 1, 1978, Reg1onal Solic~tor, Anchorage.
Ltr. dated Feb. 1, 1978, Regional Solicitor, Anchorage, Reply II.
Decision to Convey lands within the exterior boundaries of Power Site
.~1assification No" 443 dated Nov. 30l' 1979, ·approved by Congress under
PL 94-204, Sec. 12(E) {89 Stat. 1145, ·1153.) Subject to Sec. 24 of the
Federal Power Act (41 Stat. 1063, 1065; 16 U .. S.C. 791, 818).. This
conveyance shall be considered and treated as a conveyance under ANCSA.
(See attached) October 4, 1976.
Int~r1.m Conveyance dated Feb. 11, 1980, pursuant to Sees. 14(a) and
22(J} of ANCSA {85 Stat. 688, 702, /15; 43 U~S.C. 1601, 1613(a),
1621(j), as amended by Sec. 4 of the Act of October 4, 1976, PL 94-204
(90 Stat. 1934; 1935; 43 U~S.C .. 1611), of the surface and subs~rface
estates.
(See attached).
Interim Conveyance carries a 11 rights of full patent pending a
fina1 survey. IC No. 285
(See Provisions No. 4. See PSC 443 Provisions same as in
Decision to Convey.)
Legal Opinions on the Talkeetna Mountain lands for Cook Inlet Viliage
Entitlements under Section 12{8) of ANCSA (961).
See AA 13358 attached.
L tr • s State Director, BLM dated Apr. 24, 1980, Attorney-Advisor
Office of the Regional Solicitor Alaska Regiondated July 21, 1.980,
attached.
Report _identifying small federal withdrawals i.e.: Power Site
Classifications to be small must b~ sma11er than one township in size
{23 ,040 acres or 1 ess) PSC No. 443 is at present 143,725 acres as
complete withdrawal if within the classification, these separate
projects were treated separately within the classification 443 then all
but the Denali Project would qualify as small federal w1thdrawals.
(Note Congressional intent Sec ll.(a)(3) withdrawals of PL 92-203 dated
December 18, 1971, which apparently was to permit native corporations to
make otherwi.se valid selections from lands located anywhere within
Section ll(a)(3) withdrawals, provided that such lands are no longer
needed for a federal purpose and have not been claimed by the State
pursuant to appropriate provisions of the Al1ska Statehood Act.
(See attached~)
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Report -Easements and declaration of taking Eminent Domain, Land Values
d~ted Aoril 5, 1975.
(See attachedo)
Report -Cook Inlet Land Exchange Settlem~. Refer: PL 94-204
(See attached) dated March 7~ 1976.
Report ... Background hi story of Native rights to 1 and and estab 1 i shment
of an escrow account for proceeds of certain lands, etc.~ dated
April 2, 1976.
BACKGROUND
Section i4(g) of the Settlement Act, which relates to the
protection of v.alid existing rit~hts on lands conveyed under the
Act, provides that after conveyance Native Patentees will become
entitled to all interests 0f the United States or the State of
Jflaska. -
Upon issuance of the Patent, the Patentee sha 11 succeed and
become entitled to any and all interests of the State or the United
States as Lessor, Contractor, Permitter, or Grantor, in any such
leases, contracts, permits, rights-of-way, or easements conveying
the estate patented, and a lease issued under Section 6(G) of the
Alaska Statehood Act shall be treated for all purposes as though
the patent had been issued to the State.
(See attached.)
Ltr. -Alaska Power Authoritx dated Oct. 25, 1978 to Cook Inlet Region,
Inc., to gain access to Native selected lands in the Susitna River
Hydroelectric Project Area.
(See attached.)
Agreemen: bet~Jeen the A 1 as ka Power Authority and the i ndi vidual Cook
Tnlet Native Village Corporations and the Cook Inlet Region, Inc.,
concerning the Susitna Hydropower Feasibility Analysis dated
January 4, 1980. ·
(See attached.) (To be amended.)
U~S. Department of the Interior Permit AK-01?-0096 dated June 27, 1980
for the Sus itna Hydropower Feasi bi 1 i ty Study. ·
(See attached.)
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Legal basis for Archaeological and Historical Preservation laws, etc.
(See attached.)
Various documents relating to navi*able bodies of water. Ltr. Deet. of
Natural Resources Dec. 10, 1979, A-13358 Patent of lands relat1ng to
PSC-443. See D1c 285. Ltr. dated Nov. 30, 1979) Decision to Convey
Lands to Cook Inlet Region, Inc. Page 9,.
(There are no inland water bodies considered to b e navigable
within the described lands.) State of Alaska ~ights to all
navigable bodies of water in the State. If a river or lake is
navigable, the land under the water is owned by the State. If it
is not navigable those acr.es of submerged lands within a Native
Corporation go to the Native Corporation.
Ltr. definations "National Defense Purposes" as defined by the Alaska
Native Claims Settlement Act. Solicitors Opinion Alaska Region
Dec. 29, 1981. Federal Register dated Oct. 22, 1980, Part IV Dept. of
the Interior, BurEau of Land Management. Federal fn~tallations;
implementation of Section 3(E) of the Alaska Native Claims Settlement
Act; Final Rule~ 42 CFR, Part 2650.. (Circular No. 2478) Vol.. 45,
No. 206. Rules and Regulations 11(a)(3) Lands not subject to a Sec.
3(E) ruling.
This ruling will be used to determine which lands held by Federal
Department or Agencies were in actual use during the time
prescribed in the Act, and which ~uch lands were not in actual use
and can be conveyed to Natives (ie: PSC #443 not in use at time of
selection and no license application filed at time of conveyance.)
Written responses were received from the State of Alaska.
,.Lands subject to determi nati onu apply to Federa 1 i nsta 11 ati ons
located within areas withdrawn by Sections 11(a)(1), 16(a), or
16(b) or selected in accordance with Section 14(h)(8)(B). Regional
Corp. Sections 12 or i6.
1. Nature and time of use-this criterion derives from
§2655.0-S(a)(l) that the use must be for a purpose
"directly and necessarily connected with a Federal Agency
as of December 18, 1971.
That the activity must be continuous depending on the
type of use, throughout the appropriate selection period.
The final rule making provides that use by the agency
during the entire selection period is necessary in order
for the lands to be exempt from native selection.
(See attached.)
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ANCSA terms defined Interim Conveyance .... IC-The conveyance granting
to the recipient legal title to unsurveyed lands, and containing
a 11 the reservations, easements, ri ghts-of-_way or other interests
in land, provided by the Act or imposed on the land by applicable
1aws subject only to confinnation by boundary descriptions after
approval of the survey of the conveyed land.
(See attached.)
Ltr.. Easetr~nts 17 ( 6) ANCSA Region a 1 So 1 i ci tor. (No Easements exist in
IC #285 affecting PSC 443.)
(See attached.) dated Dec. 17, 1981.
Notice Section Line Easements.
(See attached.)
Alaska Lana Use Council Federal Policy on Land Exchanges dated
June 14, 1982.
(See attached.)
Chapter 50. §38.,50.010-170 Alaska Statutes Public Lands -Exchange of
State Lands.
(See attached.)
Chapter 09. §09.55.240-460, Article 4, Alaska Statutes Eminent Domain.
(See attached.)
Alaska Statehood Act-Sec. 16. Protection of Rights. Section 18.
Private ways of necessity.
(Refers to just compensation f~r State use of private lands.)
(See attached.)
Condemnation of Alaska Native Lands, 9th Circuit Court of Appeals,
Jan. 15, 1979.
(See attached.)
Winters vs. the United States Ninth Circuit Court of Appea 1 s No. 158,
agreed Oct. 24, 1907, decreed January 6, 1908. Constructing dams on
Indian owned land.
(See attached.)
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ANCSA Section 12(a) Conveyance Agreement.
(See attached.)
ANCSA 12(8) Selection Agreement.
(See attached.)
ANCSA Lake Clark Land Trade.
(See attached .. )
ANCSA Cook Inlet Land Conveyance schedule for the Talkeetna Mountainss
(See attached.)
ltr. United States Department of Interior Geological Survey dated
February 23, 1978, listing USGS Power-site Classifications in Alaska
includes PSC No. 443.
(See attached.)
The Acres American Report submitted to the Federal Energy
Regulatory Committee makes reference to PSG No. 443 and the
reservations to Sec. 24 of the Federal Power Act. It is
highlighted out of context what Sec. 24 rights exist without
reference to 16 USC 818 as amended. Acres does identify the
problem that a controversy exists about the interpretation of the
rights of the landowner and of the applicant under Sec~ 24 of this
Act ..
On July 26, 1982, the Executive Director of the Alaska Power
Authority did request from Wi 1 son L. Condon, Attorney Genera 1 for
the State of Alaska, a legal opinion of Public Law 94-204 and PSC
No. 443.
(See attached letter.)
On September 16, 1982 the Attorney Genera 1 , by Robert E. Price,
Assistant Attorney General, attempted to respond to the letter of
July 26, 1982.
(See attached.)
Article Public Power Weekly attached April 13, 1981.
Ltr. Federal Ene·rgy Regulatory Commission~ vJashington, April 6, 1981,
reference Page 2, Passing of Title in Fee, yet this has occurred on
PSC No. 443 to the CIRI Villages subject to Sec. 24, and upon date of
conveyance'"~ no license existed, so title did pass to a major portion of
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PSC 443 from Devil Canyon to and including the Watana Dam Site area.
Refer to IC No. 285.
(See attached.)
Under Page 2 of this letter, reference is made to a debate in House
on 5.1419, Co11111ents of Repo Ferris, Chairman, House Committee on
Public Lands:
First, no Legislation, Executive Order, or Departmental ruling
should permit th~ patenting or· the title in fee to pass out of
the Federal Government under any conditions. The fee title
should be reserved in perpetuity to the United States.
Public Law 92-203 did in fact do this as well as PL 94-204 and
96-487. This allowed the Alaska Native to select all Federal lands
not used by that Federal Agency.
Village lands would not be subject to Sec. 24 of the Federal Power
Act, but some Regional Selections would be, these Acts also froze
any further patent of land to the State of Alaska and gave superior
rights to Native Corporations.
Once patent has passed to the Natives, these lands are no longer
Public lands (Note here except for Village Corporation lands under
ll{a)(l) of the Act, Regional lands will not be conveyed, or patent
issued if a valid application has been filed prior to obtaining
patent.)
See Sec. 2 of this letter -under this provision of (Section 24)
the Un i tea· states wi 11 have the exclusive right in perpetuity to
use or permit the use of Power Sites on the PlibTic LarJds for power .. pur:poses.
The controversy exists on the fact that once patent has passed they
are no longer Public Lands in addition the natives ·receive all the
rights and interest of the United States and the State of Alaska,
reference conveyance procedures of ANCSA, these rights include
leases~ easements, mineral leases, etc., as if no change took place
upon transfer of title.
In the original withdrawal of PSC No. 443 it clearly states (the
following lands are hereby classified as Power Sites insofar as tfEie
thereto remains in the United ~tates.
Based on this statement, it is clearly defined that once title is
passed by the Bureau of Land Management PSC No. 443 for that
portion, no longer is valid.
Village selections and conveyance of Power Projects under ANCSA.
(See Regional Solicitors Opinion, Oct. 27, 1977.)
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Power site classification does not prevent Native selections within
Sec. ll(a)(l) or Sec. 16 withdrawal areas, but would not allow selection
in other areas, unless approved by Congress.
(See Sec. 12(E~ of f.L. ~4-204 authorizing selection of lands
within the PS No. 443 specifically for CIRI selections
approved by the U.S.Congress.
The original selections of these lands within PSC No. 443 were
withdrawn by the Secretary of Inter·ior by virtue of the authority
vested under Sections 11(a)(3), 17(d)(l), 17(d)2(A) of ANCSA,
Dec. 18, 1971. 85 STAT. 688, 696, 708, and 709 and pursuant to
Executive Order No. 10355 of May 26, 1952 (17 F.R. 4831.)
Reference: Public Land Order No. 5255 dated Sep. 16, 1972,
amending PLO No. 5174, 5179, 5180, and 5186.
On May 3, 1~76, the State Director, Bureau of Land Management,
queried the Regional So 1 i ci tor, Anchorage, A 1 aska, for a
determination of validity of Village seleC'tions within 11(a)(3) and
Sec. 12 withdrawals of PL 92-203 and the authority of conveying
lands within and without the exterior boundaries of PSC No. 443.
On May 14, 1976, the Regi ana 1 Solicitor, Anchorage,
\John W. Burkee III, replied in suJT111ary that lands selected in PSC
No. 443 are lawful selecti;ms and that Congressional Legislation
was established by PL 94-204o Reference 16 U.S.C. 818,
H.R. 94-729, 94th Congress., 1st Sess., 43 (1975).
The Solicitor further confirmed that the language of Section 12(E)
of PL 94-204 does not make any distinctions limited only to Section
12(B) selections which could be made under Vol. A between 12(a) and
12(8) selections. Based upon the construction taken in Section 1
above, the authority to convey lands within PSC 443 is not limited
to 12(B) selections. The only specific iimitation, 11 not
withstanding any other provision of Law to the contrary," is that
any conveyance issued within PSC 443 be subject to the reservations
of Section 24 of the Federal Power Act, 16 U.S.C. 818.
PLO 5255 established the basic purpose to the withdrawal of lands on the
exterior boundaries of PSC 443. The purpose of this order is to
supplement Public Land Order No. 5174, by reserving additional lands for
selection by those Village Corporations that will be determined by the
Secretary to be e 1 i gi b 1 e to make such se 1 ecti ons, and by the Region a 1
Corp. for the approximate area covered by the Cook Inlet Assoc., as
provided for by Section 12 of the Act ANSCA 37 F. R. 18915
(Sept. 16, 1972).
On April 19, 1976, the Director, Bureau of Land Management, issued
a memor>'dum which addressed, among other things, the question of
selection rights 1t1ithin those lands withdrawn by PLO 5255. The
Director set out the Departments position: 11 None of the 1 ands
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described in Paragrap·h 1 of PLO 5255 were a va i 1 ab 1 e for Village
selection until specifically withdrawn for that purpose." The
Director went on to analyze the Department's position, concluding:
11 therefore all section 12(a) Village selections made on lands not
deleted from Para. 1 of PLO 5255, which are described below (Lands
which encompass the exterior boundaries of PSC 443), must be
rejected."
The Dept. present position is based upon an interpretation made
contemporanously to the issuance of PLO 5255 in September 1972 (as
indicated by the coloration of the Series E withdrawal map). Under
the Doctrine .of Contemporaneous Ccnstruction~ as premised in
Udall V. Tallman, 380 UgS. 1 (1965), the Director 1 s interpretation,
unless clearly erroneous, is to be given great difference i!when
faced with a problem of Statutory Construction.11 •
Therefore, except as noted in Section 1 above, the Director 1 s
position on Section 12(a) selections is dispositive of this issue.
June 1, 1977, from the State Director, Bureau of Land Management
questions relating to conveyances of land if a license has been issued
by the Fed era 1 Power Conrni ss ion or if a 1 i cense had been issued, but ha.s
expired, no construction accomplished, if a project by a licensee is
developed would this improved area be covered under Sec. 3(e) of ANSCA
as a federal interest in the land to be retained, or would conveyance be
issued "subject to" the Power Project?
We are of the opinion that Sec. 3(e) would be involved only if the
Power Project is constructed by a Federal Agency. In most cases,
the licensee for a project is a private individual or company.
July 19, 1977 from the State Director, Bureau of Land Management
subject: Conveyance of Lands within PSC 443 to Cook Inlet Region, Inc.
(Complete letter attached.)
Jan. 13~ 1978 from the State Director, Bureau of Land Management refers
to the July 19, 1977, concerns.
(Complete letter attached.)
Feb. 1, 1978 from the Regional Solicitor, Anchov·age two letters same
date, same subject following statements:
This is in reply to your memo dated June 1, 1977, asking three
questions regarding the above referenced subject. This was the
subject of a recent opinion by the Associate Solicitor, Division of
Energy and Resources, dated Oct. 27, 1977. He concluded that Power
Site Classification did not prevent native selections within the
Section ll(a)(l) or Section 16 withdrawal areas, but would prevent
selections in other areas without specific legislative
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authorization, as occurred with Power Site Classification 443. A
1 i cense issued by the FPC wou 1 d be treated as a va 1 i d existing
right to which the conveyance would be sub,iect.
A private ~reject under federal license does not involve a
· Section 3(E){l}etermination under ANCSA signed John M. Allen sante
date: This responds to your memo dated July 17, 1977, and Janua~x
16, . 1978, on the above referenced subject. We conc1 ude that the
authorization in P. L. 94-204 to convey lands in PSC 443 to Cook
Inlet Native Corp. was not recinded by implication by P.La 94-456.
We agree that conveyance of such 1 ands, however, cannot be made
until the conditions of Section 12 of P.L. 94~204 have been
satisfied. Signed ~ohn M. Allen. -
* Feb. 1, 1978 Conveyance of lands within PSC 443 to Cook Inlet Region,
Inc. Authority to convey 1 and in PSC 443 is present once Sec. 12 of
PGL. 94-204 is satisfied. (Note here, is the Alaska Power Authority a
private project? If not then should a 3 E) determination be made on
the remaining 1 ands not yet conveyed?) e Statutes or withdrawa 1 s
relate to federally controlled lands not in use at the time of
conveyance and lands used for federal purposes.
Alaska Power Authority--A quasi State agency.
Alaska Power Administration--A Federal Agency
Oct. 27, 1977 comment opinion Associate Solicitor, Division of Energy
and Rt?.sources, Office of the Solicitor, Washington D.C. (Note: APA
referred in this opinion is referring to the Alaska Power
Administration, a Federal Agency.)
1. Power Site Classification lands included in conveyances.
2. Power Site Reserve lands included in conveyances.
3. J:ower Projects Lands included in conveyances.
Ao Subject to Section 24 FPA.
B. Not subject to Section 24 FPA.
(See attached seven page commentsa)
QUOTf~:
The withdrawal in 1610(a)(l) therefore includes reserved and
appropriated 1 ands (under ANCSA) such as those in a Power Site
Reserve, Power Site Classification, or a Power Project regardless
of whether it was instituted by the Corps of Engineers (COE), the
Alaska Power Administration (APA), or a private license before the
Federal Power Commission (FPC). Since the withdrawal is made
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subject to va 1 i d existing rights and the conveyance of the 1 and
will be made subject to 43 U.S.C. 1613(g) the selecting corporation
wi 11 take the 1 and subject to any outstanding 1 eases, 1 i censes,
permits, or rights-of-way that have been granted to any lic~nsee.
Jhe lands actually used in connection with an federal reject are
E!Xcluded from the selection by v1rtue o t e tenns o Sect1on (E).
By virtue of the differences of the two processes. it is
concluded that Sec. 24 and the procedures established the~eunder do
not apply to lands within any Power Site Classifitation, Power Site
Reservation, Power Project, or License Application. As we have
indicated previously, any selection by the Natives will be conveyed
subject to all the rights, privileges, and the obligations of any
outstanding permit or license issued by the FPC. Any lands
actually being used by the APA or COE wi 11 not be conveyed. Any
la~ds needed for the future use of the APA or COE for easements may
be reserved by the Secretary under the procedures of 43 U.S .. C.
1616(8)
(See Sec. 2(E) ANCSA.)
United States Department of Interior Geological Survey Circular 400,
dated Washington D.C., 1957.
History of Land Classification relating to Water-Power and Storage
Sites.
Intent of the FPA Act of 1920 as amended by the FPA of 1935,
pro vi des a means whereby 1 ands withdrawn because of their
potential water power value, can be made available for oth~r
uses, with the power rights retained by the Government, until
such time as they are required for waterpower development.
Since passage of this Act, public domain land has, with few
exceptions, been withdrawn for power purposes by orders of
Power Site Classification under the Organic Act of the
Geological Survey with full force and effect under Section 24
of the Federa 1 Powar Act. These orders are s i gne·d by the
Director of the Geological Survey.
Section 24 of this Act pro vi des for the di sposa 1 of 1 and
withdrawn for power purposes under this or other Acts with the
Government retaining the power rights.
(See attached Circular 400)
(Note: When lands are transferred under ANCSA, all
Rights of the Government are transferred with it. Does
this relate to a Sec. 24 reservation when title is
subject to Sec. 24 of the FPA?)
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-----... _., .-OW> =
Proceedings of the American Societ Civil En ineers, November 1966.
Reprint U.S. Department of t e nter1or eo og1cat Survey--Water
Resources Site Preservation on Federal Lands by Kenneth W. Sax, M. ASCE.
(See attached.)
.
Section 24 of the FPA specifies the procedures for acquisition or
use of lands classified as valuable for powersites before or after
passage of the Ac·t. This gave the FPC control of the conditional
disposition of all lands w~ich might be classified as valuable for
waterpower purposes. This authority made it possible for the
Secretary of the Interior, through the USGS, to effectively protect
powersite lands by merely classifying them. as such under the
authority provided by the Act of March 3, 1879. (Note here
PSG No. 443 was classified under this Act.) Prior to passage of
the .Federal Power Act, lands could be classified as powersites by
the USGS, but this had not protection, or effect unless they were
also withdrawn by the President or by the Secretary of the Interior
under one of the special Withdrawal Acts. Power Site
Classifications are made by the Director of the USGS and, \'t/hen
approved by the Secretary of Interior, have full force and effect
under the FPA. Sueh classifications are now issued as a Public
Lana Orders ..
Neither classification as a Potential Powersite, nor Federal
Pm-1er Project withdrawal, constitute "withdrawals" in the usual
sense of the word, as the lands may continue to be used for other
noninjurious purposes with the understanding that power development
cannot be precluded by such entry. Conditional difJposals of lands
unre 1 a ted to mi nera 1 deve 1 opment, which affect USGS Power
Classifications, as P~wer Site Reserves, Water Power Designations,
and Power Site Classi\ ications, came under· the jurisdiction of the
FPC (43 CFR 2022.1). Section 24 of the Federal Power Act provides
that restoration to entry for various purposes under the Public
Lands Laws or 1 ands reserved or c 1 ass ifi ed for power deve 1 opment
may be made pursuant to a favorable determination by the FPC to the
effect that such restoration will not injure power value.
Designated·· sites are released for water development either
through Congressional approval of projects to occupy them or
through operation of Public Land Laws (PLO); and their release
involves only the usual procedures applicable to other Federal
Lar1d. Federal site use is first summarized, followed by
non-Federal site use.
When non-federal organizations use faderal land for water
development proJ~cts, it has been a well-established national
policy to retain title of lands essential to such development.
Consent to use the fed~ra 1 1 ands may be given by Congress in a
special enactment that does not require action by a Federal
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Administrator, or Congress may empower a Federal Administrato.r to
authorize the use of public land for the purpose needed.
Most authorizations for use of public lands are given by·the
Secretary of the Interior; however, certain authorizations may be
allowed by other administrators, such as those in national forests.
The Federal Power Act of 1920 overrides all previous acts relating
to rights-of-way for water power, except those involving Indian
allotments, and certain National Parks and National Monuments.
All of the above Acts follow a consistent course, in that a
per·son is not entitled to an easement over any pub 1 i c 1 and for a
reservoir or right-of-way, or both, for re 1 a ted purposes used in
connection with water rights,until he has first acquired a water
right.
The FPC, now FERC, has authority, through its licensing power,
to select for development those non-federal hydroelectric projects
which in their judgement will be: "best adapted to a comprehensive
p 1 an for improvi.ng or deve 1 oping a waterway or waterways for use or·
benefits of interstate or foreign commerce, for the improvement and
utilization of water power development, and for other beneficial
public uses, including recreational purposes". Sec.. lO(a), 41
Stat. 1063, 1068, as amended, 16 U.S.C. 803(a).
Problems:
Site preservation is a concept that deals with anticipated
rather than immediate needs, and with general ideas and po1 icies
rather than with specific plans or designs.
Site preservation of federal lands involves the idea that the
final use of the lands affected need not be decided now, as this is
not an irrevocable action, but rather a declaration--a designation,
a tagging--of one potentially prime land use to be carefully
considered in any decisions as to the final best use of the lands.
In the process of giving clearance to proposed site preservations
actions, 1 and management agencies may confuse the intention of
holding sites for future use with withdrawal for immediate
constr'lcti on.
Sec. 24 of the FPA, has served well to protect powersites, yet
provide a means for allowing noninjurious interim uses. A
difficulty is that when sites in power withdrawals or
classifications have assed to atent unde·r· ... ..-rovision of
Section 4, t ere is no ass 1 gned r1 ght of recovery for reservoir
use unassoci a ted with production of power as there is for power
s1tes. ·
Forestalling the encumbrance of attractive power or storage
sites on fed era 1 1 ands is often made di ffi cu1 t because the 1 ands
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invo'lved are also valuable as transportation or communication
corridors as recreation areas, or as sites for urban or commercial
development, or for agricultural activities. The profit 11 or value
of water development often is one of socio economic benefit,
measured by its indirect effects on the economy or society, and
thus is extremely difficult to measureo
A symposium on withdrawal of public lands for water resources projects
March 3, 1970, Power Planning Committee, Pacific Northwest River Basins
Commission.
(See attached.)
~
Confirmation: Neither classification as a potential Powersite, nor
Federal Power Project withdrawal, constitute "withdrawalsu in the usual
sense of the word, as the 1 ands may continue to be used for other
noninjurious purposes with the understanding that power development
cannot be precluded by such entry.
Th.e procedures for FPC Power withdrawals are as follows:
When an application for license for hydroelectric project is filed
the land is automatically reserved from entry.
The map submitted by applicant (in application for license) is sent
to the Bureau of Land Management, this is done as soon as possible
after the filing.
The area designated in the map constitutes power withdrawals,
however, either the map or wordage/or both, in application
designates the lands withdrawn.
A revi e~' of 1 ands wi th~jrawn is then made by the FPC staff in the
Washington Office.
A check is made to see that the area is on U.S. lands.
An estimate research is made of the withdrawn lands (~o~e
withdrawals overlap).
A tabulation is then made of lands withdrawn, this tapulation of
lands withdrawn is sent to:
(A) Geological Survey.
(B) Bureau of Land Management.
(C) U.S. Forest Service.
(D) Published in the Federal Register.
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(See m1n1ng claims in this document Rights of the
Licensee protected ·(the Mining Cla.ims Restoration Act.)
August 11, 1955 •.
Memorandum of Understanding between the FPC and the Department of the
Interior (July 20, 1966).
' This memorandum, among other things, sets out procedures for other
uses of the withdrawn lands. ·
11 Powersite Sti pu 1 ati on"
Apri 1 3, 1957.
in accordanr;e with the FPC 1 etter of
This letter gives the conditions for use of lands.
Delegation of Authority.
By Executive Order 10355 of Ma~ 25, 1952 ( 43 U.S. C. 141, note).
The President delegated all ofis authority to act on withdrawal
and reservation matters to the Secretary of the Interior under the
conditions prescribed therein.
The conditions of particular interest to this discussion are
in general as follows:
1. That the Secretary of the Interior sha 11 not issue an
Order of Withdrawal affecting land under the authority of
any department or agency other than his own without
concurrence of the head of such department or agency.
2. That any disagreement between two or more Executive
Departments or Agencies shall be referred to the Director
of the Bureau of Budget for considera.tion and adjustment.
The Director may submit the matter to the President for
determination.
3. That the Secretary of the Interior is authorized to issue
rules and regulations and to prescribe pr~cedures for the
exercise of the authority delegated to him.
The Secretary of the Interior has issued rules and
regulations governing withdrawals procedures which are
included in Part 2310 of Title 43 of the Code of Federal
Regulations.
FERC News Re 1 ease, Apri 1 29, 1981, --FERC says State-owned property at
proposed hydropower sites must be federally licensed.
(See attached.)
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Federal Power Commission--Order 415~C {issued December 18, 1972)
statement of general policy to implement procedures for compliance with
the !!_ational Environmental Policy Act of 1969 {NEPA).
(Gives procedures for intervenor status.)
Federal Power Corrmission Rules of Practice and Procedure 18 CFR 1.8
Intervention.
{See attached.)
Form L-2 (Revised October 1975) C-1.5 Federal Energy Regulatory
Co1111nssion terms and condif1ons of 1 {cense of unconstructed major
projects affecting Lands of the United State~.
(See attachE!d. )
Article 5. The licensee, within five years from the date of issuance of
the license, shall acquire title in fee or the right to use in
perpetuity all lands~ other than lanas of the United States, necessary
or appropriate for the construction, maintenance, and operation of the
project. The Licensee or its successors and ~ssigns shall, during the
period of the 1 icens:e, retain pussession of all project eroperty covered
by the 1 i cense as .issued or as 1 ater amended, i nc'l ud1 ng the project
area. The proj ect_~orks, and a 11 franchises, easem1:!nts, water r·i ghts,
and rights of occupancy and use; and none of such properties sha 11 be
vo 1 unta ri 1 y so 1 d, 1 eased, trans ff:rred, abandoned, or otherwise disposed
of without the prior written a.ppr·oval of the Commiss~ion, etc. Refer to
Article 21, timber lands and ,l\rticle 24, destr·uction to property.
Article 18. Free public access to project waters and adjacent project
lands owned by the Licensee for navigation and recreational purposes;
including hunting and fishing, etc.
Page 55938 Federal Register/Vol.48, No~ 219/Friday, Nov. 13, 1981/Rules
and Regulations, Exhibit E Requirements, Exhibit G {map).
(See attached.)
fewer Site Classification No. 443 is probably one of the le:gest Power
Sites that has gone to Patent from the Federal Public Lands. Documents,
Acts, and legal opinions have been researchedrextensively to attempt to
find answers and solutions and a better understanding of PSC 443.
The following summarizes these findings with documentation attached
for possible legal review.
A. The lands in PSC 443 have gune to interim conveyance with
all rights of the United States and the State of Alaska
passed to the Natives.
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B. PSC 443 of Feb. 13, 1958, clearly states the following
described lands are hereby classified as powersites
insofar-as title thereto remains in the United States.
(Title has passed to the Natives under IC#285 dated
Feb. 11, 1980, with reservation for easements with the
exception that it be subject to Sec. 24 of the FPA.)
C. Sec. 24 of the FPA relates to Lands of the United States
not oatented private lan& it also refers to filing of an
application for license and to provide a description of
the lands of the United States no mention of Private
lands subject to Sec. 24 that has gone to 1atent, (no
1iT1ng to date and no such fi 1 i ng is con temp a ted unti 1
Feb. 1983}.
D. Upon issuance of p_atent, the Patentee under ANCSA sha 11
succeed and become entitled to ~ and all interests of
the State or the United States, etc.
(Does this include whatever provisions of Sec. 24
had, and the ~Natives now have and must comply with?)
E. That the Waters conveyed in IC 258 which are within
PSC 443 are not navifcabl e and that the land under the
waters and its subsur ace estate was conveyed at the same
time to the Nat1ves. ·
F. Alaska Statehood Act--Sec. 16, Protection of Right~,
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Sec. 18. Private ways of necessity. (Refers to Just
Compensation for State use of Private Lands)
(Note here--the Alaska Power Authority, by Charter,
has the right to Eminent Do rna in with just
compensation.)
Debate in House on S. · 1419, comments of
Chairman, House Committee on Pub 1 i c Lands,
not leave the control of the Federal
Sept. 5, 1918. Creation of (Sec. 24, FPA).
Rep. Ferris,
title should
Government,
The controversy exist on the fact that once patent has
passed they are no longer Public Lands.
Washington D.C. and Anchorage, Alaska, Regional
Solicitors Opinions Department of the Interior,
solidifies Natives Rights to ownership of " .. 1ds within
Power Site Classifications subject to and not subject to
Sec. 24 of the FPA.
Conclusions of the Washington D.C. Solicitor,
Oct. 27~ 1977 for PSC 443. By virtue of the differences
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of the two processes it is concluded that Sec. 24 and the
procedures established thereunder do not apply to lands
within any Power Site Classification, Power Site
reservation, Power Project or License Application. As we
have indicated previously, any selection by the Natives
wi 11 be conveyed subject to a 11 the rights, pri vi 1 eges,
and the obligations of any outstanding permit or·license
issued by the FPC.~ Any lands actually being used by the
APA or COE wi 11 not be conveyed. Any 1 ands needed for,.
the futur·e use of the 1'PA or COE for easement may be
reserved by the Secretary under the procedures of 43 USC
1616(8).
(See Sec. 3(E) ANCSA.)
K. PSC 443 classified under the Act of March 3, 1279, by the
USGS on Feb,, 13, 1958. According to the Society of Ci vi 1
Engineers--this type of withdrawal had no protective
effect un·l es.s signed by the President or the Secretary of
Interior. They go on to state, that when sites 1n poWer
withdrawals or classifications have passed to patent
under provisions of Sec. 24, there is no assigned riQht
of recovery for reservo1 r use, unassoci a ted w1 th
production of power as there is for power sites •
L. The Federal Energy Commission has recommended that the
impoundment art~a be fee simple to the applicant and
suplorting fac·nities, though it does not have to
inc ude; Recreational lands, Roads, Cam sites, Villa es,
Transmiss1on L1n~s, B5rrow reas. ese can e acqu1re
by other means JEases, easements, etc.
Based on items A though L, it appears that fee simple title to the
recommended lands by FERC be acquired through whatever method the
Alaska Power Authority and the CIRI Native Corporations agree to.
There is no question, that the project lands needed are beyond even
the highest contour 1 eve 1 s reserved in PSC No. 443 is not even
adequate for impoundment only~
It will require acquiring a large area of land beyond the PSC-443
withdrawals, that hctve or will be conveyed to the Native
Corporations. (Remaining lands to be conveyed in Feb. and
July 1983.) To continue a position of attempting to gain any
remaining lands not yet conveyed could have a negative effect under
P.L. 94-204 and the Three Way Land Exchange Agreement between the
Department of Interior, the State of Alaska, and the affected CIR
Village Corporations.
As most of the 1 ands needed by the A 1 as ka Power Authority within
PSC 443 have a 1 ready been conveyed and the rema i rider is of such
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small acreage, it would or could be a costly affair for all parties
involvedJ not to seek solutions through other more ameniable
methods of Land Acquisition.
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SUMf~ARY:
The research involved is by no way complete or concise, nor is the
information contained ·in this reseaY"ch to be construed as any
official position of the United States, its Agencies; or the State
. of Alaska, its h ... ~encies; or the Alaska Power Authority. The
infonnation can be a useful tool in providing direction for a
better unde,.~standing of the Alaska Native Claims Settlement Act,
Power Site Classification No. 443, and other land problems in the
Sus i tna Hydroe 1 ectri c Project study a rea, of the Ta 1 keetna
Mountains. The author of this research paper has to his credit
approximately 27 years of Land Management experience mostly dealing
with Federal and Native Lands. His experience in Native lands date
back to 1965, to current date, and his involvement with the Susitna
Project dates back to September 1, 1980, to current date. His
credentials and affi1iations are untarnished with membership in
such organizatiQns listed below.
1. National Congress of American Indians.
2. Cook Inlet Native Assn., Anchorage, Alaska.
3. National Audubon Society.
4. National member the Smithsonian Associateso
5. American ft1useum of Natura 1 Hi story.
6. Alaska Sports Fishing Association.
7. National Trust for Historic Preservation.
8. National Geographic Society. .
9. Land Use Planning Instructor, University of Alaska,
Masters Degree Level.
He has also served as a principal witness in the U.S. Court of
Claims, U.S. Department of Insular Affairs, U.S. Congressional
Hearings, and other pertinent areas pertaining to energy and land
management problems:
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ATIACHMENTS:
Analysis of Laws Governing Access Across Federal Lands Options for
Access in Alaska. OTA Congress of the United States,
Washington D .. C.
Analysis of Economic Development Rights on Alaska Native Lands.
Bruce R. Bedard, March 27, 1982.
Analysis of Native Lands. Bruce R. Bedard. No date.
Devil Canyon Hydroelectric Project Proposed Requirements for Land.
(Ref. PSC No. 443.)
Watana Hydroe 1 ectr-i c Project Proposed Requirements for Land.
(Ref. PSC No. 443.)
List of mining claims identified in the Susitna P~oject Area.
(Subject to valid existing rights.) See (ANCSA-ANILCA) Lands open
to entry for current claims, Denali Plannin~J Block. (Map Valdez
district.)
List of Existing cabins identified in the Susitna Project Area.
(Subject to valid existing rightse) See ANCSA.
Lis.t of Cultural Resources located between June and July, 1980.
(Talkeetna Mountains) (Some of t'''ese sites may qualify for the
Historical Pr-eservation for National Register recognition.
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SOURCE REFERENCES
PSC-443
1 o State Attorney Gener·a 1 Wi 11 i am Condon's Opinions.
2~ Bureau of Land Management Position Papers.
3. Federal Energy Regulatory Commission Regulations, Policies and
Procedures, Decisions.
4. U.S. Department of Interior Solicitors Opinions.
P.L. 94-204, January 2, 1976.
P.L. 94-456, October 4, 1976 ..
P.L.O. 2961 PSC-443, March 7, 1963.
5.
6.
7 ..
8.
9.
P.L. 92-203, December 18, 1971.
P.L. 96-487, December 2, 1980.
10. PSC 443, February 13, 1958.
11. Sec. 24 FPA, June 10, 1920.
12. Ltr. PSC 443, April 19, 1958.
13. DO! BLM Sec. 3(E) ANCSA, October 22, 1980.
14. CIRI Land Trade Agreement, Oct 18, 1977.
15. CIRI Appendix "B" Conveyance Agreement, February 26, 1982.
16. Interior Conveyance #285, February 11, 1980.
17 .. '-12(8) Selection Agreement, November 19, 1975
18. Ltr. Alaska Power Authority PSC-433, July 26, 1982.
19. USGS Report site Preservations, November 1966.
20. 43CFR .08, July 2, 1966
21. Navigability Issue, No date.
22. Federal Control Transfer with IC, No date.
23. PLO 5321 Amendment, July 17, 1973.
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24. PLO 5321, December 7, 1972.
25. PLO 5180, March 9, 1972.
26. PLO 5186, ~arch 15, 1972.
27. PLO 5255, September 12, 19]'2.
28. Ltr. Regional Solicitor, PSC-443, May 14; 1976~
29. Ltr. BLM State Director, PS ~43, May 03, 1976.
30. Sec. 24 Detennination, PSC-443,.June 1, 1961.
31. Ltr. Associate Solicitor, DOE PSC-443, October 27, 1977.
32. 43 CFR 2340, Federal Power Commission, June 13, 1970o
33. 43 CFR 2350, Withdrawal Procedures, June 13, 1970.
34. 43 CFR 2850, Power Transmission Lines, June 13, 1970.
35. Book Withdrawals of Public Lands Power Projects, March 3, 1970.
36~ USGS Powersites in Alaska, February 23, 1978.
37. BLM DIC List, November 17, 1982.
38. Ltr. Secretary of Interior, C.B. Morton, March 29, 1974.
39. Notice Ltr., Submerged Lands State, December 10, 1979.
40. DOI Ltr., Solicitor, 12(8) Lands, July ~1, 1980.
41. Ltr., State Director, BLM, 12(B) Lands, April 24, 1980.
42. Native Agreement, Talkeetna Mountains, August 31~ 1976.
43. Ltr., State Attorney General, PSC-443, September 21, 1982.
44. Ltr., State Director, BLM, PSC-443, May 21, 1979.
45. Ltr., State Director, BLM, PSC-443, July 19, 1977.
46. Ltr., State Director .. BLM, PSC-443, May 03, 1976.
47. Title 16, Chapter 12, Conservation, USC-818, June 10, 1920.
48. Ltr~,State Director, BLM, Power Sites 3(E), June 1, 1977.
49. Ltr. ,State Director, BLM, PSC-443, January 13, 1978.
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50. Ltr., Heg. Solicitor, DOl, PSC-443, February 1, 1978.
51. Ltr.~, Reg. Solicitor, DOl, PSC-443, February 1, 1978.
52. Legal, BLM Land Decision, Talkeetna Mountains, November 30, 1979.
53. Repol"t, Joint Federal Land Use Committee, No date ..
54. Ltr., Birch, Horton, Bittner, & Monroe, February 3, 1981.
55. Ltr., State Attorney General, PSC-443, September 16, 1982.
56. Draft Local Easement, Native Lands, September 6, 1974.
57. Ltr.-Report, Federal Land Use Plan Comm., S4Jne 6, 2974 ..
58. Ltr.-Report, Federal Land Use Plan Comm., Apr·il 7, 1975.
59. Ltr.-Report, Federal Land Use Plan Comm., June 30, 1977.
60. Ltr.-Report, Federa 1 Land Use Plan Con111. , November 21, 1975.
61. Ltr.-Report, CIRI Land Exchange, March 7, 1976.
62. Ltr.-Reporti State Lands Exchangej April 20, 1976.
63. Reports, FERC Meetings, Land Issues, May 1982.
64~ Reports, FERC Meetings, Land Issuess August 5, 1982.
65. Report, Charles Isgar, Land, August 6, 1982.
66. Memo, Land Questions, FERC, No date.
67. Regulations, FERC Application, December 1, 1981.
68. Federal Register, FERC Regs., November 13, 1981.
69. Alexander Creek Agreement, July 30, 1974.
70.. CIRI, Alaska Power Authority, Agreement, January 4, 1981.
71. Notice, BLM, Section Line Easements, No date.
72. Ltr., Alaska Power Authority to CIRI, October 25, 1978.
73. U.S. Senate at1d House Report, CIRl Land Trade, March 6, 1976.
74. Land Status Map CIRI, No date.
75. State Map, Existing Recreational use, 1980.
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76. Ltr., Goldberg & Gottstein/AHTNA, March 26, 1981.
77. Memo, Alaska Land Use Council, Land Exchange, June 14, 1982.
78. Memo, Questions for CIRI, August 10, 1982.
79. Land Status Activity, Susitna-Research, September 28, 1982.
80. Draft Ltr. Memo, Susitna, September 28, 1982
81. Legal Identification Chart, Land Status, No date.
83.
84.
85.
86.
87.
Study U of A, Cook Inlet Land Trade, No date.
Draft Regulation Change~ Land Classification, State, July 15, 1982.
.
Land Status, Map, Silver Lake, PP 138, November 16, 1982.
Report, Bureau Land Management, Federal Lands, July 14, 1982.
Legal Cases, Native Lemds Alaska, Condemnation, January 15, 1979.
Alaska Statutes, Article 4, Eminent Domain, ·no date.
88. Alaska Statutes, Exchange of State Lands, 1976.
89. Alaska Statutes, Protection of Rights, No date.
90. Alaska Statutes, Private Ways of Necessity, No date.
91. Treaty of Cession, May 28, 1867.
92. Statehood Act, S~c. 12, Disclaimer~ No date.
93~ List of Mining Claims (validity unknown), Nover~tber 13, 1980.
94. Analysis of Native Lands (Bedard), No date.
95. Analysis of Economic Development Rights, March 27, 1982.
96. PL 94-579, not applicable to ANCSA, October 21, 1976~
97. State Land Selections, July 19, 1982.
98. ANCSA Net~s!l Navigability Issue, August-September 1980.
99. ANCSA News, ANCSA Terms Defines, August-September 1980.
100. ANCSA News, Lease Administration, October 1980.
101. Report, OTA Access Areas, Federal Lands, No date.
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102. Ltr., FERC, Forest Service Lands, Power Sites, April 6, 1981.
103. USDOI/USGS Geological Survey, CIR #400, Washington D.C., 1957.
•
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Treaty of Cession
(15 Stat. 539)
Treaty concerning the Cession of the Russian Possessions in
North America by his Majesty the Emperor of all the Ruasias to
the United States of America; Concluded March 30, 1867; Ratified
by The United States May 28, 1867 ; Exchanged June 20f 1867;
Proclaimed by the United States June 20, 1867.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Whereas, a treaty between th~ United States of America and his
Majesty the Emperor of all the Russias was concluded and signed
by their respective plenipotentiaries at the city of Washington, on
the thirtieth day of March, last, which treaty, being in the English
and French languages, is, word ior word, as follows:
The United States of America and his Majesty the Emperor
of all the Russias, being desirous of strengthening, if possible, the
good understanding which exists between them, have, for that
purpose, appointed as their Plenipot1~ntiaries: the President of the
United States, William H. Seward, Secretary of State; and his
Majesty the Emperor of all the Russias, the Privy Councillor
Edward de Stoeckl his Envoy Extraordinary and Minister
Plenipotentiary to the United States.
And the said Plenipotentiaries, having exchanged their full
powers, which were found to be in due form, have .... greed upon and
signed the following articles:
ARTICLE I
His Majesty the Emperor of all the Russias agrees to cede to the
United States, by this convention, irnm,ediately upon the exchange
of the ratifications thereof, all the territory and dominion now pos-
sessed by his said Majesty on the continent of America and in the
adjacent islands, the sa1ne being contained within the geographi-
cal limits herein set forth, to-wit: The eastern limit is the line of
demarcation between the Russian and the British possessions in
i'forth America, as established by the convention between Russia
and Great Britain, of February 28-16, 1825, and cieseribed in Ar-
ticles III and IV of said eonvention, in the following terms:
~~commencing from tbe southernmost point of the island called
Prince of Wales Island, which point lies in the paral.lel of 54 de-
grees 40 minutes north latitude, and between the 13lst and the
133d degree of west iongitude (meridian of Greenwich), the said
,
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74 ALASKA STATUTES
line shall ascend to the north along the channel called Portland
channel, as far as the point of the continent where it strikes the
56th degree of north latitude; from this last-mentioned point, the
line of demarcation shall follow the summit of the mountains sit.
uated parallel to the coast as far as the point of intersection of
the 14lst degree of west longitude (of the same .meridian), p.nd
finally, from the saiq point of intersection, the said meridian .line
of the 14lst degree, in its prolongation as far as the Frozen ocean.
"IV. With reference to the line of demarcation laid down in
the preceding article, it is understood-
'4lst. That the island called Prince of Wales Island shall belong
wholly to Russia" (now, by this cession, to the United States).
"2nd. That whenever the summit of the mountains which extend
in a direction parallel to the coast from the 56th degree of north
latitude to the point of intersectiol1 o! the 141st degree of west
longitude shall prove to be at the distance of more than ten marine
leagues from the ocean, the limit between the British possessions
and the line of the coast which is to belong to Russia as above
mentioned (that is to say, the limit to the possessions ceded· by
this convention} shall be formed by a line parallel to the winding
of the coast, and which shall never exceed the distance of ten
marine leagues therefrom." ,
Th~ western limit within which the territories and dominion
conveyed, are contained, passes through a point in Behring's
straits on the parallel of sixty-five degrees thirty minutes north
latitude, at its intersection by the meridian which passes midway
between the islands of Krusenstern, or Inaglook, and the island
of Ratmanoff, or Noonarbook, and proceeds due north, without
limitation, into the same F,rozen ocean. The same western limit,
beginning at the same initial point, proceeds thence in a course
nearly southwest through Behring's straits and Behring~s sea,
so as to pass midway between the northwest point of the island
of St. Lawrence and the southeast point of Cape Choukotski, to
the meridian of one hundred and seventy-two west longitude;
thence, from the intersection of that meridian, in a southwesterly
direction, so as to pass midway between the island of Attou and
the Copper island of the Kormandorski couplet or group in the
North Pacific ocean, to the meridian of one hundred and ninety-
three degrees west longitude, so as to include in the territory con-
veyed the whole of the Aleutian islands east of that meridian.
ARTICLE II
In the cession of territory and dominion made by the preceding
article are included the right of property in all public lots and
squares, vacant lands, and all public buildings, fortifications, bar-
racks, and ot~er edifices which are not private individual property.
TREATY OF CESS!ON 75
It is, however, understood and agreed, that the churches which
have been built in the t!eded territory by the Russian government,
shall remain the property of such members 'J~ the Greek. Oriental
Church resident in the territory, as may choose to worship therein.
Any government archives, papers and documents relative to the
territory and dominion aforesaid, which may be now existing
there, will be left in the J)()ssession of the agent of the United
States; but an authenticated copy of such of them a~~ may be re-
quired, will be, at all times, given by the United t"States to. the Rus-
sian government, or to such Russian officers or subjects as they
may apply for.
ARTICLE Ill
The inhabitants of the ceded territory, according to their choice,
reserving their natural allegiance, may return to Russia within
three years; but if they should prefer to remain in the ceded ter-
ritory, they, with the exception of uneivilized native tribes, shall
be admitted to the enjoyraent of all the rights, advantages, and
immunities of citizens of the United States, and shall be main-
tained and prote'!ted in the free enjoyment of their liberty, prop-
erty, and religion. The uncivilized tribes will be subject to such
laws and regulations as the United States may, from time to time,
adopt in regard to aboriginal tribes of that country.
ARTICLE IV
His Majesty the Emperor of all the Russias shall appoint, with
convenient despatch, an agent or &gents for the purpose of for-
mally delivering to a similar agent or agents appointed on behalf
of the United States, the territory, dominion, property, de-
pendencies and appurtenances which are ceded as above, and for
doing any other act which may be necessary in regard thereto""
But the cession, with the right of immediate possession, is never-
theless to be deemed complete and absolute on the exchange of
ratifications, without waiting for such formal delivery.
ARTICLE V
Immediately after the exchange of the ratifications of this con-
vention, any fortifications or military posts which may be in the
ceded territory shall be delivered to the agent of the United States,
and any Russian troops which may be in the territory shall be
withdrawn as soon as may be reasonably and conveniently prac-
ticable.
ARTICLE VI
In consideration of the cession aforesaid, the United States
agree to pay at the treasury in Washington, within ten rnonths
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76 ALASKA ST.:\ 'l'Ul'ES
after the exchange of the ratifications of this convention, to the
. diplomatic representative or other agent of his Majesty the Em-
peror of an the Russias, duly authorized to receive the same, seven
million two hundred thousand dollars in gold. The cession of ter-
ritory and dominion herein made is hereby declared to be free and
unencumbered by any reservations, privileges, franchises, grants,
or possessions, by any associated companies, whether corporate or
in,~orporate, Russian or any other, or by .'~iky pm-ties, except merely
private indivl:du.al property holders ; and the cession hereby made,
conveys all tht~ rights, franchises, and privileg.~s now belonging to
Russia in the said territory or dominio1;1, and appurtenances there-
to.
ARTICL~ VII
~
w·nen this conventi.<Jn shall have been duly ratified liy the Presi-
dent of the United States, ·by and with the advice aHd consent of
the Senate, ~m the one part, and on the other by h7.s Maj 'lSty the
Emperor of all the Russias, the ratifications shall ba exchanged at
Washington within three months from the datE.• rt~reof, or sooner~
if possible.
In faith whereof, tl1e respective plenipotentiat·ies have signed
this convention, and thereto affbced the seals r-f their arms.
Done at Washington) the thirtieth day of March, in the year
of our Lord one thousand eight hundred and ~ixty-seven.
[SEAL) WILLIAM H. SEWARD
[SEAL] EDOUARD DE STOECKL
A" i whereas the said Treaty has ileen duly ratified on both
parts and the resR::ctive ratifications ~rf 1,he sa1ne were excha'tlged
at Washington or1 this tw·entieth day of June, ')y V/illiam H.
Seward, Secretary r"' State of the United States, and the Privy
Counsellor Edwarc.'~ .. ~e Stoeckl, the Envoy Extraordinary of His
Majesty the Ernpe. ~:." of all the Rassias, on the part of their re-
sp9ctive govern:ments.
Now, therefore, be it known that I, AhOREW JOHNSON, Presi:
dent of the United State~ of America, have caused the said treaty
to be made pu'DU.c, to the end that the same and every clause and
article thereof may ~e vbserved and fulfilled with goori faith by
the United States and the citizens thereof.
In witness whereof, I have he~·eunto ·;s~t my ha.nd, and caused
the seal of the United States to be affixed.
Done at the city of Washington, this twentieth t 1;;:'y Ol June in
the year of our Lord one thousand eight hundred ant' "'xty-seven,
and of the Indep~ndence of the United States the ninety-first.
ANDREW JOHNSON
By the Presidr"lt:
~1 ILLIAM H. SEWi;.RD, Secretary of State.
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f.
The initiative may be used only to
enact laws. Stan-v. Hagglund, Sup. Ct.
Op. No. 98 (FUe No. 246), 374 P.2d 316
(1962).
And not for the p~se of
· conetitutionm amendment. -See Starr
v. Hagglund, Sup. Ct. Op. No. 98 (File No.
2(;5), 374 P.2d 316 (1962).
~eople are subject to erune
re1triction1 u legislature. -IJ:"he
implication in tnis section is ~hat since the
p-iM>ple have the same law-making powers
as does the legislature, then the people are
also subject to the same restrictions as the
legislature, "unless clearly inapplicable."
1959 Op. Aft'y Gen., No. 36,
Legislative power to enact method of
determining whether act and initiative
are substantially aame. -This section
and Alaska Const., art. V, § 3, and art. XI,
§ 4, when read in ha?mony, give the
legislature the power to enact a method of
determining whether ·an act and an
initiative are ''substantially the same," as
used in Alaska CoMt., art. XI, § 4. Warren
v. Boucher, Sup. Ct. Op. No. 1205 (File No.
2315), 543 P.2d 731 (1975).
Applied in Thomas v. State, SCJ.!J· Ct.
Op. No.l445 (File No. 2723), 566 P.2d 630
(1977); Granato v. Occhipinti, Sup. Ct. Op.
No. 1962 (File No. 3756), 602 P.2d 442
£1979).
Stated in City of Douglas v. City &
Borough of Juneau, Sup. Ct. Op. No. 672
(File No. 1379), 484 P.2d 1040 (1971).
Quoted in Inquiry Concerning Robson,
Sup. Ct. Op. No. 825 (File r..ro. 1552), 500
P.2d 65'7 (1972) .
Section 12. Disclaimer and Agreemen~ The State of Alaska and
its people forever disclaim all right and title in or to any property
belonging to the United States or subject to its disposition, and not
granted or confinned to the State or its political subdivisions, by or
under' the act admitting Alaska to the Union. The State and its people
further disclaim all right or title in or t.o any property, including
fishing rights, the right or title to which may be held by or for any
Indian, Eskimo, or Aleut? or community thereof, as that right or title
is defined in the act of admission. The Sta;;e and its people agree that,
unless otherwise provided by Co'Cgress, the property, as described in
this section, shall remain subject to the absolute disposition of the
United States. They further agree that no taxes will be im1--.)sed upon
any such property, until otharwise provided by the Congress. This tax
exemption shall not apply to pr0perty held by individuals in fee
without restrictions on alienation.
Section .f. of the Alsska Statehood
Act, 48 U.S.C. Pree. § .21, hae been
substan.cially incorporo:t()d into the
Alaska Constitution as this section.
Aquilar v. Kleppe, 424 F. Supp. 433 (D.
Alas. 1976).
This section ¥'<'ld § 4 of Statehood Act
constitute comp!\Ct between
sovereigns. -Section 4 ' ~he Alaska
Statehood Act (72 ,1tat. 33'.-., mended,
48 USC preceding '!I 23) .•) a ciir~ct
responne hy Congress to the provisions
contained in the five sentences of thts
S:!ction. The two sections constitut~ a
compact between sovereigns. Metl!''.,.utla
Indian Community, Annette Islar.::i
Reserte v. Egan. Sup. Ct. Op. No. 42 lFile
Nos, 21, 22, ::!3), 362 ?.2d 901 (1961),
vacated and remanded on other grounds ir,
369 U.S. 45, 82 S. Ct. 552, 7 L. Ed. 2d 562
(1962).
A comparison of the offer, in the first
sentence of this section, with the response
in § 4 cf the Alaska Statehood Act
indicates definite agreement as to the
f..tture status of United States property,
Metlakatla Indian Community, Annette
Island Reserve v. Egan, Sup. Ct. Op. No.
42 (File Nos. 21, 22, 23), 362 P.2d 901
(1961), vacated and remanded on other
grounds in 369 U.~' 45, 82 5. Ct 552, 7 L.
Ed. 2d 562 11962).
The offer in the third sentence of this
sectton and the response in the Alaska
Statehood Act ind1eat.e agreement as to
property. Metlakatla Indian Community,
Annette Island Reserve v. Egan, Sup. Ct.
Op. No. 42 \File Nos. 21, 22, 23), 362 P.2d
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dn .. iU.!, ~ HS tJONSTITUTION OF ALASKA Art. XII, § 13
901 (1951}, vacated and remanded on
other grounds in 369 U.S. 45,82 S. Ct. 552,
7 L. Ed. 2d 562 (1962).
The fourth and fifth sentences of this
section and the, response in § 4 of the
Alaska Statehood Act appear to have
sufficient definiteness to be offers and
acceptancetJ. Metlakatla Indian
Community, Annette Isllllld Reserve v.
Egan, Sup. Ct. Op. No. 42 (Fil.:! Nos. 21, 22,
23), 362 P.2d 901 (1961), vacated and
remanded on other grounds in 359 U.S. 45,
82 S. Ct. 552, 7 L. Ed. 2d 562 (1962) .
A comparison between the offer h1 the
second sentence of this section and the
response in § 4 of the Alaska Statehood
Act does not indicate definite agreement.
The offer to disclaim by the state was
conditioned on definition in the act of
admission of the right or title to be
disclaimed. The response merely repeated
the offer to disclaim. It d.id not comply with
the condition by defining the right or title.
Metlakatla Indian Community, Annette
Island .Reserve v. Egan, Sup. Ct. Op. No.
42 (File Nos. 21, 22, 23), 362 P.2d 901
(1961), vacated and remanded on other
grounds in 369 U.S. 45, 82 S. Ct. 552, 7 L.
Ed. 2d 562 (1962).
~ch became effective upon
approval of Statehood Act by voters.-
The compact or contract between Alaska
and the United States became effective
upon approval of the tem1s of the Alaska
Statehood Act by the voters of Alaska.
Metlakatla Indian Community, Annette
!sland Reserve v. Egan, Sup. Ct. Op. No.
42 (File Nos. 21, 22, 23), 362 P.2d 901
( 1961), vacated and remanded on other
grounds in 369 U.S. 45, 82 S. Ct. 552, 7 L.
Ed. 2d 562 (1962).
But Omnibus Act forms no part of it.
-The amendment of the Alaska
Statehood Act by the Alaska Omnibus Act,
73 Stat. 141, § 2a, forms no part of the
compact between Alaska and the. United
States. Metlakatla Indian Communitv,
Annette Island Reserve v. Egan, Sup. Ct.
Op. No. 42 (File Nos. 21, 22, 23), 362 P.2d
901 fl96D, vacat.ed and remanded on
other gr-ounds in 369 U.S. 45, 82 S. Ct. 552,
7 L. Ed. 2d 562 tl962L
And no compact as to fishing rights
was formed between the StFte of Alaska
and the United States by the second
sentenc~ of this section and the responsive
portion of§ 4 of the Alaska St3.tehood Act.
This is because no fishing rights were
defined, as required by tha condition in the
offer to disclaim, and no fishing right.s
were "held" by or for natives at the time.
Metlakatla Indian Community. Annette
Island Reserve v. Egan, Sup. Ct. Op. No.
42 (File Nos. 21, 22, 2:3), 362 P.2d 901
(1961), vacated and remanded on other
grounds in 369 U.S. 45, 82 S. Ct. 552, 7 L.
Ed. 2d 562 (1962).
No act of Congress had established any
"right or title" in fishing rights which wez:e
"held, by or for natives at the time the
compact was made. Metlakatla Indian
Community, Annette Island .Reserve v~
Egan, Sup. Ct. Op. No. 42 {File Nos. 21, 22,
2~n, 362 P.2d 901 (1961), vacated and
remanded on other grounds in 369 U.S. 45,
82 S. Ct. 552, 7 L. Ed. 2d 562 (1962).
In the second sentence of this section the
state offered to disclaim. a~ to right or title
"held'' by or for the persons named. The
response in the Alaska Statehood Act
described the right or title as "beld" by or
for natives. There is no evidence of an
intent on the part' of either sovereign that
any new or additional rights in fishing
rights be established by the compact itself.
Metlakatla Indian Community, Annette
Island Reserve v. Egan, Sup. Ct. Op. No.
42 (File Nos. 21, 22, 23), 362 P.2d 901
(1961), vacated and remanded on other
grounds in 36~ U.S. 45, 82 S. Ct. 552, 7 L.
Ed. 2d 562 U962).
Eleventh amendment bar not
waived. -By adoption of this section, the
state has not waived the bar of the 11th
amendment of the federal constitution in
disputes over land selected for allotment
by Alaska natives. Aquilar v. !(leppf"" 424
F. Supp. 433 CD. Alas. 1976).
Section 4 of the Alaska Sta~~~t.
48 U.S. C. Prec. § 21, and this St.. ...)
no~; expressly waive the 11th amf._l. ·~nt
bF..r, and while Alaska disclaimed any
interest in property rights held by Alaska
natives or the federal government. it is not.
overwhelmingly implied that the state
consented to suits involving conflicting
claims to land previously held by the
federal government but later patented to
the state. Aquilar v. Kleppe, 424 F. Supp.
433 !D. Alas. 19761.
Section 13. Consent to Act of Admission. AU provisions of the
act admitting Alar.ka to the Union nhich reserve rtghts or powers to
the United States, as well as those prescribing the tenns or conditions
of the grants of lands or other :;roperty, are consentell to fully by the
State and its people.
279
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UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF L.ANO MANAGEMENT
Anchorage District Office
4700 East 72nd Avenue
Anchorage, Alaska 99507
.July 14, 1982
3000 (010)
The Secreta17 of I~terior, in order to i~plement Section 1008 of the
Alaska National Interest Lands Conservation Act (ANILCA), directed the
Bure.au of Land Management (BLM) Alaska to conduct an analysis of the
public lands under its juridiction to deeerirne which lands should be
leased under the MiD.&::a.l Le~1.ng Act of 1920. In addition, the Secr~tary
directed ~hat this analysis consider which lands should be opened to
location under t~e M±ning Law of 1872 and to disposal ~der both the
Federal Land Policy and Management Act of 1976 and the older settlemen~
laws.
The Anchorage District, BLM, prepared a draft analysis of these a.c.tio~s
for the Denali and Tiekel Planning Blocks which was sent to you for
review in June, 1982. This analysis covered an area of approximately
4,250,000 acr.es in South~:~a~ Alaska: the Denali Block, lying north
of the Glenn Highway and w~s of the Richardson High-way; and the Tiskel
Block, straddling the Richardson Highway just south of its junction with
the Edgerton Highway. This ~raft analysis consisted of an environmental
assessment of mineral leasing, mineral location, and land disposal as
amendments to the District:s existing Southcent:r.J.l Management Framework
Plan (land use plan).
The public comments which were received on th~s draft analysis have been
reviewed and final decisions have now been reached on these three issues
as they affect the Denali and Tiekel Planning Blocks. These decisions
are contained in the attached Decision Recorde They will be implemented
by attaching them to the Southcentral Management Framework Plan as
amendments to the existing decisions. A Public Land Order will be
published in the Federal Register during September, 1982, opening the
lands in accordance with chese decisions.
Any person who participated in the planning process and who has an
interest which may be adversely affected by approval of the MFP amendments
may file a protest on or before August 15, 1982. A protest may raise
only those issues ~vhich were submitted for the record to the District
Manager during the planning process. Any such protest must be in writing
and must be filed vdth the State Director, Bureau of Land Management,
:'..laska State Office, 701 C Street, Box"' 13, Anchorage, Alaska 99513. The
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protest shall contain the name, mailing address, telephone number and
interest of the parson filing it; a statement of the issue or issues
being p~otes~ed; a statement of the par~ of the amendment being pro-
tested; a copy of all documents addressing the issue or issues that were
submitted by the protesting party or an indication of the date the issue
or issues were discussed for the record; and a short, concise statement
explaining how they affect the choice of decision.
~lemetatiQ~.of th•se dacia~ga& wil~ begin no sggner.than Auzust_l2, ~~
o~ upon resolution of any protest received by the State Director.
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Richard • Vernimen
Acting District Manager
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DECISION RECORD
Denali/Tiekel Amendment to the Southcentral Management Framework Plan
Finding of No Significant Impact
Since mitigating measures developed t~rough the environmental analysis will be
inc.orporated into the conditions of approval (pend.t stipulations) of permits
to drill, the mineral leasing decision can be implemented wl.thout significant
~~act tG the environment. In addition, th• standard stipulations will be
attached to all lease areas o11ened for noncompetitive oil and gas leasing.
Therefore, tha decision contained in the Decision Record does not warrant the
preparation of an environmental impact stgtement.
Mineral Entry
Finding of No Signj~ficant Impact
Limiting mineral entry to areas which have known mineral values, and in some
cases are already open to limited entry, mitigates the impact of the decision
in this Decision Record, co the point where the surface protection regulations
in 43 CFR 3809 can be expected to effectively reduce the significance of impacts
to the environmento By protecting areas of high public resource values, this
decision further reduces the potantial for resource conflicts to the point where
p~eparation of an evironmental impact statement is not warranted.
Disposal of Public Land
~ding of No Significant Impact
·~
By lim;i.ting non-discretionary disposals to a small, isolat:ed portiro~n of the
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overall analysis area in which no significant public resource values such as ;lJ
recreation or wildlife have been identified, this decision produces no 3ignifi-fl
cant en~ronmental impacts on the overall analysis area. Because of the rela-1
tionship between this non-discretionary portion of the decision and the larger
disposal action, which · 1 receive ongoing environmental assessment, the de-
cisio~o~a par~a~i::_of an environmental impac:U:t~:~::t·
Area Date
JUL 14 i982
Date ·
Date
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SUMMARY OJ!~ AN,ALYSIS
The decision record amending the South Central Management Framewo~rk
Plan (MFP) is arranged in three di:atinct sections. The thre·z
ameu~~ents cover md~eral leasing, mineral entry, and
settlement/qj.sposal. With..:n each sect.ion, the narrative follows ~ws
.format.
First, the curreD.t Manag~t Frame.work Plan {MFP) decision is
provided; second, the decis,ion or amended wc!'d1llg is stated; th:ird,
the alternatives collf;idered are discussed; fourth, a rationale is
provided in support o,f the decision; and finally, .a brief discussion
is given of the envi1:onme:ntal considerations a:ade as a rest1lt of the
environ~~ental assessraent,. A map identifying t.lle reclassification c)£
lands is included .
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MINERAL LEASING
QE;ginal Decision
The existing decisi.on for mineral leasing in the Southcent.ral
Management FrameworJt Plan, as it affects the Denali and Tie:kel
Plannj ng Blocks is to ••consider the Alphabet Rills in the southexn
portion of the Denali planning block for oil and gsa leasing with
stipulations to protect Trumpeter Swan nesting grounds. " This
decision will be removed from the Southcentral MFP and will be
replaced with the following decision reached as a result ~f this
analysis:
Decision
Lease all la:11ds wi t.hin the Denali and Tiekel blocks which are not
enCWDbered by pending Native corporation selections, pending State of
Alaska selectio~~, or ~y the statutory segregations created by the
Delta Wild and Scenic River, the Gu.lkana Wild and Scenic River and the
corridor for the Denali Scenic Highway study. The corridor for the
Denali Scenic Highway study will remain closed to mineral leasing
until December 2, 1983 if a negative recommendation is reached on the
study. If a positive reco11111endation is lllltde, the study corridor will
remain closed w1til Congress acts on the reco11111endation or until
December 2, 1985, whichever comes first.
The utility corridor withdrawn in support of the Trans-Alaska
Pipeline will be included in this decision to lease for minerals.
Special st.ipula.tions governing surface tlccupany will be included in
any lease issued within the granted right-of-way. Additional special
stipulations may be attached to individual leases for protection of
the environment in accordance with the mitigating measures developed
in the envi~onmental considerations protion of this decision record.
The geographical extent of this de.ci.Clion is shown in the attached
Illustration 25.
Alternatives Considered:
The alterw.\tive!l considered in this analysis, from which this
decision has been selected, rang,ed from the general opening of a.ll
public land to one of no ~ctiOill, as summarized in the following
paragraphs:
Alternative 1: Open all lands in the Denali and Tiekel plaLuri.llg
blocks to mineral leasing.
Alternative 2: Identify and open those lands in the Denali and Tiekel
planning blocks that al:e sui table for and have
potential for mineral leasing.
Alternative 3: Open only t.b.ose lands south of the Alphabet Hills, in
the Denali block, that have been identified by USGS
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and industry for mineral leasing.
decision)
Alternative 4: Take no action.
3
(Existing MFP
The following decision has been selected based on three ~\jor factors:
1. As a discretionary action, l.easing is subje1:t to envirollDlental
controls through stipulations on both the leases themselves-and on
specific permits needed to" develop leases.
2. Most of the potential oil and gas basin contemplated in the
existing MFP decision is now State selected and no longer available
for leasing.
3. In the absence of any concrete knowledge of the potential .for
leasable minerals in the rest of the analysis area, the current policy
to allow exploration to develop this knowlEdge appears to be the only
justifiable course. In this instance, exploration can occur only
after a lease has been issued.
The decision as stated has· been modified from the original alternative
in order to consider a number of facto.rs developed in the analysis,
such a~ the st~tutory segregations attached to wild and scenic rivers,
etc.
Rationale
As a discretionary action by the Secretary of the Interior,, mineral
leases are subject to management by the Minerals Management Service
and the affected surface-managing agency, in this case BLM. The
requirement that surface-disturbing activity on ~ lease be subject to
analysis and, where necessary, control through stipulation provides a
pr~cedure for mitigating impacts on the environment. This decision
implements the Secretary's policy that lands should be open to leasing
to the maximum extent possible to allow for the exploration necessary
to determine just what values at:e present:
The existing decision addresses only a small portion of the public
lands wb.ich are .!lva;ilable for leas.ing. The opening of the entire
a~eaj while it may in fact produce a certain number of speculative
lease interests, will allow the ~pportunity to participate in the
Federal oil and gas non-competitive leasing program which is the
intent behind the non-competitive leasing regulations. The presence
or lack of significant deposits of leasable minerals, together with
prevailing economic conditions will in the end operate to control the
number of leases which are actually developed.
Environmental Considerations
The State of Alaska 1 in its c.omments on the Denali/Tiekel draft
analysis, requested that .BLM consider the body of environmental
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ismues ~d mitigating measures which the State had developed for its
tease Sale 1137, just to the south of the Denali Block •. irh.e following
discussion of issues reflects both these raised in the draft analysis
and those found in Lease. Sale #-37. These 11itigating mea~ures will be
considered on pe:r:mi.ts to drill. (See Appendix A for a disCussion of
the Issues md mitigating measures.) Prior to the actwal ~cning of
the affected lands, public notice will be prov;ded which will identify
stipulations the will be applied tQ leases .
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~ginal Decision
The existing decision f.or mineral entry in the S~uthce11.tral
M.11nagement Framework Plan, as it affects the Denali and Tiekel
Plarmi..'lg Blocks , is to "provide opport~uni ties for the development of
gold, s.i.lve::, and copper in the Clearwi~ter Mountain area of the Denali
?lanning Block." This decision will be removed from the Southc~.txal
MFP and will be replaced with the following decision reached as a
resuit of this analysis:
Decision ·
In. the Tiekel Block, open to the full operation of the.Mining Law of
1872, all public lands not ~egregated by pending Native corpor~tion
selections or by the corridor withdrawn in support of the Trans-a...aska
Pipeline.
Oper.t to the full operation of the Mining Law of 1972, those public
lands in the Denali Block affected by Public Land Orders 4514, 5180,
5418, 5321, and 5184, not otherwise segregated by pending Native
Corporation selection, pending State of Alaska selections, the Delta
River Wild and Scenic River, the corridflr for the Denali .Scenic
Highway study, or the cor~idor withdrawn in support of the Trans-
Alaska Pipeline. Th~ lands affected by thi.s decision are portrayed in
attached Illustration 26.
The corridor :for the Denali Scenic Highway study will remain closed to
mineral entry until December 2, 1983, should a negative
recolliDendation be reached on the study. Should a positive
reco11111endation be made, the study could ~~11 remain closed until
Congress acts to make the segregation permanent or until
December 2, 1985, whichever cames first.
Alte~atives Considered:
The alternatives addressed in th±s analysis, from which this decision
has been sele,;;ted, rangad from a general opening to a n.o action
alternative as follows:
Alternativ~ 1; Open all lands in the Denali and Tiekel planning
blo~ks to mineral location~
Alternative 2: Open for mineral location those lands in the Denali
and Tiekel planning blocks t:~3t are suitable and 'lave
potential for mineral entry.
Alternative 3: Open only the following township$ to mineral location
in r~spouse to indications o£ interest (same
geog,;aphical areas as shown in existing decision):
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T. 32 N'.; R. 8 & 9 E., Seward Meridian
T. 33 N. , R. 8 & 9 E •
'!. 17 S. , R.. 4 & 5 E. , Fairbanks !1eridian
T . 18 S. , R. 4-11 E •
T. 19 5.7 R~ 2-11 E •
T. 20 S., R. 1-10 E.
T. 21 S. , R. 1-10 E.
T.. 22 S o , R. 1 & 2 W •. , and R. 1 E
Alternative 4: Taite no actions~
The decision has been selected based on three major factQrs:
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1.. The information which is available on the location of mineral
values and the distribution of existing mining claims within the::
Denali and Tiekel planning blocks appears to concentrate both values
and interest in the areas covered by this decision.
2. As a non-discretionary actj:on, the filing of mining claims sets
the stage for transfer of public laud to private ownership. Where
significant public resourc~ values are present, the only way to
protect those values is ~o keep the area closed to the filing crf
m1n1ng claims. The fact that an .arC!a is t:losed to the filing of
claims does not, however, pr~~lude exploration for mineral values.
BLM is prepared to work with individuals and organizati~IL'S to open
additional areas in wltich mineral values can be shown to exi,,•t.
3. Large areas of the Denali planning block are present~y open to
limited entry under the· mining laws. Sinc·e the impacts associated
with ,...ining activity are already present in these areas, the opening
of the ~ame areas to full opera.tion of the mining laws can be done
without significantly increasing; those impacts.
Rationale
The draft analysis reco11111endation to keep the Tiekel block closed to
mineral entry was based on ongoing negotiations between the State of
Alaska, the Department of Interior and Chugach Nativo-s In.corporated
over the issue of identifying the site for selection ~f ou~s~auding
land rights by Chugach. This issue has been resolved. The State of
Alaska can fulfill interests in the Tiekel block through the f!Xerci se
of its right to select the area. prior to any 3ctual opening.
CoDDDents receivt~d on the draft a :ia.lysis pointed 0ut that the
discussion of PLO's was in errar in several instances. One erro-r of
critical importance to the issue of mineral entry was the showing, on
IlJ.ustration 2 in the draft, that the area \:!overed by PLO 5321 was
closed to mineral entry. A proper reading of PtO 5321 shows that
these 'townships are in fact O?en to location for metalliferous
minerals.
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This deeisi,on, opening the Tiekel block and the northem portion of
the Denali bloc:k is consistent with the known distribution of mineral
values within these two ~reas. The lack of known mineral values
together with the docum~nted presence of significant resource values
such as the concen~ation of bald eagle nesting sit~s, the extensive
areas of Trumpeter Swan nesting sites and major. migratory routes for
the Nelchina Caribou herd provides justification for keeping that
portion of the Denali Block south of the Denali Highway and east of
the Susitns. Riv~r closed to mineral entry .
Environmental Considerations
The majority of the environmental impacts identified in the draft
analysis for mineral entrt can be mitigated through the operation of
the surface disturbance regulations in 43 m 3809. In those areas
where mineral values predominate, these r~gulations operate to
protect other resource values. These regulations do not, however,
resolve the fact that the filing of mining claims set~ the stage for
transfer of ti-tle to lands from public ownership to private. Where
significant public resource values exist, these regulations do not
serve to protect the public interest from loss of those resources.
The continuing segregation of parts of the Denali Block does not
prevent exploration for minerals in the affected areas. BLM is
prepared to work with any interested party to open additional lands t~o
mineral entry, given evidence that there is justification in the fol."D!
of mineral values.
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SETTLEMENT/DISPOSAL
OrigfEal Decisi~n
While an objective exis·ts to "satisfy state and local government needs
as well as public and/or private demonstrated needs for land" in the
.Southcentral Management Framework Plan, no specific action
recoJWendation has ·yet been approved. The Southcentral MFP ·~ill be
amended to act on the disposal of public lands through the inclusion
·of th~ following three part decision reached as part of this analysis.
Decision
Applications for lease or sale of lands under Section 302 of the
Federal Land Policy and Management Act of 1976 will be accepted on
those public lands in the Tiekel Block not otherwise segregated by
pending Native corporation selections.
Entries l.Ulder the public land laws for homesi tes, trade and
manufacturing sites, ~nd headquarters sites will be allowed on the
following described public lands lying east of the Denali Block, along
the Tok Cutoff at its junction with the Nebesna Road: ·
Copper Ri-ver Meridian
T. 11 N' o, R"' 8 E., Sees., 24 to 28, and 33 to 36 inclusive
T. l2 N'., it. 9 Eo, Sees. t 12, +4 to 27, and 34 to 36 inclusive
Any decision on disposal of public lands in the Denali Block proper
will be deferred pending BLH' s integration into the preparation of the
regional plan being prepared by the State of Alaska, Department of
Natural Resources in conjunction with the Matanuska-Susitna Borough.
BLM will seek to operate as a full partner within this regional
planning effort. BLM will forward all elements of this present
analysis for the Denali Block with its input into the rl!gional plan.
The first two parts of this decision are shown on the attached
Illustration 27.
Alternatives Considered
The alternatives addressed in this analysis, fxom which this decision
was selected, ranged from one of unrestricted entry to one of no
action, as follows:
Alternative 1: Open all lands in the Denali and Tiekel planning
blocks to unrestricted entry for settlement.
Altern~tive 2: Identify and open those lands in the Denali and Tiekel
I'lanning blocks that are sui table for aP.rl have
potential for settlement under the public land laws.
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Alte~tive 3: In the Denali and Tiekel planning blocks, open for
entry under the Homesite and Trade and Manufacturing
site laws only those lands that support significant
site~specific mineral development.
Alternative 4: Open all lands in the Denali and Tiekel planning
blocks to entry through a petition-application system
in which BLM considers specific individual r ests on
a case-by-case basis.
Alternative 5 : Open lands in the Denali and Tiekel plaa.uing blocks on
a· site-specific basis to sales and leases under
Section 302 of rJ..PMA.
Alternative 6: Take no action""
The decision is stated in several parts and reflects a.m1X1Dg and
matching of the options presented by the alternatives based on the
findings of the analysis. two major faetors were considered in making
the decision.
1. Congress, in the Federal Land Policy and Management Act oi 1976
has established specific criteria for deter.mining suitability of land
for disposal.
2. Congress, again in ELPMA, has established certain criteria for
coordination with State and local governments on land use planning for
disposal.
Raticnale
The Federal Land Poliey and Management Act of 1976 (90 Stat. 2743)
es~blishes the policy that:
"The public lands be retained in Federal ounership, unless as a
result of the land use planning procedure provided for in this
act, it is determined that disposal of a particular parcel will
serve the national interest •. ~." (43 USC 1701, Section 102)
FLPMA further establishes three criteria under which public lands may
be considered for disposal:
1. Such tract because of its location or othe~ characteristics is
difficult and uneconomic to manage as part of the public land, and is
not suitable for management by another Federal department or agency;
or
2. Such tract was acquired for a specific purpose and the tract is
no longer required for that or any other Federal purpose; or
3. DispQsal of such tract will serve important public objectives,
including but not limited to expansion of communities and economic
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development, which cannot be achieved prudently or feasibly on land
other than pu!.'.lic land and which outweigh other public objectives and
values, includ:.Ln.g, but not limited to, recreat~vn and scenic values,
which would be se'l;-;-~ti by maintaining such tract in Federal ownership.
FLPMA, even though it established a general policy for retention of
the public lands in federal ownership, also extended the older public
lane. laws on sett.lement until 1986 in Alaska. It failed, ho~ieYer, ·to
give criteria fo1~ disposal UD.der these settle.~~eut laws beyond ~
initial policy Sitatement on 'retention. BLM, lacking any other
standard, has applied the criteria for sales to settlement as well.
Using thses criter:ia, it has been possible to identify the two small
parcels of public land discussed ~ the decision £or disposai based on
their isolation from other tracts of public land, on the difficulty
and ecomonics of mana~ement, and on the UD.Suitabiiity for their
management by another Federal agency short of legislation to amend the
Alaska National Interest Lands-Conservation Act of 1980~ The
identification of these parcels fo.r disposal through the public land
laws meets a persistent, demand by which people, who wish to, may gain
title to the public land through the traditional settlement laws .
.
The draft recommendation to defer any disposal decision on the Tiekel
Block was based on the ongoing negotiations between the State of
Alaska, the Department to the Interior, and Chugach Natives Inc., to
determine the location of land~ on which Chugach could exercise its
outstanding selection rights. This issue h~s now been resolved with
the identification ofT. 3 S., R. l E., Coppe~ River Meridian, as the
site for thig selection. BLM believes that in tili.s instance, and in
this specific area, it can best respond to interest~ in acqu~ring
public land through the formal FLPMA lease and sale procedures.
Within the context of this effort, BLM has not been able to
specifically identify all those tracts of land within the Tiekel Block
which might meet the disposal criteria established by FI.PMA. This
level of analysis can be obtained through a program which allows the
public to identify specific sites within the block to which they wish
to gain title. By exercising its discretionary authority on FLP.MA
sale and lease applications. BLM can effectively narrow this general
opening of the Tiekel Block to those sites which meet. FLPMA
requirements. Through this. lease and sale program, BLM can also meet
the identified needs for land disposal within the Tiekel Block while
still considering the legitimate concerns of those private land
owners in the area whose land values are dependent on the continuation
of a fair market value climate~
In both of these instances, FLPMA leases and sales in the Tiekel
Block, and settlement entry in the isolated parcel along the Tok Road,
the State of Alaska is the primary p·rovider of community services such
as police and .fire protection. Its concerns in th.e area will be
addressed by including the State in any analysis associated with lease
or sale applications in the lands, both leases and sales, as
discretionary actions by the Secretary can be tailored to meet the
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State's concerns. The state can also exercise its preference tight to
select the area p>:ior to any opening.
While bo~ of these concerns also impact the allowance of entries on
the parcels along the Tok Cutoff, the conflict with the State's
selection rights assumes a larger role since once opened the allowance
of entry applications becomes a nondiscretionary action and could
significantly reduce. the State's options for selection. Here again,
the State can resolve the issue by exercising its preference selection
rights prior to any opening.
In the Denali Block, wh-ere both the State of Alaska and the Matanuska-
Susitna Borough ·have requested coordination of land use planning for
disposal, BLM believes it only proper to acceed to these requests. As
the primary proviaer of publi,c services and as the major land use
zoning authority for most of the Denali Block, the Matanuska-Susitna
Borough's interests should be taken into consideration in any action
to dispose of lands in those areas under its jurisdiction. In the
balance of the block, the State of Alaska, as the only other majo~
owner o£ lands and resources surrounding the block, has a valid
interest in seeing that policies for land use between BLH and the
State do not conflict. The state also has a significant interest in
land use planning on public: lands in its role as a manager of wildlife
resources and in its role as provider of public services, etco, in
Wlincorporated areas.
Enviroumental Considerations ___ " _____ ........,....._ _____ _
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The deferral of any disposal decision on the Denali Blo~k has the
effect of producing no enviroiliDental effects at. all a.t this time.
Should the regional plan for the area call for some level of disposal
action, an assessment of impacts may have to be done ~t that time.
The opening of the Tiekel Block to FLPMA leases and sales, as a
strictly discretionary action, allows BLM to mitigate potential
impacts on a site-specific basis. Each application for lease or sale
will in fact require a site-specific environmental assessment prior
to the publication of any Notice of Realty Action approving it. Any
significant impacts associated with a given application which cannot
be mitigated through modification or through reservations in. the
grant should cause the application to be rejected.
The opening to entry of the two parcels on the Tok Cutoff while it
does produce the potential for localized impacts, does not create a
significant impact to the public lands within the context of overall
size and management. No specific resource values of high public: value
have been identified in the areas to be opened.
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APPENDIX
A
MANAGEMENT CONSID~IONS
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MANAGEMENT CONSIDERATIONS FOR IMPIJ:MENTING
AN OIL AND GAS LEASING PROGBA11
This secti.on i$ provided in support to the Decision Record for Mineral leasing ..
The specific reference is made through the Environmental Considerations
portion o£ the text. Comments received from both public and internal review
identified a series of environmental issues which required management
consideration. The following text identifies the issues and the mitigating
measures proposed to a.eliorate potential adverse environmental impacts.
1. Issue: Development acti~r.ities could result in a decline in recreational
use of public lands through I11!odificat.ion of existing trail syst~s and
detracting from the wilderness qualities of currently undeveloped areas.
Mitigating Measures: Facilities should not be sited along, or immediately
adjacent to, existing trail systems unless it can be demonstrated to the
satisfaction of the District Manager, BLM, that there are no feasible ·
alternatives. Facilities should be designed and sited to blend
in with the surrounding environment to the maximum extent possible.
2. Issue: Sp.ortsmen, c:oDDerc:ial fishermen, subsistence users, and
recreationists all utilize lands within and near the proposed lease area,
and should be guaranteed continued access to lands and resources within
the proposed lease boundaries.
Mitigating ffeasures: Avoid restriction of public access to, or use of, the
proposed lease area as a consequence of oil and gas activities except
for small, limited areas in the immediate vicinity of drill sites and
other related structures.
3. Issue: Surface disturbance and related activities can damage and/or
destroy Historic and Prehistoric sites and artifacts.
Mitigating Measures: Apply the Bureauwide standard archeolgoical
protection stipulation to all leases issued.
4. Issue: Removal of snow cover ancl winter appropriations from fish-bearing
water can dewater fish overwintering areas and lead to reductions in
local populations.
Mitigating Measures: Removal of freshwater snow cover from fish-bearing
rivers and streams should be prohibited during the wi~ter (freeze-up to
break-up). Winter water removal from natural lakes should be subject ~:o
prior approval from the Area Manager, BLM.
5. Is~: Operation of equipment in streams during the winter can cause
stream flow modifications and interruptions of under-ice flow. These
changes may restrict or elimiaat~ fish overwintering areas. In addition,
clean up of oil spills would be difficult.
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Mitigating Measures: The operat;on of equipment in open water areas of
fish-bearing streams and in fish streams where under-ice water may be
present would be pr"hibited during the winter (between freeze-up and
break-up) ..
6. Issue: Drilling muds, etc. , can. be toxic and vary tremendously in
chemical makeup~
Mitigating Measures: Because in the Denali/Tiekel area evaporation is
oft~~ exceeded by precipitation, mud pits are unlikely to dry out.
Drilling muds and other produced waters should not be dumped on land or
in water bodies: The operations are conducted under permit from the
Alaska Department of Environmental Conservation. The Minerals Management
Service assures compliance to permit requirements.
7. Issue: Vehicular traffic acrdss unfrozen wetlands often causes severe
damage to soils and vegetation, can lead to permafrost degradat~on, and
may result in disturbance or destruction of wildlife popul~tions
~eluding fisheries. ·
Mitigating Measures: Exploration activities and surface entry into
wetlQds should be restricted to periods of the year when sufficient
ground frost and snow cover are present to prevent damage to vegetation
and soils (gene~ally November 20 to April 15), and should be supported
only by ice roads, winter trails, existing road systems, and air service.
Surface travel may be allowed outside of this time period if it can be
demonstrated to the satisfaction of the Area Manager, BLM, that travel
can be accomplished without damaging the sails and vegetation, and
without disturbing sensitive wildlife populations. In wetlands, Co\PS
of Engineers (404) permits are required.
8. Issue: Refuse disposal sites can disturb important ~ildlife habitat,
pollute groundwater and adjac~t waterbodies, and attract and trap
and/or kill wildlife~
Mitigating Measures: All garbage and refuse should be contained and
stored in a manner that would not attract or trap wildlife and should
be disposed of at a site approverl by both the BLM and permitted by the
Alaska Department of Enviroa~ental Conservation. Drilling muds, etc.,
pose a potential problem which requires extra effort to avoid.
9. Issue~ Would exploration, development, and eventual prod·1~.ction
significantly affect. fish and wildlife populations or their habitat?
Will these effects be short-term or long-term in nature?
Mitigating Measures: Although certain environmental impacts are
unavoidable ·.1hen exploring for oil and gas, many impacts can be avoided
or minimized through the use of mitigating measures. In order to ensure
that the environmental impacts of the proposed project are minimized to
the extent possible, the following proteetive measures should be
incorporated into all lease agreements. Although the probability of
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industry discovering commercial quantities of oil and gas reserves in
'the lease area is low, recoDIIlendations made would also ~ddress oil and
gas d·evelopment, production and spill avoidance. It i!. essential that
protective measures directed toward these two phases o.f proposed projects
be included in lease agreement in the event that producible reserves
are found ..
Issue; Construction activiti~s and the siting of facilities in close
proximity to rivers aud lakes can lead to shoreline erosion and
sedimentation of waterbodies, degradation of fis~eries habitat, loss or
alteration or riparian habiat important to birds and mammals, and
loss of public: access to waters and shorelines.
~Mi-· ... t.-i~g-at~in~g_M~ea-s-u,;;.r-e-s-: With the exc;eption of watercourse c:rossings,
facilities should not be located along the banks of rivers Qr shoreli~~s
of lakes. The siting, design, and construction of watercourse crossings
should be strictly controlled to avoid crucial habitats identified by
BI.M.
With the exception of road and pipeline crossings aligned perpendicular
to watercourses and approved by the BLM, facilities should be prohibited
within 500 feet (152 m) of all rivers and streams &nd fish-bearing lakes.
Wild and Scenic Rivers have more stringent protections.
Alteration of the bank3 of watercourses w~uld be prohibited except in
a manner approved by BLH.
Bridges would be used as watercourse crossings of fish habitat wherever
feasible and practical. ·Culverts should be used in fish ~bitat only
when absolutely necessary·and where it can be demonstrated they would not
block fish passage. The siting, design, and construction of both bridg~s
and culverts should be approved by the BLM prior to the placement of
either of these structures. Specific permits will be issued by BIJ:f for
all rights-of-way including water crossings. Eac:h right-of-way would
require an envj.ronmental assessment and site specific stipulations.
11. Issue: Loss or alteration of habitat is frequently the most significant
factor contributing to displacement and/or declines in fish and wildl.ife
populations. Maintaining the integrity of critical habitats~ such as
· fish spawning areas, moose cal~~g grounds, and moose and ca4ibou wintering
ranges, is espcially important t.o the continued sum val of wildJ ife
populations.
Miti_gating Measures: Long-term and permanent alt.~:rations of habitats
should be avoided to the maximum extent possible, particularly during the
exploratory phase: when it is not .known whether economically producible
reserves of hydrocarbons will be discovered. If it is necessary to site
facilities in particularly sensitive fish and wildlife habitats, or along
migration routes to and from these areas, development activities should
be strictly controlled to minimize the enviro~ental impacts of the
project. Surface use should not conflict significantly with subsistence
use of resources.
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A. Exploration facilities, with the exception of drill pads, should be
temporary aud should not be constructed of gravel.
B.. Plans of OJ;w~atl.ons and unit agreements would be reviewed to ensure
that facil:H~ies and surface disturbance required to safely and
efficientl:y explore and develop the proposed lease area are kept
to a mjnjDI!Um.
C. The Area l.Umager, BLH, would require that lease facl.lities be
,·sited to a·void critical fish and wildlife habitats.
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All leasf!~ &ctivities would be conducted, and structures designed, to
maintain r1ormal wa.ter,. flow and drainage patterns, and to allow free
movement :and safe passage to fish, caribou, and moose, J)all sheep,
and other wildlife species.
Wheneve~ possible, joint use of facilities with other lesse~s is
desirable.
Upon ab1a.ndonment of drill sites, roads, buildings, or other
facilities, such facilities would be removed and the site
rehabilitated, unless it is shown to the.satisfaction of the
Area Mla~aager, BLM, that such removal and restoration is not in
the best .interest of sustained m~tiple use la.nd mana~ement.
12. Issue: The use of upland gravel sources generally results in fewer
impacts OIA fish and wildlife populations than gravel removal from rivers
and streams. Upland gravel removal can result in habitat loss, however,
through surface disturbance and interference with natural drainage
patterns. Gravel extraction from critical wildlife habitat can be
particularly damaging to local populations.
Mitigating Measures: In meeting gravel needs, uses of gravel from
existing BLM approved material sites would be the f~,rst sources utilized.
Exceptions may be permitted if it can be demonstrate,·i to the satisfaction
of the Area Manager, BLM, that use of these sources is not feasible. or
prudent.
Gravel mining sites would not be located within the annual floodplains
(from vegetation line to vegetation. line) of watercourses, uniless it 'is
demonstrated to the Area Manager, BI.M, that a floodplain source is the
preferred environmental alternative. If gravel mining within floodplain
is deemed necessary, a permit for the site shall be granted by the Corps
of Engineers prior to any gravel removal. Mining site development within
floodplains should follow the procedures outlined in Gravel Removal
Guidelines for Arctic and Subarctic Floodplains, 1980, U. S. Fish and
Wildlife Service, Woodward Clyde Consultants.
13. I:> sue: Above-ground pipelines can interfere with seasonal movements of
moose and caribou migrations and lead to displacement of caribou from
preferred habitats. This could prevent the Nelchina caribou herd from
utilizing traditional calving or winter ranges and cause a decline in
population.
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Mitigating Measures: In the event of production, pipelines should be
consolidated and buried in all areas where thaw stable soils exist in
sufficient depths to allow burial. Any required above ground sections
will be constructed to ensure a minimum ground clearance of ten feet
(3.0 m) at the pile bents, with the following exceptions: (1) in areas
where it can be demonstrated to the satisfaction of the Area Manager, BLM,
that lower heights will be adequate to ensure sa£~ and unres:tricted
passage of moose and caribou, and (2) in areas identified as important
car;~ou movement zones, greater clearances may be required. In addition,
refrigerated sections of buried pipelines may be required to prevent
thawing unstable are&s that are highly used traditional caribou migration
routes.
14. Issue: Water intakes coaaonly entrain and kill large numbers of fish
and other aquatic organisms •
Mitigating Measures: Water intakes 1J£ed du . .-~:ing the SUDIIler to remove
water fro• fish-bearing waterbodies would b~ Gurrounded by a screened
enclosure to prevent fish entrainment. and :i~.;:'ilt~~ment. Pipes and
scr~eni ng should be demigned and construct~ed tjO t.lut the maximum water
velocity at the surfa.ce of the s.creen, encloa11re i.~ no greater than 0.1 foot
per s·econd. Screen m.esh size should not excs:::f.':d 0. (M, inch.
15. Iss\;;~.~ Ur•j(~ l}:~ t;$ktlr.~ as g:ta.,. ... 1,. ·-,ou;~ce~ ~ri,1.~i. rcsul;t in. loss of denning
hab.f.t~t. "~t,,.. b:;;"'~~ bea:ts, wol''i,~ol, ar.;.d tHev~r~.l ~~t.hr~r denning species, and
could .~:·~._.p ... ~.~~ ~:.h4af§a .fluimals f:1.·om ~~j.,t;.~t crv.r~iitl · ... :o their survival and
well-being.
Mitigating Mea~~tft~ Grravel r~.c~~~l i:rom e~~!!::.s during exploration and
development woula ~~ prohibi~~~ unless it can be demonstrated to the
sat.isfaction of the Area Manager, BLM, that important habitat would not
be lost and there are no other feasible gravel sources.
16. Issue: An increase in public access to crucial moose wintering habitat
iJl the Alphabet Hills region could result in the displacement of moose
from this area and lead to a decline in the local moose population due
to the unavailability of other wintering habitat.
Mitiaatins Measures: The construction of permanent roads would be
prohibited within the following areas:
Township 10 North, Ranges 2, 3, 4, s~ 6, 7, 8., and 9 West, CRM
Township 11 North, Ranges 2, 3, 4, 5, 6, 7, 8, and 9 West, CRM
Township 12 North 7 Ranges 2, 3, 4, 5, 6, 7, 8, and 9 West, CRM
17. Issue: Bald eagles, protected under federal law, nest throughout the
Copper River Basin. Destruction of nest sites and disturbance to nesting
pairs is forbidden by law and could displace eagles from preferred
habitat, cause a decrease in reproductive success, and lead to a decline
in present population levels. Some bald eagle pairs have alternate nests
and rotate their use among theiJ: nests.
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Mitigating Measures: The following stipulations should be incorporated
into all permits to ensure that activities are in compliance with
Federal regulations:
A.
B.
Permanent facilities would be prohibited witlti.n 500 .~eet (152 m)
of all bald eagle nest sites. Most eagle nests are located within
l/4 mile of waterbodies.
Surface entry within 500 feet (152 m) of bald eagle nests would
be prohibited between April 1 and August 31. Temporary activities,
which do not alter the habitat, may be allowed outside of ~is time
period.
18. Issue: Peregrine falcons (Falco peregrine anatum and Falco peregrine
tundrius) are currently on both the State and Federal endangered species
lists. Destruction of nesting habitat and disturbance of nesting pairs
could interefere with the reproductive efforts of falcons and prevent
peregrine populations from increasing and eventually attaining healthy
stable population levels.
Mitigating Measures: Apply Peregrine Falcon standard stipulation to
remedy any potential problems ..
19. Issue: The Delta River and Gulkana River, including the main stem, Middle
Fork, and both branches of the West Fork have been included in the Wild
and Scenic River System. Their wild and scenic values must be protected.
Mitigating Measures: Seismic lines, trails, roads, an~ other pe~anent
facilities would be prohibited-within two miles (3.2 km) of the Gulkana
River and Delta River. Provisions would be made to allow crossing of
the river at a location(s) approved and accepted by the BLM.
20. Issue: Many people associated with oil and gas exploration will not be
aware of the environmental and social considerations essential to proper
development of the area.
Mitigating Measure_!: An environmental training program may be required
as a condition of approval of Plans of Operations. The program should be
designed to inform each person working on the project of specific types
of environmental, social, and cultural concerns that relate to the
proposed lease or project area and ensure that personnel understand the
use of techniques necessary to preserve biological, geological,
archeological, and cultural resources.
21. Issue: Trumpeter swans, protected unoer International Treaty, are
particularly sensitive to disturbance and may be displaced from traditional
breeding habitat if facilities and human activities occur in close
proximity to nest sites or rearing lakes. The area south of the Alphabet
Hills is a major swan concentration area.
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Mitigating Measures: In order to maintain trumpeter swan nesting
populations at their present levels, the following measures will be
implemented:
Roads, pipelines, above-ground wires, and all other per.manent
faci,lities would be prohibite:'i within a minimum of one-quarter
mile (0.4 tm) of docunented trumpeter swan nest sites and rearing
areas , and possibly within one mile ( 1. 6 lar.) of nests and rearing
areas, depen~ing on the site and the propo~~d facility. ·
Surface ent%1r and aircraft overflights at altitudes of less than
1,500 feet (J1S6 m), would be prohibit~d within one-quarter mile
(0.4 km) of dDcumented trumpeter swan nest sites and rearing areas
between May 1 and September 1 .
22. Issue: The detonation of high explosives near fish ,habitat has been
shown to have detrimental effects on fish.
Mitigating Meas .. lrf!S: To prote,ct fish and other aquatic fauna, high
explosives would be prohibited within, beneath, and in close proximity
to fish-bearing waters unless prior drilling indicates that the waterbody,
including its substrate, is solidly frozen. The min±mum acceptable
offset from fish-bearing waters for various high explosive Gh~rges is
contained in the appropriate permit.
23.. !!sue: Threatened or endangered (T&E) species may be discovered after
a lease is issued.
Mitigating Measures: The Endangered Species Act Mould still apply and
the lease would have to be modified.
24. Issue: Waterfowl are attracted to waste water areas, such as mud pits,
causing their death or injury.
Mitigating Measures: All waste water areas, such as mud pits, would be
equipped with flagging, scarecrows, noise·making devices, or other means
to prevent waterfowl from landing in these areas.
25. Issue: Dall sheep rely on certain ~ineral licks.
Mitigating Measure~: No activities would be permitted within 1/2 mile
of identified sheep licks.
26. Issue: Furbearers may be heavily hunted and trapped in areas of lease
activity. People working on the lease would have an unfair advantage
ov~~ the general public in trapping and hunting in the area.
Mitigatin_g Measures: Leaseholders, their agents, employees, subcontractors,
subcontractors' employees, etc., should be. prohibited from hunting and
trapping within 5 miles of their lease area. Alaska Fish and Game is
the enforcement agency.
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21.
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Issue: Explor~tion and/or development activities may impact
subsistence use of resources.
Mitigating Measure: Apply the standard subsistence protection stipula-
tion to ameliorate potential adverse impacts.
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APPENDIX
B
GENERAL STIP~MATIONS
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Dep~rtment.of the Interior
Bureau of Land Management
Anchorage, Ala~ lea
2
ALASKA UPLAND NONCOMPETITIVE OIL AND GAS LEASING STIPULATIONS
ON BUREAU OF LAND MANAGEMENT ADMINISTnED PlmLIC LANDS
The Bureau of Land Management (BLM) operating in accordance with the Federal
Land Policy and Management Act of 1976 (FLPMA) and 30 CFR 3100 has the
authority to impose conditions or limitations, in addition·to those imposed by
l..aw.
The stipulations have been developed considering South Central Management
Framework Plan Corridor (MFP), and amended} interagency review, public
comment, and previous mitigation ~easures imposed on other Federally or State
managed lands within the State of Alaska:-Lease stipulations will be enforced
throughout the lease term. Included here are general stipulations. Special
condition . .s exist for whic:h .a geographically restricted stipulation will be
prepared. For example, special stipulations gov~rning sur~ace occupancy will
be included in any lease issued within any granted right-of-way.
The following are general stipulations and are to be applied to a lease.
1. Lessee shall not conduct geological, geophysicalt and other
assessment activities on the leasehold without an Exploration Plan
and Permit approved from the District Manager, Bureau of Land
Management (:aLM, as required by the Alaska Nat.ional Interest Lands
Conservation Act (ANILCA), Section 1008 (b)(l)(B) and (f).
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2. Lessee shall not conduct exploratory (excluding geological,
geophysical, and other assessment act~.vities which. will be permitted
under Item 1 above), development or production activity on the
leasehold without an EA~loration, Development and Production Plan
approved by the Deputy Manager, Minerals Management Service (MMS)
which is consistent with the requirements of ANILCA, Section 1008
(b)(l)(B), (£), and (g).
3. Prior to undertaking any surface-disturbing activities on the lands
covered by this lease, the Lessee, f:Ulless notified to the c~ntrary
by the District Manager, shall:
a. Engage the services of a qualified archaeologist acceptable to
BLM to conduct an intensive inventory for evidence of cultural
resource values;
b. Submit a report , .. c: the inventory acceptable to the District
Manager;
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4.
5.
6.
3
Co Implement such mitigation measures as required by the District
Manager to preserve or avoid de~truction of inventoried cul-
tural .resource values. Mitigation may include relocation of
proposed facilities, 'monitoring of surface disturbance9
testing, and data recovery or other protective measures. All
costa of the inventory and mitigation will be the responsi-
bility of the Lessee or operator, and all data and materials
removed will remain under the jurisdiction of the U.S.
Governaaent;
d. · Ce4se surface disturbance upon discovery of paleontological or
archaeological values or other objects of scientific interest
until further work is approved by the District Manager.
In any Application for Permit to Drill (APD) submitted under
30 CFR 221, the Lessee shall include a proposed environmental·
tra;ning program for all personnel involved in exploration or
development activities (including persoDnel of the Lessee's
contractors and subcontractors). The program shall be reviewed
and if adequate, approved by the MMS, after consultation with
the BI.M.
In any application involving geological, geophysical, and other
assessment activities, the BLM will deter-mine if the activity would
conflict with subsistence use of resources and if these conflicts
require special attention, based on information provided by the
Lessee. The MMS will make similar determinations for exploration
plans and for development and production plans.
a. If conflicts are identified, the Lessee agrees to employ a
certified subsistence specialist. Certification will be by the
BLM in consultation with th~ Alaska Department of Fish and Game
(AD~&G) Regional Subsistence Council. The Lessee also will
provide t-ransportation and accommodations for the specialist to
visit the site of potential conflice, inspect the lands and
resources involved, and interview subsistence users.
b. The subsistence specialist is required to develop comments and
recommenc3tions or alternatives for protection of subsistence
. ~esources and ~o guarantee access to them, consistent with the
intent and language of ANI:tCA! Title VIII. These will be used
by the Lessee, as determined appropriate by the BLM in consul-
taion with the MMS.
Permits for geophysical operations, exploration plans, (Drilling
Plan as defined in 30 CFR 221.12) and development and production
plans will be limited, as follows, in order to protect endangered
peregrine falcons (Falco peregrinus anatum, Falco peregrinus.
tundrius), unless expectations are approved by the MMS following
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endorsement by the BLM. Under Section 7 of the Endangered Specie~
Act, consultation would not be required prior to approval of pexmit.s
for activities consistent with tbe following:
a.. All construction and ground level activity will be prohibited
within one mile of peregrine falcon nesting sitl'S from April 15
through August 31.
b. Aircraft shall maintain 1500 feet in height above nest sites
when within one mile hori2ontal distance from nest sites
between April 15 and August 31 •
c6 Dri~l pads, airstrips, camps roads, pipelines, and similar
facilities will not be permitted within one mile of nesting
sites.
· d. Blasting or other significant construction noise within two
miles of nest sites will be prohibited between Apirl 15 and
August 31.
e. Alteration of ponds, lakes, wetlands, riparian ar~as, and other
limited, high-quality habitat is not permitted with 15 miles of
nest sites.
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UNITED STATES
DEPARTMENT OF THE iNTERIOR
BUREAU OF LAND MANAGEMENT
SURFACE DISTURBANCE STJPUL.AT10HS
Management Agency (name)
Bureau of Land Management
1. Notwithstanding any prov1s1on of this lease to the
contrary, any drilling, construction, or other operation
on the leased lands that will disturb the surface there-
of or otherwise affect the environment, hereinafter
called ''sutiace disturbing operation,'' conducted by
lessee shall be subjed, as set forth in this stipu-
lation, to prior ~proval of such operation by the Area
Oil and Gas Supervisor in consultation with appro-
priate surface ma7uigement agency and to ~~xch rea-
sonable conditions, not inconsistent with the purposes
for which this lease is issued, as the Supervisor may
require to protect the surface of the leased lands and
the environment.
2. Prior to entry upon me land or the disturbance of
the slJl'face thereof for drilling or other purposes,
lesseet shall submit for approval two (2) copies of a
map cu1d explanation of the nature of the anticipated
activity and surface disturbance to the District Engi-
neer or Area Oil and Gas Supe~:Visort as appropriate, and
will also fumish the appropriate surface management
agency named above, with a copy of such map
and explanation.
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kea OU and Gaa SU1)4!'Vi801' or
Di•tiic:t Encineu (Adtbws.s. ir.. :l{i.d• rip cade) ~
MlN!IALS ~CI!MfNT SDVtCI
ONSHOI! flrut.·OP!lAnCHS
!00 A STI!!T, sUIT! 211
~AWICA,_I
Address ( inciud~ zip cod~)
AL~SKA STATE OFFlCE
701 C S~EET, BOX 13
ANCHORAGE, AK 99513
I
An environmental analysis will be made by the Geo-n
logical Survey in consultation with the appropriate lj! u surface managem~t. agency for the pnrpose of assuring
proper protection of the surface, the natural resources, n
the environment; existing improvements, and for t~l
assuruig timely reclamation;,£ disturbed lands. U
3. Upon completion of said environmental analysis, q r,
the District Engineer or Area Oil and Gas Supervisor, 11 w
as appropfiat\!, shall notify lessee of the conditions,
if any 1 to which the proposed surface disturbing n
operations will be subject. ~~
'.,,:)
Said conditions may relate to any of the following:
(a)
fl 11
Location of drilling or other exploratory or 11
developmental operations or the manner in !..)
which ·~hey are to be conducted; r
(b) Types of vehicles that may be used and areas j :
in which they may be used; and '··
(c.) Manner or location in which improvements ~:·,
such as roads. buildings, pipelines, or other ';
improvements are to be constructed.
======================================================================================!-
Form 3109-5 (Au~ust 1973}
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?Rsidential
recommenda·
tiona to
Congrftl.
PUBLIC LAW 96-487-DEC. 2, 1980 94 STAT. 2481
!CZNlC HIGHWAY STUpY
Szc. 1311. (a) Wl'l'BDu.w.u..-Bubject to valid existing righ.t-1. all 16 USC 3200.
public lands within an area, the centerline of which is the centerlina
of the Parks Highway ii'om the entrance to DeDali National Park to
the TalkeetDa junction which ia one. hundred and thirty-six miles
south of Cantwell. the Denali Bighw.!lf between Cantwell and
Paucm. the Richardlcm HiDway aDd Edprton Hishway between
Pauon and Chitina. aDd the aistiDg road. between ChitiDa and
McCarthy (aa Uu. hichwa11 and road an depicted an the ofticiaJ
ma~ of t.be <iepuotmenl; of trauportation of the State of Al••ka) and
the boundariei of which an pUallel to tbG cen"terline and one mile
dilt•ut tb.r~ on eitUr side, an hereby withdrawn from all
forma of mi:IT or appropriaticm under th• mining laws and from
operation of the minerall•eing 1£Lws of the United States. Nothi!l( in
this section shall be construed to preclude minor road realignment,
minor road impnrv8ment, or the extraction of gravel for such pur-
pea• from lands withdrawn or affected by the study mandated
herein.
(b) SrcDt.-DuriDg the three-year period begjnning on the-date of
enactment of thia Act, the Secretary shall $tlldy the desirability of
establishing a Denali Scenic Highway to C0118iat of all or part of the
lands described. in su.t.ecticm (a) of thia section. In conducting the
studies, the Secretary, through a study team which includes repre-
sentatives of the Secretary of Trauportation, the National Park
Service. the Bureau of I,and Management, the State, and of each .
Regional Corporation within whoM area of operation the lands
~ m suba•ctioD (a) are located, shall cousider the scenic and
reaeationai valu. of the lands withdrawn under this section, the
importance of providing protection to tboea· values, the deairability of
providing a ~ymbolic aDd actual physical ccmnec:tion between the
~tiODal parD in south central Al••ka, and the aesirahility of
enhancing the GlM'rieDce of per.!IODII travel.hlg bet:Jeen thaee parks
by motor vehic.l-. Members of the study team who are not Federal.
employees shall recaive from the Secretary per diem (in lieu of
expenses) and travel allowances at the rates provided fer employees
of the Bureau of Indian Aifaim in .AJaeka in grade GS-15.
(c) CooPDA'ftON NO'I':KZ HK•awaa.-In conducting the studies
required by this secticm, the Sec:txtary shall cooperate with the State
and shall CODSUlt with each Villap Corporation within whoee a....-ea of
operation lands desc:rihed in this section are located and to the
maximum extent practicahle with the owner of any lands adjoining
the landa described in subrtection (a) concerning the desirability of
estab)isbing a Denali Sceaic Highway. The Secretary, through the
National Park Service, shall allo give such public notict! of the study
as he deems appropriate, iDclwiing at leut publication in a news-
paper or newspapers haviDg general circuJ.ation in the area or areas
of the lands des:ribed in subaecti.on {a), and shall hold a public
h . h . . • . . J -=-. t ....... ~~-eanng or earmp a: .. a'=.;: ~r. mo~ _cmwuua convemen w me a....-eas
affected. .
(d) REPO.RT.-WUhin three years after the date of enactment of this
Act, the Secretary shall report to the President th., results of the
studies carried out pursuant to this section together with his recom·
mendation as to whether the scenic highway studied should be ·
estahliahed and. if his recommendation is to establish the scenic
highway, the lands described in subsection (a) which should be
included. therein. Such report shall include the vieW1!5 and recommen·
dations of all members of the study team. The President shall advise
the President of the Senate and the Speaker of the House of
Representatives ofhia recommendations and those of the Governor of
Alaska with respect t4 creation of the scenic highways, together with
mal)! thereof, a definition of boundaries thereof, an estimate of costs,
recommendations on administration, and proposed legislation to
create such a scenic highway, if creation of one is recommended~
(e) Pmuoo OP WmmRA w AL.-The lands withdrawn under subsec·
tion (a) of this section shall remain vnthdmwn until such time as the·
Congress acts on the President1s recommendation, but not tcJ exceed
two years after the recommendation is transmitted to the Congres .
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• \.J I ' JAYS. HAMMONDt GOVERNOR
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CERTIFIED HAIL
RETUR..f\l RECEIPT REQUESTED
December 10, 1979
Cook Inlet Region, Inc.
P.O. Drawer 4-N
Anchorage., AK 99509
DIYISION OF L 4NOS
NOTICE OF STATE OF ALASKA'S
OWNERSHIP OF SUBMERGED L~~DS
323 £. 4TH A V£NUE
ANCHORAGE. ALASKA 99501
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Pursuant to section 6(m) of the Alaska Statehood Act, 72 Stat. 339,
the Submerged Lands Act of 1953, 43 U.S. C. 1301 ~ ~·,. and the
"equal footing" doctrine, Pollard v. Hagen, 44 U .. S. 212 (1845), the
State of Alaska holds title to the land under navigable and tidal
waters located within the State of Alaska. Such title vested in the
State of Alaska upon Alaska's admission as a State to the United
States on January 3, 1959; and since that time the United States has
had no title, ownership right or interest in submerged lands. In
particular, such submerged lands are not "public lands" as that term
is defined in section 3(e) of the Alaska Native Clnims Settlement Act,
43 U.S.C. 1602(e).
... .... t ....
By decision of November 30, 1979, file No. &~-13358, the Chief
Adjudicator for the Alaska Office of the Bureau of Land ~anagement has
stated his approval for interim conveyance or patent of certain lands
pursuant to Section 4(a) of P.L. 94-456. It appears from the adjudicator's
decision that the BLM will attempt to convey to you certain lands
wh±ch may underlie waters which the State of Alaska believes to be
navigable. The h~avy b luck lines os ~Jut lined on th~ attached ·.·1ater
Delineation Map indicate those water bodies within the sel~ction area
which the State of. Alaska believes ate navigable; the l.Jnter Delinertti\)n
Maps are identified as Exhibit A, Sheets 1-3.
BE ADVISED
convey t i. tl~ tn
T·l. Los An~eles,
nnd the >.lutv tv .,
that the :ju reuu of L$l.nd ~!anttg~men t is t·ri LH>U t power t~.>
l nnds under nav igab 1~ waters. 1kn:-n:·: G_qnBn_l ~-l:1ter 1 _Ltd.
296 U.S. 10 (1935). Th~ Stnte of Alaskn has the ri~1t
:Jt'Otect its titlt.~ by all means :tuthori.zed by law .
T'1is ::1otice ts providlHi ttJ yon St) thut yr.:nr may ~t.~ <H-:n!.·u nf th~
St''ltL.11 ~ i)C" .. c 1 t_i.~Jl). ~:::o~r~r·~.;l1<"t 1 i" J ,.. i ~-.,1 t ' .-t • , ... ; .. -.. , -'·6(,.{ l ...... o .an(!:) un .'-~ ... nav .:;a..., e \va ern, an.: t•r.n ... e~
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Cqok Inlet Region, Inc4' 2 /. . _cember 10, 1979 ...
your own interests as you deem appropriate. The State's identificat~o·,~
by name of certain water bodies as navigable is intended to assist you
in protecting your own interests. You are CAUTIONED that the above
list of navigable waters may be incomplete. Only a federal court may
de.termine as a final matter whether a particular body of water is·
navigable or non-navigable. The State's identification of navigable
waters in many instances is based on limited data. If additional
information should indicate that a water body was navigable at the
time Alaska became a state, then the State holds title to the land
under that body and has the duty to protect such title. The State's
failure to list such water bodv in this notice is not intended as a . . a:?;?;· -~~ent ~~State's title .
AHOS C. MATHEWS
Director
cc: Curtis V. McVee, State Director
Bureau of Land Management
NinilchiK. Natives Association, Inc.
P.O. Box 173
Ninilchik, Alaska 99639
.
Salamatoff Native Association 1 Inc.
P.O. Box 2682
Kenai, Alaska 99611
Seldovia Native Association, Inc.
P~O., Box 185
Seldovia, Alaska 99663
Ty0nek Native Corporation
445 E. 5th Avenue, Suite 9
Anchorage, AK 99501
Knikatnu, Inc .
P.O. Box 2130
Wasilla, Alaska 99687
Alexander Creek, Inc.
8126 Tri-Lake Road
Anchorage, AK 99502
Chickaloon Hoose Creek ~ative Association, Inc.
2600 Fairbanks Street
Anchorage, AK 99501
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----::---~---""'=-.-w-...•·-...··..,~~ _., .----... ~~ . .,~ 6. SLK 1980 Chapter 76: L
1 easing of State Land to Utility Cocperatj.,ves
The commissioner of 1 less than m;rket valnatut·ra resour~es is required to lease state land at
ue o non-prof1t cooper t"-· or electric transmission and distributio ~ 1Ve assocJ.at~ons for telephone
lower the retail price to some tele honen l~ne~. T~eoretJ.cally, this should
the cost of providing the i P-an e ectr~c services by lowering -se serv cea.
Effective date: June 13, 1980
WHAT ABOUT NAVIGABILITY?·
The Question
In 1959. ownership of the beds of navigable waters
and submerged lands was passed to the new State of
Alaska. These underwater lands cannot be conveyed to
Native corporations. The problem is thatthe ownership
-was conveyed by declaration, not by identifying which
specific rivers or lakes were navigable. Now. 20 years
later. the question is: Which underwater lands does the
State own?·
The Answer And Why It Matters
It a river or lake i1 navigable. the !and under the
water :s owned by the State. If it is not navigable those
acres of submerged lands within a Native corporation
go to the corporation.
Whethar such acreage is considered a benefit or a .
loss by corporations may vary from one to another. In
any event. the submerged lands acreage of non·
navtgable waters are charged as part of the
corporation's entitlement.
Definitions
BLM is required to determine which rivers and lakes
are navtgabie within Native selections. It makes its
· determmation on the basis at court decisions defining
navigability and all of the information it has about the
particular water bodies.
Definitions employed ~y BLM are drawn from a 1976
memorandum from the Office of the Solicitor. They
1nclude tin shortened form):
Navigable Waters: Bodies of water used. or
suscept1 ble to being used. in their ordinary
condition as highways of commerce.
Highways of Commerce: UsabJe by commercial
vessels that float upon the water: aircraft use
does not make the water navigable.
Commercial Vessels: Fernes. barges. or otner Doats
carrying commerciai quantities of itt!ms. This
does· not include small flat-bottomed or sport
fishing boats.
Susceptibility: Coulc be used for commerce. even if
it hasn't been so used.
Seasonal variations neither fix nor deny navigability
determinations. However, physical accessability is
necessary to be considered navigable.
Information About the Water Bodies
In determining navigability. 8LM initially relied on
available information about rivers and lakes and then
supplemented that information with field reports on
navigability.
To obtain more information about water bodies and
whether they might be navigable. the BLM contracted
with the Arctic Environmental Information and Data
Center to conduct systematic research of written
records. This research supplied information about
more than 3.000 water bodies. On some water bodies
the information is very thin and research and
organization of this infc.Hmation continues.
Oetermination
In its draft decision on easements. BLM determines
that bodies of water are r.avtgable or non~navtgable on
the basis of all the foregoing. Before a final
determination is made. BLM takes tnto account any
contrary evidence presented by village or regional
corporations or other interested parttes. ·
··: SOLJC·ITOR ISSUES NAVIGABIL.ITY OPINION l
I~ Department of the Interior
3 RegionaJ .Solicitor Jack Allen has
prepared navigability guidelines for
I? 8 LM staff ;15 a result of the Alaska
Native Claims Appeal Board ruling
on the Kandik and Nation Rivers.
I! The ANCA6 decision, in Appeal
·.: of Doyon., Ltd., ruJed the two rivers
" navigable, reversing B Llv1's deter-
mination of non-navisz;abilitv.
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Allen summarized that, for the
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most part, the ruling reiterated
existing Departmental guidelines
on navigability. Where the Board
and BLtY1 diverged was on inter·
pretation of the law as it applies
to the types of uses that must be
considered in navigability deter-
minations.
;fhe Board's decision indicates
that BLM needs to consider use by
smaller craft, such as outboard
t
{
river boats and pole boats, if they f
represent the customary mode of t
trade or travel on a river. The I
Board emphasized the jmpon:ance r
of locai conditions in establishing r!
commercial use and also stated
~hat the Kandik and Nadan ~
"may • . . constitute the O!JtSid~ l
limit of navigation for useful i
commerce." I
AHen also interpreted the f
ANCAB ruJing as meaning B~J\'1 ~
must place a stronger emphasis on !
the possibility that a river coufd
be used for commercial travel. as ~
weB as on documented historic 1
commercia! use. For example, the l l' use of boats for "private" nona !
commercial purposes such as I'
hunting, recre:ttiqn and sub,sistence ~~~
does not necessarily esubfish navi-I
gability. However, such use may l
contribute to a finding that the l
waterbody coul~ be used as a high-t
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way for commerce. ,
Taken in its entirety, Allen l
advised B LM that the ruling em-1
phasized all factors and consider-l
ations must be viewed together to j!'.
determine whether :1 given water
bodv is navigable or not. The l
K4ndik and Nation ruling indicates
rhat each navigability case is a
factual onel based on use or poten-
tiaJ use, not on volume. B L:Yt must
evafuate each warerbody within its
geographic and factual setting~
Copies of the Solicitor's opinion
may be obtained by writing:
'dob Arno,d, B L4\1 1 701 C Street,
Anchorage, AK 99513.
/
Acc:ordlrw :o t:•e :f.>deral SuhMnrpcd
Lands Act \·.f 1853, ~itle to all lands
beneath navig~bl(~ bodie~ of water belongs
to the statf!s. For Alaska, that rn\"JV
involve as manv as 16 milli'on acre:; !>f
land above and beyond the state's upland
entitlement to 104.5 million acres under
the Stat~hood A.ct.
"Not only could thrs mean additional
land for the State of Alaska," explained
Ron Swanson, Department of Natural
Resources navigability project manager,
''but it also means the state may be
entitled :o submerged lands under water·
ways which aro surrounded by federal
lands or those lands under private owner·
ship by Native corpora!ion and others."
In terms of the oil and gas potential,
and saleable materials such as river basin
gravel, such ovvnership could be very
valuable to the state. It would also mean
the state could provide access to most of
Alaska's v;~aterways for sportspersons and
recreation ists.
In order to substantiate its claim
to these submerged lands, the state has
embarked on a project to document the
navigability of the ~.·.:aterways.
"Accordmg to the Supreme Court,
navigability of a \Natenvay is definr.d as
supporting 'trade, travel or commerce, or
susceptibility to those uses, while in it·>
ordinary state, "{!Xplaincd Swansotl.
To accomp~hh this documenta;tion,
the Department of Natural R.esou1·ces'
Division of Researc:h and Develcrrnent
has a staff of historians WP•rking to. gather
data which could be used to slJ:lJ~t.antiate
navigability of Alaska's '1\.!CJtl'!rways:
Ac:cordrng to one o~ t·~"~e state's histo·
rians, Hichard 0. Stern, there <lit'! sr•vc1 :11
ways· of ga~hcr.nq the d&ta.. "Aftur
th;z ~aeograph.;c. ,;~r.td of conc~rn has bctm
determined. we do a ~lubtisl1ed liwratun•
search," he ~·aid, ''looking for both
primary and secondary mferenccs to uses
awecnu'nt with the Bureau of land
Management (8 U/ll.
"Working v:ith Bl.M on a regional
basis ic; helpful in thrH \.,..e can divide up
the !:tote for research and avoid clupli··
cations," explained Stern. "Vve don't
bother to research in great detail those
bodies we (the state and 8 lM) agree are
na•igable-like ~·~1e Yukon River-but,
instead, concentrate on those. such as
the Gulkana River, where title navigation
is in·dispute.''
BLM's historia:"s go one step further
than the state's in their analysis and
interpretation o.f the historical, infor·
mat ion they gather; they ma·ke recom·
mendations to B lM 's l£;nd ·conveyance
personnet as to the navig.ability of water-
ways.
''When B LM conve,ys the land to
the state or a Native corporation, they
make the navigabiHry determinations,''
explained Stern. "3ut if the state has
data which indicaU1 use of a waterway for
navigation, and the BLM maps do not
show su~h a d~termination, DNA recom·
menrls to the Attorney General's Office
that 3n a¥Jpeal be filed on the contested
waterway."
Th!s is ~'hat has happened in the
GuH<c:m~ {{ivet mea whert"! tand has been
conveyetl to I'.Jative corporations of the
Copper River area.
~~within a month we "viii bP. going
t-:1 court to contest B LM 's determination
that the Gulk<ll1a River is non· navigable,..,
said Swanson. "At tl111 c;ame time, \'.:c
will be documenting the navigability of
the Upper Susitna Riv•n. historical uses
follow thP sante pattern 1n ~h.:H :1rca as in
tfw Gulknnn ar r:;J "
In the case of th,; Sl1!i1 tna Hive:.
Slllmwro~~d lnnds in the rnidrHe part .H~'
nm·v~ cl.wned hy Cook lni·•t Hcqrun, In•.;.,
while the state hus an uncontested cl:tirn
on tht? lowr.r nnn of the ri·:er. "If the
plan ln Jill! toqr.thor severn! typus of
navigabilitY cr•urt actions,'' lw Pxplnincd,
"\Nhich covPr several types of watrrways
uses. Tlwn \'!~hem we go to court, \VC will
h~ not only sr.ttling a particular case,
but also settinn precedents in terms of
court cases for certain types of situa·
tions.''
"The historical evidence we have
to use for substantiation is different in
diffP.rent cases," remarked Stein. "We
have few Alaska cases to go by in terms
of preparing our case: Dun to Alaska's
unusual physical characteristics and his·
torical legacy, there are no cases in
the lower 48 to which we can make
analogies in preparing our legal and
historic~il c;?.-.c:: ,•n navirJabilitv.H . )
T!v pn•,surP~ for obtaining Jll~
rulirH)S CHl v:atrrhody na\'if}clhility w;
even gre;:n~~r if AI ask a lands legis![··
passes. If it dot:!s. thf' statn will hu\
initiatr. court actions, on cases invq ,
navigabilitY of watcrv.-ays on N
lands, within five years of thn 1
t of the transfer of land. 1
i-"This will requirP a much l
intensive state effort," said Swa~
"but thP background research al~
scheduled, together with several pi~
court actions to dnr ify naviqa~
criteria, will. provtde a good base fd
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state's future legal efforts:· l ..
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I Page 4 ANCSA
I
ANCSA Profile:
I BLM' s Navigability Program
t==================================
I The vast majority of land selec-
tions made by the statets Natives
include some type of water body.
Whether it be lake or river, slough,
I. bog pond or marsh, these water
bodies must be designated either
navigable or non-n~wigable by the
1.. B LM during the land conveyance
process. During fiscal year 1981
navigability determinations will
need to be made on roughly 7 .
I. million acres of Native selected
land; state selections will require
the agency to review the waters on
an additional 34 million acres#
I. The legal requirement for this
work stems, in part, from the
1953 Submerged Lands Act which
I granted states title to submerged
beds of navigable waters. The
Alaska Statehood Act entitled
Alaska to 103.5 million acres of
I unreserved federal land, in addition
to beds of all unreserved navigable
waters, but did not specify which
lakes and rivers were navigable.
I Additionally, the 1971 Alaska
Native Claims Settlement Act
entitled eligible Native corporations
I to select 44 million acres of federal.
land, including the lands under non-
navigable water bodies. The B LM,
as the federal agency charged with
I conveyance of available land to the
state and the Natives, must make
the navigability determinations not
spelled out at the time of state-
•
hood.
· BLM staff, guided by existing
law and precedent, research the
I past and present use and conditions
. odf t~e. wat7r body and ardriv~ at anf
a mmtstrattve recommen atton o
navigability. BLM solicits recorded
I and verbal testimony from various
. state agencies, Native corporations
and private parties during the case
I investigation. ANCSA Division
staffers gather additional infor-
mation for the record at village
meetings. Before any water body is
I continued, page 7
BLM's navigability team in the Division of Resources received commenda-
tion from Secretary of the Interior Cecil D. Andrus for their work during
the past two years. BLM State Director Curt McVee reads the Secretarial
Citation to lead navigability specialist Sherm Berg in the August
ceremonies. Also comrnended were, from left to right, jo Antonsen-Mohr,
Historian; jules Tileston, Chief, Division of Resources; Liz jacobsen,
Clerk-Typist; Cathy Bolds, Clerk-Typist; and Tammy Beck, Clerk-Typist.
To Me Vee and Berg Is right are A/vena Klinefelter, Legal Clerk; Neil Bassett,
Natural Resources Supervisor; and, Mike Brown, Historian. During fiscal
year 1979 BLM evaluated navigability selections for 137 Native villages,
3 regional corporations and over 4 million acres of state selections. Thus
far during 1980, 73 village selections have been reviewed, 13 regional
selections and over 11 million acres ofstate selections.
BLM staff from the Anchorage and Fairbanks District Offices, the ANCSA
Division and the Resources Division meet to discuss navigability priorities
for the 1987 work schedule. From left to right are Mike Brown, Sherm
Berg, Willa Mae Shore, Dave Rupert, jo Antonsen-Mohr, Carol Shobe,
Marty Karsetter, Terry Hassett, Rick Elliott and jules Tileston. Also
attending the meeting but not pictured were Pat Beckley and Art
Hosterman.
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Solicitor Advises BLfV1 on
Chargeability of Land Ber1eath
Nonnavigable Waters
The Regional Solicitor has deter·
mined that Native corporations
selecting land which is more than
one-half nonnavigable water must
be charged for both the dry and
wet 4creage in that section.
In response to a BLM request for
clarification of the regulations,
Regional Sol.icitor Jack Allen quali-
fied this decision by explaining that
if a section is more than one-half
covered by nonnavigable water, the
Native corporations are not
required to select the section -
even though such an omission
might violate the requirements of
compactness and contiguity. The
only situation in which corpora-
tions would be required to select
sections containing more than one·
half nonnavigable water is if the
corporation selects all the riparian
land surrounding the water bodv.
If the corporations choose to
select land that is over one-half
nonnavigable water, then they
sh.ould expect that the wet acreage
Will be charged against their entitle-
ment. The choice is left to the
corporation.
Allen cites the Code of Federal
Regulations, Title 43, Section
2650.5-1 which refers to the non•
navigable chargeability and then
co"!lpares it with Section 2651.4(b)
wh1ch refers to compactness and
~ontiguity, Allen also refers to a
1978 Federal District Court case,
Doyon v. Andrus, where the court
rejected an attempt to select less
than whole sections.
Allen advised BLM that he docs
not believe the exemption from
compactness and contiguity in a
section that is over one-half non-
n.wieahl<' w.lif'r "lnnlioc; t" ,,,,..
Navigability
continued from page 4 .
conveyed t«;> a • ~ative. corpo.rationr·
a lf.~gal nottce IS published m th,ef,
dasl;ified St."Ction of the state S!f
nev1spapcrs and allows 3~ ~aysr~ ·,
fo·· appeals to the dctermmauon\ :~:
w be filed. t
The BLM considers navigabili~Yj
on a case by. case ~nd a townsh.•~t
by township bases -as landj .1
selections requir.e -but has als~ ,
recently begun a massive reorga!"'1 :
zation of the task to evaluate entarer
drainages. In ;m effort it~ r~a.ch1 (
early consensus on navagabllttYj ,
determir;ations, BLM and the,
Alaska Oepanment of Natura~· .
Resources . are cooperatively pref•t ·
paring regional navigability reports+
Representative!~ from the two)'
~gencies decide upon an area ?~
study ther. proc.eed to compale;
a complete historacal record of use,
for the region that is mutuallY!
agr~ble. Regions currently unde~
study are the Tamna Basin, t~~
Yukon River and the Kuskokw1"'
Basin. After review by interested
parties, including N.:tive corpor~
ations the regional report will beco~e ~ facwal record agreed t~
by the state and feder3:l govern~
ments Native corporations anQ inter~tcd parties and will become ~
factual basis for BLM in deter;
mining the status of water bodie!.
on Native selections in those areas:
Navigability recommendatio.n~
are made by the BLM State Of~c~
Resources staff ~s wen a3 navaga
bility specialists in the 'Fairbanki
and Anchorage District Offi~es.
The administrative determinattor,
is made· by the BLM's State'
Director, when he signs th'
Decision to Issue Con--:cyance,
Three staff members m .tht
Anchorage District Office revte~
the case fil~ for the southern h~l·
of the state. During 1981 they wtl
be assisted by personnel fro'!'· tht
Glennallen, McGrath and Pe.nmsul~
Resource Areas. The. Fatr~ank ,
District has a staff of sex ass!gnc'
to navigabilitY work, includang ·
representative each from t!11
northern Resource Areas o~ Arcttc
Kobuk, Yukon and Fortymtle. Th
State Office presently has a staf
of thr~e navigability specwalists an•
is recruiting for two more:.
core township, H"'' .:, he says, :ill
submerged lands under nonnaviga-
ble waters must be selected,
conveyed <lnd charged, otherwise
Section 12( a)( 1) of ANCSA will be
.... :~·"'!· ....•
CONDEMNATION
OF
PRIVATE LANDS
GUIDE
CAUTION: This document is not to be used as a legal opinion of the
State or its agencies
Prepared by: Bruce R. Bedard
Alaska Power Authority
January 1981 .
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CONDEMNATION OF PRIVATE LANDS
.
(N) or shall private property be taken for public use without just com-
pensation.!
The above quotation from the taking clause of the fifth amendment to the
United States Constitution poses, by far, the most significant restraint
upon the government's acquisition of property and regulation of land
use. The extent to which.government (both federal and state) may regulate
the use of private property without violating the Constitutional pro-
tections afforded the landowner has become increasingly important.
Condemnation is the taking of private property by a governmental body
for a public use without owners consent.2 When the government. exercises
its power of eminent domain3 to condemn property, the Constitution
requires that the landowner receive just compensation for the property
taken. The government through the acquiring agency usually estimates
the just compensation own~d to the landowner and offers this amount as
recompense for the property condemned~ If the ~lndowner agrees with
the government's estimate of value and accepts the compensation offered,
the matter is closed and litigation is averted.
The landowner, however, often refuses to accede to the government's uni-
lateral declaration of value and attempts to seek additional compensation
commensurate with the landowner•s estimate of fair market value. When
the government and the landowner are unable to agree on a value, they
resort to the jndicial process, and litigation ensues.
The goal of all condemnation litigation is to arrive at a fair and just
determination of compensation for the landowner deprived of property as
a result of governmental actions. Cost of condemnation are usually
comprised of employment of experts, inventory of resources (timber,
coal, gas, oil, gold etc.) and valuation of condemned property, estimation
of sever.ance damages, pre-tria 1 discovery, tria 1 , and ap.pea l.
The description of state condemnation
herein is not meant to be exhaustive.
directed at the non-lawyer seeking to
condemnation proce~dings.
practice and procedure contained
Instead, the presentation is
gain a practical work knowledge of
Each condemnation is unique and has distinct legal and practical pro-
blems. The landowner confronting impending condemnation is well~advised
to consult an appraiser immediately. Should condemnation occur or even
appear probable, the landowner should seek legal counsel to insure
adequate representation in obtaining just compensation for the property
taken or to be taken.
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A OVERVIEW OF
CONDEMNATION OF PRIVATE LAND
A. The Constitution and the Power of Condemnation
The fifth amendment to the Constitution states: ''(N) or shall pri-
vate property be taken for public use~ without just compensation ...
Under the Constitution the United States may not condemn property
unless:
1 .
1) the condemna.ti on is for a "pub 1 i c use !t 11 and
2) the United States pays the landowner 11 just compensation".
Public Use
The tenn "public use" esentially means "public advantage.11
Any taking which tends to enlarge the resources, increase the
industrial energies!t and promote the productive power of the
inhabitants of the United States, and which contributes to the
general welfare and prosperity of the whole conJTiunity, is a
taking for public use.4 Although a public benefit must be
shown, the entire community or even a considerable portion
thereof need not directly benefit for the taking to constitute
public use.S Public use also has been defined as a use 11 Conducive
to community prosperity.11 6 Examples of public use to which
forestland is devoted when condemned include national parks,
national forests, national wildlife refuges, and military
reserves. The benefit derived in each instance, of course,
may vary.
The definition of 11 public use" is given a very broad construction
by the courts, in order to allow the widest discretion to the
federal government. If any possible public benefit can be
anticipated, the court will sustain the government's action,
even if the landowner alleges that the taking is designed to
promote-other private interests at the expense of the landowner.7
2. Just Compensation
Just compensation has been interpreted to mean the "full and
perfect equivalent for the property taken."8 The landowner
must be placed in as good a pecuniary position as if the
property had not been condemned.9 Under the Constitution, an
award of just compensation is comprised of three elements.
First, the landowner is entitled to the fair market value of
the property taken.lO Second, the landowner should receive
compensation for any depreciation in the market value of
remaining property .not taken,ll commonly called severance
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B.
damages.12 Third, when the date of taking precedes the date
of payment, the landowner should receive such additional
amount as will produce the full equivalent of the value of the
property, had full payment been made contemporaneously with
the taking.13 This additional amount is known as damages for
delay in payment. A brief overview of each element of just
compensation follows.
Fair Market Value of Property Condemned
1. Definition of Fair Market Value ---
When a parcel of land is taken for public use by the exercise
of the power of eminent domain, the fair market value of the
taken property must be determined.l4 It must be borne in
mind, however, that umarket value" is not an ~nd in itself,
but merely a means to an end, the ultimate object being the
ascertainment of "just compensation."15 Federal courts have
used the term 11 market va1ue 11 interchangeably with the tenn
11 fair market value 11
, and there is no reason to suspect any
difference in application.16
Definitions of what constitutes fair market value have been
articulated by a number of appraisal authorities, treatise
writers, and fed era 1 cour-ts.. As defined by the American
Institute of Real Estate Appraisers, fair market value con-
sists of:
(1) .•. the highest price estimated in terms of money
which a property will bring if exposed for sale in the
open market, allowing a reasonable time to find a pur-
chaser who buys with knowledge of all the uses to which
it is adapted and for which it is capable of being used.
(2) ... the price at which a willing seller would sell and
a willing buyer would buy, neither being under abnormal
pressure.
(3) .•. the price expectable if a reasonable time is
allowed to find a purchaser and if both seller and pro-
spective buyer are fully informed.17
George Schmutz, author of the Condemnation Appraisal Handbook,
defines market value as:
The highest price estimated in terms of money which the
property will bring is exposed for sale in the open
market by a seller who is willing but not obliged to buy,
both parties having full knowledge of all uses to which
it is adapted and for which it is capable of being used.l8
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In defining fair market value in the classic sense, the
federal courts have generally ascribed to the basic eiements
of fair market value described above. The ~upreme Court in
Brooks-scanlon Corp. v. United States, 26'5 U .. So 106, 124
(1924), for example, defined fair market value as: "the sum
that would in all probability result from fair negotiations
between an owner who is willing to sell and a purchaser who
desires to buy.11 The Supreme Court refined this definition iri
Olson v. United States, 292.U.S. 246, 257 (1934), stating that
market value is:
the sum which, considering all the circumstances, could
have been obtained for (the property); that is, the
amount that in all probability would have been arrived at
by fair negotiations between an owner willing to sell and
a purchaser desiring to buy. In making that estimate,
there should be taken into account all consideration that
fairly might be brought forward and reasonably be given
substantial weight in such bargaining.19
In synthesizing the above definitions, it should be remembered
that fair market value essentially is based on reasonable
assumptions supported by actual market behavior. For example,
when valuing a l~rge tract of timberland it is perfectly valid
to assume that the property could be offered for sale on the
date of valuation in several pa~cels or units and sold to one
or more buyers?20 A party, however, need not identify a
particular potential buyer or buyers or show that the property
owner is in fact willing to se11.21 Fair market value is
nothing more than a benchmark used by the courts to award just
compensation for condemned property.22
2. Highest and Best Use
Fundamentai to the concept of fair market value is the theory
of highest and best uses also called highest, best and most
profitable use. According to one commentator:
"All fair market value estimates proceed from the vital
question of the highest and best use of the property ..
. . Whatever the case may be, no determination of fair
market value can be made without a finding of the highnst
and best use since the two concepts are inseparable.23
The Appraisal Terminology and Handbook published by the
American Institute of Real Estate Appraisers defines highest
and best use as:
"the most profitable likely use to which a property can
be put . . . . (S)uch use may be based on the highest
and more profitable continuous use ta which the property
is adapted and needed, or likely to be in demand in the
reasonably near future.24u
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This definition is essentially reiterated in a subsequent
publication by the Institute: ·
that (use) which at the time of appraisal is the most
profitable likely use of a property . . . . (T)hat
available use and program of future utilization which
produces the highest present land value.25
Federal cases giving precise definitions of highest and best
use have not been abundant~ In Olson v. United States, 292
U.S. 246, 255 (1943), the Supreme Court commented:
"The highest and most profitable use for which the pro-
perty is adaptable and needed or likely to be needed in
the reasonably near future is to be considered, not
necessarily as the measure of value, but to the full
extent that the prospect of demand for such use affects
the market value while the property is privately held.11
Another federal court has reiterated this definition, stating
that highest and best use must contemplate:
a present existing use or one reasonably likely to take
place in the near future, whereby availability of6this
future use would have affected the market price.
3. Appraisal Methodologies
There are several generally recognized methods for estimating
fair market value: prio~ sales approach, comparable sales
approach, income approach, and cost approach.
a. Prior Sales Approach
Prior sales of the same property, reasonably recent and not
forced, can sometimes be the best evidence of market value.
The primary problem with using the prior sales method, how-
ever, is the norma 1 1 ack of proximity in time b~~:tween the
prior sale date and the date of valuation. The Supreme Court
has held that original cost to the condemnee is a 11 fa1se
standal:"d of the past 11 when current market value in no way
reflects that cost.27 Generally, the question of remoteness
between the time of the prior sale and the date of valuation
goes to weight, rather than admissibility of the va~l~,tation
evidence.28 Courts generally hesitate to rely upon prior
sales as the exclusive basis of their determinations of
current market value.
b. Comparable Sales Approach
The most commonly used method of appraisal is the comparison
of sales of similar property with the property being con-
demned, commonly known as the comparable sales or the market
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data apprpach. Courts favor this appraisal methodology --
11(0)rdinarily, if there are sales of comparable property at or
near the time the condemned property is taken, evidence in
regard to such sales would be more appropriate than any other
method in detennining the market value of the property taken.u29
Opinions of value based on comparable sales and on the general
familiarity of the expert witness with property values in a
given area are the most reliable bases of market valuea30
Co Income Approach
The income approach estimates the present worth of future
benefits to be derived from a property, as measured by the net
income which a fully informed person is warranted in assuming
the property will produce.31 This methodology has its greatest
usefulness in the valuation of income-producing property,
since such property usually is purchased in expectation of a
reasonable return.32
Values estimated by the income approach, however, normally are
disfavored where adequate comparable sales evidence exists.33
But whe~e no evidence of comparable sales is available, the
income approach ma.y be accepted as the next best va 1 uation
method.34
dG Cost Approach
The cost approach, technically speaking, determines a pro-
perty's overall value by adding to the value of the bare land
the depreciated reproduction or replacement costs of improve-
ments currently on that land. The cost approach method of
valuation is usually allowed only when the property involved
is so unique as to take it outside the general appraisal
rules.35
By reason of its very nature, land cannot be appraised by
strict application of all of the above-described methods.
Moreover, to fit the needs of the subject matter, variations
on the above general valuation approaches have been developed.
For example, the merchantable resource component on a con-
demned tract may be valued ~y a conversion return analysis.
The specific applicabiiity of these standard valuation methods
to the appraisal of resources, as well as modifications and
variations thereof, are discussed later in this written
material.
C. ~everance Damages
There exists an additional element of just compensation when only a
portion of the lr :':~owner's property is acquired (hereinafter referred
to as a "partial taking") and the taking results in a diminution of
the fair market value of the remainder property. In such instances,
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the owner is entitled to payment for any diminution in fair market
value of the remainder property; this compensation is termed
severance damages.36 Severance damages are measured as of the date
of the partial taking, considering any information or data upon
which a prospective purchaser and seller of th~ remainder property
would have relied at that date.37
Several fundamental prerequisites must be satisfied before a court
will award severance damages in a partial taking case. These
prerequisites include the following:
1. The landowner must demonstrate that a definite relationship
exists between the property taken and the remainder. That is
to say, the landowner must show that the whole property con-
stituted an optimum economic unit before the taking. Although
some courts have been unwilling to assess damages for property
which is not physically contiguous with the part condemned,
more recent decisions have held that integrated use, not
physical contiguity, is the standard by which a court will
determine whether land condemned is part of a single, inte-
grated tract warranting consideration of severance damages.38
2. The landowner must show that there has been a reduction in
value to the remainder property and that the reduction is a
direct result of the partial taking and/or the proposed use of
the part acquired.39
3. The remainder property for which damages may be recovered must
usually be real property. For example, the courts have con-
sistently held that special damage due to loss of business is
not a compensable element of severance damages.40
At least three methods have been used to estimate severance damages:
(1) the "before and after" valuation; (2) the "modified before and
after11 valuation; and (3) the modified modified" valuation. These
three appraisal methods will be discussed in more. detail later.
D. Damages for Delay in Payment
As stated previously, just compensation has been defined as "the
full and perfect equivalent for the property taken"41 and represents
an attempt to place the landowner in as good a position as the
landowner would have been had the property not been taken.42 When
the date of taking precedes the date of payment, the owner is en-
titled to receive an additional amount that will produce the full
equivalent of the value of the property, had payment been made
contemporaneously with the taking.43 Awards for this element of
just compensation have been referred to as "intet"'est." Such
characterization, however, is a mistake, since this additional
amount is aw~rded to the landowner to compensate for damages due to
delay in payment and is not interest as such.44
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As an element of just compensation, damages for delay in payment
can be extremely important to the landowner, especially in instances
where the judicial award for the value of the taken property {plus
severance damages) is significantly greater than the government•s
initial deposit and when the delay period from the date of taking
to the date of award is long. Given the current unsettled state of
the law relating to the measure of such damages, however, the land-
owner is less likely to become as involved in this area of the
1 itigat'ion as compared to the determination of fair market value of ..
the taken property and the appraisal of severance damages. There-
fore, the various legal issues concerning damages for delay in·
payment will be treated in fairly summary fashion herein.
The first issue generally confronted relates to the government•s
usual attempt to have the court adopt, without any consideration of
existing realities, the rate of 11 interest" found in the pertinent
legislation passed by Congress authorizing the condemnation.. For
example, the Declaration of Taking Act, 40 U.S.C. * 258a (1976), as
well as the original Redwood National Park Act, cited previously in
this written presentation, employs a six percent figure. Recog-
nizing that the determination of just compensation (and therefore,
damages for delay in payment) is a judicial function and not a
legislative one, federal courts have found that the six percent
rate of interest appropriate for computing damages for delay in
payment of just compensation.45 Rather, it serves as a floor.46
Indeed, one court stated that, 11 We strongly suspect that in this
ca:5e the use of 6 percent is bar·red by the Fifth Amendment. n47
Faced with continuing judicial opposition to its repeated efforts
to understate damages for delay in payment by use of statutory
rates, one would expect (albeit opti~i~tt~~lly} that the government
would stop using this argument: ihe landowner, however, should
expect the government to argue this erroneous theory in every case,
even though it has been discredited as lacking in legal (and common)
sense.
Once the initial hurdle discussed above has been overcome, the
question of how damages for delay in payment are to be measured
remains. Again, the government in recent years has made the un-
realistic argument that rates for a government obligation covering
the period of delay should be the sole determinant of the measure
of damages. This argument also has been found to be without merit,
a '1 though one court has requ·il ... ed the trier of fact to 11 Consi der 11
government obligations along with other indicators of the financial
c1imate.48 Courts have r·eviewed performance of various debt instru-
ments, including certain certificates of deposit and bond rates,
plus levels of the prime rate in arriving at interest rates substan-
tially above those espoused by the government.49 The United States
Court of Claims has taken the additional step of indicating its
desire to adopt standard rates for given periods of time for use in
determining damages for delay in payment in just compensation
cases, this rate to be used regardless of the evidence presented by
the landowner.50
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As me~tioned previously, the rates adopted by the various courts
are not "interest11 as such. Notwithstanding this fact, courts
generally have used the adopted rates in a simple rather than a
compound manner, based on the premise that compound interest cannot
be allowed against the government. This, in itself, precludes the
landowner from being placed in the same position as if full payment
had been made on the date of taking.
To summarize, a landowner-condemnee is legally entitled to just
compensation which includes the fair market value of the condemned
property, severance damages to the remainder property, and damages
for delay in payment. The remainder of this presentation traces
the stages in a condemnation lawsuit from the formal condemnation
to the final award of just compensation to the landowner·. The
discussion focuses on factual and legal issues that might arise and
the role of the landowner in condemnation proceedings.
II.
THE CONDEMNATION
The United States may take property pursuant to its power of eminent
domain in three ways. First, Congress may pass a statute legislatively
taking property (called a "legislative taking 11
). Second, Congress by
law may authorize an agency to condemn property. The administrative
agency then may proceed under specific statutes allowing for immediate
acquisition of title and possession prior to ascertainment of just
compensation~ usually the Declaration of Taking Act, 40 U.S.C. * 258a.
Under this procedure, the agency must file with the court a declaration
of taking and a deposit of the estimated just compensation. On the
other hand, the agency may file with the court a complaint in condem-
nation whereby the property remains with the landowner until the court
determines and the United States pays just compensation to the landowner.
Third, the United States can acquire physical possession of property
without authority of a court order,51 or engage in aR action or activities
which deprive the landowner of the full and beneficial use of the property.52
In this last type of taking, known as "inverse condemnation,11 no con-
demnation proceedings are instituted by the government, and the land-
owner must take the initiative and sue the government for just com-
pensation.
A. Legislative Taking.
Congress may, if it so chooses, enact a statute condemning property
on a specific date. Upon enactment, the property is taken and the
date of valuation is set. A legislative taking of this nature
might identify the particular court where the landowner must liti-
gate the question of just compens~tion. For example, by the Redwood
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National Park Act, the United State acquired all right, title and
interest in, and the right to immediate possession of, thousands of
acres of redwood forestland as of October 2~ 1968.53 In that
instance, Congress required the landowner to bring an action for
just compensation in the United States Cour~ of Claims. This Act
was amended on March 27, 1978, when the United States acquired
additional redwood forestland by legislative taking.54 On this
occasion, the landowner was directed to bring suit in the United
States District Court for the district where the property was
located. In addition, the government was given the alternative of
initi~ting suit ..
B. Statutory Authorization to Condemn
Rather than taking the property itself, Congress may authorize a
federal agency to take the property$ In carrying out the con~
gressional direction to condemn, the agency has available to it
several means.
1. Declaration of Taking
The filing of a declaration of taking is a corrunon method by
which the federal government condemns land. Under the Decla-
ration of Taking Act (40 U.S.C. * 258a), the United States may
file a formal declaration of taking signed by the authority
empowered by law to acquire the subject lands.. The declaration
must contain:
a) a statement of the authority under which the lands are
taken and the public use intended,
b) a descriotion or ider :ification of the lands, .
c) a statement of the estate or interest taken in the lands,
d) a plan showing the condemned lands, and
e) a statement of the estimated just compensation for the
property taken.
Upon filing the declaration of taking with the court, the
agency must also dsposit in the court•s registry the estimated
compensation recited in the dec1aration. When this is done,
the-United States may obtain immediate title to and possession
of the property. Besides granting title and possession to the
government, the Declaration of Taking Act relieves the government
of the burden of paying damages for delay in payment on the
amount deposited. The Declaration of Taking Act also gives
"the former owner, if his tit1e is clear, immediate cash com-
pensation to the extent of the Government•s estimate of the
value of the property.u55
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Naturally, the deposit by the government does not always
compensate the landowner fully for the property; if the final
judgment exceeds the amount deposited, the land owner is
entitled to the excess with damages for delay in payment. An
example of the discrepancy that might exist between the amount
deposited and the true value of the condemned property appears
in the case of United States v. United States National Bank of
Oregon ~nd,Klamath Tribe, Civ. No. 74-894 (Do Ore., filed
November 15, 1974). In that case, the United States filed a
declaration of taking on November 15, 1974, to gain title and
possession to approximately 135,000 acres of timberland in
Oregon. The government deposited only $49,000,000 for nearly
a billion board feet of ponderosa pine, lodgepole pine, sugar
pine and white fir. The final judgment in this case totalled
$130,540,000. Of this amount, $103,000,000 was attributable
to the fair market value of the condemned property, with the
remaining $27,540,000 constituting damages for delay in payment.
The courts are divided as to whether a landowner may contest
the adequacy of the deposit of just compensation and thus the
validity of the declaration of taking. One court has held
that the amount of deposit is a matter of administrative
discretion and not subject to judicial review unless the
landowner asserts that the condemning authority acted in an
.. arbitrary or wanton 11 manner.,56 In United States v. 45.33
Acres of Land, 266 F .. 2d 741 (4th Cir. 1959)) the government
deposited $1.00 in the registry of the court. The landowner
submitted evidence that he had been offered $180,000 by a
prospective buyer. Although the court gave the United States
adequate opportunity to present evidence to the effect that
the $1.00 deposit was made in good faith~ the government
failed to offer such testimony and gave no assurance to the
court that the matter could ever be heard and decided. The
court thereupon dismissed the condemnation case and ordered
the government to. surrender possession of the property to the
l~ndowner. On appeal, the United States Court of Appeals
for the Fourth Circuit stressed that,
We do not find it netessary to review the authorities nor
to co1sider whether the District Court possessed the
power to inquire into the sufficiency of the deposit nor
to determine the issue of good faith.57
Mevertheless the Court of Appeals affirmed the district court's
dismissal of the condemnation case 11 for failure to properly
prosecute and in the interest of the orderly conduct of court
procedure."58 The net result was that the government•s
apparent bad faith in its deposit of $1.00 resulted in a
dismissal of the condemnation.59
PaaA 11
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Pursuant to Section 301 of the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970, Pub. L.
No. 91-646, 84 Stat. 1984 (1971), Congress has established a
uniform policy regarding the federal acquisition of real
property. The statute states that the acquiring agency pro-
ceeding under a declaration of taking should deposit with the
court 11 an amount not less than the agency's·approved appraisal
of the fair market va1ue 11 of the condemned property. ,Although
the Act creates 11 no rights or liabilities 11 for the landowner,60
the acquiring agency is 11 required to furnish the owner with a
written statement of the basis for the amount established as a
just compensation and a su11111ary of that basis ... 61 Despite ·
these statutory requirements, the government often has no
"approved appraisal" at the time the declar·ation of taking is
filed and rarely will it provide the landowner with the basis
for the est]mated deposit.
Once the United States files a declaration of taking and
deposits its estimated just compensation, the government is
"irrevocably bound 11 to pay the final award of just compensation,
whether_ or not Congress has. authorized appropriation of monies
sufficient to cover actual cost of the condemned property.62
Title in the property having vested upon the filing of a
declaration of taking, the government cannot abandon the
condemnation without paying the landowner the final award of
just compensation.63
Rather than resorting to the general provisions of the Decla-
ration of Taking Act, the government can condemn property and
obtain immediate possession prior to a determination of just
compensation by proceeding under specific statutes expressly
authorizing such possession. Statutes of this sort, however,
are infrequently used and are not of general appli~ability.
Among the more commonly encountered are Section 5 of the
Rivers & Harbors Act of 1918, 40 Stat. 911, codified at 33
U.S.,C. * 594 (1976) (available only to the Secretary of the
Army for certain civil works projects) and Title II of the
Second War Powers Act of March 27, 1942, 56 Stat. 177 (avail-
able to the Secretaries of War· and Navy for military purposes
in times of war and national emergency). In 1971 Congress
went on record favoring grants of possession prior to judicial
determination of just compensation only when the Declaration
of Taking Act is followed:
No owner shall be r9quired to surrender possession of
real property before the head of the Federal agency
concerned pays the agreed purchase price, or deposits
with the court in accordance with section 258a of Title
40, for the benefit of the owner~ an amount not less than
the agency•s approved appraisal of the fair market value
of such property, or the amount of the award of compensation
in the condemnation proceeding for such property.64
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c.
2. Complaint in Condemnation
An agency can also initiate proceedings to acquire property by
filing a complaint in condemnation. In th~ complaint, the
condemning authority identifies the tract in question and
requests the court to determine just compensation owing to the
landowner. Uniike a declaration of taking, the filing of a
complaint in condemnation requires no deposit and the United
States therefore cannot obtain title and possession to the
property until the court has determined and awarded just
compensation. For purposes of detennining fair market value,
the property is valued as of the date of trial or as close
thereto as possible.65 Since title and right to possession
does not vest in the United States upon mere filing of a
complaint in condemnation, the government does not become
irrevocably bound to take the property and pay the just
compensation awarded by the court.66 The government may
withdraw its complaint at any time without being required to
take the property.67 The government normally obtains title
and the right to possession of the property at issue only when
it pays the landowner the final judgment awarded by the court.
Controversy exists regarding the question of whether the
United States may acquire the right to immediate possession
merely by filing a complaint without depositing in the court•s
registry an estimate of just compensation for the condemned
tract. On the one hand, more recent cases indicate that
possession may be granted to the United States prior to
determination and payment of just compensation only when the
Declaration of Taking Act is followed or when Congress expressly
has authorized immediate possession.68 Yet, older decisions
indicate that immediate possession may be granted the government
without the necessity of a deposit of estimated just compen-
sation.69
If the United States were allowed to condemn land by filing a
complaint in condemnation and a motion to obtain immediate
possession, without depositing in the court's r·egi s try the
estimated just compensation, the government would be able to
acquire the use and benefit of resources without paying for
them. Needless to say, the effect on the landowner would be
devastating.
Inverse Condemnation
The United States may also take property without the authority of a
court order. Such a taking is known as 11 inverse condemnation." In
an inverse condemnation, the landowner initiates the court pro-
ceeding by filing a complaint alleging that the United States or
agents of the government in their official capacity through various
actions have acquired the property by depriving the owner of the
full and beneficial use of t~e land.
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A lawsuit in inverse condemnation has several practical implications
for the landowner in the litigation of the case. For example, if
the landowner seeks compensation in excess of $10,000, the action
can be brought only in the United States Court of Claims. If the
compensation sought is $10,000 or less, the landowner·may choose to
file a claim either in the federal district court where the land is
found or in the Court of Claims. Other practical implications of
inverse condemnation actions will be discussed in greater detail
below.
The first major issu~ in an inverse condemnation action is whether
there has been a 11 taking 11 that is compensable t~nder the fifth
amendment of the ConstitutiQn. An inverse taking can occur with or
without actua 1 phys i ca 1 1 ntl'lts ion on the 1 andowner ~ s property by
the government.
1. Inverse Condemnation ~·Physical Intrusion
By entering into physical possession without authority of a
court order, the United States is liable for inverse condem-
nation.70 A physical invasion of property includes not only
appropriation and confiscation, but also physical interference
with the owner's use and enjoyment of the --property. The
government might physic~1ly intrude on property, yet never
assert that it intended to appropriate the land. Where
physical invasion is present, no showing of an intent to
acquire on the part of the government is necessary provided
the consequences of the actions which resulted in the taking
are reasonably foreseeab1e.71
2.. Inverse Condemnation without Phys i ca 1 lJ!!:rusi on
An inverse taking need not include a physical intrusion.
Various governmental actions, short of occupying the property,
can constitute an inverse cond~mnation, although such ta-kings
are much harder to prove than physical takings. Courts have
held that a landowner alleging inverse condemnation without
physical intrusion must prove two eleme .. ts in order. to recover:
a) that the government had the specific intent to acquire
the land, and
b) that the land has substantially dimininshed in value as
a result of the government•s actions.
a. Intent to Acquire
As a general rule, the mere threat of a taking is insufficient
to establish inverse condemnation. ihe government's actions
must go beyond preliminary statements and investigations and
clearly evidence an intent to acquire the property in question.72
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Federal acquisition of the property must have been expressly
authorized or directed by Congress or the taking must at least ·
be the natural consequence of congressionally approved measures.73
For example, an intent to acquire may be manifested by formal
condemnation legislation, depending upon the language of the
statute.74
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b. Substantial Diminution in Value
Besides proving intent to acquire, the landowner must show
that the property at issue has significantly diminished in
value as a result of the government's actions .. 75 This is most
-r\~adily established when use of the property and/or its market-
ability ·is substantially ·impaired. A good example is the case
of Drakes Bay Land Co. v. United States, 191 Ct. Cl. 389, 424
F.2d 574 (1970). The property involved in Drakes Bay lay
within the area designated by Congress for inclusion in the
Point Reyes National Seashore in California. The aggrieved
landowner had the specific intention of subdividing the property
for residential purposes. The landowner was precluded from
proceeding with subdivision by the government's acquisition of
adjacent land which was necessary for a county standard access
road. Upon thwarting the landowner's subdivision plans through
blockage of access, the United States delayed further dealings
with the landowner, as the property's status was frozen. The
Court of Claims characterized the landowner's predicament as
follows:
A. The Cruise
Thus plaintiff remains without a market for its land.
The private sector is not interested, understandably,
because of the well publicized threat of eventual con-
demnation of Seashore realty. The public sector, namelly
the National Park Service, is not interested because
after having successfully thwarted plaintiff's subdivision
plans, ·it realizes that plaintiff is a party who can be
deferred interminably, and dealt with at pleasure.76
I I I..
FAIR MARKET VALUE APPRAISAL
OF CONDEMNED PROPERTY
Clearly one of the most important steps in valuing property is to
determine the volume of resources involved. Field (and office)
work associated with this task may, in the case of large land
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tracts, require several years to complete. Because of the many
technical complexities involved, perhaps in no other area is proper
coordination of attorney and expert more essential.
This discussion is not meant.to provide a listing of every potential
controversy related to cruising. Suffice it to say that any step
in the process, from selection and training of cruisers to dis-
cussions found w·1thin the formal inventory report, may be called
intc question by the opposition. The trier of fact, most likely
becau~e of a lack of technical ·expertise, often finds it extremely
difficult to determine which party•s inventory is more acceptableo
As one judge recently stated:
Tne record establishes that crusing lands is not an exact
science. Two different cruises of the same land often produce
different results. Yet, each cruise result may in and of
itself be acceptable for a given purpose.77
It is therefore imperative that the inventory process be conducted
with a view towards litigation. ·This ·fs not to mean that the
answers should be skewed in favor of the party employing the expert
to cruise the property. Rather, special steps must be taken to
insure that the trier of.fact unde~stands the procedures followed
and finds the work to be entirely raasonab~e.
Initial cruise specifications must be formulated with existing
market standards in mind, so that the trier of fact will find the
results an indicator of how the market would view the condemned
property at the date of taking. Sampling techniques should be
chosen (and checked) so that final volumes cannot be questioned on
the basis of inadequate data. Training programs must be instituted
(an~ fully documented), if necessary, to demonstrate to the trier
of fact that field measurements are taken by qualified personnel
and are not biased. The choice and use of volume tables must be
shown to be reasonable. Finally, certain check cruising work,
otherwise unnecessary, may have to be accomplished merely because
the work is being conducted for litigation.
There~are two general ideas to convey concerning inventory work
conducted for use in condemnation litigation. First, the expert
cruiser should recognize that the bi gg,est hurdle is one of edu-
cation--education first of the attorney reJiresenti ng the expert • s
client and, second, of the judicial trier of fact. This is not to
say that technical correctness should be sacrificed but merely to
point out that the 11 most valid 11 cruise possible, from a technical
standpoint, is of little use in the courtroom if explained in such
a manner that the trier of fact cannot fully understand what pro-
cedures were used. The expert must be prepared to patiently explain
the methods adopted in layman•s terms on a ste-by-step basis. No
prior knowledge on the part of the trier of fact should be assumed.
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Second, the importance of extremely accurate and full recordkeeping
cannot be overemphasized. Since the trier of fact may not desire
to become entangled in technical arguments concerning numerous
cruising techniques and procedures~ the ultimate decision with
respect to volume may well turn on "appearances ... Again, technical
expertise cannot be ignored, but instead must be augmented by a
cruise conducted with the knowledge that a non-expert must determine
its validity at trial. Th~refore, neat, accurate, and full record-
keep; ng on a 11 aspects of the inventory work is essenti.a 1 • Nothing
so hanns the credibili-ty of an expert at trial than for the opposition
to demonstrate a continuing appearance of sloppiness, erroneous
mathematics or judgment, even if such negative 11 appearances" occur
in areas of little consequence to the final answer.
Because of the complexities involved, many time parties are not
certain how a trier of fact will review the inventory work per·formed
on their ·behalf. Added to this feeling of uncertainty is the
dearth of judicial precedent in this area to guide the trier of
fact. These two factors combine to create, in certain situa.tions,
a climate where a fair settlement can be accomplished prior to
trial. If such a situation arises, the cruiser/expert will undoubted-
ly be asked to perform certain studies, e.g., a demonstration of
the effects on volume determinations of various methods or procedures
adopted by other cruises to determine the underlying reasons for
final volume discrepancies between the parties.
B. The Appraisal
Estimation of the fair market value of a property can represent an
extremely complex and multifaceted undertaking, especially if the
property is large. Numerous inv~stigations and studies must be
performed by the appraiser. Regardless of the particular method of
appraisal or approach to value utilized, certain general guidelines
should be kept in mind during the course of collecting appraisal
data, the first and perhaps most essential stage of the appraisai
process.
As part of the necessary field work, the appraiser should view the
condemned tract and the surrounding market area in order to gain a
personal understandi~g of the various factors affecting fair market
value of the particular tract of land being appraised.
(T)he essential elements of the real estate expert's com-
petency include his knowledge of the property and of the real
estate market in which it is situated~ as well as his evaluating
skill and experience as an appraiser.t8
The trier of fact is less likely to adopt an expert's valuation
opinion if the appraiser has not personally ins pee ted the proper·ty
at issue and its relevant market area. Indeed, 11 (f)or a witness to
give his opinion on market value of land, it must appear that he
has actual personal knowledge of the facts affecting the land at
the time of taking."79
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As stressed earlier in this presentation, it is important that
there be proper documentation of all work performed and data col-
lected. In appraising the taken property, the appraiser· must
assemble valuation data from personal field work, formal\ and
i nfor-ma 1 interviews, pub 1 i shed and unpub 1 i shed records o1f buyers
and sellers of resources and land, and other miscellaneous sources.
Information collected should be retained for later reference and
use, and should be p:operly identified and dated. Since certain
types of data or info.mation can be difffcult to·obtain, when
information of this n~ture is collected, it should be che1cked or
ver·ified to the greatest extent possible to insure reliability. In
instances where basic data is obtained through an intermediary,
that basic data should be verified or corroborated with the original
source wherever possible.
In addition to general procedural guidelines such as those set
forth above, the appraiser should be aware of a vast array of
potential legal pitfalls. Whether a certain legal structure applies
in a particular case often depends upon the approach to value
utilized by the appraiser. Earlier in this presentation, a brief
summary of appraisal methodologies was set out. In the following
discussion, these methods or approaches to value will be discussed
in greater detail within the context of the appraisal of land.
1. Prior Sales. Approach
Seldom, if ever, will prior sales of the same property (that
is, the property being appraised) be a relevant consideration.
Large land transactions are infrequent at best; a prior sale
of a large condemned property at a reasonably proximate date
is rare. If there does happen to be a prior sale of the pro-
perty being appraised, it is of use to the appraiser only if
that sale transaction can fairly be characterized as recent.
With the ever increasing appreciation in the value of resources
and of land, the appraiser should exercise extreme caution
before placing reliance upon a prior sale of the property at
issue. Moreover, if there is a recent prior sale, the appraiser
should be satisfied that the property as of the date of valuation
is in substantiallj the same condition as at the time of the
prior sa'ie.
2. Comparable Sales Approach
As with appraisals of most types of property, the comparable
sales approach to value is frequently used to estimate the
fair market value of lands in condemnation lawsuits. However,
as noted above, actual fee sales of large tracts of land do
not abound. Therefore, sales that are directly comparable in
a given instance may be non-existent. To adjust for this
dearth of data, the comparable sales approach is modified so
as to make use of the information that does exist.
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--· -~·--·~· -----------lllliiM!IIID'!I .• ~
One o·f the more common modific.ations consists of appraising
the re~sources on the property separate from the 1 and itself
(including premerchantable stocking). Thus, in appraising the
merchantable resource component, the appraiser relies upon one
set of salas and in appraising the land he utilities a separate
set of sales of fee.
In following this modified approach, the appraiser must be
careful not to transgress the so-called 11 unit rule 11 to the
extent that doctrine may still be applicabl~ in the juris-
diction involved. The unit rule basically is two-pronged ..
First, it disallows evidence of total property value arrived
at by addition of separate values for merchantable resources
and for land. Second, it disallows evidence of resource value
arrived at by applying a praticular price per unit to a given
quantity of resources.80 Fortunately, the unit rule is of
lesser importance with each passing year. If an evidentiary
foundation is laid establishing the existence of a market, the
going price on the market, and the foreseeability of the
future of that market. Obviously, in the case of almost all
resources in the United States, these facts can be readily
established.81
The selection of comparable sales by the appraiser requires
thoughtful analysis and often considerable field worko To
guard against charges that the·expert was biased in choosing
comparable sales or failed to consider particular sales, the
appraiser should evolve guidelines for selecting sales used in
appraising the property at issue These guidelines should be
soundly based, both factually and legally. The guidelines for
selection might include: time interval between sale date and
date of valuation, geographic market area, species composition,
resource quality, extraction conditions, and volume merchan-
table resources involved. Sales having certain identifiable
characteristics should be rejected where at all possible --
for example, farced sales, sales involving a buyer who has the
power of condemnation, and sales occurring well after the date
of valuation.82 Sales might also be rejected because of
competitive restrictions which result in less than full market
exposure.
3. Income Approach
The income approach, or as sometimes now called, the ~ash flow
approach, to the appraisal of land is a particularly .=~:icult
m~thod to implement. In order to arrive at an estim, _. of
fair market value, a number of significant assumptiott~ must be
made by the appraiser. Sould any of these assumptions prove
unreasonable or not be soundly based, the estimated value will
be of little, if any, use~
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By this method, the appraiser projects the gross revenue which
he assumes will be generated from the subject land each year
over a presumed time period or liquidation period. Thus, at
··,~outset, a unit resource value is necessary. As a result,
if the income approach is used, it must be used in conjunction
with a comparable sales approach for resources or with a con-
version return analysis. Moreover, assumptions must then be
made to detenmine the amount of appreciation, if any, in
resource values over the presumed time period or liquidation
period. Next, the appraiser must deduct for each year of the
income analysis, estimated costs to be incurred in generating
the income. Last, the resulting net income, or resulting net
cash flow during the liquidation period, must be discounted or
capitalized to the date of valuation. Needless to say, choice
of a discount or a capitalization rate is extremely important
and has a profound effect upon the estimate of value ~rrived
at by this approach.
Recognizing the numerous assumptions and variables which com-
prise an income or cash flow appraisal approach, it is not
surprising that this appraisal methodology has sometimes
received harsh treatment at the hands of the courts. One
court, concerne~ with the valuation of coal deposits, noted
with regard to a discounted cash flow analysis that it "takes
on the spectre of a syllogism, if the premises fail the entire
agrument fails.83 Another court commented as follows:
The estimates of future values and costs (which resulted
in an estimate of present value) were based upon certain
premises, assumptions, and contingencies and upon possible
variables and alternatives of each, with respect to the
viability of wh1ch expert witnesses are prone to disagree.
All th&t the evidence related to development cost analysis
indicated was that a particular purchaser might ~e
willing to pay a price equal to the "mean" if he relied
upon a particular interfusion of assumptions and future
projections. But fair market value is not the theoretical
price a particular purchaser might be willing to pay.
Rather, fair market value 11 is" the present actual value
of the land with all its adaptations to general and
special uses, and ·not its prospective! speculati~e or
possible value based on future expend1tures and 1mprove-
ments, that is to be considered.84
The income approach, in essence, seeks_to ~redict the ~easoning
of a prospective purchaser. To be val1d, 1t must pred1ct the
reasoning of the most likely prospective p~rchaser, ~s well as
the seller in arriving at the purchase pr1ce that Wlll be
paid. Thu~, it is necessary for the appraiser to take account
of the fu11 spectrum of factors influencing the most 1ikely
prospective purchaser and the seller.85 Many of these con-
siderations or factors are extremely subjective and are of
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greater or lesser importance depending upon the particular
property being appraised and the entity identified as the most
likely prosp~ctive purchaser. These factors are incapable of
refinement for purposes of inclusion in a mathematical appraisal
process. If they are to be expresses at ail in an income or
cash flow approach appraisal, they must be reflected in the
discount or capitalization rate, which in turn then must be
based upon such rates as indicated by actual market trans-
actions, not assumptions. The common failure of this appraisal
approach to consider these subjective factors was brough to
light in United States v. 103.38 Acres of Land:
(I)t simply is not f~curate to assert that mineral tracts
have no value excep. 'tpon actual severance or mining.
Coal properties hist ically have been bought and sold in
(the market area) fo~ future reserves for valuable con-
sideration where there was no intent to engage in ill111ediate
mining operations.86 .
Similarly, private forestland, particularly a large tract,
represents an assured supply of ·timber to a potentia 1 p·urchaser
and may thus coi11Tland a special value or premium.
In view of the above-described difficulties and inherent
s~ortcomings, use of the income approach in appraising lands
is disfavored when adequate comparable sales evidence exists.
4. _£.ost Approach
Precisely defined, the cost approach is not applicable to the
appraisal of resource land. Nevertheless, the cost approach
by reason of its summation nature is sometimes used to describe
an appraisal process whereby the resource component is appraised
separately from the land itself. In such an instance, the
resource component can be valued by lnoking to comparable
sales of resources or by conversion return analysis.
5. Conversion Return
In those instances where the appraiser approaches the appraisal
problem by separating the resource component from the land
itself, resource value may be appraised by use of a conversion
return analysis. Such an approach traditionally estimates the
gross revenue from converting merchantable resources into
various end products. From this amount there is then deducted
the amount of operation and manufacturing costs and certain
other expenses tQ arrive at what is called the conversion
return. This amount represents an indicated worth to the
purchaser of the resource being appraised as well as a recog-
nition of profit and risk to the operatoro When the allowance
for profit and risk is ·subtracted, the remainder represents
the va 1 ue of the resource. This "work back 11 method requi ~~es
complete and reliable data.
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There is very little case law dealing with use of the con-
version return approach. What little there is suggests that
the c;onvrers ion return app.roach must be carefully emp 1 oyed in
that wherever possible it should be based on a wide array of
data.97 However, since the most likely prospective purchaser
would be the entity which can afford to pay and is willing to
pay tht~ highest price i.:or the property, a strong argument can
be made that the data used for a conversion return analysis
should be drawn where at all possible from the most efficient
operators in the markat area.
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Whenever the value of the merchantable resource component of a
lat·ge, tract of land is appraised by use of the conversion
retur·n analysis or by reliance upon transactions of substan-
tiial1y smaller resource volume than existent on the property
being appra1sed, the question of discount arises. Discount in
this instance refer·s to a reauetion in ·value due to the quantity
of merchantab 1 e re~;ources being appraised.. or stated another
way, it refers to t:ime in the sense that the volume of merchan-
table resources being appraised cannot be liquidated within a
period of one year or less.88 The applicability of discount
should be conside-red by the appraiser on a case-by-case basis.
That is, the appraiser should not blindly follow a set pattern,
but should take account of the facts and circumstances present
in the marketplace on the particular date of valuation.
Generally speaking, with the scarcity of resources and the
expectation of heavily increased demand and of rising prices
in the future, discount is evidenced in the marketplace in
actual transactions less frequently than ever before. In
fact, certain transactions that have occurred in the 1970's
would indicate that. the appraiser should consider the flip~
side of discount --payment of premium above retail levels for
large tracts of land.
IV.
SEVERANCE DAMAGES ANALYSIS
In addition to the appraisal of the fair market value of the condemned
property, the appraiser may be asked to estimate severance damages
resulting from the condemnation of a portion of the landowner's property.
As an element of just compensation, the concept of severance damages
derives much of its meanin3 from the standards of fair market vclue used
in measuring the value of taken property. Therefore, the discussion
found in the previous section regarding methods of valuing the property
taken are also applicable to severance damages.
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As mentioned previously, the reduction in fair market value to the .
prop~rty remaining after a condemnatfon must result directly from the
partial taking and/or the proposed use of the part taken.89 Three
appraisal methodologies have been used to value severance damages:
"before and after" valuation, 11 modified before and after 11 valuation, and
11 modified modified" valuation.
The traditional appraisal methodology for detennining severance damages
is the ~~before and after 11 method, which estimates the fair market value
of the entire tract before the taking and the fair market value of the
remaining tract (called the 11 r~ainder .. ) after the taking, assessing the
difference as the owner's proper measure of just compensation owed on
the date of taking. This may be represented by the following formula:
(value of entire parcel before taking) -(value of remainder after
taking) = just compensation owing at date of taking.
Thus, the va 1 ue of the taken tract and the diminution of fa·i r market
value o~ the remainder tract (or severance damages) are lumped together
in ant: award.90
Although the traditional "before and after 11 appraisal methodology is
recognized by some authorities as the preferred valuation method, the
11 modified before and after 11 valuation approach is also widely used.
This valuation methodology computes the value of the property taken and
separately estimates the damage to the remainder. Damage to the remain-
der is measured by the difference between its value before the taking
and its value after the taking. The "modified before and afteru approach
may be represented by the following formula:
(value of property taken) -t· (value of remainder area before taking -
value of remainder area after taking) = just compensation owing at
date of taking.
A third formula, referred to herein as the 11 modified modified .. rule,
estimates severance damages by cons i der·i·ng the specific i terns which
reduce the fair market value of the remainder. This method has been
used when the practicalities of a given case (lack of suitable compar-
able sales or existence of an extremely large remainder in comparison to
the property taken) preclude re~ort to the earlier-described methods.
The 11 moc!ified modified" appraoch may be represented by the fo11owing
formula:
(value of property taken) + ((Item A Reduction in Fair Market Vaiue
of Remainder Property) + (Item B Reduction in Fair Market Value of
Remainder Property) + (Item C Reduction in Fair Market Value of
Remai~der Property) ..•. ) =just compensation owing at date of
taV.·ing.
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It is impossible to state under the case law presently established which
appraisal methodology will find favor with a particular court in any
given situation. For. example, in the United States Court of Appeals for
the Ninth Circuit, both the·"before and after" method and the 11 modified
before and after 11 method have been accepted as the appropriate appraisal
methodology adopted in certain cases.91 The 11 mod·ified modified 11 method
has been used in the United States Court of Claims on several occasions.
The facts surrounding the particular case in suit will deterr~ine which
appraisal methodology is preferred.
While the concept and compensability of severance damages have been
recognized since the turn of the century, judicial application of this
concept to concrete factual situations has led to much confusion and to
contradictory results. However, it is well established that severance
damages are justly regarded as possible elements of a landowner's full
just compensation in partial taking cases, and the appraiser should be
acutely aware of the concept and its varying applications. Throughout
the appraiser's analysis, it should be remembered that damages resulting
from the government's use of the taken tract or damages reasonably
anticipated from the use of the taken property is relevant in deterrnini.ng
severance damages to the remainder.92 For example, in West Virginia
Pulp and Paper Co. v. United States, 200 F~2d 100 (4th Cir. 1952), the
portion of the property condemned was to be used for the storage of
gasoline. The court held that the landown~r was entitled to show that
the hazards incident to the use of the property taken for storage of
gasoline reduced the value of the remainder la.nd.93
Severance damages resulting from interference with the present use or
the future development of the remainder property would include all
increased costs resulting directly from the partial taking. Such anti-
cipated increased costs could include increased extraction expenses,94
costs of altering existing methods of operation,95 increased costs of
supplying reasonable access,96 increased management expenses in using or
developing the remainder property in conformity wil.h the use made of the
government-owned taken tract,97 and increased costs for relocation of
roads.
The market value of the remainder property may be diminished substan-
tially if convenient access to it is cut off, or if access from the
remainder to the nearest highway is rendered difficult. If access is
thereby obstructed as a result of the partial taking, the remainder
property is diminished in fair market value, and the landowner should be
entitled to severance damages.98
Examples of management or other restrictions which give rise to severance
damages include anticipated restriction on crop dusting operations due
to the proximity of a proposed housing project,99 anticipated restrictions
imposed on the use of the remainder property due to the possibility of
contamination of a water course on the remainder,lOO and restrictions
imposed on the use of the remainder property to insure that the remainder
is maintained visually attractive to people on or in the vicinity of the
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taken area.lOl An pwner of resource lands, part of which have been
condemne~ by the government, should likewise be compensated for diminution
in the fair market value of his remainder property occasioned by actual
or anticipated restrictions on the free management of the remainder pro-
perty (such as prohibition on the use of herbicides or fertilizers)
resulting directly from the condemnation or the proposed use of the part
taken.
Severance damages should be awarded where the 1 and owner can show thctt
the manufacturing plarits and mills on the remainder property have
diminished in value as a direct result of the partial taking. One
instance in which this may occur is when the propea-ty taken contains
irreplaceable quantities of natural resources which, prior to the taking,
were to be processed through the resource products facil~ties on the
remainder property.102 It should be noted that in determining whether
severance damages have occurred to the manfacturing mills and plants on
the remainder property, the questions of physical contiguity and unity
of use between the part taken and the landowner's industrial facilities
often arise
Other elements of possible severance damage to the remainder property,
depending upon the particular facts involved, may include loss of
privacy,l03 increased animal damage to the remainder by virtue of the
use to be made of the property taken,104 among others. Thus, it is
necessary to investigate carefully every possible or potential diminution
in fair market value of the remainder property which may occur as a
result of the taking or of the use or proposed use of the property taken
in order to determine the landowner•s full measure of just compensation,
including severance damages.l05
v.
SETTLEMENT
No discussion of litigation concerning the condemnation of private lands
would be complete without at least brief treatment accorded to settlement
between the parties on all or at least some of the issues in dispute.
The possibility of settlement exists in any litigation, with the chances
somewhat greater as the ·issues to be tried become more complex, si nee
the parties are less able to gauge how the trier of fact will view the
mammoth amount of technical evidence presented at trial. This feeling
of uncertainty is heightened in litigation where presentation of factual
data of a technical nature and the perceived reliability of expert
witnesses is normally more determinative of the final decision than
legal precedents. Settlement can occur at any stage of the proceedings,
but the likelihood is greater for negotiations to commence after the
discovery process has been concluded, since then each party can better
ascertain the strengths and weaknesses of its opposition,
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It is somewhat difficult to generalize about the role of the expert
in settlement negotiations that might occur in condemnation contro-
versies, since each case has its unique characteristics affecting this
role. Much depends on the relationship that exists between the .attorney
and expert. Of course, the expert must complete the appraisal or other
work product in an independent manner with no view to settlemente After
completion of this work, the expert may be asked to review similar \\Ork
conducted on behalf of the opposing party, to educate counsel regarding
the areas of difference between the parties and what those differences
mean in terms of the final answer. Final negotiation strategies and
g·oa1s must be detennined by the attorney and client, although the expert
may be called upon to offer suggestions and to analyze the effect of
proposed agreements.
VI.
CONCLUSION
The end result of federal condemnation of any property, resource land or
otherwise, should be full just compensation to the landowner. The
United States Constitution guarantees no less. A landowner faced with
impending condemnation should not hesitate to consult a qualified appraiser
to obtain preliminary knowledge of the current fair market value of the
property.
The actual condemnation of private land can trigger a complex judicial
process requiring the active involvement of experts. The foregoing pre-
sentation has sought to provide a broad overview of land condemnation
litigation by reviewing substantive issues and legal procedures in con-
demnation actions and emphasizing the prominent role of the professional
resource manager.
In view of the dramatic increased in land values in recent years, deter-
mination of fair market value by competent appraisers has become extremely
important. Where the resource involved is of significant value and the
valuation differences between the government and the landowner are sub-
stantial, litigation may be the only recourse in the search for "just
compensation 11
•
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FOOTNOTES
1 U. S. Constitution, Amendment V.
2 "The purpose of the (condemnation proceeding is not to determine
the right of the Plaintiff to take the property, but onl;' to
determine the amount which the plaintiff shall be requirea to
pay the defendant as Just Compensation for the property taken."
United States v. City of Jacksonville, 257 F~2d 330,333 (8th
Civ. 1958). '
3 "It is corm10nplace to recall that the power of eminent doma1n is
an attribute of sovereignty. The taking of private property for
public use upon Just Compensation is so often.necessary for the
proper performance of governmental functions that the power is
deemed to be essential to the life of the state.11 Green St. Ass'n
v. Daley, 373 F.2d 1,6 (7th Civ 1967), citing Georgia v. City of
Chattanooga, 264 U. S. 472, 480 (1924).
4 See Fallbrook Irr. Dist .. v. Bradley, 164 U. S. 112 (1896).
5 Rindge Co. v. County of Los Angeles, 262 U. S. 700, 707 (1923).
6 Puerto Rico v. Eastern Sugar Assocs., 156 F.2d 316, 234 (1st
Ci r. 1946).
7 See United States v. 416.81 Acres of Land, 514 F.2d 627, 632
(7th Cir. 1975) ..
8 Monongahela Navigation Co. v. United States, 148 U. S. 312, 326
( 1893).
9 United States v. Miller~ 317 U. S. 369, 373 (1943).
10 Id. at 374.
11 United States v. Grizzard, 219 U. s. 180, 184-85 (1911); Sharp v .
United States, 191 U. S. 341, 354 (1903).
12 United States v. Miller, 317 U. s. ~t 376.
13 Seaboard Air Line Ry. v. United States, 261 U. S. 299, 306 (1923).
14 See Almota Farmers Elevator & Whse Co. v. United States, 409 U. S.
470, 473-74 (1973); United States v. Miller, 317 U. S. at 374-75.
15 4 NICHOLS' THE LAW OF EMINENT DOMAIN* 12.2 (rev. 3d ed. 1978).
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16 See United States v. Commodities Trading Corp., 339 U. S. 121 (1950).
17 AMERICAN INSTITUTE OF REAL ESTATE APPRAISERS, THE APPRAISAL OF REAL
ESTATE 23 (7th ed. 1978). See also AMERICAN INSTITUTE OF REAL
ESTATE APPRAISERS, APPRAISAL TERMINOLOGY AND HANDBOOD 131 ( 5'2h ed. 196}).
18 G. SCHMUTZ, CONDEMNATION APPRAISAL HANDBOOK 3 (1963)".
19 See also Aln1ota Farmers Elevator & Whse Coo v. United States, 409
U. S. 470, 473-74 {1973); United States v .. Reynolds, 397 U. S. 14,
16 (1970); United States v. Virginia Elec. Co., ~65 U. S. 624, 633
(1961).
20 See Buena Park School Dist. v. Metrim Corp., 176 Cal~ App. 2d 255,
1 Cal. Rptr. 250 (1959), where the court observed:
· .L\ctua 11 y the fair rna rket, va 1 ue con temp 1 a ted by the 1 aw
means the price for which the property could be sold and
is without regard to wnethe.~ it be bought by one individual
or by severa 1 purchas(..!rs or by a syndicate formed for the
purchase. (176 Ca 1 • App. 2d at 264)
'
This concept of multiple purchasers is discussed in greater detail
later her~in.
21 To sell property at fair ma~ket value usually requires extensive
negotiations with various potential purchasers over a period of
time. The determination of fair market value, therefore, assumes
a reasonable time to find a purchaser or purchasers who would be
wi l'i i ng to pay the highest pr·i ce for the property. See United
States v. Silver Queen Mining Co., 385 F.2d 506, 508 n.2 (lOth Cir~
1900). Cf. United States v. Certain Parcels of Land, 45 F. Supp~
~V.i~' 900 (E.D. Wash. 1942) (potential subdivision of property could
r~: have been accomplished in one day).
22 United States v. Miller, 317 U. S. 369, 374-75 (1943).
·23 G. SCHf~UTZ, CONDEMNATIO.N APPRAISAL HANDBOOK 9 ( 1963).
24 AMERICAN INSTITUTE OF REAL ESTATE APPRAISERS, APPRAISAL TERMINOLOGY.
AND HANDBOOD 99 (5th ed. 1963).
25 AMERICAN INSTITUTE OF REAL ESTATE APPRAISERS, THE APPRAISAL OF
REAL ESTATE 43 (6th ed. 19)~).
26 United States v. 46,672.96 Acres of Land, 521 F.2d 13, 15 (lOth
Cir. 1975) (citations omitted).
27 United States v. Toronto, Hamilton & Buffalo Navigation Co~,
338 u. s. 396, 403 (1949).
28 Dickinson v. United States~ 154 F.2d 642, 643 (4th Cir. 1946).
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16 See United States v. Commodities Trading Corp., 339 U. S. 121 (1950).
17 AMERICAN INSTITUTE OF REAL ESTATE APPRAISERS, THE APPRAISAL OF REAL
ESTATE 23 {7th ed. 1978). See also AMERICAN INSTITUTE OF REAL
ESTATE APPRAISERS, APPRAISAL TERMINOLOGY AND HANDBOOD 131 (5th ed. 1967).
lS G. SCHMUTZ, CONDEMNATION APPRAISAL HANDBOOK 3 (1963)'. .
19 See also Alinota Farmers Elevator· & Whse Co .. v .. United States, 409
U. S .. 470, 473-74 (1973); United States v. Reynolds, 397 U. S. 14,
16 (1970); United States v. Virginia Eleca Coe, 365 U.S. 624, 633
(1961).
20 See Buena Park School Dist. v. Metrim Corp., 176 Cal. App. 2d 255,
1 Cal. Rptr. 250 (1959), where the court observed:
· Actually the fair market value contemplated by the law
n":.dns the price for which the property could be sold and
is without regard to whether it be bought by one individual
O$ by several purchasers or by a syndicate formed for the
purchase. (176 Cal. App. 2d at 264)
This concept of multiple purchasers is discussed in greater detail
later herein.
21 To sell property at fair mar.ket value usually requires extensive
negotiations with various potential purchasers over a period of
time. The determination of fair market value, therefore, assumes
a reasonable time to find a purchaser or purchasers who would be
willing to pay the highest price for the property. See United
States v. Silver Queen Mining Co., 385 F.2d 506, 508 n.2 (lOth Cir.
1960). Cf. United States v. Certain Parcels of Land, 45 Fo Supp.
899, 900 (E.D. Wash. 1942) (potential subdivision of property could
not have been accomplished in one day).
22 United States v. Miller, 317 U. S. 369, 374-75 (1943).
23 G. SCHMUTZ, CONDEMNATIO~J APPRAISAL HANDBOOK 9 ( 1963)"
24 A~1ERICAN INSTITUTE OF REAL ·:sTATE APPRAISERS, APPRAISAL TER~iiNOLOGY
AND HANDBOOD 99 (5th ed. 19~ J~
25 AMERICAN INSTITUTE OF REAL ESTATE APPRAISERS, THE APPRAISAL OF
REAL ESTATE 43 (6th ed. 1973).
26 United States v. 46,672.96 Acres of Land, 521 F.2d 13, 15 (lOth
Cir. 1975) (citations omitted).
27 United States v. Toronto, Hamilton & Buffalo Navigation Co.,
338 u. s. 396, 403 (1949).
28 o· k. 1c 1nson Yited States, 154 F.2d 642, 643 (4th Cir. 1946).
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~ ~~'l~::ll!if 3· --~
29 United States v. 100 Acres of Land, 468 F:2d 1261, 1265 (9th Cir.
1972), cert, denied, 414 U. S. 822, 864 (1973). See United States
v~ New River Collieries Co., 262 U. S. 341, 344 (1923); United
States v. Eden Memorial Park Ass'n, 350 F.2d 933, 935 (9th Cir.
1965); Simmonds v. United States, 199 F.2d 305, 307 (9th Cir. 1952).
30 United States v. 55.22 Acres of Land, 411 F.2d 432, 435 (9th Cir.
196S). ·
31 S~e Welch v. Tennessee Valley Auth. 108 F.2d 95, 99 (6th Cir. 1939).
32 See United States v. Carroll, 304 F.2d 300 (4th Cir. 19~2).
33 See United States v. 103a38 Acres of Land, Noo 76-124 (EeD. Ky.,
Nov. 3, 1976); Brooklyn E. Dist. Terminal v. City of New York, 139
F.2d 1007, 1013 (2d Cir.), cert. denied, 322 U. S. 747 ~1944).
34 4 NICHOLS' THE LAW OF EMINENT DOMAIN* 12.312 (rev. 3d ed. 1978).
35 United States v. Certain Interests in Property, 271 F.2d 379, 382
(7th Cir$ 1959).
36 E.g., United States v. Grizzard, 2l9 U. S. 180 (1911); United States
v. Welch, 217 U. S. 333 (1910); Sharp v. United States, 191 U. S.
341 (1903).
37 United States v. Miller, 317 U. S. 369 (1943); King v. United
States, 205 Ct. Cl. 512, 504 F.2d 1138 (1974).
38 See United States v. Evans, 380 F.2d 761 (lOth Cir. 1967); United
States v. Waymire, 202 F.2d 550 (lOth Cir. 1953); Baetjer v. United
States, 143 F.2d 391 (1st Cir.), cert. denied, 323 U. S. 722 (1944).
39 See United States v. Dickinson, 331 U~ S. 745, 750-51 (1947); United
States v. Grizzard, 219 U. S. 180, 183 (1911).
40 .Mitche11 v. United States, 267 U. S. 341, 345 (1925).
41 Monongahela Nav~gation Co. v. United States, 148 U. S. 312, 326
(1893).
42 Almota Farmers Elevator & Whse. Co. v. United States, 409 U. S.
470, 473-74 (1973).
43 Seaboard Air Li~e Ry. v. United States, 261 U. S. 299, 305 (1923).
44 United States v. Klamath & Modoc Tribe~, 304 U. S. 119, 123 (1938).
While a rate of interest has been found in some cases to be a con-
venient measure for determining just compensation, Jacobs v. United
States, 290 U. S. 13, 17 (1933), courts have also approved the use
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of other st.andards appropriate under the circumstances. Shoshone
Tribe v. United States, 299 U~ S. 476, 496 (1937); United States
v. Rogers, 255 U. S. 163, 169 (1921). In the words of one court,
''Interest is allowed, not as interest, but as the equivalent of the
use of the property or its ·money substitute. 11 United States v.
Northern Pacific Ry. Co., 51 F. Supp. 749:-750 (E.D. Wash. 1943).
45 See United States v. Blankinship, 543 F.2d 1272, 1276 {9th Cir.
1976); United States v. 62.57 Acres of Land, No. 6269 (D. Ariz.
February 14, 1979). See also Miller v. United States, No. 296-74
(Ct. C1. Apr. 16, 1980).·
46 United States v. Blankinship, 543 F.2d at 1276.
47 Id.
48 Id.
49 See id.; United States v. 62.57 Acres of Land, No. 6269 (D. Ariz.
Feb. 14, 1979).
50 See Miller v. United States, No. 296-74 (Ct. Cl. Apr. 1E, 1980).
See also Tektronix, Inc. Yo United States, 213 Ct. Cl. 257, 552
F.2d 343 (1977}; Pitcairn v. United States, 212 Ct. cr. 168, 547
F.2d 1106 (1976), cert. denied, 434 U. S. 1051 (1978).
51 United States v. Dow, 357 U. S. 17, 21 (1958).
52 E.g., Drakes Bay Land Co. v. United States, 191 Ct. Cl. 389,
424 F.2d 574 (1970); Eyherabide v. United States~ 170 Ct. Cl.
598, 345 F.2d 565 (1965).
53 Act of October 2, 1968, Pub. L. No. 90-545, 82 Stat. 931.
54 Act of March 27, 1978, Pub. L. No. 95-250, 92 Stat. 163.
55 United States v. Miller, 317 U. S. 369, 381 (1943).
56 Lee v. United States, 58 F.2d 879~ 880 (D.C. Cir. 1932).
57 266 F.2d at 743-44.
58 Id. at 744.
59 See also United States v. 44.00 Acres of Land, 234 F.2d 410, 415-16
(2nd Cir.), cert. denied, 352 U. S. 916 (1956). For cases contrary
to the proposition that bad faith or the arbitrary or wanton exercise
of discretion in deciding the amount of deposit in a declaration of
taki~g is grounds for dismissing a condemnation action, see, e.g.
In reUnited States, 257 F.2d 844, 848-49 (5th Cir.), cert. derried,
358 lie S. 908 (1958); United States v. Certain Lands, 247 F. Supp.
741, 742-43 (E.D.N.Y. 1965).
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60 42 u$s.c. * 4602 (1976).
61 Wise v. United States, 369 F. Supp. 30, 32 (W.O. Ky. 1973).
62 ~ Hessel v. A. Smith & Co., 15 F. Supp. 953, 956 (E.D. Ill. 1936);
see Catlin v. United States, 324 U. S. 229, 242 (1945).
63 See Richland Irr. Dist. v. United States, 222 F.2d 112, 114 (9th
Cir. 1955)t cert. denied, 350 U. Sv 967 (1956).
64 42 u.s.c. * 4651 (4) (1976).
65 See United States v. 3.66 Acres of Land, 426 F. Supp. 533, 5~7
(N.Ds Cal. 1977).
66 Danforth Vs United Stat~s, 308 U. S. 271, 284 (1939).
67 If the federal government abandons the condemnation action, the
federal court having jurisdiction will reimburse the landowner ••for
his reasonable costs, disbursements, and expenses, including
reasonable attorney, apprai.sal, and engineering fees, actually
incurred because of the condemnation proceeding •.. a .. 42 u.s.c.
4654(a) (1976). See United States v. 431.60 Acres of Land, 355 F.
Supp. 1093 (S.D. Ga. 1973).
68 United St7·~s v. Dow, 357 U9 So 17 (1958); United States v. Parcel
of Land, JO F. Supp. 498, 501, 504 (D.D.C. 1951).
69 Commercial Station Post Office v. United States, 48 F.2d 183)) 184-85
(8th Cir. 1931).
70 See United States v. Dow~ 357 U. S. 17, 21 (1958)~
71 Federal law recognizes that, although there may be no official in-
tent·i on to acquire any property interest, . certain governmenta 1
actions entail such an actual invasion of private property rights
that a constitutional taking must be implied. (citations omitted)
The interference with use or possession rna_ be so substantial and
of such a character that it cannot be done without compensation
under the Federal Governrnent•s regulatory and executive powers.
Eyherabide v. United States, 170 Ct. Cl. 598, 601, 345 F.2d
565, 567 (1965).
72 See Elliott v. United States, 184 Ct. Cl. 298 (1968).
73 MBH Land Co. v. United States, 217 Ct. Cl. 41, 576 F.2d 317, 319
(1978).
74 Drakes Bay Land Co. v. United States, 191 Ct. Cl. 389, 404-05,
424 F.2d 574, 582-83 (1970).
Page 5
75 United States v. General Motors Corp., 323 U. S. 373, 378-79 (1945).
76 191 Ct. Cl. at 411, 424 F.2d at 586.
77 Miller v. United States, No. 296-74, slip gp. at 16 (ct. Ci. May 30,
1979) (Recommended Opinion of Trial Judge Lydon)~
78 United States v. 60.14 Acres of Land, 362 F.2d 660, 668 (3d Cir.
1966)~
79 United States v. 13,255.53 Acres of Land, 158 F.2d 874, 876 (3d
Ci r. 1946).
80 Morton Butler Timber Co. v. United States, 91 F.2d 884, 887-88
(6th Cir. 1937); see United States v. Carroll, 304 F.2d 300, 306
(4th Ciro 1962); United States v. 158.76 Acres of Land, 298 F.2d
559, 561 (2d Cir. 1962); ·united States v. Cunningham, 246 F.2d
330, 333 (4th C1r. 1957).
81 United States v. Wateree Power Co., 220· F.2d 226, 231 (4th Cir.
1955); United States v. 5,139.5 Acres of Land, 200 Fo2d 659, 661
(4th Cir. 1952); United States v. Devore, 133 F.2d 694, 695
(8th Cir. 1943); United States v. Certain Parcels of Land 327
F. Supp. 181 (W.D.N.Y. 1970); see Cade ~-United States, 213 F.2d
138, 141 (4th Cir. 1954); United States v. 237,500 Acres of Land 1
236 F. Supp. 44, 54 (S.D. Cal. 1964). See also State v. Hobart,
5 Wash. App. 469, 487 Po2d 635 (1971); State v. Hart, 249 So.
2d 310 (La. 1971}.
82 Admissibility of post-date of valuation sales evidence remains an
open question. Some courts reject such sales. See Jayson v. United
States, 294 F.2d 808, 810 (5th Cir. 1961). Other courts allow the
sales into evidence as long as they are reasonable close to the
dale of valuation. See United States v. 63£04 Acres of Land,
245 F.2d 140, 144 (2d Cir. 1957). The judicial tren~ seems to be
to allow post-date of valuation sales into evidence so long as they
are sufficiently close in time to ~he date of valuation to be repre-
sentative of market behavior on the date of valuation.
83 United States v! 103.38 Acres of Land, No. 76-124, slip op. at
12 (E.D. Ky. Nov. 3, 1978).
84 Fruit Growers Express Co. v,. Ci.ty of Alexandria, 221 S.E. 2d 157,
161-62 (Va. 1976). See also Welch v. Tennessee Valley Auth., 108
F.2d 95 (6th Ci~~ 1939).
85 See United States v. Sowards, 370 F.2d 87, 90 (lOth Cir. 1965);
United States v. Michaud Indus. Facilities, 322 F.2d 698, 722 (5th
Giro 1963), cert. denied, 377 U. S. 916 (1964); United States v.
237,500 Acres of Land, 236 F. Supp. 44, 52 (S.D. Cal. 1964), aff'd,
sub nom. United States v. American Pumice Co., 404 F.2d 336 (9th Cir.
1968) .
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86 No. 76-124, slip op. at 12 (E.D. Ky. Nov. 3, 1978).
87 See United States v. Cornish, 348 F.2d 175 (9th Cir. 1965).
88 It shou·ld be remembered that if a property is reasonably subject to
division into parcels or units for purposes of offering and sale,
then discount may be affected assuming a sizeable numbe~ of pros-
pective purchasers. In ~ ~ecent opinion, one judge held:
89
T.f however, it is the Government•s contention that chere can
be one and only one buyer of the timber on OctoiJer 2, 1968,
then it is in error. Su~h a restriction would in a number of
cases deprive the owner of the full monetary equivaleot of
the property taken, in derogation of a number of Supreme
Court opinions . G • (P)laintiff should be permitted to se11
to a number of purchasers on October 2, 1968 (the date of
valuation), or a reasonable time thereafter, and not be
limited to one and only one buyer. Timber is generally sold
to a number of purchassrso The record fully supports a con-
clusion that there would be a number oi mill owners interested ·
in purchasing plaintiff 1 s redwood timber if it were offered
for sale at this time.
Arcata National Corp. v. United States, No. 777-71, slip op. at
113-14 (Cto C1. July 25, l974) (Recommended opinion of Trial Judge
Lydon).
See United State$ v. Dickinson, 331 U. S. 745, 750-51 (1947)·.
90 See 4A NICHOLS' THE LAW OF EMINENT DOMAIN* 14.232 (rev. 3d ed. 1976);
1 L. ORGEL, THE LAW OF EMINENT DOMAIN* 51 (2d ed. 1953).
91 Compare United States v. Honolulu Plantation Co., 182 F.2d 172, 195-76
(9th Cir.), cert. denied, 340 U~ S. 820 (1950) with Puget Sound Power
& Light Co. v. Public Util. Dist. No. 1, 123 F.2d 286, 290-91 (9th
Cir. 1941), cert. denied, 315 U. S. 814 (1942).
92 Sharp v4 United States, 191 U. S. 341, 353-54 (1903); 2,953.15 Acres
of Land v. United States, 350 F.2d 356, 360· (5th Cir. 1965); ~nited
States v. Baker, 279 F.2d 603 (9th Cir. 1960). In Sharp the Court
stated the rule applicable to such cases:
93
If the remaining land had been part of the same tract which
the government seeks to cond-~mn, then t~ie damage to the remaining
portion of the tract taken, ari s ·i ng from the probab 1 e use thereof
by the government, would be a proper subject of award in these
condemnation proceedings. (191 U. S. at 354)
200 ~.2d at 102-03.
9ll -• Oregon Mesabi Corp. v. C. D. Johnson Lumber Corp., 166 F.2d 997,
1001-02 (9th Cir. 1947), cert. denied, 334 U. S. 837 (1948).
Page 7
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95 Mid-States Fats & Oils Corp. v. United States, 159 Ct. Cl. 301, 310-11
(1962); Potts v. Dnited States~ 130 Ct. Cl. 88, 92-93, 126 F5 Supp.
170, 172 (1954).
96 State v~ Bruening, 326 S.W. 2nd 305 (Mo. 1959).
97 United States v. Benning, 330 F.2d 527, 533-34 (9th Cir. 1964).
98 United States v. Grizzard, 219 U. S. 180s 183-84 (1911); United
States v. Welch, 217 U. S. 333, 339 (1910).
99 United States v. Baker, 279 F.2d 603, 606 (9th Cir. 1960).
100 Wheatley v. City of Fairfif!!1d, 240 N.W. 628, 631 (Iowa 1932).
. 101 United States v. Coughlin, 405 F. Supp. 13, 16-17 (D. Ore. 1975).
102 See Baetjer v. United States, 143 F.2d 391, 396 (1st Cir.), cert. .
denied~ 323 U. S. 772 (1944); United States v. 339.77 Acres of Land,
240 F. Supp. 545, 549-50 (W.O. Ark. 1965).
103 See United States v. 287.89 Acres of Land, 241 F. Supp. 464, 468
( ~1. D. Pa. 1965) •
104 See Lockhart Power Co. v. Askew, 96 S.E. 685 (S.C. 1918); Idaho
& Western Ry. Co. v. Coey, 131 P. 810 (Wash. 1913).
105 lt should be noted that damages which are categorized as remote,
speculative, contingent, or trivial, will not be considered severance
damages by the courts. Damage may be considered speculative and,
hence, noncompensable due to the uncertainty as to whether the damage
will really occur, the particular difficulty in measuring the~ monetary
significance of the damage, Wetzel v. United States, 25 Ct. Cl. 277
(1890), or the conjectural, trivial, or fanciful nature of the
damage, Rose Island Co .. Ve United States, 46 F.2d 802 (W.O. Ky. 1930).
Page 8
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remanded, 369 U.S. 45, 82 S. Ct. 552. 7 L.
Ed. 2d 562 ( 1961 ); Isakson v. Rickey. Sup.
Ct. Op. No. 1267 <File No. 2550), 550 P.2d
359 ( 19761! Commercial Fisht:rius Entry
Comm'n v. Apokcdak. Sup. Ct. Op. No.
2011 ! r'ile No. 446·1 l. 606 P.2d 1255 c 1980l.
Section 16. Protection of Rights. No person shall be
involuntarily divested of his right to the use of waters, his interests in
lands, or improvements affecting either, except for a superior beneficial
use or public purpose and lhcn only with just compensation and by
operation of law.
Legislative intent.-The provisions in
this article were intended to permit. the
broadest possible access to and use of state
waters by the general public. Wernberg v.
State, Sup. Ct. Op. No. 972 <File No. 1797l,
516 P.2d 1191 {1973), reheari1.1g denied,
519 P.2d 801 (l974>.
This section affords protection
against the involuntary divestment of
private property riglits for a sup~rior
beneficial use, such as the construction of
a by .. pass, by specifying that it shall be
"only with just compensation and by
operation of law." Wernberg v. State, Sup.
Ct. Op. No. 972 (File No. 1797), 516 P.2d
1191 (1973), rehearing denied, 519 P.2d
801 (1974).
Property owner has private right of
littoral access.-See Wernberg v. State,
Sup. Ct. Op. No. 972 (File No. 1797l, 516
P.2d 1191 (1973), rehearing denied, 519
P.2d 801 ( 1974).
There is 'little difference bct"Ween
land .. access and wat&r-a.ccess situa-
tion.&, at least where the facts establish
a.ctual use of water access. \'lernberg v.
State, Sup. Ct. Op. No. 972 <File NQ. 1797),
516 P.2d 1191 {1973), rehearing denied,
519 P.2d 801 (1.974).
The supreme court questioned the
validity of a restricted definition of the
private right of access in water cases,
especially in view of the more raalistic
right of access recognized in land-access
cases. Wernberg v. State, Sup. Ct. Op. No.
972 (File No. 1797), 516 P.2d 1191 Cl973l,
rehearing denied, 519 P.2d 801 (1974).
Section 17. Uniform Application. Laws . and regulations
governing the use or disposal of natural resources shall apply equally
to all persons similarly situated with reference to the subject matter
and purpose to be served by the law or regulation.
Cross reference. -See note to Alaska
Const., art. VIII, § 10.
Cited in State ~·. Tanana Valley
1
Sportsmen's Ass'n, Sup. Ct. Op. No. 1716
c:: ~le No. 3433), 583 P.2d 854 (1978).
Section 18. Private \Vays of Necessity. Proceedings in eminent
domain may be undertaken for private ways of necessity to permit
essential access for extraction or utilization of resources. Just ...
compensation shall be made for property taken 0r for resultant
daf!lag·es to other property rights.
Legislative intent.-The provisions in
this article were intended to permit the
broadest possible access to and use of state
waters by the gen£;;J pub:ic. Wernberg v.
State. Sup. Ct. Op. No. 972 1 File :-\o. 1797 l.
516 P.2d 1191 t 1973!. rehearing denied.
519 P.2d 801 t1974L
246
Article IX
Finance and Taxation
Section L Taxing Power. The power of taxation shall never be
surrendered. This power shaH not be suspended or cGntracted away.
except as provided in this article.
Section 2. Nondiscrimination. The lands and other property
belonging to citizens of the United States residing without the State
shaH never be taxed at a higher rate than the lands and other property
belonging to the resi~ents of the State.
Section 3. Assessment Standards. Standards for appraisal of ~i~
property assessed by the State or its political subdivisions shall ·be
prescribed by law.
Quoted in Hoblit v. Greater Anchorage
Area Borough. Sup. Ct. Op. No. 636 cr~ile
No. 1214), 473 P.2d 630 <1970).
Section 4. Exemptions. The real and pE;rsonal property of the
State or its political subdivisions shall be exempt from taxation under
conditions and exceptions which may be pnwided by law. All, or any
portion of, property used exclusively fiJr non-proft telig~ous,
charitable, cemetery, or educational purposers, as defined hy lawi shall
be exempt from taxation. Other exemptions of like or different. kind
may be granted by general law. All valid exLsting exemptions shaH be
retained until otherwise provided by law.
Strict construction. --Provisions
exempting property from ad valorem
taxation must be strictly construed
against the property holder and in favor of
the taxin~ authority. McKee v. Evans.
Sup. Ct. Op. No. 740 <File No. 1382>. 490
P.2d 1226 (1971 l.
The power of deciding what types of
education are to be publicly
supported. either under the Schoni
Foundation Act. or by tax exemption. i~:
vested with the legislature. McKee v
Evans, Sup. Ct. Op. No. 740 tFile ~n
1382), 490 P.2d 1226 Cl971 l.
This section directs the lcgislatur·c to
define the edw.::ationa! exemption and
er.courage th1e exercise of that
responsibility. :vtcKee v. Evans. Sup. Ct
Op. No. 740 tFil.e No. 13821, 490 IJ2d 1226
(1971}.
The word ulike'' refers to the numed
exemptions in the preceding ::cntencc
DeArmond v. AlnRka State Dcv Cor:n .
Sup. Ct.. Op. No. 116 Wile No. 28!il·. 3'i'l)
P.2d 717 11962).
And ••different" was intended to
clearly indicate that the legislature •;.t .'iS
not to be bQund by the l''Ule of ejusdem
generis and was free to grant oUter
exemptions, even. though they might not
be of the same kind or character as those
named. DeArmond v. Aiaska State Dev.
Corp., Sup. CLOp. No. 116 (File No. 285),
376 P.2d il7 !1962).
PurpQse of second sentence of
section. -The second sentence of this
section only serves to emphasize the
altcrnati,:e wording of the following
sent.ence wherein it is provided that other
exemptions ofHke or different kind may be
granted by gf>neral law. DeArmond v.
Alaska State Dev. Corp., Sup. Ct. Op. No.
116 !File No. 2851, 37Ci P.2d 'il7 Cl962l.
Intent of constitutional c.cnvention.
-The c0n~titutionnl convcnt1on ir.tcnded
that nnly $0 much of the property used for
rcl·;;wus purposes as was being used to
p.roducc income should be t.axnb!P., that
~:uch other parts should be exempt, and
~hat a proratwn between taxable and
:247
Art. IX, § 4 ALASKA STt\ TUTES
non-taxable parts should be made. 1962
Op. Att'y Gen .. No. 15.
Commentary of Committee on
Finance and Taxation. The
constitutional Contmittee on Finance and
Taxation has adequately clarified the
ambiguity regarqing the intended
meaning of the state exemption pro\·ision
of this section. The • committee
commentary with reference to this section
states: "All property owned by the State
and its subdivisions is exempt from
taxation unless the legislt-t.ture provides
otherwise. An exception ~o tax immunity
might be appropriate if a government
engaged in what is normally a private
business such as operating a ski resort., a
movin~ picture theatre, or a swimming
pool." 1962 Op. At.t'y Gen., No. 16.
Ft.:>rmer AS 29.10.336 was enacted
pursuant to this section. Harmon v.
North Pac. Union Conference Ass'n, Sup.
Ct. Op. No. fi91 (File No. 1060>, 462 P.2d
432 (1969}. See now AS 29.53.020.
The phrase "educational purposes"
as used in this section includes systematic
instruction m an'Y' and all branches of
learning from which a substantini public
benafit is derived. McKee ..... Evans, Sup.
Ct. Op, No. 740 CF.Ie No. l ;382>, 490 P.2d
1226 (1971).
The term ···educational purposes" is in no
way delimited, and there is nojustifkation
for th~ supreme court to give to that tem1
anything otherth"n its ordinary me(lning.
That restrictive definition is a legislative
concern seem;; especi.ally apptrcnt at a
time when there is increasing desire for
specialized practical education, a
prdiferation of new kinds of educational
institutions, .s:\nd rapidly changing
concepts of mass ~ducation. McKee v.
Evans, Sup. ~t. Op. ~~o. 740 <File No.
1382), 490 P.2d 1226 {1971 L
The minutes of the constitutional
convention rev<:ul no indicati<m of whnt
was intended U" con:.Jtitute nn
"educational" purpos·e, the .:.rnfters stattng
merely that they intended to adnpt n
"standard" state exemption. Nor ~as the
legislature derined the term as tL has done
Wtth .-egnrd to "religious purposP~ ••
~1cKee v. Evans. Sup. Ct. Op. No. 740 tFile
No. 13821, 490 P.2d 1226 <19711.
"Charity" or "ch~ritabl<!-purposes".
-~either in Alnska's constitutiOn nor in
iLR general laws are the terms "charity" or
"charitable purpost!:;" dctir.ed. In such
Circumstances, resort to the common·!A.w
Jefinition of these terms is appropnate.
:V1atanuska-Susttnu Borough v Kttlg's
Lake Camp. Sup. Ct. Op. No. 472 I File No.
857). 439 P.2d ~41 (19681.
[t is quite dear that what is done .out. of
good will and a desire to add to the
improvement of the moml. mental, and
physical welfare of the. public generally
comes within this meaning of the word
"charily." Matanuska-Susitna Borough v.
King's Lake Camp, Sup. Ct. Op. No. 472
<File No. 857), 439 P.2d 441 (1968).
The test oC charitable exemption
looks to the use of the property, not to
the use of the income derived from that
property. CitY. of Nome v. Block No. H.
Lots 5, 6 & 7, Sup. Ct. Op. No. 839 <File
No. 1652), 502 P.2d 124 (1972).
A benevolent or charitable
undertaking is not shorn of tax-exempt
status because it charges fees and
theteby realizes rent or income from its
property. Matanuska-Susitna Borough v.
King's Lake Camp. Sup. Ct. Op. Ng. 4 72
(File No. 857), 439 P.2d 441 (1968).
The providing of recreational
faciliticst such a!! accommodations for
campers, is a charitable use of the
property. Matanuska-Susitna Borough v.
King's Lake Camp, Sup. Ct. Op. No. 472
(File No. 857\ 439 P.2d 441 !1968).
Actual use rather than owner's use
should be analyzed in determining
eligibility for an exemption. Greater
Anchorage Area Borough v. Sisters of
Charity of House of Providence, Sup. Ct.
Op. No. 1299 {File No .. 2445), 553 P.2d 4cy7
(1976).
Taxpayer must show exclusive usc
for nonprofit ""eiigiot).s, etc .• purposes.
-!n order to qualify for an exemption, the
t3xpayer must show not benefits, btn.
exclusive use for nonp1 ofh religious,
ch3ritable, cemetery, hospital or
educational purposes. Drt'!ater Anchorage
Area Borough .,., s;csters of Charity of
House of Provid-:>"l.ce, Sap. Ct. Op .~Cl. 1299
!FHe No. 2445i • .:553 P.2d 467 n9'i6).
Or there can be no exemption. -
Wh"C!n the prope"ty in question is used
~;venin part by nonexempt part1ei1 for their
nrivate business purposes, there can be no
l!Xemplion. Greater Anchorage Area
Borough v. Sisters of Charity of House of
Providence, Sup. Ct Clp No. 1299 CFilc No.
24451. 553 P.2d 46'l . l976l.
Office space n~nted to ductors
engaged in pri~ uta practice. -Office
spac~ in a bui loi ng partially used
exdustvcly for nonj)rofit hospital
purpo~cs. rented to doc~ors engaged in Lhe
private pracLJce of mechc:ne by a nonprofll
charitable i~nd religious corporation, was
"" . '
' .
not c·xempt. from taxation. Greater
Anchori!cge Area Borough v. Sistt•rs of
Charity of House of Providence, <::up. Ct.
Op. No. 1299 {File No. 2445), 553 P.2d 467
(1976).
While the us<! r;f office space by
doctor-tenants in conducting their private
pra~tices does. provide incidental benefits
to the adjacent hos~ital: the office space is
not used exclusively for hospital purposes.
Greater Anchorage Area Borough v.
Sisters of Charity of House of Providence,
Sup. Ct. Op. No. 1299 (File No. 2445), 553
P.2d 467 £1976).
All religious property in the state not
used for business, rent. or profit is
exempt from taxation. 1962 Op. Att'y
Gen., No. 15. ·
However, property of a religious
organization used for the production
of income is taxable. 1962 Op. Att'y
Gen., No. 15.
But even in this situation a proration
must be made with regard to the property
involved, between those portions being
u:;ed for business, rent or pr9fit, and those
with no such use. 1962 Op. Att'y Gen., No.
15.
As the fact that a segment of
religious property is used for business,
rent, or profit will not result in the
t..-..xation of the whole. 1962 Op. Att'y
Gen., No. 15.
Parsonage of assistant or lay pastor
is exempt from ad valorem taxation
under the broadened tax exemption
provisions of this section and former AS
29.10.336. Evangelical Covenant Church
of America v. City of Nome. Sup. Ct. Op.
No. 243 {File No. 457), 394 P.2d 882
(1964). See now AS 29.53.020.
But property and facilities of a
church-owned radio station are
subject to ad valorem taxation if they
are not used exclusively for religious
purposes. Evangelical Covenant Church of
Amenca v. City of Nome, Sup. Ct. Op. No.
243 IFile No. 4571. 394 P.2d 882 (1964).
Stute immune from taxation.-As an
attribut.~ oi' its sovereignty. the State of
Alaskn ts immune from tu;xation of any
kind. ~962 Op. Att.'y Gen., No. 16.
Likc\"'isc municipal corporations. -
~lunictpn! c~1rporations at•c immune in the
same manner and to the same degree as is
the st.ate itself. 1962 Op. At.t'y Gen., No.
16.
immunity of stc.tc mny be wai~ed
onJy by express constitutional or
statutory declaration providing that. the
:;tate .:;hall be subject to particular tux
provision~ or to its tax statutes generally.
1962 Op. Att'y Gen., No. 16.
The inht:rent. sovereign'imm\tnity of the
slate from its .own tax statutes .has been
reaffirmed by the state constitution,
subject to the power of the legislature to
waive that immunity. 1962 Op. Att.'y Gen.,
No. 16.
The state constitution contains no
express waiver of immunity, rather it
contemplates that t~'e state shall be
immune from taxation .st.'le when
immunity is expressly waived by statute.
1962 Op. Att'y Gen., No. 16.
The state constitution pro•ides for
immunity of the state from its own taxing
provisions, save when the legislature
provides for exceptions to immunity. 1962
Op. Att'y Gen., No. 16.
The immunity of the state from
taxation does not exempt third parties
dealing with the state from payment of
state taxes when the burden of taxation in
a particular transaction falls upon that
party and not upon the state. 1962 Op.
Att~;r Gen., No. 16.
However, when the incidence of taxation
falls clearly upon the state, mere is no
obligation on the part of the party dealing
with the state to collect and pay over the
tax to the state. 1962 Op. Att'y Gen., No.
16.
The presumption. that state tl. ~ laws
&re intended to apply to private
activity only is equaily applicable to
instrumentalities and political
subdivisions of the state. 1962 Op. Att'y
Gen., No. 16.
State property is not subject to
special assessments levied by local
subdivisions of the state for
improvements which benefit sucn
property. 1966 Op. Att'y Gen., No. 10,
But such exemption is not conferred
by this section. -Any exemption for
state property from special assessment
will have to be found separate and apart
from this section. 1966 Op. Att'y Gen .• No.
10.
But ruther by AS 18.55.250. -The
obvious implication of AS 18.55.250 is that
it is the policy of the le{!islature that public
property used for ~ssenlial public and
government purpose:. is exe.lllpt. from local
special a::1:5essment.s. 1966 Op. Att',y Gen.,
No. 10.
As this section exempts from
ordinary tuxes only. -A constitullonnl
or statutory exemption from t:u:atwn is to
he lnkcn as nn exemptton from ordinary
tuxes, for th(.; general ourposeF. of
249
. . ;:
t:
! :: . ,, ., . .,
f 1
~:
'· •• •• ' ~; .
i :~
~·
~ .
'
'.
gover•."\ment, state. county, or municipal,
and d1leS not relieve those in whose favor
such exemption exists from the obli,qation
to pa~r special assessments for local
improvcmt:nts which are charged upon
property on the theory that such property
is specially benefited there.by. 1966 Op.
Alt'y Gen., No. 10 .
Special assessments arc usualiy
distinguished from general tsxation .
Special assessments are levied for
improvements which h~nefit particular
individuals or property and are levied with
refer•ence to, and in proportion to, thP.
spedal benefit conferred. General f..!lXes,
on the other hand. are imp'.)sed for tne
purpose of raising monies to be expended
for governmental purposes without regard
to special benefits conferred on a
particular group or class of persons or
property. 1966 Op. Att'y Gen .• No. 10.
Third sentence of section authorizes
exemptions similar to exemptions
gran~~ to state. -The third sentence of
this s~ctiou. authorizes the legislature to
grant exemptions similar to the
exemptions granted to the state by the
first sentence of this section. Such
exemptions may thus be for both real and
personal property. City of Nome v. Block
No. H, Lots 5, 6 & 7. Sup. Ct. Op. No. 839
(File No. 1652), 502 P.2d 124 (1972).
Thus, AS ·t-1.59.300 is c~~nstilutiQnol.
-AS 44.59.300. ;: c.cording nn exemption
to the Alaska State Development
Corporat.ion. has been upheld as
·constitutional under the third sentence of
this section. City of Nome v. Block No. H,
Lots 5, 6 & 7. Sup. Ct. Op. No. 839 (File No.
1652). 502 P.2d 124 (1972).
When the legislature chose to exempt
the Alaska State D~velopment
Corporation from .. all taxes and
assessments," it meant to draw upon iu
full powers under the third sentence oft.his
section, and thereby to gT~•'lt ASDC an
exemption for both its real ~nd personal
property. City of N~me v, Block No. H.
Lots 5, 6 & 7, Sup. Ct. Op. No. 839 (File No.
1652>, 502 P.2d 124 (1972).
Alaska State Development
Co'rporotion held exempt. -Where
actions of the Alaska State Development
Corporation to keep a foreclosed property
saleable by continuing operation of it.~
hotel-resluarant-bar cornplex were in
consonance with the ASDC's powers and in
furtherance of the valid pubiic purpose of
the ASDC ~nd therefore constituted use of
the property for a public purpose, the
ASDC did not lose its tfiX exemption. City
ofNome v. Block No. H, Lots 5, 6 & 7, Sup.
Ct. Op. No. 839 {File No. 1652), 502 P.2d
124 (1972).
Section 5. Interests in GoverutQent Property. Private
leaseholds, contracts, or interests in land or property owned or held by
the United States, the Stat~, or its political subdivisions, shall be
taxable to the extent of the interest..c:;.
/)
Taxation of 14~1Z~seholds by cities. -
This section does l'l.ot say in so many words
that leaseholds shall be taxable by cities.
But neither has tha~ power been
specifically denied to cities. City of
Anchorage v. Baker, Sup. Ct. Op. No.1 t3
(File No. 210), 376 P.2d 482 (1962).
~ection. 6. Public Purpose. No tax shall be levied, or
apprvpriation of public money made, or publJ.c property transferred,
nor shall the public credit be used, except for a public purpose.
This section is n general mensure
and expresses a very definite policy.
Matthews v. Quinton, Sup. Ct. Op. No. 31
(File No. 48), 362 P.2d 932 {1961), ccrt.
denied, 368 U.S. 517, 82 S. Ct. 530,7 L. Ed.
2d 522 { 1962).
Its proscription is against the
uppropriation of "nny public money.''
Matthews v, Quinton, Sup. Ct.. Op. No. 31
(file No. 48}, 362 P.2d 932 {1961), cert.
denied, 368 U.S. 517, 82 S. Ct. 530, 7 L. Ed.
2d 522 (1962).
The phrl!se "public purpose"
represents n cQnccpt which is not
capable of precise definition.
DeAn"tlond v. Alaska. State Dev. Corp.,
Sup. Ct. Op. No. 116 (File No. 285), 376
P.2d 7l'l (1962): Walker v. Alaska State
Mtg. M8'n. Sup. Ct. Op. No. 353 (File No.
669), 416 P.2d 245 (1966).
250
l~ would be a d\sservtce 1.0 tm.u:-c
generations for the supreme court to
attempt to define ''public purpose:• Wright
v. City of Palmer, Sup. Ct. Op. No. 605
(File No. 1192), 468 P.2d 326 0970).
It is u concept which wHl change as
changing conditions create changing
p\lblic needs. DeArmond v. Alaska Stale
Dev. Corp., Sup. Ct. Op. No. 116 CFile No.
285), 376 P.2d 717 (1962); Walker v.
Alaska State Mtg. Ass'n, Sup. Ct.. Op. No.
353 (File No. 669), 416 P.2d 245 (1966);
Wright v. City of Palmer, Sup. Ct. Op. No.
605 (File No. 1192), 468 P.2d 326 P970t
Determination of public pu1·pose.-
Whether a public purpose ia being served
must be decided as each case arises and in
the light of the particular facts and
circumstances of each case. DeArmond v.
Alaska State Dev. Corp., Sup. Ct. Op. No.
116 (File No. 285), 376 P·.2d 717 (1962);
Wa!k.er v. Alaska State Mtg. Ass'n, Sup.
Ct. Op. No. 353 (File No. 669), 416 P.2d
245 (1966); Wright v. City of Palmer, Sup.
Ct. Op. No. 605 (File No. 1192), 468 P.2d
326 (1970).
The technique used by most courts is
that of looking to the entire factual and
governmental context to determine
whether a particular plan of action serves
a public purpose. Wrigh~ v. City of Palmer,
Sup. Gt. Op. No. 605 (File No. 1192), 468
P.2d 326 (1970).
Depends upon characrer of use. -
The test of whether a public purpose is
being· served does not depend on the
religious or nonreligious nature of the
agency that will operate property leased
from city, but upon the character of the us,e
to which the property will be put. Lien v.
City of Ketchikan, Sup. Ct, Op. No. 146
(File No.275), 383 P.2d 721 (1963).
It is not essential that the entire
community or any particular number of
persons sho!Jld benefit from remedial
legislation in order that a public purpo~
be served. Suber v. Alaska Statt. Bond
Comm., Sup. Ct. Op. No. 344 (File No.
651), 414 P.2d 546 (1966).
Court will not set aside finding of
legislatura.-Where the legislature has
found that a public. purpose wili be served
by the expenditure or transfer of public
funds or the use of the public credit, the
court will not set aside the finding of the
legislature unless it clearly appears th<\l
sur.h finding is arbitrary and without any
reasonable basis in fact. DeArmond v.
Alaska StatE: Dev. Corp., Sup. Ct. Op. No.
116 {File No. 285), 376 P.2d 717 (196Zl:
Walker v. Alaska State Mtg. Ass'n, S\lp.
\_,l. .. VlJ .... o. &)U-) '' l.JC:: ''"'· V\J..!It ... 41iJ • ~-...
245 (1966).
The courts will not int~~rfere with the
exe1·cise of legislative discr~tion \tnlese it
is clearly shown that th~ legislative
determination that a public purpose will
be served by the means chosen is arbitrary
and without any reasonable basis in fact.
Suber v. Alaska State Bond Comm., Sup.
Ct. Op. No. 344 !File No .. 651), 414 P.2d
546 (1966). .
Industrial development. -It is
recognized lhat the location of an industry
in a particular community may have
widespread economic benefits and that
these do fulfill the public purpose and the
general welfare of the community, broadly
conceived. Wright v. City of Palmer, Sup.
Ct. Op. No. 605 (File No. 1192), 468 P.2d
326 (1970).
The test which the supreme court must
apply is whether a plan for the
development of industry within a
municipality is so unreasonable as to
transgress the limitations of the Alaska
Constitution. Wright v. City of Palmer,
Sup. Ct. Op. No. 605 (File No. 1192), 468
P.2d 326 (1970).
A general obligat~on bond issue for the ·
purpose of encouraging industrial
development within a municipality was
held valid in Wright v. City of Palmer,
Sup. Ct. Op. No. 605 (File No. 1192), 468
P.2d 326 (1970).
Relief and support of the poor has
long been recognized as an obligation of
government and a public purpose. Suber v.
Alaska State Bond Comm., Sup. Ct. Op.
No. 344 <File No. 651}, 414 P.2d 546
(1966).
Relieving economic distress.-It is a
public purpose tc expend public moneys to
relieve economic distress by aiding those
persons in the state who have suffered a
substantial tinancial burden as a result of
a natural disaster. Suber v. Alaska State
Bond Comm., Sup. Ct. Op. No. 344 (File
No. 651), 414 P.2d 546 (1966).
The issuance of the debenture
certificates by Alaska State Development
Corporation does not constitute a t1·ansfer
of public funds and the use of public credit
for other than a public purpose. DeArmonJ
v. Alaska Sta~e Dev. Corp., Sup. Ct. Op.
No. 116 rFile No. 285!, 376 P.2d 717
11962}.
· The expenditure of state money in
the construction of a hospital operated
by a religious nonprofit group under
the terms and conditions imposed by the
federal government under the Hill·Burton
251
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(A~'fOI.H~lt TBHM~ 1U07.
Hylla!su:t. :.!07 u. 1:),
pha ... ~es nf it-nre abl.r clcalt with in Pt£\ opinion of tho Court of
Claim~, muf i~ wu11: i he un:wecssary repetition to go f.>vcr Uw
argumen.l or to l"iJ\'if'w t.hc cases.
.T1tdgment a:fftrmcd.
\VINT!·~H:-\ v. THE UN£1'EI> S'rA1'E·B.
.'\PPEAL FltO~l TIIJ': l.IW'l!l'1' COUU'l' f.W Al'l't·:AJ ... ~ l·'CJJ~ 'l'HE NlNTH
CJH('t.:l'J'.
:OCu. 15S. .\ll:t:.·.J IJctt~hcr :H, IV07.·-Dcc•lic•l Jnuuury fl, 1908.
Tlu: m!r~ tlial all tlh· pal! 11· .. nu:,.;t juiu itt 1111 :tpr•r·al Ol' writ. of crrm· nnl~'{
pn"'~p•·rly t!&·L:wlwti fr.,,t, .tlu• ri~hl :-;o ln tlo .tpp!."!~H ouly to joint juug-
lltt·HH :m,{ dt:t·n·•·:-. Tl:i:f L'out·t laa!l juri.·nhl'tin;· •• ,5;' :m lijJpu:tl (.akcu or
\Hit ,,f l't·ror :tlh'11 t1Ul t.y OJil' of ~t'\'t·r•tl tlt•fcull:uHs if his interest i!l scpn-
rah~ ft•u:u that uf • h·· .. tb·1· clc·ft·ttclaut~.
Jn a !-nit nl!aiu~c. :\l~\·· t 11 .I"fl•ml:tnll-1 ns tn~.!t}l:t"-•c•r:~ in which t~omc of them
clt•f.aaltc·tl :mel otlu·c·-:11.• \\'t•n•,l, /J,•fd, tlt:aL c·.wh tlcfcnclanL waH n tmp-
ar;Lh· lr•·~pa~s,•r !l.u: that whilu tlto.:r> who ,h•ranltc<l \\'('rc pt·ccluclcd
iru!n 'llli':Odunill;.{ tl:,• c••Jrt'c•cllu-"!i ,,r tlw cll'c::·cc cnlc·n·cl :l~:tin:-;1. tltcm,
t l:c :tuswcrin~ clcf.·w!·utl "~ h:ul not hi11g iu c·r•mtnon with the olhl•nt aud
coulcl m:tiutain :m a,,; .. ::1 without thr.m.
In u {'Cillllit'l or in•t·J,, ... lt:HI.;, tlm illl'lfltnll'l\hi t:.ust be ('Oll'ih'U(•tl :tt•t:onlin~
t!l t! c i:t•pli,•atiun h.., .... ~ 1l:t• !!rf•.u..:r iort•t·: .11ul, in tlw int€'rprPI:tHo11
Li :J :,:rr>C:lli'::t.. :l 11ti ':• • • '"" '' ~~h lauli:m.:, :unl .!.!uitl~.:~ 1-ihould be n·~oh·t·•t
Jro111 tiat~ c-t:,u.~put~tt .,f 1!1\! Judian:-s.
1 n \'iC'\\ ni !al'! Jlu• t•.u·,·•J,JII"Lii;Cl'!i of t it(.• t r:tww·l iou thi'~ t:ourt holtl11 tl1:1 t
tlu r~ wat. :w in111ii• .t •••.:•r.\'a~icm iu tit•· :•gn·,·uat·Jtt. uf :\l:•y 1, l~SS, 2:t
~t.ll 1:! t. with tlt, l :, ,, \'t•ulr·· :athl olh••r ,ll~oli:llh· «'it:th!bhin~ the l·'mL
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Htv .. ·r t<~r irrigatiut• p.u·•••:-•·:;, whit·h Wa'> uut :llit•t•it•tl lay lht~ :-uli::t''lll\'111
:tC'l ••f Ft•bruarr :.::.:, 1;-;•.:1, :!5 l:ilat. ii7H, :~dtuillia~ :\foutnn:t tn the Uni"n,
anJ thaL llw w.ttr•r ": t:•nt. rJ,·r.r r:umnt be fli\'1.!rt1•1l.' tiO :ts t1> Jll'l:juuic('
this ri;.;ht o! the: )t.d: l '·'· uy :-cttltl~ 011 tim j'l~lblic l:mds or tho::o cl:tim-
ihg rija::d:m ri;::hts •u l!t:d rh'l'r.
Tin~ c:u\'t·I'IIUh'lll ur ,,,,, l'uilc'il nl:dl':i Jaa:; tl•··· p;m·c·r to rt•:;t:J'\'(1 waf.c•a·~t uf
:\ rivt:r OtrWitt~ lhl'•til:·l •. i 'ft•rriltH'Y :111cl NWillllt· tflc111 fru111 :appi'OJWiation
•uulcr thcl t:.~w~ CJf ll.•· :-;:ate whit-h Lha.t. 'rcrriL•Jry aL~lorwunhi bc,:omcH.
II:-< FC'•t Ht:p. 1\'l·l, ult.n. r L
a I •
• •
-.. .-. ; ..
207 u.s.
T1us suit \Vns brought hy the United Stnlf':i to restrain np·-
J.ielln.nls n.nd otlwrn from com:th·m:l'ing nr HU!i~ntaining •t:un!i
or reservoirs on the ~Iilk River in the Stntc of ~funtn.nn, or in
:my n.:.umer J>l'evcnt.ing the water of the rivt'J' or it!-4 tt·lhuturi~H
fr'O!ll flowing to the I•'nrt. Belknap' 1:<\dian n Cf.icrvnt ion .
.An intC'rlocutory ordca· wa:; grmttcd, cnjoiuin~ the tlcfcml-
nuts in Ow ~mit from interfering in UllJ' nuuwt.'~· with th~ u~<:
by ~"-·.! rcHurvntion of 5,000 inclw:i of tht~ ,,·ntl'r of the rh·cr.
Tlw order WU::I nflirmcd by the c;rcuit Court. of :\ppL·nl~. 143
Fed. Rep. 740. Upon the l'Cturn of the cnse to the Circuit Coul't,
a.n order wn:-t tnt.;en 7>ro confe.lf.~O n~uinst fiv<' of tlu~ tlcfC'mlants~
The nppell:m~ filed n joint nncl scYcrnl n.nsW\}J', UjJOil which
and the bill u. tl<~crce ·wn.~:~ cntcrecl mftking the preliminary in-
junction pcrmnncnL Tho fh!r.rcc \\'f\.':i nflirnwc! by the Circuit
Court of Appcnht 148 l~'ml. Ht•p. G~·1.
The nllt•gnlious of the hill, so fat· !\:1 tU'('(.':o;.'i:\1'}' to ~tah• rlwm,
uro ns follow~: On the fil'st tln.y of ~tny, tSS!4, a ts·~wt of lnnd,
. the propcl'ty of the United Rtn.tc:-:8 wns n·~cn•cd ami ~l~l npart
"ns an Indian reservation 1\:J nru.l fm· o. permanent home rmcl
abiding place of the Gros Vr:ntr<' nncl AH~inihoinc bundli nr
tl'ibr.s of Indians in the Stntc (thnn Territory) of llflnhllll\,
d~ignatecl nnd known u.c; t 1m Ji'mt B<'lknap lnc li:m 1 h.·~('1'\'D.·
tion." Tho trnct hn:; ever t:inrr. hr.rn U:-•l'cl as nn I nttian rcscn•a,..
tion nncl tui tho, home ami o.IJi• tiu~ plnl·t· nt' t i-aC' J wlinns. ·.:It..~
boumbrit-s were fixc(l nml rlr.finr.cl u~ foHm\·s·(2.1 :-\tat. 12·1}:
H nr~riunin~ nt. a point in the mhltHc of the nmin c:h:tnnnl or
Milk Hh·c~r, oppo~H(! th~ mouth cJ !4ttnkl' rr~~k: thNH"(' clur
~OU(h to f\ point tllll~ Wt•~l uf lht• \\'t•:..:tr'l'll t•X!I't'ltlll.)' uf lhl' J..h.lc
n oek v !\lmmtnin~; thence du~ t~n~t [I) tlu~ ('t'(·~l of ~a ill lfl:(Jtil)"'
tuiu:-; · nt tllt'h· wt·~h'l'n t'~ll·t·mhy, nm\ thl•nc·t• iuHuwiu~ llw
southern crest or snitl mountain~ in the rr~_:;tt\ru t"Xtrc•mity
thereof; thence in n northc•·ly clin·ction in n t!il·t.~ct lhac tu :l
point in tho rnid511n of t.hr. main chnnntJI of ~(ilk l~h·c-r nppo~itt!
Ute mouth or p,mplt~'a e.·~t,~C!It j Uwnc:r up llilk Hh'C'I', in tJu•.micl-
liiC of llw mnin r.lutmu•lthcrcof, to Um plnc·t' of IH'~nning."
Milk Hivcr, dcsigno.tccl :l!t the· northc•·n bonml:\1'~· nf t ~~~
---5uo --
!-:tatomcnt. of the C:~su.
'
-
207 u.s.
rr.:>t'lT:\tion, is :l :., .• a·lla\'igttble :-:ll'l!!l.IIL l .. arge portions of
thn land .... t·miJracc•d •, i:hin tlu: rc:.;crvatinn ure well f.iUcd n.nd
:.u b ptc·d io~· ra::lw·a;.~·· altC I the ft!cdin~ and grazing of fltock,
and::iuet• th('('StaLli:-itliHmt.of the rc:.;Pt'\'ottion the Unilcc.l BtntcH
and the 1 ndinu:-0 h:l ::e lmd nnd have l:.trge hC'rd~ of cattle mad
lar~c umuberd of lhw:-:c~s gmr.ing llpou the laud within Uw
n•n•n·:ttir-n. u bPill.~ :\lid :'ituatl' :doug mul bordering upon f;nid
~Jill~ J!in·r.'' Ollh•l' tJu·licm:-: of tlw 1'(':-:t•r\'ation nrc "ndnpl<~cl
fur :wd ~u~r·<:pliiJh• of laruain~ nud cnlli\'ntion nrul the purl-;ttit
of ap:ri,·ulltt11\ and Jll\.uhu~th·t· in tho mi:.:ing tht·rl'{lll of grns.~,
:nai!l awl ,-.. ~c!tablr· .. •/' hut ~nll'h pol'tioJJ:-1 nrc• of dry o.mt arid
-
·. a·lmr:tl'll•r, allll if~ hle!,•t· to tllJLkl~ tlu•rti pr,uhwth·e l'l'C{Uirc !:tl'~(~
t 'JtlHiltilit·:-: of W&l.lt·r r.,,. tiw purpose of inigaliug tbcm. In 18S!) "'
.t.lu· ruilf·d ~l:~h·:: l'OJ!;.tl'll<'lt~d Jum:--t':i nnd huildin~::; upon Uui
~rc·::€'1Tation fot· th(• &·i·.'up:uac•y und r·p:;itk•uto of tlw ollir.cl':i in
c•h:tr!!l' of it 1 :uul :--tt•·h tllfit:l'r:; clc~pund lHth·dy l'1H' theia· do-
llll':--lit•, culium·y Hllcl ir: il!;tttion wnvns,•:-: upon the wn.tcr of the:
rh·,·r. In t J U! yt·:u· I~..:!), untl lou~ pdm· to the acts of the dc-
ft·ucl:t!tl~ C'OIIlp)nitu·ll t~f, tJU' ruitt•d ~tUlt!~1 thi'Ollp;h its OIJiCCl'H
:uul :t!!Pll(::; nt t1w r•·"'t·l'\'n.tiuu, nppmpl'iniP<l und took from tho
.rh·:ar :t flow of J .OW! lltilwr~' iJH'Iw:-:. :uJCl conduct.rd it to t.lw
huildiu:.r:t :uul }irt:ll·i::t· .. , u:-:ocl t~w :-:anw I'm· donw::-tic purpmms
:tllll :tf:-:u f•W (Jw il'l'lt::dillU of laud aci'JaC!CJa(. f'o thn httiJclin~rs n.nd • n
prl•wi:-:c·~ •• uul hy 1 ht• U:K' I hcwc;of rni~c·d ,n·op:i of grn.in, grnsa
:uu I , ... ~l'tahlt•:-o...._ . ;\ r l(•l'\\':\!'r,l~, hut kmg pl'im· to t.he n.cl..'i of tho
· tf,.f,·wl:luf:-: t•ptupJahwd of, (o wit. on thn fifth of .TuJy~ lS!>S,
. flu• I uditau:-; t·c·~idin~ ,J:J t ~u~ t·e;-.C!l'\':Lliuu dh·r.'1·(p(l fi'Om thn rivor
· r,;i· 11~,~ Ji~ia·p(,~,r of .• >,~~·•tic>sl 1i It:)·.v ,;( J.ti,o~o miitm'!i' iltch~!:~
·fJr walt·r to nwl Ill•''·' divPr:i ntJ() (!~lt·w:h~C' trnrt~ of )1\1111,
:tt!;!n•:mllug ill IIJ~lf•tll!l abtJllf :~.(),Of)IJ :wn•:;, :tllCJ J':l·::-:<'11 Uj)OI~
i ;:J:/ i!!:Ji' j /!1/J·! ./[I d/-'!i/1, /11/1· ,: It/ Jl ~t' ,JJII,L/1 ;r 1~1111 1
1
'11"1'
t-tlwl· f' .. ~.o uHtf .iuf.v, IHh~, Hw fluif•·d Hlnfr•-t ILtuf f.l•r• fudJJLWI
lm\'H dh•tirlt!tluwl u.·•··l tl1n w:Llt'l'H of tlw rivea· in the mn.nncs·
:uul for t 1H' purpu.:''·" llHllltinuml, nml the· United Statcu ~· hn..~
bt·t~u enahl,,d by m<::m=-' t.hm·,,or to train, t•ncourngc nnd nccus-
tnm htr~e uumbcl':: ,_.r lntlinn~ a·olihling upon tl1c f\nicl rcsorva-·
... #
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'
' • .. •
-\V J~TBHS v. UXITf::f.J :--iTATES.
207 u. cl. Sb.tomcnt o( tho Carle.
tion to hn.bits o( industry and to promote thnir civilization nnd
improvement." lt is nllcgcd wit.h dt!lnil ~hat all of the watC:'nt
of the river ru·t~ nccca~t\ry foa· nU those pm·pos~~ ntul the pur ..
poses for which the t·cscrvnlion wn.;; created, nnd lhnt in furtlwt·-
ing nwl ;ulvcuwing the civilizntiou mu1 impl'O\'cmr·nt of. thr
· Indian::;~ und to cncom·ngo habits of industry mul ·thrift. nmong
them, it is c3.~ontin.J nnd tu~rr.s..;nry thnt nil uf tlw wntc~ of the•
riv~w flllw down lhH chnuncl uuiutm·ruptr.,Uy nmf untlimin-
it)hcd in quaulity nmlmu.lctcriom.lcd in qtmlity.
It i::; n.lll'gc~tl tlia.t "noLwilla~tnmliug the ripnrjnn niul uthcr
rights" of tho Unilt'd States. ancl the Intliu.nR to the unin-
tcrr·uptc'l flow of the Wt\t('I'S of the l'i\'l!r .the tl(•fcntl:tnl~, in
the year H>OO, wrougfully cntcr~'l upon the rh·t'r nnrl it~ trihu-
inries nb0\"0 the points of the tli\'el·~ion of th~ \\'i\lt.'r;i or the
rh'cw by tho U nil"" Stntcr; nm I the I ndiansp huH t l:tr;:c :mel
F;Uhsfnntini <lo.mH t\ntl ,.,~l'I'Voir~, nne I by me:m:\ nf. canal:; :1nd
dit<·hcs aml wahwwnyli hnvc divra'tcd thn wntC'r:t of thf' t·h·('r
ft·om its c:hnnncl, nntl hn.vc clcpri\'ml the linilcd Ht:tlrs naul the
Indinns of the m:o th"rcof. An'\ thi:\ dh·ra·sion of the wntcr,
it iR nllcg('(l, ho.:; continued until tho tn·c~t'nt time, to the ir-
rcpnr:Lhlc injury of the United Stntcs, for which there i:c n'!)
ndNJUntc rcmC'dy a.t la.w., · ·
'l'hc nll<'gntious of the answer, so fnr n.~ mntcrinl to the pr('.scnt.
controvcr:;y, nm ns fol,ows:·Thnt tlao l:uul:l of the Fort Bc,lknnp
n('~crvntion WCI'(~ n. )ln.J:t of n. mud• Jnr~cr Rl'f\-.'\ in tlan Stnlc of
Montnnu., which hy'nn l\CL or Cougn:~~, npprtJ\'t'tl April15, 1S7·1,
c. {}G, lR Stnt. 28~ wn.-s ~ut. npnrt-nucl rr.sea'\·Ptl for the nccup~tion
of tlic GhJ~ Vim t1oc; I!ii•gun. I'Sihtl't I' lS"thdtit"'ft' :wH I' tti:v,·•: (.;~ uw
Jntli"am~, but that t.hc right of the 1m linn~ thcl'rin u wn::t the b:nc
ri,dat of 1 he~ Ul'=l~ nne I ut·cup:tl inti t lu-ra-. •f u l llu• wiii :me I ~uiTt·e-.UH't!
o( tfac C(J\·t~nuu~nt of the l"nitr«l ='l:ltL-s:• Th:\l lht-t 'uih-.1
HfiU•~, fur lht! J»Uillo~r. or Hpt•nin;! f'ur a-;dtls•tm·~·· 1\ l:u',.:t' !'"r--
tion of such m·cn., entered into nn ngn.-cmcnt wath the lmhnn.i
. snt",llt .. li'CS by which the T mlinnf( '4 rcdNl, a;olc.l, trnns· romposmg. ·• ' ·, · 1
fl'l'ff.!(l a.nd convoyed" t.o the Unitc.•cl ~tnt~ all .or the l~nt. ~ ~nl·
bt·o.ccd in f:{n,id au-c~, except. Fort Belknap lndtnn U('.ic~a~aon,
..
/
-·--• *
..
' . . .
C:Ul'ODJ~H 'fJ~H~l, 1007.
• ~t:\tcmcnt or the Caflo. 207 u.s.
. .
tfL':O:Crilwcl. in thn hill. 'l'hi:i :l~I'Cl'IIWU(. wn.q ra(ifi('(l by t\11 IU:t
ol' l:m1~1'C'~s of lit~)· J, lkS8, t:. 21:1,25 K1at. 113, and tlwrcby
the lnuds.tt~\,·hit'l,·ah·-· lwlinus' title wa::; tlm~ t!;-.,:tingui~hctl he ...
c·amc a. part of the~ t•uhlic (Iomain of th'~ 'trnitc(l f:;tn.tcH mul
.. =--ulsjct!t· to dh•posal t:t~dcr the.• various luntl I:LwH, 11 a.ml it waH
tiH.·· purpo~n :mrl inte:ntion of the Govnrumtmt th.nt the said
· laud ::houltl hn thus ahrnwu open to ~ottlc·nwnt, to thc'nnd that
thl' :-:aull! might he· ::t:lllt·rl upop, inlmbih•,l, J't•c•lnimcd nn'l cut-
.·. · r h·at N.l nud commlwH it!:i of c~ivilizcd pc·•·:;on~ be cstahli~hcd
· t hcrPon .'' · -.
ThnL the h1dividu:,l clC'f,mdnnts nnd t.lw Htockho1dcrs of the
7\l:lllw.-~ou Ditch Cnmp:wy nnd Cook's Inigntion Company were
•tuaiifit:d to bccouw !•H tier~ UJlO!l the puhli1! lnnd and to ac-
-· quit·£· title' tlwmlo tuul,•r the hmnl•stPn.d nntl des{lrt lund laws·
i uf the Uuitt·cl Bt;lfa•:t. AnJ t.hnt. l"aid !:nt·pm·n.tinnii wcl'c orgo.n-
i;~,·d :tnd c.•xi~t umkr the lnw~ of ~loulau:~ for thn purpoRl! of
:-:llJ'plyin!! to tlu·il· ~d"l ~tcwkholdt'l':i thl' \\':ttPt' of Milk Hi\'t'l'
awl i I~ lrilnttnrh•s, to ht· u:-:t•d Ly ihl'lll iu t hn il'rigation of llwh:
l:mds.
That llll• dc·fPnd:,nl, the l·~mpir<• Caltll· L'ompauy~ is a c~cnpo
. r:&tinn nudPJ' till' l;l s:: ,,f :\luntlllm, was lt·~ally rmtit.letl to pur-
. c·hm=a·, ancl dicl pun·l•a:-••, from thnsc• who \\'C't'C' qu:tliliPd to :u•-
qnil'•· tht'lll uuclt·a· d,, d"~'·a·t :llld lsmuc•:;f,•tul laud Jaw;-; of tho
t:uit•·d :-;tal•':", la11d-. .; •• f.l11• ~fill\ Hh·c·1· mul its tJ'ilmlarit·:-;, :uuJ
i:-; r.ow tlw o\\'tlt·r awl l:.,idc•J" tiH!l'L•of.
'Fhnt. t ht' drfl'udaut:-, pl'inr t.o tlw fifth day of July, lf-iOS, nml
hdort• anr !lJ>JH'OIJJi:tlinn, di\•t•l·:.:ion or it·!p of t.Ju• Wllll'!''t or
tlw rivc·r m· ill'C triludariL·s Willi IJJ:Uif! hy lltl' t 1uitl'rl ~H11IP~ "''
tl;t. ltHli:m:; em tlw F111'l BPllw:ap ltPr•~'l'\'llli•lll, '''''''Ill Jl Plllltl•
iu•r plant nf tlw <':t.tua it y of nhout !lt.O lllllh•l'!'1 1 ltwlll':l, ~'II h•llll
h:~·in~ Hotict:, or llll)' &·laim 1\luCh~ hy I hu l 1nitt:d Kl:tlt':i Ul' tlh'
huli:tns that thm'l' \\''1'-' nny l'l!l--Cr\'CLtiOJl tuacll~ uf tim Wah•l':-1
nf thu rh·•:t· or its t l'ilmt.atil~S for u~n on r.aicl m&ervntion, awl
lll'lil'\'in~ that ;~oll tlu• \\';\(fit'S 011 thn lands npt•n for f:utt.luuHmt.
a-. :tfun·:-::1id wc•n· HJ!lj.·l·l to :1ppropriaticm uudt•J' tJw luw;o; of
llll' l"nitt·il Htat,•;:; :mci 1 he lawo4, deci:'iOlll', t1tliug:' and en:; tom~
-·l!ll!llllllllll
• ..
-1 •..... ~
., .
..
I
.,
,, .
• '
\VIN'fEJtS ,. UNI'fP!D :i1'ATES.
207 u.s. Stntcmcnt or the C:t..~ •
-
U!f ,-IU•
of the Stnru of ~lontano., in like mnnnor ns water on otlwr por
tions of the public domnin, cntcr~d upon the.' public l:uui:t h
tlw vicinity of the l'ivcr, made entry thca·cof nt lh(' t:nitcd ~t;ltl·:
land office, nnd thcrcnftcr settled upon, improved, rc•cl:dmt•l
tllld cultivated tbe snmu anc.l performed nil thing~ n.~•tuh·c•l tc
:lequire n t.i tlu under the homcstcnt.l nud U(•scrt land In ws, uuult
tluo proof thereof, nnd received pntc•nls con\'t'yiu;: tn them
a·c~pt'cth·ely, the Jnndo in fcc ~implc.
Thnt nH of snitl lands n~ ~ituat('d within thn wat.<•n&hcd o
the ri\"cr, t\1'0 rip:U'ialll Up~~l thu river nnu its lributnricR, bu·
arc arid and must bn irrigated by 1\t·tificinl mC'o.ns tQ mnkc then
inhabitable and cnpnh1c of growing r.rop3.
Th:\t for t.hc purposo of l'l'dnimiug the 1nncls, nntl ncting un·
dc.•r tho ln.ws of tht~ United Stntcs nru.t the laws of ~lont:mni tlu
dt•fctu.lunt:i, respectively, posted upon t h~ rh~c.~r unci it:i ll'ibu
tariN;, n t the~ 1 Join t!i of inh•ndt•d di \'(•rsion I nnticl·~ nr npprnp!in
Lion, ~~tnting tlw. nw:m~ of •lh·,m-:ion nntl plnrt' of u~. nw
tlwrcarter fill'<l in tim onit·t~ ·or tlu· dPI:k nml l'\'t'ot·ch·r nf th•
county wlun.'ciu the lmuls \n•rt• ~i tuah•tl :\ copy of t lw nut irf'~
duly \'(!l'ilic,l, nml within forty day:-t tlwrt•nfh•r cnmuu•nt·t•tl th·
conslruc:lion of ditches nne) othc•r in:-<trumf!lll:tliti'·~. rlntl corn ·
plc~tc•cl Uuom with ~lili~~nrc• n111l tii\'t·l'll'tl. apprnpri:tfe>tlauul up
'plic!tl to 1\. bPnnficint usc IIIOI'l~ thnn 5,000 miau-r~· im:lw~ uf tlu
w:tlnl'l'; nf tlw a·h·c·•· nncl it~ (l'ihu&:u·ic•:t, nr t:ln c•uhit· ft•t•t I"'
~t'coml, ini~:ttin~ ttwh· lnml~ luttl' .Jlriuhu·i!'~ ha\y, ~min nnr
ulhf't' r•rop~ lht'rt•nn. 'l.'lw cll'ft•tulnul.~ nml till' P:ltn•l\lt~tlcl..t
ur till• tlf•rt•Winllf t•lalpiii'UflhUtt fut\ I• flifJII•&Iflt•lf 1111111,\1 lllllll·~lflof
ur tllllllll'•f Ill r•UIIflllll!•lltttt ,,, ... , ... •tlt•·llt·' 111111 IHi I''"" •• '""' I·
IIIII tiii• 1111• ''!lid I!Utrl·•i Itt tilt IIIII• ft Ullut, tlltd hit II f I' I 1111 ttltt
a•t·llll ,llllltll!l' i't•ltlllll" ullaf ll'ltt•lttl• IIIII:· 1t11d1 '·lltl1· IIIII I It•• I fl 1
1'1'1" ••IIII•UIU, Ut•lUlU,\• htlll ntul t•Utll\ ,ul tu II d \ '"t'"t ~lltl~tl~ll.t:lll '.
u lthnt thu uuly rntppl)' uf "'""''' tu h·tltcuh• 1 "' '"'' ,. '' ~··•;· ~li;k Hivm·. If drfcndnnt~ a,·~ ~'·p•·h·ml of tho w~~ll·rs. ~ u~
1 r lily cln~'~"" •lc•cl mul tlw\' "tll he. cum· Junds <'l\nunt J(~ su(:cm~~ ' " • • •
I , • be mn Utll'lf thc•l'tOII. USt·lcs.~ and aomcs c.mno.. ·~-• ttl r I
11;nt there· nrc c~!hcr lnnd!f within tlu.• n·ntc·r~hc o t •·
'li~1'UBI~lt 'l'l!:lt:\f, Hi07.
Htalcmc:nt of tlw C.:.:·c. 207 u.s.
llilk Hin~r un<l 1::\ :'i ihutnrita::t nnrl d<'!J~!IHicnt upon its W!tlcr::~
_r,,,. inhmtion·upuu •.; ilt:·h 1t\l'~t' nu:ulu•r:-: of JlPI'SOJlR hewn f:dllc!cl
mulc·r tlu· btullaw.-,,t:..rTw l 'uit,·tl :-!lah·~ ami nn~ inigatin~ nne!
t·ulth·aliH;!·llu· ~:tl!h• l1y nu·:tn:-: of t-"aid W:tlt'l':\1 ami hav,~ a:--:o"iHlml
lht· clt•frwl:usl:t '•it: ,•,tahlh:hiu~ a d\'ilbwd co1umunil.y in :mid
<·c,uutry ~twl in lat.ihling aucl maiuwiuiug churolws, school~,
vill:!~l,·,:o\·mu! odwi· t !a ilH·nt...-; mul :u:t~nmpauiawmts of civilization;
that ~.ti,l C'oumntllid•·;o; c~on:-:i~L u( Uwu;:aml::l of people, und if
tlu· •·bitu of the· l'tait~-d ~tall·~ :mel tlw lndinus be rnaiutninctl,
lht• lawl:\ oft),,. dc·f,:ud:mt~ :tllll tlu· 11f1H'I' ·:tPttiPt·:-: will he
n·nth·n·cl ,·ahu·lc·:-:-·. •h,! .. ~aid. (!tHuunmith·s will be hl'okeu· up
awl tlu· p11rpo:-:r• ,,:ad tJhjl'cl of the Uon·•·umeut in opc.•uing sttid
Jawl~fut·N·IIll'nu·ul ''i!l ht•whollydl•ft•uted.'' ,
Jt i~ :tllt:J,!('d lh:ll tlu•a(' nr{• n larg<~ llutllhcr of sprin:,rs on the
r,•:-:.•!T:ttio.u :llld ;:i'\'l•r:t} ~~ n'Uill:o' fi'Uill whit:h Wal<'l' CUI) he ob-
l:,illl·cl for !"ltll'k ;i:. I i:·:·l}!atinn. )'lli'I'Oo::{':i, :lllll particulnrly these:
Pt·npl,•':-: l 'n·t·k. lhm·in;.!, alunlt. l.OilD itwlu·~ of wntt•t•; Big Hm·n
t'r:···l,, ll:.wil&!! nhu:ll 1.000 itll'h~>;o;: l.ud~t· Polt• Cl·(:('k, flowiug
:about non iw·lu·.' c.f \\all'l'; Ch•ar ('a·p,•!,, ()uwin~ nhout :·lOU
• iau-h•'-"'· That al! o:· tiH• wnlt•r:t nf tlh•:-:P ~ta·eams can bo nuu.lc
:a\·:aibJ.J,· r; ... li't' t!J·dn tlu! rc•:\t•r\'ation, autl t.ha.l. it w:t..-; uoL ihc
iJ:lJ·ution tJf tll(' (,.,\·•·l'lllllt'Ut lo r<':o:t•t·vn any of thr watrrs of
:\I ilk I( h·a·r w· i L'" t t i! h 1 ( arit>:-'. Th:tl t hi' r,'ti}lt'C!th·r t'lni tn:\ of the
tlt·fc·wlaut.: tutlu· ·.r:ttt·I'H of tlw rh .. c.•r :&11«1 it;-; lrilmtarit~H am
priur :lll~f )':ti';\IIUtl:!Jl (i). (111' t·hthll:i Of tJh' ruitPd ~(Hfl':i lllUI
tlw ludiau:-:. <.'Xt'l'fl a~ 'tu :!!jlJ ilw1wH u~:pcl iu nnd uronnd t.lw
:t•'c.'llC'\' lmildiu!!:o:. :ud nt. ill1 tiuw:; fh,·w ha~ hewn :-tuflit:ir.nt " . . .
watl•t• llowing cl••WII dw li\·et· to lllOl'B th~n supply the~ 250
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·ll'·'
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\VlN'l'Hlt~ "'· UNl'fEO S'!'A'rES. 57.1
207 u.s. Argument ror AppcUantiL
be wholly ~vithout rcmetly if the clnim of the United Stntt~s
nnd the Intlinn!l be ~ustnincd.
1llr. Edumrtl C.JJny mul Jllr .. Janws A. IVal:;/1 for AJlJit•llant~:
'l'hc decree it;, in fnct, scpm·ntn mul z;sr.·vc!m.hle. · .
It is not charged tho.t tlw dcfC'mlnnt:; nctc•l jointly. N'dthcr
011(: is rt:spousihle f01· the nets of t1u! ot.het·. In so fat· as the
recorcl shows, the defaulting defcmlamts ar~ not the owner.:~
of any ln.nds and nrc noi, intt'rcstcd in thi::; suit. 1/ancock v.
Putrit'k, lHl U. S. 156; Forunu v. Cmrrml. G IIuw. 201; Gil-
fillan v. llfcJ:.ec, 150 U.S. :103; Cii!J Btlnk v. l/mtlcr, 1~0 U.S.
5i8; /11il?ter "'· ~l!cck~ 05 U. S. 2:32; Totlcl ..J.. Dunit»l, lG l,ct~
521; Ra1'lroad Co. ''· JGimsml, 15 \Vall. S; Gcrmnin , •• A11 G$nn,
12 'Vall. 261. See also flill v. Chir.ago and Et·ansltm lly. Co.,
140 U. S. 52; Baskcl "· 1/nskell, 107 U. S. 002; l..mti.~~·illc d=
N. A. C. v. Popf:., 74 Fctl. Hcp . .5; Farmers'.ljoan tC: Tru.'it Co., .•
Jl'/ cCiure, 40 U. S. A.pp. l 46; 1lf trt.:alllile TJ·u.-.;1 Co. , •. :ldtwl~
/!lxp,·e~s Co., lG U.S. App. :i7. · .
In th<\ agreement with thu Inc.linn~ nnd the net of Congrc~s,
ratifying t.hnt n~rct'tntmt, thc.-c wns no t·,~:-;ct·vnHon of t1w wnter.t
. or l\·lilk IU.vca· m· it::~ tributnril!l'( foa· u~u on tho Jt'm·t Bolknnp
lndinn TicscJ'vntion. Noa· can lt. 'hn hole I t hn.t thn laulinn~ un-
tlm·fo>too'l that them wn.~ ~ny r~cn·nt.ion or tlw wntl···~ or :\lilk
Rivca· fQI' use upon the Bolknnp Hc~m·,·nt.inu, or thnt tlwy rmlecl
nnd a·rlinqnil'hccl to t.llt' Go\'ca·mnt'nt :anylhinJ! le:-;.-; thl\n the:
nbsoluto title to the lnnd~ nnd n.ll wn.tca~ thct'l'Oit to tlant pos··
tion of the Carmer reservation to which they rnlhu1ui~hNl thr~r
claims. .
The rule thnt the treaty must bo construed m(Jst fa\'ot·nhly.
to tho TnclinnR (IOf'R not npply to this ('Ul'\l~. Hc•t·t~ lhl~ ('Uiltro-
VCI'SY is between thu Unitctl Stntu.-., :1:4 gunt·t~l:\1\ nr thl! Jaulhms,
nnrl the o.j1pcllnntR who nrc citi7.c,ls and J:ti'ILIIh!~~ of the ~ni
tctl States, and the controvcr::~y lm:t •·cfm·c•tu·t~ to th~ htlt'"
gr&\ntr'•l hy t.Jw tJuitc~l Slnh':i io t.laC'In. Iu l"tlC'h rnHc•, tlw :Lii-
pellant.'! nrc the public in whoso bchnl£ the g1·:mt:-c auu~t be c:uno
,~truce\ moRt ~trm\gly. Tho propcrt)' g~·nntccl to them by their
v-t • -
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' 572 UC'1 · dn~H. 'L'glt~I, 1U07.
' ,\,·.~suncnt. for Appcll<'c. 207 u.s.
<·ntl'y upon and setUl'!:H'nt of the public hnclr; of the United
:-:tal<'s, and the .• npp: OJ,ri:\liuu of the wn.r.).rs flowing iu tlw
::t reams upon or adjat.·n t thcrclc.) ptmman t to the In w:-;1 lhl-
t•h:iUlt$ of the t•ourt:;, n.lt·:; and t·u~lnms of the country, is prop-
t•rly of wltic:h they (':\1111'-•t lm dt~pl'ivecl wit.l10ut due procc•:-;s of
l!tW, and without just (!Ofll}lt\H${\(.ion.
Then\ is nutlting bt·f ... ·l' ·tlw (•otu·t fo1· eolt'itt·uction or intc.•·-
pn:tation, hut tlw phti11, uuamhigHous la.ugun.go of tho a.grcn-
ntt:nt, ami that it\ S&> C'l·!=u· t.hnt it. dot'S uot. require any coniitruc-
tiuu or intcrprctntiou.
The appl'll:tnl:' tHad~: \':did :tpprupri:tlin!::' of the wn.tr.rs of
:\Iilk Hivcr and itH trihttarh·:-: untlc•t' tht' law~, CllHtoms and
«<t·ci.:.:iou~ uf :\loulaua, :u.d llu· Jaw:' of C'cm~n·.:.:s, mul tlwil· right:-;
:l!-= ~l:tllllt•c•s (If f1m Gc.v1~rhmcnt nt·e 1-'Upnrim· to a.ny rights whic·h
thl!. Indian~ may hu.n~ by rl•:t...;ou of ihe a~J'(!I'OJOnt entered into
hl•( \\'t'l'll th(•ll} ami t1ll' ( riW(:l"JIIIU!Jll.
Tltt~ dodriw· of ripnri.m ri~hts is lWl· l'Pc·ognizccl, doeR not
pn·\·ail a11d llt'\'c•r wa ... iu fon·t· ill .:\lollliltt:L, n.nd t.lw rights
of l ht! p:u·lic ·~ to t lu· u-:1' of 1.1 w wat <'r:-' uf \I ilk Hi vm· and i be
tributarie:-; liHlSt he c·tns:-:lnwd :lt~t·ording 1<1 the laws of thi:-;
:--it a tc·.
Enm if iJu~ doctrin•: lar ripnrinn rij.!hts di\1 prevail, t.ho np-
pdbnt:-: would Jm r•nntl.·d to a l'{•a.·mn:lhl" u;-;n of tho water fm·
l hl· p11 rpo~c· (If irri~a t i.1;!: I hd I' laucl:-(, ll:l \'i 11~ in view the oq ui-
tnhln right.:-. of olhc1~.
The right In appl'opd:HC' wntr.r is rcc·ognir.('(l by tlw )J~WR
,,f th(· r~titc-d :··Hate•:', tht· law;:; arul dc•!·i~iou~ of the courti\ and
t)H· t!U~toJJI;o; pn·,·ailiug in ).Jontrm;~, whil'11 Hl'~l uow nnd were in
fonc iu )Joutann. a1 tin· -rimt· thl• np;n•t.mwnl wns nt:ule with tho
Iudia.u:-:, nrttl tllt•:-:t• app•·libuts lHl\'n l"hown tlml. tlwy :Lcquircd
title tu tlwir lancl:-t u:uh·r the grnut fr·mn tho ·GovC!rnmcmt nnd
wade ,·nJicl and prior :LpJ~•·oprinticm::; of t.ht.~ waters to reclaim
:;uch l:uul~.
.\Ir. Assi.';/mll Allurt.t !J (/r.neml Banford nnd Jl/1·. llsm·.~ta·n/.
:lllnrnry Gt!ncral Van (),· .. ·clcl, wiLh whom 7'/,e Snlidtm· at:~wml
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'VJN1'EUS 11. UNI'J'L·HJ S'l'A'l'E:i.
'11'1" s _.,-.......... Argument. for ApJlt!llcc. ..
n.u«l illr. A. C. Campbell, Special Attorney, were on th·~ urit~f,
for appellee:
The decree below ndjudging tho compJninnnts' right to thu
flow of the wn.ter!J ~r :Milk Hivct· n.s n.gniu;;t all of tlw dt!fcnd:mi!~
hcfon: tho coua·L, i:i n. joint «lem·ct: witlaiu the uw:mircg of tim
t·uln that nil pnl'tic~ ngniust whom u joint jwlgmcmt or cll!cr•:c
i~ rendered must join iu proscc:uliug n writ of ''rl·or or t~ppcal.
mul thn.t if pro:;ccutcd by less than the whole number of ~urh
pnrlit•H, without n sunnnon~ nud sn,·m·anco m· othrr t'flUi\':tl:.mt
procecdiug, the nppcllntc cou.-t :w,tuin·~~ no jur;.~diction of the
CU!::l! and tho writ of error or appr·a1 wiU he~ cli~rni::~ctl. Owi11y ... r·.
Rincannon, 7 Pet. 39!1; llfastcr.C(on v .. 1/cnulon., 10 ·,vnl1. ·116;
/Iampton , .. Ruusc, l:J \Vn11. 1S7; ll'il.'imt·s 1/cir:t , .• lri'\Urmwc
Co., 12 Pet. 1~10.
The defect of lack of juri:-tdiction for wnnt or ncce::~ury p:\r·
tics to the n.ppNt.l wns uot. waivf~fl hy thu final deere~ cntcrc•l
by the Cin~uit Court of :\ppmtl:; Upt)ll thu mcriL-; without. obw
jed inn nu that gl'ouml. Un·ion & Jllm;kr.~ /Jank , .. .11 t:ilt]lld.~,
I SO U. H. 71, 7:J.
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Undtw the just und rcn.sqnn.hl~ (:onstt·uction or thi!:e n~rcc
ment with the Indin.ns, consiclcrecl in tlu: light or tl11 'tlw .cir-
cumstn.necs nml of its cxtn·c.~ pt.n·po~c, t.hc Isuli:\ll:i clid not "'\
t:lwrnhy rcHlH m· rclinqui~h to thf:' DnH,!cl Htnlt'H the ri~ht to
nppa·opri:du tho WL\lct~ of Milk Uh·t~•· llt'C<!~:Cai'Y to tlwir usu (
fol' ngriculturnl mul other pm·puHt:s upon tlw n•:-;m·vnticm, but
t·ctninml this l'ight., n.~ nn nppurtennnce tu the Janel whieh they
.retain('( I, to the full extent in which il hatl bc~n \"cstctl in them f
under foruw&· t•·caticd, and the right tim~ l'(•tnincll :uul ,·r:~tccl
in them uuctm· tho agreement of lSSS, o.t n. timo when Montnna.
wnH t::lill o. Territory of the l'nilerl Stl\tco;, t•oulcl not hc di-
vN;tcll under o.ny·suhsequent lcgishLlion c~ithcr of the Territory
or or the Rtntc.
Whilo the Uuil.cd Stn.tc'.:l may it~ctr nhro~atr: ri~hta grnntctl
to t.hc lmlinu:-c under a tl'"nty \\ith tlwm, il nlonc has thi.c
power, nml unle$~ ~nell •·ights ftrt' ubrogntcrl by the Unitctl
St.ntcn itself hy sub:iequent. legislation il is well fict.tlmllhnt nll
__ __.,___..~·~· ........ ~,_-,,......,._,,.. ... _..._..... . ..,~~-~----,---~--.~---,...,.,.·-·----·-· --.;o .... .-.._....-~:~·:~:r-----:--~~~~~~:~"".t .-._,·~.~---;-~.->"·"" (-!'Jd:·· ~ . ·' --:-t l4
Opinion o£ the Court. 207 u.s.
l'i~h t.:; urquirrd h) th(· Indians undm· t.lw trco.ty o.ro to· be fully,
prott•t·tcd a~aiii:'t t.n·:l$ion by other p:u'li«':;. The Clwml.:cc
.Yalivll \', Ocvruict, .j Pet. 1; United Stale:.':\ v. Cook, 19 'Vall. 501.
j[ n .. J n~TJC'B jld·~J.~!':.\, after ma1dug the foregoing stu.te ..
. lll(·n t. t.lPii q·red tilt' c pinion of the c:otarL.
A qw . .:ti,m of jlll i -.liction i~ }Jre:-;c•nt<:d hv the United States.
l'in~ of th•· <h.ft·t.:!:.J·l; nuHwd in tlw l1i!l failt·d to n.ll~\\'('1' and
a dt·rn•(• pru l't>llf''·'·''' wa~; lakPn n.:.raiu~t. them. The other dc:-
fPwlatll~: at•pl'l1:wt.-. hL·n·. afh•r tlw aflinuanc:e bv UlC Circuit
l'cmrt of _\pp••al:-; td ·he iulcrlucutnrr iujunction: filNl o. joint
and :-:c·n·r.d aH!'\\'"r. • )u lhi~ :m:m'"r and the bill tho t•n::;e wns
lu·:lrd and a. dt·rrt···. •!tPn•tl :tJ.!:aill:-:t. all oi thu tl('ft•ndanls. From
tf1at dN·n·r• tlw tiJ•I' linHts 1u·rp ap)walt·d to the Cin:ttiL C<mrt
t f AlJjH':d:: withoat )·lining lht•n·iu thL· IJlher lin~ dcfundnnf.s.
Tilt• conh·ut!un j, : l·::l t.h(' 1l 'irc·uit. Court of Appeals had no
juri~.li<'linH a!J{( i.J::t: iJti.:; l'Ol\l't l1:1-\ llOill·. bccutt~e the five~ GC-
ianh111!.!; dcfrnd:wl ... had :-;w·h illh!r<·~t in the c:um nnd deca:ce
that t !H·y ;-;hould L:t'.'t• joitu•d in thP appt•al, or pl·oct·cding:i
;-;lulllld han• h(·r·ll l:tk.·t, :\,!.!;aiw.:t them iu lhr n:ttllrt• of suntmous
:wd ~~·n·r:uwt• ot· it, ··qtth·ah·HI.
The~ ntlt• whil'h •. '1 Jtlil'u~ tlu· pal'iiP!-i (I) a jwl~1llellt or de<::l'l!l'
to ,ioiu in au npp.·:~: ur writ of t'tTor, fll' lw dN:.~i!hrd f:'n!!! ;'lw
right by ~ouw pre 'l't'l' Jn·oc·,·c·din;,!, o1· J,r d;~·h· n~1unwiat.ion, is
firmly P:->l:tl'li~lll'd.l But thP ru1P ouly appliC's to joint jncfg ..
nwnl~ Pt· d(•t•rt•t·:;.::: It, other wot·df;, wlwn.tlw intl!n·~t of n d,: ..
-.. .. ... ·---·----·<·---· ... -.. ·~--·----.. ----------
: ll'ill11tw~ , •• /t.uti···l :·J.if.·,/ S/lllt·.~, II \\'la•:al. JJ.I; Ott'iii!J·" "· J\.illmHnou 1
7 Pd. :\:i!J; lltir" oj !1·:: .. ,,,, "· lwwrnn•·r ('tlltlj•·tJI!J, Ij P(:l. 1·10; Mum;inrt
" C'tllu:•h, li Wall.::.~:.: .iltto.:lt'l'.owu \', 1/rtlldiJn, 10 \\':til. ·llli; llfllll]lltm \',
"'''"'''• t:s W.dl. t.:-.i"; Si.,., .. ·ott \': t;,.,.,.,, . .'/1 :!0 \\'all. 1.1:!; l•'t:if,t'lmun v. Pw:/;,,·,J,
WS F. ~-H; J:: ... ti .... , .. 'I r~h,:•, l::?S 1.'. S. 225, :!:W; Mmwn v. Unil<'tl SttJl~·"•
t:tti 1". :i. :JC\1 i f>...,lt,. , .. ,:, 1111in:f·'• 1:\H U. S. :l:-,;; llnrdt:1: v. lVi/.~an, HU
r. ;-;, 17U; J,,fdwl'l '"· :ii•IJI"'·m·u. l;'il u. s. GS; J)atli,'f , ••• Ucrcnntilc 'l'rw;t
('ompw:y, l.'l:! t•. S. ;.!·'•; U.rw/ ... /cy ,., Rcdlamy, t:JS U.S. 123, 127; Wilson
,·.l\i•rl, Hit 1". ~.~I..:,
'! 'J',,.fd ,._ /J,urid, 111 •'•·1. fi:!l, !i:!:\; r,, rmttill v. Mcunn, 12 \\'utl. 2!i!lj
f'ortl'l!l \'. (',,•mul, U ll•n\, :!01; llrcU'.';la v. IVtJI:rJirltl, 2:? Bow. llR, 1::?0;
. llilt~cr v. Jft·,·k, o.; 1 . :;, :.!ii:!i Baskr.t v .. Jla~~cl/, 107 U.S. u02, o·os; 1/anriclw
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\\'IN'l'l~ltS v. t:~ITEJJ :-iT.\TE~. 5 .... ,;,
207 u.s. Opinion of elm Court.
fcndo.nt is scpnrnte. fl'om lhnL of other dc•fcndan t~ It" m:\)" HJl-
Jll'Ul without Lhem. Docs the c:m:(! aL har culhc wilhiu tht.' •·nl;·?
The bill docs noL distingui~h Uu.' net~ or the ddt:tu..lnut~. hut
it docs not ncccssnrily imply t h:\l Owre was llt'l \\'c•c•ta them,
in the tlivcr!:iion of Lhc watf~m of ~Iilk Hivcr, cow;t•J't of nction
or union of intercE;t. 'fhe uns\~-,~~· to the hill i~ joiut mul Rl'Vl'to.l,
and· in cffl'cl. u.vcrs &:parntc ri.ghtj, httc:n:::Ls :md action on the
pua·t of lhe defendants. In othN· \\'Urd~r whntr•\'l'l' rights were
ussertcc.l m· m.hni:·;sicn of acts done hy uuy one lldl·Hcl:iut hncl no
dep<!lld(•nce upon 01~ rclntion to Ow :H'l:i or t\11)" otht·r dt·fc•ml:mt.
in the approprintion m· divcr::iou of the watcl'. Jf Ll'l':-ip:l~:-l'f:4
at nil, thry were scp:wntc tr·t·:-:pa:-=~t·r~. .Juinlll'l' in (IHf• ~uit tlill
not ncct~~:-;arily idc:ulifr them. Bc~itlc:;, the clefl'~ul:mts uth:!r
t.lmn nptwllunts ucf:ualtcd. A d~·crcc 7>ro couj.·.~ ..... ) \\'!lS Cllll'ret.l
aguinst thmn, tuJtl thc1·c~Lftm·, acL'Ul'tliu,.; to EftUity Hulc lH,
the cause was l'cquircd to proccr.d r.J· J>flrle nml Uac mattt·r of ·
the bill tlecrccd by. the court. 'l'lwmson \', ll'uo.~ler, 11-l e. s.
HJl. The deere<' was in due cour::c mrull~ ah:.:nlutt•, :uul ~'T:U&ling
that it might hnvc been appealed f1·om hy t lw defauhiu~ dc-
feudrmts, they \vould ho.vc, bl'cn, a:s !'aiel in Tlwm:.:ftll , •• 11' ttfJ.~tcr.
ah!->olutcly burred nnd pt•celml<·tl frow ((llf:~tionin::: it:-: cnrn·r.l-
ncss, unle~:-; ou Lhc fuce of the bill H appl·:u·t·tl mauifl·~l tltat it
was errotwous nntl improperly J?;rnntPtl. 'l'lwh·rights, thrrdm·u.
were €:ntin·Jy dii1'un•nt fi'(UII tltu:::l• of the appt•ll:ml~: tlaoy Wl'l'''
nnr~\-& i t.rr!-\p:i!-:.'\(!1'8, ancl COIU:t~fi(•( I hy thd r tll'fiml t the ri~h t:-; 4)f
tlw F1ii.tNl ·Htah·s nml tht• lau!iau~. ntlll Wt•rt• in no po~hion tH
rt·~h;t t 1w pmyc.•r of .thn hill. But 11w nptwl1:mt:-~ justified hy
counte•· rights untl :;ubn.iltctl tiJ,osn ri~hts fur juti~mt•nl. Tlwrc
is nnthinJ.!, thcl'rforc, in rnmmon betwceH nptwH:mt~ mul tho
ot.laer dcfcmlaut..~. 'J'he motion to tlisnai:;;:; i:; tlcuicd nml \\"C pa·o-
cectl to the mel'i ts.
'l'hc case~ us we view it, turns on thf! ngrcenwnt or. ~1ny, l~SS,
resulting in the Cl'ention of Fort Bc11in:lp Hc.t:et'\'~\tion. In·t 11-c
const.rtwticm of Htis nga·ccnwnl. Uu·m :ur. m:l'l:ain t•1.-nu•ul:4 to
-------.--. .. ·-• -·--•• -••••• • ;o ... -· ... ... ..... .. ... .. •• ·--·
v. Pntricl:, 110 U.S. 1~0; Cily Jlcuak v. II water! l:ht U. tJ. S5i; C,'iiJUiata , ••
M'clCer., 159 U.S. 303.
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LH. I UBI·:tt TEIL\1, Hi07.
upiuiuu uf the Court, 207 u.s.
lu· t·•m~id•·tt'rl 1ltat a!'&· fH'OIItllll'lll and ~i;.~·uific:wt... Tlw l't!HtW-
' :t:ioll wa:-: a p:trt of!! ,,·ry lltltt·h lat··~c·r tl':d·l \\'lth·lt tlu• lwliall:'
.had t It•· li;~ht ln t.:•t·~·i .f and u:-t· :11ul wliit·h wa:-~ :uh·qualo ftH'
ll~t• hal•it!--awl \\:lll•·' ,,f a lHHlladic a:ul mtc.:ivili:wd pl·oplc.
It \\'a:-\ tltt· paJiicy or tl:t• GOVl~l'llllll'llt, il \\'tl::\ thl' dt·~ii'H of the
J~~~~i:'n~. to C'han~.!l' d•l•.-•· habit:-; and to )lt'c:ouH· u pn:-:t.orrtl awl
,.,,·lhhL·d pl·uph·. H I!H',\' ~huuld lweOllll' :-·t:c·lt the ori:.;iuul tract
'':t:-: too l'Xlt·n::ivt·: h 11 a :4lllalll·r lt:H·L ,,·,ntltl lm iuadl'quatc
\\tlhou~ a l·han~P of ··c~·.ditinn:->. Tlw laud~ \\'l'l'l' :tl'id and with-
• • J
out ll'rl;!:ttion, Wt·r·· pr::dil'ally \':thll'h:::..:. .\ml yd, it i:-: c·on-
lPild:·d, t!tl' lllt':lll:' ,.f jni;.!;ation \\'l'l't' tlt·)ilh'l'all'ly g;h·c·u up ~;·y
_LI:t· l11dian:' aJHI t!~·iil1. r:lLI'ly :u;ecpt{!d by tlw Government.
. 'flu· bud' tl·tl,·d \\'l'l't·. ! l i:-; trli.(', al:4u arid: :mtl :-:owe arp;uuwnt.
111'~·; l•t· ur:.!;l'.f, aild j., •:t·~l!tl. th:tl with tln·ir c•t•}:~;ion tlu!l'<: waH
tit<· t·e~--iun ul' tlu• w.:t. r.:, \dtluml w1tit·h llal!\' would Iii· \':titll!-
h·~'. mad ··,.i,·ili'l.t·d t·tr•t\llll!!lith·:-; <·uuld 1:;,, ht• u~tabli:-;)tcll
!h~:n•!m:· .\ud til!:--, it. i:: furtlwr cmtiPIHI(•d, tlu·lndi:lllH k;1cw,
and yt>l lll::dt• lUI n·~l'l'\'!ttioll or llw \'::tiN.... \\'t! l't•:tli~(~ Lhat
th .. n· i:-' a t•nttfli,·t of iuq~!iealitlll:-:, IJLtt tb:~t. whil'h Jll:.tkll~ fm·
tlu· n·ll'lltinu 111' tl11· ;.alt·r:4 i."' of _!.!;n·alt·t· f,u't!\' Lh:ua th:t(. which
ntab·:> for th,·it· t•p:-;:o~inu. Tlw 1udi:tH:4 had tttl!llllllllhl uf thu l:md:-~
awl tltP walt·rs-l·ou.::s:uul of all thl·ir IJl:tll'fidal u~e, whclht•!'
)i.•pl ful' hunt in:,!," and !:mziug rodn~ hcnl:; of :::tack," or turned
tu a1-!l'~l·ttltm·p und {1,,. art':; of ddli:.mtiou. Diu thc:y J.dYc up
alit hi:'~ 11id thc·y n·dl:··~· t.lw :u·t·a of l)u•it· oec:llpaLion und ~ive
Ill' tlw \\alt•r:; whit:h .u:ul·~ iL vuluaiJil~ ot· m!l·quall!'! Awl, Hvon
r•·}!'anliu~ tlw ullt·~atinH of tho Hll:-'\\'t•t· :\:4 tl'ttc, that. thol'o nm
~priu~~ :tJld ::lrt•:ltn!'\ tilt thr rc::;t·JTntion rluwin~ about. 2,000
inclH::-> of watPJ·, the· itH;•til'ies nre pl'!'lim•Jlt. If it were pm;siblc
to helit:\·c· aiHnnnth·,. :.1:;-.WPJ':-', \rt' mi~hl a!::o bc1il•VC! th!~t lho
huliau~ Wl:n· awt!d by i ltl' pmn•r of t.lw (lo\'t'l'llllWill or clecdvml
hy it:; lll'J.!tlliat(n·~. ~\.•itlwr vi(!W is po:-:..:ih1\•, 1'he Governmeut
!:' a;-;.:prtiu~ llw rigJ.L .. uf Llw lndin11~. But extremes need uot
lw lahl·u into :L~'f'IJIII.'l. Hy :L rult• or iull•I'JH'l'latinn ill' agl't!(~
llll·lll~ :wd tn::Litl'!'\ \\II'· !In: lwliaw.;, :mthiguitirs o<·cmrriug will
lw n·:-ioh·,·d irnm jl.,,. ~)l:dHipuiuL of tim ludi.uJH. AJ1J Lhu J'Ulu
-
~ .
.·
.11
-------
377
~· '
207 u.s. Opinion ur thu Court.
r.;hou1d t~<·rt.p.inly lu~ npplh•d to dntf.'l·miw• hl•twt•Pil t wu iufa·r .. au·c•:.:,
om• of whit·h would ~uppcu·t tlw purpost• of I iw H:,!l't't'lill'HI aud
flU' otlu•r itllp:til' lll' tll'ftta.l. i( .. ()u :u't'Ulllll of tlu-ia• rc•tatiun:-; (n
the~ Govcrniawnt, it cannot he :-;uppuH·c-that thl' lutliau:-. we•:·,·
nlm't to cxclutlo by formal wonls (•\'Pry inft>rt!llC(' whida mi;.dt~
mi!itntc against or deCent tlw th·C!lan·tl pnrpm:p uf thl·rn~ch·(•.·
.,ml the GoYt'l'llllll'llt•, cvcu if it c:uuld hl' :.;u ppo~('{l that t lw)
had t.ltc inlclligoncc to fon:£.l'O tht' "duublt· sen~c., which mi~ht
some time be urged ngninst t.hcnt. ·
Anot.hcr conh!nlion of nppi.•Hrwt~ ~~ th:1~ if it lw f'fmt·«·ll(•t
llmt tlwrc \\'US a rm:crvntion of tlu: watt•r:; ur ~Hlk Hh·c·r h\ .
the agreement of 18SS, Y'-'L the 'l'l':;l•r•:al ion wu~ rt'(IL':tiC'l1 h)
the admhision of jfontnnn inio tltt• Onion, Febrnnry 22, l~SH
<.~. lHO, 25 Stnt. GiG~ '' Uj10n nn cr\H:tl fuotin~ with tlw «•rhdnn
:~Hntl·~." 'l'lw laugHagu uf coun~l:l b that 11
!1fl)' n·~f'l'\'aliuH h
tlw ng;t'e(mwnt. ·.\'it.h iht• lncli:mH, c•xpr,•:.:.-=t·d o1· iruplit·d, wlwlt'l)~
the \\':tll'r;; uf Milk Hivcr Wt!f~~ nut to be :-:uhjl!cl ur uppropria
t ion by th<' citi~wliH aml ilihn.bHnnts of :-:aiel ~~;~h·, wa~ rt'l'l':&h:t
hy Uw zwt oi ndmi!'~ion." But to c•:.;tahli~h the! rc•IJ4::al t·uu•~.:··
,, ~y Ht~bstautially upo~1 thu samt' :ar~mm•nl that thl'Y aul\'atu·•
ngainHt~ ti10 intention of the ngt't!mial'nt to n·~'r\'t' t ht• Wah•r ..
'fhc powt'l' of the Govcrnnwut tn n•:-;t•rvt• the waf('l':l :uul t•s
cmpt th01u from approp~n.tion under the st~t·~ l:\W:J i:e ·no
denied, nnd could not be. I Tile U11ilcd Stntc~ , •• The !Un Grmarl
Ditch. & lrritJalion Co., 17~! ·u. S~ mm •. 702;· l'nitrtl ,t:t,,t,•.'i '
iriuau~, lOS U.S. :171. 'l'haL the (h•v,·rumcnt tlitlrt·:-:<·t'\'t• tht·l
we hnvc dcdded, n.nd for n. u:;c whit:h woulcl h(• ut•cc,:!-=na·ily em:
tinur.d through years. 'l'his wa.'t done llny 1, l&~S, nnd it wou1
be extreme to believe thut withiu n year Con~~··, ... ~s dcstroyf'
the rc~ervation nnd took from Uw Imlitmf-1 the con~;drrnt in
of their gl·nnt, leaving t.hcm n. hhl'l'CI\ wn. . ..;lt~-tnok frr.m the a
the means of continuing their old hnhit~, yet did not 1cnvc thc1
tho power to change to new ones ..
Apprlln.ntf'' :trguam~nt; upnn t1w ind!lf'nfn.l J'('J>C'al of th~ n~rr.r
mont by the ndmis~ion of 1\lonltmn inlu tlm Union :uul tht• powc
0\'el' the Wt\lt'r:o: or ~lilk River whh·h @lw Htnt(• tlU'rchy UC'!Ulrt•
\'ot •• covu-a~
.• J 11!~1.1~ I I·. I:. \I, I',,Jl.
...
to tli~po~'~ of tlwm tllt·l~!l' its law:s, is clahot·:lt.u ahd abln, lmL om·
l'Oil:-fflU:(lOII or t IH' :l~!'t't'IIH'Ut audit~ t'il'l't't make it tllllH:<~l!~l'JU.l'Y
lo :111:-\Wt•r the Hl'f,!llm··:H in <.lct:dl. · l•,m· Uw ~umc l'etl.$011 we havu
uot. disrus.~cd the dt.r:.rinc of riparian rights urged by the Gov-
t'rumcnL.
•• .
0
!
Decree a/Jlrmcd •
•
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
c:.t~e 1.
follov.
ch!!ck:
misfc:
st:Lttdi
that r
unrca~
The
is tha
to i11iormation \Vhich it had in its possession
which would have disclosed the existence of
$:tid kiting scheme." I agree that this is an
inartful way to ~dleg-e active condu'ct on the
p:trl of :'11id-C:1L N everthe!ess, "the Feder-
ul Rult's of Civil Procedure were designed,
ancl shoulc~ be in terprctcd and applied, to do
:~W;.ly with this kind of technicality," Dunn
\'. 'I'WA., 589 F.2d 408 (9th Cir. 1978), and
we should remember that a acomplaint is
not to be dismh;secl because the plaintiff's
lawyer h<\S misconcei vcd the proper legal
theory ~r the cl:!im." United St:ttcs v. Ho-
"·eil, 318 }"'.2d 162, 165 (9th Cir. 1963), quat-
inK Dotscb!y v. National ltiutuaJ Insurance
C 0 '" F 2. ?91 "n" (•th c· 1a·-) ·nr .o., .. nO • 0 -..-1 ~ \:; Ir. ..0 I . n e
should be parth:uk:.rly careful to follow this
rul1.! where the Supreme Court of the state
whu:-t: law is ar1pHc:i.bh~ t() the proceeding
has rcnd~rcd a controlling decision after the
CMnph:.int wa~ drafted.
:\tlmi ttr.:orlly, th~ E.!xi::.tc ncfJ or not of the
tlll•i f ~as~.tl'c doctrin~> i u California n.r1d the
pr~~~.·nca or ab~•&m!'.! of a special relationship
bt:~wcen ~Hd-Cal and Stockton appe:~r to
h:t\.'\~ p•cdn!d more utlentli>n at the trial
t:u1.;t h:·;t!l lh!.!,n wlwth<!r the counterclaim
.\!i ... ~~:d t:ti:>fc:tsant!e and if ::;o whether it
··•·~·: d u clnim \lP'Q!' •.c.·}tich rdil'f ccn!ld be
·~="t······,'·· !)n ~'!:.. ... !,.-11 ... ~ .t, ,-. ··t. "· "', ....... ,~. .... , '~"''• .... (! loJ.,~,.r:..!
l'u:trl and ~.Ud-Cul \\'1.!!'•.! aware th:1t Rl~,;c:k
to!i '·' ~t;; !Jl'OCci:d\ng Q!l tho theory of mi~fcu
':tii'.l:, at ica!lt in L!H! alternative. l do not
thirti\ r.hc eounlcrchdm us draftod should
i'r"r' nt St,~;.·klt.:n from tu'hruing that ~1id
(':t!'~ cnnd.;d was mh::\as;tncc of the kind
i:l'! l iH.:t:!umbh: in 81111 1rJ &welt and frow
•.: , I , ~,. "·•.·. : •• !!1! 1. •~:,'f' tv ~~0\i:IH to sti!~~ tn:~t t •• crt:·y
.... :~ ·, :p~c:fh:;ty, C:t Fed. H.( 'iv.P. 15(hL
'!'!w :;tt•;:f.bn hdot\' q:; i~ ~onv..:·,'.'lmt oh-.. ..
. .. * .. • .. ~
. . .
• ~. * " .. • ~ ••• --'f .
~KE 765
) that supporting a theory of
;ligence. That, however, is sim-
~ misfeasance and nonfeasance
3pring from the same facts. I
md the case to the district court
ockton has the oppo:-tunity to
1ctive negligence is a substantial
injury and that Mid-Cal owed it
due care to avoid engaging in
such conduct. It appears to he Stockton's
theory that Mid-Cal continued to accept the
checks after a subordinate notified a Mid-
Cal branch officer of irregularities in the
subject ?.ccounts clisclosed by a computer
analysis, irregularities that jl15tified fur-ther
investigation. It should be open to the
appellant by way of further pleading:; and
discovery, to deYelop a. theory upon which it
could at least argue that Mid-Cal's conduct
in this case was below the min!mL\m stan-
dard of care which controls th~ conduct
owed by one hank to another. Therefore,
although the vie\vs of the m?.jority·a!'e well
stated, I respectfully dissent from the judg-
ment.
t c_· \J•
c o f"J 1.: ,. ~-'--,..... c:: + ; o __.~ Cl r
Lc--1$
UNITED STATES of Arnerh·:'.,
Appellant
v.
Glen M. CL\RKJ~ et nl., .App~ll~e~.
'• "-n•"J 7"' 3 Jl'l' .I OS. I 1-t.;)l 1 1-, n \,I,
Unitt:d SU\lcs Court oi AptHJtds,
::--:!nth Circuit.
.fn.n. 15, 1079.
Reh.::J.ring Dcnil~U in !~o. 77-2.?71
Feb. 26, 1079.
'fhe 1 • '1 :, ··<~ S• -' i\ ~ r·'l't • t' ~ ·c:·::· ;,. '-. · "''t·t·1 •• · 1.. • , , .,\ I .. li• . '-• S C. I t.l •') "'~·:, ~· • " ,.~
(IW!HH' in •': ~ title of property hdd in tn::;\t
ntl:r it~ ;·:~umt l<' r.n lnri;:m by n.!I•Jttt···!lt.
{ ~ ... . ~ "' ..
If "' ~ t •
I •• .,._
··' .. . . ) .
:• ·' \ .
.·
.. / ..
~~--·~~~· Man .. •--·~~-=-~--~--~~ .. .c-~~~m--~-----·--~·~-------
s , .
766 590 FEDERAL REPORTER, 2d SERIES
against usn of road, which was built on
property of Indian owner by private party,
wlwse interest therein wa.s later transferred
to political subdivision o1 State of Alaska,
until eminent domain proceedings were
comn&enced. The United States District
Court for the District of Alaska, James A.
von der Heydt, Chief J udgc, granted partial
summary judgment and denied injunction,
and the United States appealed from latter
ruling. 'rhe Court of Appc3.ls, Kennedy,
Cin .. uft Judgf;!, held that: (1) federal statute
permitting state to take India
con cmnnt1on permits state to take such
lnncl hy vnying compensation in an inverse
condemnation action, and (2) accordingly,
p!aintiff wal\ not entitled to injunctive re-
lief.
Ortlcr denying injunction affirmed and·
case rcmand.;d ior rurlher proceedings.
1. Feder:.ll Courts ~667
Assuming that district court's order de-
nying motion for par~ial summa.t·y judg-
ment \\':~s •~n app(:nla.blc one, propriety of
tlmt oruer would nevertheless not be ad-
dres~cd nn appE'al, whflrt: no timely notice
of nppc~l was filcll.
2. E~nin~nt Domain ~309
I:o'et!ernl stntule permitting state to
take Indian lands by co_~de_p_~.l?.£!:mi~s·
a state to take such lands by pr~ying com-
pt!nsatiun \n an inverse condemnation ac~
l . . •)-l ; " c \ ~ 3:' r; Hrn. -·'> l,; ,.,:., ·,r • '3 u 1.
3. Injrmrtion ¢;.:) 1,fl(2)
Tlw Uttit..::J Sl~~tc:;, which fili.!J trespass
suit us l,l\\'oer in fcc title M twoperty held in
lru!ll :~itllr it::; patent. to an I nclir.n by allrt-
rmmt, was nnt t•nlitlcd lo injunction agaio.;t
U:1L' (jf m:~d, wh;ch •.va::; built on pt•opcrty of
i r.dian nt.vuc>r by privatt.! party 'vhose inter-
t·.:t tlH:rvin was b~er tnul:'.f(:rr(•\l to u politi~
r•al :'Ill ·iivi:i\tHI l,f :-;lht\:; Ull 1.ii (~mincnt do-
ICIU::-1 }'rc>t!t•ctlir.J!·:-: Wl)l'l,' CUl~1!11CtiCt•d, On as-
:~t.:l'lPd ha.:-i:'l that sL<1tl' (If' a polilica1 suhdh·i·
,.;:•w r'ould not. ~i<.;quin' :~n ir.tq•t·~L in lnclian
L. ·1 :.·: ;~; .. ;]\.·1!~,-.~::~ !')r\.•~ :~. i, •• ~ •• 4.J! ~~ilt• fo!*h·~~·~.l
ro~~r:·s <.IL·nn! 01 ,m ~;,tdwr r .. •.·tl(ht t·'t pJrl\;d
511!1\!:! ... ry jmJ,~mcnt. :\:~r.wm:;g th • l.lrth:r wa~
main, land having been subject of an m-
verse taking. 25 U.S.C.A. § 357.
Cart Strass (argued), of Dept. of Justice,
Washington, D. C., for appellant. ,
Richard A. \Veinig (a.rgued), of Anchor-
age, Alaska, for appellees.
Appeal from the United States District
Court for the District of Alaska.
Before \VRIGHT, KENNEDY and ·
TANG, Circuit J~dges.
KENNEDY, Circuit Judge:
The United States filed this trespass suit
as the owner in fee title of property held in
trust after its patent to an Indian by allot-
ment. See 25 U.S.C. §§ 331-332. A com-
plete background of the case is set forth in
our earlier opinion, United States v. Clarke,
529 F.2d 984 (9th Cir. 197G). The dispute
concerns a road that was bui1t on pro1)erty
of the Indian owner by a private party.
The private owner's interc:.t in the road
later was transferred to a political subdivi~
sion of the State of Alaska.
[1] In this phase of the proceNling$, the
United States sought an injunction ag-ain::;t
use of the roar\, clairnin.g that the State of
Alaska or a political subdivision ma\' not
acquire an intt:rest in fiidian lands h~Win
lrusl except b~; cm\ner1t tlnmain. and tha~ :tn
.... ~\ ',., .· !11JUOCT.toll SllOt:!U u(: g'l'i.mlcll Ulll.i1 t.!rilir'.t.:lit
tiomain proce~thngs-arc coinW\cilcEd:-.. The
trial cou'rt 'deniell lhe''inJ'Li;\~ti~n, rettSOt1ing
that the land had been the subject of an
inverse taking nnd that lhe public has the
ri~ht to usc the road after it-:; acquisition by
this :11eans, the pt·operty O\vncr being limit-
ed to an ncthn for cmnpe.mmtion rc~;u\tinf{
from im·crsc com.lcmnaLion. The cuurt.
gra:lt(~d pnrtinllltn.mmry judgment and uo-
nh:d injunctive l't!!id, and lhc lnllcr ruling
~ttl "tpp~~,\: .. 1141Jt':4
,; •• •• " !1~-~ :~· -.~.1LH,.l• ut ,. •'~1 .. : ... :
w:1s nOl fih·d Th~·n!bn~. tht• prapra:t~· ,,f tlm>
nrd~r \vill r.o~ b;; atJdn .. ·!·~•t•u.
UNITED STATES v. CLARKE
Clte as 590 F.2d 765 (19i9)
767
{2] A slate is allowed by federal sta~ute
to take Indffiii""land . by ...CQlldemna.tion,.. 25
u~s.c:-§-357~-The··;ole issue on appeal is
-whether or not the statute extends to tak··
iJ;lgs by inverse condemnation as well as by
th~ affirmative exerch;e of the eminent. do-
main power. \Ve agree with the distr·ict
court that the statute permits a stafc to
take the Indian land by paying compensa··
tion in an inverse condemnation action.
The statute in question provides: 11 Lands
allotted in severalty to Indians may 'be
condt'mncd' for any public purpose under
the hLws of the State or Territory where
located in the same manner as land owned
in fee may be condemned! aml the money
a. warded as damages shall be paid to the
allottee." 'l'he argument of the Govern-
ment thut the statute does not include in-
verse takings is ba.<.;ed principally on ;.1/inne-
sota v. UnitP.d States, 305 U.S. 382, 59 S.Ct.
292, 83 L.Ed. 235 (1939). There the Su-
preme Court held that the United St!ltes is
an indispt!n~able party in state actions to
condemn uny trust property anti th~tt such
actions. m~sl be br(Jughl exclusively in the
federal rvurls. We think that ca~e is sim-
ply inappo::;ite l(J the issue before us. There
wns no occasion tht:re for the Court to
consider the propriety of inverse condemna-
tion suit$, since the eminent domain action
was instituted by the sltilc. The reason for
requiring the condemnaticm suit to be heard
in ~ federal court is irrcle;vant to ,~,·hethe1·
the linitcd State:; may, t1n bE~half of the
Indian ov:ncr, maintain an inverse contlem-
n~'tion action. The Court noted that Indian
land under trm~t allotm~mt is a subject
within the excl:l~~iv" 1:tmtrol of t!tC' f(•df•rnl
ho•·t·rnnh!!ll, and th:tt "thL. judicial dctcrmi-
rtation of controvcr!.iie.:-cnncerning such
bnd~ has been commonly committed exclu-
:;ivcly to federal court.:;.'' ld. at 3HU, 59
S.('t. at 2D6 (f(I.Jtnol<: omiltt:d). Whether
lht: prCJCN~1ling i~ for im'l.'r~u condemnation
<1r f(,r <:minonl duawin, the f'<.!deral court
m11y :naintuin l'ot,trol over Lht: uclion to
Vl'iliJ·lY '•'• ilh lhc J.v)Jit•i,·~· vf .Hinrwsot;1,
\\\· ~hink (ln('(' the ~·-king has !.c(•n iU.!·
t•"'·' ·: •trt 111' tt''t' ,·t·•• .. •' .,.,··r•vt·~ li•!!.· •,••r-• ' • • • ,, ' ,.• • • "" .. • . ~ -· :· ~ -l
r, ,~. ' I •
" f .. ...
maintained on the grounds that the state
should have filed an eminent domain action
prior to the taking. As the Alaska Su-
preme Court noted in an analogous :;itua-
tion:
The property has· already been taken. It
would serve no useful purpose to insist
now that the state must initiate a con-
demnation action and take the initial
steps required by law and rule as a condi-
tion to the exercise of its power of emi-
nent domain. What is at issue here is the
matter of awarding appellees just com-
pensation. Such compensation may be
determined in this proceeding, utilizing so
far as practicable the statutory require-
ments and procedural steps reb.ting to
the condemnation action, as well as it
could be determined in a separate con-
demnation action to be instituted by the
state. Since the evident purpose of the
injunction was to require the state, if it
chose to u tilizc appellees' property, to in-
stitute ·a separate condemnation action to
acquire such property, and since we have
held that ~uch action is unnecessary, the
injunction was not appropriate anti
should be tl issolvcd.
Department of Higlnrttys v. Crvsby, 410
P.2cl 72-1, 729 (Ala~ka 1966).
Tlte Go .. ·ern men t argues tha: ll ~ ~ta tu to
permitting co:1demnation should be limited
to direct condemnation to avoid clouding-
title to trust lands, thus increasing protec-
tion for lndian allottees. It suggests that
such clouding will occur any tim~ the state
or a political subdivision trespasses upon lht'
p1 operty tU, .;uch :~sin this ea~e. by building-
a ron.d acro3;:; it. We do not tH nk this is a
persuasive: reason for accepting such limited
interpretation of the statute, To us it
seems a c0ntr~diction to deny lntlinn bene-
ficial owners a caul\e of action for da!llag·es
under th<.: g-ui$C of protecting their rig-hts.
Allowing inn:r:;e condemnation suils will
encourage states and political subdh i~ion::.
lo act with mort• circumspccti m, r.nt !e.·~.
\\hen. go\'Prnnn.mtal aclivitie~ ~"onflit:t wiLh
i\\r!!P:"!Jhi~~ ;:,,.ht.; of T wH:~:. ~rq;;.:t b:.•1.•• . .
,.;~;f :~:! t}·._f :~· .. ~' ~· .... ··' .,!·. • •• •::i ! .. :~. f • •.• , ~~t
• .
590 FEDERAL REPOR'l'ER, 2d SERIES
,.,.l:ing immedinte relief from unlawful in-
• ··1rusions upon bnd, whether t.he intrusion is .:-··/ d01~: by trespass of a private or public .r cntlt.Y-,
The United Stales furtrer contends that
our holding will require it to make frequent
antl expensive inspections of these lands for
po.:1siule. act~ of inverse 'ondemnation. We
think, howt:.:ver, that if an intrusion is of
such 3evcrily that it constitutes an inverse
taking-the matter will come to the atten-
tion of the Indian allottee and the Govcrn-
nwnt.
Congres!l, has declared that the taking of
tru~t lands, for public use is to oa governed
by· th~ laws of the state in \vhich the prop-
erly is found. Vvc see no reason .to )gnore
thi$ mandate simply because the taking is
revicwcn in nn inverse condemnuLion action
rather thar. by a direct condemnation suit.
l3) There appear to be unresolved ques-
thms in this case, including, among others,
the datu and extent of the taking and th~
operation of the applicable statute of lim~w
talions. Th0$e matters remain before the
lmver eourl. \V c hold only that section 357
of ~ U.S.C. does not preclude actions
awdn!.t. sLate~ or their p0litical subdivisi<ms,
tu.:cording lo the law of the st.ttc, for in-
w.mw coml<.!mna.tion. Aecordingly, it docs
not uppcar thut Lhc plain tiff will prl!vail in
it:l prayct for injuudivc relief and the dis-
trid court wa~ correct to deny the injunc-
tion pending the ~uit.
'Tho ordJr denying th~ injunction is af~
finm:d and the case i~ remanded for further
}li'UC(.:t•ding:·l.
Charles F. KE\IBALL, Stephen L. Lang,
Allan Lang, Leonard 0. Norris, Jr.,
James Kirk, and the Klamath Indian
Ga.rne Commission, an agency of the
Klamath Indian Tribe, Plaintiffs-Appel-
lees,
v.
John D. CALLAHAN, Allan L. Kelly, Pat
J. Metke, Frank A. Morre, and James W.
'Vhittaker, each Individually, and as a
member of the State Game Commission
of the State of Oregon, John McKean,
Individually, and as director of the Ore-
gon Game Commission; and Holly Hol-
comb, Individually, and as director of
the Oregon State Patrol and Oregon
Game Enforcement Division, Defend-
ants-Appelhm ts.
No. 77-2628.
United States Court of Appeals,
Ninth Circuit.
Jan. 26, 1979.
Oregon State officials appealed from a
judgment of the United States District
Court for the District of Oregon, Gus J.
Solomon, J ., declaring that certain Klama.th
Indians and the Klamath Indian Game
Commission and members of the Klamath
Indian Tribr were entitled to hunt, tr'J.p and
fish within their ancestral reservation as it
existed at termination of Klamath Treaty,
free from regulation by State, Tlte Court
of Appeals, Jameson, District Judgt!, sitting
by designation, held that: (1) previous
Court of Appeals decision was the law of
the case in its holding that memhcrs of the·
Klamath 'l'ribe who withdrew pursuant. Lo
Klamath Termination Act retained their
treaty rights lo hunt, fish, and trap on
former reservation; (2) Lrcaty hunting,
fishing, and trap1)ing rights survived the
Klamath Turminntion Act far nil members
on final tribal roll and their descendants;
(3) Rtnte of Oregon had authorily1 under
uppropdnte slandnrds lo rogulntt! tn•aty
fishin!t, hunting ami trappin~ rights on for-
nl!·r rl':.:cn·nthn fnr C'Onscr\·ation purpu::;t~::l.
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l I I I i -I I ·; I I ~ \ ,. I : I ! .. ~ ! ·/. ' I . • I •. ' . . • \ I : . u i t ! t i \ ", 1 • .. . 1 \ ~
jAY S. HAMMOND, ~Yemor
u ·~ i ~u-~.1 r~.J U\\ li11
OFFICE OF TH£ ATTORNEY GENERAL
TRANSPORTATION SEcriON /
420 •L • STREEi. SUITE tOO
ANCHORAGE. ALASKA 99501
PHONE: (907} 275-3550
January 25, 1982
··r.:("'..; .• ,. .. , r • ..: w "-, \l .... ._
Eric Yould
Executive Director
Alaska Power Authority
333 W. 4th Street
Anchorage, Alaska 99501
RE: Our File No. A66-271-82
• 1 r r ·~ • ,.."""":.. · ·-.:..._-..... -·, 'u•~,···
Declatation of Taking Power for Alaska
Power. Authority
Dear ~.r. Yould :
Pursuant to the request of ~arren L. Krotke of
Land Field Services, Inc. on behalf of the Alaska Power
Authority, enclosed is legislation giving the Alaska Power
Authority the ~bility to use the declaration of taking
procedure in eminent domain actions. Additions to the
statutes are underlined and deletions are bracketed and
capitalized. I
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• -· .• ·-'-J ·-........ .
You should note that the deletions from AS 9.55.420
also include "telephone cooperatives". This was included to
broaden the power of eminent domain for all users. Using
the slow take procedure creates difficulties both for the
condemnor and the condernnee, who must wait until final
judgment to receive any compensation for the taking of. the
property? In practice this often works a hardship on the
condemnee because he must defend a condemnation action
without having been paid for the property \·Thich is to be
taken.
Finally, my understanding is that the Alaska Power
Authority will be pursuing this legislation on its own. I£
we can be of further assistance, please call us.
By:
Enclosures
Very truly yours,
WILSON L. CONDON
ATTORNEY GENERAL
. c__ ~OJ~ /, /J?/~-
~1artha T. ~lills
Assistant At~orney General
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BILL NO. ----------------
IN THE LEGISLATURE OF THE STATE OF ALAS~~
TWELFTH LEGISLATURE -SECOND SESSION
A BILL
For an Act entitled: "An Act relating to the eminent domain
powers of the Alaska Power Authority."
*Section 1. Sec. 09.55.420. (a) is amended to read:
(a) Where a proceeding is instituted under §S 240-
460 of this chapter by the stater it may file a declaration
of taking with the complaint or at any time after the filing
of the complaint, but before judgment. Where a proceeding
~s inst·,ituted under §§ 240-460 of this chapter by a munici-
pality in the exercise of eminent domain for street or
highwcLY, off-street automobile parking facilities, school,
sewer, r,o~ater, telephone, elec·tric, other utility, and slum
clearance purposes or use granted to cities of the first
class, the~ governing body of the muz:.icipality may exercise
the power through the filing of a declaration of taking with
the complaint or at .. y time after the filing of the complaint,
but before judgment. The declaration of taking procedure
may not be used [~viTH REU..TION TO THE PROPERTY OF RURAL
ELE;CTRIFICA'I'ION OR TE!.EPHONE COOPERATIVES OR NONPROFIT
A2!:":ociATIONS RECE!'V'!NG F'INANC!.~L ASSISTANCE FROM THE FEDERAL
GOVERNMENT UNDER ·THE RURAL ELECTRIFICATION ACT; PROVIDED
11HAT NO !JECLAR~TION OF TAKING] for off-street parking purposes
[~.Y BE USED] '-.l.tl.J.ess ::here has been public notice by publica-
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tion in a ~ewspaper of general circulation in the area for
not less than once a week for four consecutive weeks followed
by a full and complete public hearing held before the govening
bod~r of the first class city or municipality .
*Section 2.. Sec. 44., 83.080. (15) .is amended to read:
(15) to exercise the power of eminent domain in
accordance with AS 09.S5.250-09.55.460[410];
24
§ 09.55.230 Coor. OF CIVIL PROCEDURE § 09.55.230
if she stipulates that she will not at·
tempt t.o obtain custody of the child
tn any other state, since the stipula·
lion would nut be binding on th~
courts of another stnte and thos~
courts would not. be required to give
full faith and credit to the original
custody decree. Goodfellow v Good-
fellow, 2 Alas. L.J. No. G, p. 86
IJune-July. 1964).
Death of wife given custody war•
mnts re,·•smg decrcc.-Where the
wife was given custody of the chil-
dren of the marriage in a divorce ac-
tion and the wife subsequently died,
the status of the parties. was so
chan~ed that the court was warranted
in re\•ising the oriJrinal decree. In re
Brown's Children, 7 Alaska 411
(1926).
Cited in Johansen v. State, Sup. Ct.
Op. No. 746 (File r-.;o. 1309). 491
P.2d 759 (1971).
ALR r~ferences.-Power of court
to modify decree for support;. ali-
mony, or the like, based on agree-
ment of parties, 58 ALR 63~; 109
ALR lOGS; 166 ALR G75.
Power to reopen decree of divorce
which is silent as to, or has ex-
pressly provided against, alimony, so
as to permit modification in that re-
gard, .!33 ALR 1248.
Power of court to modify provi-
sion;; of divorce decree as to ali-
mony, as respects past due install-
ments, 94 ALR 331.
Power of court as to terminating
permanently husband's duty to pay
alimony awarded by decree, 100 ALR
1262.
Concealment or misrepresentation
of financial condition by husband or
wife as ground of relief from decree
of divorce as regards property set-
tlement, 152 ALR 190.
Husband's default, contempt or
other misconduct as affecting modifi-
catiou of decree for support, 6
ALR2d 835.
Retrospective modification of, or
refusal to enforce,. decree for ali-
mony, separate maintenance, or sup-
port, G ALR2d 1277.
Changing financial conditions or
needs of husband or wife as grounds
for modification of decree for ali-
mony or maintenance, 18 ALR2d 10.
Sec. 09.55.230. Effect of divorce. The effect of a judgment de-
creeing a divorce is to restore the parties to the state of unmar-
ried persons. (§ 12.16 ch 101 SLA 1962)
Article 4. Eminent Domain.
Section
240. Uses for which authorized:
rights-of-way
250. Classification of estates and
iands subject to be taken
260. PriYate propt?rty subject to be
ta!,en
270. Prerequisites
280. Entr~· upon land
2!10. Jurisdiction
300. Po\vers of court
310. Hearing
:~20. Right to jury trial as to dam-
ages and Vt\lue of pt'opcrty
330. Compensation and damages
340. Defective title
350. Time for paying compensation
or damages and bond to build
rnilroad fences and cattle
guards
:360. Payment or deposit and L'xccu~
tion
Se~tiun
370. Final order of condemnation
380. Order authorizing plaintiff to
continue in or take possession
:·WO. Acquisition of easements and
additional powers of the cou1·t
to require surrender of pos-
session to plaintiff
400. Deposit into court of estimated
compensation and damages
4 tO. Withdrawal of fundg by party
in interest
420. Declaration of taking by state or
municipality
4:30. Contents of declaration of tak-
in!!"
440. Vesting of title and compensa-
tion
450. Rig-ht of entry and pos~ession
·HlO. Effect of appeal
,,
~ 09.55.240 A LASKA ~·1 .\"1 u 1 c~
Sec. 09.55.240. Uses for which authorized; rights-of-way. (a)
The right of eminent domain may be exercised for the following
public uRes:
(1) all public uses authorized by the government of the United
States;
(2) public buildings and grounds for the use qf the state and
all other public uses authorized by the legislature of the state;
(3) public buildings and grounds for the use of an organized
or unorganized borGugh, city, town, village, school district, or
other municipal division, whether incorporated or unincorporated;
canr.Is, aqueducts, flumes, ditches, or pipes condticting water, heat,
or gas for the use of the inhabitants of an organized or unorga-
nized borough. city, to\'.tn, or other municipal division, 'vhethe.r
incorporated or unincorporated; raising the bank~ of streams, re-
moving obstructions from them and widening, deepening, or
straightening their channels ; roads, streets, and alleys, and all
other public uses for the benefit of an organized or unorganized
borough, city, town, or other municipal division whether incor-
porated or unincorporated, or ib~ in'Imbitants. which may be au"
thorized by the legislature;
( 4) wharves, docks. piers, chutes, boon1s, ferries, bridges of
all kinds, private roads, plant and turnpike roads, railroads.
canals~ ditches, flumes, aqueducts, and pipes for public transpor-
tation, supplying mines and farming neighborhoodR with water.
and draining and reclaiming lands, and for floating logs and lumber
on streams not navigable. and sites for resen·oir~ necessary for
collecting and storing water;
(5) roads. tunnels. ditches, flumes, pipes, and dumping places
for working mines; al~o outlets, natural or otherwise, for the flow,
deposit, or conduct of tailing-s or refuse matter from mities; also
an occupancy in common by the owners or possessors of different
mines of any place for the flow, deposit, or conduct of tailings or
t•efuse matter from their several mines, and sites for reservoirs
necessary for collecting and storing water;
(6) private road~ leading fr.om highways to residences, mines,
or farms;
(7) telephone lines:
(8) telegraph lines;
(9) sewerage of an organized or unorganized borough, city,
town, village, or other municipal division, whether incorporated
or unincorporated, or a subdivision of it, or of a settlement con-
sisting of not less thnn 10 families, or of public buHdings belong"
ing to the state or to a college or university:
(10) tramway line~:
.;
( 11) electric power lines;
(12) subject to the requirements of the Alaska Right-of-\Vay
Leasing Act of 1972 (AS 38.35). for th . location of pipelines for
gathering, transmitting, transporting, storing, or delivering nat~
ural or artificial gas ot· oil or any liquid or gaseous h~:-drocarbons,
including, but not limited to, pumping a+-.ations, termmals, storage
tanks, or reservoirs, and related installa ions.
(b) The use of water for mining, power, and municipal pur-
poses and the use of pole and power hnes for telephone and tele-
graph wires, for aerial trams, and for the transmission of electric
light and electric power, by whomever utilized, are each declared
to be. beneficial to the public and to be a public use within the
provisions of this article. H.ights-of-way across private property
when they are necessary for the operati01i of the mine or other
project in connection wi'th which it is intended to be used may be
cOIH.Iernned 111 the manner as for any other condemnation. The
right-uf-\vay may extend only to a right-of-\vay along1 upon, and
across the surface of the lands to be condemned and to a strip of
the land of !5Uflicient width to pe1·mit the construction on the land
of a ditch, Hume, pipeline, canal, ur other means of conveying water
as il5 adequate for the purposes intended, for the setting of poles
u1· the c.:onstructwn ot towers upon which to string wires for tele-
phone and Lelegraph llnes and lines for the transmission of electric
iight or power for the operatiOn of aerial trams, and to permit
nuuntaining the lines CJntt :eepmg them in repair.
(cJ L'ntil July 1, 1975, home rule cities of over 50,000 popula-
tion may t!X.erci~e eminent domain uuthority \Vithin their bound-
aries to <.H.:tglire lanel fur the use of the United States, the State of
.Ala~ka ur any other political subdivision for governmental office
lmildings and ancillary improvements, including but not lin1ited to
the improvement and landscaping of adjacent grounds, under an
agreement entered into under a1·t. X, ~ 13, Constitution of the
Stute. of Ala;:;ku. (~ 13.01 ch 101 SLA. 1962; am§ 2 ch 72 SLA 1972;
am ~ 1 ch li~ SLA 1973)
Cro:-o:-; refcn•nct.•. -See Civ. H.
72\t:J..
Ell'cl't of anwndmcnt~.-T)H.' lt172
Hll\l'tultncnt added ":5ubject to the 1'<!-
quircllH•ntl' or the Al:.\ska Right-of-
Way Lva::.ing-A<.:t of 197:! (AS 38.-
:{.1)'' at the beg-inning of subsection
(a)ll:!}
Tlw 1 !l'i:) amendment ;~deled :ntb-
sccuun (c).
Edllur l:'l ttulc -All oulcli frutu
Mulll<uw dt•;·t:-.illfl:.: a p pcut'l ug Ullth!l
C.hl:o :iU(.'tiiJB d.l't: l'l!llSll'Ut.<ttun::t uJ tht:
~1uot.anu swl uu: from whtch th1.~
:;ection d<!rivcs.
Eminent domain statutes are uni-
' crsally construed :;trictly, particu-
larly whc!·c a different construction
would render the act of doubtful
,·alidity. Northern )lining & Trad-
mg Co. v. Alnsku Uo!J H.eco\ cry Cu ..
:W F.2d 5 (!Hh Gir. 1H27).
Condt:mnatwu proceedings <U ~: stat•
utury, and a strtct cumplaanc.!:! wsth
the t•equucmeuts ot th1= statute 1:1
necessary. City of Helena v. Rogan,
til:) P. 7V8 (.:\lont. Hi02).
The subjcd maltcr of cmincnL do·
main proceedings is one of public
rather than of prh·atc interest. Alaska
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§ 09.55.240 ALASKA STATUTES
Gold Recovery Co. v. Northern Min-
1ng & Trading Co., 7 Alaska 386
(1926).
The power of eminent domain is
inherent in the g-o'"ernment and does
not depend upon the-constitution.
Alaska Gold Recovery Co .. v. North-
ern Mining-& Tradins;r Co., 7 Alaska
386 (1926).
The right of eminent domain does
not depend for its existence on a spe-
citk grant in the constitution [t is
inherent in sovereignty and exists in
a sovereiJ.rn state without any t·eco~·
nitinn uf it in tht> cunstitutiun Stu:,.
v. Aitchison, 30 P.2d 805 {Mont.
i!J34 ).
Which unly nets as limitation on
the power.-See Alaska Gold Recov-
ery Co. v. Northern Mining & Trad-
ing Co., 7 Alaska 386 ( 1926).
Authority to condl"mn musl bt'
dearly e~pressed in tht' law Au·
·thorit:.· to condemn pruperty fo1 a
publir use must clearly ht> expres!wd
in the law before such I'IJ!ht will lw
allowed. State ex. rel. McLeod \'. Dis-
trict Court of Sixth Judicial Dist.,
215 P. 2-10 (l\-lont. 1923).
Or implied clearly and sntisfactur·
ily .-PtnveJ to takt> the proper·ty of
privatl' cittzens OJ othe• corporations
for public use must bE' exercised and
can i.h: ex.erc1sed only su fat a~ the
authority extends either 1n terml!' ex·
pressed by tht-' law itself or by 1mpli
catior:~ clear nnd satisfactory. Butte,
A. & Pnc. Ry. v . .;\lontann U. Ry ..
·11 P. 232 ( !\1ont. 1895).
Tht> statutf:' i"' cuercivt'! that ts. up
un the necessity uf lht> :1ppropriat1on
betnl! shown the landownt-t may bt-
compelled to givt' up his lands for
tht-supcrtor ust•. whethe1 he comwnt s
or not. Gallatin Vallt>y Elec. Ry. \'.
;o-..;·eihle, 18G P. G89 (!\!ont. HJl!J).
''Public u~t>" extends to use for
public welfare. -The term "public
u~c" has received enlars;rerl ~cope and
meanins;r, and the test is no ionger
confined to usc by the publk, but use
for the puhlic welfare. The powar of
n state to work oul from the condi-
tions existing-in a mining region the
larg-est welfare of its inhabitants hns
often been t•ccog-nized. Alaska Gold
Recovery Co. v. Northern Mining &
Tr~tding-Co., 7 Alaska 386 (1926).
Quc!:itions to be considered by court.
-Ordinarily the only questions to be
considered by the court!\ in condem-
nation proceedings are: First, whether
the petitioner has the power to exer-
cil$e the ris;rht of eminent domain.;
second, whether the property itself
is of a nature subject to condemna-
tion; third, whether the property is
being taken for a public or a private
use; and fourth, whether the power
is being used ior taking an excessive
amount of property. Town of Seward
\', Margules, !l Alaska 354 {D. Alas.
1938).
Question of whether use is public
is for courts.-· The question whether
the usc is in fact public or not, so
us to justify the t~lking without the
consent of the owner, is, ultimately,
one which the cout·ts alone may de-
termine. Alaska Gold Recovery Co. v.
Northern !\-lining & Trading Co., 7
Alaska 386 (1926}.
Leg-islature determines public use
in fir~t instance.-It is for the leg·isla-
turc to det(>rmine, in the first in-
stance, the question whether the use
for which it is proposed to make the
condemnation is a p1,1blic use. State
v. Aitchison, 30 P.2d 805 (Mont.
1 !134).
But qu~stwn ts ultimitlf'l) fnr tht
Judirtnry -Wht-thel a oarticular u::e-
is nublic or not t~ ulttm~tely a QUe~
tinn fot tht-iurlH:-htry State v Aitf."hl·
son 1 30 P.2d 805 (Mont. 1934 }.
.Also. tht> qu.-stinn as to thl' charn~·
ter of a road i~ un~ for judicial dtster·
mhiation. Komposh v. Powers, 244 P.
298 (Mont. 1926).
And it is ot littlt-importanre thai
sub~et·tion (6) designate~ tht-ruads
to be established as "pri\'ate roads."
Komposh v. Powers. 24-t P. 298
(Mont. 1926).
"Prh·nte roads,. in subsection (6)
are in fact public ro..,ds.-The leds-
laturt> ha:: limited the upplirat10n ,,f
suhs~··nur. ( 6) to "private roads
l<:at!lnf,! from highways to farms." and
have thereforE> authurizcd the taking
by the exercise of the right of enll·
ncnt domain of land f(ll those roadfl
only which an• in fact not "pl'IV<~tc
roncis." but puhlit· roads which lead
ft·um a publk hig-hway. nild mu~t
therefor..• he upl!n tn ll11y member of
the puhlic who may care to travel tt.
nlthou~rh few may have occaswn to
do so. Komposh v. Powers. 244 P.
298 (Mont. 1926).
The c·.rcumst.lnce that the plaint1ll
road was built by n private corpora·
tiun. and that tU branches run with
in cunvenienc contiguity of privKt.e
min~~ ur or~ hous~s. dnes not mate
dally affe('t ·the road and give a pri·
vatc.• char~•l"ter to it~ use or to thE'
use of its spurs. Butte, A. & Pac.
R·y. v. Montana U. Ry., 41 ?. 232
Dlont. 1895).
A right of way of necessity estab·
h~hed under coudemnation statutes
ht:oc:uml!~ an open publit way whic.-h
muy hE" traveled by any person wt.o
desi7es to use it. Tomten v. Thomas.
232 P.2d 723 (Mont. 1951).
The-refor~ ~ub~ection (6) is not
unt"onstilutional.-The proviston~ o1
:;uhsectton ( ti I do not v~olate tht'
l"ourteenth A mendm~nt to the Con
~titution of the United States. Komp-
osh v. Powers, 244 P. 298 (Mont.
1926).
When• st~lutes authorize the open·
mg ol d road frum 11 public highway
thr·ouKh tht' lands of one or mur~ pri·
vatt> owners to the land~ of anuther
fot g't!ner:tl road ourpuses. and which
road the puhlic generally has the
f'lJrht to travel although other~ than
tht-3pphcant may have slight occa·
sion to do so, they an~ by the great
weight !)( authority held not to con·
tra\·ent-th~ Fourteenth Amendment
but to be valid enactments Komposh
v. Power!;, 244 P. 298 (Mont. 1926).
Character of a way is determined
b} l'Xtent of right to use it. -Th~
chunu.·tP.r of a way. whether it is pul•·
lit-01 pdvate. is determined by thP
extent of the rig-ht to use it. Butte,
A. & Pac. Ry. v. Montana U. Ry.,
.n P. 232 ()1ont. 18fl5): Komposh
''· Powers, 244 P. 298 (~1ont. 1926).
,\nd not by tl}e extent to which
that right i:-; cxercised.-See Butte,
A. & Pac. Ry. \'. Montana U. Ry.,
41 P. 232 (Mont. 18fl5); Komposh v.
Fowers, 2-t.t P. 298 (~'lont. 1926).
1 f all the people have the right tu
ust-1t.' 1t is <& public way. s.lthuuJ.!h
t~.e number who havl' o~·casion to ex·
erct!;t• the riA"ht IS very small Butte.
A. & Pac. Ry. v. Montana U. Rj<~ .• 41
• P. 232 (Mont. 1895).
lf. m putnt of law. a use ~~ publtc,
t!i~ (~;.'t that nut very many pen::un~
will enjoy che usP. is not matert~tl
Butte, A. & Pac. Ry. v. Montana U.
Ry., 41 P. 232 (Mont. 1~95).
While the' 1·oad may not be so sttu
a.ted or of such extent t.hat it!! serv-
ices may be in great demand. or de-
manded at all by the public, yet the
character of a way, whether it ts
public or private, is determined r>y
extent of the right to use it, and not
l>y the extent to which that right is
exercised lf all the people have the
rtght to use it. it is a ~'.!blk way af·
though the raumber who have occasion
to cxercis'! the rtJrht is very small.
Kipp v .. Davis-Daly Copper Co., 110
P. 237 (Mont. 1910).
Private profit may result from use.
-It is erroneous to assume that, be-
cause the use may bring ahuut prbat ..
profit. for that reason it cannot be a
puhli<' use Spratt v Helena Power
Transmission Co., 94 P. 631 (Mont.
1908}.
The mining of gold has been held
to be a public: use on account of its
relation to the public currency.
Alaska Gold Recovery Co. \', North-
ern Mining & Trading Co., 7 Alaska
386 (1926).
As are roads, streets and ulleys.-
The words "roads, streets and alleys''
in subsection (3) oi this section are
used independently as within tbe
public uses defined by the statute.
and relate to properties clearly made
the subjects of condemnation. Ashby
v. City of Juneau. 174 F. 737 (9th Cir.
1910).
Only municipality may condemn
property for strcet.-The power to
locate and construct a street can vnh•
be exerci!;ed b!-• a munidpality, and
can onl)o· be made etTcctive by in-
vokin~ the power of eminent domain.
Ashby v. City of Juneau. 174 .F. 737
(9th Cir. 1910}.
This section and AS 29.10.117 give
municipaLities power of condemna·
tion.-The right of a municipality to
proceed in eminent domain is con·
ferrerl, when this section is tonsid·
ercd in connection with the express
grunt of power to municipalities br
AS 2D.10.117 lo provide for the lo-
cation, construction, and mainte-
nance of the necessary streets, alleys,
crossings, sidewalks, sewers, and
whar\•cs. Ashby v. City of Juneau,
174 F. 737 (9th Cir. 1910).
Ri~ht of cmincnl d~main must l> ..
l'nn!'('rrcd •1pon muntcipnlit} by stat·
ule.-M untcipul l'tll"porntHin.!! can ex
crctse tlw rlf.!hl uf emuHmt domam
only to tht-extent to whtch tht-puW€'r
haF ht.•<.•ll .•onferrt-d upon them ny
201
:.
T
i
statut.c. State c:x rel. McLcorl v. Di~
trict Court of Sixth .Judicial Dist ..
215 P. ~·10 (Mont. UJ2:n.
A crty has no power tu ~·undenut
l:md fur a publiC' httrhway outside ,,f
lll" t•urpur·ate limrts, without cxpresl"
or necessarily implied leJ.!tslative aU·
thnri7.ation State v Distrr.ct Coutl
of Sixth .Judicial Dist .• etc .. 215 P.
2·10 (!\1ont. HJ23).
Pro~·isions respectinA milrond ap·
prnprintinn ror JlUhlic :-wn·ice are lih·
eral.-The prov-ision!' of thi~ ~ectiun
ru·p exC'ecdin~ly lihc.•r·al m bestnwinJ,.:
upon railroad corporation~ the puwcr
to appt·opriate the pl'opcrty of citi.
z::n:; to cnrry forwaJ'd the public ::-er-
vice. Northern Pac. Ry. \', )1cAdow.
121 P . .t73 C\1ont. 1!112).
Uut thl"l must bt.' interpreted in lh<'
light of AS 09.55.270. Northern Pac.
R:• ..... )1cAdow, 121 P .. n:! (!\lont.
Hll2).
Railrund ma~· condl.'mn land lll
~ A ' changt> cnurst> m a :~lream.-raJ:
road c-ompany may condemn land ad·
joimng it::: rh:rht of way by rnvukin!.!
the power of eminent domain. for tht-
purpose of changmg tiw <.'our~e of ·J
dver which the right of w<~y t•r·us~e:o
!'=everal timt-s. State ex rei. Bloom-
ington Land & Live Stock Co. \'. Dis-
trict Cov.rt of Tenth .Tudi<.'ial Dil't.. 88
P. 14 ().font. l!IOfi).
Or for ris:ht nf way fur lo teral line!'!
<':ttendin~ tu minel' 1\nd :imclters.-A
railroad t'lllllJ!any nw~· acquire by tht•
f'Xerc-Js~ of thl• riJ:ht of emin<'nl do
nuun right uf \\'ay for rt:-laternl
line!' extending tu nunel> and smelT·
r-rs. t.huuJ;rh nwned by pt ;vat<• per·
<;on:; <tS well a~ the right of cro~~-~
1111.! with th~m th<' main or lat(•rar
!me~ (}( :rthct I'Oads Kipp v nnvrs
Dal~· ('opp<'r \n .. 110 P. 2:l7 1 ;\lnnt
UtlOl.
lmprtn·<•mt•nt of wnter JWWcr i!-1
Pl!hlic-U:-it'.·-\\'hE'r(:' thl:' l.!'CllC!':d pub
liC' t~.dvantage is greatly promoted by
tht• rmpru\'ement of ~vater pctWCI '"
tht' stream~ and water!' of a C'OU n try
privat(;} property taken for that pur
post.' I!' taken for a puhlk u~e w1th
tn lht: mt!aninJ.t of that term Btn:.c
A. & Pac. Ry. v. ~Iontan:1 t:. Ry
..tl P. 232 (!\font. lSUil).
Thi~ ~e<'lion applit•:-a lu minin~ tun
ncl:o n!l wt•ll as trril!ntiun dilt'hc•!i
Co<:anougher v, Zeigl~r. 112 1\~d
10fi8 C !\font. 1!>41).
Lode and J)l:tct.'r claims are in-
cluded within ·•mines:· -The word
"mines," a::-~.~~ed in this section, c.J! .•
"::-upplyin~ i'umcs "' ·~ • with water."
and .. roncls. tunn<'ll". ~ntchQs, tlumcg.
pipes, nnd dumpinrr placPs for work-
ing mines," is sullicicntl~· broad to in·
elude>. and wa}; intended to inc:luclc.
pincer mininJ! J!"I'Oun<l. nne! hoth lodt·
ami placer daims are so indttded.
irrc~pcctivc of whether they nr~ al-
I'P.adv upcrwd up m· not. Alaska Gold
Rcc~vcrv Co. \'. Northern Minilll! &
Tr<1di nJ!. Co., i .-\ lnska :l8fi (1 !12G).
Lnnri mn,· h<' t·nnd<'mn<'d for ditch
to carrv "::,tt•r In mining claim~.-
. A t•ot·p~ration nuthori7.ecl to own and
op(•rat<! min<'s and :nininl! claims. to
own nnd appropriate water ancl wntcr
rights for private anrl puhlic use.
and to huild canal!=. ditc:lw~. flumes.
and aquNIUC'ts. antl to Jay pipe~ for
~upplyinl! it:; mine~ wilh wat<>r. n11rl
fM tlw !!<>nc•rnl u~e of thE> puhlic ha~
tht: riJ!ht to cond(•mn lnncl fot a clikh
ro cnrn· wntt•r to work minin!! C'laiml"
ownN! · b•; it. iw others. and lw thc
nnhli(· l!~:nC'rnlly' fot' mininl!" put·post's.
:\fiocC'lH' Ditt·h Co. v • .T<!C'nhst'n. 1-Hi
F liRO f!"ith Cit·. 1~0(\).
Th,• ril!hl nf way fnl" a "trnmw:ty
lin«.>" err "aerial tram" i~ intcnderl
ail'O ror flCIW(•r ((I HJH'r:t{(' lhC'm.
.-\ lH!'ka Gold RN'O\'t'l')' f'n. v. ~m·th
ern )finin!.!' & Trnding-Co .• 7 A.la~ka
.J:i:l. t'f"\·'d on nthc·r .crounds, 20 F.2rl
:, 1!•th f'ir. 1!1:!7).
But prop<'rly may nut hc tetk<'n for
sit(' ror (.'Qtlipml'nt tu op<'r:tt(.' mine.
--Wlwn• thr nm in purpn::;e of the
tnkin!! wal" tn ohtnin n ~it<.' for plant
:1nrl (>quipm«•nt to OJH!rntf' n min<'
\\'hkh <"Ollld not hp mn imainccl on tht•
mining-l-l:um tt:-c•lf lwcatr::-<• of thtt
pt•r·indic:rl itu1nw of sen water. this
..:('c•tic,,t did 110t authorize ;;uch a tak-
l 11!!. :-: ort.lw t•n ;\fin i 11 ~ & Trncl in I! Co.
\", .-\lw•k:1 Gold Ut'('O\'C'I'~· Co .. 20 F.2fl
.:-; t !lt h C i r I ! ~~ 7 ) •
tmnrov<>m~·nt~ In ril!ht of way r<•
~l'rVNi 10 patl•nt.-Whilf' rh~ nrig-tnal
r·(·~Wr\'atinn nf a rt!!ht-of.way a11d
f'lt•t•tJon pt·m•uicd for i" fnrm('r § 41
1-·1 o\rt.A 1!1.1$1 w:u• wllhnut limltat
twr• ;t!' tl• 101tJH I rhntt'l' np thP part nf
nithPr t hct ft•ficr:tl g'(l\'l'fllnlf!nl liT
A l:t::;k;l one~ the ril!hl-of-way hM'
1n•cn ::t<'IP<'tl'd n rui ch,fincd later im
p!'ll\1Pil1Cnts IH'C"I'S!'ltHting. thf' utiJir.a
t.~nn "f lnno upnn whirh thfl rmt«i i~
11nl aln•:trly loc-nt••d C'ltn only be ac
/
~,./
. .; -· -..... --. -"' ..
complishcd pursuant to toe c:ondem
natiun and \!umpensa tion provision!
of this at·tich•. Hillstrancl v. Alaska,
lRl F'. ~upp. :!1!1 (D. Alas.). petition
for intl•t·hH:tttnt•:,• review den~cd. :!52
1 • .:!d na:; o !JGO L
Rt~ht uf furcign ur domesticated
\'Urporal&on~ to condemn lands.
~\.'1.' llt.'luna Power Tramsmtsswn
Co. v. :;pratt. S8 P. 17:3 ( 1\'lont. 1H07).
r~i~ht nf forci~n ur domesticated
torpura t iun:oo tu eundem n Ia nds.-Scc
:\Iiocl.'m· Dilch Co. v. Lyng, 138 F.
5·1-1 ( !Jth Cit-. 11105) and Helena Power
Transmi~sion Co. \': Spratt, 88 P. 773
( :\Iont. UJ07). ·
Appropriation deemed exercise of
1wwcr of cmin€?nt domain.-Neither
the failure of the state to institute a
~undemnation action nor the owners'
assertion of a claim based on the the·
oty of trcsp:u;s changed the essen-
tial nature of the state's action in ap-
iil'Opt•iatin~ the owners• property
from one of the exercise of the power
of eminent domain. State v. Crosby,
Sup. Ct. Op. No. 322 (r'ile No. 584),
410 P.2d 724 (1966).
Am. Jur., Al..R and C.J.S. rcfer-
t•nces.-18 Am. Jur., Eminent Do-
main, §§ lH to 33, 4!1, fi3 to 79, 307
to 3i9.
, State power of eminent domain
over property of United States, 't
ALR 5•18.
Right of adjoinin~ landowners to
intervene in condemnation pn·oceed-
ings on ground that they might suf-
fer consequential damages,. lit ALR
1292.
Power as to exercise of eminent
domain by federal government exclu-
sively under state authorit~·. 143
ALR 1040.
i\Iunicipal power to condemn land
for cemetery. 54 ALR2d 1322.
Necessity of condemnation where
pl'ivate rights are affected by regu-
lation of bathing, swimmin~. boating,
fishing or ·the like to protect public
water suppiy, 5(i ALR2d 790.
2H C.J.S. Eminent Domain §§ 18 to
28.
Sec. 09.55.250. Cla~sification of estates and lands subject to be
t.aken. The following is a classification of the estates and rights in
lands subject to be taken for public use:
( 1) u fge ~implg, when taJnm for fiUbHc buildings or grounds,
or for pet•manent tiullding§; fuf ft:SEF:cqoi~s tH1d dams and permanent
flooding occagionecl by thgm, or for an outlet for a flow, or a place
for the deposit of debris or tailings of a mine, or when, in the judg;..
ment of the Department of Natural Resources, Department of Pub-
lic \Vorks, or the Department of Ifighways, a fee simple is neces-
sary for any of the purpoRes for which the department, on behalf
of the gtate. ig authorized by iaw to ~1.cquire real property by con-
demnation;
(2) an easement when taken for any other use;
( 3) the right of entr~· upon an occupation of lands, and the right
to take from the land earth, gravel, stones, trees, and timber as
may be necessary for a public use. ( § 13.02 ch 101 SLA 1962; am
§ 10 ch 49 SLA 1963; am § 8 ch 130 SLA 1971)
Cross n.•ft.•n•m•c.-SL'(• Rule 72{1.'),
r.~~islativc committee rC"port.-For
r(!pnrt un <:h. 1:~0. SLA 1!>71 { HCSSB
llH am H?, so!! 1971 House Joul'nal,
p. 57~.
('ourt ~r:uH:-~ only such relief a!"
pbintitr t•;\t\\hli!'hcs ri~ht tu.-This
"L'<'tlnn ttwn·!~· clnssifie!" t.hc-t•statcs
and l'ig-ht;-; "~ubject to he taken/' not
thnl mu:-:t ht.• ~aken. Tht> C(IUrl. r.n
n final hL·•u·in!{. wiil g'r<tnt (lilly :::ttch
rcli~i a~ pl:d11tilf$ !!hUll ~how them~
SL•I\'c~ entitled to, whi<:h rclil!f wi!t be
within the lilllits S('l hy the prnycr or the (.'l,)lllplamt anci the stntutcs.
Ala5k!t Gold Rct:QVtH'Y Co. \'. ~ot·thern
~lining-& Trading-Co., 7 Alaskn 386
! Hl2GL
Titlt• in fcc tn stall.' common ::.~hool
land~. trt'allt!'d hy th\' enabling :v·t,
complished pursuant to the condem
natwn and l!umpensatiun provision!
of this anicl(•. Hillstrancl v. Alaska,
1Rl F'. Supp. ~1!1 (ll. Alas.). 11ctition
f'or inlt•t·lo~tltot')' rC\ole\\' denied, :!52
I' .~d li!3:; (1 !JGO).
Rt~ht of f11reign ur domcsticatccl
t•urporalwn~ lo cundc~un lands.
Sl'l' lll'lcna Power Tramsnnsswn
Co. , .. Sp.-at.l. 88 P. i73 (Mont. 1H07).
Hi:.rht of fon•if!n ur domcRticated
corporal inn~ tu condcm n lands.-Scc
~li<lccm· Ditch Co. , .. Lyng, 138 F.
5-I.:J ( Hth Cit·. HJ05) and Hcle~1a Power
Tmn~mi!'~ion Co. v~ Spratt, 88 P. 773
(:\lont. UJOi). ·
Appropriation deemed exercise of
pawcr of eminent domain.-Neither
the failure of the state to institute a
cvndemnation action nor the owners'
ttsset·tion of a claim based on the the-
ory of trespass changed the essen-
tial natu1·e of the state's action in a.p-
PI'opriating the owners' property
from one of the exercise of ~he power
of eminent domain. State v. Crosby,
Sup. Ct. Op. No. 322 (File No. 584),
410 P.2d 724 (1966).
Am. J~.tr.. ALH and C.J.S,, refcr-
c.>nces.-18 Arn. Jur.. Eminent Do-
main, ~§ HJ to 33. •W. 53 to 79. 307
to 379.
. State power of eminent domain
over pr•operty of United States. 4
ALR 548.
Right of adjoining landowners to
intervene in condemnation proceed-
ings on ground t.hat they mhrht suf-
fer consequential damages,. Gl ALR
1292.
Power as to exercise of eminent
domain by federal government exclu-
sively under state authority. 1-13
ALR 1040.
i\lunicipal power to condemn land
for cemetery. 54 ALR2d 1322.
Necessity of condemnation where
pl'ivate rights are affected by rc~u
l:ltion of bathin~. swh1ming, boating',
fh;hing-or "the like to protect public
water supply, SH ALR2d 790.
2H C.J.S. Eminent Domain §§ 18 to
~8.
Sec. 09.55.250. Cla~sification of estates and lands subject to be
taken. The following is a classification of the estates and rights in
JandJ subject to be taken for public u·se·:
( 1) a fee simple, when taken for p "blic buildings or grounds,
or for permanent buildings, for reservoirs and dams and permanent
flooding occagioned by them, or for an outlet for a flow, or a place
for the deposit of debri!; or tailings of a mine, or when, in the judg-
ment of the Department of Natural Resources, Department of Pub-
li:.! 'Vo1·ks, or the Department of Highways, a fee simple is neces-
sary for any of the purpm~es for which the department, on behalf
of the ~tate, ig authorized by law to acquire real property by con-
demnation;
(2) an easement when tak2n for any other use;
(3) the right of entr~· upon an occupation of lands, and the right
to take from the land earth, gravel, stones, trees, and timber as
may be necessary for a public use. ( § 13.02 ch 101 SLA 1962; am
~ 10 ch 49 SLA 1963; am § 8 ch 130 SLA 1971)
Cross r..-ff.•rl'nc.·c.-SN• l~uh: i2(<.'J.
L<.'dslatin~ cnmmittce report.-For
t·cp111't un ch. 130, SLA 1971 ( HCSSB
11~) nm H1. ~cc 1971 House Journal,
p. 57£1.
('oun ~r:\1\t:-; unly such rdicC as
1d:dntin: ,•stahli:-;hcs rig"ht to.-This
Sl!('tton lllfll'c•l~· cla:-;sificg the (~states
1111d riJ.!ht.~ ··~ltbjcct to be taken,'' not
thnl n111::t lw wken. Th<.> court, un
a flnai hcurin~.r. will :;rant unly ::-uch
t't.'lid as plaimiff~ !-'hall ..::how them-
~t.·lvl'~ entitled l(J, whi<:h t•clil.!f wiil be
within the lirnits st•t hy the 11raycr
ot' the <:Omplamt and the r.tatutes.
Ala~k<\ Gold Racovcry Co. ,., ~orthcl'll
~lining' & Tn\dinf!' Co., 7 Alaska 38G
(1!12(1).
Tith• in fc'-' to l:itnt(· c(lmmon ::;chool
lane!~. t.rt·aul£'J hy tht> <.>nabling n•·t.
r
t
f
§ U~.t>:.>.GtiU
cannot be acquired in condemnntinn 1!}10), construing the Montana stat-
pr•:>ceedings. State ex rei. Galen v. ute.
District Court, 112 P. 706 (Mont.
Sec. 09.55.260. Private property .subject to be taken. The pri-
vate propetty which may be taken under §§ 240-460 of this chap-
ter includes
( 1) all real property belonging to any person;
(2) lands belonging to the state or to an organized or unor-
ganized borough, city, town, village, or other municipal divi5ion,
whether incorporated or unincorporated, not appropriated to a
public use; .
(3) property appropriated to public use, but the property shall
not be taken unless for a more necessary purpose than that to
which it hus already been appropriated;
( 4) franchises for a public utility, but those franchiseg :;hall
not be taken unless for a more necessary public use;
. (5) all rights-of-way for any of the purposes mentioned in §
240 of this chapter, and the structures and improvements on the
rights-of-way, and the lands held and used in c_onnection with
them ~hall be subject to be connected with, crossed, or intersected
by another right-of-way or improvements or structures on them;
they ~hall also be subject to a limited use, in common with the
owner, ·when necessary; but the uses, crossings, intersections. anrl
connectio.ns shall be made in the manner most compatible with the
greatest public benefit ~nd least private injury;
( 6) all class~::; of private property not enumerated may be taken
for public u::;e when the taking i~ authorized by law. ( ~ 13.03 ch
101 ':LA 1962)
Cr 1!"~ reference. -See Civ. R.
72(c).
Editor's note.-All notes from Mun
tana decisions appearin~ under th\"
section ar~? c.-onstructions of the Mon-
tana statute from 'vhich this sectiu11
derives.
Lands belonging to the statE' m~n
be taken by the exercise of the ()OW<•r
of eminent domain. State ex rel.
Galen v. District Court, 112 P. 706
Ofont. l!HO).
And the f-itate may properly be
made a party to the action. State e~
rei. Galen v. District C.:mrt, 112 P.
7011 ( :\Iont. 1910).
As the statt.' has e~pressly con·
l:lented to bt> SU<'d under su<'h cirt"um
"tanccs. State ex rel. Galen v. Dis-
trict Court, 112 P. 706 (Mont. 1910).
Applicahility of subsection <3)
Subs~ction ( 3) can only apply where
there i~ n taking of the property dent
cnt~J tn n puhlic URf." anrl appropriat
in~ it to annther puhlir us<> GoC"nn·
ougher v. Zei~er, 112 P.2d 1058
(Mont. l!J41).
The right to take depends lar~cly
upon the sut>erior necessity. City of
Helena v. Rogan. 68 P. 798 {Mont.
1902).
Suh~l·diun (3) doe~ not mean ,,
difTt>rt>nt ()Ubli<-U!"t> in :til casl:'!'l (f tht>
legislature hnd intcnci<>d that cor•
struction tu he put upon th(· statut ...
instead of carefully restricting the
ri~ht to n more neccsc;ary puhtic U!-\1'
they could easily have said a dHTer·
ent public use. Butte, A. & Pnc. Ry.
v. Montana U. Ry., 41 P. 232 ( :\1ont.
1895).
T,•st ifl d€'struc.-tinn of prtllr publir
use.-Under subsection ( 3) the real
que~tion is, Will the taking of this
private property. already dedicated
to one public use. destroy the prior
public use? Cocanougher v. Zeig-ler.
112 P.2d 1058 (Mont. 1941 ).
f
The legislature had in mind in en·
&ct.ing sucsection (3), when it speaks
of ~ more necessary public us~ than
that to wtnch the property i~ already
dedicutcd, that the Iutter use is such
a~ wtll destroy th~ prior use Cuca
nougher v. Zeigler, 112 P.2d 1058
( l\Iont. 1941).
Complaint must show more neces·
s;u) public use.-Jt must appear in
th~ complatnl that pmperty already
appt·upt·iated to publiC' llSE' ts to t>e
applied to a more necessary public
usc. City of Helena v. Ro~an, 68 P.
7!18 (Mont. 1902).
A ~·mnplele dt-scrfptinn of the prop
erty to be taken is necessary to the
<!lllJ that lht-cuurt may see that u
proposed use is superior m point of
ncl'c:>sity to the present public use
City of Helena v. Rogan, 68 P. 798
(Mont. 1902).
And the mere statement that a use
IS superior in necessity would not oe
~ullident without the facts as to the
pt·esunt use C!>Uplcd with t.hose apper
taining-to the intended use. City of
Helena v. Rogan. nS P. 7H8 (Mont.
U102).
Lund~ of a publi<' corporation nut
Jn. M'h .. •.n I usc may h<> tak~n by anotht-r
public c·urpctr~Itinn.-One puoli.:: cor-
[H)l':•tiuu <'annut take the land~ of
f rant" his~!~ of an~th;.~r public cot·po·
1.·atwn in actual use-by it unless ex-
nres~ly autiwrized to do so by thP
legislature, but the ian6$ of such a
t•ot·pu•·ation not in actual use may he
taken by anuther corporation, author·
ized to tak~ lands for im use in in·
''itum, when<.>ver the lands of an in·
dividuaJ 111ay !J~· taken, subject to the
qualifi('ation that there is a necessitY
therefor. Butte, A. & Pac. Ry. v.
l\-Ionltm~\ U. Ry ., 41 P, 232 (Mont.
1805).
This section applies to mining tun-
nels. Cocanougher v. Zeigl~r. 112
P.2d 1058 (Mont. 1941).
As well as irri~ation dit.ches.-See
Cocanougher v. Zeigler, 112 P.2d
1058 (Mont. 1941).
Prerequisites to chattel becomin~
fixture.-The rule is that for a chattel
to beco~e a fixture and be considered
as real estate, three prerequisites
must unite: There must be an annexa.;
tion to the realty of something appur-
tenant thereto; the chattel must have
adaptability or 3pplication as affixed
to the use for which the real estate is
appropriated; and there must be an
intention of the party to make the
chattel ~ pc!"manent accession to the
freehold. Intention, the third of the
three factors said to comprise the gen-
eral test for determining whether an
object has become a fixture, refers to
to the intent of the parties that the
object being introduced onto the
realty become a permanent accession
thereto. Stroh v. Alaska State Hous-
ing Authority, Sup. Ct. Op. No. 496
(File No. 924), 459 P.2d 480 (1969).
CompensatiQn for personal property
taken or damaged.-Reading Alaska
Canst ... art. I, ~ 18, and Alaska Const.,
art. I, § 1, in paria materia, and the
generally recognized principle that
the constitution and leghlative enact-
mE:ttts in implementation thereof are
to be liberally construed, the supreme
court found no clear legislative intent
to have been manifested that personal
propt!rty taken or damaged by public
use should not be justly compensated.
Stroh v. Alaska State Housing Au-
thority, Sup. Ct. Op. No. 496 (File No.
924), 459 P.2d 480 (1969).
Carpeting constituted personalty at
the time of the taking, and party was
entitled to recover the actual market
\•alue thereof at the time of the tak-
ing. Stroh v. Alaska State Housing
Authority, Sup. Ct. Op. No. 496 (File
No. 924), 459 P.2d 480 (1969).
Sec. 09.55.270. Prerequisites. Before property can be taken. it
shall appear that
( 1) the use to which it 1s to be applied 1s a use author~ect by
la \'.' ;
(2) the taking is necessary to the use;
(3) if already appropriated to a public use, the public use to
205
~ 09.55.270 ALASl\.A STATUTES
which it is to be applied i~ a more neces~ary public use. (§ 13.04
ch 101 SLA 1962)
('ro~s rcfen•nce. -See Civ. H..
72(c). ·
Editor·s note.-Ail note~ fumt Mun·
tuna decisions appe:1rinJ,! under tht~
~ection are cons truC'tions of thE' (1.·1 on
lana statute from which this seC'tiun
derives.
PleadinJt must plainly show au-
thurity nnd neccssit~· fur takin~.
Thc ri~ht of eminent domain can
on!:.· be e~wrcised in behalf nf a puh-
lh• use authorized by law, c.tnd in tlw
taking-of propert~· necessary to such
public usc.> the complaint or petit inn
in surh proceeding-R must ~h<JW
plainl~· and nffirmath·cly the e;xi~
tencc of the statutory authority for
the public usc. nnrl the ncccs~ity of
thf! property for l-\Uc:h usc. ,:\liocen<!
Ditch Co. v. L~·nl,!'. 1:U~ F. 544 (:Jth
Cir. 1905).
An inference is not suO'icicnt in
eminent domain procccdin).!'s. Tlwre
must be n dear. posi.tive statement
that the property soup;ht to h~ t•on-
demned is necessary f()r a puhlic U~l'
nuthorized by law, ami l'Upportcd b:-·
u statement of fac.:t.s from which the
<·ourt cnn see that the prnpel'ty i:'
intended to b<! used for that tnu·po:;c.
:\Iiocene Ditch Co. v. Lyn).!', 1:)$ F.
:'l·l·l {!Jth Cir. 1905).
The complaint shuuld allc1!e buth
that th~ usc to which tht• property 1~
to hE> applierl is a use authorizL•d hy
law and that the taldng is neces!'t;u v
to such use. City of Helena v. Hnr-
''t'Y, !' P. 903 (:\lont. 18~()},
Which mu~t he found hy court he-
fore cond<.'nmation.-This ~ection has
ht•('n con!'truerl al' t"cquiring-the ~·ourt
to fi ncl the u~c is au tho l'ized hy law
nnd the tnking" is nccc:>~<li'Y "lwt'nr•·
t~nndenlnntion ... , P.r_\clg-cs v. .-·\ l:~: .. J\a
Hot,sing-Authnrit)·. Sup. CL On. ~<,.
1 (File ~n. lli). :3-W P.2d 1-1!J 11~1 1\1)).
It is upon findin~~ made in ;H'-
t•ordr~nc<.' with lid~ !--l'l'(i(ln that thl•rt•
i~ l·~t•lhli~ht•d a hal'i~ for furtht•r prn-
C('crlin~s. The finding-s t:on~titt:tt• t!w
rl<'<.:i~inn of tiH: eourt upo11 tlw \'!tal
quc:-;tion of whethCI' or not thl' rr•lj1·
erry soug-ht to hl• taken cnn b(~ ~·un·
rlcmncd at alL Van f)yku v. )IidniJ!hl
Sun :\lining & Ditt'11 Cn .. 177 F :\~
C!'th Cir. HHO).
Q u e s l i o n s tu he con!'idNNl ll\
cnurt.-Ordinnrily the nnly que::tHllH-
to h<> ('unsiden•d h~· th11 ··nut't:-: :n ··nn·
dcmnalion proceedinsr~ ar<>: First.
whl!thcr the petit.ionf.!r lm~ the powt'r
to ext>rcise the rhrht of t>minent do-
main: second. wh<!ther the property
itself il-l of a nulure !'Uhject to con-
t!Pnmalion: third. whether the prop-
Prty i~ beinl! tak<•n for a puhlic or :1
private usc; and f()urth, whether the
power is hl~i:1g-used fot· takinj.!' <ln
exce~sive am()unt of prnpct·ty. Town
of Se'.'-'arcl , .. ;\1nrg-ulcs. !l Alaska :J:l.t
( 1 !l:~s L
Tllkin~: for u~(' <tuthnrized hy law
is not C"unclush·e that takinj;t i~ ner·
l.'~snr~·.-By providing that th<• rig-ht
to take property for public· use ts
founded upon n usc authorized hy law
and that the use for such purptt~e I!'
ne<"<'~l':lry. the law it!'>t•lf recuJ?ni7.C'~
the fac·t that :a mere taking for a u~t'
:u1thorizPd ')y law i~ not <-nn<"lm:oi''C'
tha: th<' tnkint! i~ nt>rr~!':u·y fnt ~urh
lt..:.t•. City ·of He!('nn , .. Ilan·cy. !l P.'
t•n:~ !~{ont. 188(i).
Th(' ~ule nf nt'<"<':OO!'it~ musi h(' drtt•r·
min at h·r· <l f t h t' right to I :du• in Nll' h
in~tancc. :\0rth"rn Pac. Ih·. ""· :\tc-
:\Jinw. 121 P. ·173 ()!ont. 1nl2).
f\ut nh~olutc• O('('('~l=;ity i~ not r'('•
quin•d.-An :th!'olutf' ne<'eossity is t1t1t
lt Pt'I'I'PilUISltl• to rhc• t.·~··n·ts(' nf tht'
lnw of t?mim•nt rlnmnin Rutte A /1::
P:w. Ry. "· :'.lontana t;. Ry .. 41 P. z:t~
I ;\ 1 on t. 18! t;) ) •
QueRtion nf ntt>Cl'!'lli=it) is nne of fact
-fn an action tn cnnrlemn pnvatt-
prflperty for a puhliC' usc. the ques
tint. nf nect>ssity is one nf faC't. to hP
dctt>rmineci n.s other question~ of faC't.
in \'iC'w of all the t?\'idenC'e in the ~"nse
;:;tat" I'X rei. Lh·in!!~ton ,., Di~trict
c~ntll'l (If Fonrt h .Tt1dieial Dil't .. 300 P.
~11~~ 1 :\Iont. 1!1~1).
rt in,·nh'(•.-. hnth rmhlk nnd prh•arC'
con:;id.crntions.-The question of ne·
rcssit'\' in n given case invoh·cs a con-
sidcrattnn of f:tt•ts which r<'lnte to the
puhli<' nnd nll'o to thl' prh·atl' l'iti7.\'0
wlw:-;t..• pt'oJWI'ty m:\y hi..! injured. StaH•
\•;.; r<•l Living-.:.ton , .. Di;;tl'it·t Court
11f Fuurth .rudidnl Di~t .. :wo P. fill~
• \.lnnt. 1!1~1).
·'
\ nd t h<' l'\·idE>r.n• ~hnu ld sbHw I hu I
1 he land i.•1 n·n~nnnhly rC!QUired fur
tht• 0\ll'f\O'>\' <lf r!fl'rting the ohje<'t ol
't:-eond ~'nHmtion. ~tnt c ox rc l. L h·-
"~!!~:nn ,. . ni:-nkt C!•\ll't c)f Fn\trth
.Iudic:ial Di~t.. :300 P. !116 (:\\ont.
\ !t:H L
Prunf u( unm•n•ssary infury shuuld
he ch•ar and \'un,·incin..: -When an
attempt is made to show that the lo·
caitwn propust?d is unnccessadly ill·
iurtous. the pn10f shoulrl be clear and
<"tHl\'tnC'ing-; other·wtst? no locatiun
<·nulcl C\'l'l' he ntndc. Stitte ex rei. u .. ·.
inJ..rl'ton \', District Court of Fourth
.Judicial Dist.. !300 P. Hlll ( ~tont.
ut:n).
Sufficient slwwinJ! of nl'CC!+i~ity ,_..
When ... a cumpluint used the words
.. impc1·atively required" for· :1 puhli<'
mw an~l allcg-ccl fucts supporting-the
same. this was sufficient to show
nccc:-:~ity undc1· this l'C<:tion. Town of
:)cw:II'CI .... :'.larg-ule~. !I Alasku 3:54
( 1 !l~8).
~ ............. ,.,_, .. ,... ""' ... ..
J\tlpe:ll frum intcrlo("utor~· nrdt'r
lindin.l! usc authorized :mc.l takinJ:
nect•ssary. -See Van D~·ke , .. :\lid-
ll!:rht Sun Mininsr & Ditch Co .. 177
•·. 85 l!Jth Cir. :HlO); i'-:oniH.•l'l! :\lin-
ing-& Tradin~ C.1. v. Alasku Gold Rc~
('ft\'ct·:.· Co .. 20 F.2d 5 (9•!1 Cir. 1!J2i).
C(Jrt\'enicnc~ and enhanced protit!'l
an· immllicient to permit apprupria·
tiun.-That the appropriation of a
partJt•ulnr p1ece of property would
prumOLt:' cunv~nienc-~ of cH)erutiun and
en hanc-t• tht• prufit.s of the busin~ss ,[
a railroad C'umpany is not alone a
sufih:a•nt reason for permitting it
Northern Pac. Ry. v .. McAdow 121
P. -173 C:Hont. 1912}.
Sec. 09.:35.2RO. : .. ntry upon land. In all cases where land is re-
quired for public use, the ~tate, the public entity, or persons having
the authority to condemn, o1· its agents in charge of the use may
enter upon· the land and make examination, surveys, and maps
and locHte the bomvlaries; but it shnll be located in the manner
which will be most compatible \vith the greatest public good and
the least pri\'ate injul'y, and tntbject to the provisions of § 300 of
thi:-; c·hapter. The entry ~hall constitute no cau:;e of action in favor
nf the owners of the land except for injuries resulting from negli-
gence. wantonnes~. or malice. ( ~ 13.05 ch 101 SLA 1962)
Cro!'s ref~rem·('.-SC!e Civ. R. 72 •
. \m. Jur. rt'fercn<.·c.-18 Am •• Jur.,
Emilwnt Domain, §~ 1:~:3. 142. 1-13.
272 • .21-1. :rio. :37-1.
Sec. 09.55.2~)0 . .Jurisdiction. Eminent domain proceedings may
be commenced in the ~uperior court. (~ 13.06 ch 101 SLA 1962)
Crn,.;s refcrcnce.-Sce Ch·. R. 72.
Am. Jur. n•fcrenct•.-18 Am .• Jur.,
F.mincnt Donulin, ~~ 31;), 3l·L
Sec. 09.5=>.300. Power:-; of <:tmrt. (a) The court has power
( 1) to reg-~tlnte nncl dc\termine the ph1ce and manner of making-
the connections and crog~ing·~ or of enjoying the common tt~es
mentioned in * 260 (5) of thi:-; chaptt>r, :mel of the occupying of
enn~·on~. pa:-;~e:->. and defil~·~ ft~r raill'nad purpn~e~. a~ pel'mittecl
n nd 1·cgu la ted by Ia w;
(2) to limit the amount of propert~· ~ought to be condemned
if. in itf.; opinion, the quantity ~oug·ht to be condemned i~ not nec-
e::;sary.
(b) If the court determine~ that the property is to be taken for
a public use, and if all partie!1 to the action do not object, the
court shall appoint a master to determine the amount to be paid
by the plaintiffs to each owner or other person interested in the
l
I
l
I
, .. ;
~·· .....
ALASKA STATUTES § 09.55.310
property as compensation and damages by reason of the appropria-
tion of the property. If all parties to the action object to· the ap-
pointment of a ma~ter the court shall proceed with a jury trial,
unless the jury iR waived by all parties to the action. ( § 13.07 ch
101 SLA 1962; am § 1 eh 138 SLA 1968)
Cross refercn:r'e.-See Civ. R. 72.
t.egislativ(T committee r('port.--For
report on ch. 138, SLA 1968 (HCSSB
215 am). see 1968 House Jourrtal, p.
li28.
Nu lintdng nt-C'eNsary lo essuanct >~t
order appuinting mn~t~r.-No •find
'ng•· ~e~m:! tu he necel:Ssary to tht> ts.
.suan,·~ uf tht> ordcf appnint!ng cunt
mt~!'\Hmerl:i ( nuw master l to appraist>
dam~l(es. Alaska Gold Recov·cry Co.
v. Northern Mining & Trading Co., 7
Alaska 655 (1927).
And such order ts nnt appealahlc . .:-
The order appointing t•ommissiuner~
(now master I can not be regarded a:.•
appealable ·Alas:.ka Gold Recovery Cu
v, North~rn Mining & Trading Co .• 7
Ala~ka R55 (1927).
Except for ahust' of dis<"r~tion.
An order appointint: commission'-'r~
(now master\ can only be reviewco
for an ahust.> of discretion. if at all
A lal\ka Gold R~t·uvery Co. v Northern
Mining & Tz:adin~ Co., 7 Alaska 6S5
(1927).
.. Owner·· includ{'~ pur<"hascr undN
contract.-An instructiun "t.hat the
term 'owner' to whom compensatim,
must be paid. may include a purchaset
under contract who has an mterest
in the land sought lo be taken or
damaj!'cd," IS entirely proper ''Stat.e
v. Bradshaw Land & Live~tock Co.,
43 P.2d 674 (Mont. 1!>35). construing
the :Montana statute.
Sec. 09.55.31 0. Hearing. {a) The jury or master shall hear th~
allegations and evidence of persons interested and shall ascertain
and·assess the followh. ·
( 1) the value of the property sought to be condemned, and all
improvements on it pertaining to the realty, and of each separate
estate or interest in it: if it consists ·of different parcels, the value
of each parcel and each estate or interest in each parcel shall
be separately asoessed;
{2) if the property sought to be ~ondemned constitutes only a
part of a larger par~el, the damages Nhich will accrue to the por-
tion not sought to be condemned by reason of its severance from
the portion sought to be condemned, and the construction of the
improvements in the manner proposed by the plaintiff;
( 3) separately, how much the portion not sought to be con-
demned and each estate or interest in it will be benefited, if at all,
by the construction of the improvements proposed by the plaintiff;
and, if the benefit is equal to the damages assessed under (2) of
this section~ the owner of the parcel shall be allowed no damages
except the value of the portion taken; but if the benefits are less
than the damages so assessed, the former shall be deducted from
the latter and the remainder shall be the only damages allowed in
addition to the value:
( 4} if the property soul! hi to be condemned is for a railroad,
the co:.;t of good and sufficient fences along the line of the rail-
§ 09.55.31 \) Coos m..-CIVIL t'ltUt;l~uutt.t:.
roadt and the cost of cattle guards where fences may cross the
line of the railroad.
(b) As far as practicable, compensation shall be assessed for
each source of damages separately. ( § 13.08 ch 101 SLA 1962; am
§ 2 ch 138 SLA 1968)
Cross rcfcrcnce.-Sce Civ. R. 72-
( e) ( 4) ; 72 (h).
Ellitur's note.-AII notes from Mon·
tnuu decisions appe~ring under tht:o
:>cl·tion are con~'ructions of the M un
t<\na statute from which the scct.icm
derives.
LcJtislativc eommittee report.-For
report on ch. 138, SLA 1968 ( HCSSB
215 am), see 1968 House Journal, p.
G28.
Fair market ,·alue is an appropri-
ate measure of the just compensation
guaranteed by Alaska Const., art. I,
§ 18. Dash v. State, Sup. Ct. Op. No.
756 (File No. 1405). 491 P.2d 1069
(1971).
One criterion for determining value
is what the property is worth on the
market-its fair rn 1.rket value, and
this is to be. deta· .nined by a just
considerat.:"n of all the use~ for which
a property is suitable. Dnsh v. State,
Sup. Ct. Op. No. 756 (File No. 1405). ·
491 ?.2d 1069 (1971).
The essential difference between
marknt price and market \'alue lies in
the p~emises of intelligence, know1-
<:dge r.nd willingness, all of which are
contt~mplatcd in market ·\'alue but not
in market price. Stated differently,
at any gi'lcn moment of time, market
\'nlue connotes what a propcrt~· is
actually worth and market price what
it nu\~' be sold for. Dash v. State, Sup.
Ct. Op. No. 756 (File No. 1405), 491
P.2d 1069 ( 1971).
Rule as to special benefits. -The
rule in Alaska is that special benefits
to the remainder cun only be used to
otf!'ct !:lcveranc.e damages to the re-
mninuer. In the event that special
benefits exceed severance damages,
the landownt!r is still entitled to re-
cnivc the full market value of the
portion actually taken. Dash v. State,
Sup. Ct. Op. No. 756 (File No. 1405),
·Wl P.2d 1069 (1971),
"Best usc" c,·idcnce.-Sce Dash v.
State, Sup. Ct. Op. No. 756 (File No.
1405), 491 P.2d 1069 (1971).
In determining just compensation,
usually measured by the "market
,·aluo" of the property, the highest
and most pro[ltable use for which the
land is adaptable may be considered
to the extent that the prospective de-
mand for such use affects the prop-
erty~s present market value. Dash v.
State, Sup. Ct. Op. No. 156 (File No.
1405), 491 P.2d 1069 (1971).
A truly speculative or imagined use
should not be considered. Dash v.
State, Sup. Ct. Op. No. 756 (File No.
1405), 491 P.2d 1069 (1971).
Evidence of use as subdh•ision.-
Many courts, including Alaska's, have
allowed evidence of a reasonably
probable subdivision to be admitted
to prove the adaptability of the land
for subdivision use. Dash v. State,
Sup. Ct. Op. No. 756 (File No. 1405).
491 P.2d 1069 {1971}.
The majority of courts allow evi-
dence of a potential subdivision only
for the limited purpose of showing.
the adaptability of the land for sub-
division purposes. Dash v. State, Sv.iJ.
Ct. Op. No. 756 (File No. 1405), 491
P.2d 1069 ( 1971).
The courts are much more liberal
in admitting evidence of a potential
subdivision when some preliminary
steps have been taken to develop the
land. Dash v. State, Sup. Ct. Op. No.
756 (File No. 1405), 491 P.2d 1069
(1971).
Where there is testimony that the
highest and best use of the property
is as an industrial subdivision, and
t'\'idence that other property in the
immediate at·ea was subdivided for
industrial purposes, the proposed
stli.Jdi\.-ision is not pur.;~~ conjectural
or SPl~culath·c. Dash v. State, .3..:~ Ct.
Op. ~a. i56 (File ~o. 1405). 491 P.2ci
lOG~ ( 1971).
If the land wen~ adaptable for sub-
dh•ision purposes, it would seem that
the potential income to be derived
from sales of the subdivided lots
would b<.' highly relevant to a deter-
mination of the "market value,"
especially to the extent that sophisti-
cated investors who make decisions
on lhc basis of income capitalization
bk1.• part in market transactions.
<)(\(\
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~ ............. ~ ... '1".. .. -~
Dash v. State, Sup. Ct. Op. No. 756
(File No. 1405), 491 P.2d 1069
(1971).
Capitalization of income. in con-
texts Qther than proposed subdivi-
sions, has been rec.ognized as an ac-
cepted method of valuation hy u num-
ber of jurisdictio:-s. Although capi-
talization of anticipated proceeds
from n proposed subdivision neces-
sarily has a speculative element, it
still has a direct impact on the prop-
erty's market value since it will in-
fluence investment decisions and
thereby affect supply and demand.
Dash v. State, Sup. Ct. Op. No. 756
(File No. 1405), 491 P.2d 1069 (1971).
To the extent that the "just com-
pensation'' guarantee in Alaska
Const., art. I, § 18, comprises a notion
of fair market value rather than
merely the price the property ·will
bring in an imperfect market, income
capitali?;ation must. be considered
particularly apposite. Dash v. State,
Sup. Ct. Op. No. 756 (File No. 1405),
491 P.2d 1069 (1971).
Even in a market place where a par-
cel's price is unaffected by its income
potential, income capitalization must
be considered to h~we a bearing-on
"market \'alue," The dang-er that
market price will not closely r~fiect
market value is enhanced when t~e
property is not currently generating-
income. Dash v. State, Sup. Ct. Op.
No. 756 (File No. 1405), 491 P.2d
1069 (1971).
Income capitalization in general
and the anticipated use or develop-
ment method in particular are stan-
dard appraisal practices. Dash v.
State, Sup. Ct. Op. No. 7n6 (File 1-:o.
1405), 491 P.2d 1069 (1971).
An expert's testimony '"'hich cap-
italized the anticipated rentals from
a proposed recreational subdivision to
arrive at nn estimate of fail market
value. was properly admitted. Dash , ..
State, Sup. Ct. Op. }:'o. 75G (File Xo.
t-105), 491 P.2ci 1069 ( 1971).
As to admission of expert testi-
mon)• on market value based on the de-
velopment costs and income capitali-
zation of a potential subdivision, see
Dash v. State, Sup. Ct. Op. No. 756
(File No. 1405), ·HH P.2d 10G9 (1D71).
Role of e;ocpcrt witnc~s in eminent
domain proceedin~s.-Sce Dash v.
State, Sup. Ct. Op. >;o. 756. (File ~o.
14051, ·191 P.2d 1069 (1971).
Snlc. fifteen months after date of
takin'j!. -As to admission into evi-
dence of a sale taking place fifteen
months after the date of the taking
uy the state, see Dash v. State, Sup.
Ct. Op. No. 756 (File No. 1405), 4!H
P.2d 1069 (1971).
Duty of mastt•r.-[t is lhe commts·
stontu·s ( ma:ilt!r's I duty to ex:unme
the lands ~WUJ!ht to be conduomcd.
hear the allcJ.ration::.o and evidence uf
all parties interested. and ascertain
and nssess the damagt!~ done to the
persons ~ .. ·hose lands are suu,:.rht to be
appropnated Spratt v Helen:t Puw~r
Tt:an~mission Co., 94 P. G31 (Mont.
HJ08J.
Assl'!'iSml'nt uf dama~e~ rcf('rs ro
"portion suu~ht tu ht• condt•mn("d."-
fhe assessment of dam;q . .res the
a wan! 11f tht' commi~SW!H~rs ( mnster J
pru ... ·tded for in this section. is made
with refer·,•nt•e to propet·ty sought '"
be appropnatcd or ''portwn souJ.rht
to he <'ondcmnt•d.'' not lo property al
ready ,;,;nriemned at thl' time of th<'
nppointnwnt A la!'k;t Gold Recnvf.>ry
Co. v. Northern :VIining & Trading
Co .. 7 Alaska 1155 (1927).
The award of dama~t-s i~ a sub·
stnntial fact. ·which fixes the iudt
t·unlpPn~atlltrl to which r('larnr I!= en·
titled. until icdsed on appeal. State
ex rei. Volunt,·cr :'.lining Co. v. )lc-
!tatton. :3R P. 711 (Mont. 1894 }.
Rl•t•o\'t>rahh• dam;q~t:-5 must bt-thE"
natural and pruximatt-cun~t'QUt-nct
of tht> a('tinn taken; they must ht> di·
rec 1 and cer·ta in; actual and reason·
a hit!. they mu;,.t hE' readily nscertatn·
ahle. and out r(>mnte "Pe<'Uintivt> or
conting-ent. Lewis & Clark Count~· v.
Xctt. 263 P. ·1 H~ Diont. 1928): State
\•. Brad;,.haw Land & Livestock Co.,
.:3 P.2d 67-i Oiont. 1935).
Qut.>!"tion~ rdati"{' to re,•enue pr1,.
duct>d from the property t2ken is a~
missihlt• fot tht! pUf'IH.l~E' of arrivtng
"' th1• market va lut> uf the oroperty
State v. Peterson, :328 P.2d 6i7
c :.r0nt. 1958).
LoRs of business by relocation of 11
hi~hway is nnt compensahle.-It ts
cle:u that compensation cannot be
had for l·>ss of bul'incs~ by relocation
t.Jf u hi~rnwuy and divcr·sion of traffic
~tate \·, Peterson, 328 P.2ci G17
Oiont. 1058).
The owner of land abuttmg on a
h1~hway established by the public has
no property or other v~sted rigM h"'
the cuntmuance of it as a highway ut
puhlk expense, and, at least in the
absencP of deprivation of ingress
and ~KI'I.!SS, cannot claim damages for
its mere discontinuance, although sul."h
dist·untinuance diverts traffiC' from his
door and diminishes his trade and
thus depredates the value of his lanti
State ...-. Hoblitt, 288 P. 181 (Mont.
1!130).
Opinions of witnesses.-The opm·
tons of witnesses must be resorted to
to determine ( 1} the value of the
land taken; (2) the detriment, if any
to the portion not taken, or, in other
word! the value of that not taken;
and t 3 I the benefits if any. to the
portion not taken. Ycllowstpne Park
R. Co. v. Bric.I~er Coal Co., 87 P. !)63
(Mont. 1906).
The right modr of proving value is
to take the sworn opinions of those
who are shown to be competent to
-give opinions on the subject, and let
them be cross-examined as to the
foundation of their opinions, the1r
mean~ of knowledge and the motives
prompting them Yellowstone Park
R. Co. \'. Bridger Coal Co., 87 P. 063
(Mont. 190G).
The question of ttow the taking of
a right of way affects the premises in
the market shouJd logically be deter·
mined by testimony of qualified wit·
nesses as to the cash marKet value
of the prt!mises today and what that
value would be today considering the
highway as constructed across them
and permitting the witnesses, on
cross-examination, to state the man-
ner in which they arrived at their con·
elusion on the ~ubjcct. Le\"·is & Clark
County v. Nett, 2G3 P. 418 (.Mont.
1928).
Competency of witnesses. -One
who knows the real property in qucs·
tion und is familiar with the uses to
which it may be put, may testify as
to its market value. State v. Pcter-
~on, 328 P.2d 617 (~\Iont. 1958).
lt must appear that the witness hns
some peculiar mcnns of forming 11n
intelligent and correct judg-ment ns
to the value of the property in qucs·
tion beyond what is presumed to be
pos~csscd hy m~·n g-enerally State v
Pl!tcrson, :~:2!) P.2d 617 (Mont. 1!15S).
Value of real estate mny be pro\'I'!U
by witnesses other thar. experts Stntc
v. Peterson, 328 P.2d 617 (Mont.
1~58).
The witness need not know of any
sales and he need not be a .technical
expert. State v. Peterson, 328 P.2d 617
(Mont. 1958).
A witness as to value of, property
need not to have been engaged in
buying or selling the same. State v.
Peterson, 328 P.2d 617 (Mont. 1958).
Who are competent to give. opinions
on value of property is generally in
the discretion of the trial judge. State
v. Peterson, 328 P.2d .617 (Mont.
1958).
Weight of testimony is jury· ques-
tion.-The question of what weight
to give witness' testimony is one for
the jury to decide upon 'the evidence
produced at the tria) and under the
court's instructioms on th~ law
Alaska State Housing Authority v.
Vincent, Sup. Ct. Op. No. 261 (File
No. 458), 396 P.2d 531 (1964)
v elue or improvements is material
only if market value is enhanced. -
If improvements on the property en-
hance the market value then the value
of those improvements is material:
if improvements do not enhance the
market value, they are not materiaL
State v. Peterson, 328 P.2d 617 (Mont.
1958).
Testimony as to value of improve·
ments.-The true rule seem5 to be
for the witness to testify as. to the
nature of the improvements. their use.
and then, probably. state that the
improvements enhance the market
\'alue of the land. He may th1m testify
as to the consideration of the im-
provements and their condition and
\'alue at the time of the condemna-
tion. State Y. Peterson, 328 P.2d 617
(Mont. 1958).
Testimony as to amounts invested
in the lands and improvements would
be incompetent, for it is the \'alue
of all quch at the time summons is
~cn·ed that counts, State v. Peterson,
328 P.2d 617 {Mont. 1958).
Depredation of ,ll d j ace n t tract
Rhould be com:;idcretL-In arriving at
a conclusion as to the damages to be
a\\•arded, the triers of facts ~hould
consider all of the circumstances
which immediately and directly de·
preciate the present market value uf
the portion~ of the whole tract adja..
cent to thl' strip soug:ht to be taken
as n l'lg-ht of way, Lewis & Clark
211
County v. Nett, 263 P. 418 (Mont.
1928) .•
But not (!\'Cry pos~ihle el~menl ur
depr~rlal.ictn is C'omp•msahle.--lt It-
not every possible t!lcment oi clepre
~-·wtwn 111 \'alue for wh1ch con1petl~a
twn must bt> awarded m an emtnt•nt
d<~tnain proceeding. Lewis & Clark
County v. ~ett, 263 P. 4;8 (Mont.
1928).
And attempt t.o enumerate.-el<'·
m('nt.!l of dt'JH'eciation i.l' futile.-Any
attl•mpt to f.!numerat(> tht• vartoU$ ctr·
ruut~tarw~:~ wh1<•h r]lay ~nter anto de
pn'I.'Wllun of tht-mark<:>t value uf 11
tract of land would be futile. Lewis &
Clark County v. Nett; 263 P. 418
IMont. 1928).
Hil!h,.,.·ay dl•stroying tht• clusl' and
requirtn~ addiltnna I fl'nl"ing IS dire\'!
dt.>prt•('lltlton Onl:' llf the ctn~um
st:tlll'es which dtrf.!ctly dcpreC'ICltel:' th~
markt•t vulut' uf land 1~ rhat the op~n
1ng of a hl~hway thrnugt--a fen<·ed
tract of tunci destroys the close and
nercs!'itt:ltes adrlinonal fenclnl! In or
•lc·r to re-establish it. Lewis & Clark
County \'. Nett, 263 P. 418 (Mont.
1 fl2R).
An Item of damage~ \\.'fm·h would
t>ntt~l Into the deprecwtJon of the
,·alut· of a tract IS the cost of ctm
strUC'tJng a fence along the highway
tv maintain an mclosure Statt-.,..
Hnblitt, 288 P. i81 (Mont. -1930).
B<'raUlit' tht' damngt" suffered and
I h€• amuunl uf deprt•ri:ttiun is readily
a:o;rt•rt a in<t bit' Oy test llliOOY a~ to th~
r·ea:'.ma hh• cost of constructlun c;1
::;1H'h r~nces and th~ <:or.:·nt1erHrtnn of
:>uch 111 ltl•m has ~:ene·•ally hf~t·n up
held. Lt.!wis & Clark County \'. ~ett,
:!•~:~ P. -H8 (~Iont. 1928).
But in tht' ah:-••nrt• ul statutury ju:;
tdiratlon I h('tt>fur no alluwann• can
bt• m;1d(• for n fenC'e as a fence. -
5t.>t' Lewi~ & Clark County v. ~ett,
263 P. -118 (1\font. 1928).
:":cC'c~sity of fendn~ and co~t J:Ut"l'
only to show deprt'ciation hy reason
of taking.-Prt~of of tht• ne~·essttv ,f
~uch fcn<nng and its cost, IS pr;>p•:r
t~nly a~ a means of showing th1.• il!·
nrccl:tt~tm in market \'alue of tlw
land by reason of the taking and u~e
nf a part of the land. Lewis & Clark
c.-·lt:nty "· Nett, 263 P. 418 (1\Iont.
1 9:!$).
Ami no e~nminntinn. n witne~l' l'ould
readily lttstify ~nnC'ernin~: the deprt-·
ciatinn by rt>:umn of tht• n•quirf'mt'nt
of fenC"in,::. Lewis & Clark County ..., •.
Nett, 263 P. 418 (Mont. 1928).
Uul mainCt•nanct> of fen<"c~ ~s tuc•
remote. MaintenanC'e of fenc:P.~
would be a known future hurdcn up.
on th!..' lauds hut the claim shuuid bt!'
disregarded as tou remote, and as Ill·
capable of dcfinitl! ascertainment •tr
deteJ·mination at the time the deprc·
ciation in value must be detcrmint-d,
a.e .. as l>f the tunc of the cnnHlll'fll'c·
mcnt of the proceeding. Lewis & Ciark
Count:-• \', Nett. 263 P. 418 (Mont.
In28).
Gcmt.•ral enhancement of land ntlut•s
is not :1 proper d(•mt'nt uf lwn~fit .·-
The gtmeral enhancenwnt uf \'alues m
land 'in the \'icinity heraust>. of tht'
construction of a road is not a prupt!r
clemC'nt of hcrwfit to he allowed Gal·
latin Valley Elec. R~·. v. Nciblc, 186
P. 689 (Mont. 1919).
! t may be stated as a g-eneral ru It•
that g-t.•neral and nC'i~;hhorhuod bent•
fits resulting to tht' owner in r:omnwn
with other·~ muy not lw :St>t off ag-~:dnst
the rlamag£•s tl.l the owner Gnllatll'
Valle:-· Elec. R~·. v. Neible. lSf'i P. 689
c l\!ont. 191!)).
Tht• ht•nV?fits whkh may ht• deductt'(1
musr b<.· spt'cial or lue"al. or such as
result dir~ctly and peculiarly to the
particular truC't of whkh u p~u·t r:;
t!•!<en Gallatin Vallt•y Elec. Ry. v
~eihle, 186 P. 689 (Mont. 1919).
Th~ mt•asur(' of damages in a pro·
('eedin~ fm th<• t·ondc.•mnatinn of land
for f1uhlic highway is the fatr ma{ket
\':du~ of tht' land ~oul!ht tu be Cf,lll
dcmnl'd with the depn•C'intwn of such
\'alue of the land frnm which the stnn
is to he taken, le~~ nlhm·al>lc dctlth'
lions fur benefit:-: pro\'CO '':hich \"ahh'~
are to he dct(•t·minPd as of the dati.'
of the t'\llll!lWtH'CtHcr.t of the proceed·
ing. L<>·wis & Clark County v. ~ctt.
2li!3 P. -n~ (Mont. 1928).
lndl'flend(•nt parC"el.s.--WhL•!l p:u·t~
of tht> same es~nhlishment nFc scpa
ratt•o by intc.r·vemnl.! private land::o
they art' 1-:'Cnerally consides·\!d as 111
dt•pcnci<'nt p:tl'<'<'ls :)t:tte ,. Bnul:':hnw
Land & Livestoc·k Co., 4:l P.2d <li·l
(Mont. 1935). ·
.'t--m. Jur. n•fcrcncc.-18 Arn • .fur ..
Emitwnt Dnmmn. ~ ~:n Pt ~wq.
212
)
Sec. 09 .. 5;).320. Right. to jury trial as to damages and value of
property. An interested party may appeal to the master's award of
damages and his valuation of the property. in which case there
~hnll be a trial by jury on the question of the amount of damages
and the value of the property, unless the jury is waived by the
consent of all parties to the appeal. (§ 13.09 ch 101 SLA 1962)
('russ refcrence.-Sec Civ. R. 72.
The proceedings after the master's
report are an appeal in name only.
[nglima v. Alaska State Housing Au-
thority, Sup. Ct. Op. No. 594 (File
No. 1050). 462 P.2d 1002 (1970).
And the right to a jury trial \"Csts
by operation of law in all parties to
the appeal. lnglima v. Alaska State
Housing Authority, Sup. Ct. Op. No.
f>9-t ( File No. 1050 >. 4 62 P .2d 1002
l 1!170).
The Alaska statute ~rrants a jllry
trial to any party and without the
necessity oi any action or demand by
the passive party to the proceeding
om·e the appeal has been taken by any
party. Ing-lima .., .• Alaska State Hous-
inr.r Authority, Sup. Ct. Op. No. 594
(File No. 1050). 4fi2 P.2d 1002 (1970).
Hence. th~ owner aJ!ainst whom ap-
peal i~ taken is entitled to look !or-
ward to a jur~· trial as a matter of
riJrht. e\•en thou~h ht> ma~· he the pas-
sh·e part~·. In1rlima v. Alaska State
Housing-Authority, Sup; Ct. Op. No.
fi!l4 (File No. 1050), 462 P .2d 1002
(19i0).
And he-must prepare for that type
of trial. -Once an appeal is taken
from a master's report the opponent
is placed in the position of any other
part)-· to a contested civil action. He
may he called upon to make discoveryf
~,.•ngagc in motion practice, and pre-
}lal'e for triul. He must plan for the
presentation of evidence. In whatever
mar.ncr the burden of proof may be
distributed in a condemnation case,
the owner hears at least some burden
if he is to hope for success. For \Vhat
t;.•pe of trial should he be expected to
prepare? According to the statute, it
is a trial by jury. lnglima v. Alaska
State Housing Authority, Sup. Ct. Op.
No. lFile No. 1050), 462 P.2d 100Z
( 1970).
(n l'minenl domain proceeding~ 1 ht•
right to np\'H•al i~ purt!ly stat utiH')
and may he ~ranteci to or withhclci
from. eith(•r narty or hnt.h at tht> d1~
··rcti0n of tht> legislnture, if no cun
stitutiomLI pruvtsion is thereby in-
fringed. Great N. Ry. v. Fiske, 1GO P.
-14 <Mont. 1917}, construing the Mon-
tana statute.
Natur~ of proceeding depends up·
on ~tatutory pro,•isiuns.-When the
assessment ot damages i!!l submitted
to a jury after a prior assessment t>y
commissiuners. the nature of the pro·
c-ecrlintts depends upon statutory pru.
visions. State v. Anderson, 1:3 P.2d
288 (Mont. 1932), construin~ the
Montana statute.
Case is tried de no\·o as to all ele-
ment!> of damages.-This section im-
plies that not only is the citse to be
tried de novo hefore the ju1·y, but it
is tt·ied de novo as to all the element::
wh1ch go to make up the damag•!S
to which the owner may be entitled
hy rca!'on of the appropriation of his
p_roperty. Great N. Ry. v. Fiske, 169
P. 44 (l\Iont. 19171, construing the
Montana statute.
Property owner. although named
. a::~ defendant. has the burden of
pr.oof to establish the ..-alue of his
property. State ...... Atkins, 1 Alas. L.J.
:-\o. 5, p. 6 (~"lay, Hl63). ·
And therefore he has the right to
open and close· the nrgument to the
jury. State \'. Atkins, 1 Alas. L .. J.
:\o. 5, p. 6 (l\Iuy, 1\)63).
(f no appeal taken original awarci
remains as just compcm;ation.-Al·
though there be a right of appeal, to
r'esubmit the que~tinn of damage. that
appeal may never be pt·oset>uted 'o
~tff't>t, in which cYent the onginal
award would r·emain as the just com
pen:-;anon <~:>t·\···taJncd "no dcpo!i:itc<i
in ::;uch t:nl'c. St;tte ('~ rc<. \'oluntecr
:\Iininv: Cu. \', :'-I~:HattoJ:. ~S P. 711
(~i:nnt. lR\l-t l, \'nnl't.nting-t.he :Oinntann
statute.
Rc.•,·ie'~ or jury lindingft.--ln eml·
nen\ domain prot·t!edings. the iul'y
finciing-~ will ~enernlly not he di3·
turbed on appe~'ll unless they are so
ob .. ·wusly and palp:1hl~· 1111t of propor·
tion to the injury dom• as to be in
l!:O:C\·~~ 11f iu~\ Cl)lllpt'n~ati•1n State ,.
213
Peterson, 328 P.2d 617 (Mor:t. 1958),
construing the Montana statute.
Quoted in State v. 7.536 Acres, Sup.
Ct. Op. No. 434 (File No. 796), 431
P.2d 897 ( 1967); 6,656 Sq. Ft., more
or less, Collart v. State, Sup. Ct. Op.
No. 565 (File No. 981), 456 P.2d 480
(1969).
Cited in Tallman v, State, Sup. Ct.
Op. No. 862 (l'~ilc No. 1612), 506 P.2d
67!1 ( 1973).
Am. Jur. refcrence.-18 Am. Jur.,
Eminent Domain, §§ 337, 338.
Sec. 09.55.330. Compensation and damages. For the purpose of
assessing compensation and damages, the right to them accrues at
the date of issuance of the summons, and its actual value at that
date is the measure of compemmtion of the property to be actually
taken, and the basis of damages to property !lot actually taken but
injuriom~ly affected in the cases where the damages are allowed.
If an order is made lett:ng the plaintiff into possession, as provided
m § 380 of this chapter, the compensation and damages awarded
shall draw lawful interest from the date of the order. No improve-
ments put upon the property after the date of the service of sum-
mons shall be included in the a~sessment of compensation or dam-
ages. (~ l3.10 ch 101 SLA 1962)
Cross reference.-Sec Civ. R. 'i2.
Editor't nute.-All note~ ft•om :\l .. n
l.ann de<. i:;;ions appearing under thtl'
section a1 e constructions of the :\I1J11
tana statute from which thil' ~cctlwl
was derived
.Tht• .. actual \'alue·· is the mark,·t
value. the price that would in c:tll
probability result from fair ne~utta
tion. where the seller is wil!inl! to sell
and the buyer desires t.o buy :::itatP
v. Boblitt, 2R8 P. 181 (Mont. 1930):
State v. Lee, 6:l P.2d 135 (~!ant.
1936).
Oeterminah 1n uf market \•a.Jue. -·
To arrive at the market l.'alue tt ~~
always pruper to introducE:> e\'tdctwl·
as to the uses to whieh the land mar
be put. as w(!!l as the uses t(J whtch
it ha:= t.Jccn put. for a witnes~ to d ...
tail it~ aciaptahility for a partll·u"l:.r
usc, and then to state tt:: m:tf'Kr\
value. State \'. Peterson. :~2S P .2d Gl7
CMont. 1!!58).
To arrive at the nu~t·ket value. cv1
dence may be mtt·uduced n~ lt1 ·hl•
\':lrlOU~ USe!: to which the (lrnpt•t't~· I~
adapt~d. even l hou~h tt lw:-ncv~r
l)een put to such usc tn fact In tlq;~
connecttun the loc.:;Ltwn of thl' land
thP. chanL<'ter of the net~hhurhw·d
and all thinJ!S sut·t·uundmg the prou
ert.~· m:~y he shown a::: all l.\re nWttllt''"
which a nu rc hasct wou lei I.'On~ult• 1 "'
;~,ttemptwg to ascertatn the mnrket
valul•. Slate v. Peter~on, :~2R P.2d 617
1 :\·Tont. 19fi8).
Hu rdt>n 111 proof.-The burden o!
prooi a.s to value IS upon thE:' owners
of the property Alaskn Statf' Ho~,;s.
mg Authonty v Vincent, Sup. Ct.
Op No 261 <File No. -l58}. 3tl6 P.2d
s:n < 1964 >
Use shuu ld be considered in arn,··
tn~ at mark:ct ,·nlul".--The use should
he l'onstdcred tn ·ll·rtvtng at the ultl·
mate mquiry. the market value itself.
State v. Peterson, 328 P.2d 617
(Mont. Hl58).
But thl' u~(' ts not thf' marl~('(
;,·nluc. State v. Peterson, 328 P.2d 617
1:\lont. 19:58).
Ownt-t ~~ t:ntit led to m:1rket \'alu,.
ha~t:d 1111 ct\'<ulahlllty fur mu:-;r nllua•
hlc us(>.-Th<' uwner has the rtght w
ubtatn the market value of the land.
IJ<\Sed t1 pun ItS a \'::til~thility f OT ~he
ITIII~t '-'alunhll• puql~rS<.> for whtch it
can IJe us<'d, whethe1 so used or uot
State v. Boblitt, 288 P. 181 (Mont.
lfl:30).
But to h~· :1\'idlahlt• for a purpu~t>
lllt.•<&n~ C'apahlt• of lwing u~t·d for th:.11
purpo:-;<!, State v. Hohlitt, 288 P. 181
1 ~Tont. HJ30).
And It must be marketabl(• for that
rutrpost:t at lh(• datt' nf -.ummons. -
As the market value at the date of
th<.• summons cont.n1ls, the land rnu::t
ht> shown to h;we heen mat·kctabll' ..1t
214
)
that time for the ·purpose statt!d.
State v. Hoblitt, 288 P. 181 (Mont.
1930).
Plaintitr may not use value of
premises at time of trial when ·action
nut tried as eminent dnmain procced-
inJ,!'.-In an action for injury to gold
mining claims by discharging debris
thereon, where the cost of restora-
tion would exceed the value of the
property, the llH!a:nu·e of damages
wus the value of the daims at the
tim<! of the injury, and plaintitT was
not entitled to treat the suit as a
quasi eminent domain proceeding and
•·eeover the value of the claims as of
the time of the trial, thus giving him-
~elf the aJvantagc of an increase in
the price of gold, where the suit was
tril•d and determined on the theorv
that it was an action in trcspas~,
not one involving the power of emi-
nent domain. the. pleadini!'S framed
no issue of appropriation for a pub-
ik use and the jud~ment did not pur-
port to \"est in the defendant any
title or ril!'ht of po~session. Erceg v.
Fail'hanks Exploration Co., 0 Alaska
. 264, !15 F.2d 850 ( Oth Cir. 1938}, cert.
denied, !) Alaska 399, 305 U.S. 615,
:>9 S. Ct. 74 1 83 L. Ed. 39~ ( 1938).
Use must be such as would pruba·
bly affect n purchaser.-The showutg
must ue that the U!?e is one to whrch
thl' land may reasonably be applt~cJ
such as would pn1bably atfect a pur.
chnser. State v. Hoblitt, 288 P. 181
( ~Iont. 1930).
'"::;pl·culativc-use::;, remote and con·
jecturaJ possibilities, arc not to he
t:tkt-n into ('unsider:l!ion, as the land
must., at the date of the summ<Jn:-~.
have been "available" for the mo•·e
\"l\lunblc u~e shown. Stutc , .. Hoblitt,
~~~ P. 181 (Mont. 1930}.
Showing of mo:;t valuable use 1S
mert'l) lo li:oc actunl hight•!'it markt•!
1'alul•.-\Vhlle the owner is ~nt1t!ed ro
shuw the most valunhlc use for wh1r11
the land ts available. th1~ i~ mcrelv
for the pUI'JWSe of fbonl.! the nctu:;t
ht,:rhcst mal'kl't value •~1 tht· time.·
~pN·ifi<>d. ~tntc \'. Hoblitt. 2SR P. 181
t~!nnl. 19!i01.
And dtSl'U:->:'\ion of u:-;es to 1\'hil.-h thr
land is nllt tht•n put is hut sales talk.
persuasive onl) '" sc1 far as 1t wntllci
con,.·ince u pr·tt:;HH·<·th·e pur-rha~e• thH'
the prrct' a"kl•'i ··,~ r<>nsonnhl(• unOl't
all nf tht• t'll"f.'Umstnnnt:< $lwwn St:111
\'. Hohlitt, ~B~ P. 181 t ~fnlit. H1:10).
With th.-jury st.anding in th~ pol'li·
tion of the purchaser. State v. Hoblitt.
288 P. 181 (Mont. 1930).
Thrs Sl!('tion is delinit~ and n•rtai!•
as tu tlw tim<-'vh~n C"um JU!nRal inn and ·
damaJtCS accrue. Montana R.R. v.
1-'reeser, 74 P. 407 (Mont. 1903).
And as to the ri~ht to dama~t-~ to
portion not sought to ht' t·curdcmned
-This scc:-tion is cert.ain in it$ terms
as ro the right of the owner to re-
cover damages which wi11 accrue' t1•
that portion of the larger tract O(tl
sought to he condemned. by reasun of
the s eva ran c e. Montana R.R. v.
r'reeser, 74 P. 407 (Mont. 1903).
But elt-ments to b~ considered ar~
not enumt-ratl!d -Aside (rum th~
value of the land actually taken. the
statute does not enumerate just whHt
elements may be taken into ,c·cuunt
1n tixinR damages to the remaining
portinn or the tract. nor what the
,.uJe $hall be guverninl! the admrss•·
bility of evidence: Montana R.R. •;.
Ft·eeser, 74 P. 407 (~-Iont. 1903).
Owner t'ntitled lo actual \"3 lue of
part taken and for injury to rematn·
inJ! purtinn.-The owner is ~ntitl•~d
in all cases to have as une item :1t
damages the actual value of the ~>ar ~
taken. and where the contemplat~d
improvements, pruperly constructed.
cared for. and operated. injure the r~.-.
maming pur·tion of the tract. he ·~
entitled to recover for that unle!'s
. the benefit~ derived enual or excecrl
the injury. :.Hontana R.R. v. Freeser.
74 P. 407 (Mont. 1903).
Ordinarrly d a m a f.! e s may be
awarded only [or mjury dune to the
P<lrtwular lot or tract uf land from
whrc:h thP rig-ht uf wuy strtp 1s taken.
and the ab{n'e rule rs applied rn a!'l·
~·ertarning the award tn he made h_v
a cieter·mination of the-value 11f th ..
acrca~e taken and the depreciation rn
\'alue of thE:-remainder of the partlt'·
ul:tr tract. reg-nrrlless of what oth~r
lunds the owner may possess, hut
even whcn:1 twn tracts are separateci
by a highway or water course. or by
a railway if they are used juint.ly by
the O\'-'ner in n sin{!le enter·prise-anti
the whole plant is depreciated rn value
by the proposed improvement. the
d1rt'rt damaj!'es suffered may be com-
pensated. State , •. Hoblitt, 288 P. 181
( ~1ont. 1930).
:\nnratsnl of damaJ,!eS prior to C'lln·
215
..
: i
..
. i ..
' i
I. .,,
Cl
struc.-tion nf imprnvem~nls should a~
sume proper construction. -When
damages are appraised prior to the
construction of the Improvements fen
which the land is c-ondemned. the es
timate should be made nn the assurnp·
LJUn that th~ irnpruvement!:! will bt>
properly constructed: unci. if they an•
constructed pending the condemm~·
tion procel•dings, the rule under thi~
sectton should be the same Montana
R.R. v. Freeser. 74 P. 407 (Mont.
HJ03}.
EfTeC'f nf pruperly {"nnstruded im·
pru,·-.·mcnls shuuld c-untrul appraisal
-Tht> actual etf<!ct of the properly
cun)oitr·ut.·ted Improvements in tht>
n·uuntcr pruposecf by pluintltf as rn
tht· lar,;rer pan·cl shnulcf control thl•
appraisal. ~ontana R.R. v. Freeser,
74 P. 407 (Mont. 190~).
·\nd nn additinnnl damage 1s -tl
lowed for tmpruperly cunst rue-ted im·
pro\'t.'mt"nt~ -{f the unprnvement~
are tmpruperly or ne~lig-ently con·
structt•cl nC\ additional damai!E' should
be given for this reason. Montana
R.R. v. Freeser, 74 P. 407 (Mont.
1903).
lntert>~t is allowed IJ~ thi~ st-ctwn
f\~ .t'nmpf'Ofl:ation ror thf' use and 0('•
cu1mtion of the premises und"!r th~
order allowmg the plamtttf to take•
pu~.:Wl:lsiun H eh•na Puwer Transn11s
sion Co. v. Spratt, 106 P. 5 (Mont..
l!HO).
And allowanC't> of interest is not a
jury muttcr.-!ntcrest IE allowed lly
tht~ :;ectwn and Wlt h :>uch alluwanC'~
tht• jury cuuld not pruperl;v hH'-t: an_,
thing whatt>Vl!r to do Helena Puw•·•
Transmission Co. v. Spnl.t.t, 106 P. fi
(Mont. l!HO).
It •~ m«.'rcly a matt t>r ft~r 1 ht• court
Helena Power Transmissiorr Co. v.
Spratt, lOG P. 5 (Mont. 1910).
'I rnpru'''•rnt•nts'" upun nrnJwrty art•
a pari I ht.'rt>uf f111 thl!• Sl't'l.lun ~x
:•lurh•:-rmpr•·V~nwnt:: put upuu th.-
"''"IH:•r·t;v ::;uh~Cl!tll'nl ((I thE> riHl~ :,f
st•J"\'H"t' of tht-:"lllll nwn~ Stille \'
Peterson. 328 P.2d 617 (Mont. 1D58).
Tt•sttmon) as to tht~ arnuunts tn
\"t.'l'tl'd in l:tnds and imprn''t.>mt"r:l~
wuuld ht> mrnmpt•tt.•nl. f()J it 1~ \'alut-
ol all such at the tllll<' summon~ ll-
~l'r '-'t'd that cnunt~ Stnte v Peter~.~~·
~28 P.2d 6li (Mont. 1958).
Am. Jur. n•fcrt-nce.-18 Am. Jur .•
Eminent Domain, § 128 et seq.
Sec. 09.55.340. Defective title. If the title attempted to be ac-
quired is found to be defecti\'e from any cause. the plaintiff may
again institut.e proceedings to acquire the ~arne as pro\ridecl in ~§
240-460 of this chapter. (§ 13.11 ch 101 SLA 1962)
Cros!" rE'ference.-See Civ. R. 72.
Sec. 09.55.350. Time for pa;.·ing compensation or damages and
bond to build railroad fences and cattle guards. The plaintiff shall.
within 30 clay:; after final judgment. pay the ~um of money as-
~e~sect. If the usc is fot· railroad purposes, the plaintiff may, at the
time of or before the payment, elect to build the fences and cat-
tle guard~. If he ~o elects, he ;;hall execute to the defendant a bond,
witi1 one or more sureties to be appro,·ed b~~ the court, in double
the <1:-:~e~sed eo~t of the ~arne to build ~ueh iences and cattle guards
\\'ithin eight months from the time the railroad is built on the
land takE"n. If the bonct is gh·en. the plaintiff need not pay the cost
of the fences and cattle guard;-;, In an action on the bond, the plRin-
tiff ma~· recover reasonable attorne~· fees. ( § 13.12 ch 101 SL.-\
19G:2) .
CrnsR rcfcrcnce.-See Ch·. R. 72.
Sec. 09.55.360. Payment or deposit and execution. Payment may
be made to the defendants entitled to payment, or the money may
be deposited in court for the defendant~ and be ctistributed to
21G
tho~e entitled to it. If the money is t~ot so paid or deposited, the
defendants may have execution as in civil cases. !f the money
cannot be obtained on execution, the court, upon a showing to that
effect, ~hall set aside and annul the entire proceedings and re-
store possession of the property to the defe~dants if possession has
been taken by the plaintiff. ( § 13.18 ch 101 SLA 1962)
Crnsl'i refer~nce.-Sec Civ. R. 72.
Tht> hulder uf leotr:ll titll• w !lwei
tnkt•n i~ prima facie entieled to com·
ut•mmtion un~cr thi~ section F'urht~
v. Cannun. 90 P. 161 {Mont. 1907).
construing the Montana statute.
Am. Jur. rcfcrence.-18 Am. Jur ..
Eminent Domain, §§ 304 to 306.
Sec. 09.55.370. Final order of condemnation. \Vhen payments
have been made and. the bond given, if the plaintiff elects to give
one as required by § 350 of this chapter, the court shall make a
final order of condemnation, which shall desc:ribe the property con-
demned and the purposes of the condemnation. A copy of the or-
del· Rhall be filed in the office of the recording district whete the
land is located, at which time the property described in the order
vests in th~ plaintiff for the purposes specified in the order. ( ~
13.14 ch 101 SLA 1962)
\ross refcrence.-Sec Civ. R. 72.
Final order of condemnatiun may
noC ("UOStitutionaiJy precede pa~·ml'nl
uf award.-The final order of con·
demnation follows the payment of th<·
award and could not he entered i11
aOVUflt"(.' Without infr·ing"lnj:t the CIHI•
stilutional mandate that private prOI>·
c1·ty shall nut hc taken or dama~cd
for public use without just compcns.i·
tlon ha•;ing been first made to, or
paid into cou1·t fnr, the owner Great
~. Ry. v. Benjamin, 149 P. 968
tMortt. UH5i. construin~r the . .Mon-
tana statute.
:\ nt. J nl"'. rcfcrcnce.-18 Am .. J ur.,
Enin<!r.t Domain, § :364 ct seq.
Sec. 09.55.380. Order authorizing p·laintifi to continue in or take
possession. Upon application of the plaintiff at any time after the
Jury's verdict has been returned or the master's report has been
fil@d in the court, the court may make an order that, upon payment
into court of the amount of damages assessed in.the report or
by the jury, the plaintiff, if already in possession of the prop-
erty sought to be condemned, may continue in possession and, if
not in possession, the court may authorize the plaintiff to take
possession of the property and us~ and possess it until the final
conclusion of the proceedings, and that all actions and proceedings
against the plaintiff on that account be stayed until that time. How-
ever, where an appeal is taken by the defendant. the court may al-
so require the plaintiff to give a bond or undrrtaking with sufficient
sureties before continuing or taking possession. The bond or un-
dertaking shall be approved by the court and shall be in the sum
the court may direct, and conditioned to pay defendant any ad-
ditional damages and costs given by the judgment over and above
the amount assessed, and the damages which defendant sustains
if the property is not taken for public uses. For the purposes of
this section the amount assessed as rlamage~ in the report or by
217
...
~:: .
l::
the jury is considered as just compensation for the property ap-
propriated until reassessed or changed in further proceedings.
However, the plaintiff, by payment into court of the amount as-
sessed or by giving security as above provided, is not precluded
from an appeal, but may appeal in the manner a:1d with the effect
as if no money had been deposited or security given. If the plain-
tiff deposits the amount of the assessment and continues in pos-
session or takes pos>ession of the property and there is no dispute
as to the ownership of the property, the defendant may at any
time demand and receive from the court the money deposited, and
the demand or receipt does not bar or preclude him from his right
of appeal. However, if the amount of the a~sess:nent is reduced on
appeal by either party, the defendant who has received the amount
of the assessment deposited is liable to the plaintiff for the differ-
ence betv .. -een the amount received by him and tlre amount finally
assessed with legal interest from the time the defendant received
the money deposited, and it may be recovered by action. ( § 13.15
ch 101 SLA 1962; am§ 3 ch 138 SLA 1968)
Cross reference.-See Civ. R. 72.
Editur's note.-All notes from i\1"''
tana decisiOn~ appearin~ under thi~
section are cun~trut:tions ()f the Mou·
tana statute ft·om whic-h this sectiu11
was derived.
Legislati\'e committee report.-For
report on ch. 138, SLA 1968 (HCSSB
215 am), seE:' 1968 House Journal, p.
fi28.
Constitutiona!ity.-See State ex rei.
Volunteer Mining Co. v. McHatton, 38
P. 711 ( ;\1ont. 18U-1): State v. Brad·
~i1aw Land & Livestock Co .. ·t3 P.2d
674 (Mont. 1935).
The order for puss~~sion IS n<''
final It as temporaf'y, and tht• whult-
subject-nwtter. together w1th t,hr•
t.hmg suug-ht to be condemned. ~~
within the JUrisdiction of thE' c·oun.
and t.hercfure the cakin~ of th(• pr ''l'
erty. 1r the ultimate divt•stit\lrP •)!
tht• o twr theteof ha~ nor het>tl con
o;ummated. but only temporar) po.:
se5sion given. State ex rel. Volunteer
?\IininJ:r· ·co. v. ~!cHatton, 38 P. 711
D!ont. 1894 L
If no appeal is taken nrig-inal awarn
rt-mninJO as jul't cnmp,·nsatiim a~H't•r
lainl•d and dt-pul'it(•d.-A lth(lugh then•
h(' n ng-ht of appeal w n!suhmn the.•
questwn of damaJ,!'e. that appeal !llHY
nc''t'l be prosc1·u~cd to cffe<"t. in whwh
event thc original dWard would r·p
rna1n a:> the just comper.~ation WH'ct
tnmcrl 'lnd dt>pu~itcrl tn such ,'al-le
State ex rel. Volunteer ,:\lining-Co. v.
~fcHatton. :~s P. 'ill (Mont. 1894 ).
Deposit of damagc!'l in court au-
thurizcs ordt'r for p o s s e s s i o n.-
\Vhere the amount awarded as dam-
ages was on deposit in the court, and
~till subjcl't to be dtawn down by
defendant. this, in itself, ePtitled
plaintiffs to an order for possession
01' continued possesl;ion "until the
final conclusion of the proceedings."
Alaskn Gold Reco,·er;.-Co ..... i\orthern
~Iining-& Trading Co .. 7 Alaska 655
( 19271, rev'd vn other g-rounds, 25
F'.2d 106 Wth Cir. 1~28).
Awarcl uf ila!"tN IS c;UffiC"it-nt dt>·
posit tu ans\\l(,'f for rempur::tr) po~·
st>~l"wn.-An a ward, c:tmSJdet·t>d 1 n thf'
; u d l:! m en t uf thE' \'IHiH!It:-;swncn:
I fll<t~lerl t1• he JU~t ••nmpt!n~atwn m
lieu nf c•omplE:'tt' deprtvation or nf _
contnwcd u~e of prope•·ty condemnt>d.
llltl!'t he sulli<·tc•nt dept,:>it to answt•r
fnr th" tcmp•ll'ar·y pos~t'!'!'lon j.!r:lnted
hy thf' c:onr·t nn depm;it uf the first
award. State ex rel. \·olunteer Min-
in~ Co. \". ;vrcHatton. ~B P. 711
1;\Iont. 1R!l4).
PrnC'cdun· 1tpon JOC'rcast> of award
throuc-h trial on appeal [f thl'
awa,.d should he 111cn•asl'O throul!h
the trial on appeal, there will be no
final iud~ment r:unfit·n.mg to the ~·un
dt•mnor the righ; nf way propo~cd ~o
ht> condemned until deposit or pny
mcnt •1f the additionnl amount: and
an <i<>fault 1>f "ttd1 adortwnal payment.
218
~)
)
I
th~ court having jurisdiction of the
subject-mutter and th~ pu.rtic~ would
oust the-party seekin~ to condemn
tht-pr<>pcrty from th~ tempurary pos·
.se:-t~iun whtch the court hud given,
and rnctc out to the owner adequall'
darnage Cot temporary use and 111
j~ry applymg the depusited suu•
thereto. State ex rel. Volunteer Min-
inJ! Co, v. McHatton, 38 P. 711
(Mont. 18H~).
(I dut•~ OU( oeC'e::;Kari (y f o11ow that
ileocaua~ ont> ia a treapattser he may
not invoke the power of eminent do·
main. Spru.tt v Helenn Power Trans·
mission Co., 94 P. 631 (Mont. 1908).
And ht-is nul deprived of his right
to condemn because h~ tlH.~ committed
:.a tre~pas!l or i! wrongfully in pus·
sesswn uf tht' land sought to he con.
den111ed Spratt v Helena Puwt:J
Transmission Co., 94 P. 631 (Mont.
Hl08).
Sec. 09.55.390. Acquisition of easements and additional powers
of the court to require surrender of possession to plaintiff. The
righ l to take possession under this section is in addition to any
other right to take possession provided in §§ 240-460 of this
chapter. In proceedings for the acquisition of easements for the
transmission and distribution of electric energy, communications,
water, steam, and gas, the court may, upon motion and after a
hearing, fix the time during which and the terms upon which the
parties in possession are required to surrender possession to the
plaintiff. If the court finds that urgent public necessity requires,
it may grant the plaintiff possession at any time after the action
has been commenced. Notice of the hearing shall be as provided in
the Rules uf Ci\'il Procedure, except that, where service by pub-
lication is required, notice may be given at. any time followil\g
the tl~t te of the last publication by registered mail addressed to the
defendant and to parties in possession at their last-known ad-
dresses as ;.;ho\'v·n on the latest tax roll of the political subdivision
in which the premises are located or as indicated by other evidence
which shall be ~atisfactory to the court. (§ 13.16 ch 101 SLA
1962)
Cross rcfcrcnce.-See Civ. R. 72.
Sec. 09.55..100. Deposit into court of estimated compensation
and damages. The order given under§ 390 of this chapter requiring
the parties in possession to surrender possession to the plaintiff
Rhall requit·e that the plaintiff deposit with the clerk of the court
an amollnt of money determined by the court fairly to represent
the estimated compen:1ation Hnd the estimated damages to the
defend~tnt nnd for the speedy occupation, including reasonable ee-
iocation cost~ if required. In addition the court shall include in its
orciet· a further requirement that the plaintiff execute and file with
the clerk of the court a bond, approved as to fm.-m and as to suffi-
ciency· of the sureties by the court, in an amount equal to the
amount of money required to be depositedf conditioned upon pay-
ment to the defendant of additional damages and costs found to be
rlue to f1e rlefendant in the action. No costs or attorney fees shall
219
. .,.._.., ___ ...... _.,. -·· .. -...... _.
be assessed against the defendant in an action brought under § 390
of thi~ chapter.(§ 13.17 ch 101 SLA 1962)
Cross r-efcrence.-See Civ. R. 72.
Am, Jur. reference.-18 Am. Jur.,
Eminent Domain, § 305.
Sec. 09.55.410. \Vithdrawal of funds by party in interest. The
money deposited in the court or a part of it may be withcl ra wn
by a party in interest in the manner provided in § 440 of this
chapter, and the court shall have the pov.·er to direct the payment
of delinquent taxes and special assessment!=' out of the amount de-
termined to be ju~t compensation and to rhake ot·ders \Vith re-
spect to encumheances, liens, rents, insurance, and other charg-es
as are just and equitable. ( § 13.18 ch 101 SLA 1962)
Cro!'s refcrence-.-See Giv. R. i2.
Sec. 09.55.420. Declaration of taking by state or munidpalily.
(a) Where a proceeding is instituted under §§ 240-460 of this
chapter by the state, it may file a declaration of taking with the
complaint or at any time after the filing of the complaint, but be-
fore judgment. \\!here a proceeding is instituted under §§ 240-
460 of thiR chapter by a municipality in the exercise of eminent do-
main for street or highwar, off-street automobile parking facilities,
~chool, sewer, water, telephone, electric, other utility, and slum
clearance purpose:; or use gran ted to cities of the first class, the
governing body of the municipality may exercise the power throug-h
the filing of a declaration of taking with the complaint or at any
time after the filing of the complain~, but before judgment. The
cieclaration of taking procedure may not be used with relation
to the property of rural electrification or telephone cooperatives or
nonprofit associations receiving-financial assistance from the fed-
eral goYernment under the Rural Electrification Act; provided
that no declaration of taking for off-street parking purposes may
he usect unless there has been public notice by publication in a
newspaper of general cil·cu!ation in the area for not less than once
a week fot· four consecutive weeks followed by a full and complete
public hearing held before the goYerning bod;\' of the first class
city ot· municipality.
(b) 0!otwithstnnding the provisions of (a) of this section, un-
til July 1, 1975, a home rule city of over 50,000 population may ex-
ercise the power of declaration of taking under ~ 240 (c) of this
chapter. \\'hen the home rule city exercises this power for the
United States g-ove1·nment. the ju!='t compensation paid for the prop-
erty ~hall include all relocation and other costs to the extent re-
quired by the Uniform Relocation Assistance and Real Property
Acquisition Act of 1970 (P.L. 91-646; 84 Stat. 1894). (§ 13.19 ch
101 SLA 1962: am ~ 2 ch 122 SLA 1966: am ~ 2 ch 62 SLA 1973)
f)l) ()
• I
)
.... ---·-,, ........ ., .... .-.... ~ ..... , ..... "' .. ,., .... 46
Cro~s rcfert:·"n-=e.-See Civ. R. 72-
(c)(3).
Effect of amendment.-The 1973
amendment adrled subsection (b).
l ... e~·islative committee report.-· For
report on ch. 122, SLA 1966 {HB 418
am 5), sec 1966 House J ou"rnnl, p.
·132.
AS 0~.55A20-09.5fi.HO were taken
almost word for word from 40 USC
25Sa, except for substitutions of
.. state, public utility district, or
school district" for 11 Unitcd States.u
1960 Op. Att'y Gen., No. 15.
The declaration of taking is a
!lower of eminent domain, and not
only a manner of exercising a power
otherwise conferred. More than• proM
cedurc is involved; sub!;tantive rights
are affected. Bridges v, Alaska Hous-
ing Authority, Sup. Ct. Op. 1'-:o. 1
(File No. 16), 349 P.2d 149 (1959).
P()wer i~ strictly construed. -A
grant of power of eminent domain
is to be strictly· construed against
the condemning party and in favor
of the property owner. Bridges v.
Alaska Housing Authority, Sup. Ct.
Op. No. 1 (File No, 16), 349 P.2d
149 (1950).
It is confined within definite lim-
its.-The legislature was particular
in sdecting those upon \Vhom the
power to exercise a dec·laration of
taking would be conferred and par-
ticular also in confining this author-
ity within definite limits. Bridges v.
Alaska Housing Authority, Sup. Ct.
Op. No. 1 (File No. 16), 349 P.2d 1-19
(19fi9),
And the Alaska Housing Authority
may not use a declaration of taking.
Bridges v. Alaska Housing Authority,
Sup. Ct. Op. No. 1 (File No. 16), 349
P.2d 149 (1959); Bridges v. Alaska
Housing Authority, Sup. Ct. Op. No.
8 (File No. ·16), 352 P.2d 1118 (1960).
A declaration of taking enlargef'i
the rights of the condemning au-
thoritv. and reduces those of the
landn,~·ner. Bridges v. Alaska Hous-
ing Authority, Sup. Ct. Op. No. 1
(File No. 16), 349 P.2d 149 (1959).
The condemnor may take immedi-
ate possession of the property. upon
the filing of a declaration of taking
with the complaint. Russian Orthodox
Greek Catholic Church of North
America v. Alaska State Housing Au-
thot<ity, Sup. Ct. Op. No. 809 (File
No. 1600), 498 P.2d 737 (1972).
Determination of state agency to
condemn will not be o,·erturned by
courts.-The gencrnl law is that a
determination on the part of a state
agency to condemn will not be over-
turned bv the courts in the absence
of fraucl.' bad fnith, abuse of discre-
tion, or lack of statutory authority.
1960 Op. Att'y Gen., No. 15.
In &bsence' of lack of necessity.
fraud or abuse of discrelion.-A de~
termination. to condemn by an agency
acting under power to condemn del-
egated to it by the le~islature would
not become a problem requiring ju-
dicial nction unless a lack of neces-
sity for a public use could be shown,
and if there is no fraud, bad faith,
or abuse of discretion. 1960 Op. Att'y
Gen., No. 15.
The question of the necessity of
taking-land for public use is pri-
marily a "le:,:islath·e" question rather
than a "jt1d icin I" qucsticn. 1960 Op.
Att'y Gen., N(). 15.
Sec. 09.55.430. Contents of declaration of taking. The declara-
tion of taking shall contain
(1) a statement of the authority under which the property or
an interest in it is taken;
(2) a statement of the public u~e for which the property or an
intere5t in it is taken;
(3) a description of the property sufficient .for the identification
of it;
(4) a statement of the estate ot interest in the property;
(5) a map or plat showing the location of the prope:ty;
(6) a statement of the amount of money estimated by the plain-
221
t1H to ue JU~t compensation for the property ot· the intere~t ir.
it. ( § 13.20 ch 101 SLA 1962)
Cross reference.-See Civ. R. 72-
lc){3).
Where the state ha!i adequate
knowled~e oi separntc interests,
amounts ~hould be. !=>pccificd for each.
Russian Orthodox Greek Catholic
Churt>h of North America v. Alaska
Statt• Housing Authority, Sup. Ct.
Op. t\o. 809 (Fill~ !"o. 1600), 498
P.:!d 7:~; ( HJ72).
Sec. 09.fifi.440. VeHting of title and compensation. (a) Upon the
filing of the detlaration of taking and the depoRit with the ·court of
the amount of the estimated compen:-;ation Rtated in the declaration,
title to the estate a~ specified in the declaration vests in the plain-
tiff, and that prot:crty i:-\ condemned and taken for the use of lhe
plaintiff, and the right to ju::;t compenr-ation for it vest:\ in the
per:\on~ entitled to it. The con-: :en!-iation ~hall be ascertained and
awarded in the proceeding and established by judgment. The judJ.!-
ment shall include intere~t at the rate of six per cent per year on
the amount finally :nvarded \vhic:: exceed~ the amount paid into
court undr.:r the declaration of taking. The interest runs from the
date title ve:;ts to the date. ~f payment of the judgment.
(b) Upon motion of a party in intere~t and notice to all parties,
the court may order that the mon~~· depo~ited or a part of it be paid
immediate}~· to the person or per~<ms' entitled to it for ot· on ac-
count of the ju~t compensation to be awarded in the proceedings.
If the compensation finally awarded ex~eecl:--the amount of money
rlepo:\ited, the deposit shall be <,fr~et ag-ainst the award. If the
compen5ation finally awarded is le::;!-' than the amount of money de-
posited. the court ~hall enter judgment in fa\·or of the plaintiff and
against the proper parties for t"he amonnt of the excess. ( ~ 13.21
ch 101 SL.-\ 1962)
Cross rcfcrencE.·.-~SC'c Civ. R. 72-
( e) (S}.
Ccmdemnor takes e!'ltate !"OU!!ht in
declaration of tnldn~.:.-The Alask:1
declaration of taking ~tatutes are as
effective n::; the fedeJ·al statutes in
(>ffecting-the vesting of title in the
condemnor of whatever intt•rcst in
th~ land it seeks t.n condemn. If the
statE;' ucHI<>rtnkef-to nhtain title to
real property in fee simple absolute
h,:.· the filing" of a dedumtion of tak·
ing-that h; the title whic:h It obtain~.
1\160 Op. Att'~· Gen .. ).:o. 1 ii.
Alaska Con.st., art. •· § 18, necc:;!"i·
lates thnt a property owner he com-
pcn!'\at<.•d for delays incurred bctW~!en
th1;1 ttatcs of the government's tak;~..,.
o{ property and making payment. If
an award v·crc paid immediately
upon the taking of ~he land by th<!
state no damages to the property
owner would ensure. B\lt whcrt.l. du~
to the nC!ce:.;~ity of legal pro<"cedings
to ascertain fair market value of
pro}lcrty, delays t•m•tlC. the property
ownt•r i:; entitled to an ndcquate sum
lo rt•imhur!"c him for the loss of use
of th(> monr:.•y during the period of
~uch dt-1<1)". To hold oth('rwise would
con~t.itutt• a taking of the property
witho11t ju:=-t compensation. There-
fort', it hi well l'l'tablished that th•!
OWIIt'r of prOpL rty ts entitled to in-
ten::;t from the: date of taking to the
datt• of pn)"11H'nt. Ru~shtn Orthodox
GrN'K Cntho!k Chureh of North
Amcrkn \'. Alaskn State Housing-Au-
thority. SuiJ. CL Op. ~o. SOf! f FUe
~o. tflOO). ·WS P.~t! 7:.n (1972).
Thi~ ~ccti<>n prc"·ides for intcn.·~l
1;.!' thl.! anwunl awarded which cx~et·d~
the a moun·. t)aicl into court under the
dt:claration of lakin~;. R'l.lssian Ortho·
do.x Grc~·k C<lthC'':.: Cr·1rch of North
.\mericn"' Aln~ka Stale Hot1sing-Au-
)
ti\OI"ily, Sup. Ct. Op. 1'-:o. R(ln (File
i' o. u;oo l •. ms P .2d 737 on;z >.
Interest ('un h..-:n·oidl'd only wht!re
tht• amount tHairi intn C"uurt is a\·ail-
:thl(• fur immediatt• withdrawal by the
(l\\'llt.'r or owtwrs of the scpar<"\te in-
t~·n·~t~ in tht.• land. Russhtn Orthodox
Grct.•l' Catl:olk Churc:h of North
Amerka \'. Ala:;ka State Housing Au~
thodty. Sup. Ct. Op. :--:o. SO!J (File
~o.IG00>,4USP.!.!d 7:)7 (1972).
~o intcre:-;t wht.•n• failure to with-
draw fund~ i~ altrihutahl(' to delay of
,,wm•r.-ln situations where the fail-
un• ~o withdraw funds on deposit in
tlw n.•J.!.'i!-\tt·y uf the t.·out't is nttl'ibut-
alJI~ to th~ delay of the pt·opct·ty
ownl'r, no intt.•r(.'st !'hould be allowed
on th(• pot•tion of lhf! a-wrtrd so de-
po~itt.·d. Rus$inn Orthodox Greek
Catholic Chllrt·h of ~orth America v.
Alaska Stntc Houl;':insr Authoritv
$up. Ct. Op. ~o. 809 <File :-\o. IGOO·):
1!1~ P.2d 7:37 (1972).
:\ blanket (':o;timate and deposit
run•ring ~t·n·ral parcels and not at-
tc.•ndPd by allcu·ation amon~ thl'm is
not an t•lt't'<·tivt' tt.·nder of any sum for·
any parcl•l. Rm;:-inn Orthodox Gre·~k
C<ttholic Chun:h of :\orth America v.
Ala:-ka Statt• Housing Authority,
Sup. Ct. Op. ~o. 80!1 (File :\o. !GOO),
I!'~ P.2d 7:ri c 1972).
.\JultiJtlt: party intl'r<'st in property
for which lump :-:um i~ dl•po~i:..:-d with-
llUt :-.c.·~n•J!:ttion.-When more than
orw party has an interest in property
a:·tl n lump sum is dt.'Jl(1Sit<!d without
:-:c.•::~:n•g-ation as to thl' amount esti-
mulNl to be ju .... t compensation for the
\'arious iutt•rt'sts, it is generally
impossible to rl'ceive a speedy w'.th-
drawnl of the funds. T!nder those cir-
t~um~tatu•cs the property own~rs n>!c-
l·~sarily w&ll suffer a delay in receiv-
in~ ('Oil\J)(!llSution for the value of
th<.·ir inll•rt.'~t in the prop("rty taken.
Whert.' the amount to he dcposilt.·d for
tlw propcrt~· may n•;tdil)· be sc~rc
g-ated to re11ect such interests, the
).!'O\'<.•rm1wnt i5 obligated to a lloca tc
the depo~it among the parcels takt.'n
in order to stop tht.' running-of in-
tcrt..'st. Hussian Orthodox Greek
Catholic Church of North Am!!ricH v.
Alaska State Housing Authority,
Sup. Ct. Op. No. 809 (File No. 1600),
·H.IS P.2d 7:37 (1972).
Dctlositin~ separate amgunts for
structure, furnishinJ!s, and fixtureR.
-Where the appraisal allocated sep-
arate values for the fee interest in
the land contained in two parcels as
well as for a hotel structure and its
furnishings and fixtures, it would
have l.H~cn a simple matter to deposit
a separate amount for the hotel
structure, its furnishings and fix-
tures. Since this was not done, the
property owner shou.ld not be dc-
prh·ed of interest from the time of
taking of the property until such
tim(.> as he receives payment. Russian
Orthodox Greek Catholic Church of
:-.=orth America v. Alaska State Hous-
ing Authority, Sup. Ct. Op. No. 809
(File No. 1600), 498 P.2d 737 (1!>72).
A Jl pi i~d in Stu te v. Severance, Su-
pedol' Ctllll"t, 4th Jud. Dist .. C.A. No.
70-:)27 (1972).
Cited in Ta1lnum v. Statt.•, Sup. Ct.
Op. ~o. 862 (File No. 1612.1, 50G P.2d
liiH fl ~)7;3 J.
• \ m. J ur. n•f(.>rt•tH"t', --18 An1 .. huo..
Eminent Domain. §~ 113. 305.
Sec. 0~).;)j..J50. Right of entry and possession. (a) Upon t:le fil-
ing of the de<.:lnrat ion of taJ.:jng-and the clepo~:dt of the estimated
tompen~ation. the c:ourt ma~, upon motion, fix the time during
wln<'h and t'l:e tet'm!' upon whieh the partie~ in pus::;e~sion are re-
quired :n ::.un·l·tHier pos:.;e~!'\ion to the petitioner. Howen~r. the right
l)f ent1·y . .-hall not be granted the plaintitl' until after the ntn-
ning of the time f6r tlw def~.·nclant to file an objcetion w the deda-
I'Ut!on of tnking. \\"!i~•l'1~ the pul·t~· in pos:;e~~ion \\'it'hdl'aW~ any part
of the H\\'Hrd and 1 emztin~ in pn:.;:.;c:.;;.;iont lhe l!ourt nu1~· fix a rea-
:i<,nable t•cntal I'm· the premise~ to be paid by that pnrty to the
plaintifi' dur!tlg ~uch po:;se~$ion.
Cb) The -court may clired the pnyment of delinquent taxe~ and
:->pednl tt;-;:-:r,.:.;:-:;nwtn:-: out of thP amoullt rletermined to be ju::>t com-
tlii to t)e JURt t:ompensatlOn for th(~ pt·operty 01· the interc~t tn
it. (* 13.20 ch 101 SLA 1962)
Crus~ reference.-See Civ. R. 72-
!c)(3).
Where the st:&~e has adequate
knowled~e of separate interests,
amounts should he specified for each.
Rusuinn Orthodox Greek Catholic
Church of North America v. Alnska
State Housing Authority, Sup. Ct.
Op. No. 80~) (Fil(~ No. 1600). 498
P.2d 73i (1!Ji2).
Sec. ·o9.fi5.·l40. Ve~ting of title and compensation. (a) Upon the
filing of the declaration of taking and the clepo~it with the court of
the <Jmount of the estimated compensation stated in the decla1·ation,
title to the estate aR specified in the declaration vests in the plain-
tiff, and that property is condemned and taken for the use of the
plaintiff. and the right to just compensation fot· it vesb; in the
per::;on~ entitled to it. The compensation shall be ascertained and
awarded in the proceeding and established by judgment. The judg--
ment :'hall include interest at the rate of ~ix per cent per ye~tr on
the amount finally ~nvarded which exceed~ the amount paid into
court under the declaration of taking. The intere~t tuns from the
date title vestR to the date of payment of the judgment.
(b) Upon motion of a party in interest and notice to all parties.
the court may order that the mone~· deposited or a part of it be paid
immediately to the person or per~mis· entitled to it for or on ac-
count of the ju~t compen~ation to be awarded in the proceedings.
If the compensation finally awarded exceeds the amount of money
depo~ite<l, the deposit shall be offset against the ~tward. If the
compen~ation finally awarded isle~~ than the amount of mone~· de-
posited, the cnt~rt ~nall enter judgment in fawn· of the plaintitr and
again~t the proper partie~ for the amount of the ~xcess. ( ~ 13.21
ch 101 SLA 1962)
Cross refercncc.--See Civ. R. 'i2-
(e)(3).
Condemnor takes e:o;tate sought in
declnration of takin~.-The Alaskn
dcclarntion of taking ~tatut"es are as
effecth·e a~ the federal statutes in
effcctin~ the vesting of title in the
condemnor of whatever interest in
the lnnd it seck:-to t·ondemn. lf the
~tate undC'rt<:ke:-tn obtain title to
real property in fee simple absolute
h~• the filinj.!" (If i.\ dt:<>lat"atlOll nf tak-
l!lJ.r th<1t is the title whi<:h it obtains.
HI GO Up. A tt'~· Gen., :\ o. lli.
Ala:-;ka Const., art. I, § 18, ncccs:-;i.
late~ that a property owner ht! com-
pcnsa(L'd for delays incurred between
the dates of the government's taking
of property nnd maki:1g payment. If
an award '"'ere paid immediately
upon the taking of the land by the
~Lntl! no damages to the property
o, .. ·ncr would \!nsun•. But where, ciu~
to the necessity Qf lc~al proc~·cding:::
to ascertain fait· market value of
property, delays ensue, the property
owner is entitled to an ~Hlequatc sum
to reimburse him for the lo:;s of usc
of the money during-the period of
such delay. To hold otht.•rwisc would
con::::titute a tnking of the ;JrOIWrty
without jttst compensation. Tht>rc-
fon•, it is well cstnblishctl tlwt tlv·
owner of propt•rty is t::ntitled to in-
t<.•rt·~t from the date of takinl.! to thl·
date of pnymcnt. Russian Orthodox
Greek Cntholic Chur<'h of >:orth
America v. Alnska Stntc Housing Au·
thority, Sup. Ct. Op. ~o. 809 {Fi1c-
~o. lGOO). ·HlR P.!!tl 737 (1972).
This section pro\idcs for int.:-n'st
on the a mount a warded which c~cc~·cl~
(hc amount paid into court untler th<'
dt•clnration of taking. Russian Ortho·
r:ox Greek C:.\tholic Crurch of ~orlh
America , •. Alnska Stale Ho\lsing-Au~
222
)
' ,"'
thority, Sup. Ct .. Op. Ko. 800 (File
i'o. 1600). -WS P.2d 737 (1972).
Interest C"an he nn1idc.•d only whc.•re
tin• amount paid info ("OUrt is a\·aH-
ahl'• fur immediate.• withdrawal b~· the
owrwr or owm•rs of the separate in-
tt•rP!'tR in the land. Russian Ortll<.ldox
Gn!l,'k Catholic Church of North
A tnel·ica \', Ahu;ka State Housing Au-
thority, Sup. Ct. Op. No. SOD (File
Xn. 1600), -t~R P.2d 1:n (1!)72).
:-io inlcn•:-t whc.•rc.· failure tn with-
dr:tw funrfs is nttdhutahlc to d«.''ay of
owm•r.-ln situations wherl! tha :fail-
tm.• to withdraw fun'ds on deposit in
thl' n•!!'ist -~· nf tht• cout·t is attribut-
able to the delay of the propt•:·ty
owm•r. no interest Rhould be allowed .
on tht• portion of tht• a wnrd so de-
po:-:itt·rL Ru~~ian Orthodox Greek
( 'ntholic Chun•h of ~orth America v.
A Iaska State Housing-Authority,
~t:p. Ct. Op. Xl). RO~l f File ~o. lGOO),
1ft~ P.:.!tl 7:1i (1972).
:\ blankc.•t l•stimatc and deposit
ru\ l'ring :o;en•ral part'cls and not at-
tt·ndl•d hy allu<"ation amon~ them is
not an L•tl"<,•(·tin• tt•nder of any ::;um for
<~ny parcel. Russian Orthodox Gret•k
Catholic Church of Xorth Amcdca v.
A la:-:ka Statt• Housing Authority,
Sup. Ct. Op. :\o. 80B (File ~o. lHOO),
-1!1::; P.2d r:~7 (1972).
)lultip)t,> part"· intl'rest in property
for which lump l"Um i:; depo::;ited with-
Hut !-<,'~rl•Jralion.-\Yhen more than
Qrw party has an interest in property
a:~d a lump sum i::. deposited without
~eg·n·gution as to the amount esti-
mated to be ju~t compensation for the
\"arious intl•rl'sts, it is g-enerally
impossible to receive a speedy with-
drawal of the funds. 'Lntler those cir-
t'\lm!'tanrcs the property owners ncc-
cstmrily w\ll sutfcr a delay in receiv-
ing l'OiliJll'lll'::tlion for the value of
tlwir interest in the property taken.
Whcr•• the amount to be deposited for
tht· propc~rty may rcudiiy be sc~re
).!al<•d to reflect such interests, the
g-o,·crnnwnt is oblig-ated to n.llocate
tlw deposit among the. parcels takc!n
in order t(l stop the running of in-
'ten·~i. Russian Orthodox Greek
Catholic Chun·h of North America \·.
Ahi~k:1 St<lte Housing Authority,
Sup. Ct. Op. No. 809 (File No. 1600),
.ws p .2d 7:37 ( 1972).
J)cpositinJ!" separate amo11nts for
:-;tructure. furnishinJ!s. r1nd fixtures.
-Wiwrc the aJlpraisal allocated sep-
arate \'aiucs for the !ee interest in
the lantl contained in two parcels as
well as for a hote1.structure and its
fut nil'hings and fixtures, it would
ha\·e been a simple matter to deposit
a separate amount for the hotel
::;tructure, its furnishings and fix-
tures. Sinct> this was not done, the
propct·ty ownt•r should not be dc-
pri\·ed of interest from the time of
Lakin~ of tht• property until such
tim(.> as he rc(•eives payment. Russian
Orthodox Greek Catholic Church of
~orth America v. Alaska State Hous-
ing-Authority, Sup. Ct. Op. No, 809
(Filt.• ~o. 1600). 498 P.2d 73·7 (1972).
.·\ pplif!d in State v. Se\'erancc, Su-
~~~·rior ('ourt, -lth .JuJ. Dist., C.A. No.
70-:·::.!7 ( UJ72 J.
Citc.•d in T::dlman v. State, Sup. Ct.
Op. ~o. 86!! (File '.\o. 1612}. 50G P.2d
Iii!) ( l H78 J.
,\m . .lur. rl'fl•rc•ocl', --1~ Arn .. Jut· ..
Emin~.•nt Domair. §~ 113, 305.
Sec. 09.:35..150. Hight of entry and possession. (a) Upon the fil-
ing of the c!eclaration of tul\inJ.( and the depo:;it of the estimated
(•ompen:;ntion. the court ma~·. upon motion. lix the time during
which and the term~ upon whit'h the parties in possession are re-
quired to sulTender pol-i:·H.!='sion to the petitioner. However, the right
of entry shall not be .!!I'anted the plaintitr until nfte1· the run-
ning of the time for the dPfondant in tile an nb,Jcction to ~he dec·la-
rution nf taking-. \Vhe1·e tlw part~· in po~~e~~ion wtthdraw~ ~lny part
of the award and renwin~ in possession. thl! court may nx a rea-
sonable rental for the premise~ \t.) he paid by that p:~rty to the
pla.intifr during such po~!1ession.
(b) The court may direct the payment of delinquent taxes nnd
spe\:'inl a:'sessment~ out of th·~ amount dt'tenninec{.. to be just com-
. • . ..
'l
,.
~! ..
'' !~
pen~ation, and make orders with re8pect to encumbrances, liens,
rents. insurance, and other charges a:; are just and equitable.
(c) The 1·ight to take possession and title in advance of final
judgment \vhere a declaration of taking i:; filed is in addition to any
other right:; to take possession provided in ~§ 240-460 of this
chapter. ( § 13.22 ch 101 SLA 1962)
Cross reference.-See Civ. R. 72-
(c)(3).
Section defers possession until after
time ror objection.-Possession i~
deferred pursuant to this section for
.~t least that period oi time which is
b· an ted to the dcfcndan t to file a
challenge to the declaration of taking
and for a greater period if the court
should so direct. 1960 Op. A tt'y Gen.,
No. 15 .
The court may enter an order plac-
inl-!' the JllaintiiT in possession of the
property upon the filing of thP. decln-
rntion of taking and the deposit of
the estimated compensation. Russian
Orthodox Greek Catholic Church of
North Amcl'ica v. Alaska State Hous-
ing Authority, Sup. Ct. Op. No. -809
(File No. lGOO), 498 P.2d 737 (1972).
Am. Jur. n.•ferencc.-18 Am. Jur.,
Eminent Domain, § 112 ~t seq.
Sec. 09.55.460. Effect of appeaL (a) No appeal or a bond or un-
dertaking given operates to pre\·ent or delay the vesting of title to
real property or the right to possession of it.
(b) The plaintiff m~ty not be divested of a title acquired except
where the court finds th:.1t the ·property was not taken for a pub-
lic use. In the event of t~1at finding, the court :;hall enter the jt,dg-
ment necessary to (1) compensate the pen;on:;; entitled to it fo:t the
period during which the property was in the possession of the
plaintiff, and (2) recover for the plaintifr any award paid to any
person.(§ 13.23 ch 101 SLA 1962)
Cross reference.-See Civ. R. 72-
(c)(3).
Article;). Official Bonds. Fines. and Forfeitures.
Section
470. Suits on undertakings
480. Subsequent actions on same un-
dertaking
490. Amount of judgment
fiOO. Actions for fines or fMfc•iturcF
Section
510. Amount which may be claimed
and recu\·ered
!)20. Collusive judgment not a bar to
another action
Sec. 09.55.470. Su'ts on undertakings. (a) The official under-
taking or other ~ecurity of a public oftker to the state, a borough,
city, town, or other municipal or public ct,!·poration of like char-
acter therein is considered a security to the state or to the borough.
city, town, or other municipal or public corporation, as the case
may be, and also to all pcn.;on:-; ~even1lly for the official delinqut!nc~·
against which it is intended to prodde.
(b) \Vhen a public ofllct~r. by otntial mi:;;<:onduct or neglect of
duty, forfeits his official undertaking or other security or renders
hi$ sureties liclble upon the undcrtaldng or other security, a per-
son injured b~ the mi:-;conduct ur neglect or who is by law entitled
to the benefit ,tf thl: ~eeurit~· may maintain an action thereon in
:224
.-
.,
t) ,. -
CODE OF CIVIL PROCEDURE ~ 09.55.5:30
his own name ag-ain~t the ofilcet· and his sureties to recover the
amuunt to which he may be entitled. ( § 16.01 ch 101 SLA 1962)
Am . .fur. rl!fcrcnt·c.-!)0 Am • .Jur ..
Sm·ctyship, ~§ :1.1. 28.
Sec. 09.55.4~0. Subsequent actions on same undertaking. A
judgment in favor <.,fa party for one delinquency does not preclude
the same o1· anothet· party from maintaining another action on the
:-;arne undertaldng or other security for another delinquency. (~
1 G.02 ch 101 SLA 1962} .
Sec. 09.55.-t9(}. Amount of judgment. In an action upon an official
undertaking or other security, if judgment has already been re-
covered agninst the surety therein other than by confession equal
in the aggregate to the penalty or cl part of the penalty of the un-
clertnking or othe1· secm·it? and if the recovery be established on
the trial. judgment :;hall not be given Hgainst the surety fo1· an
amount exceeding the penalty or such portion of the penalty as is
not already t·ecovered against him. ( § 16.03 ch 101 SLA 1962)
Sec. 0~}.;)5.500. Actions for Cines or forfeitures. Ffnes and fm·-
feitures may be reco\·ered by an action in the name of the state or
the o!iiccr or pen~on to whom they were g-iven by law. or in the
name of the :"tate, o!ii<:er. or person \\·ho is authorized to prosecute
for them. (~ 16.04 ch 101 SLA 1962)
Sec. 09.:)5.510 . .:\mount which may he claimed and recovered.
\\.hen an action is commenced for a penalty which by law is not to
exceed <l eel'tain amount, the action may be commenced for that
rrrnount, and. if the judg-ment is giYen for the plaintiff, it may be
for that amount c:n· ]e:;s, in the discretion of the court. in proportion
to the offen:;e. ( ~ 16.05 ch 101 SLA 19G2)
Sec. OH.55.520. CollusiYe judgmeni not a bur to anot.her action.
Reco\'ery of a jL,dgment for a penalty or forfeiture obtained by
collusion between the plaintiff ancl defendant with intent to save
the defendant wholly or partially froin the consequence contem-
plH ted b~· law in cc.t;;;es where perwlt~r ot· forfeiture is given wholl~~
or J)<\l'tly lo the person who pro:-;ecutes, doeR not bnr the recovery
of a penalt~· nr forfeiture b~' another per~on in a ;\epl:u-ate action.
< ~ 1G.Ol1 ~h 101 SL.-\ 19G2)
Article 6. Malpractice Actions.
Section
5:10. Declaration of purpose
5~0. Burden of proof
550. Jury instructions
Sec. 09.55.530. Declaration of purpose. The legislature con-
:-;iders that there is a need in Alaska to ·codify the Jaw with re~nrd
'
ANCSA Terms Defined
Every issue of ANCSA News contains certain words and phrases
that are Qf particular significance to 'implementation of the Alaska
Native Claims Settlement Act. We thought it might be helpful to .
list the legal definitions for the most common terms. The definitions
are taken from the Code of Federai'Regulations, Title 43, page 237-
238. Emphasis prqvided.
CONVEYANCE -The transfer of titl~ pursuant to the provisions
of the act whether by interim conveyario~ er patent, whichever
occurs first.
INTERIM CONVEYANCE -The conveyance granting to the
recipient legal title to unsurveyed lands, and containing all the
reservations, easements, rights-of-way; or other itnerests in land,
provided by the act or imposed on the land by: applicable law,
subject only to confirmation by boundary descriptions after approval
of the survey of the conveyed land.
PATENT 1 The original conveyance granting legal title to the
recipient t!} surveyed lands, and containing ail the reservations for
easements, rignts-of-way, or other interests in land, provided by the
act or imposed on the lahd by applicable law; or the document issued
by the Bureau of Land Management, to confirm the boundary
d~scription of the unsurveyed conveyed land.
. -. .. ~ ----..
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"I'm tired of Being ... a-Native. I just want to be a
citizen of this town again."
Subsistence
Many myths exist about the nature of societies with subsistence economies.
One, for example, is that the land is viewed by subsistence societies as
common, group property. Hanrahan and Gruenstein assert:
"Natives treat land used to sustain their subsistence
way of life as community property" (1977:120).
In fact, traditional village concepts of property r~ghts were complex
and varied from vill~ge to village and from one ethnic group to another.
As suggested by the quotation at the beginning of this essay, some
Natives traditionally held a co:r :-.pt of the people belonging to the
land.
Another misconception which seems to pervade the non-Native thinking
about Native subsistence activities is that it is not productive but
recreational: This implies that hunting and fishing are not work, that
these ar·e not economic behaviors.
Subsistence activities are permeated with economic behaviors: the
~xpenditure of effort, the allocation of laqor, the distribution of
time, the sharing of the fruits of labor. Just because these activities
happen to be hauling water, chopping wood, berry picking, hunting and
butchering, fishing, preserving and.giving, does not make them any the
less economically related. Western society has a narrow definition of
work; it is cash-producing behavior. The statement that "Natives do not
want to work" is limited to this definition. Many Natives work very
hard at subsistence activities.
What is essential for subsistence economies is the availability of ~
resources. Restrictions in access to fish and game can undermine the
entire society. Thus it comes as some surprise that limitations may be
imposed on Native Alaskans. The Federal Fiel~ Committee stated:
uThere is no dispute that the right of Alaska Natives
to go upon Federal lands for the purpose of taking
fish and game should continue." (1968:540). ·
At least in those d•ys there was no dispute.
Management
With the disappearance of the frontier and the loss of the "wide open
spaces," came the need to manage things. Among the many issues con-
fronting Alaska is the increasing complexity of managing the land,
rivers, oceans, animals, fish and people. We already may need an agency
to manage the agencies.
Inherent in the management of lands and resources regardless of ~ihi -:h
philosophy of management is being put forth, is the managemt~nt oi:· people.
203
s aSAO.m)o PUBLlC LA."'Jr>S
'"'tt:'nniniuJ! whether an applicant ha:: the
~uhj~t!ti..-e intent which i:; a llt!CC~s:try
el~1mmt uf bona firle res:denc<>. Hicklin v.
Orbeck. !-\up. Cl. Op. ~<J. 14:}5 !Filt• ~o.
:{02fJl. 5G:i P.::!d lf>!l ll~lii).
The stalt! may cunstitutiunally ~in• a
preference tu residenl!'i Hicklin v. Orlwd:.
~up. Ct. Op. ~o. 1·t:·Hi Wile ~o. :W:!i",l. iifii",
I'. ~d i fi9 (l !177).
And it is cunstitutiunally entitled tu USl'
r«!asum1ble administrative ltl!!ans to
determine who is a bona fide re~ident and
who h> not. Hicklin v. Orbeck, Su)J. Ct. Op.
~o. 143fi Wile No. :!025), ;)(j;j l'.2d J:i!J
(1H77).
"Maintaining· a place uf residenct.~··
defined.-Maint..aining a place of rf.!::;idtmce
simr.ly means being ordinarily phy!-iically
present in Alaska, havin~ a place within
Alaska where one Qrdinarily !>lays, and
having no such place anywhere C!l~e. A
construction t.:amp may meet this
requirement. Hicklin \'. Orh(~ck, Sup. Ct.
Op. ~o. 14:35 Wile No. 3025}, r,s;; P.2d 159
(197i).
Residency for voting purpnses means
dumtional residency for 3<1 days. Hicklin
\\ Orbeck, Sup. Ct. Op. ~o. i-l:~:; (File !\o.
:1025}. 565 P.::!d 15!1 (H>Ti>.
In order to determint! bona fide
residency •;el non. the 30-day requirement
is permbsible. Hic~~lin v, Orbf:ck, Sup. Ct.
Op. ~ o. 1435 {file ~u. :w25), iiti;) P .2d 15!!
(197i).
Functions of 30-d<l.f period. -:\::: under
the election laws, the ~~0-day JH!ri(lU buth
serves administrative convenience and act.c;
as an indicutor of bona fide residence and
intent to remain in Alaska. Hicklin \'.
Orheck, Sup. Ct. Op. )in, 14:~;; (File >:o.
:~02:51, 5fi;) P.:!d 159 0 !l77J.
The requirement uf paragmph <Ill D l i~
a reasonable re<tuirement for detl·nnining-
hona fide residency. Hi<:klin \'. Orheck. Sup.
Ct. Op. No. l43fi <File No. :J02fi), ;;r,5 P.2d
l :)~l (i ~177}.
Criterion uf paragraph ( 1 ){ () J defined.
--The criterion of para~.rruph ( 1 }(D) that the
worker may not clai'm residencv am·where
l!(~p durini the duratioM.I peri~d means no
claim of rclo\idencv anvwhere el!'e at the
time 11f applicntio•~ or thereafter. Hicklin , ..
Orheck. Sup. Ct. Op. :\tJ. 14:l5 lFile .So.
~l025). 565 P.2d 159 {1 ~J77).
A person receivin~ any benefit from
any other state on the basis of his
residence: in that state . -e.f.!.. voting,
unP.mploymtmt compensation, public
assistance. ''resident'" tuition rate for
unemancipated children, etc. -would not
qualify as a resident. Hicklin v. OrLeck,
Sup. Ct. Op. No. l-~35 (File No. :3025), 5();1
p .2d 159 {1977).
Once a per:mn becomes an Alaska
resident fur the purpose of this c:hupter.
he becomes an Alaska resident for all
purposes. Hicklin v. Or heck, Sup. Cl. Op.
~o. 143fi {l:•'ile No. :3025), 565 P.2d 15~J
{1977}.
The criteri~ of paragraphl-i ! 1 )(D) and
( ll( E J are part of the dcfi nitinn uf
domicile. H:cklin \', Orheck. Sup. Ct. Op.
"1 14·:>-(L''l "1 •Jo·)--(·-r oJd 1-t> !'0. •:>;) r I!! .~0. ,1 -:JJ, t> >0> ·-;>.
{1~)77).
Which is meaning of hona fide
residency for purposes of chapter. -See
Hicklin v. Orbeck, Sup. Ct. Op. ~o. 1-t:J:;
Wile No. :~025), 565 P.2d 159 Cl~l7i}.
"Permanent" does not require a promise
to st.ay in Alaska fort'ver. Thif' indicium i:-;
no more suhjective or vague than the
concept l)f domicile iLc;elf. Hicklin v.
Orbeck, Sup. Ct.. Op. ~o. 1435 Wile ~o.
:1025}. 56;) p .2d 1 fJ9 (l!)i7).
Chapter 50. Exchange of Btate Land.
~~ctiun
10 A uthorizatitm
~0. \' alu~ of I)I'O!H!rlie~ t·~l'IW.ll}.!t'd
:;tl Partu:~
40 Land $ubj<:<'t tn exehang,•
:;u. Con\'l•yauct• of mincml ri~hl:-.
liO. R~·~•:n'lllHJil~ and ~.·m·cnant:-;
70 \;al!d \!'\l~tllif,! nght:-.
'-II Prnl.thillnll a).!'tliit:-: !nu.n•
rm\sith•ralwns nnd ah1.•tmUon nf
:-;eieelion riJ!hl:--
!10 l'ourdinallll'l wnh .. , iwr ~tall'
;L)!t'llt'il"'i-.
:;ectiun
100. Finding-requ1renwnt a~
altcrantt\·e~
110. ~otice M propt1~cd exchllllJ!I!
1::!0. Puhlir ht.•m·inJ!$
1:30. Report qn prr.'pt•:-.ud ~!Xt·han)!l'
14ll. l.eg-ish1ti\'\• l'l'\'H.'W
\;)0. Exu~ution of t'\('h;,nge
! ~~r; R\·~-Hl~.ttio1;.-.
l'ill. Definil ion~
to
--:--------------------------
~ :i8.50.0 10 AI~ASKA STATUTES
t'ro:-;:: t·cf\•rcnt·\•. -;\:;, lt\ rt•S':'r\'i\t ir•n:-; tu
whi1'11 l'tlntran~ fqr· ::al~. l,·aM· ~rr !-{rant of
:-!!ltt• land an.t dt-•t•tb tu :' •. at•: land.
prnpt>rltt'~ or l!ltt·t·•·.:-;t 1:1 ':'tal.!! iun1l an•
-,ubJt>N. :-t'e A~ :1~.!1:). i:!."l.
~tatltli: authorizin:~ ~-.·:-·•·hanKt' of land
lwtwccn :'ti\H!. t:nitcd :-;tah·s Knv•:nwtcnl
and r~Kiun:ll curpurntion held nut inv;did.
-S..!t! Su1t~ v. Lcv.ris, Sup. Ct. Op. No. 1:1t:.;
tFih.• )Zn. :-:nam. ;j5H P.:!tl (i:H) Cl!l77). ·ll•(tdt·d
und,•r furuwr ;\ S :{~.!lfJ.OiiO.
. Sec. ~8.50.0HJ. Authorization. Subject to the reqmrement!:i of thi;;
chapter, the director, with the concurrence of the commissio~'te1·. is
authorized to dispose of state land or interest in land by exchanging it
for land! interest in land, or other· consideration. Exchanges shall bt: for
the purpose of consolidating state land holdings, creating iai1d
ownershiv and use patterns which will permit more effecti\'e
administration of the stat~ puhlic domain, facilitating the objecth·t>~ nf
state programs, or other public purposes. (§ 1 ch 240 SLA 1!376)
L~:~blath·c t•nmrnittt.•t:-1·epurt. -F•Jr
rt"pnrt «11\ eh. ~-HI. :'L.\ l!l71l I!TC~ HC~
<::-::--1~ l:!'.il, ~l:!t' l!J-;"r' H\•U:'t• .Juum;d. p. i-1!~2.
Sec. :3R.;)0.010. Vahie of properties exchanged. (a) The land, interest
in land, and othel' com;ideration which the state recel\·es in an exc:hange
made under thi~ chapter shall be equal to or exceed the appraised fair
market value of the land. intere:5t in land or property exchanged by the
state: however, the director may accept cash from, or pay cash to. any
other party to an exchange in order to equalize the value of the property
cr other consideration conveyed and received by the state. If the director
determine~ that the property to be exchanged is not equal in apprai~ed
fair market \·alue or if the \·alue cannot be ascertained with reasonabl(:'
certainty. the director ma~· Pnter into an exchange if he finds that the
apprai:-;ed fair market value of the property to be received, tog-ether '.t.·ith
the ,·,due of t)ther public benefits, equals or exceeds thf~ value of tlw
pt·oi.H~rly \':hieh th~:.· :-;tate will rt?linquish. An exchange fnr other than
t•qu:d a.pprai~t!d fair mark•:t \'alue is subject to legi!5latin• re,·it!w a~
J•r,wided in ~ 140 uf this chapter.
(hi .\;\ app!'ai~al required by this section i~ presumed accuratt.• and
•::..lid !\1r :~ p~'nod of ~ix r mths t'1·om the tilTH~ the appraisal is <:ompil·h~d.
AftPI" that. tinw. nr if the •lltectot· has rei.lSOn to helieVl' that Lht.• ,·ahw
()r Uw apprai~ed prPperty ha:-; cha.1ged ::>ignificantly during tho ori!!"inal
~ix-mnnth period. a reappraisal of the property is requit"ed. (~ 1 c-h :2tlll
~L:\ l!l7())
Set·. :~~.:>o.o:w. Pn.rties. (a) The director may exchange land a::
intt:n•:-:.t tn html '.•:ith a g·o\'?;rnment agency. organ~z.aLion. cnrpnrauon.
... .. ....... ,.
individual, or other person. At the beginning of discussions concerning
a proposed exchange, the director shall require proof that each party
to the negotiations is the owner of, or is legally entitled to, the property
which the party desires to exchange and proof that a person acting a.s
an agent for the party has the authority to negotiate an exchange in
behalf of his principal.
(b) The director may negotiate an exchange involving more than one
party; however, in order to ascertain whether the equal value
requirements of this chapter have been met, the director shall consider
only the land and other consideration which the st..~te would convey and
receive if the exchange were executed. (§ l ch 240 SLA 1976)
Sec. 38.50.040. Land subject to exchange. Except as otherwise
provided in this chapter, the director is authorized to convey for
purposes of exchange any state land or interest in land regardless of
the authority under which the land or interest was obtained by the state.
The conveyance of university land and school land shall be approved in
the manner prescribed in AS 38.05.030, and the conveyance of mental
health land shall be approved by a board composed of the director of
t.he division of mental health, the chairman of the Mental Health
Advisory Council, and the commissioner of revenue. (§ 1 ch 240 SLA
1976)
Sec. 38.50.050. Conveyance of mineral rights. Subject to the
requirements of this chapter, the director· is authorized to exchange
mineral rights in state land to the extent that the conveyance is
authorized. by the state constitution and applicable federal law. The
director may not exchange or receive the surface estate of land or the
mineral rights in it, one withoutth.e other, unless the separation of estate
is necessitated by a prior separation of ownership or by restrictions in
applicable law, or the director otherwise finds that the conveyance or
receipt of the surface or mineral estates, one without the other, is
necessary to achie\'e a significant public purpose. t§ 1 ch 240 SLA 1976)
Sec. 38.50.060. Reservations and covenants. The director may
include in any patent or other instrument issued under this ~hapter any
re~ervations and covenant~ relating to the land which he ~on~iders
necessary to protect or promote the public interest. Reservations and
covenants may inch.tde, but are nol limited to, those relating to acce~!:i,
environmental ptotect~on, and u~e or development right-;. The director
may recoive land which is subject to reservations and covenant~ if he
finds that the resen·ations and co,·rnants ~tre consistent with the public
interest. (§ 1 ch 240 SLA 1976)
Sec. :18.:>0.070. Valid existing rights. Conveyances made by the state
under this chapter arc subject to valid existing rights, including, but not
limited to, contract:;, permit~. leases, rights-of-way, and easement..~).
Unlc~:-; jurisdiction is wavied, the appropriate :-;tate a~ency shall continue
§ 38.50.080 " •J(.l •u· 1· ·) '::1 •>0.\.> • 1\
to administer valid existing rights as long a~ any revenues derived from
the rights are distributed as provided in the exchange agreement. (§ 1
ch 240 SLA 1976)
Sec. 38.50.080. Prohibition against future considerations and
alienation of selection rights. (a) The director may not negotiate or
enter into a land exchange agreement which requires the ideritificalion
of land, iriterest in land, or other consideration, except for the
performance of necessary survey work, at any lime after the agreement
is initially executed.
(b) The director, in implementing the provisions of this chapter, may
not alienate or agree not to exercise selection rights granted to the state
in the Alaska Statehood Act or other applicable law authorizing the state
to select land or interest in land. (§ l ch 240 SLA 1976)
Sec. 38.50.090. Coordination with other state agencies. (a) During
the negotiation of a land exchange, the director shall consult with other
departments and other divisions of the Department of Natural
Resources relative to matters which are within their jurisdiction. If land
under the jurisdiction of a state agency other than the Department of
Natural Resources may be involved in a prop.osed exchange, the director
shall afford the head of that agency an opportunity to participate in the
discussions respecting the land.
(b) The director shall be afforded an opportunity to review and
comment on any land exchange proposed by a sta.te agency othet than
the Department of Natural Resources. (§ 1 ch 240 SLA 1976)
Sec. 38.50.100. Finding requirement as to alternatives. Before
circulating notice under§ 110 of this chapter, the director shall consider
other alternatives to achieve the objectives of the proposed exchange
in an effort to determine whether the propo~t:.·tl exchange will best serve
the public interest. In making this determination, the director ~hall
consider, among other things, the advantag-es and disadvantages of
acquiring the land or interest in land for the state by means of purchase.
lease, or selection under the Alaska St.a tPhood Act, ot condemnation. In
addition, he shall consider alternative~ t(.) t!u· disposal throug-h exchang-e
of the state land or interest in land, inc:~uding. hut not limited lo, lease
or sale. (§ 1 ch 240 SLA 1076)
Sec. :18.50.110. Notice of propoticd exchang-e. {a} ~ ot mon~ than GO
days nor less than 30 days before a public hL·aring is ~cheduled undt!r
§ 120 of this chapter the director ~hall cin:ulate a uutit:e containing lhe
information specified in (b) of this sectit111. Tlw diroct{)r shall
(I) publish or post the notice as provided in AS ~~8.05.:).4;), except as
otherwise specified in this section. The rliret·tor shall pu hlish the notice
in a newspaper of general circulation in t!w ,·icinity of the !and \Vhkh
the st.:1.te will receive and in Lh0 thn:e mn:-;t Jllll'Uin.tcd ciLie~ of the sutte:
(2) mail the notice to any person who has filed ~L request for notice
of propo::;ed exchanges;
(3) mail the notice to each member of the legislature;
(4) mail t,he notice to each municipality the boundaries of which
encompass or are located within six linear miles of land involved in the
proposed exchange:
(5) circulate the notice to the Office of the Governor and to all state
departments;
(6) mail the notice to the appropriate board or other ent~ty or person
with approval authority as indicated in § 40 of this chapter and AS
38.05.030, when university land, school land, or mental health land is
involved in the proposed exchange;
(7) mail the notice t.o any corporation organized under the Alaska
Native Claims Settlement Act, which corporation owns or has selected
land located within a radius of 15 linear miles from land or property
involved in the proposed exchange; and
(8) mail the notice to any other party, including an org~'\ization of
land users, that he considers appropriate.
(b) The notice of proposed exchange shall include the following
information:
(1) a st~~t.em~nt of the propo~ed action and a legal or other appropriate
description of the tracts ar;n potential uses of land involved in the
proposed exchange;
(2) a map of sufficient scale to allow identification of each tract in
relationship to reference points which are easily identified by laymen;
(3) the name and post office address of each party to the proposed
exchange;
(4) a statement that any person asserting a claim to the property
involved or desiring to comment or to obtain further information
concerning the exchange should contact the office designated in the
notice;
(5) the date, time, and place of a public hearing which has been
scheduled in connection with the proposed exchange. (§ 1 ch 240 SLA
1~76}
Sec. 38.50.120. Public hearing:;. (a) The director may hold as many
public he~u·ings as is considet·ed appropriate. There Rhall be at least one
public hearing.
(b) A pen;on who desttes to testify at a !waring ~hall he provided an
opportunity to do ::;o, ::;ul.Jjecl w reasonable tinw limits. In addition, the
director shall hold the hearing record open for at least two weeks
following the conclusion of a hearing in order tO receive supplement.:'11
or additional statements. (S 1 eh :240 SLA 197{))
Sec, 38.:10.130. Report on propo:-icd exchange. (a) In cr.mjunction
with the public notice required hy ~ 110 of thi;; chapter. the director shall
ptcpare and di~tribute the repott n!quired hy thi~ sl'etion to the p;.u-ties
§ :38.50.140 ALASKA STATtJrES § 38.50. i.50
listed in § 120(a}(2) -{8) of this chapter and to any other party who
requests it. The report shall ~ontain, among other things, a copy of the
notice required by_§ 110 of this chapter and a discussion in a concise
format designed to facilitate public understanding of the issues of
(1) the physical characteristics of the land involved~ including the
surface and mineral resom:ces associated with the land;
(2) the appraised fair market value of each tract involved in the
exchange or, if the exchange is for other than equal appraised fair
market vclue, the nonmonetary values which are involved~
(3) the benefits and detriments which citr he expected to accrue,
including possible social, economic, and environmental impacts; and
(4) alternatives to the proposed exchange.
(b) Upon termination of the period provided for agency" and public
comment, the report and the proposed land exchange may be revised,
if appropriate, to reflect comments or other informa.t:on which has eomt;
to the director's attention. A brief summary of all comments and
information received shall be appended to the report. (§ 1 ch 240 SLA
1876)
1-:ditor's note. -Tho referE.!nce to
~ i ~O(ai(~) -(8) of lhi~ chapter in t.he
mlroductory para~raph of subseclio•~ (a.l i!'
incorrect. Tlw referenc~· :.hauld !11· to
~ ll0(al(1l -(Sl of lhu; chapter.
Sec. 38.50.140. Legislative review. Within 10 days of the convening-
of a regular legislative session, the governor shall transmit to tlw
president of the senate and the speaker of the house of representatiYe~
any proposal for a land exchange for other than equal appraised fair
market value which is scheduled to occur before the next legislative
session. If, in his v·iew, exigent circumstances seriously affecting state
interests so require, the governor may submit the proposed exchangt~
to the legislature at some other time. A finding of exigent circumstance~
shall be carefullv documented in the letter of transmittal. The din:t'tot· -. "
is authorized to conclude a proposed exchange agreement unless eitlwr
how'c of the legislatun• by simple resolution disapproves of th~
t•xclw.ng-c '.Vithin 60 legislative days of tran~mittal by the governor. :\
dc~r.iswn hy Lhe legislature to disapprove a proposed exchange shall !11·
accompanied hy a recommendation to the g;ovt'rnnr with rc~pt'~( tn
ruturt' act:.ions which thP. director should take concel·ning the cxchang:~.·.
·::. l 1'!1 240 SLA H17Gl
Set·. ~S.50.150. ~;xeculion of CXCiUlnge. If a flt•ecL ('ontrat•t u;
t!XChange, or other in~trument of ccm,·eynnce which lhe dirt:ctor t·ccLll\'•::--
to ~~ffectuatc an exchange is properly excCt.ltcd, acknow!~..dg•~'d. and
.lllLh<Wl~cd by the nppropriaw party. the directot· shall :\\'t'l'pt
;,'Uil\"• '!'t\l:·;e nt' Lith~ t(J the land n.nd other property which the ~t.atl' 1:-\ :u
rvc•.'J"~ ~l~ ccm~1dcration, n.nd he !'hall ~~~tl<.! a patenL, contra~·: qf
c:-:enang-c nr other inr.;trument of convcyanee to Llw tqlpl'OPI'lalt• i'ar· ;.
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for the property which he is then obligated to convey. Before acceptance
by the director of a deed, contract of exchange or other instrument, no
action taken by him or by any othe.: state official creates a right against
the state \vith respect to state land. (§ 1 ch 240 SLA 1976)
Sec. aS.50.160. Regulations. The commissioner may adopt
regulations under the Administrative Procedure Act (AS 44.G2)
neeessary to carry out the purposes of this chapter. (s 1 ch 240 SLA
1976)
Sec. 38.50.170. Definitions. In this chapter, un1€.)S otherwise
specified,
(1) "commissioner" mean~ the commissioner of natural resources:
(2) "di7ector'' means the director of the division of lands;
(3) "state land" means all lands including shore, tide and submerged
;~.nd or unsevered resources belonging to or acquired by the state
excluding interests in land severed or constructively severed from the
land. (§ 1 ch 240 SLA 1976)
Chapter 95. 1\fiscellaneous Provisions.
Article .
!. ).tanner IJf Co,j\·eying-Sw.te's lnt~rest in Land under It~ ,Jun:-;diction <~ :~r !J?''dlllll
~. Mana~ement Contract~ and Land Exchange~: P.L. ~)2·20;{ Curporati~·~~~ (~~ :·:~~.!I;),O.:ln
-~8.95 JSO)
:3. :;teering Cc uncii for ;\Iaska '..ands (s§ aS.95.100-:u:(,!):l.l~O)
Article 1. lVlanner of Conveying State's Interest in Larht
under Its Jurisdiction.
Sccti~~ •
10. State's in ten~~t may not be obtained by
a.dr;·erse po!Ssession or pr~scription
Sec. 38.95.01 0. State's interest may not be obtained by adverse
possession or prescription. No prescription or sta.tute of limitations
run:... against the title or interest of the state to land under the
iuri~dietion of the state. No title or interest to land under the jurisdiction
of the sta' 2 may be acq_uil'ed by adverse possession or pt·escription, or
in any other manner except by con\·eyance from the ::>tate. (§ .. ri-2-l
A CLA j 9.19; am § l ch 77 SbA 1955)
}{~\'t'ior''i 1\lltC I 1 ~~:! i. -:.;t.•Ction .jj ~::!-1
\1_'1..\ :~, :;; d1.:<dt Wlth pr('~t:nptwn u~ain::.t
mie of tltl' l. i•lt\!(! ~1.4\t!,•S: tO ll'ITllUriaJ !and!'
:wd ita:-;,t•t•rt nmitlt•d :ts: ohs:nll~li:' ~incc
statehood. Th~ l\)!l;j amendnwnl a·dd~·' t~w
alm\'l> word in~ to q 4 7 ·2·1 :\ { '1.:\ l !'
Rl•"isor'~ r.wtc ( 1973 l. --BP:~>rc l~l'i:t
this ~CCtl011 WU$ dcs:i~natt.!d .\S al;t li"dl\0.
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Article 2. Ma.nagem~nt Contracts and Land Exchanges:
P .L. 92-203 Corporations.
Scctiun
50. Contracts betwe~n dcpartnwnt nf
n:nural n..!Si.lltrce:; ami P.' •. ~}~-:W:t
corporation:-;
Sect inn
fill. [ [{(•Jwalcd J
1'0. Trappin).!' t·ahin C\•1\~tructlutl ;•crmit~
Sec. 38.95.050. Contracts between department of natural resoufccs
and P.L. 92-203 corporations. A corporation organized under Alaska
law pursuant to the federal Alaska Native Claim;:; Settlement' Act (P .L.
92-203; 85 Stat. 688; 43 U.S.C. 1601 et seq.) nu1y contract with the state
Department of Natural Resources for the management of land:
however, no sale, lease, exchange or other disposal of this land may be
n.ade without the approval of the cOt·poration owning it. T'he contract
is terminable upon reasonable notice by either part~t to it; it may covei·
all or a portion of the land of the corporation, and !'lhall provide for the
terms of management by reference to law or regulation or otherwise.
The Department of Nat ural Resources is authorized to recei\'e and
expend,· subje·ct to appropriation, funds necessary to carr-y out its
functions under this section. (§ 4 ch 70 SLA 1 9.72)
f~ditor's note. -Prior to th~ Uri:J
relocation of this chapter, thi~ l'e<'ti<.•n
appt>ared a~ AS :38.1 :l.OilO.
S~tlion l. r.:h. 70. ~L:\ l!fi::!. pt·ovide!':
"Purpo:>c. It i~ tilt! purpost• of thi~ .-\et to
implemt'nt th~ _.\Iaska :\at\\·~ n~um!:'
!'t>ttlt:>ment ;\ct tP.L. H2-~0::I: ti5 ~tat. ()!-i8 .. ;:!
t·.~.C. ltiOl e~ ~eq.l by amt'nding-~tate law
1 o rl':-<uh·t< thr•Sl' <LmhiJ.r\Htie~. conflict~ and
problem~ din·ttly or il!'pliedly C:l't•aU·<l hy
the L'llCH:tm~nt h~· Cungre!'s nf tht' Aluska
:\atin'! ( 'lanns Settlt"nHmt Act. It l$ :dso lhe
JHil·posl• of thi~ :\ct to complement thruu)!h
l'tat•~ poli(·y. in a rea~onab!~ and fair
manner. the fcdcrai policy exprt'S$t•d in th;lt
.\ct."
Lcgislntivc cnmmittl'e report. -F~·r
report c.n l!h. 70 SLA l:l7~ ICSHB -:~HI. l'~·e
Ul7~ Hnu:;e .Juumal. !J. 837.
Sec. 38.95.060. Exchange of land.
Repealed by § .J ch 240 SLA 1 ~l7H.
Crus~ rcfcrcn«.'l'. -.\:-: to \'XdHHigt' or'
.-Law land. ~t'\' .\~ ;!K:iO.utn t'l !'1'1!
Ediwr·~ note. -Tlw t·t·~·~"ail•d :-t:'l!tlllll
df:'!'l\'l•d from :: l. ·:h. 7U. ~ 1.:\ liJi:!.
LcKi:--lativc cummittcc r• ... port. -r\\t'
n.!port on ch 70. SLA 197~ ICSHB 1:~ 1 l. St-:<'
i !17:! H 1111~•· .ioumal. p ...,;.;~
Sec. :.Ht~):),O~U. Trapping cabin construction permit:;. !a) The
director of the di\'i!-;i~lli of lands :-;hall is~ue a nonu·an~fe~·able pt'rmit for
the construction of a trapping <.:abin on ~tatt.' land tn a person whu me~\t~
the following qualifications:
(1) the pet·~on must hnve aJ! < • .':·nnhli!'hl~d tra!Jline with !Jn ... nf l,f reg-ular
i.l!-'C;
(2) the person must have a trapline of sufficient length to justify the
need for cabin construction.
(b) Nothing in (a) of this section prever"ts the director from issuing
a permit to more than one qualified person for the construction and u~e
of the same trapping cabin.
(c) The director shall establish, by regulation, conditions attaching to
the permit issued under (a) and (b) of this section. These conditions shall
include, but not be limited to, the following:.
(1) permits shall be issued for a period of not more than five years,
with succeeding five-year renewal options, if continued use and
occupancy is established, and the qualifications of (a) of this section
continue to be met;
(2) a cabin shali be constructed and maintained according to
reasonable specifications established by the director; however, in no case
may a line cabin exceed 192 square feet;
(3) a permit shall specify the number of cabins allowed to be
constructed and indicate their specific geographical location; the director
may establish a maximum number of cabins per person or otherwise
limit their number because of the probability of adverse consequences;
(4) adequate provision must be made at each cabin for waste and
garbage disposal, as determined by the director;
(5) the payment of a trapping cabin permit fee of SlO.
(d) A permit issued under (a) and (b) of this section entitles its holder
to use timber in the immediate vicinity of the cabin for personal
noncommercial purposes only. No ownership rights to the land are
conveyed by the issuance of a trapping cabin permit under this section.
(e) A person who makes a false statement as to any material fact . ~
relating to a permit issued under this section is guilty of a misdemeanor.
A person who \~iolates this subsection or any of the terms and conditions
of a permit issued under this section may have his permit immediately
revoked and is subject to payment of all costs required in dismantling
his cabin structure. (§ 1 ch 115 SLA 1976)
Article 3. Steering Council for Alaska Lands.
~ectinn s~cli<m
1!10. Purpm;e and stalemenl nf policy 1:W. Cmnp<m;o;ation
i 10 ~tl:ertnf! eoundl creat.ed: oq;ani1.atto11 \40 !-=taff
t2n l little!"
Effecti\'ed.ut~ufarticlc.-Seetionli,ch. ~~Ia'.' 1-1 t:~·:
.;7, ~{ •. \ 1~Jii, mak1·~ thi~ arttclc td'fel·li\'t• !ll.ill.OilJ(tl
:corciance with A:-
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April 20, 1976
Honorable J:ay Poland
Chairmall
Senat-a R•sources ec..dt~
Alaska. State Se!'l&te
Pouch v
Juneau, A.l.aa.t.a 99811
D8a.r SeDator Pol.and:
As pEa~~ined in oarlier ccaE~D.Ce to tbe oc itue, we are vr!tinq
to C'OR'Wmicate tbe o: t uioD • • -riews respecting the pr1 DCi.pal e1emena
which should b\• incl.\dM iD any DtiW leqialatic:ID enac:ted by the Leqislature
to govern l&Dd ac:haDqetl i.Dvo~v.iaq the S~te.
The concepts dac.'N.Ued in tJU. letter w.n oocaiderai by the Oc: ·i asian
at a meetinq held on April 20, 1976. 'l'he ec..d.saion elected AOt to put
its reconwendatioo. into leqialati.,_ fona.
1. Valuation of Properti•·
The. C,...i saion bttli8"1e8 that any new State leqial&tioo ahould eap~ize
the conan•L&tion of land ..abanqe• ~ed OA tba equal fair .arket value
of the propertin to be e.xcbuqed. ~ ... _., ._ abc rflO..\WJ'Aind that in
situatioo8 wbere the pro~•• imrol'Nd are DOt equal iD appraised fair-
market value or where such ftlue c:aanot be ucert&i.Ded wit:h raa.eon&ble
c::arta.i.nty, the director be a\tthorized to anter irito an eac:clvuule if he
finds that the appraised fair lMC'ket value of the propertiaa to be
received by the State, toqet:hctr with the DCliWXlfltary value of other
public beAefits, equal.s or axceeda the Yalue of the proparti-which the
State will r•liAqaisb.
The criterion of equal fair market value ~ traditionally been included
in Federal and State excbanqa statutes, aD4 this ~ta.nda.rd wo.r.ka well
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where la.~ Yaluas caa be readily deterwin.-4 thl:cJugb appra.i8al. The
equal---~ v-Uu .ataDdud ~ dowa 1A the Aluka OODtext, bowe'ftr,
because ta. paucity of ~1• lapd .. l .. 1a .uy rural~, tha
vaat a.c:r•fi'N !Jnol.,.S.~ AD4 ~ facton o~ Yitiate the acar.JZ'&GY of
the appra..Ual -.t.hocl. In. reaopU:ion of this 'fact., CCJilqr ... recently
authorized Pedual J:nalvue•t in «xc:Mft9ea which are pre-" ae4 oa. other
than apprai..S 1,11llue. * ~U.V. that a aiail.ar ~roach, with proper
proc:Cw:al. M4 ~ aaf~, aboU.4 t. J.Dcozpar:at.d in1!o State
leqislatiaft. SWJh ·~ ahoul.d iDcl\Jde, acmq other 1:ia,tnqa,
publiQ notia. an4 heuiJa9a, leqi81.&ti'N nview, and a cu.f11lly docu-
~ted stat-eat ot the ~·!!Mletu:y value. i.n'VOlvec!. In oaz'. opinion,
pas•a~ of lAgisl&tiaD ot thia 80rt voal4 help ·couolidat•· .. ~e l.aftd
holdinCJ& aDd leal to 1110re effectJ.ye adainist:atio.D of the State public
domain. At tha ••a U.., appropriate~ saf~ aa.d the
amphasia 011 t..ha ~u. of eqaal. appra1•.S value tra4ea, .mere
possible, shaal4 iuan adeqaate pro~· of the public !A~u-ut.
2. Excbanp! c~:o~vi.Dq Mhlera1. Ripta.
'1'ba Canni••ia~ ~: ends tat u.y new ~ loqialation &\lthorae
t.~• Direcrtcr ot the !lirlaiOD of t-mda o~ ~ appxopriate oftic:i.U t~
con"'/'tty ai..n.-al riqhu ill Staa lallA~ to ~· extc'lt that 81ICh a ccm.veyancft
"' ia pendtted by the Alaska caa.Ututioll ~ applicabJ.e Federal la1t. The
Commission f\u':t:.hu' rect:W;~If4Ds1C that except. ~ ~!&1 cire\aStanc:es
dictate,. the D.b:'ec:tm: he ~luded frc.a ~ or t"aattivinq e:U;hu
the surta.o-. estattt or· t:M •i Daral riqbta thiueini cme without the other • ..
Previoua expe.z:.ience iA o~ paRa of the COUDtxy demonstrates the
adverse ~CJ, avbort •mtal, aDd social ~cea which can
resru.lt freD aepUat..in9 ...._,.hip of ~ ~ s•tate and the aiueral
riqhta loc.'1.tad thez'ein. Wb11e Section· 6 (1) ot tl-~ Alaska Stato~ Act
does precl.uda the .,tau fJxa dispo•ing' of ~al righu ~ally, a.
r1r~t ~t to the ~t Act aplicitly waive• t:h1a constraint
with rospeat to excha.D9n .l.nYolvi:iiq ~ P~ go.,erl•ment. ('Ella
waiver ia pruontly bliDq cballeDged in tM OO'.Jrt.s.) Othu Pedual
~t.atut•• pu.rS'GAftt to wbich ·tbs State baa pr:rricu•ly aelected m.ntal
heal t.h, UIU,varsity, aD4 school l.aD.ds do not COilt&in 4 prabib:.i tion
againat the d.i..t4pMal ot. ail\al:al riqhu. lll view ot this and the improved
land ItiaJlqem&nt and WM wbic:zh uu.Uy raatllta t:'CIB a. conveyance of full
fee titl.e, tha CoaDiaaion bell•ve• ~t new e:ach&nqe leqi•lation should
aut.hoX'ue the Stata to CODwey aineral right• to the extent Allthorized by
applicabltt law, and that the appropriate off1oiAJ. be required to convey
or receive tull !,.. titl• -~pt wh.u• spec~ial cd.rcurastalloea pertain.
3. L!ii•lativ. ~view •
The CawiNicm re~ that INbaequent le;qislation proYi.de an oppor-
tunity tor leqalative roviev of proposed a::abanqa.s based on other than
equal appra i sad fai.r market value. I:IowaVez..,· the eo-.isaiOil believes
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1: that affirmative approval should not b4a required. Rather, the Leqislature
shou.l.d be affcn:ded an opportunity to review a proposed exchanqe within a
reasonable period, and if the Laqillla.ture doee not act to disappro•"e the
1•, .. exch&nqe within that ~riod, the Appropriate StaLl o:fficia.l. would be
-empowered to execute it in behalf of the StAte.
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1-·,· ... · Historically, the requireaf.Jftt of &qUal fair .arket value has been included
in exchanqe statu tea aa legislative p:rotec'ticm aqainst arb! tra:ry action
and other abu.ae by tht:Nae pmMred to execute &l exchanqe. 'l'hi.s standc!~
has worked well in protectiDq the public intera•t with respect to ~1:~h.ulges
I. , involvin9 equal apprai.-4 value, and we ... D() reason to iapose the
Additional requira.ant of leqialatiY~t approval, which possessea certain
infiraities of its own. Th• situation ia different with resp~ct to
I proposed exch&nqea pr-ia~ on other than equal appraised value. Here,
· 1±are is no objectiYfi standard a.qaia.at which to te•t a proposed exchangeo
In vi~ of this, we bel.t.ve · that ex&:han.q.s for other than equal appraised
1·.. value sbculd be vieuel! &a re.au-ce allocat.ioll dec~siona conc::erninq which
_ th.a people's elected rapre..ntati'ft should bave an opportunity to express
their views. We do not thi.nk, .ttow.ver, that the •ans of expression
should be af'~iriM.tiTe leqialative approval. Experience on the l'edera.l
I ;··· level indica.tea that the review appX'oach which the Conaisaion is suggesting
. provides maple opportunity tor 1tw;ialative bodies to participate mean-
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ingfully in the dec:iaiODII!Iakinq proc:e••. At the su.a time, this means of
review helps to avoid political loqrolliDq ~ other undecirable activity.
In making the recr tendJ!ttioua diacu.s•ed in this section, w. are aware
that some per~ belie.-that the separation of powers doeb;'ine and I , other c;onstitutional col18t.rainta preclude any aort of leqialative review
· of proposed land u:chanqes. The re~earch wh.ic::h bas been conducted by
our leqal s~~f ipdicate• that there ia currently no definitive judicial
I decision or other opinion 011 this point. '!'here are casea, constitutional
provisioruJ., and other c:~idarations which can be used !Jy either aide of
, the i.ssua to support its cont.antion. Our •taff doat~ believer. however,
I t&"lAt the bettet reascmad opinion voald support leqisla.ti~ review L"l the
form which w. are ~uqqeatinq horta-;i (Beca\1,8a the critex;"ion ot equal
, ' appraised value doea provide an obj~tivta 41t&ndard aqai.n.at which to test
proposed ~qes baaed on t.h.U stardud, leqisla.tive review ot such
I exchange• would ~ppear laa• supportable .. ) Since there is no ~e.finitive
. : answer ~t the praMnt tiaa, we ~u9qest that the Leg isla t1;;~e adopt that;
review prcc~ure whi~ it. deema best f~ ;s po~icy point of view, aild II then it necessary, that d""bion can be t.eatod in the courts.
I 4. Prohibition AgainKt Exchanges Re~inq ~~~~t Identific~tion i 1 of the Consideration Involved.
! ''l1te CO<lllllisaion r~a t:'IAt any leqialation llhould specifically
J prc'libit the Director ot tl1e Division of IA!m:ds or ather ~ppropriat.c I Sta,te officiao.l fr<Jm naqotiatinq or ent&ri."'1q into any land exchanqe which
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require• the i.dentificatioo of lands or iDtsruta in l4Dd at same time
attar the u:abanqe is J.nitial.ly extiC\lted. Jftl!£ O"wwiasion furtbu' recOUI-
-a..nda that auch offic:ial.a be pr.cluded ~ &lienatinw or ~·:,~q npt
to exerc:i.M selction right• C)S'&Dt.ad iD tha Alaaka Statehood kt •
We believe that the be•t way to !D.sure ~ u•lysJ.s ot a proposed
exchange is to requ.ire ~t all landa Uti other consideration wbi.ch will
be involved thu'ein be cleuly identifiecl at. the time wheal ptlblic
notice ia circW.&ted. If aucb pro~• are not ao id9111:ified. the
public and o1:ben de•iri.Dq to &Dalyu iL proposed exc:hanqe will be compelled
to speculate on how the •eJ.ectlca pxoc~.. c:cmtained iD the proposed
aqreesnent ttill be illlpl•at.c~. In :~uch inatance~~, executory selection
and . exc:baDqe proceduru ofteD could. :be impl• rnted in a nalaber of ways,
with va.ryinq conaequancea ruult:inq frc.a 'ii'•ab •etma.::io. To &'9'0id un-
c:ert,ainty in a matter •o J...portant u the dJApo•itiCil of the State
public cSoeain, and to proyi4e ••"j nq to the public and other review
proc .. aes provicSed in propo8ed legialatioD, wa bell..e that the prohibition
reo: ended here i• D.eeeuary. For tM -reaacns, and.· in recognition
of c~rtAin constraiDta c:cmtaizwd in S.Ction 6(q) of the St.ablhood Act,
we &180 reo •"'nd that AP.PZOI*'iata State official• be prec:lud.ecS from
alicsatiDq or aq:rMiD«J not. to .-raise State .. lection riqht.c as part of
the cauidaration for an aalumqe.
5. Stat ... nt ot Basia for an. ~!DCif!"'
witt reo>+udend that the Oirec:tc;-r OZ' ~ appropriate State official be
required to prepare aDd distribute a report which object.i:'l'aly &C"alyus
a proposed exchanqe in a ~ear aDd concise toraa.t which u deaiqned to
facilitate public undust.mdinq of the .iaaoaa involV&d. Aaaonq oths;-
ti:dnga, tbe report should include tt disf'::us•iaa. ~ the mcm.&\tary Md non-
monetary values of the properti-invol:ntd, including surf~\Ce and. =i.ueral.
resource•, the benefits an4 ciet.rimentB which can be expect&d to accrue,
and poa•ible Alternativa~~. Pr"P&ration and circulation of a report of
this t:ype should promote iDfo.naed pubJ..ic d!aloqua and lead to a bettBl:
ultimata deci•ion aoncerniDg the propoaf!lld excban~.
We ha~ di.'Ullt 1:tl ·~ .. hi,a correspondence with the Pl:."incipal el.~ta which,
in t:he Qblin..ion oi tho c·~ti ••ian, sboul.d hii i.nc..l.t!dad in a.ill)~ new legislation
governiru; lan4 exal'ul.nq••· In ao doinq, ,_.. do 110t mean to mini~iza the
itt.lp.~~~tt of other n8Cft.sauy el~t.a, au.ah as provisioiW concarning
authori~t.rtion, pa.J;tU.a to an e~qe, reservations and CO"CNm&nts,
aqeno:r c;OOrtU .. na.tion, publia notictt and ~..eui.D9JI, protection of valid
existiJ:t·; .:t:-iqh:~, and 110 forth. W• b&lie~, bowtwu l\1 that than is
gen~raU ev;r..:$!~snt About how to handle ther:a .;zatter•, and so we have not
con.sid.ar~'il th.em here.
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In closinq, we. will\t to expnaa tbe CawiaaiaD • • stronq support tor
needed revision•, such u tboM which we have d.iacuaa.-1 here, in ~~tate
land excbanqe authority. 'l'he 1aDd ownership pattern in Aluka is growinq
ever more cx.ple.x •• a COIUiec;.acce of the implCIIIII8ftt&tion of the selection
provisiona of the Alaska Stataboacl Act alld the Alaak.a Native Claims
Settle.ent Act. Lands OWiled by the Federal goyerament, the State,
Native corporationa, &Del ot.bua lie ad.jaGeDt to aa.c:h other in t.rar~
which do not neceasarily follow rat.i.onAJ. boundary lines. This inter-
mixture of land own•rship often j-eopazdi&fiil prudent aanag...mt and W!e ..
To rectify this •.ituation, oertaiD refiD-.•o.t.a in axis~ authority
and new i.Dncwationa appear oecuaary.. In our opinicn, the enac:t:me.nt
into law ot the el..-ta referred to above would facilitate tlw types of
land adjuatments needed to eatablish ..,re ratic:mU pattarna of l.a.nc:i
ownership in Aluka •
Thank y0/41 for your COD8i4ua.tion of this correapondance. It v. can be
of any further assistance in the Committee'• consideration of the .atters
discus!led. here, pleue let ua lc:Dcw •
Sincerely,
Burton W.. Silcoc:k
Federal Co-Cha.irman
.JWK:go
sincerely,
Wal.ter B. Parku
state eo-chairlum
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c;c: Senator H.D. Meland, ~ta Reaou.rces Comaaittee
senator John Huber, senata Resources committee
senator John L. Radar, SQD&te Resources ec.mittee
Senator Patrick Rodney, S<:mate P..eaources CQI!!I!Ii ttee
senator John Butrori.cb, Senate Resources Cc.mittae
SenatOr Jo .. pb L. oraini, Senate :aeaources COIImi ttee
S.Dator Olucy Croft, Pre.aident, Alaalca Stato Senate
Ccwniasicnar Guy Mart.1D, Department of 'llatural Raaow:cea
Dix'ector HikD Smith, DiYiaion of I.and•
Attorney GeDeral Avxaa G:ro~~a
bee: ?J::Jy Hundorf, President, COok :rnlet Region, Inc.
E.O. curtis Bohlen, Deputy Assistmlt Secretary, Fish and Wildlife
and Parks, USDI .
Ken Brown, Legislative Counsel and Director, Office of Legislation, US:,~:
Harold B. Ga1liett, Jr., Reqistered Civil Engineer
I.onnie Hei.nner,. Resource· Associates of Alaska
David s .. Jaclcman, Attorney
NOTE: An exact duplicate of this letter was addressed to:
Honorable Nels A. k1derson, Jr.
Chairman
House Resources Committee
Alaska House of Representat~ves
Pouch V
Juneau, Alaska 99811
...
oc:: Rapreaentat.ive 'l'beod~ G. Sid tb, Howf• a..oura.• o=a-it~
~preaentativ. Fn4 E. BrCJWD, Howle ~c .. CDnntttM
a.preaentati vo Rich:u:'d I.. Bliaaon, HawN; RatiOU'C•• eo.nt tt.ee
bpre&C~tat.i,. H.M. ~, ~· ~cu Cawittee
Repreaen.t.ative Jam'UJ B. Hun't1Dt/t0n, HO-uae ~ Ccwmit.tM
Repr-ent&ti-v. Alvin o.rt:ert.ci, Howl• ~ Ca: itte•
RIDpresentati V"e z..o Rl'J.oS.e, He•• RINourcea c:r-t tt:ee
Representatiw Leslie E. ~, J:Joue ec--tt:tee
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H' iHWII!._._.III!iiB_a.liif!IT --MIE'IWIIiliralllii·E-Iill=a--lw.JIJI··~I~\'~ii!'iiA~.:!i!!iL. A
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Jlfaska Land CUe Council
.1689 "C" Street, Suite 100
P.O. Box 120
Anchorage, A~aska 99510..0120
(907) 272e3422 & 271·~ (FTS)
M E M 0 R A N D U M
Date: June 14, 1982
To: State Staff Committee
From:
St. ate
Subject: ALUC Policy Statements
---
Enclosed please find a copy of the Council's policy statements
on land exchanges and regulation review •
Th~re have been some inquiries and questions req~rding whether
the policy statements are being circulated around the State
and Fed~ral ageneiss ana as~a~~men~s.
Please make sure that those offices/agencies within your
department who should be aware of these policy statements
receive a copy of them. If anyone has any questions please
feel free to have them call me.·
Thank you for your help.
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Jllaska Land Vse Guncil
.1689 uc" Street, Suite 100
P.O. Box 120
Anchorage, Alaska 9951()..()120 .
(907) 272-3422 & 271·5485 (FTS)·
ME~1CP.ANDUM
· DATE: April 30, · 1982
TO: Alaska Land Use Council
FROM: Ron McCoy
Federal Staff Coordinator .
s~~JECT: Council Land Exchange Policy Statement an·d
Procedures
At the Febrlaary 9, 1982 meeting the Council adopted a
memorandum (C.M. #007/82 ~ttached) outlining a policy
regarding then review of land exchanges. The Project Group
was directed, . "to prepare a pOlicy statement embodying the
concepts contained (in tne memo) and outlining a procedure
·for submission of proposed exchanges to ~~e Council and for
accomplishing Council review".
The following is the fif~·~l of the March 3 Policy Sta'i:>ament
and Pro9edures pursuant to c~~ents by the Staff Co~mittee.
~ ·.· ~<-"'
Ronald B • .t-1cCoy
Federal Staff C~tor
Attachments
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Policy Statement and Procedures for
Council Review of Propo~ed Land Exchanges
ANCSA and ANILCA both contained provisions which clearly
anticipated the future need and .. opportunities for the consoli-
dation of land ownership patterns and enhancement of land
management and uses ~1rough the exchange of:lands between and
. among federal, statef Native corporation and other private
owners. Such exchanges could further the goals of conserva-
tion system units, promote sound resource develop~ent, ~d/or
protect traditional uses of the lands depending on the land
use objectives of the concerned c~~r or manager.
Although the discretion and authority to negotiate and fina-
lize land.exchanges rests with the individual agency or cor-
por~tion, Section 120l(i) (2) (H) of ANILCA directs the.Council
to make recommendations for land ex~~anges between and among
federal, state and Native corporation landowners4 Because
such exchanges could often have impact on the uses and manage-
ment of adjacent .lands, there ~s considerable benefit, if not
need, to afford other Council agencies and Native corporations
an opportunity to review and comment upon proposed exchanges
prior to finalization. It shall be the policy of the Council
to ensure such an opportunity for comment and possible'recom-
mendations pursuant to the procedures outlined below.
.
Fu~thermore, there may arise cases where trades of possible
mutual benefit to landowners are identified in studies or
planning processes conducted under the auspices of the
Council. In such case9 the Council shall inform all concerned
parties of the potential for a trade and make ree.ori:mendations
as to future actions needed.
. .
Finally, pursuant to Section 1302(c} of ANILCA, the Council
shall provide comments, when appropri~te, to the Secretar-y
regarding the identification of public lands for exchange of
lands owned by certain private owners located within conserve-·
tion system units.
It is not the intent of the'council to assume a negotiator or
mediator role in proposed land exchanges, to solicit or pro-
vide a forum for public input on exchanges, or to usurp the
decision-making authority of the particular agency, Sec~etary
or Native corporation by a recommendation of the ·council •.
While most exchanges would be anticipated to come to tb.e'
Council for review, it is not the Council's intent to review
all exchanges of land within tPe State of Alaska, to discuss
or debate the merits of every submitt~d e~cchange at a meeting
of the Council, or to req~ire a specific approval or disappro-
val of each exchange submitted • .
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PROCEDURES
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Land ex.changes to be submitted
Any exchange of lands between the following parties shall be
submitted to the Council for ~eview:
1) a Federal ALUC member and another fed~ral agency;
2} a ::'ederal ALUC member and the Stat·e;
3) a Federal ALUC member and a private landowner,
4) the State and a Native co;cporation represented by
members of the Council.
Agency respon~ible for submittal
As all exchanges to be reviewed by the Council would, by
definition, involve either a federal or state a;Iency o-r both,
at lease one of the federal or state agencies involved'in .the
sxchanqe shall notify the Council of the intended exchange.
When and where proposed exchange submittec~
Notice of the proposed exchange sha~l ·be ~ub~itted to the
Co-Chairmen and to each Council member after the exchange has
been agreed to in principle by all parties and after lands to
be exchanged have been generally identified, but prior~to
final signing .of the exchange agreement by the agencies or
corporation involved.
The submittal should include at least the following:
1) A notification of. the intent or preliminary agree-
ment to exchange lands;
2}
3)
4)
5)
6)
a description and map of the lands proposed for
exchange;
a general listing of the ownership of land.s (and/or
interests) to be exchanged, the o~mership of any
other significant lands encompassed by the boun-
daries of the lands to be exchanged, and the owner-
ship of major adjacent lands to those being ex-
changed;
a brief description of the resources and values of
the lands to be exchanged;
an identification of the managemen:_ objecti,.re (s) to
be achieved as a result of the exchcange; and
an outline of any terms1 not involving lands, which
are expected to be included in the exchange
agreement.
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Council review
The agency submitting the proposed e~change shall afford
Council members at least 30 days from the time of submittal to
review and comment on the exchange. Such. review shall be
accomplished to the max~um e~tent possible concurrent with
the normal review procedures of-individual agencies. Any
comments from Council members shall be submitted directly
to the agency or agencies.submitting the ex~hange with copies
to the Co-Chairmen. ·
PuJ~·suant to Council procedures, t-..he co-Chairmen or Council
members may request that the exchange be placed on the agenda
for discussion and possible recommendation at the next Collncil
meeting. The Co-Chairmen may also call a special meeting of
the Council, or of concerned Council members, to discuss the
exchange.· The Co-Ch~ir.men or the Council may also iss~e a
paper or report on the exchange based on the consolidated
comments of merober agencies or corporations.
In the case of exchanges propt)sed under Section 1302(c), the
Co-Cha.irmen or the Council may appoint a Staff Committee Study
Group or Project Group to assist in or comment on the identi-
fication of exchange lands.
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Council review
The aqt~ncy submittil'lg the proposed e~change shall afford
Council members at least 30 days from the tirne of subr:tittal to
review and comment on the exchange. Such. review shall be
accomplished to the max~um extent possible concurrent with
t.'t\e: normal rev·iew procedures of -individual agencieso Any
comments from Council members shall be submi tte;d directly
to the agency or agencies.submitting the exchange with copies
to ·the Co-Chairmen. . · ·
Pursuant to Council procedures, the Co-Chairmen or Council
members may request that the exchange be placed on the agenda
for diacussion and p~ssible recommendation at the next Council
m~~ting. The Co-Chairmen may also call a special meeting of
the Council1 or of concerned Council members, to discuss the
exchange. · The Co-Chairmen 0 1r the Council may also iSS'\le a
paper or report on the exchange based on the consolidated
comment~ of member agencies or corporations ..
In the case of exchanges proposed under Seetion 1302(c), the
Co-Chairmen or the Council may appoint a Staff Commi~tee Study
G~oup or Project Group to assist in or comment on the identi-
fication of exchange lands.
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ALASKA LAND UsE COUNCIL
P.O. Box 120
Anchorage, Alaska 99510
C.M. #007/82
•
State Co-Chairman (907) 272-34~ Federal COoChairman
Vernon Jt Wiggins Joy S. Hommond
r
DATE: Janua.J:Y 15, 1982
1t>: Alaska Iand Use Council
FF!l-!: Vm:non R. Wiggins
Federal CochaiJ:man
S'OEJECT: ~ed Policy Statarent Setting Forth the Pole of the
Council in Iand Exchanges
..
'!he role of the AlaSr'.a Land Use Council in J.arl.d exchanges is defined in
several sections 0.;: the Alaska Na.ti~ Interests I.ands Conservation Act
(ANII.L:A) •
Section 12{11 (i) (2) (H) states:
(2} It 5A;a]J. be the function of the Council, ....
(H) to make recomrendations to appropriate offj ci als of the
govenmlents of the United States, the State of Alaska, and
Native Co~rations for land exchanges l::etween pr pncng them.
Section 1302 (c) states:
(c) E:(CHANGES ••• lands located within the boundaries of a conservation
system unit (ot.~ than National Forest Wilderness) which are owned by
persons or e."ltities other than t.l-Jose described in subsection (b) of
this section shall not be acquired by the Secretary \tri.thout consent of
the owner unless prior to final judgenent on the value of the acquired
land, the owner, after being offered appropriate land of similar
characteristics and like value (if such land is available from public
lands located outside l:x:mndaries of any conservation system unit)
chooses not to accept the exchange. In identifying public lands for
exchange pursuant to this subsection, the Secretary shall consult with
the Alaska land Use Council.
.
In light of the a.b:Jve consideration it is necessary, in the opinion of the
Federal Cochahnan, for the Council to adopt a I;X>licy setting forth the
Council's invol verrent in land exchanges and establishing a process for the
Council's review and consideration of prop:> sed land exchanges. It is the
purpose of this rterrerandum to present ·ro the Council a concept for that
p:llicy.
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ALASKA LAND USE COUNCIL
January 15, 1982
Page 'DNO
It is :recon'nended that the Council adopt the following conceptt:r'"11, :t=elicies
with reSpect to Cotmcil involvenent in the land exchange pollcl:
-'!be Council may bring parties together to iil.itiate potential land-
exchanges which have been identified through studies or planning
precesses which have occu.r.red under the Council's auSpices. .
-Prot;esed land exchanges between or am:mg Council neaeers will i~
sul::mitted to the Council. for review and catuent after involved
parties have reached agreenent in principal on a proposed exchange,
but prior to final agLeement (signature) of pending exchanges. In
reviewing any p:ro!X)sed land exchange presented, the Cou.'li:il may
recumend appmval, disapproval or nodi fica.tion to the iiivol ved
parties and/or to the office(s) vested with final appLOVal. of any
p:tCJIX)sed land exchange.
'Itle Council's appLOVal. of this mencrandtml, either with or wi1::h::lut
amendment, w.iJ.l. serve as an expression of the Council's direction on this
matter and is requested. If approved, the Staff Ccmnittee will be directed
to prepare a pJlicy state:nent em1:x:Xiying the concepts contained herein and
outlining a procedure for sul:mission of px:o~sed exchanges to the Council
and for acauuplishing Council re .. J'iew. Uni.tl that fonnal state:nent and
procedure is finalized all parties s;OOuld be advised to adhere to this
expression of the council's intent. '!his rneucrandum and the Council's
fomal policy state:nent should not be construed in arq way as infringing
upon an individual agency• s perogative to adopt rules and procedures for
handling land exhanges inteJ:nally or between entities.
Attachm:mt: Appendix
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ALASKA LA,ND USE COUNCIL
P.O. Box 120
Anchorage, Alaska 9951 0
Stat~, Co-Chairmen (907) 272-3422 Federal Co-Chairman
Vernon R. Wiggins Jay S. Hammond Ge··-
Appendix to Council Mencrandum #007 /82
"The Role of the Alaska Iand use Council in Iaild Ext:hanges'~
Sul:tritted by Veil"lCil R. Wiggins, Federal Cochairman
COnsideration of a policy setting forth the Alaska Iand Use Council's role
and invol varent in land exchanges brings to the forefJ:cnt se.'Veral key
issues 'itJhich need to be dealt with.
Should the Council assume a mediator or pa..:tti.cipant role in land exchanges?
In the opL.uan of the Federal Cochainnanr clearly the answer is "No 11
•
'!be Council does not have the capabi 1 i :ty, expertise or faci 1 i ties to
function as a mediator anong pa.I:ties engaged in negotiating an exchange of
publ ic lands. In the opinion of the Federal Cochairman the Cbngress did
not contemplate such a :cole for the COuncil. '!he parties to the
prospective exchange smuld negotiate independent of the Council's ·
influence until such tine as an agreement in principal is reached •
Participants wm are public agencies, be they federal or state gove:mment,
are required to operate under existing, strict laws and (in rccst cases)
regulations in negotiating an exchange of lands. '!rose statutes and
regulations should provide sufficient guidance for the participants to
reach an agreen:ent. If not, it is difvr::ult to understand hew the Council
could madl ate arrcng the participants. !~ching such an :impasse is probable
:indication that the prot:Osed exc.~ge of lands iS not .in t..."'le public
interest. An exchange of lands should not be an adversary exercise; it
should occur on a voluntaJ:y basis and result in l:oth parties acquiring
sonething of equal value (as they each :pa--ceive it} in retum for the
thing (s) traded to the other party. '!here seems to be no need for a
mediator if . that is the case; since the Council does not have any
responsi.bilty with respect to nanagenent of land resources, certainly the
Council has no role to play as a participant in ~ negotiating processes.
Should the Council serve as a sounding l:oard to detemine public sent.i.m=nt
with regards to a proposed land exchange? In the opinion of the· Federal
Coch.aiJ:man the answer is "Probably Not 11
• •
Except to the extent that the Council's Ia.nd Use Advisor•s Corrmittee lt'ay
haw a function :in this regards, tile Council itself should not be the l:ody
detennining public approval. or disapproval-of a prospective land exchange.
As stated, public agencies engaged in a negotiation to exchange public
lands with another owner are governed by strict laws and regulations, all
of which provide for public notice, review-and cornrent on the rrerits of a
pror;:osed land exchange. In the instance of an exchange of lands where the
State of Alaska is a party, the State legislature seans to be the ultilrate
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APPENDIX
January 15, 1982
Page ~
det~te of whether the interest of the people of the State of Alaska is
s~. , Knowledge, on the part of the Isgislature that the Alaska I.i&nd Use
COuncil has favorably considered a proposed exchangP of lands i.nvol ving
lands owned by the State of Alaska would seem to be of value to. the
IegisJ.ature, considering the o:lllfOSition of the Council. But the Council
should net subrogate the Iegj.Slature ir~Ultent of its role of cietel'lninate
of the interest of the AJ..ask..~ people.
'!here seems to be a need to duplicate those processes. Father, a Council
recoomendation favoring or objecting to a pro~sed exchange of lands
involvi.~g public resources ~uld probably se~rve the public well in its
efforts to review and o:xment 'tJlX)n a pending land exchange. ·
Smilarly, the Secretaey of .Agriculture or Inr..erior, in nest cases being
the ul:tiltate deteJ::minate of the public interes,t in a p~sed exchange of
lands invcl ving .federal ?l.bl ic lands, ~ul.d po~-ssibly benefit f:tom knowledge
that the Alaska Iand Use Council has looked with favor (or disfavor) UI=On a
p:!op::>sed exchange of lands. Indeed, the Secretary in nest cases ~d-be
required to consult with the Council before he makes his final de:ision.
A grant ~"Jf au't:IDrity to exchange lands is assigned. to the SecretaJ:y
(Interior or Agriculture) in Section 1302 (h) and Section 1302 (i) • The :role
of the !and Use COuncil is not ment.i.oned in these sections.
Section 1302 (h) and Section 1302 (i) state:
.
(h)EXamNGE AUI'HORI'rl ••• Notwithstanding any ot.lle.\r provision of la\~r in
acquiring lands for the pl.JI.1X)Ses of this Act, thr.~ Secretaey is
authorized to exchange lands (including lands withl.:n conservation
system units and withL":l the National Forest: System) or interests
therein (including Native· selection rights) with the· corporations
organj .. zed by the Native Groups, Village CorpJratioru.~, Regional
COrporations, and the Urban Cor;orations, and other municipalities and
corr;orations or individuals, the State (acting free of the
restrictions of sEction 6 (i) of the Alaska Statehood .Act), or any
Federal agency. Exchanges shaJ.l Pe on the basis of eqtJal value, and
either party to the exchange may pay or accept cash in order to
equalize the value of the property exchanged, axcept that if the
parties agree to an exchange and the Secretaey detei:mines it is in the
public interest, such exchanges may be made for other equal, vaiue.
(i} (l)The Secretaey is authorized to acquire by donation Ol:' exchange
la!l.ds (A) which are contiguous to any conservation system unit
established or expanded by this Act, .and (B) which are owned or
validly selected by the State of Alaska.
(2) Any such lands so acquired shall becane a part of such conse.."tVation
system unit.
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APPmDIX
January 15, 1982
·Page 'lbree
Despite silence in sections 1302 (h) and (i) with ~ to the role of the
Council ·in land exchanges, a ~i't~ reading of the Act indicates
that the Congress intended for the Council to have sane role in the land
exchange process.
Of relevance to this issue is the fact that the State of Alaska has a
a:rrprehensive statute within AS. 38.50 gover.ning the procedures and tel:ms
under which land exchanges irn10l Vinq State-owned lands may occur. As thr.~t
statute predated the passage of ANII.CA and c:rea.tion of the Land Use Council
it likewise is silent on Council involverent in l.and exchanges i.nvol v.il1g
the State of Alaska.
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.1689 "C" Street, Suite 100
P.O. Box 120.
Anchorage, Alaska 9951().()120
(901) 272-3422 & 271·5485 (FTS)
MEMORANDUM
DATE: April 30, 1982
TO: Alaska Land Use Council
FROM: Ron McCoy
Federal Staff Coordinator
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SUBJECT: Policy Statement for Regulations Review Policy
StatemPnt
Attached please find the: .fin.al draft of the subject policy
statement. This stateme!ni': will be finalized at the May 6
Staff Committee meeting.,
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Ron.ald B. McCoy
Federal Staif Coorain
At·tachment
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Authority
DRAFT POLICY STATEMENT ·AND PROCEDURES REGARDING
ALUC :!EGULATION.REVIEW PROCESS
The Alaska Lands Act at Section 120l(i)(2)(A)(i) and (iii) states:
(i) It shall be the function of the Council--
(A) to make recomr~endations to appropriate officials of the United
States and the State of Alaska With respect to--
(i) proposed regulations promulgated by the Unitea States to carry
out its responsibilities under this Act; (and)
(ii) proposed regulations promulgated by the State of Alaska to
carry out it~ responsibilities under this Act and other State
and Federal laws;
Policy . .
It shall be the policy of the Council to facilitate early involvement by
member agencies in the promulgat;ion of significant regulations ~f:f.ecting
land management or use in 'Alaska. Further, it is the policy of th~
Council, that upon a request from the Co-Chairmen, or a member agency, the
Council shall review and may make recommendations on a proposed regulation.
Procedure
1. Each federal agency shall notify the Co-Chairmen and all Council members
of plans for promulgating regulations which may be of interest or
significance to member agencies, including ANCSA and ANILCA imple-
mentation actions. Such notification shall be concurrent with
2 ..
issuance of notice of a formal intent to make a rule. Each state
agency shall notify th~ Co-Chairmen and Council members of plans
for promulgating regulations which may be of interest or signifi-
cance to member agencies. If· possible, informal advisement of a
department's intent to draft regulations should be relayed to the
counc~ before drafting occurs.
With federal regulations, upon formal issuance of a proposed rule,
a copy will be provided to the Co-Chairmen and each Council member
for their review and comment. With state regulations, notification
to the Co-Chairmen and Council members shall be concurrent with the
issuance of a notice of proposed changes in the department's
regulations per Alaska Statute 46.62.
.
3. Agency review comments and recommendations shall be submitted t~ the
responsible agency with a copy to the Co-Chairmen.
4. Pursuant to Council procedures, the Co-Chairmen or a Council member
may request that the proposed rule be placed on the agenda for
discussion and possible r~commendation at the next Council meeting.
,
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The Co-Chairmen may also call a special meeting of the Council, or
of concerned Council members, to discuss the proposed rule. The
Council or the Co-Chairmen may also appoint a Staff Committee
Project Group to review the proposed rule and/or to prepare a paper
or report to the Council on problems or comments involved.
5. Agenc~es who are not members of the ALUC will be encourag~d to
utilize these same procedures when promulgating regulations which
may be of interest or sig~ificance to the Council or its member
agencies.
6. T.he Council will maintain a list of regulations in progress, the
i~itiating ag~ncy, and the name of a contact within said agency who
can provide additional informaeion regarding the p~oposed regulation.
This policy and procedure has been· approved--------------------and shall
b~ adhered to by all Council members.
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United States Department of the Interior
OFFICE OF THE SOLICITOR 1:-: Jl!:PLY JlEFEJl TO:
ALASKA REGION
510 L Slred. Suite 100
Anchorage. Alaska 99501
December 17, 198.1 --,..,
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To: SD, BLM
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From: Regional Solicitor, Alaska ---
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Subject: Section 17(b) ANCSA Easements
You have asked whether 17(b) easements across Native lands
~ust be continuous or w'hether they may be interrupted by a
Native allotment, settlement claim or other private inholding.
As you know, there are many existing trails on lands to be
conveyed to Native corporations under ANCSA; many of them
have been there for decades. A large number of the inholdings
are located on, and some are bisected by, these existing
trails. In many cases, the public continues to·use the
existing trails even after the inholding has been patented.
w~ere the public use predated the private entry, it is
arguably protected under R.S. 2477. . .
Section 17(b) requires the Secretary to resenre easements
"reasonably necessary . . . to guarantee a full right of
pub1ic ... access" across Native lands. This does not, in
my mind, prohibit reservirtg an easement across an existing
trail which crosses an inholding. The easement regulations
reflect a clear instructio:n that easements shall "follow
existing routes of travel unless a variance is otherwi'se
justified, u 43 CFR 2650.4-i'(b) (iv).
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Where several alternative routes exist, the preferred choice
would be the one entirely on Native selected land. However,
where skirting an inholding is unreasonable, for reasons of
topography for example, then the easement may be reserved up
to th~ inholding and again on the other side.
You. ·have asked if the inholding must be reflected on the
easement map so ~hat the ~reak in the easement reserv~tion
can be shown. Not to show the inholdings could suggest to
the public that the entire trail iS on Native selected land
and that the public has a legal right to use the entire
trail. The latter may or may not be correct. However, to
sh~w inh~ldings may present practical problems. In additi6ri,
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the des~ribed location of some inholdings, i.e., Native
allotments, is frequently unreliable until a .. ctual survey.
The best solution may be to show the entire trail but to add
a legend to the map such as the following:
• I
This map is intended to show the location of public
easements reserved by conveyance •
Some of the land which the map shows an easement as
· crossing may not be included as part of the conveyance.
so 1 the map should not be cnstrued as creating public
access rights across those lands or as implying that such
rights exist.
cc: Beau McClure
Paul Kirton
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/hn M. Allen
If
Un~ted States Departrr1ent of the Interior
BUREAU OF LAND MANAGEMENT
Alaska State Office
701 C Street, Box 13
Anchorage, Alaska 99513
NOTICE CONCERNING SECTION LINE EASEMENTS AND/OR DEDICATIONS ·
The Bureau of ~nd Management title and lafid status records provide
information concerning the basic disposition of land from the United
States under federal law such as the date of an application, survey and
patent. Jurisdiction passes from the United S~ates upon issuance of
patent. Transfers of title and subsequent section line easement and/or
dedication data are not recorded in this office. Additional information .
may be obtained from the State of Alaska, Department of Law, Office of
the Attorney General, 420 L Street, Suite 100; The State of Alaska,
D~partment of Transportation, 4111 Aviation Avenue and from the State
of 4laska, Department of Natural Resources, Division of Land and Water
Management, 941 Dowling Road, Anchorage, Alaska.
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Lease Administration to ·be
Transferred on Conveyances
13LM State Director Curt McVcc has instructed Division Dirl'ctors
.md IJistrict iVli.tnagers to imine.diately implement procedures for
tr.tnsfcrring ~'dministrativc responsibility for leases, c:ontr.tcts, per·
mits, rights-of-way or casements on lands conveyed to N.ttive corpor-
ations.
In ~ memorandum d<1ted October 2, McVee din:cted ''it b inlJH.'I'·
ativc thai a decision on waiver of administration be made JH omptly
after conveyance and that trC~nsfer of administr.ttion to tile .tppro-
priate Native corporation be made immediately," as the Lmd is no
longer under Federal jurisdiction. McVee went on t<> reqw:st th.tt
thcSL' procedures be applied to past convcyanc<.·s, if not yet done, .1~
well as to all future conveyances.
The Settlement Act specifics that all Native land convey.1nces arc
subject to any le::1se, contract, right-of-way or e.tsement issued prior
to the conveyance. The act also provides that administration of
these prior rights will continue under· Federal jurisdiction unless t!u.•
.1gcncy n:sponsiblc for· administration tr;msft·rs this n·sponsibility.
BLM, as the rnan~tging agency for Native l<~nd convey.1nccs, is
guided by Department of the Interior regulation 43 CF R 2650.4-3
which states that the agc:ncy must forgo its administrative responsi-
bilities when the conveyance covers all land cmbraq~d within ,1 le.tsc,
CPntract, permit, right-of-way or casement unless there is .1 finding
by the Secretary that the interest of the Unitl.!d States requires con·
tinued Federal adminisrration.
For example, if leases issued under the authority of thL' i\lining
Leasing Act of 1920 arc entirely within the N.llive convcy.mcc,
Jdtuinistration by the BLM will be terminat<.•d. The Division of
ANCSA must transfer administration of these cases to lhl' .tppro-
priate Native corporation and notify the lt•aseholucr of tlw chttnge.
If only a portion of the lease is included in a convt•y,mcc, 13Li\1 will
not transfl'r administation.
Copies of the mcmor,lJldum .tre ttv.dl.tblt: ft om tla· ANCSA
Division, l3Li\1, 701 C Street, P.O. Box 13, Anchur.tgL·, AK ~~513.
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LOCAL EASEMENT STUDY .
Size and Use Standards *
September 6, 1974
FSLUPC
The following standards are suggested as genera·! guides that would
be varied where warranted by specific conditions.
•
· Linear Easem~nts: ..
. .
Category l -Foot trails.
Ten-foot width. Where soil conditions, slope, or other conditions
dictate, additional width should be added for construction ~nd
maintenance. {Th_is width applies to any linear shoreline easements.)
Uses.
Permitted uses: Foot travel, snow machines, dogsleds, cross-
CO"Untry skiing, two-wheeled vehicles, ~nd uses of a similar
character. .·.
Prohibited uses: Four-wheeled vehicles, caterpillar tractors
and bulldozers, and uses of a similar character.
Category 2 -Roads through developed areas •
. Sixty feet except where existing development prohibits this width.
A road of this type would provide access in and around developed
areas. Such width would accommodate a simple gravel road of the
type built under the State's Local Service Roads and Trails program.
Uses.
All customary road traffic.
Category 3 -Roads through undeveloped areas.
One hundred-foot total easementr Roads of this type would provide
basic land connections through.undeveloped areas within a region.
The State Department of Highways considers 100 feet to be minimal
for important connector roads in rural areas.
* The easement hol~er should be responsible for marking boundaries of
the e~se~ent, m~1ntenance, and enforcing laws, regulations, and use
restr1ct1ons wh1ch are applicable to the site.
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Site Easements:
Campsii:~~.
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September 6,
FSLUPC
Fifty feet deep by 400 feet, as measured from the mean high water.
line. ·
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Uses. . .
Permitted uses: Temporary camping through use of undeveloped
site, boat and floatplane pullo~t areas~ and sanitation
facilities.
Prohibited uses: Penmanent or ccmmercial site development,
hunting, timber cutting, use of motorized vehicles, littering,
and other uses which would tend to degrade the environment.
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August/September * Native· Lands
Exempted From.
Gasline
Right-of-Way
The Department of _the Interior
has recommended approval for a
Grant of Right-of-Way for the
Alaska portion of the Northwest
gasline, specifically exc!uding "all
lands validly selected by Native
corporations" from · any of the
terms of the grant. Assistant
Secretary for Land and Water
Resources Guy Me!,.dn submitted
the grant for Congressional review
in late August, requesting the 60-
day review periud be waived to
enable issuance of the grant by mid-
October, 1980.
In cover letters to Northwest
Board Chairman John McMillian
and Senate Energy Committee
Chairman Henry Jackson, ·Martin
clarified that, although title to
Native selectior." currently rests
with tile United States, ownership
will e~.entually belong to the Native
corporations ther~fore the grant
will not apply to these lands.
Martin added that the Native
lands are excluded "with the full
knowledge and consent of each
corporation", and with the ·"full
expectation that Northwest will
immediately and vigorously enter
into negotiations with each corpor-
ation." The progress and terms of
these negotiations will be
thoroughly reviewed by the
Department prior to issuance of
the final grant ..
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Page 2 ANCSA
Estimated Land Allocations:
Sections 12 & 14 of ANCSA
Native regional and village cor-
porations are entitled to select
acreage under the specific land
terms of the Alaska Native Claims
SettlementAct, chiefly sections 12
and 14. The broad acreage totals
fixed by the Act are predictable but
final figures will not be available
until certain issues such as village
eligibility and enrollment are
resolved.
Since the land selections are
based on a reallocation of acreage
after major selections hav~ been
complf;ted, estimates of the re-
maining acreage entitlement for
each category must be shown as
minimum and maximum figures.
The BLM-ANCSA staff has com-
puted these figures by region based
upon the terms of the Act and sub-
sequent amendments.
A brief description of the entitle-
ments found in sections 12 and 14
follow. It should be noted that
Section 12 entitlements apply oilly
to 11 of the 13 regional corpora-
tions since the Thirteenth Corpora-
tion is not entitled to any lands and
Sealaska village corporations are
entitled to land under Section 16.
12(a)
Region Minimum
AhtP:.: 691,200
Ale~1t 1,221,120
Arctic Slope 852,480
Bering Straits 1,820,160
Bristol Bay 2,718,720
Calista .i,644,800
Chugach 460,80')
Cook !nlet 576,000
Doyon 3,248,640
Koniag 921,60()
NANA 1,198,080
Section 12(a) Entitlement. This is
the village corporations' entitle-
ment from lands withdrawn under
section 11 (a). Since entitlemen~
is based upon enrollment and the
eligibility of several villages is stiil
in question, the total acreage
entitlement under section 12{a)
cannot be finally determined until
the remaining eligibility cases are
resolved.
Section 72{b} Entitlement. The
difference between 22 million acres
and the total entitlement of village
corporations under section 12( a)
is to be divided among the 11 appli-
cable regional corporations on the
basis of Natives enrolled in each
region. The nvJ,;1ber of villages
found eligible wili affect the 12(b)
entitlP-ment also; therefore, 12(b}
entitlement cannot be finalized
until the 12( a} entitlement is
finalized. Althuugh this is a village
entit!ement, each regional corpora-
tion will decide how much 12(b)
acreage each Native village within
the region will receive.
Section 12{ c) Entitlement. This is
a regional entitlement of approxi-
mately 16 million acres. The en-
titlement is based on a complex
formula involving land area within
the regions and selections filed
under other sections of ANCSA.
The regional corporations with
small enrollments but which cover
large areas within their boundaries
receive the largest entitlement in
this category.
Section 14(h) of the Claims Act
author'a~es . 2 m iiUon acres to be
conveyed or charged under the
following categories:
(h)(l) Cemetery sites and his-
torical places
(h)(2) Native groups (not more
than 23 ,040 for each
group)
(h )(3) Conveyances to Natives
residing in Sitka, Kenai,
Juneau and Kodiak
(h)(5) Native primary place of
residence
continued, page 5
SECTION 12 ESTIMATED ENTITLEMENTS
12(b) 12(c)
Maximum Minimum Maximum Minimum Maximull}
691,200 34,993 47,928 979,64i 999,953
1,221,120 107,900 147,786 0 0
852,480 125,357 171,970 3,980,492 4,036,448
1,820,160 222,125 304,235 0 0
2,718,720 177,372 242,940 0 0
5,644,800 431,601 591,147 0 0
460,800 67,610 92,603 33 3,558 354,988
806,400 201,514 276,006 1,207,572* 1,431,882*
3,248,640 296,766 406,468 S,281,526 8,415,339
1,405,440 108,959 149,237 0 0
1,198,080 15'7, 757 216,073 734,055 783,741
*The lands and interests conveyed to Cook Inlet region pursuant to the provisions
of Public Law 94-204 constitute the region's full entitlement under section 12(c).
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1 .. _·,· L·and Allocations
continued from page 2
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(h}{6)
(h}(8)
Native allotment applica-
tions approved during the
period 1971 .. 197 5
Any portion of the 2
million acres not con-
'led by other subsec·
t~-..~ns will be allocated
and conveyed to the
regional corporations on
the basis of enrollment. I Pursuant to Departmental regula-
tions, 43 CFR 2653.1, of the total
14(h) allocation, a maximum of I 500,000 acres are to be used to
.. · satisfy applications filed pursuant
to section 14(h}(1 ), (2} and (5) of
the Act; 92,160 acres are set aside I for conveyance to corporations
-formed ·in Sitka, Kenai, Juneau and
Kodiak; and 195,000 acres are used
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applications · approved before
December 18, 1975. The remaining
acres will be reallocated among the I 12 regional corporations on the
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TOTAL ACRES TOTAL ACRES
ALLOWED FOR ALLOWED FOR
1'4(h) (1) (2) and (5) 14(h) (8) !
Ahtna 27,830 17,166
Aleut 33,728 52,932
Arct!c Slope 35,160 61,594
Bering Strait$ 42,968 108,9~6
Bristol Bay 39,348 87,012
Calista 59,914 211,728
Chugach 30,469 33,167
Cook Inlet 41,301 98,855"'
Doyon 49,007 146,583
Koniag 33.814 53,451
NANA 37,761 77,390
Sealaska 68,697 264,991
*3.58 townships of coal, oil and gas rights in the Kenai National Moose Range
co~1stitute the full surface and subsurface entitlement of Cook Inlet Region under
section 14(h) (8) pursuant r.o Sec. 12l(c) of Public Law 94-204.
basis of Pnrollment.
Based on these allocations, the
maximum total acres allowed for
(1 ), (2) and (5) entitlements for
each region are shown above. The
total acres al!owed for 14(h}(8) is
also shown; however, final entitle-
ment in this category could be
greater· than the amount shown !f
regions are conveyed less then the1r
entitlements under other provisions
'of 14{h).
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United States Department of the Interior~
GEOLOGICAL SURVEY
9277 West Alameda Avet~ue
Lakewood, Colorado 80226
0
February 23, 1978
DBrlene Layne, Energy Planner
Division of Energy and Power Development
State of Aiaska
Department of Commerce and
Economic Development
338 Den~li Street
Anchoragt:~, Alaska 99501
Dear Ms Layne:
ALASKA Er\i :····'-·G"' ~ . -• ·-' ' ~Jr-r CE
As promised during my recent telephoue conversation with Mr. Shipp
of the FERC Washington office, I am, enclosing a list of all
Geological Survey powersite rese~7es and classifications in Alaska.
The list is dated March 1976 but there have been no changes since
that" date.
Most of the headings are self-explanatory but I have attempted to
clarify them on the extra sheet enclosed. The list shows, chrono-
logically, all actions pertaining to each withdrawal, total acreage
in powersite classifications, total acreage in powersite reserves,
and total area withdrawn in the state. Many of the acreages are
estimates because of the generaliz~d descriptions of the withdrawn
areas (i.e., all lands within~ mile of the stream) in the unsurveyed
portions of the state.
Mr. Jesse Colbert, our Area Hydraulic Engineer in Portland, Oregon,
who I believe you have met, is responsible for our waterpower
work in Alaska.
Sincerely,
~~Ul~
Ve:rnon C. Indermuhle
Staff Engineer
Enclosure
cc: J.L. Colbert, Area Hydraulic Engineer,
. Portland, Or. l~\ cc. ~ ~ ~ "1-'p... ~-4
177s-191e
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U~u~ POWEH SITE wESERVtS ANO ~LAS~ifiCAT!ONS • OElAll ~y STATEoPSCtDAT~ PAltt. NUo tJ'. 0 t
MA~ OJ, 197tt oc;: .. ~sSl
• "fQC CF'C •OL. NO. totE.Vo t-40. MONTt1 OAV YE'AR STREAM NAME tiASI"f ST AREA 0 CIJOF. TYfJ£ CAT. NO. .AC4ES
• JQI)f-i! t~:;c O.J~ 08 ?U 21 CASC'ALIE C.f.IEF.:K 13 DB AK 1110 • )1)1)6. 2 ,.,~c lhJQ I ~, 1 174 OS ?.0 31 CA5CA&JI:. CHlEK 13 DB AK lHO --------• 111.)-l ~· ·~oo !)
I~Cf> l. t'5C ou Ol 20 22 fiSH l-ki::EK 13 00 At< 73
• 1ql)f. 2 F::;r llil (Ah JJO 06 05 75 fiSH \..HEEK ll DO AK -73 0 --------.: oa 0
I • lQ('6. z t'SC · 1)5) 02 ?J 23 ANNFX C~EI:.K 1J AE Ar( 2295 0
1~0~ z ~":-.C lbl 0?. n 23 f~A"J~,.•lSSlON LINt:: 13 AE AK 0
• 1 q'l" 2 ,.o~c 0.,3 ClN 036 07 Ol JO ANNEX \~RU.K lJ AE AI< -ZIJO ~ --------
U:i:l 16S
• )9uc; l ,!>C lu7 Ob ll lS KNll( kNO TURNAGAIN ARMS 14 o• AK Jq527 0
19 ,,c; .! r-'SC 11J1 C,\h llSU Otl 21 31 KNIK kNI> TUHNAuAIN ARMS 14 o• :\1( -775 • )QO~ 2 I'~C 107 (Nl cf:l~ 06 Oil 38 KNlK J\NIJ l1JHNAGA1N AlmS 14 D• AI( 0 0 ).:J ll" l fJ:;..C 107 ~mo '4}h 12 11 40 ~Nit< AI~O TURNAGAIN ARHS }4 O• ~K 0
, .. ,1t:; i. t'::tC lo7 I i'fl 311 09 17 Sl KNl~ ~NO TtJIINAuA .l N A~HS 14 u• AK 550 • t.;n~ l r'SC lll7 lifT J7Q 09 )9 51 ~Nl!t "ND fl.JQNAGA IN AI-H-IS 14 U• AK 147 ~ 'Ql\"i 2 P:-C i07 1 ~~ JtJ~ OJ lR 52 KNIK kNI) TUPNAuAIN ARHS 14 O• AK 0
l'ilo1'1 ' ,:1:\C !ll , Jr, T J94 OH JCJ 52 KNI~ .kl'fO TUPNIIGb.lN AHr~S 14 o• AK -30 • l~l.o; z r::»C lu7 1!•' ~00 Ot! Ji 53 KNit>: ~t-tl) TIJ!:-NAGAlN ARI~S 14 O• At< !lO • t9oc; ? ,.,~,: 107 )tl1 &oU4 lu J1 sc; 1\Nl!C ~NI) ltJRIMGAIN AkMS 14 o• AI( bHO
l~tJ"i 2 r':,C h11 INT wOb 10 25 55 KNit< I~NI) TIJRNAGAJN AKMS 14 U• AI( 156
• 1'101:\ :. P:iC I II T lr..l 1t07 Ol 10 Sb KilliK 111'10 TU~NAuAIN M~~15 14 (J• M< 2t.C e 1'10'1 2 Pc;c 107 tNT 409 OS I!:· 56 1\NIK Ml'40 TURNAuAlN AKHS 14 o• AI< 0
J.::l·c: . 0-.2 -':iC 11J1 JNl .. 10 OS 11 56 IVIJt< ki~D TIJfJNAhAlN AH:-15 14 o• AK 0 • t4:;c; .!. ?::,C 11)7 AUU 0'5 7..8 56 JC.N.M.,; ~NO lU!".'NAuAIN AI-IMS 14 D• AK -307 • JCIQt; i. i>:>C hrl ,MJU 05 cB 59 KNIK ~NO TU~NAuAIN ARMS lit '0• A::( 617
f90~ l PSC tu7 c~o:-. 159 01 17 64 KNIK kNO TURNAuAIN AWMS 14 o• AI( -30544
• 1•14)t:; 2 1-'SC 1117 IM .. !ltt 0'1 ~f) 71 1\NII< ANO TUfJNAGAIN A~MS 14 O• AK 0 • --------
IIJ 7 10321
• 1 q,,, l ?:iC ldl 09 10 27 dA~fiNuf' ISLAND 13 Be AK 500 ..
l9tl6 ~ .-:,c 187 RNT I!J7 lU 21 JO t:tA~ANut" ISLAND 13 ~c AI< 0 --------• ltt7 500 •
• lQ(I, 2 ;.;;c l:i'i 09 lJ 21 WARM ~t>~ING BAY 13 BC AK 320 • ·~~b z f.:>C ltt~ CArt 144 OJ 04 60 WAR'-4 :;,t>RING BAY 13 ac AK -6 ___ ... ____
• ll:i~J 314 •
• •
# ' • • l
• --------~ .\ ·~7 ( 500 ( 0 ~ ..........
• )Q(\ ... l r';:,C I tilt I)<; lJ 21 WA~M :;,t'HING HAY 13 ijC AI< 320 • ·~ t~utt l t-:»C lrie\ c•N '" .. OJ 04 bO wAH._. :;,P~IN6 HAY lJ He AI< -6 --------I tit\ 314 0
.... .,
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0 (":
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U5uS POWER SiTE HF.SERVtS ANn ~L~SSlrlCATlONS
~ O~lAlL ~y ST~TEoPSCoOATE llAut. NOo 6. 0 ~IAR OJ o 1~7b os: .. ~:sl
f' w"c ore •fJLo ~J. ~t.v. NUo Hl)filJ'H OAY YfAH STREAM NAME l::lASIN ST AREA a conr llPE (AT, NO. ACwES
9 Q li'11 i ~sc H2 11 l't l7 ANAN ~HEEK 13 •• M 0 0 '-Jtt I c r>sc l-,1? ll 14 27 ANAN LAKI:. 1J ... Ar< 0
Cl ),, 1 2 JJ:,C t4r 11 14 27 CA~C:Aut:. CREEK 1 3 . .,. t.K 0
e a ),1 1 l. tl::oC l~l 11 14 27 CLAUUr. C~Et::K 13 YV AI( 0 0 j;)l\1 t .=.;:)c HZ II }If 21 CLAIIUt:. CHE.Et< CE:AST FORK) IHEV) 13 •• A~ 0
q)tJI 2 ~sc bZ ll ')4 2'1 CLAUU1.. LAKE. CHEV) 13 ... AK 0 • A l\'1 ;:; iJ'!:»C 1'12 1 I U4 '27 HAt~O 1 hCJ k 1 VER 13 •• Ar< 0 C!) ~J.I} l. .,.:;, he? 11 14 u HhJt\!:.t~ INLET LAKE AND our. IHEI/J lJ •ct t.K 0
·~('It 2 P~c ·~., I I , .. 27 HIIHPI::li\Cr< LAKE ANU OUTLET STRI:.AM 13 •• ~I( 0
A)"l i r'SC 1~2 11 14 n KAtHA ~IVlH (PQWI lj •• M 0 0 ' • A)l\1 l ~sc 1~2 11 14 27 LAKf .JOSt.hllt~[ IPOWJ 13 lie AK 0
~)(•' l ~!:!C l-12 ll lit 27 LAKF 1"1t.LLI:.N (POW I lJ ... AK 0
r'!Jvt c ;.J:\C .... ? 11 14 21 LAr<r ni:.Flt::CTJON lJ o• AK 0 G • !'JOt 2 F-~c H? J I , ... 21 LAM I~IHUTA~Y TO ANAN LAKt:. 13 **' At< (J
4 3tll 2 r:\C l-Ie IJ 14 27 LllTLt. SALMON LAKE 13 •• AK 0
PJ•ll z tJ~C 1'12 II 14 27 HAN7AI~ IT A CFIEI::t< (HEVI H •• AI( 0 0 • qJ"t c P:tc 1-12 ll 14 27 MCiifN" Y LAI\E AND OUTLET c no, 13 •• AK 0
~J.ll 2 J.:\C hi,~ Jl 1'f 27 ~N~-InlHU Mil~ LAKI:. (POw I 13 •• AI( 0 • tlJJI i ;::~c • .,til 11· 14 21 PUNrHuOWL L~KE AND OUTL£T !:IT~f.AH 13 •• Ar< 0 0 . ~Jvt 2 ~-~~c l'll 1{ 14 27 "I:.YNULL!!:I C~EEK ( F'O~I) 13 •• Ar< 0
A 3(.1 2 P:iC h.? 11 llf 27 ~ALMUt~ LAKE (POW) 13 •• M 0
AJ,I) ) r>~c H? ll }4 'i!1 ~HI:.t0ftUH LAKE ANU OUTLET STHt::AH 13 "• AK 0 • .. 0 Q J;' I ;. ~'!:»C l'IZ II 14 n ~tfi)QJ I..~HK 13 •• AI{ 0
AJtl 1 2 r>i~ B-! ll 14 27 ~h~P1 CREEK fEAST FO~IO 13 XX AK 0 • A)ul i r:.c 1'12 II ... 27 STKfAMS ~ LAKE5 Ur S.E. ALASr<A 13 •• AK 2700(1
~3(11 2 f.'SC 1-i~ II 1 .. 21 ~UM~lr LAKE AND OUTL~T CPOwJ 13 •• A(. 0 Q
P)llt i P!:!C l-12 11 14 27 SWAt-.\ LAKI:. IJ •• AK 0 • £13\11 ~ ~'!)(' 1·n 11 14 27 r 01'1 'C" ~EK lJ •• t.K 0
A)Ol 2 tl:\C ... ~ II 14 27 l'lHITi:. "<I VER 13 •a ~K 0 G)
~Jtd c ~!!C 1--2 CAt-. \}3~ 10 J) JO STK~AM5 ~ LAKES Or s.E. ALASKA l:S •• AK -3200 • ~JOJ 2-r)5C Hl JNT 111 04 .01 J( SfkFA~S ~ LAKES OF S.E. ALASKA 13 •• AK 0 a:;n c tJ')C 1'1~ 1 ~•T n .. 0~ ?.0 J\ STHEAt·tS ~ LAKt':S OF s.E~ ALASI<A lJ •• ~K 0 c
~-·l; 1 2 ?!:!C Ht? CAf.t Ob7 Ot! lb JJ STHEAI"IS "' LAKf.S Of s.E. ALA<;KA 13 •• AK -210(1 • Pl\11 l IJSC hl ~h)LJ 'tll 0\1 21i 47 S T tlf.AI·t!, ' LAI(ES OF' s.E. AlASr<A lJ •• AK -s --------')
h?. 2l6Ci5 • J9l)fl 2 P!:IC .?Ill 10 Itt 28 SHl:'.fP CREEK NEAR JUNt.AU IJ AE Ar< 500 \)
tqu" ~ P'!tC (!I)J HOU .. zo 06 Zb 47 SrtlfP Cfll:.t.K NEAH JUNtAU 13 AE At< -a • --------l!JJ 4'i2 Q)
• "JOJ 2 P::.C Ul OS 14 29 M i SCla.lANEUUS STREAMS 1J •• AK 34100
~J(\1 l PSC UJ INI l1t3 Olt 2ti 30 111 !:!Ctt.LANEUUS STHEAMS 13 •• ·AK 0 0
RJlll l P'!:»C 2Zl !M !~1 to . 27 30 tHSClLLANEOUS STKEMIS 13 •• AI( -900 • • R3i}1 2 ,.!!C Ul ., .. , · l~R ll 01 JO MISCI:.LLAN£01..15 STHEAI-15 13 •• AK 0
A)t') i. tl'!:»C 221 INT 172 Od 20 31 M I ~l':'tl.l.AI~t:OUS SlHEAI-15 lJ •• AK 0 0 . -
• c
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USGS POWE~ SITE HiESE~VES IH~f) 1...LASSlfiCATIONS
DETAIL t1Y STATE,PSCtOAT£ PAut. r~o .• 1.
MAR o3. l97b o5:-.s:s1
WRC OfC ~Ule NU. REV. NO., MONTH OAY YEAR STREAM NAME BASIN ST AREA
COOF 1YP£ CAT. NO. ACRES
A Jot 2 PSC 221 JNT 247 01 20 36 MISCt.LLANt:OUS STREAMS 13 ** AK 300
AlOl 2 i-'SC 2l1 C~N 144 03 04 60 M I SCtLLAt-JE.OUS STREA,._,~ 13 *~ AK 0
190() 2 jJSC 2ll CAN 2d3 12 02 70 M!SCt.t..LANt.OUS STREAI-1S (GREEN LK) 13 BC AK -845
190~ 2 t'SC lll AUO 04 24 15 Ml::,Ct:LLANEOIJS ST~EM1S <GREEN uo 13 Be AK -355 -----·---
221 32300
l~Of, 2 PSC 23~ 08 22 29 TAKU !NU:.T BASIN 13 OA AK 7000
190(1 2 PSC 2Jt1 1NT 164 . . 01 Ot:J 3! TAKII .1NLET BASIN 13 DA A~ 2800 --------
231-l 9800
1901) 2 PSC 244 12 02 29 SC~;NEKY LAKE 13 Dl:3 AK 0
.,., 1906 2 PSC 244 12 02 29 LJNNAMt.D LAKE 13 UB AK 200•0 --------
2't4 2000
1906 2 PSC 2'51 OB 20 30 ~IAHO 1...0VE CREEK 13 OE AK 1600
19fJf) 2 P5C 257 (NT 162 12 01 30 wAk[l ... uvE CREEK 13 DE At< 0
1906 2 p::,c 2':11 CAN ~tj4 09 20 7l wAR f) \..UVE CREEK 13 uE AK -1600 --------
2oj7 0
1906 c. PSC 2::>t1 U2 09 31 5AL'-10a~ CREEK 13 AE AK 360
1906 c. P5C 2'::JH CAN 054 03 OH 32 SAL MOt~ CI-(EEK 13 AE AI< -4 --------
2':1fi 356
)906 2 PSC 2o2 ll 27 31 GOULUlNG HARBOR 13 BA AK 3000 --------
2o?. 3000
J906 2 PSC, 2o4 02 23 32 LAKF.:S ON lMPANOF ISLAND 13 BC AK 4000 --------
2b4 '-.000
190«; 2 PSC 395 04 22 48 CHAt<Al.HAMNA LAKE 14 D* AK 13000
!9u5 2 PSC 3t:jS 04 22 4H C11AK A ... ~IA TNA RIVER 14 o~ AK !) --------
39S 13000
• 1906 2 f.JSC 3~6 04 23 ,48 TAIYA kiVE.R 13 AD AK 5000 ------·--•
3~6 5000
I qt'.6 2 PSC J'1J\ 08 30 48 LAKE t"t.RSEVERANCE 13 DE AK 252
}906 2 PSC 3~8 0~ 30 4€1 viAkO LAKE 13 DE AK 0 .... .... .. liil .. ··-· -.. -----.. -·--! -• =!!:: .;!!::~==:n::~: ;:;;:e.=:=el~~~!!!!.t~=~=J~';!~m~~~"'mn ::::x: .m .~~~'~Jt••nun~~••·••••-·-~~~~ . ··ts•n-~oour1Jiriilullll111i-unrrr · IJftJ
. -
~ t. ·(
.. USGS POWER SITE kESERVES ANn ~LASSlflCATIONS .. DETAIL ~y STATE•PSCtOATE PAGe. NO • ti • . , I-1AR 0~· t 1976 os:'+s:s1
I .
WRC OfC WlJL. NO. HEV. NO. MONTH 'DAY YEAH STREAM NAME fiASIN ST AREA
CODE Tl'PE CAlf! NO. ACHES
1906 :> P~C JYli CAN 2tilf 09 20 71 LAr<:E t"l:HSEVERANCE 13 DE AK -252 ... --------
J~e 0
l90·t 2 P:::.c J~9 OJ 2Y 51) EAGU:. RIVER 14 J .. AK 7520
1904 2 PSC )~q tNT J~9 03 lH ~2 EAuLt. 11IV~~ 14 J* At\ -40
19G4 2 t'!:IC 3~9 JNT 400 02 12 SJ EAGU:. ~JVE~ 14 JU AK 0
l~C\4 t. P:;,C J9q INY 4US 10 24 55 t::AGLt. r<IVEH 14 J* Ar< -720
)«1('4 2 IJ~C 349 CAN 159 01 17 64 t.AGLI:. klVER 14 JG AK -880
1904 2 P!:~C j~9 INT 45H 07 16 71 EAGLE. tHVER 14 JG Ar< -3807 --------
3':i9 2073
R40l 2 PSC 403 03 29 ~0 COPPtK RIVER 14 ** AK 320
F'4(Jl 2 t'::>C 4\J:l OJ 29 so COPPt::K ~1\JEH NO. 2 14 YY AK 320
Alt(J) 2 P:;,C '+tl3 OJ ?.9 50 NENAI~~ R I VEP 14 ** AK J20
... f4C 1 2 PSC .. oJ 03 2'9 so KE~I IKrd:.CT 1 ON RIVER 14 .... AK 5040
0 401 2 P~c 403 03 29 so .SALMOt~ LAKE 14 ** AK 10870
""01 i P!::le,; 4U3 03 29 so TUI\ ~Ur-. CHANNEL l4 ** AK J20
A401 ~ f'~C 41)3 03 29 so YUK0N kiVER (RAMPARl) 14' ** Ar< 12d0
~~.o 1 t! PSC 40'3 CAN 161 06. 06 o2 SALMUii LAKE 14 it4t At< -4196 --------
403 14274
1905 u PSC 40(, 00 .~o. 00 SUS I r,.A RIVER 14 E .. At< 0 .. --------
406 0
1905 2 P~C 4\)9 06 29 so KENAl HtVER 14 C* At< 1760 --------4l)t} 1760
1904 2 P~C 41? 11 09 so: LlTTLt. SUSITNA RIVEH ANO VIC. 14 JG AK 2086
1904 2 ~!:IC 412 CAN 171 01 29 631 LITTLe. SUSllrNA RIVER ANI.) VIC. 14 JG AK -37
1904 t!. F~C 412 CAN ~45 02 27 67' U.I fliLt. SUSllrNA RI\Jf..R AND VIC. 14 JG AK -2046
}904 2 P:::.c 4+12 AUO 02 ;_/ 6:7! t.IT11Lt. SUS111NA ~IVC:R ANU VIC. 14 JG AK -3 ------·--41? « 0 .........
t90h 2 PSC 415 09 oo 51 SHEEP CREEt.< lJ AE AK ~f60
... ---·--·~-
415 ~r60
190f1 2 PSC 419 11 02 Sil !WAH(] COVE CHEEK 13 . DE AK 2500 . 1t;06 t! PSC 419 CAN 284 . 09 . .
• 20 iJil •1WAH'ill ~OVE CF~EEK 13 DE AK -·2500 ----·--·--• 419 0
.. ~... . ,. -·-. --.... -.. ... . --.. -.. --
( l. (
USGS POwER SITE ~ESEHVES A~n ~LASSIFJCATlO~S
DETAIL HY STATE•P~CtOATE PAGt. NO. Y.
MAR OJ• 1976 05:«+5:Sl
WRC ore \twilL. Nll. PEV.-NOID MONTH DAY YEA~ STREAM NAME BASIN ST AREA
COO F. lYPE CAT. NO. ACRES
190() z P~C 't~7 09 12 52 riLUF LAKE 13 ac AK 1000
190ft 2 P~C 427 09 12 52 HE.KR htG LAKE 13 Be AK 0 --------
427 1000
J9oc; 2 PSC 1t.J6 08 2f.J sc; . lj~AOLt.Y LAKE 14 C* AK 10000 --------
43& 10000
190fl 2 PSC 4.JI.J. 07 10 5"' CrliLKvOT LAKE AND ~IVER 13 AK AK 4300 --------
4J9 4300
t9or; 2 PSC 443 ot.: 13 se CARtbuU CREEK 14 E~ AK 0
)90S 2 PSC 4'+3 02 13 SA SUS t Ta'4A Rl VfR 14 . E* AK 143725
)905 2 PSC 4ct3 02 \3 5& TEKLAiodKA HIVER 14 E* Ar< 0 --------.,
443 1'•3725
1903 2 PSC 445 COk 01 (15 6'1 YUKON ~IVER 14 HV AK 3200
)901 2 ;:>:)C 4'4c; 01 05 65 YUKON HIVER 14 1-iV AK 8955520
190') 2 P~C . . 445 !-10(J 447 10 15 69 YUKON HIV~R 14 HV AK 0
1903 2 PSC 4't5 MOO 44tt 10 30 72 YUI\ON RIVE.R 14 HV AK 0
)903 2 P~C 445 to10lJ 't51 01 07 74 YUKON HlVER 14 t-1V AK 0 --------'+'t5 8958720
1901 2 ~~c 4':)0 10 07 64 NENAN~ RIVl:..~ 14 L* AI< 21085 --------4:;:,0 21085
1905 0 F-::,c 4:)2 00 00 00 COUPt.t< RIVER 14 a~ AK 0 . .. .. . . ' .. . . . -----~--
452 0
. I 90S 2 PSC 456 06 10 65 N£LL1t. JUAN RIVER t. LAKE 14 CE AK 12320 --------tf':>6 12320
A301 2 P~C 4:i9 12 02 70 . VOUOP~u RIVER AND GKEEN LAKE 13 ... AK 1095 _______ ._.
4~9 1095
)904 2 f'SC 46) 10 22 71 TAZIM&NA RIVER t. LAKES 14 GC AK 18000 .. ···-,.., -·· --------• 4b3
.
18000 • -~·-. .
i ..
( (
USGS POWER SIT£ HESE~VES AND ~LASSifiCATlONS
. OETAIL BY STATEtPSCtOATE Pflut. NO. 10.
MAR 03• 1~76 o5: ... ~:~1
\JRC OfC WDL,'\1 t•ll.~ .• , ~r.v. NO. MONTH DAY YEAR STREAM NAME 13ASIN ST AREA
COOE' rYt'E CAT, NO. ACRES
--------
PSC 9294655
190f, 2 PSR 4oO INT 145 00 00 00 SAL"1Uii CREEK 13 AE AK 0
JCfOF, 2 p~~ 4h0 10 oa 14 SAL MOl'., CREEK 13 AE AI'< 3200
1901-·2 r-::tR '+DO ,..oo 241 11 22 17 SAL '-1UN CHE.E.K 13 AE AK 0
1906 2 PSw £+b0 k!:»T 't42 OD ?.4 30 !:IALIIJ.U1-. CkE.t:t< 13 AE AK -2846 ---·-----
4DU . . 3S4
1~04 2 PSR 4d5 04 01 15 "l L 1 I\ MI .. A f-ft.GION 14 GB AK 65000 --------
4d5 65000
190? 2 p·.;p 4~1 MOO 195 ot 31 15 S0Lf11'-h.JN GULCH 14 KC AK 0
1~0? 2 P!:»R 4':11 07 31 15 SOLONvN 6ULCH 14 KC AK 626
~" 140? 2 PS~ '+>~I 0"1 31 15 \JNO uvLCH 14 KC At< 474
1~02 2 PSR ... .,. J1!:»T .c.Sl 10 l't 30 ~OLOMu1'1 GULCH 14 KC AK -420
}90?. 2 r':::»R 4'11 RST 451 )0 14 30 UNO GvLCti 14. KC AK -474
190? 2 r';iR '+"11 KST 733 01 o·1 74 SOLOMvN GULCH 14 KC AK -206 --------. ~ 49.1 0 .. .
19nc; 2 p~~ b'l4 01 23 it:i ~I& HMHHIT CREEK 14 E* AK 350
)Qoc; 2 PSR 6(4 Ol ?.3 18 CAI·1Pti&.LL CREEl< 14 E* AK l2b0
l~o; 2 p~~ b/lt U.l 2:J 18 PETFk:::» Cf-fEt:K 14 E~ AK 725
~~or; 2 t-J:::;~ Dllt Ol 2J 18 ::ttiiP l.HEt::K 14 E* AK 12BO
t90t; 2 JJ:,t'-( 674 t-100 25'1 0~ 29 1~ CAMPtklL CREEK 14• f* AK -520
\9 IJfi c PSI~ 6 .,,. f.10U 274 10 22 18 t>E HI'<:» CREEK 14 E~ AK 0
JC.,Qc; 2 P5R 674 ~l)lJ c72 · 10 25 18 CANPtiL..LL CHEEK 14 E* AK 0
190t; ~ p~~ b74 INl 377 09 17 51 ~~~ k~~AIT CREEK 14 E* AK -110
1 <, ll l:j 2 t''::JR 674 JNT 379 09 19 51 PE 1Et-b CREEl( 14 E* AK 124
}90'\ 2 PSR bl4 !NT 393 Ob 07 52 PETf~;, CREEK 14 E* AK 120
)9(JCi 2 P!:tR 674 INr ltU2 11 O!:i 54 tHu HH~H 11 CREEK 14 E.* AK 13
t9oc:; 2 p::,,~ 67't .~sr. 1;:)72 Ol 17 64 t:H G Rl.di:H T CREEK 14 E~ AK -253
19QC:. 2 P5R b/4 ~ST 572 01 17 o4 CAMPtit.LL CREEK 14 E.* AK -760
19&r; t. t'!'>H (:,/4 f.i!lT '51? 01 )7 ·b4 1-'Elf:k;::, CR!::£K 14 E.* AK -728
}90c; 2 t'!l~ bl4 H~H '312 01 i , bit SHIJ.. l.t<Et:K 14 t.~ AK -12tjQ
J90t; t! P~R 674 AU I) OJ 31 64 PElEk;, CREEK 14 E* Ar( -241 -... ------
674 0
J9oc:; 2 PSR 6d4 ~OIJ 258 04 27 lB LAt\JN11 RIVER 14 B* AK 0
J9oc; 2 p:;~ br14 04 21 lR LAKtf'.."' RIVE.R 14 13* AK 8600
• I 90t:; 2 PSI-l bd4 (I'Jf U2'l Ot\ 17 22 LAKIN~ RIVEt{ 14 s~ AK 0
.. t'luc; ~ PSR 6d4 HSl 6.13 04 07 64 LA!\ INk RIVER 14 8* AK -5200 --------
.,_ .. ,_.
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USG~ POWtR SITE RESERVES AND ~LASSIFICATlONS
Ot.TAIL BY STATEtPSC•OATE Pl\u[. NO. 11.
MAR 03· 1~7b us:-.5:51
\olRC OFC WlJL~ NO,. Rf.V. NO. MONTrl DAY YEAR STREAM NAME BASIN ST AREA
CODE TYPE CAT. NO. ACRES
6t:s4 3400
~404 ~ t-'~R 12ij 1.2 06 lCJ KRU7u~Mt::PA RIVER AND TRIBS. 14 K* AK 10000
1905 2 PSR 7~€:\1 12 oo 19 PASS \..t<EEt< 14 84t AK 0
A404 2 PS~ 726 f>iOIJ 317 05 14 20 KRlJZ(,""MEPA RIVER ANU TRIBS. 14 K4t AK 0 --------
7t!6 10000
-1901. 2 p:;q 7!:)3 12 09 t20 HEVJLL.Ab!GEOO ISLAND 13 CE AK 2400
l'iO() ·2 P::,r~ 7S3 RST 684 OJ 06 75 ~EVtLLAGlGEDO ISLAND 13 CE AK -2400 --------
7:>3 0
A«t01 0 1-'SR 7btj 00 00 00 YUKON ~IVEH 14 .... Ar< 0 --------
1b8 0
"" . --------
PS~ 78754
---------
AK 9373409
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KNIK ~NO tURNAGAIN AHHS
~NIK ~ND TU~NAbAIN AHHS
KNIK ~ND TUHNAGAlN AHHS
I<N l !( ~UO TW1NAGA IN AHHS
KNll( kNO TU~Ni4uAIN AHiiS
I(NI~ ANO I~RNAGAIN AHMS
KNI~ kNO TUPNA<JAIN AHHS
~NI~ ~NO TURHAG~lN AHHS
~NI~ ~h~ TU~NAGAIN AHHS
~Nl~ kNO lUNNAGAIN AkHS
~NI~ kNO T~HNAbliN A~HS
KNI~ kNU TU~NAuAIN ARMS
~Nil( h~O TUANAtJAlN A~HS
MHK J<lm TIJIJ"!At•Ait-4 AH:1S
KNI~ ~NO lURNAGAIN AkHS
KNIK kNO TU~NA~AIN AHHS
~Nlk kNO TURNAtiAIN AWHS
~NI~ kNO TURNAGAIN ~~HS
dAHIINuf ISLAND
tJAtUUvf ISLAND
IIIARH ;:,P~JNG BAY
IIIARH ::»I'R !NG BAY
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G.:ological Survey
.I.Pr Site\ !.1<> 1'wa I l• n '" i
k~ ~':'r., Tl:KU N ll( \
c...-.R 161 •ll · !H 1 II.
Pur:m:\nt l.n uuthnT:t'' ,.N' rt! !11 m~' h·
the a~l (I! Mnl'Cil 3. lB';Y •':O ' ' .l J4 .1 I
u. s. r ) t I 1\~1. t by C•(!f.'of'!T'I t'ti\1 n: dm
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powt•r sttc:; L'l.-o!nr ns w:•· tllt·t t:to r,,_
mt\tn.:l it+ t.."lc Oml.nct .Stnl<'r$ r.T'ct ::mbJt;>c ~.
~o \.l.lld, ,..., .. 'illn!:' ~..:hr.c;; nne! th!R ~li\! ._, ..
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Vt>Yt.·d a.~ens. The lontion., i\lD ro.ft;tt2·~ 1 _,
to lh~ U. S. Or-'Jl"slc.N C!l..a7ciy topJ-· I .. ~:·n.?hic quadmnr,lu·; . r.nd da.illlf'd. b; 1 / ~,-
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Memorandum
'l7o:
F:rom:
Subject:
UNITED STATES
pgPARTME~NT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON 25, 0 .. C.
l•
:
Af?.R=Cli§'L~95B· ;\' ; , ..
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REC
Operations· S~pervi.sor, .Anchorage
Director
Power Site Classifieation No. 443
Please note sabj ect order in the Fedet'al Registelt of
February 19 at Page 1072 and have the Manager p~st his records.
We shall try to obtain another copy of the order for
your files~
For the Director:
}o-:;ld~,
Copy to: AA, Area 4
tH REPLY~EFER TO: ---.. -
5.04e:G
75904
75905
' ,.
"' ' It t;f:i4J'
I
UNITED STATES OF AivlERICA
FEDERAL POWER CO[.'fivliSSION
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Be.fore Commissioners: Jerome K. Kuykendall, Chairman; Frederick Stueck and
Arthur Kline.
LCL'Plds Wi their .S.lo-"11 in ) Docket No. DA-74-Alaska
Pow.er Site Classification No. 443 )
)
Bureau of Land t1anagement, United
States Department o£ the Interior
DE~NATION UNDER SECTION 24 OF
THE FEDERAL POWER ACT
(Issued June 1, 1961)
An application (FLM 1091.) was filed by the Bureau of Land Management~
United States Department of the Interior, for revocation of the power with-
drawal with respect to the following-described lands:
. -
·~ .. " -. -...
Alaska -Third J11dicial Division
Denali Project: Beginning at a point on the
Susitna River, longitude 147"l2 1 57" west,
latitude 62057 t 38" north, approximately 7.5
miles upstream from the Clecu·w-ater River •
All lar~ds upst1·eam from this point below the
2600-foot conto·~:xr. (tJee TaJJr~atnD. Nountains
D-1 and D-2; Gul.kana D-6; ar..'l Healy A-1, A-2,
B-1 and B-2 quacb;~angles.) Containing 83,500
acres.
Applicant desires to open the lands to entry to meet public demande
for recreational and commercial uses.
The above-des~ribed lands are wi.thdrawn in Power Site· Classification
No. 443, dated Feb~uary 13, 1958.
The l~nds arc located in ~outh cer1tral Alaskn in a t·nde T"::.lley near
the he::ciwa·ce~s of ···;,e Su~·itna E1~ver and itfi tribu~·:\ry, T:";?st Frrk, jl): t.
below t!1.e lt::' •. ding ...... 1ge o.f the r;.'.-1Ciers feec1.i!1g th~~.;e st;:eams. Porti•:ilS
of the 1nnd~ <Jre r ~~o inr:luded .!n a. s~1ort rct1ch nu.1.r tho mouth of tll~
East F~ir·1c Sur.itna :L.lver.
•
The suggested development of the Denali site, for which the lands vrere
withdrawn, as the s~cond::ry unit for the over-all Devil Cunyon Project 1
-vroulrl i.::.und:--."·e pr~·h; t.ically all :)f the lands. However, j ·i:, app'.:''l:."s th3.t the
ttnit r..:··J:iir-r~. ~.s b;r no me!.n=:3 the i'lnnl select-ton or desjcZl and. · .. Ja.t
C.cve:~.:::;r.::nt j ~ rer.rote.
r 17
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·~~~
I. Docket No. DA-74-Alaska
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The Commission-finds:
(1) Inasmuch as the lands are valuable for power purposes, the power
withdrawal with respect thereto should not be revoked.
. (2) Inasmuch as devel,-,pment does not appear inlrl".ipent and use of the
lands in the meantiree for other purposes ·will not injure materially their
power value, a determination as hereinafter provided is justified.
The Commission determines:
The value of the above-described lands will not be injured or destroyed
!or purposes of power development by location, entry~ or selection under
the public land laws, subject to the provisions of Section 24 of the Federal
Power Act, as amendedJ and subject to the condition tl:nt in the event said -
lands arc required for po.vor purpa3 es, any mpro~T"'ents or structi.lrcs placed
thereon which ohul1 be found to.intcrf~ro with such development shall be
rcnoved or relocated as m:ly be necessary to e&inate inter fcr~.mce '-d. th power
davelo}r.lent at no cost to the United States, its permit·Gc:es or licenscese·
By the Comrnissione
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Joseph H. Gutridej
Secretary.
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•. -.. l'llCllloranull.!u
St...~te Office
555 Cordova Street
Anchorage, Alaska 99501
To: Administrator, Alaska Power Administration
Ju.'1euu, Alaska
From: &tnte Dh~etJtor, Bureau of LS.&'1d 11anngcment
Subject: tlovoca.tion of PSC 443
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i't19.y 21, 1970
2321 (921)
Your referenc·
{721)
Your April 8 n1e1no on this subject asks for our review of the Caribou and
T0klanika projects in accordance with IJ!anual Supplement 2022 (Power).
.3as~d on ou1 .. rc·•.rlew (enclosed) we request yom; recoi.runendations as to
power valu(~s. II no suuh valt~es exist; we recommend complete revocation
of thesu 'vVithdr:.Tvlals, not merely a Section 24 restoration to entry.
Our r~cords u1·~ in keeping with the F~bruary 21, 1958 publication 1f PSC ;J:43.
ThG Golll Project does not :.1ppear on thern .
/s/ T. G. Bingham
Acting
£aclos;.uy_. J
·~ncl. 1 -Hcview
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PSC 443
(Caribou and Teklantka Projects)
~ate: February 21, 1958
ldentj.ty: 1. Ca1:ibou Project: on Caribou Creek in Tps ... 20 and 21 N .. , R. 10 E.,
T. 21 Na, R. 11 E~ , Slvi
2. Toidanikn Project: on Teklanika River west of Healy, Alaska,
beginning at longitude 141:>0 31 '48ff \V. ,
latitude 63° 58'08" N.
1~:dstlug De\relopn:ents or Uses: portions of these projects are within· the BL.J\-I
Copper H.i ver multiple use classification and
are in tO"W'TlShipa selected by the State of Alaska.
There are also individual isolated claims and
selections iu the general area. No known BL~l
progran1.s except for the Copper River classifica-
tion.
Pott::nt1al Development or Uses: possible enlnrgemcut of or additional State
selections. Multiple use 1nanagement by BLl\1
within the Copper River classification.
Cov_fllcts with BLh! Progran1s: multiple use management within the BL~1: classi-
fied areas, State selections.
Het;on:.m.endn.tions: should biJ canceled.
l·~p
,... Fl'ida;t, \larch 8, 1963 Ji: L. ").:i FEDERAL REGi.iTER
~l_.::. T l j S ., ·1 £ .. ' Sc-••• \ s :.
St.~'-' 19. :..:. ~'• 22. aDd :ZS;
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.iii' I· ' :s ... -e 24. N ''l;
Inquiries cancer:--\ng th•~ 1 ' nds s."tould
be addressed to ~he Mana(!.:l·, L&n..:i 0!-
fi.ce. Bureau or Land Management. Reno,
Nevada..
33!' .. n.. t.ae ,·egu, . . .ns in 4:. C . ·•
':ln.·-.. ;a ~d '!!) ....... u.rerrr.rl 1'1 ••• v ~PPb· .1r the reservation to thf· Siut.e
or to any oi lt:. p.· .ltlcal subdinstorus
under 1.n'· c:r.a.tutr ~.• r£>gulation appli-
cable ·;nf :cto of an'} ' the ln nds re-
quired !01 n rtght-o~ "'·~Y fat '"' public
highway :1r b.S a. soar•'f' ot mat<·r:als for-
the co:l.Structio::t a..."ld ma.intenmwe of
such highways in acc··:1rdance \\'H.h the
proviSions of s~tion 24: o! thc-I-,ederal
Power Act of June 10, 1920 • ~1 St!\t
1075; 16 U.S.C;. 818>. as amt!J1rlt•t •.
. . . 5-!C' n, N 11. T.: . ·~ F. Jomr A. CAR\fD, Jr.
:.:i Sc< tO .. -4 •• 1.
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A.!.rista.nt SecrettlT'JI OJ the Interior.
MAKClt 4, 1963. ~ l)cc 6, N•.
I_ IJ·.· Most of thl.' land ha:; oecn patented to
(P.R. Doc. 03 2467: Flled. Mar. 1. 1ga:
• t&;e ~tnt"-c. I N__.vada under the provisions
\l . · o! Uu! Act of June 8, 1926 <44 Stat. 708>.
B:tSl a.m.]
! with a. reservation ot t.he minerals to
II·.. the United States. The remainintr pub-
_lic l::mds a.re tn p&U"t 1ncluded 1D wtUl-
drnwaJ: for other purpose,!.
[Public Land Ord.et 29151 J
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2. The followina-descrtbed lands are
the public lands, · and patented lands
reconveyed to the United States, which
a.rc not, otherwise withdrawn tor other
purpo~. ~
:MOVNT DIA&O Ml:aiDuK
b. All other valid appli\!a .: •. 111s
selections under the nonmincrnl puC1l1.;
land laws presented llt or prior tu 1 n 00
Opening of tands·Unde· Section 2.4 of a.m. on June 3. 196:J Will be con:.tdi·t·ed
1 Fa.irba.nks 0304 7 4. J
ALASKA
. FederaJ Power Act as simultaneously titcd at thnL hour.
Ri~rhts under sucn r pplica tions and
1. In DA~74-Alaska. tht"" :'ederal Power selections fUed nftR~ rhat hc .. ur \nll l;)e
Commt.s.sion determined w.at the value governed by the t1me ..,. filing-.
of the following-described land3 in c The lands hn.ve been open to ap-
Alaska, withdrawn il!.~!lW~ ~1te Classi."l-plication-; and otr.::J-s under thr miner: •
T. 23 s. '' '"1
£ · cation No. 44:~ o! February 13, 1958. will leasing law~. a.nd to location under tt:c:
Si:o t., _,
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• not be lnjured or destroyed tor purposes United States mining lr.ws subject to tht' . T 1 • .-. 1 ~t! E:.. t d 1 t ~.. 1 ti 4--· ,, o power eve opmen YY oca on. en!IO&;;, "'rovis!ons of the Act oi Augu·st 11. 1955 &·· • ' 2 1:> 12 • 1 ~
St:c 1_ or selection under the public .land aws. ( 69 Stat. 582; 30 U .s.c 621 >. ThC'Y wil,
sec _:;I ~\\ •• subject to the provisions of section 24 be open to settlement under the home-
Sec '·l Nl:.·o~: ot the Federal Power Act, as amended, stead and Alaska homesite law~ at. 10·0
Sec .•. -. w · 4 \\' "2. and subject to the condition that 1n the a.m. on June 3, 1963.
sec 2o NW _.~>~W~; event said lands are required for power 4 Any disposals or .. e land:; !mall '
6ec ~-: NF.~. w~. and SEtA. purposes. any improvem. £lt.s o:-str~c-subJect to the provisions of section ;"A ~ ~c5 i 0~ k:~:;a andNW%~~; ture3 placed thereon which shall be of the Federal Power Act, suprn, nnd to
Sec. 2o, W'~ WJh, E'hNW%. and Nlf.lNE%: !ound to interfere with such development . the condition specified by th. Federal
sec. :H. NE)c .nd E 1ABE'4: "Shall be removed or relocated as may bel Power Commission in its determmation.
Sec 22,W 1 ~swy..,andSE~SW%. neeessary to eliminate interference witl:lt Asmallportlonofthelandsfnll~with-
The Innds in T. 17 S., R. 66 E., d.~-power development at no cost to th~; in the Anchorage Land District. Most
"b d bove have been independentl7 United States, its permittees o.r licensees.. of the lands are in the Fairbanks Land ~~ey~ and are now described u: ,. ~) ~ J I € :: HX n~A~ PltO.lECT District. Inquiries should be a.ddressed
· MounT DLuJ.o Ml:amuJI' _,-·Br:ginnlng nt. a. Pt'l~t on the SUL'itna .Rivet·, to the Manager, Land 9mce. Bureau o!
T. 1'7 S .• R. a~ E ..
Sec.l2, E1,~ Lot 5, Iota a. 7. EY.. Lot 8;
Sec. 13 ...ot 2, E% Lot 3, E1~ Lot 8, lata a,
10. E:~. aot 11, E¥,a Lot US, Lot l'l;
Sec. 24. U.n. t, E 1/:: Lot :1;
sec. 25, Lot6 2-16,1ncl.;
:Sec. 26. L::.us 12 and 13;
longitude 14"/.12'5'7"' w .. latitude CJ2•S'7':Sa•• Land Management. Fwrba.nlrs, Ala..o;ka.
N.,o.pproxlmately 7.5 muea upatrea.:n !rom tbe Jo A c·" Tr ~ HN • ARVER, ~ ., Clearwater Rlvcr. All land& upstream .. rm:11 t th I ·
this point below the 2eoo-toot cantaUir. Auu ant Secretary of e nt~nur.
(See =rallccetn& Mounta.ina D-1 &ncl D-:t: MAaCK 4, 1963.
Gulkana D~ and BeoJr A-i. A-2, B-1. a.D.d
B-2 quadrangles.) (P.R. Doc. 83-2468: L'.,llcd, Mnr. '! •• G~;
.:5ec. 2':". SE%~E!4. 8 1hNE~BE%,
NWI.~SE~4. E'AzSW~SE!/4:
BB'4 The area descrtbed contains approxi-8.49 n m I
mately 83,500 acres. Some c.! the lands
Sec. J4 E'::Elh, E% W 1hE'h:
Sec 'l· I.nu l-9, 1ncJ .• W'h Lot
sv. ._.;::,!:.1,.. sw~. s~NW'4_;
Sec. 36, Lots 1 n.nd2.
u. w~ :r~u~i~~~~~-na:~r~:~~~~i:~~;~~ Title 47-TEl.ECOMMUNJGATION
'l' 11 s •. R aa•."2 E .•
Sec. 7. Lut.s 1 A, incl.;
Sec. 1-:..C~ 1-6.1ncl ~·~NW';,. SW'4
Sec ~ 9 l.ot4 1. 2 a.nd 3
T. 18 S .• R. Oo E.. , ao acres In unsubc1lvlQ2C't townahlp wrnch wm probllbly, ~·nen. rubdl"fldec!. be
deacribt:d aa:
3ec. 2, NW1,4NWY,,NE~·· NlAzNE'ANW'A.
N~NW!4NW!4;
5uc. 3, N%NE%NE'{.l, NE!4NW!4NE!4.
T) .rea.s described agr.regate approx-
imm.ea, ~.931.36 acres.
3 r ·~ective at 10:00 a.m. on April 9,
1963 .he lands described in paragraph 2
h1·rcu! are hereby restored to the opera-
ti •• n of the publlc land laws. suoje~t to
nn:>' valid PXisMng rights and equitable
cltums. the provisions o! existing with-
drawals, a.od~the requirement-5 o! appli-
cable law, rules and regulatioru. The
lands have been open to applications and
offers under the mineral leasing laws,
and to location !or metalll!erous min-
erals. 'Tiley will be open to location for
non-metalliferous minerals beginning at
10!00 a.m. on April 9, 1963.
cation ror patent filed &..Y the State ot
Alaska.
2. The lands a.re locatkd in south cran-
tral Alaska in a wide valley near the
headwaters o! the Susitn.J. River and; its
tributary, West Fork. ·.1st below the
leading edge of the glacie. s feeding t.J:lese
.streams. Some a.re also tncluded lm a.
short reach near the nlout.l of the East
Fork Susitnn. River. Terraia is hill~r and
treeless. except along the bank.a of
strca~. Vcgctn.tivc c·over consists
mostly of tundra-type m . .>sses, !orbs. and
berry bushc:>.
3. Subject "to any existing valid rights
and the requirements of applicable law,
the public lands nre hereby opened to
settlement and to filing o! such applicn.-
tions, selections. and locations as are
allowable on unsurveyed lands in ac-
cordance w.ilh the !allowing:
a. Until 10:00 a.m. on June 3, 1963,
the state o! Alaska. shall ha.ve ( 1 > a
preferred right to select the lands in
accordance with the provisions o! the
.\ct o! July Z8, 1956 (70 Stat. 709; 48 t:.s.c. 46-3b>, sertion 6Cg> o! the Alaska
&~t.ehood Act of July 7, 1956 <72 Stat.
Chapter 1-Federal Communication!
Commission
[DocketNo ·"601: RM2271
PART 3-RADIO BROADCAST
SERVICES
Uso of Automatic Logging Devices
The Commission's report a· . ·1rder
<FCC 63-184) ln the abov. .., ,
matter. adopted Febr· .~ 20, \ a. •• .:l
published in the FEDERAL REGI~r:·,. ;,; Feb-
ruary 28. 1963 (28 F.R. 1872> , :~ ·rrccted
as follow.:i:
1. Foct,note 1 o! th1' report .• net order
lists as a pa.rLy filin~ f'omments lhc Na-
tional Association o! Broa(h nstin~.
This or~amzarion utle is co:'l"t'C'l ·d 1\1
read Na.t1on!\l A~ociation . Bt·cad-
casters.
2. The headnote .~ t new § 3. !;) 1s co.
rected to read:
§ 3.115 RNentio•' u\ lug!.
3, Sectit.n 3.283 c b, • 8> is corrected by
the addition o! a. se:ntence. to rca.~ as
follows:
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United States Department of the Interior
BUREAU OF LAND MANAGEMENT
State Office
555 Cordova Street
Anchorage, Alaska 99501
IN FIEf-'l.Y REFE~ iO~
2650.17 (941)
MAY 0 3 1976
Memorandum
To:
From:
Regiona1 Solicitor, Office of the Solicitor
Anchorage, Alaska
Sta.te Director, Bureau of Land Management
Subject: Determination o£ Validity of Village Selection
Applications Within the Cook Inlet Region
Enclosed is a copy of a draft decision to be used in rejecting the
improper selections made by various villages in the Cook Inlet Region,
under section 12 of the Alaska Native Claims Settlement Act (P.L. 92-203).
i~e rejection of the selections is based on noncompliance with the •
mandatory selection requirements for compactness and contiguity and on
the unavailability of lands for village selection.
As documented in a memorandum of April 10, 1976, from the Director's
Office (copy enclosed), those lands withdrawn by PLO 5255, as amended by
PLO 5411, are not available for vil:i..~ge 'selection under ANCSA. Certain
applications are therefore being rejected for this reason.. Portions of
the lands within the exterior boundaries of l?LO 525 5 are withdrawn by
Power S~te Classif~cation 443, dated February 13, l958G
Section 12(e) of the Omnibus Act (P.L. 94-204) states:
The Secretary may, notwithstanding any other provision
of law to the contrary, convey title to lands and inter-
ests in lands selected by Native corporations within the
exterior boundaries of Power Site Classification 443,
February 13, 1958, to such corporations, subject to the
reservations required by section 24 of the Federal Power
Act. This conveyance shall be considered or treated as a
conveyance under the Settlement Act.
In a letter dated March 31, 1976, Cook Inlet Region, Inc. contends that
the purpose of this provision was to expressly validate the village
selections made for the lands in Power Site Classification 443, in light
of BLM's determination that power site classifications are segregated
from deficiency withdrawals under section ll(a) (3) of ANCSA. (Copy of
CIRI' s letter and attachments are enclosed.) This provision, giving t."le
Secretary discretionary authority to convey lands within the exterior
boundaries of PSC 443, was apparently wordeg as such, the authors assuming
that the lands t .~t'roy.ndipg the classification and under PLO 5255 wer~
available for village selection.
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DS~S section l2(e) of P.L. 94-20~ validate the village selection applica-
tions for lands within PSC 443, made under section 12 of ANCSA?. Or is
the authority~ convey lands within PSC 443 to the Native corPorations
limited only to section 12(b) selections which could be made under Vll.A
of the "Terms and Conditions for:Land Consolidation and Management in
Cook Inlet Area 9
11 as ratified bytPeL. 94-204? If this were true, is the
Secretary also authorized to make conveyances without the exterior
boundaries of PSC 443?
Also, as stated in the draft decision, because of the unresolved eligi-
bility·status of Alexander Creek and Salamatof, which are cbrrently in
litigation, the app~ications were filed in up to four methods to cover
all alternatives. The met~lods are explained in the decision. Actions
taken in the decision would be inevitable under any determination of
eligibility. Please determine whether or not issuance of the decision
would have any effect on the outcome of the cases in litigation.
Please. expedite your review and opinion.
Enclosures:
Draft Decision
Cy Director's Memo dtd 4/10/76
Cy CIRI's Ltr dtd 3/31/76
(w/attachments)
cc:
Powersite Classification 443 file
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Uniteu ~tates Departtitent of the iM,"eripf:::-(4 ., !":
OFFICE OF THE SOUCITOR ,1·. ,.., .. ~ l L -.;;·_~·O{ f r/l 1 IJ IN SDLT azna TO~
ANCHORAGE REGION I:.-;;. i ;-' ~ II
1 I "/)~ 011 W. 6th Ave •• Suite 201 i r.n .,
Aidaorap, AlMii 99501 P. =-""~ :i/i 1/J 4NcjjCct~, o
· 0R4 0 ~i1y 14, 1976
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Memorandum
To: State Director, Bureau of Land Management
From: Regional Solicitor, Anchorage
Subje~t: Determination of Validity of Village Selection Applications
Within Cook Inlet Region ·
The foUow:tng memorandum opinion is forw-arded in response to the follow-
ing issues raised ·in your memorandum request of May 3, 1976. .. .
1. Does section 12(e) of P.L. 94-204 Yalidate the villa'te selection
applications for lands within PSC 443, m~de under section 12 of AJ.'itSA?
Sectio~ 12 (e) of P .L. 94-204 states:
The Secretary may, not withstanding a'i.ty other provision
of law to the contrary, convey title to lt:mds and interests
in lands selected by Native corporations within the exterior
boundaries of Power Site Classification 443, February 13,
1958, to such corporations, subject to the reservations
required by section 24 of the Federal Power Act. This
conveyance shs.ll be considered. and treated as a cgn-
veyance under the Settlement Act.
This provision is the result of Section V of the Terms and Conditions
...
for Land Consolidation and Management in the Cook Inlet Area. -December 10 ' ..
1975, which stated that: ___ ,
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The Secretary, CIRI, and the State shaU seek legislation
authorizing the Secretary to convey title to those selec-
tions by Native Corporations within the exterior of Power
Site Classification 443, February 13, 1958, provided how-
ever, that the patents conveying the above described
lands shall contain the reservations required by Section 24
oftheFederalPowerAct, 16U.S.C. 818. H.R. 94-7291
94th Cong. , 1st Sess. , 43 (1975).
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5J~ce section 12 (e) referred to lands "selected by Native corpora-
tions" and Section V of Terms and Conditions for Land Consolidation
and l\1anagement of the Cook Inlet Area referred to "those selections by
Native corporations , " section 12 (e) is construed to resolve previous selec-
tions and is remedial in nature rathet' t.h 1ID prospective in nature like section
12 (h) which permits new selections for section 12 (b) purposes. Section
12.(e), therefore, is a v.alidation of previous selection applications made
under section 12 of ANCSA. However, it must be noted that section
12(e) of P.L. 94-204 does not take effect until the three conditions of
section 12(a) of P .L. 94-204 have been satisfied.
2. Is the authoritv to convey lands within PSC 443 to the Native
corporations limited only to section 12 (b) selections which could be made
under VII .A of the Terms and Conditions for Land Consolidation and
--·""'"''----------------:-~----------.---?danagement in Cook Inlet Area, as ratified by P .L. 94-204? .
The language of section 12 {e) of PoL. 94-204 does not make any
distinctions between 12 (a) and 12 (b) seleqtions. Based upon the construc-
tion taken in section 1 above, the authority to convey lands within PSC 443
is not limited to 12(b) selections. The only specific limitation, "not with-
standing any other provision of law to the contrary," is that any conveyance
issued within PSC 443 be subject to the reservations of section 24 of the
Federal Power Act, 16 U .. S.C. 818.
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3. If this were true (referring Jo the issue in section 2 above) , is the
Secretary also authorized to make conveyance without the exterior bound-
· aries of p·sc 443?
PLO 5255 established the basic purpose for the withdrawal of lands
on the exterior boundaries of PSC 443.
The purpose of this order is to supplement Public Land
Order No. 5174, by reserving additional lands for selec-
tion by ~hose village corporations that will be determined
by the Secretary to be eligible to make such selections,
and by the Regional Corporation for the approximate area
covered by the Cook Inlet Association, as provided for by
section 12 of the Act. 37 F .R. 18915 (Sept. 16, 1972).
On April 19, 1976, the Director, Bureau of Land Management,
issued a memorandum which addressed, among other things, the question
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of selection rights within those lands withdrawn by PLO 5 255. The Director .
set out the Department•s position: "None of tl'le lands described in paragraph
1 of PLO ~~5 were available for village selection until specifically withdrawn
for that purpose." The Director went on to snalyze the Department's pQsition,
concluding: "Therefore, all section 12 (a) village selections made on lands
not deleted from paragraph 1 of PLO 5255, which are described below (lands
which encompass the exterior boundaries of PSC 443), must be rejected."
The Department's present position is based upon an intei~retation made
contemporaneously to the issuance of PLO 5255 in September 1972 (as indi-
cated by the ~oloration of the Series E withdrawal map). Under the doctrine of.
contemporaneous construction as premised in Udall v. Tallman, 380 U.S. 1
(1965) , the Director1 s interpretation, unless clearly erroneous , is to be
given great deference "when faced with a problem of statutory construction."
"Particularly is this respect due when the administrative
practice at stake 'involves a contemporaneous construc-
tion of a statute by the men charged with the responsibility
of setting its machinery in motion, of making the parts
work efficiently and smoothly while they are yet untried
and new.'" (Citations omitted.) When the construction of
an administrative regulation rather than a statute is in
issue, deference is even more clearly in order. At 16.
Therefore, except as noted in section 1 above, the Director's
position on section 12 (a) selections is dispositive of this issue.
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4. Please determine whether or not issuance of the decision would
have any effect on the out cor ~e of the cases in litigation.
As long as no conveyances are issued, a decision to reject would
not affect the outcome of any of the cases in litigation. This position reflects
the stipulations reached in Koniag-, Inc. , et a1 v. ~orton, Civ. No. 74-1061,
D .D.C. which permit BL.M to continue processing selection applications of
the villages which are in·volved in this litigation 5
Enclosure:
Memo of Director, BU.l ,
dated April 19, 1976
r~ " ,.,,CJa·· ~ ,,, ~~~... /;'1 ll/ZA:L
_,John W. Burke III
(,For the Regional Solicitor
Anchorage Region
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LJ ni leu States l)cpartnlenl ol the I rHeri<>r
: !tll-l Ef,LJ ()F LAND MANAGCMEI"rr
State Office
555 Cordova Street
Anchorage, Alaska 99501
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26Sl (941)
JUN l ~~II
Memorandum
To: Regional Solicitor, Office of the Solicitor
Anchorage, Alas~a
11 • • • 10
!I \! ;. -•77 ... -... ..,..
Fr"m: State Director, Bureau of Land Management
Subject: Selection ~nd Conveyance of Power Projects Under the Alaska
Native Claims Settlement Act
Problems have arisen in three regions, with possibility of recurrence,
concerning the conveyance of power projects to Native villages.
Our foremost questions are as follows:
l. Can we convey to"a Native village corporation land in a power project.
which is located in a core or concentric ring township if a license
ha~ bl:'en is~ucci by the Federal Power Commission, but no work has been
instituted toward construction of a power project, yet the license is
still in effect?
2. Can we make such a conveyance if a lic~nse had been issued at one
time, expired at a late~ date, no construction accomplished, but the
power proj~ct ha~ not been vacated ·by a determination of the Federal
Power Conunis s ion?
3. If there is in actuality a project, developed by a licensee~ would
this improved area be covered under Sec. 3(e) of ANCSA as a Federal
interest in the land to be retained, or would conveyance be issued
"subject to" the p<.lwer project? "'
We are of the upinion that Sec. 3(e) would be involved only if the
power project is constructed by a Federal ~gency.
In most cnscs, the licensee for a project is a private individual or
company .
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HemoranduQl
To:
From:
Subject.
St..ll·~ Office
555 Cordov3 Street
Anchorage, Alaska 99501
Regioual Solicitor, Office of the Solicitor
Anchor~g~. Alaska
State Director, Bureau of Land Management
2650.17 (941
JUL 1 9
Conveyan~c of Lands Within Power Site Classification 443 to
Cook Inlet Reg~on, Inc.
Section 12(c) of Puhli.c Law 94-204 (85 Stat. 1153) authorizes conveyance
of title to lands and interests, sC!lccted by Cook·Inlet Native corporations,
in lands located within the boundaries of Power Site Classification 443
of February 13, 1958. The convey3nces would be subject to the reservations
required by section 24 of the Federal Power Act (16 U.S.C. 818).
This provi5ion w;w specifically included in the act as the l.'lnds in
PSC 443 were not withdrawn for selection by the Native corporations.
The adjoining land~ ·Nere withdra\..'n pursuant to section ll(a)(3) of the
Alaska Native Cl:1ims Settelment Act, but since that section pro"lided for
withdrawal of unreserved, vacant and una~propriated public lands, the
lands in PSC 443 were not withdrawn.
lio action has been, or can be, taken to convey lands thus authorized,
because the provisions of section 12 of P.L. 94-204 are not yet in
effect (see section 12(a)).
Conveyance of th~~e classified lands, subject to section 24 of t~e FPA
is next mention~d in Part I of the agreement of August 31, 1976 between
t~c Secretary of Lhc Interior and CIRI. Al~o, in Appendix A of the
agreement, the description of the lands wlri ch shall..,e convr.-ved is in
whole sections :1nd does not exclude the classified-l~nds. This implies
~1pproval of :;uch conveyance; however, the agreement itself doe!~ not
amend the provision~ of section ll(a)(3) of ~~CSA.
Y()\1 will note: thal :wcti.on 4 of P.L. 94-456 (90 Stat. 1933) authorizes
conveyance of luncls under application for selection by the village
corporations to C!H l. for reconveyance ,.by CIRI to such village corporations.
The lnnds under .1ppl ic:1tion do inclUt.!c those lnnds within PSC 4l•3.
Howl'vcr, Uti<; doc:.; aot .1ppcnr "::.o amend section ll(a) (.J) of A.."'CSA which
Hou 1 d allow C'>nvcya :ice of rcsc rvcd 1 Jnds , J s docs th':.! specific \vO rding
given in section 1::.{t:) of P.L. 91~-20/+; nor docs section 4 of f.'.L. 91+-456
spt!<.:ific:ally r:Jt.it'u:s ot· 1·efcrs lt.) the agn.!('went of August 31, llj76.
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Bc:1zet.l on the above.! inforr.ta.tion, •..;c h:1ve dct~rmincrl that cor:vtty.'lnccs of
land made to CIRl c~nnot legally include the l:1n~s in PSC 443, unless
and until section l:! of P.L. 94-204 C;Jn be implt:mcntcd.
Your concurrence and/or comments on this detcrminc:1tion .:~re ref.Iuested.
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UNITED STATES . . .
DEPAnTMENT OF THE INTERIOR
, OFFICE OF THE SOLICITOR
WASHINGTON. D.C. 20240
/}4-,~ G~t~tv~aAI (§_[]/ JI/3·/'IOZG
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0GT'2 7 1977
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Memorandum
To:
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From:
Subj:
Assistant Sec:retary, 'Liu1d and Water Resources
Associate Solic~tor, Division of Energy and Resources
Susceptibility of power sites to selection by Alaskan
Native corporations and the appl~cability of
se9tion·24 of the Federal Power Act to the conveyance
of any such selections
You have asked "How are conveyances to corporations affected
by r;ower site classifications and reserves and projects?n
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3.
Power site classificat~on lands included in
convey~nces. .
a. Subject.to section 24 FPA -· .
b. Not subject to section.2~
Po~ler :site reserve lands included in cot1veyances ..
a. SUbject to section 24 FP~
b. Not subjact to section 24
Power ~roject.lands includAd in conveyances.
a. SUbject to section 24 FPA
b. Not sUbject to section 24
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1 u~ On December 18, 1971, the Alaska Nativet Clains Settlement
J ~ · Act (AJ:.IGSA} became law (43 U.S .C. 1601). '1.'\-lo sections ·)f
that Act made i.-lithdrawals' for regional and village selections, I m: i.e.' 43 u.s .c. 1610 (a} (1} and 1615 (a) • One section, 43 u.s. c. l j 1610 (a) (3), authorized the Secretary to make withdrawals for
regional ?~d village selections whenever the lands withdrawn. IJ! under section 1610 (a) (1) '"ere insufficient. The language in
~ each section describing the lands wi thdra\'ln or which may be .. ~ JJ~ wi thd.ra\vn is different and it is believed that those differen.c~s
J ",j are relevant to the questions you. have asked.
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' ') ·I :: J ~ l r~· 4J· U':S.C. 1602 (c), contain·S the definition. Of public lands
t ~ ~ ~ as 1:hat term i·s used in Al~CSA. It provid~s:
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'I ' r 1 · • ~ J " u (e) • public lands a means all Federal 'lands and
'! l l ; ~ i '' interests therein located in Aluska except:
~ ( f' (1) the smallest practicable tract, as determined
~ f l by the Secretary, enclosing land actually used in
i i connection with the administration of any Federal
I l f • installation, and (2) land selections ·of the State j!1 ; of Alaska whicli have been patented or tentatively
rl ~ . approved under section 6(g) of the Alaska Statehood ill r ! •• Act, as ~unended (72, Stat .. 341, 77 Stat. 223) I or
~~ ~ ) .• io.entified for· selection by the State prior to
iij January ~7, l969;h
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Iii l r :.43 u.s.c. 1610 (a} (1) provides:
· i l · ·" (a) {1) The following public; land's eire withdrawn,
~ ' subject to valid existing rights, f.t:om all forms
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of appropriation under the public land laws, inc1ud-
ing the mining and mineral leasing laws, and from
selection under the Alaska Statehood Act, as amended:-
(A) The lands in each township that encloses
al1 or part of any Native village identified pursu-
ant to subsection (b) of this s~ction;
(B) The lands in each 'township that is contigu-·
ous to or corners on the township'that encloses all
or part of such Native village; and
(C) The lands in each township that is contigu-
ous to or corners on a township containing lands
withdrawn by paragraph {B) of this subsection.
The following lands are excepted from .such withdrawal:-.
lanqs in the National Park System and lands withdrawn
or reserved for national defense purposes other than
Naval Petroleum Reserve Nwnbered 4." ·
·. liFrom the languag·e of section 1610 (a) (1) it is ·clear that all
public l~ds as that term is defined in section l602(e) are ! ;''~i thdrawn except: (a) national defense lands; (b)' Nati.onal
.. Park Systems lands_; {c) the:· smallest practicable tract oi
land enclosing those lands actually used in connection with lf_:any Federal installation.
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The withdrawal in 1610 (a) (1) therefore inc·ludcs reserved. and . , .
appropriated lands· such as those in a power site reserv~,
pow·er site _c;la~sification or a power project regardless of
whether it was instituted by the Corps of Engineers (COE),
the Alaska Power Administration (APA}, or a private licehsee
before the Federal Power Commission (FPC). Since the with-
drawal is made subject.to valid existing rights and the
conveyanc~ of the land will be made· subject to 43 U.S.~. 1613{g)
the selecting corporation will take the land subject to any .
outstanding leases, licenses, permits, or rights-of-way that
have been g.·canted to any licensee. ·The lands actually_ used
'in·eonnection wit~ any ~ederal project are excluded from the
selection by virtue· of the ter.ms o£ section 3(e).
On the other hand, 43 u.s.c. l6lO(a) (3) (A) provides:
"J:f the Secretary determines that the lands
-withdrawn by subsections (~) (1) and· (2)· hereof
are insufficient to per.mit a ·g~llage or Regional
Corporation to select the acr~age it is entitled
to select, the Secretary shall w~thc~aw three
times the deficiency from the neare$t unreserved, . . _ ..
va~ant and unappropriated public lands. In
making this wi thdrawa~ the Secretary shall,
insofar as possible, withdraw p~lic lands of a
character similar to those on which the village
is locate~ and in order. of their proximity to
the center of the Native village: Provided,
That if the Secretary, pursuant to section 1616,
and 162l(e) of this tit~e deter.mines there is a
need to expand the boundaries of a National
Wildlife Refuge to replace any acreage selected
in the Wildlife Refuge System ~Y the Village
·Corporation the withdrawal un~er this section
shall not· include la~ds in the Re;fuge· ... ..
As can be seen, this sectic1n exclu.des from the lands. that
maybe withdrawn by the Secretary lands which are reserved,
occupied, or appropriated. Section 24 of the Federa~ Power
Act, 16 u .. s.c. 818, and the definition of reservations in
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16 u.s.c. 796 each make it clear that power site classifica-
tions, po'\ver site reservation and p9wer projects al~ constitute·
both reservations and appropriations. The taking of public
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. l~nds by flooding, or by the construction of transmission
line·s wi thout."the formal withdrawal of those lines by
classification or reservation nevertheless constitute
appropriations. See Wilcox v. Jackson, 38 u.s. 496 (1839);
Grisar v. McDowell, 73 U.S. 363, 380 (1867); and 44 LD 513.
Since on1y unreserved, vacant and unappropriated lands could
be withdrawn by the Secrctar:-r under 43 u.s~c. 1610 (a) (3) and
since the Natives could only select from lands withdrawn under
43 u .s·.c 1610 (a) or 43 u.s .c 1615 (a) (See 43 u.s .c. 1611 (a)
and (c), and 43 u.s.c. 1615 (b)), any reservatio-n, occupation,
or appropriation is automatical.ly excluded from a ·,'l:lthdrawal
under 43 u.s.c. 1610 (a) (3) as being unauthorized.· Consequently, .
..._no p_9wer site classification, power site reserve, po,~er prpjec:t
2r land reserved by virtue of the filing of a license with the
FPC pursuaut to 16 u.s.c. 818 can be included within any
d~ficiency withdrawal.
In those argas withdrawn by 43 u.s.c. I610(a) (1) or 43 U.S.C.~.
1615(a) the Congress itself withdrew the lands and made them
available for Native selection. Note that section 24 of the
Federal·Power Act, 16 u.s.c. _818, provides· for the FPC.to
~determine which lands will be.open for settlement entry or
selection and for that agency to determine the terms ar.d·
conditions that ~-1ill. be included in any patent. That
section provides:
11 Any lands of the United States included in any
proposed project under the provisions of sections 792, 793,
795-818, and 820-823 of this title shall from the -
date of filinq of application therefor be reserved
from .antry, location, or·other disposal under the
laws of the United States unt·il otherwis·e directed
by the commission or by Congress. Notice that such
app~ication has be~n made, together with the date
of filing thereof and a description of the lands
of the United States affected thereby, shall be·
filed in the local land office for the district in
which such lands are located.* Whenever the
commis-sion shall determine that the value of.any
lands of the United States so applied for, or
heretofore or hereafter reserved or classified as
po,-:er sites 1 will not· be injured or destroyed for
the purposes of po,.;er development by location,
entry, or· selection under the public land l'aws,
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the Secretary of the Interior, upon notice of
· such determi'~ation, shall declare such lands·
open to location, entry·, or selection, for such
purpose o~ purposes and under such r~strictions
as the Commission may determine, sUbject to and
with a reservation U'f the right of the United
States·or its permit~ees or licensees to enter
upon, occupy, and use a~y part or all of said
lands necessary, in the judgment of the Com-
mission, for the purposes of sections 792, 793, ·
795-818, and 82.0-823 of this· tii:le, which right
shall be ~pressly xeserved in every patent-issued
for such lands·: ·and no claim or right to compensa-
tion shall accrue from ·the· occu};?atiort or use of any
o£ said l~nds for said purposes. The United States
or any licensee for any such lands hereunder may
enter thereupon for the purposes of sections 792, . .
· ·793, 795-818, and 820-823 pf this ·title~, upon
pa~rment of any damages t.o crops, buildings, or
. other improvements caused thereby to the owner
thereof, or upon giving a good and sufficient
bond to the United States for the use and
benefit· of the owner to secure the payment o~
such damages as may be determined and fixed.in
an action brought upon the bond in a court of
competent .jurisdiction, said' bond to be in ·the ..
form prescribed by the Commission: Provided,
That locations, entries, selections, or filings
heretofore made for lands reserve9 as water-
power sites, or in connection with water-power
development, or electri~a~ transmission may
proceed to approval or patent under· and·subject
to the limitations and conditions in this
section contained: Provided further, That ..
before any lands applied for~ or heretofore
or hereafter reserved, or classified as ~
power sites, are declared open to location~
ent~y, or selection ~Y the Secretary of the
Interior, notice of intention to make such
declaration shall be given to the Governor
of the State within which such lands are
located, and such Sta'te shall have ninety
day~ from the date of such notice within
'vhich to file, under any statute or regula-
tion applicable thereto, an application for
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the rese;vation to the State, or any political
sub~ivision thareof, of any lands required as a
right-of-way for· a public highway or as a source
of materials for the construc·tion and maintenance
of such highways, ·and a copy of such application
shall be filed with the Federal Power Commission:
and cu"'ly location, entry,· or selection of ~uch lands,
or subsequent patent thereof, shall be subject to.
any rights granted the State pursuant .to such
application. sa
11 J By.virtue of the ~fferences of the two processes it is
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concluded that secti.on··24 and the procedures established
thereunder do not apply to lands within any power site
classification, power site reservation, po\-'ler project or
license application. As we have indicated previously, any
selection.by the Natives·will be conveyed sUbject to all the
rights, privileges, and the obligations of any outstanding
permit or license issued by tre FPC. Any lands actually
being used by· the APA or COE will not be conveyed. Any lands
needed for the future use of the APA or COE for easements may
be reserved by the Secretary under the procedures of 43 u.s.c=j
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State Office
535 CoTdova Street
luu:horage, Alilska 99501
To: Rag~oaal ~olicito~3 Office of the Solicito~
Anchorage, Alaak.s
Frena: State Director, Bureau of Land ~~.Age:tcnt
Subject: Con'V11yance of Lands 'Within Paver Sit,~
Cla!J.aifie3tiou 443 to Cook Inlet Ret;ion, Inc.
OD Dece:a!ber 2J •. 1977, there vas a meeting bet·,.men the Corps of Ensinaers 7
Department of Army and Bureau of L&t::.d Hanagem.Qllt representatives, 11t which
· you were present. The meet·ing concerned the Suaitna Drun Project and more
pareiculArly the prospective land ownership p4ttarn. Currently, tho Depurtmant
of Army needs right of entry to be~in f~anibility atudios for the project.
It vaa determined that letters of nanobjection must be obtained froo Cook
Inlet Region. Inc. nnd all village corpor~tions having selection application3
filed ~thin ~a areas involvad.
This m~randa2 is to recall our request for a le~~l opinion regardin~ the
land avail3bi11ty of those lands claseified ~~d~r P.S.C. 443 for conveyance
to Cook Inlat P~gion, Inc. ~nclosed is a copy of our ~~or~du~ dntcrl
Jul:y 19., 1977. ilnd other correspondence which will axpln.in our problc::1.-
Please revi~ and eomcent on our determination as soon an pon9ible. As
there could be more public involvement in the near future and to avoiu
unnecegsary controversy, wo vill need your opinion. Yonr nsaistanc~ 13
sincsro1y appreci3ted.
Enclosures:
Cy memo dtd 7/19/77
Cy memo dtd 5/14/76
Cy ~o dtd 5/J/76
Cy ca~ dtd 4/10/76
Cy CIRI's Ltr dtd J/31/76
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Solicitor, ~.ft'R~~en, ~.8.
Office of the Solicitor
U.S. Deparonent of the Interior
Washington, D.C. 20240
(w/enclosures)
Director (320)
Attn: Beau £-!c:Clurc
(w/enclosures)
DM-A (017)
(w I enclosures)
Division of Resources (930)
Attn: Mr. Bassett
(w/enclosures)
AJohnson:hd 1/9/78
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United States Departn1ent of the Interior
OFFICE OF THE SOLICITOR IX RF.PL Y REF!:R TO:
l\1emorandum
To:
From:
Subject:
ANCHORAGE REGION
51 0 L Street, Suite 408
Anchorage, .Alaska 99 SO 1
February 1, 1978
State Dir:ector, Bureau of Land Management, Alaska
Regional Solicitor, Anchorage
Selection and Conyeyance of PoT~rer Projects Under the Alaska
Native Claims Settlement Act
This is in reply to your memo dated June 1, 1977 asking three questions
regarding the above--referenced subj~ct. This was the subject of a .recent
opinion by the Associate Solicitor , Division of Energy and Resources , dated
October 27, 1977. He concluded that power site classification did not pre-
vent Native selections within the Section 11 (a) (1) or Section 16 withdrawal
areas but would prevent selections in other areas without specific legislative
authorization, as occurred with Power Site Classification 443. A license.
issued by ithe FPC would be treated as a valid existing right to which the
conveyance would be subject. A private project under federal license does
not involve a secti<J~ 3 (e) (1) determin.~~· . /7 t7 tJ
tj ~-~ p/'f/1 ~
r6n M. Allen
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United States Departn1eht of the Interior
OFFlCE OF THE SOLICITOR IN R.EPL Y REFER Tl
M~emorandum
Frc.lm:
Subject:
ANCHORAGE REGION
510 L Strt:l!t, Suitt: 408
Anchoragt:, Alaska 99501
February 1, 1978
State Director, Bureau of Land Management, Alaska
Regional Solicitor, Anchorage
Conveyance t:>f Lands Within Power Site Classification 443 to
Coo·k Inlet Region , Inc.
This responds to your memorandums dated July 17, 1977 and January 16,
1978 on the above-referenced subject. We conclude that the authorization
in P .L. 94-204 to convey lands in PSC 443 to Cook Inlet Native Corporation
was n\ot rescinded by implication by P .L. 94-456. We agree that con,reyance
of suc·h lands, however,. cannot be made until the conditions of secti,:>n 12
of P .L. 94-204 have been satisfied. /
.·/ /.-//crt-. 1111 ()._Q_j___ . /. .
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)ohn M. Allen
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6 Oct 75
23 Oct 75
15 Jan. 76
11 May 76
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14 May 76
{ 1 Feb 78
1 Feb 78
18 May 78
*Validity of selection of F-14943-B by Tanact·oss,
Inc.
Failure of government to properly withdraw land
which is contiguous or corners on the core
township invalidates the selection.
*Village selection of lands selected by the State
of Alaska under the Alaska Mental Uealth Enabling
Act.
(Se~ 14 Aug 74 opinion.) Washington challenges
the legal soundness of the earlier opinion.
Position is that~State gave up an equitable
title on lands for benefits of A.~CSA~
*Effect on Proclamations of June 15, 1908 and
t1ay 3, 1912 on Land ~laaagement under A}lCSA.
A 60-foot neutral strip along the U.s.~
Canadian bo.rder is available for selectivn
under ANCSA.
*Proceeds on lands selected under ANCSA and
National Wildlife Refuge Reserve System.
Discussion of escrow procedures is made.
*Determination of validity of village selections
applications within Cook Inlet Region (memo).
Q~estions on CIRI applications for Powar Site
Classification 443 are answered.
*Conveyance of lands within Power Site Classifi-
cation 443 to Cook Inlet Region, Ince
Authority to convey land.in PSC 4~ is present
once Sec. 12 of P.L. 94-204 is satisfied.
*Selection and conveyance of Powe'~ Projects
under &~CSA.
(See 27 Oct 77 opinion.) Power site classifi-
cation does not prevent Native selections within
Sec. ll(a)(l) or Sec. 16 withdrawal areas, but
wou,ld not allow selections in other areas ..
*Conveyance of Campbell Tract to the State
of Alaska Pursuant to P.L. 94-204.
BLM does not need concurrence of other agencies
before conveying land because of the mandatory
direction of the act.
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W11sgn L .. Condon
Attorney General
State of Alaska
Pouch K
Juneau, Alaska 99811
Dear Mr. Condon:
July 2~, 1982
I would like to request your assistance in determining the
effect of the Federal Statute that relates to land within the
Susitna Hydroelectric Project. Public Law 94-204 Section 12 (e)
seems to allow lands selected by Native Corporations within Federal
Power Site Classification 443 (Sus1tna Project) to be treated as
conveyances under the Settlement Act, subject only to the reservations
required by Section 24 of the Federal Power Act •
According to the B.L.M., much, if not all~ of the land within
Power Site. Classification 443 has been selected by Native Corporations.
Our concern is to understand the proper land ownership, which involves
the following questions:
1. What is the effect of selection by and conveyance to
Native Corporations under Public Law 94-204 of land withdrawn
under Federal Power Site Classification 443?
2. What title and interests will Native Corporations receive to
land 1n the Federal Power Site Classification 443 and what is
the effect of Section 24 of the Federal Power Act?
3o Under Section 24 of the Federal Power Act it appears that the
Secretary of the Interior must give notice to the Governor of
his intention to transfer land and that the Governor tnay
within 90 days of sue" notice declare a preference to'that
land. Has this procedure been followed, if it
hasn•t, would the Governor still have an opportunity to
declare a preference? If the Governor has or still can make a
t1mely declaration, what effect would this have upon these
lands?
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We would appreciate your assistance in determini~g these issues,
ar.d if there is any further 1nfo~~tion I can provide please let me
know..,
Sincerely,
// . \"' ~ !--. \: ) \ 1 {' ~Eric. P. Y~ld V '---· v'J.
Executive D1recto
CI/EY:js
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MEMORA"DUM Stele of Alaska
To: Eric P. Yould
Executive Director
Alaska Power Authority
DATE:
FILE NO:
REC.EJYED Se.ptember 16, !982
366 _068 _83 SEP 2 0 1982
FROM:
TELEPHONE NO:
WILSON L. CONDON
ATTORNEY GENERAL
By: Robert E. Pric~ ~ ~
Assistant Attorney General
SUBJECT:
46 5-310.0 At.Nr«A POWER AlmfORnY
Effect of ANCSA
selections on
Susitna Hydro
project
.
This is in response to your letter of July 26 which
requested the opinion of this office on several questions relat-
ing to selections by Native corporations within Power Site Clas-
sification 443 (Susitna project) pursuant to section 12(e) of the
Act of January 2, 1976, 89 Stat. 1153. Tha~ section provides as
follows:
The Secretary may, notwithstanding any other
provision of law to the contrary, convey ti-
tle to lands and interests in lands selected
by Native corporati~ns within the exterior
boundaries of Power Site Classification 443,
February 13, 1958, to such corporations, sub-
ject to the reservations required by section
24 of the Federal Power Act. This conveyance
shall be considered and treated as a convey-
ance under the Settlement Acts •.
In response to your first and second questions, a con-
~~~YJ.~e. ... t;Q. -~-tiat.i~.~-QQ.l-1'.Q:;ation within Powex:. Site. +.Classificati:on
443 yesta J;:itle to the land described in the conveyance in the
Native cgx:gora;tign subject to the provisions of section 24 of the
Federal Power Act, 16 U.S.C. 818, which provides in pertinent
part as follows:
. • • subject to and with a reservation of
the right of the United States or its
permittees or licensees to enter upon,
occupy, and use anY. part or all of said lands
necessary, in the judgment of the Commission,
for the purposes of this subchapter, which
right shall be expressly reserved in every
patent issued for such lands; and no claim or
right to compensation shall accrue from the
occupation or use e£ any of said lands for·
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Eric P. Yould
Alaska Power Authority
366-068-83
•
September 16, 1982
Page 2
said pU1~oses. The United States or any li-
censee. for any such. lands hereunder may enter
thereupon for the purposes of this subchap-
ter, upon payment of any damages to crops j'
b~ildingw, or other improvements caused
thereby to the owner thereof, or upon giving
a goqd and sufficient bond to the . United
States for the use and benefit of the owner
to secure the payment of such damages as may
be determined ,and.fixed in an action brought
upcn the bond in a court of competent juris-
diction, said bo·.nd to be in the form. pre-
s~rihed by the ct.llDDlission • .. •
The. section 24 reservatir~n provi.des in effect that the. State, if
a licensae·, must compe'':'lSate a Native corporation for any damages
to crops , buildings, ~~r other improvements. The damage~ , however,
are limited to that amount.
Your third question inquires about a 90 day preference
right of the State provided for in section 24 of the Federal
Power Act. First, it is necesst.t.ry to distinguish the 90 day
preference provided for in section 24 of the Federal Power Act
from the 90 day selection. preference pro"Ji.ded for "in section 6(g)
of th~ Statehood Act.. the Act of July 7, 1958, 72 Stat. 339. The
se~·tiot'\ Z4 Stat:e prefarence relates only to rights-of-way and
material sites for highw.::~·ys, whereas the Statehood Act preference
prc'\c~i.des that upon the ·revocation of any order of wl.thdrawal in
Ala!{~7ta that the order of revocation shall provide for a 90 day
pel !~:ld during which the State shall have a preferred right of
selection. TRe Statehood Act preference is also set out ir 43
C.F.R. 2627.4(a). Accordingly, in the case of a restoration of
lands to selection by the State under section 24 of the Federal
Powe~ Act, the State has a preference right under section 6(g) ot
the S_atehood Act. See: 43 C.F.R. 2320 .. 3. Your question is
whether the State is entitled ~o. the section 6(g) selection pref-
erence on lands within Power Site Classification 443 selected by
Native corporations pursn:,nt to section 12(e) of the Act of Janu-
ary 2, 1976. As a matt~r of law, it is difficult for the State
to argue against the CJ. :~ a::r~ langu:tge of section 12 (e) , which
g:rants a selection right tc Native cor,porations 11 uotrHithstanding
any othe;r provision of law to the contrary. . . . " It would be
necessary for the State to establish that the 90 day p-reference
wa$ part of the compact between the State ~ad the United State~,
and that a.s such it was necessarv to obta:t..n State con.sent to that
legislation~ See State of AlasK'a v. Lewis, 559 P. 2,d 630 (Alaska ---------------------~----
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E.r:..c P. Yould
AlasKa Power Authority
366-068-83
September 16, 1982
Page 3
197i). Howeve:, it would be possible to explore that argument il'
.~reater detail if you determine ·that the section 24 reservation
·:o the Sta·r.:e is not adequate for the Susitna project. In that
case, :f.·t would also be necessary for someone on your staff or
Department of' Natural Resources to furnish me with the Native
setection case files in the Bureau of Land Maaag~nt to deter-
mine whether the State was given the.90 day notices provided for
in the Federal Power Act and the Alaska Statehood Acte
If .YOU wish something further on this subject, please
advise me. I believe that i.t would be bette;~. to discuss this
matter in person before any comm.-J .. tment to major research.
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SIXTY-SIXTH CONGRESS. SESS. II. CHS. 273, 285. 1920. 1063
CRA.P. 273.-Joint Resolution Authorizing the payment of the compensation of Juncli,ll>?O.
, session employees of the Senate nnd House of Representatives ior the .mont.h of June, {PL~.!P.~c.~l~! 1 19201 on the 5th day of said month. 1
• .e:s. • 0
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Resolved by the Senate and House of Representatives of the United
States of America. in OoJtgress a.r~snnbled, Thn:t the Secretary of tho ('J~~[;,~::C~i~~n~;-~~~
~enda.te dandird: Clerkd of the Htmoutshe of R~presenta1 t1ves arfe hhere
8
hy authord-;~rn:it~nt~o~:r~~~~~ries
tze ..~-n ecte to pay o e sessiOn emp oyees o t e enn.te an
House of Representatives horne on the session roll their respective
salaries for tlie month of June, 1920, on the fifth diLy of said mouth.
Approved, June 5, 1020 .
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c:EAP, 286.-An:-~~t 'l'o·e:reate a Federal Power Commission; to provide for the.
improvement. oi nav.igati.Qll; the._.deYelopment of water ~ower; the use oi the public
lands in relation theieto~·a.ud tcirepeal section 18 of the hiver and Harbor Appropria-
tion Act, approved August 8,)917, and for other purposes •
. ~~;; ~.J5:':·~ ~ 4-r,
JunP 10. l!l20.
[H. n.. 3184.)
[Public, ~o. 2...~.]
Post, p. 16~:9.
Be it enacted~&rSm:OJe and Hou..~e of Representati'IJes ojtl1e Unittxl
States of Am.e~~~&mgfed• · ess a.sse.m.blcd, That a commission js hercl!Y cr ~(;.~~r:-.1 Wctt'r l'o-..
created and estaWJ::U.i ;•.'b:> be 1.""D.own us the Federn.l Power Comm1s-.Fr!lrrnl ro·.n·r rm:o-
sion (hcreinaftt!t·~eferredto as the commission) 1 which shall he com-mt~~:~~i.on:md com~'J-
J20sed of the Secret~:9fWar, the Secretary of the Interior, and the sitionof.
1
Secretary of .Agr!.eulturl!. Two members of the commission shnll
constitute a craori.U.rr·for: the transaction of business, and the conl-
mission s~nlVh•Vl!l'im ~~cia! seal, whic~ shall be judicinlly .nc~ticed.
The Pres1dent{1S.b;all :mifngn~tte the chan·~an of the c~m1m1ss1on. . .
SEc. 2. That.·the :Co.mJillssiOn sho.ll appoint an executive secretary 1 Ex:C\.'lltn c secretary,
who shall receiv.e::t\·.salary of 55,000 a year, and prescribe his duties, flt'tail or .\rnn· en-
and th~ com~m;a rimy requ~~ the President ?f the United States ginccr offircr. -
to detail an ot&er.1rom the United States Engmeer Corps to serve
the co!11J?ission f!.S engineer officer~ his duties to be prescribed by the
commiSSion~~·~ . -·~~·.J· 1 •··
Thework·ofth~commission sho.ll be nerformed by and through lhe F.:t!'rutlono!wor~by - -· f:.' ' ' J',•t~JrUil••Ut~ Of '\\Dr Departments of War, Interior, and .Agnculture and their enginPering, Nr. · '
techx:icalt. cieri~tsnd other personii'el except o.s may be othC'n\·ise ·
provided by'la.'W'._; ; · .. .
All the e.Jq?eo.nses·Of the commission, including rent in the District, .s,:r,...n,.. sr.ut~oriz;:d.
of Columbia-; &llnece~nry expenses for transportation nnd suhsistene~,
including, in the.:discretion of the commission, a per diem of not ex-
ceeding !S4"iri}iml· oi~ubsist:enc~ incurred by i!s employees under its
-wfl~.N·~·.~~ au:v:nn·estl~at.Io~, o: conducta.ng ~eld work, or uron
~ilit lbusme99 ·outside of tne DIStrict of Columbia and away from
r~~q~·ated,pnmts of duty, shall be allowed and paid on th'e pres-
;ent:ation -Qf..:~ ite:n.lize8 \'"ouchers therefor approved by n. mem bcr or
}(lfillf~Jof the eommission duly authorized for that puri?osc; and in
order. to defray the e~-penses made necessn.ry by the proYlsious of this
Act the~is.:harel?Y authoriz~d to be appropriated such sun~s as Cou-Appropriation.
gre.ss m&y;her~ftar determme, and the smn of SlOO.UOO 1:; hcn"'hy
appro.Printed, out of any. moneys in the Treo.s~n·y not otherwise ap-
propnateJ, av-niln.ble until ex~en<.led, to ba pal<l out upon wmTants
ilrawn •<)n.the ~c<'retnry of t]le l're~sury. upon .order of i.h~ commissi,m. ~r. J..%1 ..... tt·rc-· ;:.s
SEc. '3. 'rlfitt the wonl:3 defined 111 th1~1 scctwn sh.ull have the follmr-u.·.cJ. ., r -
:ng mP.anings for the purposes of this .Act, to wit:
'1 Public lands •; 1nenns suc.h lnnus and interest in lands owTwu by ··l'ur·!k h.:!•.b,"
the United Stu tea ns nre subject to priv-n.te appropriatiou and di~nos:~l
under pub11c-:~n.d laws. It shall not i.ncludo "reservations.' I n.s here-
inttfter deiihm.L
1 I=> · ' "' • I!.,."~-er\ 'J.~1ons..,11
' .\,eser-nttions" mNms uat10nal monurnent::J, nn.f.wntd ptn·k::;, na-
tional fot'0Sts. c.-ibnl hncis cmbrucecl within J ndinn rt'~'1 l'Yal' ill I\;•., illili-
tary rcscrnuiuns. and olher lauds u~Hl interest$ In htnd::; <.lWnt·d by the
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SIXTY-SIXTH 0 (i:GRESS. SEss. II. C:u. 285. -1920.
thereof prescrihr .. 1n sai~ classification, but s~all not include cxpen.d~-
turc~ _'(.·-:.rH1, .• urids obtruned through donations by States, m~nlcl-
1065
-liilities, iridividurus, or others, and said classificatiOn of investment
~f the Interstate Commerce Commission shall in so far as applicable
~e ·published. SJ?-d prom~ga.ted as a part of the rules and regulations
Of the COmmiSSIOn. .,owcr.t or Commis-
8EC. 4. :That the commission is hereby authorized and empowe:red-si~n.
-~-~ (a) To make investigations and to collect and record data con-w:ft~r~~=;rcp:!~r
·cerning the utilization of the ·wat-er resources of any region to be industry, etc.
developed, the water power industry and its relation to other indus-.
tries and to interstate or foreign commerce, and concerning the loca-
~on, capacity, de~lopment costs, ~nd relation to markets of power T
SlteS and Whether the power from uOVernmont dams can be aavan-iJso or Government
) tagE;usly used bv the United S:11.tes for its public purvoses, and dlUJls, etc.
I wliat is a fair -value of such power, to tho extent the commission may
deem necessary or useful for '~Jhe purposes of this Act.
In order to aiC. the commission in determining the net investment or~t~dF~o~~~d~~s
of o. licensee in any project, the licensee shall, upon oath., within a fitc.,toho!urnishedby
reasonable period of timo, to be fi..~ed by the commission, aftor tho censeea.
construction of the originnl project cr any addition thereto or better-
ment thereof, file with the commission, in such detail as the commis-
sion may require, a statement in duplic.ate showing the nc.tuallcgiti-
ma.te cost of construction of such proJect, addition, or bett\~rment, and
the price paid fo1" water rights1 rights of way, lands, or interest 1n
lands. Tiie commission shall deposit one of snid statements with the
Secretary of the Treasury. The liconseo shall grant to tho commis-0 P~:c a~ io proJ·
sion or to its duly authonzed agent or agonts, at all reasonable times, c' or 'e c.
free access to such project, addition, or betterment, and to all maps,
profiles, contract.~, reports of engineerd, accounts, books, records, and
all other papers and aocuments relating thereto.
(b) To cooperate with the executive departments and other er~0~~m~~t~:C1~;
agencies of State or National Gover1ments in such in-vestigations; in lnvcstigo.tion.'l.
and for such pUl."pose the several departments and agencies of the
National Government are authorized and direcwd upon the r~quest of
the commission, to furnish such records, pnpers, and informn.tion in
their possession n.s may he requested hy tbo commission, and tem-
porarily to detail to the commission such officers or experts llH may bo
nocossury in such investigations.
(c) To make public from time to time tho information sccuterl rubllshinrormntion.
hor~under, and to provide for tho publication of its reports and inve!-i-etc.
tigations in such form and manner as may be best adapted for public
information and use. The commission, on or before tho firgt Monday Reports to congrcs,;.
in December of m1.ch year, shall submit to Congress for tho t1~cal year
preceding a. cla.ssified report showing tho pcrmi ts and licenses issued
under this Act, and in each case the parties thereto, the terms pre-
scribed, and the moneys Tcceivcd, if any, on account thereof.··
(d) To issue licenses to citizens of tho United :::>tntes, or to nny Issu!Jilcensr!l ror.im·
association of such dtizens, or to any cm·porntion organized unclcr R~~el~;iftgnay!~~~~J~~
the lnws of tho t:"nitod Stat-es or any Stato thereof, or to any Stat~, !JO\Ycr, etc.
or municipality for the purpose of constructing, operating, nnd main-
taining dams, watt1r conduits, reservoirs, power houses, transmission
lines, or oth_er project works nece~sary or conveniettt for tho devrlop-..
ment and unprovemont of nav1gat.10n, nnd, for. tho" deVI'lnJ?ment, ·
transmission, and ntiiization of power ncro~s, along, from or 1n any
of tl~e nnvi~nhle watr.rs of !he "Gnited St~t~~, or upon m;y pnr~ of tho l'wt, p •. 1:~.n.
J?ublic lunas nml reservatiOns of t.he Unnrrl States (mc!uchng tho
rerritories), or for the purpose of utilizing tho Aurplus wut~r or wnt~r ·.
power from unv GcrQ"en1ment dam, except n.s herein provided: P7'o-~ to~~oti 1 videcl, That lict;nses shull he is~ued within nnv roservation onl v r.fter N~~~~nti~~~~ ua u~c n
a finding by tho comm.is~ion that tho license \vill not interfere or hn
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1066 SIX'f·Y-SIX·Tll CO:i.-.~GRESS. ...JJ. Cn. 285. 1920.
-inconsis~.ent '"-ith tho purpose !or which ~uch ro.~~on wa~ <?reated
or acqmrod, and shall bt> subJect to and contrun swndi_b.~ -~
the. Secretary of the department under whose superns10n sut
"' reservation falls shall deerr '1ecessary for the adequate protection an et~.;pr~~a.l ~iv1:a~e utilization of such reservation: Prwided further, '.rliat no licP.n&
waters. affecting the navigable capacitv. of any navigable waters of t~
United States shall be issued until the plans of the dam or other
structures affecting navigation have been approved by the Chief of
Engineers and the Secretary of War. Whenever the contemplated
improvement is, in the judgment of the commission, desi:ra.ble and
justified in the public interest for the purpose of improving or de-
veloping a waterway or waterw~ys for the use or benefit of interstate
of foreign commerce, a finding to that effect shall be macie by thE
commission and shall become a part of the records of the commis-
use of Government sion: Provided further, That in case the commission shall find that
~~:.tor publlu pur-any Guvornment da.m may be advantageously used by the United
States for public purposes 1n addition to navigation, no license there-
for shall he issued until two years niter it shall have reported to Con-
gress the facts and conditions relating thereto, except that this pro-
vision shall not apply to any Government dam constructed ~~~r to
wi't-::;~'f o~a~TI!!,'f;!~ the passalige ~f thif. s Actli; And pr_hio~ridhehd furthctr1 That upodn dthbe
1
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permit. . any app cat10n or a cense w c as no been prece e y a pre-
liminary/ormit under subsection (e) of this section. notice shall be
given an published as required by the proviso of said subsection.
pc1~~~s tl~~=a: (e) To iss~e preliminary permits for the purpose of enabling appli-
PCI.!t,_p. 1oos. cants for a license hereunder to secure thr; data and to perform the ~~~~:o· thereof to acts required by section 9 hereof: Prooidul, hawever, That upon the
stntc:. , .. ~ filL11g of any :1pplication for a preliminary permit by any person,
association, or corporation the commission, before granting such
application, shall at once give notice of such applicatiOn in writ~
to any Stat~ or municipality likely to be interested in or affected by
such application; and ~h:i!l also publish notice of such application
for eight weeks in a daily or weekly newspaper published iil the
county or counties in which the projact or :any part thereof or the
lands affected there~ ars situated.
PrcSl'ribo ntl~s ror (-f) T . · 'b d 1 t' f th t blishm t f c.<·counti.:l.. opers.tlng o pr escr1 e · es an regu a tons or e e.s a en o a
"tc. ~:-. • svstem of accounts and for the maintenn.lJCe thereof by licensees
hereunder; to examine all books and accounts of such hcensees at
auy timo; to require thorn to submit at such time or times ns the
commission may require statements and reports, including full
inforn1ation as to assets anci liabilities, cupi~alization, net invest-
ment and reduction thereof, gross receipts, interest due and paid,
depreciation and other reserves, ~ 1st of project, cost of maintenan~3
ana operation of the project, cost _j~ renewals and repluceJ)16nts of the
protect ~vorl\.8, and .as. to depreciation of the project \Vorks an~ as to
I~foductwn, transm1ss1on, use and sale of power; also to requrre any
1eensee to I~"lake adequate .Pro·dsion for currently determining saia
costs and other facts. .Ali such statements and· reports shrul be
made upon oath, unless otherwise specified, and in such form and
l'nni'lhmrnt for falso on such blanks as the ?~mmissi~n may require. Any P,erson who,
stat\·mc:-nts.ct~. for the purpose of dece1vmg, man::es or causes to bo mn.de any false
entry in the books or the accounts of such licensee, and any person
who, for tho purpo::;e of deceiving, make.$ or causes to he made any
iaL'::e statement 9r !eport in response to a request or order or direction
from the comm1sswn for the statements and report herein referred
to shall, upon con-viction, be fined not more than $2,000 or imprisoned
~ not more than five years. or both.
t und!lrt hcnrlnt:~, ( ) 'f h ld 1 , · · d . d • .. 1 b un.h:r tlcrJo:littons, etc. g o o 1earmgs an to or er testimony to be trucen y
d.epo~ition at any. <.lesig~ated place in conne~tion with ·~~ha n.P,plica.-
twn for u.ny porm1t or license, or the regulatiOn of rates. serVIce, or
sccuritie$, or tho making 'of any invcstigrt~ion, ns provided in this ..c~ct;
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SIXTY-SIXTH CONGRESS. SESs. !1. Cn. 285. 1920. 1067
and to r~uire by subprena, signed by any member of the commission,
the~.t:tendance and testimony of witnesses and the production of docu-
me!!tary eviden~ from any place in the United StatA:3s, and in case of
disobedience to a sub peen a the commission may invoke the aid of Al(I of Federal courts.
any court of the United States in requiriug the attendance and tcsti-
:mony of witnesses and the production of documentary evidence. Anr member, e.""tpert, or exammer of the commission may, when duly et~dministcr oaths,
desigDatecl by the. conu;nissio?-for such puryo~es, &4mmister oaths
.and a.ffirmations, exn.mme Witnesses and recerve evidence. Depo-
sitions may be taken before any pexson designated by the com-
mission or by its executive secretary and empowered to ~administer
oaths, shall be reduced to writing by such person or under his direc-
tion, and subscribed by the deponent. Witnesses summoned before Wltncss!ees,etc.
the commission shall be paid the same fees and mileage tho.t are
paid witnesses in the courts of the United States, and witnesses
whose depositions are taken a.ud persons taking the same shall
severally be en titled ta the same fees ns are paid for like S6rvices in
the courts of the United States.
(h.) To perform any and all acts 1 to make such rules and regu-110~~h~~ necessary
lations, and to issue such orders not inconsistent with this Act as
may be necessary and proper for the purpose of carrying out the
proSvisionsThof this Ahct. 1. . . 't . d d 1...:-A h ll Prellmina~pcrmits.
EC. 5. at eac pre lliUD.B:I"Y l?eriill msue un er tw.::s ct s a ~ss~1c or, ~o obtain
be for the sole purpose of main taming priority of application for a pnonty tor licenses.
license under the terms of this Act for such period or periods, not
exceeding a total of three years, as in the discretion of the commission
may be necessary for making examinations and survey:s, for pro-
paring maps, plans, specifications, and estimates, and for ma.King
financial arrangements. Each such permit shall set forth the con-Coodltlons.
ditions under which priority shn.ll be maintained and a license issued.
Such permits shall not be transferable, and may be canceled bl
order of the commission upon failure of permitt€es to comply witn
the conditions tnereof. Llet>nc;l's.
SEa. 6. That licenses under this Act shall be issued for a period Period or, ntld COD•
d . fift E h h li h ll d" . d diLions controlling. not excee mg y vears. 1 uc sue cense s a be con 1tlone
upon acceptance by "the licensee of all the terms and co~1ditions of
tliis Act and such further conditions, if any, as the commission shall
prescribe in conformity with this Act, which said terms o.nd condi-
tions and the acceptance thereof shall be e.."'l!:prcsse4, ~n so.id liccnso. Revocation, etc.
Licenses mav he revoked only for the rensons und 111 tho manner
prescribed under the provisions of this Act, and may be fLltered or
surrendered only upon mutual agreement bet"·~ .... en tho licensee unu
th~ co~sion ~~r ll~Iu~ty da:ys~ public 11\)~ice. _ . . rrcf!'r!'nrl'!\ to state, ~Ec. 7. That 111 ISsumg prellliUila:ry pern:nt.s he,retmder or hcem;cs !'t!'., appiit'!ltiuns.
where n~ preliminary pe:r-mip has been J.ESued and ill: is.suing licm1~e.~ P03t, p.l.Oi2.
to new licensees uude.1; se0t·10n 15 hereof tho comiD..l.Sslon shall grvo
prefe.rencc to applica.ticms therefor by States and municipa.lit~N3,
prov1ded the 1)lans for the srune are deemed by the ~ommtssion
equally well adapted, or shall within a. reasonable t.!Jne to be fixed
bJ: .the. comrnis:?iOl~ b~ maqe equnlly _wel~ adapted, to conserve tWd
utihze m the publw Interest tlie ll11Vtgatwn and w~ter resources of ,1 ••
the region; u.nd as between other applicanw,. the commission 1no.y plt\·~~~~·t'" nthrr :.: ...
~rive p~eferencc to the applican.t the plans of which i:t. find? a¥!d
aeternunes aro best adapteil to devolop, COJ1S{1T\e1 and utilize 1!1 tho
public in.t<>:0st the na.yignti?:l n.ud water re~onrees of tbe region, if
1t be satiSfied us to the ab1hty o.f th!l applicant to carry out such
plans.
That "\"\·heuev~r, in the judgment of the 0ommission, tho d~v·rlop-.i ~:tt1 ?,~~~~~ \'l•:·,~·~r~
ment of m~y proJt\ec Ehould be underttlken h~· the l:nilcd t5tateB it:o:.t'lf, :.:.;.'~t. _sli:;:H unrh.:r-
tbo eoillllllsswn shall ttot uppro\e an·t anplicution fut' such nnlj«.:,·t ····' ,l,nJt.t.
by n.ny <.'ith~{~u. n:.;:::,>t:i:ltiou, t}orponttiou, Stute, or municipuHty, lntt
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1068 SIXTY-SIXTII CONGRESS. SESS. II. CH. 285. 1920
shall cause to he made such examinations, surveys, reports, plans,
and estimr tes of the cost of the project as it may deem necessary, and
shall submit its findings to Congress with such recommendations as
it may deem appropriate concerning the construction of such project
or completion of any project upon any Government dam by the Un1ted
States.
Great Fans or the 'rhe oommiss~on is hereby authoriLrld a.nd directed to investigate Potomac lllver. • .r. In•·csti~rntionorco.~t. and, on ·or oefore the 1st day of Jauunry, 1921, report to Congress the
:~~::a~~ power plant, cost and, in detail, the economic value of the power plant outlined
in project numbered 3, House Document numbered 1400, Sixty-second
Congress, third session, in view of existing conditions, utilizing such
study as may heretofore have been made by any department of the
I • t Government; also in connection with such project to submit plans
ncrense o, wa cr . 1 • tes f t · d d d !lupplr, n. c. anu estrma o cos necessary to secure an Ul.crease an. a equn.to
Appropriation. ·watPr supply for the Distriot of Columbia. l1,or this :purpose the sum
of .$25,000, or so muoh thereof as may be necessary, 1s hereby appro-
priated. eJ.~r:;;[~t~~~i!.'enscs, SEc. 8. That no voluntary transfer of eny license, or of the riahts
thereunde;f granted, sh .. .ll be made with?ut the m;itten approv~ of
the conumss1on; and any successor or asstgn of tho nghts of such lmen-
see, whether by voluntary transfer, judioml sale, foreclosure sale, or
otherwise, shall be subject to all the conditions of the license under
which suoh rights are held by such licensee ru1d also subjoot to all the
1' . provisions and conditions of this .A.ct to the same extent as though
lr6r~~~ges, etc., ex-such successor or a..c;;sign were the original licensee hereunder: Pro ...
t:eptl'd. 'Vided, That a mortgage or trust deed or judicial sales made thereunder
or under tax sales s!uill not be deemed voluntary transfers within the
meaning of this section.
m~~~~!catfon requireu SEc. H. That eaoh applicant for a license hereunder shall submit to
tho oommission-
eb. ~· 1 ' '
~ubmission otpliws, (a) Suoh marv..; glans specifications and estimates of c. ost as may
· he required for a ull understanding of the proposed project. Such
!.!laps, plans, and specifications when approved by the commi';sion
ChAnges restricted. shall be made a pu.. of the lioense: and thereafter no change shall
bl) made in said maps, plans, or specifications until such changes shall
h:a-.:e heen approved and made a part of such license by the oomm~c;.
Sl01L
s~~:i~~~cu w 1 t h (h) Satisfactory evidenee that the applics..nt has complied with t.he
rcqun·Bm.ents of the laws of the State or States within V"~::.ch tile
pronosed project is to be looated with respeiJt to bod and banks and to
tho .. appropriation, diversion 1 and use of water for power purposes
and witb. respect to tho right to <'ngnge in tho busine.ss of developing,
transmitting, and distributing power, and in any othJr business neces-_
sary to. effect the purposes of a license under this A. ct.
Mdttionallnrormn· (c) Such additiona1 information as the commission roav require. ti~~ndiUons or !it~n-SEc. 10. That nll licenses issued under this Act shali be on the
scs. follm.ving conditions:
u l'tHo~to ~~JI~;'t\u~~ , (a) "1.hat the JH'oject adop~.ed, inc~urling th~.maps, pla.ns, ~n? spe~i·
watf.)r puwcr, oLe. iicat10ns, shall be such as m the JUdgment of tho commiSsion Will
he hest adapted to a comprehensive scheme of unprovement and utili-
zation for the pul]>oses of navigation, of water·power development,
aud of other benetieial public uses; and if nece:>sarv in order to secure
such scheme the commfssion shall have authority to require the modi-
fication of any project and of the plans and specifications of the proj-
ect works hefore approval.
R•·o:trlctlon on a:t,·r· (h) 'l'hn.t except when emercrencv shall roquiro for the protection of
.1Uons. • • lif h 1 h 1::) ~ b . al l . JUlYlgn.twn, e, eat , or })ropertv, no su stan.t1 a terat10n or
addition not in conformity Wlth the approved plans shall be made to
anY dum or 1)tber project works constructed hereunder of a capacity
in ~xce3s of ouo hundred horsepovter without the prior approval of the
n·--·-·-~~·-~···-·:;·;?.~~··:~··--·~···v·-·-·---··-···· ·:·:y· ~--.,~·-·-~~=··-~~···:-····· ·"···--~-·-·--· -···-· ,,
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SIXTY .. SIXTH CONGRESS. SESS. II. CH. 285. 1920. 1069
·commission; and any emergency alteration or addition so made shall
the:-es.ft~r: he subject to such modification and change as the commis-
sion may direct.
(c) That the licensee shall maintain the P.roj~ct works in a condition ~J.~edor~s ~~J:
of repair adequate for the purposes of naVJ.gation and for the efficient uva opc<ltion, otc.
operation of said works in 'tn.e aevelopmen t and transmission of power,
shall make all necessary renewals and replacements, shall establish
and maintain adequate deJ?reciation reserves for such purposes, shall
so maintain and operate swd works as not to impair navigation, and
shall conform to such rules and r~7Ulatio-rls as the comm1ssion may
from tlm.e to time prescribe for the protl.-ction of life, health, and dam
property. Each lioonsee hereunder shall be liable for all damages ag~;a~~'br~~rty ot
ooonsioned to the property of others by the construction, maintenance, other~;~.
or operation of the project works or of the works appurtenant or
accessory thereto} constructed under the license, and in no event snail
the United States be liable therefor. .
(d) That after ~he :first twenty ye~ of operation ou~ of surplus sc;~~o~~~o~ 8 t n hO:
earned thereafter~ if any, accumulated 1n excess of a specified :rea....'"~n-us,hed.
able rate of retu.n:l upon the actual, legitimate investment of a licensee .:.Jisposltion or.
in any project or projects under license the licensee shall establish
and maintain ll.lllortization reserves, which reserves shall, in the
discretion of the commission, be held until the terminal.iion of the
license or be applied fron1 time to time in reduction of the net invest-n t
mont. Such specified rate of return and the proportion of such ra n~e~!~. be specified
surplus earnings to be paid into and heid in suoh reserves shall be
set forth in the license.
(e) Tha·t the licensee shall pav to the United Stat-es reasonable }\~~}_charges.
annual charges in an amount to be :fL'i:ed by the commission for the
purpose of reimbursing the United States for the costs of the ad-
ministration of this Act; for recompensing it for the use, occuptmcy,
and enjoyment of its lands or otl:ier propertr; and for the expro-
priation to the Government of excessive profits until the respective
States shall make provision for preventing excessive profits or for
the expropriation thereof to themselves, or until the period of amor-rnce to conaJmcrs.
tizntion as herein provided is reached, and in fi."'cing such charges tho
commission shall seek to avoid increasing tho price to the consumers
of po,wer by such cho.rges, and charges for th.:l expropriation of
excessive profits may be adjusted "from time to time by the commis-I'rot·i.,o.,
sion as conditions may reJuire: PrO'IJided, That when licenses are Use or Go'\"cmmcnt · d · 1 · h -G d h structures or TntJJnn Issue mv<? ,.,.m~ ~ e use o o·v~rnm.ent ams or ot e! s.tructu;es tribnlln.Ilds. -
owned bv the Umted States or tnballan.ds embraced Within Indum
reservati'or.s the coiilnlission shall fi.~ a reasonable am~ual charge for
the use thereof and such charges may be readjusted at the end of
twenty years after the beginning of opHrations and at perioJs of not
less than ten vears thereafter in a manner to be described in each
license: Provi"de(z, That licenses for the development, transmission, et~~ W·'U"ff~~o~tat~!
or ddist~ibutdio~tohf powehr by Stn.th-es or munieiphalities s~all b
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1
issuhnd ~~~~!'~~~~lie Without
an enJoye WI out c arge to t e extent sue power IS so r to t o
.l?ublic ·witho~t. profit or is used by such State or .municipality for
State or mun1c1pal purposes, except that us to proJects constructed
or to be construoted by States or municipalities primarily designed
to provide or improYe navigation licenses therefor shall he issued wi~ou~ chn:rge; and that licenses f?r the (!evelopment, transm}ssion, SnuUiprojoots.
or distnbutwn of power for domestic, m1rung, or other benafir.1al uso
in J1rojects of not nwrc than ono hundred horsepower capacity may F. •
be issueJ ,yithout c.hurg-e, e.xcept on tribnllands wi~hin Indian· reser-::xrx-tr•twiw. r·
t . b t · ... h '1 1' b • .1 f • h f · .• o rc(• n~o o! •OV• va wns; u 1n no e~s.e s .a.l a ICense e 1ssueu · ree of c u.rge · or the ~:rnmcnt uu.m.
development uud U!illtlatwn of power created by anv Government
dam and that the amuunt charged therefor in anv license shaH he
such as determined by the comntission. "
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SIXTY-SIXTH CONGRESS. SESS. II. CH. 285. 1920. 1071
Government fails to make provision ·therefor within a time to be fixed
in the license and cause a report upon such project to be prepared, e(~oport to Congrce»~,
with estimates of cost of the power development and of the na-vigation ·
structures, and shall submit such report to Congress with such recom-
IIlenda.tions as it deems appropriate concerning the participation of
the United States in the cost of construction of such navigation
structures. ·
S 3 Th t th-li h ,, ---------th t t" f t'-Time limit 'lor con ~a. 1 . _a.. .e cens.ee s all C<?mmen~e e co~ rue 1on o .ue struction and opera:
proJect works Within the trme fixed m the license1 which shall not be tion.
more than two years from the date thereof, sha.l· thereafter in good
faith and with due diligence prosecute such coru truction, and shall
within the time fixed in the license complete and put :into operation
such part of the ultimate development as the commission shall deem
necessary to supJ?lY the r~asonable needs of the then availab~e market,
and shall f:~om tnne to t1me thereafter construct such port10n of the
balance of such deYelopment as the commission may direct, 1 J as to
supply adequatelv the reasonable market demands until such ( evelop-
ment shall have "'been completed. The periods for the cor ~ence-Extcnsi.ons.
ment of construction may be extended once but not longer than two
additional years and thejeriod for the_ completion of construction
caiTied on_ in good faith u.n_ w_ithreasonable dili~ence may be extended
by the comniission when not incompatible witn the public interests.
In case thP licensee shnll not <!~Jmmence actual construction of the re~~~~~~l~e or 11·
project works, or of any specified part thereof, within the time pre-·
scribeci in the license m· as extended by the commission, then, after
due notice given, the license sho.ll, as to such project works or part r illn
thereof, be terminated upon written order of the commission. In con:=d. ~l!partly
Cfl.Se the construc-tion of the project works, or o_ f any specified pnrt
th~reof, .have b~en begun but not completed with~ ~he time pre-
scnbed m the hcense, or as extended by the connmss10n, then the
Attorney General, upon the request of the commission, shall insti-
tuta _proceedings in equity in the district court of the United States
for tlie district in whiCh any part of the project is situated for the
revocation of said license, the snle o-f the works constructed, n.nd such
other equitable relief as the case may demand, as provided for in P~»t, P· lOiG.
section 26 hereof.
S 14 'rl t t 1, th t ' t• · · · · f Rh;ht o! Oovrm-EC. •• . Ul. upon 1~0 e~s an wo years no 1.ce 1n wr1t1ng rom mrnt to tnkc o·:··r, op-
the comm1ss1on the Umtcd ~totes shall hav-e the r10'ht upon or after cru~r. t:ll'., on cxpiru-
th . . f li k d th ~ ft t . , tlun of licunsc. e expll'atlOn o any cense to tu ·e over n.n erea er ·o n1umtnm
and operate any project or projects as defined in section 3 hereof, .:inte, p.lor.H.
and covered in wliole or in part by the license, or the right to to:ke
over upon mutuu1 agreement with the licensee nil property owned
and held by th:e l}cen9ee th~n -yalu~ble a~r1• sernceable in ~he d.evelop-
ment, transn...l§§!.QlY,-or d1str1but10n v~ power and whiCh 1s then
dependent .. ~!-its usefulness upon the continuance of tho licenso,
togetht3r·,vith any lock or locks or other aids to navigation const.ruet.ed
at the expense of the licensee, upon the condition thn.t before ~nkir..g raymc.nt to tc tlllldc.
possession it shnll·pa::rti1A· net..in.vestment of the licensee in the ·prof-
eet or projects t:1ken, not to ex~eed. the f:1ir value of tho p~operty
tu.ken, plus suchrrnsonable dnma.ges, if ~1P.Y 1 to property of the hcensec
v-nluu.blo, serviceable, und dependent ns n.bl>Ve setfortli but not tnken,
as may bo caused by the severance therefrorri. of pr~pcrty tuk~n, n.nd
shall assume nil contraets entered into bv .• tpe licensee w1th the
approval of the commission. The net inv-est~~1:.t of tho lieonsoe in n:a~r:rmtoMion or
the project or projects so tnken nnd the n.mount of such seyeranco
damages, if any, shall be determined bv n.grccm,ent bctwren tha
COffi!lllSSion ll.nd the licensee, and in CU.SO thC:'V ca.fl not agree, by
proceedings in ~)qnity instituted by the United ~Stu.to'J i!l the district
court of the t mted States in the dis~rict within whr2h any such f.~~~:i~·~l!lucl~·d.
pro pert~-mu.y he loeu ted: Prrn·ided, Thnt such net in n!~t 1~nen ~ shall ·,
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1076 SIXTY -SIXTH: CONGRESS. 81:"Ss. II. CII. 285.. 1920.
mission, for tho purposes of this Act, which right shall be expressly
reserved in ovory patent issued for such lands j and no claim or right
to <:ompensation shull accrue from the occupation or use of any of
PaymEnt tor o!lm· sui·1 lands for said purposes. The United States or any licensee for ages 1.0 crops etc u ' · any such lands hereunder may enter thereupon for .. th~ purp~ses of
this Act, upon payment of any damages to crops, buildings, or other
improvements eausod thereby to the owner thereof, or upon givix!g
a good and sufficient bond to the United. States for the usa and benefit
of tho owner to se~ure the I?ayment of f\Uch damages as I!lf1Y be doter-
mined and :fi.~ed m an action bro:ught upon the bond m a court of
Provuo. competent jurisdiction, said bond to be in the form prescribed by
Form~r Ilf'-"!ltions, the -commission: PrO'IJ'iiled That locations entries selections OP etc., not 1mpa1rcd. • '"' 1 . · · ' 1 • ' • · .fihngs heretofore made for lands r~"'1rved a;-water-power s1te.s or m
c01mcction with water-power development or electncal transmission
may proceed to approval or patent under and subject to the limita-
tions and conditions in this section contuined.
u;:sng;t~oo~ros~1~f~ SEc. 25. fhat any licensee, o~ any person, who ~h.a.-11 w:illf~ly fail
or who shali refuse to comply wtth any of the proVIsions of tins .Act,
or with any of the conditions made a part of. any li~ense issued here-
under, qr with any subpmna of .the commission, Qr with any regula-
tion or lawful order of the comtuission, or of the Secret,~;y of Vi ar,
or of the Secretary of Commerce a.:J to ;fishways, issued or made in
n~cord~nce with the provisions_ or. t.bJs Act,"' s~a~ b~ deeme~ gui!ty
ot a nusuemeanor, and on conv:.t:twn thareo.t ~uatl, m the discretmu
of the court, be puillshed by a fine of nol~ exceeding Si,QOO, in addi-
Continuing otrcnscs. tion to other penalties herein prescribed or proviaed ~y law; and
evm·y month n.ny such licensee~ or any such :person shall remain in
default after written notice from the commisswn, OF from the Secre-
tn.ry of "'\V ar, or from the Secretary of Commerce, shall be deemed
a new and separate offense punishable as aforesaid.
, Equity. proceeli din~-s SEc. 2G. That the Attorney General mav, on request of the com-
.or revoldDg Cf:fiSCS, • • f th S f W • l~fw t d' • • etc. m.lSSlOn or o e ecret~~ o &1", J.U."3w.,u o prooee mgs m eqmty
in the district court of the united States in tho district in which. ~my
project or pal't thereof is situ~ted for the ~urpose of revoking for
violation of its terms anv permit or license ISsued hereunder, or for
Correctlng'\""iolations. the purpose of remedyizig or correcting by injunction, mandamus,
or other process any uct of commission or omission in violation of
~<the provisions of this Act or of any lawful regulation or order pro-
!nrisdictton of dis-mulaated hereunder. The district courts shall have jurisdiction
trlctcourts. :::> ll f h b t' d rJ;..,.,. d sh ll h over. a o .. t e a ove-mcn wne proceeu1uos an a ave power
to issue and:execute all necessary proce~ and to mu.kc and enforce
all writs, orders, and decrees to compel complin.ncc with the lawful
orders .and regulations of the commission and of the Secretary aff.
War, and to compel the performance of any condition imposed under
. Sale. etc., on rc'"oro· the provisions of this Act. In tho event a decree revoking a license
tJon o!lloonse. . d h • d t 11 h h J f IS entere , t e court IS empowere o se t e w o e or any pi.U't o
the project or. projects under license, to wind up the bu..qin~ of: such
licensee conducted in connection '\\ith such project or _pl'ojects, to
distribute the proceeds to the parties entitle<! to the same, and to
make and enforce such further orders .l.Ild decm~ElS as equitv and
d;_rgbts, etc., to vcn~ justice may ·require. At such sale or sales the 'i:""endee shali take
the rights and privileges belonging to the licensee nnd shall perform
the duties of such licensee and assume all outstanding obligations
nnd liabilities of the licensee which .. the court mn.v deem equitable st~~~'"f~~~~~c~~~~~d in the premises i and at such sale. or sales the United States may
become a pur~haser, but it sh~ not b~ xequil'cd to pay 0: {Sreator
amount than 1t would be reau1red to pav under the proviSIOns of .~nte, P· 10;1. section 14 hereof at the termiilation.of the~license.
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.01 Act of June: 10, 1920 as amendi!:d
by the A~:t of August 26, 1935.
[,f 5224]
[Pu~lic Lands Included in Project-Reservation of Lands
from Entry]
. Sec. 24,. Any lands of the United States included in any proposed project
under the TJrovrsion$ of this Part shall from the date of filing of app!ication
therefor .be reserved from entry, location, or other disposal under the laws of
the. United States until otherwise directed by the Commission or by Congr\;.ss ..
Notice that such application has been made, together with the date of filing
thereo£ and a description oi the lands o:' the United States affected thereby,
shall be filed in the local land office for the district in which such lands are
located. Whe:1ever the Commission shall determine that the value of any lands
of the United States so applied for, or heretofore or hereafter reserved or
classified as power sites, wm not be injured or destroyed for the purposes of
power development by location, entry, or" selection under the public land laws,
the Secretary of the Interior, upon notice of such determination, shall declare
such lands open r.o location, entry, or selection, for such purpose or purposes
and under such restrictim1s as the Commission may determine; subj~ct to and
with a reservation of the right of the United States or its permittees or
licensees to enter upon, occupy, and use any part or all oi .:;aid lands
necessary, in the judgment of the Commission, for the purposes of this Part,
which right, shall be expressly reserved in every patent issued for such lands;
and no ci7~fm or right to compensation shall accrue from the occupation 04' use
of arw of said land~ for said purpos\:!s. The United States Gr any licer.see for
any such lands hereunder may enter thereupon for ti:e iJUrposes of this Part
upon payme~t of any da,mages to crops, buildings, or other improvements
caused thereby to the owner thereof, or upon giving a god and sufficient bond
to the United States ~nr the use and benefit of the O\vner to se-cure the
-payment oi such damages as .nay be determined and fixed in an actiun
brought upon the bond in a court oi comlJetent jurisdicdon, said bond to be in
~ 5223 Fedar~l 'Energy Guidelines
0\J -~~
the form prescribed by the Commission: Provided, That locations, entries.
selection, or filings heretofore made for lands reserved as w~ter power sites_ or
in connection with water power development, or electrical transmission may
proceed to approval or patent under and subject to the limitations and
conditions in this secrion continued: Provided further, That before any lands
applied for, or heretofore or hereafter reserved, or classified as power sites, are
declared open to location, entry, or selection by the Secretary of. the [tlleriu-r~
notice of intention ro make such declaration shall be gi\·en to the Governor Df
the State ;vi thin \vhich such lands are located, and such State shall han~
ninety days irom the date of such notice \Vithin which to iile. under any
statute or regulation applicable thereto. J.n application ior the resen·ation to
the State or any political subdivision thereof, of any lands requiretl as a right-
of-\vay for a public highway or as a source of materiais for the construction
and maintenance of such highways, and a copy of. such application shall be
filed with the Feder~~l Power Commission; and any location, entry, or sr·1 ~ction
of such lands, or subsequent patent thereof, shall be subject to any t:1~hts
granted the State pursuant to such application .
. 01 Act of June 10. 1920 as amended
by the Act of August 26, 1935 and the
Act of May 28. 1948.
[~ 5225]
Sec. 25. [Repealed by the Act of August 26, 1935.}
[~ 5226]
[Proceedings in Equity for Revocc,·~ion of Licen~ie or to
Prevent Violations of License]
Sec. 26. That the Attorney General rray, on request of the Commission or
of the Secretary of the Army, institute proceedings in equity in the d!stdct
court of the United States in the district in which any project or part thereof
is situated for the purpose of revoking for violation of its terms any permit or
license isS\.led hereunder, or for the purpose of remedying or correcting by
injunction, mandamus, or other process any act of co!Tlmission, or omission in
violatiun of the provisions oi this Act or of any lawful n;~ulation ur ·•rdcr
promulgated hereunder. The district courts sha!i have jurisdiction !)Vl'r :.1H of
thr. above-mentioned proceedings and shall have power t1l i~.;u~ anJ excct!te :>ll
necessary process and to make and enforce a.ll wri Ls, orders, and decrees tO
compel compliance with the lawful orders and regulations of the Commission
and uf the Secretary of the Army, and to compel the perf~>rmance oi any
condition imposed under the provisions of this :\ct. In the t:VC:lt a. decree
revoking a license is entered, the court i~ empowered to 5~11 the whole or any
p~rl of the proje-:L or projects under license, to wmd up the ~u:>iness of su,-;h
licensee conducted it! connection with ::;uch prOJect or pn.>tccts. to distribuv..:
the proceeds to _the pn.rties entitled to the same, anct to make and enforce such
further orders and decrees as equity and justice may require. At such :it\ic or
sales the \'endee shall take the rights and privile~es belonginl:{ t11 the licensee
Feder:>l Energy Regul~tory Cqmmlsslon
-'))6 ~3
§785 TITLE 16-CONSERVATION
<Aug. 15, 1914, ch. 253, § 5, 38 Stat. 692; 1939
Reorg. Plan No. II. § 4<e~. eff. July 1, 1939, 4
F.R. 2731, 53 Stat. 1431; Aug. 4, 1949, ch. 393,
§§ 1, 20, 63 Stat. 495, 561; 1970 Reorg. Plan No.
4, eft:. Oct. 3, 19"10, 35 P.R. 15627, 84 Stat. 2090'.)
Ali:EzmiD!NTS
1949-Act Aug. ~. 1949, reestablished the Coast
Guard and repealed act Jan. 28, 1915, ch. 20, § 1, 58
Stat. 800.
El'n:Cnvll: DATI: OP 1949 ~DIIE!tT
Amendment by act Aug. 4, 1949, effective the first
day of the third m,onth after the month of approval,
Augu.c;t 1949, see Ef!ective Date note set out preceding
chapter 1 of Title 14, CaliSt Guard.
'l'BAKSPI:R OF FuNCTIONS
"Secretary of Commerce" and "Department of Com-
me;-ce" were sub/itituted .for "Secretary of the Interi-
or" and "Department of. the Interior" in vie·w of: the
creation of the National Oceanic and Atmospheric Ad-
ministration in the Department of Commerce and the
Office of Admin.1stra.tor of such Administration; the
abolition of the Bureau of Commercial Fisheries in
the Interior Department and the Office of Director of
such Bw·eau; transfers of !unctiops, includ!n~r func-
tions formerly vested by law in the Secretary of the
Interior or the Interior Department which were ad-
ministered through the Burea,u of Commercial Fisher-
ies or were primarily related to such Bureau, exclusiv~
of certain enumerated functions with respect to Great
Lakes fishery research, MJs.souri River Reservoir re-
search, Gulf Breeze Biological Laboratory, and Trans-
Alaska pipeline invtstigations; and tran.ster of marine
sport !ish program of Bureau of Sport FishP.ries and
WLldllfe by Reorg. Plan No. 4 of 1970. etf. Oct. 3, 1970,
35 F.R. 15627. 84 Stat. 2090, set out in the Appendix to
Tltle 5. Government Organization and Employees.
For transfer of functior..s of \lther officers. employ-
ees, and agencies of the Department ~~ the Interior,
with certain excr _!ions. to the Sect·etnry of Interior,
with power to delegp~~. see Reorg. Plan No.3 of 1950,
§§ 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262,
set out in the Appendix to title 5,
The Coast Guard was transferred to the Department
of Transportation and all functions, powers, and
duties, relating to the Coast Guard, of the Secretary
of the Treasury and of other offices and officers o!
the Department of the Treasury were transferred to
the Secretary of Transporta.t!on by Pub. L. 89-670,
Oct. 1~~ 1966, 80 Stat. 931, which created the Depart-
ment of Transportation. See section 1655 of Title 49,
Transportation.
All functions of all officers of the Department of the
Treasury, and all functions of all agencies and Gmploy-
ees o! such Dep~rtment. were transferred, with certain
exceptions, to the Seco-etary of tlle Treasury, with
power vested in him to authorize their perfonnance or
the performance of a.ny of his functions, by a.ny of
such officers, agencies. and employees, by Reorg. Plan
No. 26 of 1950, U 1, 2, etf. July 31, 1950, 15 F.R. 4935,
64 Stat. 1280, 1281, set out in the Appendix to Title 5.
The Customs Service, referred to in this section, Is a
servir.e under the Treasury Department, and th,e Coast
Guard, also referred to in this section, was generaliy a
service under such Department, but such Plan except-
ed, fl'om the transfer, functions of the Coast Guard,
and of the Commandant thereof, when the Coast
Guard was operating as a part o! the Navy under sec-
tions 1 and 3 of Title 14, Coast Guard.
Reorg. Plan No. III of 1940, § 3, e!f. June 30, 1940, 5
F.R, 2108, 54 Stat. 1232. set out in the Appendix to
Title 5, Government Orgn.nization and Employees,
eor~olidated the Burei\U o1 Fisheries and the Bureau
of Biological Survey w1th their respective functions
Into one agency in the De~artment of thr Interior to
be· knowr. as the Fish a..-·1d Wildlife Service, and pro-
vided that the functigns !lf the consolidated agency
shall be administered under the direction ana stllliG"IIII'~,
sion of the Secretary of the Interior.
Reorg. Plan No. II of 1930, ~~t out in the ADDeD~
to Title 5, transferred the Burt-au Gf Ftsherl~
Dep&rtm~nt of Commerce and its functioM £o the
partment ni the Interior, to be administered under
direction and supervision of the SecretarY of t~e
rior.
CHAPI'ER 12-FEDERAL REGULATION
DEVELOPMENT OF POWER
StiBCliAPTER I-REGULATION OF THE
OPMENT OF W~~ POWER AND
SOURCES
See.
791. Repealed.
79la. Shol ~·Utle.
792. Federal Power Commission;
number: appointment; tenn: quall:UCJ~tl~~
vacancies; quorum: chairman: salary; pliCI'•
of holding sessions. · • ..
7S3. Appointment of of!lcers and employees _f
Federru PQwer Commission: dutie.s, and _.
aries; detail o! officers and employ~
other departments; expenditures
rizecL
79;Ja. Repe&ed.
~~4. Omitted.
795. ·Expenses of commission generally;
tence allowanee to employees
worit.
796. Def!nitlons.
'797. General powers of Crilnmisslon.
<a> mvestlgatior.s and data. -·
(b) a.~tements as to investm~nt of II-.
censes ln projects; &.ecess t.o
Jects, maps, etc.
(c) Cooperation with executive c...~~
ments: ln!onnation and aid fur-
nished commissiot1.
(d) Publication of ln!ormatlon, etc.: It-
ports 1;o Congress. · ~-
(e) Issue o;t licenses for construction. ..
etc., of darns, conduits, rcservol.r3.
etc.
(f) Preliminary permits: notice of appll-
cation.
(g) Investigation of occupancy for dev~
oping power; orders. .
797a. Congressional authorization !or permits. u-.
censes, leases, or authoriznttons for dams.
conduits, reservoirs, etc., within national .
parks or monuments.
798. Purpose and scope of preliminary pennlts:
transfer and cancellation.
799. License: duration, conditions. revocation. al-
teration. or surrender.
800. Issuance of preliminary pennits or licenses.
<a> Preference.
(b) Development of water re.source5 b1
United States; reports.
<c> Assumption of project by United
States after expiration of license.
801. .1"rans!er of license: obllgation.'l of transferee.
802. Information to accoms:>any application for 11·
crense.
803, Conditions of license generally.
(al I>.1odi!ica.tion of plans, etc., to secure .
l\daptability of project,
(b) Alterations in project wor~. •
<c> Maintenance md repair of proJ~
works: llabutty of licensee for dtm·
ages.
(d) Amortization reserves.
<e> Annual charges ·payable by Uct. :tSeel-
(f) Reimbursemen~ by Ucensee (.)f othe::
licelu;ees, etc. ., ·.
(g) Conditions in discretion of co~
sion.
§ 785 TITLE 16-CONSERVATION
<Aug. 15, 1914, ch. 253, § 5, 38 Stat. 692; 1.939
. Reorg. Plan No. II, § 4(e), eff. July 1, 1939, 4
F.R. 2731. 53 Stat. 1431; Aug. 4, 1949, ch. 393,
§§ 1, 20, 63 Stat. 495, 561; 1970 Reorg. Plan No.
4, eff. Oct. 3, 1970, 35 F.R. 15627, 84 Stat. 2090.)
AKzlmiiDTS ·.
1949-Act Aur. 4, UH9, reesta.bllshed the Cocst
Guard and repesled act Jan. 28, 1915, ch • .'10, § 1, 58
Stat. 800.
En:tc'XIVE DAD Ol"' 1940 AIIDDIIEMT
Amendment by act Aug. 4, 1949, effective the first
day of the third month after the month of approval,
August 1949, see .Effective Date note set out preceding
chapter 1 of Title 14, Coast Guard.
TR.ufsFZR or Ftnt'C'l'IOMS
"Secretary of Commerce" and "DetJ:o:rtment of Com-
merce" were subst:\tuted for "Secretary o! the Interi-
or" and "Departmtmt of the Interior" in view of: the
creation of the National Oceanic and Atmospheric Ad-
miniStration in the Department of Commerce and the
Office of AdminJstn.\tor o! such Administration; the
abolltlon of the Bureau of Commercial Fisheries in
the Interior Department and the Offlce of Director of
such Bureau: transfers of functions. including func-
tions formerly vested by law in the Secretary of the
Interior or the Interior Department which were ad-
ministered through ~he Bureau of Commercial Fisher-
ies or were prlmal"JlY related to such Bureau, exclusive
of certain enumerated functions with respect to Great
Lakes fishery research, Missouri River Reservoir re-
search, Gulf Breeze B!olol(!cal LaboratorY, and Trans-
Alaska pipeline investigations; and tranzder of marine
sport fish program of Bureau of Sport Fisheries and
Wlldll!e by Reorg. Plan ~o-4 of 19'70, eff. Oct. 3, • 9'70,
35 F.R. 15627, 84 Stat. 2090, set out in the Appendix to
Title 5, Government Organbl.tton and Employees.
For transfer of functions of other officers, employ-
e~. and agencies of the Department of the Interior,
with certain exceptions. to the Secretary of Interior.
with power to delegate, see Reorg. Plan No. 3 of 1950,
§§ 1, 2, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262,
set out In the Appendix to title 5.
The Coast Guard was transferred to the Department
of Transportation and all functions, powers, and
duties, relating to the Coast Guard, of the Secretary
of the Treasury and of other offices and officers of
the Dep~rtment of the To easury were transferred to
the Secretary of Transportation by Pub. L. 89-670,
Oct. 15, 1966, 80 Stat. 931, which created the Depart·
ment of Transportation. See section 1655 of Title 49,
Transportation.
All functions of all officers of the Department of the
Trea.'mry, and all !unctions of all agencies·and .~mploy
ees of such Department, were transferred, with certain
exceptiOl'lS, to the Secretary of the Treasury, wlth
power vested in him to authorize their performance or
the per!ormance ot any of his functions, by any of
such officers, agencies, and employees, by Reorg. Plan
No. 26 of 1950, §§ 1, 2, eff. July 31, 1950, 15 F.R. 4935,
64 Stat. 1280, 1281, set out in the Aps:endix to Title 5.
The Customs Service, re!erred to in this section, is a
service under the Treasury Department, and the Coast
Guard, also referred to in this section, was generally a
service under such Department, but such Plan except-
ed, from the transfer, !unctions of the Coast Guard,
and of the Commandant thereof, when the Coast
Guard was operating as a part of the Navy under sec·
th"ns 1 and 3 of Title 14, Coast, Guard.
!~..:org. Plan No. III of 1940, § 3, ~ff. June 30, 1940, 5
F.R. 2108, 54 Stat. 1232, set out ln t.he Appendix to
Title 5, Government Organization and Employees,
consolidated the Bureau of Fisheries and the Bureau
of Biological survey with their respective functions
lnto one agency in the Department of the Interior to
be known as the Fish and Wlldllfe Service, and pro·
vided that the !unctions of the consolidated agency
shall be s:dminlstered under the direction and
sian of the Se:t·eta.ry of the Interior •
Reorg. Plan No. II of 1930. set. out in the ADDelliiiA
tO Title 5, transferred the Bureau of FfsherleJ in
Department of Commerce and its functions to the
partment of-the Interior, to be adminiatered under
direction and supervision ot the SecretarY of the TntJII!oiH·W!
rior.
CHAPJ'ER 12-FEDERAL REGULATION AND
DEVELOPMENT OF POWER
SUBCHAPTER I-REGULATION OF THE
OPMENT OF WATER POWER AND
SOURCES . ..
Sec.
791. Re~ealed.
'19la. Short title.
'792. Federal Power Comml.ssion: cte&tloO:
number; appointment; term; quallilca.tio~
vacancies; quorum: chairman: salary; pJ.ue
of holding sessions.
793. Appointment of officers and employees of
Federal Power Commts.slcm: duties, and sal·
aries: detail of oiflcers.and employ~es !l'OlEl
other departments; expenditures autho-
rized.
793a. Repealed.
'794. Omitted.
795. ·Expenses o{ commission generally; sublll-
ter.::e allowance to employees on field
work.
796, Definitions.
797. General powers of Commission.
<a> Investigatiors and data..
Cb> Sta.tements as to investment of U·
censes in projects; access to pro-
Jects~ maps, etc.
<c> Cooperation with executive depart-
ments; information and aid fur·
nished commission.
<d> Publication of information, etc.; re-
ports to Congress.
<e> Issue of licenses !or construction,
etc., of dams, conduits, reservoirS,
etc.
<!> Preliminary permits: notice of appll-
ca.tion.
(g) Investigation of occupancy !or devel·
oping powar: orders. .
7f7a. Congre;;.Sional authorization fer permits. ll·
censes, leases, or authorizations for dams,
conduits, reservoirs, etc., within national
parks or monuments.
798. Purpose and scope of preliminary permits;
transfer and cancellation.
799. License: duration, conditions, revocation, al·
teratlon, or surrender. ..
800. Issuance of preliminary permits or lh::enses.
Ca> Preference.
Cbl Development of water resources by
United States: reports.
<c> Assumption of proJe-:t by United
States after expiration of 1:cense.
801. Transfer of license; obll~ations of trar.sferee.
802. In!onnation to a..-::company appllcation !or 11·
cense.
803. Conditions of license generally.
(a) Modification o! plans, etc .. to secure
a.daptabllity of project.
(b) Alterations in project works.
<c> Maintenance and repair of project
works; llabntty of licensee for dam·
ages.
(d) Amortization reserves.
<e> Annual charges payable by Ucensees.
( i) Retmbursement by licensee of other
licensees, etc.
<i) Conditions ln disctetion of commls·
stem.
Page as-r Tl~16-CONSERVATION §785
805.
808.
8!)7.
SQ9.
810.
111.
113.
au.
515.
816.
118.
<h> Monopolistic combinattcma prohibit-
ed.
m Waiver of conditions.
ProJect works a.ffectln& navigable waters; re..
quirements insertable ir• license.
{i\) Locks. boo;:<tS. ~uices, or other navi-
llll.tional structures.
<b> Coltlpletton of navtaational facUlties
by United St.ates; rights-of-way.
<c> Free power to United States tor oper-
ation of facilities.
Participation by Govem=ent in coats of
locks. etc.
Time ll:nit tor comtructton of proJect works:
extension of time; termination or revoca-
tion ofllc:ense:J !or delay.
Rlaht of Government to take over project
wor~A. .
(a) Compensation; condemnation by
Federal o;· State Govei'nment.
(b) Time of appHcat.lons !or new licenses;
rellcemtng proceedings; Federal
qency recommendations of take
over by Government; st.ay of orders
for new Ucenses; termination of
stay; notice to Congress.
New licenses and renewals; compensation of
old licensee; licenses for nonpower use: re-
cordkeeping.
Temporary use by Government of project
works for national safety; compensation
!or us€.
Disposition of charaes arising from licenses.
Operation of na"Jiption facilltles; rules and
regulations; penalties.
Public-service licensee: regulations by State
or by commission as to service, rates,
charges, etc.
Power enterln& into interstate commerce:
re&Ulatton of ra.Us, charges, ~tc.
Exercise by licensee of power of eminent
domain.
Contract to fumlsh power extendin& beyond
period of license; obligations of n~w licens-
ee.
Preservation of ri&hts vested prfor to June
10, 1920.
Projects not affecting navigable wate1-s; ne-
cessity for Federal license.
Public lands Included in project: reservation
of lands from entry.
Repealed.
ProceedingcJ for revogation of license or to
prevent violations ~·~ ~~ i:ense.
State laws and wate.-1' 1.;&hts una:t:!ected.
Reservation of right to alter or repeal chap-
ter.
Repeal of inconsistent laws.
jusClU.PTER II-REGULATION OF ELECTRIC . lJ'l'ILlTY COMPANIES ENGAGED IN INTER-
. f(l'.ATE COMMERCE
Declaration o! policy; application of sub-
chapter.
(a) Federal regulation of trf\IlSmissicn
and sale of electric energy.
(b) Use or sale of electric energy in inter-
state commerce.
(c) Electric energy !n interstate com-
merce defined.
<d> "Sale of electric energy at wholesale"
defined.
Ce) "Public utility" defined.
(!) United States, State, political subdi-
vision o! a State, or agency or In-
strumentality thereof exempt.
Interconnection and coordination of f.acili-
ties: emergencies: transmission to foreign
countries.
(1\) Rerdonal districts: establishment:
notice to State commissions.
<b> Sale or exchange of energy; estab·
lishing ph~'Sica.\ c;onnections.
<c> Temparary connection and excha.nae
of facilltl~ durin~ emergency. <d> Temporary ccmection during emer-
gency by persons without jurisdic·
tton of C~mmisslon. ( '> Transmisaion o! electric energy to
foreign country.
(f) Tnt.ntmJ&ston or we at wholesale ·of
elet.:t.rlc energy; re&Ula.tlon.
824b. Disposition of property; consolidations: pur ..
chase o! SECUrities.
S24c. Issuance of securities; a.ss1..unptton of llabU·
ltte.s.
<a.> AUthorization by Commission.
(b) Application approval or modl!lcatlon:
supplemental orders.
(c> Compllance with order of Commis-
sion.
Cd> Authorization oi capitalization not to
exceed a.molUlt paid.
<e> Notes or draft.s maturing less than
one year a.!ter issuance.
<f> Public utility securities regulated by
State not affected.
(g} Guarantee or obligation on the part
of United States.
Ch> Filing duplicate T(!Oorts with the Se-
curities and JP~ .<::ha.nge Commission.
624d. Rates and charges.
<a> Just and reasonable rates.
<b> Prderence or advantage unlawful.
<c> ScJ.1edules.
(d) Notice required !or rate changes.
{e) Suspension of new rates: heart.,gs;
five month period.
q24e. Power of Commission to fix rates an~
charges; determination of cost of produc-
tion or transmission.
824f. Ordering furnishing of adequate service.
824g. Ascertainment of cost of property and dt'lpre~
elation.
824h. References to State boards by Commission.
(a) Composition of boards; force and
effect of proceedings.
<b> Cooperation with State commissions.
<cl Availability of informat,on and re-
ports to State commissions; Com-
mission experts.
SUBCHAPTER III-LICENSEES AND PUBLIC
UTILITIES; PROCEDURAL AND ADMINISTRA·
TIVE PROVISIONS
825. Accounts and records.
(a) Duty to keep.
<b> Access to and examination by the
Commission •
<c> Controlling individual .
825a. Rates of depreciation; notice to State au-
thi>rities before fixing.
825b. Requirements aqplicable to agencies of
United States.
825c. Periodic and special reports; obstructing
f111ng reports or keeping accounts, etc.
825d. Officials dealing in securities: de<:laring divf·
dend.s out of capital account; interlocking
directorates.
8~5e. 9omplaints.
825!. Investigation:. by Commission.
<a> Scope.
Cb> Attendance of witnesses and produc-
tion of documents.
<c> Resort to courts o! United States !or
failure to obey subpena: punish-
ment.
(d) Testimony by deposition.
§ 791 TITLE 16-CONSERVATION
825g.
825h.
8251.
825j.
825k.
825Z.
<e> Deposition of witness in a foreign
country.
Cf> Deposition fees.
Hearfnp; rules of procedure.
Administrative powers of Commission: rules.
regulations. and orders.
Appointment of officers and employees; com-
pensation.
Investtptions relating to electric eneru; re-
ports to COnlf'es8.
Publication and sale of reports.
Review ot orders.
<a> Application !or reheari.nr. time peri-
ods; modification of order.
<b> Judicial review.
<c> Stay of Comm.ission's order.
825m. Enforcement provisions.
825n.
825o.
825p.
825q.
825r.
825s.
<a> EnJoining and restraln.lng violations.
<b> Writs of mandamus.
(c) Employment of attorneys.
Forfeiture for violations; recovery.
Penalties.
Jurisdiction of offenses; enforcement of 11·
abilities aL. 'uties.
Conflict of jurisdiction.
SeparabUlty of provisions.
Sal~ of electric power from reservoir pro-
jects; rate schedules; preference in sale;
construction of tra.n.smission lines; disposi-
tion of moneys.
825s-1. Sale and transmission of electric power;
southwestern area; disposition of receipts;
creation of continuing fund; use of fund.
8255-2. Sale and trarunntssion of electric power:
southeastern area; disposition of receipts;
825t.
825u.
creation of continuing fund; use of fund.
Utilization of power revenues.
Interest rate on power bonds held by Admin-
istrator at General Services.
SUBCHAPTER IV-STATE AND MUNICIPAL
WATER CONSERVATION FACILITIES
828. Facilitation of development and construction
of water conservation facilities: exemption
from certain Federal requirements.
828a. Definitions.
828b. Exemption !rom fonnula, books and records,
and project cost statement requirements;
annual charges.
828c. Applicability of this chapter.
APPLICATIO!f TO NATIONAL PARKS
Acadia Nat.ional Park, see section 342b of this title.
Big Bend National Park, see section 158 of this title.
Bryce Canyon National Park, see section 402e of this
t!tle.
Carlsbad Caverns National Park, see section 407b of
this title.
Everglades National Park, see section 410b of this
title.
Grand Canyon National Park, see section 221b of
this title.
Great Smoky Mountains National Park. see section
403b of this title.
Isle Royale National P~k. see section 408b of this
title.
Lands reserved for park purposes in Coos County,
Oregon, see section 405 of this title.
Lassen Volcartic National Park, see sections 201b,
204l, 205a, and 207a of this title.
Mammoth Cave National Park, see section 404h of
this title.
Mount Rainier National Par}h see section 108 of tnis
title.
Rocky Mountain National Park, see section 19'7 of
this tiile.
Shenandoah National Park, see section 403b of this
title.
YcJiowsLonc Nattonal Pnrk, sec section 2lb at this
title.
Yosemite National Park. sec section 47r of this Litle.
CiiAP'rzR RI::PERR.ED TO m OTHER SZCTIOifS
This chapter is referred to in sections 2lb. 47b. 4'lf; ·
90d-4, 108, 158, 197, 20lb. 204l, 205a. 207&. 221b. 342b.
391. 39lb-1. 402e. 403b, 404b. 405, 407b, 408b, ~10~
435, 459a-l. 460D1-11.460ee, 460gr-2. 577b,832h.833~
838, 1278 of thl5 title; title 25 section 328; tttle 30 sec-
tion 821: title 33 section 467a.
SUBCHAPTER I-REGULATION OF
DEVELOPl\IENT OF WATER POWER AND'
RESOURCES
Section 212 of act of Aug. 28. 1935. eh. 887, 49 stat.
847, provided that sections 1 to 29 of the Federsl
Water Power Act, as amended <sectiom 792. 793. '794
(eltminat~dl, 795 to 797, 798 to 818, 819 [repealed].
and 820 to 823 of this title> shall constitute sutJ..
chapter I of the act. as set out above. Said section 212
also repealed sections 25 a..'"ld 30 of the act <secttona
819. 791 of this title>. It also contained a proviso as fol·
lows: "That nothing in that Act. as amended, shall be
construed to repeal or amend the provisions of the
amendment to the Federal Water Power Act approved
March 3, 1921 <41 Stat. 1353 [section 797a of thia
title]). or the provisions of any other Act relatin& to
national parks and national monuments."
SUBCHAPTJ:R REn!IUtED '".:0 Ilf OTHER SECTIOKS
This subchapter fs refe£Ted to in section 825o of this
title.
§ 791. Repealed. Aug. 26, 1935, ch. 687, title II, § 212,
49 Stat. 847
Section. act June 10, 1920, ':h. 285, § 30, 41 Stat. 1077,
deslKDated the act as The Ft. dew Water Power Act.
§ 791a. Short title
This chapter may be cited as the "Federal
Power Act."
(June 10, 1920, ch. 285. § 320, as added Aug. 26,
1935, ch. 687, title II, § 213, 49 Stat. 863.)
§ 792. Federal Power Commission; creation; number;
appointment; term; . qualifications; vacancies;
quorum; chairman; salary; place of holding ses-
sions
A commission is created and establLc;hed to be
known as the F.ederal Power Commission <her-
einafter referred to as the "commission") which
shall be composed of five commissioners who
shall be appointed by the President, by and
with the advice and consent of the Senate, one
of whom shall be designated by the President
as chairman and shall be the principal execu-
tive officer of the commission. Each chairman,
when so designated. shall act as such until the
expiration of his term of office.
The commissioners first appointed under this
section, as amended, shall continue in office for
terms of one, two,. three. four. and five years,
respectively, from June 23, 1930, the term of
each to be designated by the President at the
time of nomination. -'rheir successors shall be
appointed each !or a term of f~ ;;e years from
the date of the expiration of the term for
which his predecessor was appointed and until
his successor is appointed and has qualified,
except that he shall not so continue to serve
beyond the expiration of the next session of
Congress subsequent to the expiration of said
fixed term of office. and except that any person
appointed to fill a vacancy occurring prior to
the expiration o! the term for which his prede-
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cessor was appointed shall be appninted only
for the unexpired term. Not more than three of
the commissioners shall be appointed from the
same pollttc&l party. No person in the employ
of or holding any official relation to any licens-
ee or to any person. finn, association, or corpo-
ration engaged In the generation, transmission,
distribution, or sale of power, or owning stock
or bonds thereof, or who is in any manner pecu-
niarily interested therein, shall enter upon the
duties of or hold the office of commissioners.
Said commissioners shall not engage in any
other business, vocation, or employment. No va-
cancy in the commission shall impair the right
of the remaining commissioners to exercise all
the powers of the commission. Three members
of the commission shall constitute a quorum
for the transaction of business, and the com-
mission shall have an official seal of which judi-
cial notice shall be taken. The commission. shall
annually elect a vice chairman to act in case of
the absence or disabil!ty of tha chairman or in
case of a vacancy in the office of chairman.
·Each commissioner shall receive necessary
traveling and subsistence expenses, or per diem
allowance in lieu thereof, within the limitation
prescribed by law, while away from the seat of
government upon official business.
The principal office of the com..tl11ssion shall
be in the District of Columbia, where its gener-
al sessions shall be held; but whenever the con-
venience of the public or of the parties may be
promoted or delay or expense prevented there-
by, the commission may hold special sessions in
anY. part of the United States.
(June 10, 1920, ch. 285, § 1. 41 Stat. 1063; June
23, 1930, ch. 572, § 1, 46 Stat. 797; 1950 Reorg.
Plan No, 9, § 3, eff. May 24, 1950, 15 F.R. 3175,
64 Stat. 1265; July 12, 1960, Pub. L. 86-619, § l,
'74 Stat. 407 .)
CODIJI'ICATION'
Provisions covering the compensation of commfs-
atoners have been omitted as obsolete. Compensation
of the Chairman and members of the Commission are
now covered by sections 5314 and 5315 of Tltle 5, Gov-
ernment Organization and Employees.
Ali4E'NDMEN'TS
1960-Pub. L. 86=-619 provided for continuation In
otfice of a ":Ommissioner upon termination of his tenn
untU a successor is appointed and has quallffed, not
beyond expiration of next session of Congress subse-
quent to the expiration of said fixed term of office.
1930-Pr.ior to the amendment by act June 23, 1930,
t.hl.s section read a.s follows: "A commission Is hereby
created and established, to be known a.s the Federal
Power Commission (hereinafter referred to as the
eommission), which shall be composed of the Secre-
tarY of War, the Secretary of the Interior, and the
SecretarY of Agriculture. Two members of the com·
. JDf,ssion shall constitute a quorum for the transaction
o! business, and the commission shall have an official
1e11. which shall be jucticiallY noticed. The President
ahJll designate the chairman of the commission."
REPEALS
Act Oct. 15, 1949, ch. 695, § 5<a>. 63 Stat. 880, former-
lY &et out In the credit to this section, was repealed by
pUb. L. 89-554, § 8Ca), Sept. 6, !966, 80 Stat. 655.
TRANSFER OF Fu:;CTIONS
. All executive and administrative !unctions of the
F«feral Power Commission were, with certain reserva-
.-. transferred to the Chairman o! such Commls-
s!on, with authority vested in hJm to authorize their
performance by any officer. employee. or administra-
tive unit under his jurisdiction, by Reorg. Plan No. 9
of 1950, set out below.
REORGANIZA'TION PLAN NO. 9 OF 1950
E!f. May 24, 1950, 15 F.R. 3175, 64 Stat. 1265
Prepared by the President tmd transmitted to the
Senate and the House of Representatives in Congress
assembled, March 13, !950. pursuant to the provisions
of the Reorpnization .Act ot 1949, approved June 20.
1949.
FEDERAL POWER COJO(ISSIO~
§ 1. TltAlfSn:R OP Fo'NCTIOlfS '1'0 THE CliAIRKAlf
<a> Subject to th~ provisions of subsection (b) of this
section. there are hereby transferred !rom the Federal
Power' Commission, hereinafter referred to as the
Commission. to the Cha.irman o! the Commission, her-
einafter referred to as the Chairman. the executive
and administrative functions of the Commission, ln-
clucting !unctions of the Commission with respect to
<l > the appointment and supervision o! personnel em-
ployed under the Commission, <2> the distribution of
b<tSiness among such personnel and among administra-
tive units of the Com.r..USSion. and (3) the use and ex-
penctiture of funds.
<b><l> In carrying out any of his functions under the
provisions of this section the Chainnan shall be gov-
erned by general policies of the Commission and by
such regulatory decisions, findings, and determina-
tions as the Commission may by law be authorized to
make. <2> The appointment by the Chairman of the heads
of major admJnistrattve units under the Commission
shall be subject to the approval of the Commission. <3> Personnel employed regularly and full time in
the Immediate offices of Commissioners other than
the Chainnan shall not be a!fec~d by the provisions
of this reoi'gallization plan. "> There are hereby reserved to the Commission its
!unctions with respect to revising budget estimates
and with respect to detennining upon the distribution
of appropri~ted funds according to major programs
and purposes.
§ 2. PERFoRMANCE OF TRANSFERRED FuNCTIONS
The Chairman may from time to time make such
provisions as he shall deem appropriate authorizing
the performance by any officer, employee. or adminis-
trative unit under his jurisdiction of any functions
transferred to the Chairman by the provisions of this
reorganization plan.
§ 3. DESIGNATION' OP' CHAIRMAN
The functions of the Commission with respect to
choosing a chairman !rom among the collUl'lisSioners
composing the Commission are hereby transferred to
the Pr~ident.
§ 793. Appointment of officers and employees of Fed-
. eral Power Commission; duties, and salaries;
detail of officers and employees from other de-
partments; expenditures authorized
The commt .. ::lion shall have authority to ap-
point, prescribe the duties, and fix the salaries
of, a secretary, a chief engineer, a. general coun-
sel. a solicitor, and a chief accountant; a.nd may,
subject to the civil service laws, appoint such
other officers and employees as are necessary
in the execution of its functions and fix their
salaries in accordance with chapter 51 and sub-
chapter III of chapter 53 of title 5. The com-
mission may request the President to detail an
officer or officers from the Corps of Engineers,
or other branches of the United States Army,
to serve the commission as engineer officer or
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Page 661 TITLE 16--CONSERVATION §796
District ot' Columbia. and away from their desiga
nated points of duty, shall be allowed and paid
on the presentation of itemized vouchers there-
for, approved by a member or officer of the
cornm~~ion duly authorized for that purpose.
(June 10, 1920, ch. 285, § 2, 41 Stat. 1063; June
9, 1949, ch. 185, § 9, 63 Stat. 167.)
CODIFICATION
'l'his section coru;!c:ts of the third paragraph of sec-
tion 2 of act June 10, 1920. The !lrst and second para-
graphs of said section 2 were classified to section 793
and section 794 of this title.
An additional provision of the third paraaraph of
section 2 of act June 10, 1920, which authorized approa
priations for expenses made necessary by this chapter
in such sums a.s Conll'ess might thereafter determine,
and appropri&ted $100,000 therefor, was omitted as
temporary.
AM!:MDMENTS
1949-Act June 9, 1949, increased the per diem
allowance from $4 to $9.
TRANSFER OP' FuNCTIONS
All executive a.nd administrative functions of ~he
Federal Power Commission were, with certain reser'\:a.-
tions, transferred to the Chainnan of such Commis-
sion, wlt.J.l authority vested in him to authorize their
performance by any offlceJ~. employee, or administra-
tive unit under his juri<Jdiction, by Reorg. Plan No. 9
of 1950, §§ 1. 2, ef.{. May 24, 1950, 15 F.R. 3175, 64 Stat.
1265, set out as a note unclex-section 792 of this title.
CROSS REFERENCJ:S
Expenditures by ~ommission authorized, see section
'193 of this title.
Subsistence allowances generally, see chapter 57 of
Title 5, Government Organization and Employees.
§ 796. Definitions
The words defined in this section shall have
the following meanings for purposes of this
chapter, to wit:
<1> "public lands" means such lands and LT'l-
terest in lands owned by the United States as
are subject to private appropriation and dis-
posal under public land laws. It shall not in-
clude "reservations", as hereinafter defined;
(2) "reservations" means national forests,
tribal lands embraced within Indian reserva-
tions, military reservations, and other lands
and interests in lands owned by the United
States, and withdrawn, reserved, or withheld
from private appropriation and disposal
under the public land laws; also lands and in-
terests in lands acquired and held for any
public purposes; but shall not include nation-
al monuments or national parks;
(3) ucorporation1' means any corporation,
joint-stock company, partnership, association,
business trust, organized group of persons,
whether incorporated or not, or a receiver or
receivers, trustee or. trustees of any of the
foregoing. It shall not include "municipal-
ities" as hereinafter defined;
( 4) "person" means an individual or a corpo-
. ration:
(5) "licensee" means any person, State, or
municipality licensed under the provisions of
section 797 ·of this titb, and any assignee or
successor in interest thereof;
<6> "State" means a State admitted to the
Union, the District of Columbia, and any or-
ganized Territory of the United Gtates:
(7) "municipality" means a city, county, ir-
rigation district, qrainage district, or other
political subdivision or agency of a Statt:. ~om
petcnt under the laws thereof to carry on the
business of developing, tra.ru;mitting, utilizing,
or distributing power;
(8) "navigable waters" means those parts of
streams or other bgdies of water over wnich
Congress has jurisdiction under its authority
to regulate commerce with foreign nations
and among the several States, and which
either in their natural or improved condition
notwithstanding interruptions between the
navigable parts of such streams or waters by
falls, shallows, or rapids compelling land car-
riage, are used or suitable for use for the
transportation of persons or property in in-
terstate or foreign commerce, including there-
in all such interrupting falls. shallows, or
rapids, together with such other parts of
streams as shall have been authorized by
Congress for Improvement by the United
States or shall have been recommended to
Congress for such improvement after investi-
gation under its authority;
(9) "municipal purposes" means and in-
cludes all purposes within municipal powers
as defined by the constitution or laws of th€:
State or by the charter of the municipality;
<10> 1'Government dam" means a dam or
other work. constructed or owned by the
United States for Government purposes with
or without contribution from others:
< 11 > "project" means complete unit of im-
provement or develo\)ment. consisting of a
power house, all water conduits, all dams and
appurtenant works and structures (including
navigation structures> which are a part of
said unit. and all storage, diverting, or fore-
bay reservoirs directly connected therewith,
the primary line or lines transmit\'ing power
therefrom to the point of junction with the
distribution system or with the interconnect-
ed primary transm~ 5Sion system, all miscella-
neous structures t sed and useful in connec-
tion with !laid unit or any part thereof, and
all water-rights, rights-of-way, ditches, dams,
reservoirs, lands, or interest in lands the use
and occupancy of which are necessary or ap-
propriate in the maintenance and operation
of such unit;
(12) "project works" means the physical
structures of a project:
( 13) "net investment" in a project means
the actual legitimate original cost thereof :as
defined and Interpreted in the "classification
of investment in road and equipment of
steam roads, issue of 1914, Interstate Com-
merce Commission", plus similar costs of ad-
ditions thereto and betterments thereof,
minus the sum of the following items proper-
ly allocated thereto, if and to the extent that
such items have been accumulated during the
period of the license from earnings in excess
of a fair return on such investment: (a) Unap-
propriated surplus, (b) aggregate credit bal-
ances of· current depreciation accounts. and
Cc) aggregate appropriations of surplus or
income held in amortization, sinking fund, or
§ 797 TITLE 16-CONSERVATION
similar reserves, or expended for additions or
betterments or used for the purposes for
which ~uch reserves were created. The term
.. cost" shall include, insofar as applicable, the
elements thereof prescribed in said classifica-
tion, but shall not include expenditures from
funds obtained through donations by States,
municipalities, individuals, or others, and said
classification of investment of the Interstate
Commerce Commission shall insofar as appli-
cable be published and promulgated as a part
erf the rules ann regulationB of the Commis-
sion;
<14> "Commission" and "Commissioner''
means the Federal Power Commission, and a
member thereof, respectively;
{15) "State comr.l!ssion'' means the regula-
tory body oi the State or municipality having
jurisdiction to regulate rates and charges for
the sale of electric energy to consumers
within the State Ol" municipality;
<16) "security" means any note, stock, trea-
sury stock, bond, debenture, or other evidence
of interest in or indebtedness of a corporation
subject to the provisions of this chapter.
<June 10, 1920, ~h. 285, § 3. 41 Stat. 1063; Aug.
26, 1935, ch. 687, title II, § 201, 49 Stat. 838.)
REI"ERJ:NCES IN TExT
Public land laws, refeiTed to in pars. Cl), <2>. are clfi.s-
sified generally to Title 43, Public Lands.
Alo:rmllfEN'l'S
1935-Act Aug. 26, 1935, amended definitlom of "res-
ervations" and "corporations", and added definitions
of "person". "licensee", "commission", "commission-
er", "state commission" and "security".
SECTION REI'ERRED TO IN OTHER SECTIONS
This section is referred to in section 807 of this title.
§ 797. General powers of Commission
The Commission is authorized and empow-
ered-
(a) Investigations and data
To make investigations and to collect and
record data concerning the utilization of the
water resources of any region to be developed,
the watoer-power industry and its relation to
other industries and to interstate or foreign
commerce, and concerning the location, capac-
ity, development costs, and relation to markets
of power sites, and whether the power from
Government dams can be advantageously used
by the United States for its public purposes,
and what is a fair value of such power, to the
extent the commission may deem necessary or
useful for the purposes of this chE.pter.
(b) Statements as to investm~nt of licenses in pro-
jects; access to projects, maps, etc,
To determine the actual legitimate original
cost of and the net investment in .1 licensed pro-
ject. and to aid the Commission ~n such deter-
minations, f::ach licensee shall, upon oath,
within a reasonable period of .time to be fixed
by the Commission, after the construction of
the original project or amr addition thereto or
betterment thereof, file with the Commission
in such detail as the Commission may require, a
statement in duplicate showing the actual le-
gitimate original cost of construction of such
project addition, or betterment, and of. ·w.a .•. u-..:
price rJaid for water rights, rights-of-way, t
or interest in lands. The Ucemee shall gran
the Commission or to its duly authorized
or agents, at all reasonable times, !rr:e ctH!tiJal·wt~:t'!!ll!l
such project, addition. or betterment, and to
maps, profiles, contracts, reports of eniPill~!§!~
accounts. books, records, and all other
and documents relating thereto. The SUI.liCli~Ai~~";;J!~
of actual legitimate original cost of said DrCliJedttt_~~
and revisions thereof as detennined bY
Commission, shall be filed with the Se<:ret&n:;:;i
of the Treasury.
(c:) C.ooperation with executive departments; infiDrft••:
tion and aid furnished commiuicn ,5:.
To cooperate with the execv.ti;;e departments•
and other agencies of State or National aov~ .
emments in such investigations; and for sucll•
ptL.-pose the several departments and agencies·
of the National Government are authorized and -
directed upon the request of the commission, to · ·
furnish such records, papers. and information ·
in their po~ession as may be requested by the
commission, and temporarily to detail to the.
commission such officers or expe!'ts as maY be
necessary in such investigations.
(d) Publication of information, etc.; reporta to CoJ~o>-
greu -
To make public from time to time the infor·
mation secured hereunder, and to provide for
the publication of its reports and investigations
in such. form and manner as may be best adapt-
ed for public information and use. The Commis·
sion, on or before the 3d day of January of each
year, shall submit to Congress for i:.::~ fisCal
year preceding a c-lassified report show~"lg the
permits and lic"'~ISes issued under thi;:r :mb·
chapter, and in each case the parties thereto,
the terms prescribed, and the moneys received
if any, or account thereof. Such report shall·
contain the names and show the compensation
of the persons employed by the Commission.
(e) Issue of licenses for construction, etc., of dams.
conduits, reservoirs, ete.
To issue licenses to citizens of the United
States, or to any association of such citizens, or
to any corporation organized under the laws of
the United States or any State thereof. or to
any State or municipality for the purpose of
constructing, operating, and maintaining dams,
water conduits, reservoirs, power houses. trans·
mission lines, or other project works necessarY
or convenient for the development and im-
provement of navigation and for the develop~
ment, transmission, and utilization of power
across, along, from, or in any of the streams or
other bodies of water over which Congress has
jurisdiction under its authority to regulate
commerce with foreign nations and among the
· several States. or upon any part of the public
lands and reservations of the United States On·
eluding the Territories), or for the purpose of
utilizing the surplu~ water or water power from
any Government dam, except as herein· pro-
vided: Provided, That licenses shall be i~ued
within any reservation only after a finding by
the commission that the licF::nse will not inter-
fere or be inconsistent with the purpose for
which such reservation was created or acquired,
and shall be subject to and contain such condi-
tions as the Secretary of the department under
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Page 663 TITLE 16-GONSERVATION §797a
whuse supervision such reservation falls sha.ll
deem necessary for the adequate protection and
utilization of such reservations: Provided .tu2··
th.er, That no license affecting the navigable cal"
pacity of any navigable waters of the United
Stat.es shall be issued until the plans of the
dam or other structures. affecting the naviga··
tion have been approved by the Chief of Engi-
neers and the Secretary of the Army. When-
ever the contemplated improvement is, in the
judgment of the: commts.c;ion, desirable and jus-
tified in the pubUc interest for tpe purpose of
Improving or developing a waterway or water·
ways for the use or benefit of interstate or for-
eiin commerce, a finding to that effect shall be
made ty the commission and shall become a
part of the records of the commission: Promdecl
further, That in case the commission shall find
that any Government dam may be advanta-
geously used by the !Jnited States for public
purposes in addition to navigation, no license
therefor shall be issued until two years after it
shall have reported to Congress the facts and
conditions ·relating thereto, except that this
provision shall not apply to any Government
dam constructed prior to June 10, 1920: And
provided further, That upon the filing of any
application for a license which has not been
preceded by a preliminary permit under subsecw
tion (f) of this section, notice shall be given and
published as required by the proviso of said
subsection.
(f) Preliminary permits; notice of application
To issue preliminary pennits for the purpose
of enabling applicants for a license hereunder
to secure the data and to perform the acts re-
quired by section 802 of this title: Provided,
however, That upon the filing of any applica-
tion for a preliminary permit by an:v person, as-
sociation, or corporation the commission,
before granting such application, shall at once
11ve notice of such application in writing to any
state or municipality likely to be interested in
or affected by such application; and shall also
publish notice of such application once each
week for four weeks in a daily or weekly news-
paper published in the county or counties in
' which the project or any part hereof or the
lands affected thereby are situated.
(J) lpvestigation of occupancy for developing power;
• orders
Upon its own motio1-~o order an investigation
f r of anY occupancy of, or evidenced intention to
.occupy, for the purpose of developing electric
· · power, public lnnds, reservations, or streams or
other bodies of water over which Congress has
·· jurisdiction under its authority to regulate
commerce with foreign nations and among the
several States by any person, corporation,
state, or municipality and to issue such order
: AS it maY find appropriate, expedient, and in
Ule public interest to conserve and utilize the
navigation and water-power resources of the
.. redon.
~ (June 10, 1920, ch. 285, § 4, 41 Stat. 1065; June
23. 1930, ch. 572, § 2, 46 Stat. 798; Aug. 26, 1935,
· C'h. 687, title II, § 2f.'2, 49 Stat. 839.)
AM:!:NDMENTS
: :li35-SUbsec. (a.). Act Aug. 26, 1935 eliminated last
;~ph of subsec. <a>. which related to statements
of cost of construction. etc., and free access to pro-
jects, maps, etc., .and is now covered by subse.c. <b>.
Subsec. <b>. Act AuK. 26. 1935 added su~ <b>.
Former subsec. <b> relettered <c>.
Subsec. <c>. Act AUK. 26, 1935 relettered former
subsec. (b) a.s <c>. F.ormer subsec. <c> relettered ~d>.
Subsec. (d). Act Aug. 26, 1935 relettered former
subsec. <c> as <d> and substituted "3d day of Jal\uary"
for "f!tst MondaY in December" in second sentence.
Former subsec. (d) relettered <e>.
Suh<Jec. <e>. Act Aug. 28, 1935 relettered form.er
subsec. <d> and <e> and substituted "streams or or.her
bodies of water over which Conll'P~ has jurtsdictton
under Its authority to regulate commerce with forei~
nations and among the several States'" !or "navigable
waters of the Uriited States" and "subsection <f>" far
"subsection <e>''. Former subsec. <e> relettered <f>.
Subaec. (!). Act Aus:. 28, 1935 relettered former
subsec. <e) a.s <!> and substituted "once each week for
four weeks" for "for eiKht weeb". Former section (f),
which related to the power of the Commission to pre-
scribe regulations for the establishment o! a. system o!
accounts and the mainten~~~ thereof. was eliminated
by a.ct Aug. 26, 1935.
Subsec. <K>· Act AUi~ 26. 1935 added subsec. <~>.
Former subsec. (g), whf ch related to the power of the
Ctlmmission to hold ht vtngs and take testimony by
deposition. was elimina~.ed by act Aug. 26, 1935.
Subsec. <h>. Act Aug. 26, 1935 ellmina.ted former
sutiSec. <h>. which related to the power of the Commis-
sion to perform any and all acts necessary and proper
for the purpose of carrying out the provisions of this
chapter.
19~\0...:Subsec. (d). Act June 23, 1930, added sentence
respecting contents of report.
CH.ufGJ: OF N.uo:
The Department of War waa designated the Depart-
ment of the Army and the title of the Secretary of
Wa.r W&'l changed to Sec..'t'etary of the Anny by section
205(a) of a.ct July 26. 1947, ch. 343. Mtle U, 61 Stat.
501. Section 205<a> of act July 26. 1947, was repealed
by section 53 of act Aug. 10, 1956, ch. 1041, 70A Stat.
641. Section 1 of act Aug. 10, 1956, en&.~o:ted "Title 10,
Anned Forces" which in sections 3011 to 3013 contin·
ued the military Department of the A.rn1y under ttle
administrative supervision of a Secretary of the Army.
TRANSFER OF FtmCl'IONS
All executive and administrative functions of the
Federal Power Commission were, with certain reserva-
tions, transferred to the Chllirman of such Commis-
sion, with authority vested in him to author!ze their
perfonnance by any officer, employee, or administra-
tive unit under his Jurisdiction, by Reorg. Plan No. 9
of 1950, §§ 1. 2, eff. May 24, 1950, 15 F.R. 3175, 6·4 Stat.
1265, set out as a note under section 792 of this. title.
EMERGENC'Y PREPAREDNESS FuNcriONS
For assignment of certain emergency preparech'less
functions to the Federal Power Commission, see Prl:.rts
1, 19, and 30 of Ex. Ord. No. 11490. Oct. 28, 1969, 34
F.R. 17567, set out as r,:, note under section 2292 1'lf
Title 50, Appendix, Wtlr and National Defense.
FEDERAL RULES or CIVIL PROCEDURE
Subpoena. see rule 45. Title 28, Appendix, Judiciary
and Judicial Procedure.
SECTION REFERRED TO IN OTHER SECJ:IONS
This section Is referred to in sectton.<J 796, 828b of
this title.
§ 797a. Congressional authorization for permits, liu
censes, lenses, or authorizations for dams, con-
duits, reservoirs, etc., within national parks or
monuments
On and after March 3, 1921, no permit, li·
cense, lease, or authorization for dams, con-
§798 TITLE 16-CONSERVATION
duits, reservoirs, power houses, transmission
lines, or othe.r works for storage or carriage of
w~1ter, or for the development, transmission, or
utilization of power within the limits as consti-
tut,~d. March 3, 1921, of any national par.k or
national m~nument shall be granted or made
with,out specific at.'\thotity of Congres,s.
<Mar. 3, 1921, ch. 129. 41 Stat. 1353.)
COriU'IC.lTIO.N
Provis~ona repealln& so much of this chapter "as au-
thorizea llceminK such UR~ of existfnl' nattonll parks
and national monument., by the Federal Power Com-
m.l.lsion" bave been omitted !rom the Code.
Section was not enacted .BS part of the Federal
Power Act \Vhich comprises thls chapter.
Section U2 of act Au&. 26, 1935, ch. 687, title II, 49
Stat. 847, p~vlded that nothiug 1n this chapter, as
amended shtluld be conatrued to repeal or amend the
provisions of the act approved M.ar. 3, 1921 (41 StAt.
1353) [16 U.S .. C. 797aJ or the pro\•isions o! any other
Act relatin&' \'.o national parks a.1.\d national monu-
ments.
§ 798. Purpose and 8$!0pe of preJiminary pen.~its;
transfer and cancellation
Each preliminary permit issued under this
subchapter shall be for the sole purpose of
maintaining priority of application for a license
under the terms of this cha-pter fc.1r such period
Ol' periods, not exceeding a total oJ three years,
as in the discretion of the Com.m.ll;simll may roe
necessary for making examinations and S\1.1:'-
veys, for preparing maps, plans, specifications,
a:nd estimates, and for making finandal ar-
rangement~. Each such permit shall set forth
the conditions m1der which priority sh~'ill be
maintained. Such 9ermits shall not be transfer-
able, and may be (;anceled by order of the Com-
mission upon fatiure of permittees to comply
with the conditions thereof or for other g,ood
cause shown after notice and opportunity for
hearing.
(June 10, 1920, ch. 285, § 5. 41 Stat. 1067; Aut-r.
26, 1935, ch. 687, title II,§ 203, 49 Stat. 841.)
Alla::NDME:NTS
1935-Act Aug. 26, 1935, eliminated "and a license
Issued" which appeared at the end of the second sen-
tence and added "or !or other good cause shown a!ter
notice and opportunity for hearing" onto the last sen-
tence.
'•
§ 799. License; duration, conditions, revocation, alter-
ation, or surrender
Licenses under this subchapter shall be issued
for a period not exce2ding fifty years. Each
such license shall be condUioned upon accep-
tance by the licensee of all of the terms and
conditions of thi$ chapter and such further
conditions, if any, as the Commission shall pre-
scribe in conformity with this chaptor, which
said terms and conditions and the acceptance
thereof shall be expressed in said license. Li-
censes may be revoked only for the reasons and
in the manner prescribed under the provisions
of this chapter, and may be altered or surren-
dered only upon mutual agreement between the
licensee and the Commission after thirty days'
public notice. Copies of all licenses .issued under
the provisions of this subchapter and calling
for the payment of annual charges shs.ll be de-
posited with the General Accou..-"l.ting Olltl~;~~Jl
compliance with section 2Q of title 41.
<June 10, 1920,. ch. 285, § 6, 41 Stat. 106'1;
26, 1935, ch. 687, title II, § 204, 49 Stat.
AJID'DIOR"tS
1935-Act Aur. 28, 1935, sub8tituted "thirt1
!or "ninety daya" in the third sentence snd added
last sentence to the section.
§ 800. Iuuance of preliminary pemuta or JiceDMI
(s) Preference
In issuing preliminary permits he1reunater
licenses 'Where no preliminary permit has
issued and in issuing licenses to new li~!DSC!-.;~
under section 808 o.f this title the ColllllJlliSSl~~i!~
shall give preference to applications
by States and municipalities, provided
plans for the same are deemed by the CoJllll111""~
sion equally well adapted, or shall within a ~:
sonable time to be fixed by the Commission 1Je.
made equally well adapted. to conserve and utf., .
lize in the public interest the water resources of·
the region; and as between· other applicants..;.';
the Commission may give preference to the ap--
plicant the plans of which it finds and deter-
mines are best adapted to develop, conserve,
and utilize in the public interest the ·water I'!;
sources of the region. if it be satisfied as to the ·
ability of the applicant to carry or:t such plan&•
(b) Development of water resources bJ' United State.l;
reports
Wht:. ' .. ~ver, ill the judgment of the Coznmis.
sion, the developlnent of any water resources -
for public purposes should be undertaken by
the United States itself, the Commission shall
not approve any application for any project af·
fect!ng such development, but shall cause to be
made such examinations, surveys, reports.
plans, and estimates of the cost of the proposed
development as it may find necessary, and shall
submit its findings to Congress with such rec·
ommend~.tions as it may find appropriate con·
cerning such development.
(c) Assumption of project by United States after expi·
ration or license
Whenever, after notice and opportunity for
hearing; the Commission determines that the
United States should exercise its right upon or
after the expiration of any license to take over
~UlY project or projects for public purposes, the
Commission shall not issue a new license to the
original licensee or to a new licensee but shall
submit its recommendation to Congress togeth·
er with such information as it may consider ap· .
prtlpriate.
(June 10, 1920, ch. 285, § 7, 41 Stat. 1067; Aug.
26, 1935, ch. 687, title II. § 205, 49 Stat. 842:
Aug, 3, 1968, Pub. L. 90-451, § 1, 82 Stat. 616.)
CODIFICATION
Addltional provisions in the section as enacted by
act Ju.ne 10, 1920, directing the co~.unlssion to investi·
ga.te the cost and economic value C;! the power plant
outlined in project numbered 3, House Document
number·ed 1400, Sixty-second Congress, third session.
and als-o in connection with such proJect to submit
plans and estimates o! cost necessary to secure an In·
creased water supply !or the District o! Columbia,
have been omitted as temporary and executed.
l;»&~e &65 TITLE 16-CONSERVATION § 803
AlolmiiDTS
1988-Subsec. (c). Pub. L. 90-451 added subsec. <c>.
1935-Act Aur. 26, 1935, eliminated "navigation and"
preceding ••water resources" wherever appearing, and
lettered the pa.raan.phs <a> and. <b).
TRAl'i'sn:a 01" FUNCTIONS
All executive and adminisJ.;rative functions of the
Federal Power Commission were, with certain ~erva
tions. transferred to the Ch.a!rman of Stich CoiiJ.!Ilis.
sion, with authority vested 'In ~l.m to au~.horize their
performance by any officer,. employee, o1· administra-
tive unit under his Jurisdict.ion. by R.eorr. Plll.il :tlo. 9
of 19'!10, §§ 1, 2, efi. May 24, 1950, 15 P'.R. 3175. 84 Stat.
1285. set out as a note under section 792 of this title.
SK,':'1'10N REPEIUliD 'f() IX OrBal SJX:riOl'IS
This section is referred ~) in section 807 of this title.
§ SOl. Transfer of license; tlbliptions of transferee
No voluntary transfer of any license, or of the
rights thereunder granted, shall be made with-
out the written approval of the commission;
and any successor or assign of the rights of
such licensee, whether by voluntary transfer,
judicial sale, foreclosure sale, or otherwise,
shall be subject to all the conditions of the li-
cense under which such rights are held by such
licensee and also subject to all the provisions
and conditions of this chapter to the same
extent as tho1ugh such successor or assign were
the original licensee under this chapter: Pro·
videct. That a mortgage or trust deed or judicial
sales made \:hereunder or· under tax sales shall
not be deemed voluntary transfers within the
mesming of this section. ·
<June 10, 1920, ch. 285, § 8, 41 Stat. 1068.)
TR.ufsn:R. OP F'DKCTIOlfS
All executive and administrative functions of the
, Federal Power Commi2ssion were, with certain reaerva-
Uons. transferred to the Chairman of such Commis-
Jlon. with authority vested in him to authorize their
performance by any orncer, employee, or admlnistra·
Uve unit under his jurtsdlctlon, by Reorg. Pl&n No. 9
of 1950, §§ 1, 2, eff. Ma.y 24, 1950, 15 F.R. 3175, 64 Stat.
1265, set out as a note under section 792 of thJs title.
§ aoz. Information to accompany application for li-
cense
Each applicant for a license under this chap-
ter shall submit to the commission-
(&) such maps, plans, specifications, and esti-
mates of cost as may be required for a full un-
derstanding of the proposed project. Such
1111ps, plans, and specifications when approved
bY the commission shall be made a part of the
ucense: and. thereafter no change shall be made
• In saJd maps, plans, or specifications until such
. cn.a,nges shall have been approved and made a
· part of such license by the commission.
. . (b) satisfactory evidence that the applicant
b&S complied with the requirements of the laws
ol the State or States within which the pro-
posed project . is to be located with respect to
. bed and bankS and to the appropriation, diver-eon. s.nd use of water for power purposes and
wlU1 respect to the right to engage in the busi-
-of developing, transmitting and di.'itribut-'* power, and 1n any other business necessary
• effect the purposes of a license under this
cbJPter.
<c> Such addition@.! information as the corn-
mission may require.
<June 10, 1920, ch. 285, § 9, 41 Stat. 1068.)
SEC'l'!O.lf REn!Rlll!:D TO or 0nn:a SECTIOlfS
This section is refetTed to in section 797 of this title.
§ 803. Condit~9ns of license generally
All licenses issued under this subchapter shall
be on the following conditions:
(a) Modification of plana, ete., to seeure adaptability
of pioject ·
That the project adopted, includir.g the maps,
plans, and specifications, shall be such as in the
judgment of the Commission will be best adapt-
ed to a comprehensive plan for improving or de-
veloping a waterway or waterways for the use
or benefit of interstate or foreign commerce,
for the improvement and utilization of water-
power development, and for other beneficial
public uses, including recreational purposes;
and if neces:,;ary in order to secure such plan
the Commission shall ha,ve authority to require
the modification of any project and of the
plans and specifications of the project works
before approval.
(b) Alterations in project works
That except when emergency shall require
for the protection of navigation, life. health, or
property, no substantial alteration or addition
not in confonnity with the approved plans shall
be made to any dam or other project works con~
structed hereunder of an installed capacity in
excess of two thousand horsepower without the
prior approval of the Commission: and 9.ny
emergency alteration or addition so made shall
thereafter be subject to such modification and
change as the Commission may direct.
(e) Maintenance and repair of projeci works; liability
of lic~nsee for damages
That the licensee shall maintain the project
works in a condition of repair adequate for the
purposes of navigation and for the efficient op-
eration of said works in the development and
transmission of power, shall make all necessary
renewals and replacements, shall establish and
maintain adequate depreciation reserves for
such purposes, shall so maintain, and operate
said works as not to impair navigation, and
shall conform to such rules and r~gulations as
the Commission may from time to time pre-
scribe for the protection of life, health, and
property. Each licensee hereunder shall be
liable for all damages occasioned to the proper-
ty of others by the construction, maintenance,
or operation of the project works or of the
works appurtenant or accessory thereto, con-
structed under the license-and in no event shall
the United States be liable therefor.
(d) Amortization reserves
That after the first twenty years of oper*
ation, out of surplus earned thereafter, if any,
accumulated in excess of a specified reasonable
rate of return upon the net investment o! a li-
censee in any project or projects under license,
the licensee shall establish and maintain amor-
tization reserves, which reserves shall, in the
discreti.on of the Commission, be held until the
termination of the li~ense or be applied from
time to time in reduction of the net investment.
·.
J 1
I It~ ! ' ~ ! : :1
! I ! . 1 .,,
I ·, 3
•i
Pqe 669 TITLE 16-CONSERVATION § 810
or developing a. waterway or waterways for TI::RMINATION or WAR .um ElaRGENCIES
bC>neficial public uses all or part of any licensed Joint Res. July 25, 1947. ch. 327, § 3, 61 Stat. 451,
project should no longer be used or adapted for provided that in the Interpretation of this section. the
use for power purposes, may license all or part date July 25, 1947, shall be deemed to be the date of
of the project works for nonpower use. A li-termination of any state of war theretofore declared
cense for nonpower use shall be issued to a new by Congr~ and of the national emergencies pro-
licensee only on the condition that the new li-claimed by the President on September s. 1939, and
censee shs.ll, before taking possession of the fa-May 27 • 194 1.
cllities encompassed thereunder, pay such § 810. Disposition of charges arising from licenses
amount and assume such contracts as the
United States is required to do, in the manner (a> All proceeds from any Indian reservation
specified in section 807 of this title. Any license shall be placed to the credit of the Indians of
for nonpower use shall be a. temporary license. . such reservation. All other charges arising from
Whenever, in the judgment of the commis$ion, licenses hereunder. except charges fixed by the
a State, municipality, interstate agency, or an-Commission for the purpose of reimbursing the
other Federal agency is authorized and willing United States for the costs ot administration of
to assume regulatory supervision of the lands this subchapter, shall be paid into the Treasury
and facilities included under the nonpower li-of the United States. subject to the following
~ense and does so, the Commission sha.U there-distribution: 12¥.a per centum thereof is hereby
upon terminate the license. Consistent with the appropriated to be paid into the Treasury of
provisions of subchapter IV of this chapter, the United States and credited to "Miscella-
every licensee for nonpower use saall keep such neous receipts": 50 per centum of the charges
accounts and file such annual ar1d other per.iod-arising from licenses hereunder for the occu-
ic or special reports concerning the removal. al-pancy and use of public lands and national for-
teration, nonpower use, or other disposition of ests shall be paid into, reserved, end appropriat-
anY project works or parts thereof covered by ed a.s a part of the reclamation fund created by
the nonpower use license as the Commission the Act of Congref.s known as the Reclamation
maY by rules and regulations or order prescribe Act, approved June 17, 1902: and 37¥.a per
as necessary or appropriate. centum of the cha·:ges arising from licenses
hereunder· for the O( · .mpancy and use of nation-
cjune 10, 1920, ch. 28S, § 15, 41 St11,t. 1072; Aug. al forests and publl:.: lands from development
3,1968, Pub. L. 9q-451, § 3, 82 Stat. 61'/.) within the bounds.;· ies of any State shall be
AJalfDMEMT$ paid by the Secretary of the Treasury to such
State: and 50 per centum of the charges arising
1968-Pub. L. 90-451 designP,.ted existin~ provisions from all other licenses hereunder is reserved
as subsec. <a> and added subsec. <b>. and appropriated ·as a special fund in the Trea-
SECTION REI'!:RRED To m OniEa SECrioNs sury to be expended under the direction of the
Secretary of the .Arrr,.l in the maintenance and
This section is referred to in sections 800, 803, 807 of operation of dams and other navigation struc-
this title. tures owned by the United States or in the con-
§ 809. Temporary use by Government of project struction, maintenance, or operation of head-
works for national safety; compensation foi" use water or other improvements of na\igable
waters of the United States. The proceeds of
When in the opinion of the President of the ch~rges made by the Commission for the pur-
United States, evidenced by a written order ad-pose of reimbursing the United States for th~
dressed to the holder of any license under this costs of the administration of this subchapter
chapter, the safety of the United States de-shall be paid into the Treasury of the United
mands it, the United States shall have the right states and credited to miscella.neous receipts.
to enter upon and take possession of any pro-(b) In case of delinquency on the part of any
ject or part thereof, constructed, maintained, or licensee in the payment of annual charges a
operated under said license. for the purpose of penalty of 5 per centum of the total amount so
manufacturing nitrates, explosives, or muni-delinquent may be added to the total charges
• Uons of war, or·for any other purpose involving which shall apply for the first month or part of
· the safety of tl).e United States, to retain pas-month so delinquent with an additional penalty
... session. management, and control thereof for of 3 per centum for each subsequent month
such length of time as may appear to the Presi-until the total of the charges itnd penalties are
~· dent to be necessary to accomplish said pur-paid or until th~ license is canceled and the
",poses, and then to restore possession and con-charges and penalties S2};isfied in accordance
trol to the party or parties entitled thereto; and with law.
In the event that the United States shall exer-· (J 10 1920 h 285 § 17 41 St t 1072 A h i ht ·t h 11 t th t une • • c · • , a . : ug. ctse sue r g · 1 5 a P~Y 0 e par Y or par-26, 1935, ch. 687, title II,§ 2 .. 08, 49 Stat. 845.) ues entitled thereto just and fair com~ensation ·
for the use of said property as may be fixed by R:tn:RENCES IN TEXT
I Ule commission upon the basis of a reasonable The Act of Congress known as the Reclamation Act,
profit in time of peact~. and the cost of restoring approved June 17, 1902, referred to in subsec. <a>, is
~ s:afd property to as good condition as existed at act June 17, 1902, ch. 1093, 32 Stat. 388, For classifica-
. the time of the taking over thereof, less the tlon of this Act to the Code, see Short Title note set
i rtJSOnable value of any improvements that out under section 391 of Title 43, Public Lands, and
. maY be made thereto by the United States and Tables volume.
· Yh!Ch are valuable and serviceable to the li-
censee.
·: i.June 10, 1920, ch. 285, § 16, 41 Stat. 1072.)
AMENDM!."NTS
1935-Act Aug. 26, 1935, designated existing provi-
sions as subsec. (a) and added ''except charges fixed by
. ..
,.
ft
•·' J Page 671 TITLE 16-CONSERVATION § 815
1·~.~
d ~ . _:
I I i,
~
'r~ i _,}
l
l 1: ~ • :l l , •! . .
-I ,
-~
:
each:specific mat~r of regulation and control
prescribed in this sectiotl as soon as the State
shall have provided a commission or other au-
thority for the regulation and control of that
specific matter.
(June 10, 1920, ch. 285, § 19, 41 Stat. 1073.)
§ 813. Power entering into interstate commerce; regu-
lation of rates, charges, etc.
When said power or any part thereof shall
enter into interstate or foreign commerce the
rates charged and the service rendered bY' any
such licensee, or by any subsidi&.n' corporat.f.on,
the stock of which is owned or controlled di-
rectly or indirectly 'by such licensee, or by any
person, corporation, or association purchasing
power from such licensee for sale and distribu-
tion or use in public service shall be reasonable,
nondis~riminatory, and just to the customer
and all unreasonable discriminatory and unjust
rate:. ~r services are prohibited and declared to
h:. unlawful; and whenever any of the States di-
,·ectlY concerned has not provided a commission
o:-'1-ther authority to enforce the requirements
at this section within such State or io regulate
and control the amount and character of secu-
rities to be issued by any of such parties, or
such States are unable to agree through their
properly constituted authorities on the services
to be rendered, or on the rates or charges of
payment therefor, or on the amount or charac-
ter of securities to be issued by any of said par-
ties, jurisdiction is conferred upon the commis-
sion, upon complaint of any person, aggrieved,
upon the request of any State concerned, or
·· upon its own initiative to enforce the proviSions I ~ ... :... of this section, to regulate and control so much
if of the services renderedl and of the rates and .
I
i
charges of payment therefor as constitute in-
! I ~ ~ l
terstate or foreign commerce and to regulate
the issuance of securities by the parties includ-
ed within this section, and securities issued by
·,. the licensee subject to such regulations shall be
~ allowed only for the bona fide purpose of fi-
1' nancing and conducting the business of such Ii-
J
I
'I
'I ~
I ' ~. -censee. ~ ~. The administration of the provisions of this
J "' section, so far as applicable, shall be according
:1. to the procedure and practice in fixing and reg-
1
~. }: · ulating the rates, charges, and practices of rail-
. ~-· road companies as provided in the Act to regu-
'! ,, late commerce approved February 4, 1887. as
~ .. amended, and the parties subject to sticn regti-
j
I
I
~ l&tion shall have the same rights of hearing, de-
~ ~,.: tense, and review as said companies in such
lt,.. cases. .. :~ w anY valuation of the property of any li-
i1
tj
~f c:en,see hereunder for purposes of rate making, ~ ... no value shall be c~ai~ned by the licensee oral-
~,;~~-Iowed by the commission for any project or pro-
~%jects under license in excess of the value or
1;.: wues prescribed in section 807 of thils title for
~ ··•f;Ule purposes of purchase by the Unitf•,.. States,
?f' ~~but there shall be included the cost t .. such li-r;fc~iensee of the construction of the lock or locks =~;::. or ot~er aids of navigation and all other capit,.Q.I
~ .. ~·~expenditures required by the United States,
m,~~-md no value sh. all be claimed ?r ~lowed for the
~~:.~t~hts granted by the commis.sion or by this
·~i,,•.~pter. ~f~1~e 10, 1920, ch. 285, § 20, 41 Stat. 1073.)
~.~~·-·· .,.,~!'J·· ~~l·..:~~:f' G~··
REF!!ltENCES iN TEXT
The Act to regulate commerce approved February 4,
1887, as amended, referred to 1n text. is the Interstate
Commerce Act <act Feb. 4, 1887, ch. 104. 24 Stat. 379,
as amended), which 1s classified generally to chapters
1 <§ 1 et seq.), 8 <§ 301 et seq.), 12 (§ 901 et seq.), 13
<§ 1001 et seq.), and 19 <§ 1231 et seq.) of Title 49,
Transportation. For ·complete classification of this Act
to the Code, see note captioned Interstate Commerce
Act set out under section 27 of Title 49 a..11d Tables
volume.
§ 814. Exercise· by licensee of ,Je"lVer of eminent
domain
When any licensee cannot acquire by contract
or pledges an unimproved dam site or the rig!lt
to use or damage the lands or property of
others necessary to the construction, m~n.te
nance, or operation of any dam. ret!ervoir, diver-
sion structure, or the works appurtenant or ac-
cessory thereto. in conjunction with any im-
provement which in the judgment of the com-
mission is desirable and justified in the public
interest for the purpose of improving or devel-
oping a waterway or waterways for the use or
benefit of interstate or foreign commerce, it
·may acquire the same by the exercise of the
right of eminent domain in the district court of
the United States for the district in which such
land or other property may be located, or in the
State courts. The practice and procedure in any
action or proceeding for that purpose in the
district court of the United States shall y.on.~
form as nearly as may be with the practice and
procedure in similar action or proceeding in the
courts of the State where tne property is situat-
ed: Provided, That United States district courts
shall only have jurisdiction of c~es when the
amount claimed by the owner of the property
to be condemned exceeds $3,000. · · --
<June 10, 1920, ch. 285, § 21. 41 Stat. 1074.)
CRoss REFERENCES
Jurisdiction of Federal courts, amount to exceed
$10,000, see sections 1331 and 1332 of Title 28, Judicia·
ry and Judicial Procedure.
FEDERAL RULES OF CrviL PRocEDuRE
Procedure in condemnation proceedings, see rule
71A. Title 28, Appendix. Judiciary and Judicial Proce·
dure.
§ 815. Contract to furnish power extending beyond
period of license; obligations of new licensee
Whenever the public interest requires or jus-
tifies the execution by the licensee of contracts
for the sale and delivery of power for periods
extending beyond. the date of termination of
the license, such contracts may be entered into
upon the Joint approval of the eommission and
of the public-service commission or other simi-
lar authority in the State in which the sale or
delivery of power is made, or if sold or delivered
in a State which has no such public·service
commission, then upon the approval of the
commission, and thereafter, in the event of fail-
ure to issue a new license to the original licens·
ee at the termination of the license, the United
States or the new licensee~ as the case may be,
shall assume and fulfill all such contracts.
(June 10. 1920, ch. 285, § 22, 41 Stat. 1074.)
·:t; • L } zf~:··---=--~~--------~~~~~~==~ . "t: • .:._ --·--.;,;;.;;,.;.;;-..;.;·-.;;.;.:::.;..;;.;;;:,:_-:.;__..:.....;~ _ ___;___;,:;=
! '(
~~
. § 816 TITLE 16-CONSERVATION
TRANSFER 0" !"uNCTIONS
All executive and admin!strative !unctions of the
Federal Power Commiss1on were, with certain reserva-
tions, transferred to the ChiJrman o! such Commis-
sion, with authority vested in him to authorize their
performance by any officer, employee, or administra·
tive unit under his jurisdiction, by Reoz·g. Plan No. 9
of 1950, §§ 1, 2, etl. May 24, 1950, 15 F.R. 3175, 64 Stat.
1285, .set out 1n note under section 792 of this title.
§ 816. Preservation of ri1hta Yested prior to June 10,
1920
The provisions of this subchapter shell not be
construed as affecting any permit or valid exist-
ing right-of-way granted prior to June 10. 1920,
or as confirming or otherwise affecting any
claim, or as affectin~ any authority heretofore ·
given pursuant to law, but any person, associ-
ation, corporation, State, or municipality hold-
ing or possessing such permit, right-of-way or
authority may a,pply !or a license under this
chapter, and upon such application the Com-
mission may issue to any such applicant a li-
cense in accordance with the provisions Qf this
subchapter and in such case the provisions of
this chapter shall apply to such applicant as a
licensee under thi.c; chapter: Provided, That
when application is made for a license under
this section for a project or projects ~ lready
constructed the fair value of said project or
projects determined as provided in this section,
shall for the purposes o! this subchapter and of
said license be deemed to be the amount to be
allowed as the net investment of the applicant
in such project or projects as of the date of
such license, or as of the date of such detenni-
nation, if license has not been issued. Such fair
value shall be determined by the Commission
after notice and opportunity for hearing.
(June 10, 1920, ch. 285, § 23(a), 41 Stat. 1075;
Aug. 26, 1935, ch. 687, title II. § 210, 49 Stat.
846.)
CODIFICATION
. Section consists of subsec. (a.) of section 23 of act
June 10, 1920, as so designated by act Aug. 26, 1935.
Subsec. (b) of section 23 of act JU1le 10, 1920, is set out
as section 817 of this title.
AME!mii!:N'l'S
1935-Act Aug. 26, 1935, amended section by substi·
tuting the word "part" for "chapter" wherever it ap-
peared,· by substituting the word "heretofore" for
"then" and by substituting the last sentence for "Such
fair value may, in the discretion of the commission, be
determined by mutual agreement between the com-
mission ·and the ·applicant or, in case they cannot
agree, Jurisdiction is hereby conferred upon the dis-
trict court of the United States in the district within
which such project or proJects may be located, upon
the application of either party, to hear and determine
the amount of such fair value."
§ 817. Projects not affecting navigable waters; necessi-
ty for Federal license
It shall be unlawful for any person, State, or
municipality, for the purpose of developing
electric power, to construct, operat~. or main-
tain any dam, water conduit, reservoir, power
house, or other works incidental thereto across,
alonr~ or in any of the navigable waters of the
United States, or upon any part of the public
lands or reservations of the United States (in-
cluding the Territories), or utilize the surplus
water or water power from any
dam, except under and in accordance
terms of a permit or valid existing ria-ht-OI·,PII!l"~·.~
granted prior to June 10, 1920, or a Uce,._
granted pursuant to this chapter .. AnY
association, corporation, State, or mulD1(:1PIW""
intending to construct a dam or other
works, across, along, over, or in any ~<tr'ell:D'
part thereof, other than those defined ill
chapter as navigable waters, and over w-h~ca·~
Congress has jurisdiction under its authoritY
regulate commerce with foreign nations
among the several States shall before such
struction file declaration of such intention wt~:
the Commission, whereupon the Cilmmis&l~
shall cause immediate investigation of such P~ ·
posed construction to be made, and if upon ~·
vestigation it shall find that the interests of,~ •
terstate or foreign commerce would be affec ~·
by such proposed construction, such persoi,, &¥
sociation, corporation, State, or municipalltJ ·
shall not construct, maintain, or operate such
dam or other project work.s until it shall have
applied for and shall have received a license
under the provisions of this chapter. If the
Commission shall not so find, an.d if no pubUC
lands or reservations are affected, permission Is
granted to construct such dam or _..,ther projeet
work.s in such stream upon .compliance with. :
State laws.
(June 10, 1920, ch. 285, § 23<b>. 41 Stat,. 1075: .
Aug. 26, 1935, ch. 687, title II, § 210t 49 Stat.
846.)
CODIFICATION
Section consists of subsec. <b> of section 23 o! act
June 10, 1920, as so designated by act Aug. 26, 1935.
Subsec. <a> of section 23 of act JU1le 10, 1920, is set out
as section 816 of this title.
AliENDl!IENTS
1935-Act Aug. 26, 1935, added f!rzt sentence U> sec·
tion, and substituted "with foreign nations" for "be-
tween foreign nations", "shall before such construe·
tion" for ''may in their discretion" and "shall not con·
struct, maintain, or operate such dam or other project
works" for "shall not proce~d with such ·~=.~truction".
§ 818. Public lands included in pr:uj<:c(, ; ~8ervation of
lands from entry
Any lands of the United State.~ , 1c!uded in
any proposed projection under the provisions of
this subchapter shall from the date of filing of
application therefor be reserved from entry, lo·
cation. or other disposal under the laws of the
United States until otherwise directed by the
commission or by Congress. Notice that such
application has been made. together with the
date of filing thereof and a description of the
lands of the United States affected thereby,
shall be filed in the local land office for the dis·
trict in which such lands are located. Whenever
the commission shall determine that the value
of any lands of the United States so applied for,
or heretofore or hereafter reserved or classified
as power sites, will not be injured or destroyed
for the purposes of power development by loca-
tion. entry, or selection under the public-land
laws, the Secretary of the Interior, upon notice
of such determination, shall declare such lands
open to location, entry, or selection, for such
purpose or purposes and under such restric·
tions as the Commission may determine, sub·
Pace 673 TITLE 16-CONSERVATION §820
ject to and with a reservation of the right of
the United. States or its permittees or licensees
to enter upon, occupy, and use any part or all
of said lands necessary, in the judgment of the
Commission, for the purposes gf this sub-
chapter, which right shall !?e expressly reserved
1n every patent issued !or such lands; and no
claim or right to compensation shall accrue
from the occupation or use of any of said lands
-far said purposes. The United States or any li-
censee for any s.'lCh lands hereuuder may enter
thereupon for the purposes of this subchapter,
upon payment of any damages to crops, build-
iniS, or other improvements c•used thereby to
the owner thereof, or upon giving a good and
sufficient bond to the United States for the use
and benefit of l:he owner to sel!ure the payment
of such damages as may be determined and
fiXed in an action brought upon the bond in a
court of competent jurisdiction, said bond to be
1n the form prescribed by the Commission: Pro-
vided. That locations, entries, selections, or fil-
inP heretofore made for lands reserved as
water-power sites, or in connection with water-
power development, or electrical transmission .
maY' proceed to approval or patent tmder and
subject to the limitations and conditions in this
section contained: Provided. further, That
before any lands applied for, or heretofore or
hereafter reserved, or classified ~· power sites,
are declared open to location, entry, ?r selec-
tion by the Secretary of the Interior, notice of
Intention to make such declaration shall be
(iven to the Governor 6f the State within
which such lands ;u-e 1 ~ca..ted. and such State
shall ha.ve ninety day~ .;toni the date of such
notice within which to file. under a.rty statute
or regula.tian applicable thereto, an application
tor the reservation to the State. or any political
subdivision thereof, of any lands required as a
rltht-of-way for a public highway or as a source o! ma.terla.l.,c; !or the construction and mainte-
P.g,nce of such highways, and a copy of such ap-
pUct~tion shall be filed with the Federal Power
coznmission; and any location, entry, or selec-
Uon of such lands, or subsequent patent there-
of shall be subject to an~' rights granted the
state pursuant to such application.
cJune 10, 1920, ch. 285, § 24, 41 Stat. 1075; Aug.
•· 1935, ch. 687, title II,§ 211, 49 Stat. 846; May
21 , 1948, ch. 351, 62 Stat. 275.)
REP'EREl'fCES IN TExT
· 'l'be public-land la.ws, referred to in text, are classi-
Did 1enerallY to Title 43, Public Lands.
.AlaNDMENTS
.,: tta-Act Ma.y 28, 1948, a.dded second proviso to the
· ••11 JeDtence so tha.t Sta.tes ma.y apply for reservations ~portions of power sites released for entry, location,
Je).ectlon to the States for highway purposes.
· •113s-Act Aug. 26, 1935, added "!or such purpose or
· • and under such restrictions ad the commis-
• ~ determine", substituted "part" for "chapter"
tt~~ftVer appearing, and eliminated from the proviso . .,nor to June 10, 1920" following "made".
t SECl'ION REFERRED TO IN OTHER SECTIONS
!
n''fbll section is referred to in title 30 section 1014.
§ 819. Repealed. Aug. 26, 1935, ch. 687, title II, § 212,
49 Stat. 847
Section, act June 10, 1920, en. 285, § 25, 41 Stat. 1076,
related to offenses and punishment and is now covered
by section 825m et seq. of this title. .
§ 820. Proceedings for revoaltion of license or to pre-
vent violations of license
The Attorney General may, on request of the
commission or of the Secretary of the Anny, in-
stitute proceedings in equity in the district
court of the United States in the district in
which any project or part thereof is situated
for the purpose of revoking for violation of its
terms any permit or license issued hereunder.
or for the purl)ose of remedying or correcting
by injunction, mandamus, or other process any
act of commission or omission in violation of
the pr9visions of this chapter or of any lawful
regulation or order promulgated hereunder.
The district courts shall have jurisdiction over
all of the above-mentioned proceedings and
shall have power to issue and execute all neces-
sary process and 'to make and enforce all writs,
orders and decrees to compel compliance with
the lawful orders and regulations of the com-
mi.c;sion and of the Secretary of the Army, and
to compel the performance of any condition im-
posed under the provisions of this chapter. In
the event a decree revoking a license is entered,
the court is empowered to sell the whole or any
part of the project or projects under license, to
wind up the business of such licensee conducted
in connection with such project or projects. to
distribute the proceeds to the parties entitled
to the same. and to make and enforce such fur-
ther orders and decrees as equity and justice
may require. At such sble or sales the vendee
shall take the rights and privileges belonging to
the licensee and shall perform the duties of
such licensee and assume all outstanding obli-
gations and liabilities of the licensee which the
court may deem equitable in the premises; and
at such sale or sales the United States may
become a purchaser, but it st.all not be required
to . pay a greater amount than it would be re-
quired to pay under the provisions of section
807 of this title at the termination of the li-
cense.
(June 10, 1920, ch. 285, § 26, 41 Stat. 1076.)
REFERENCES IN 'I'r.x'r
Proceedings In equity, referred to in the text, were
abolished by the adoption of Rule 2 of the Federal
Rules of Civil Procedure, Title 28, Appendix, Judicial1'
and Judicial Procedure, which provided that "there
shall be one form of action to be known as 'civil
action'",
CHANGE 0!' NAME
The Department of War was designated the Depart·
ment of the Army and the title of the Secretary of
Ws:r was changed to Secretary of the Army by section
205(a) of act July 26, 1947, ch. 343, title II, 61 Stat .
501. Section 205(a> of act July 26, 1947, was repealed
by section 53 of act Aug. 10, 1956, ch. 1041, 70A Stat .
641. Section 1 of act Aug. 10, 1956, enacted ,.Title 10,
Armed Forces" which Ln sections 3011 to 3013 contin·
ued the military Department of the Army under the
administrative supervision of a Secretary of the ArmY.
O~~UlUC~ ···.. ! UU .:nu ' nan.c'
subject to the-pm\'lsJOils. lithtLat.ions:-
l:trar ges.· terms. and conditions of rhe
r,eclamaUon law, and all ap~!!cation to
make. selections. locations. or entries
of any other kind on such lands
should be rejected, except that where
settlement rights were acquired prior
to the withdra\\'al and h:We been dili-
gently prosecuted and the homestead
!aw. complied with. the settler will be
entttled to make and complete his
entr~~ ~ubjec~ to all the charges. terms.
cond1t10ns. limitations, and provisions
of the reclamatiorn law. <See Sarah E.
Allen! 44 L.D. 331.> No person will be
permatted to gain or exercise any right
what~ver under any settlement or oc-
cupallon begun after withdrawal of
the land from srttlemcnt and entry.
§ 2322.1-3 t:luims initiated prior to with-
druwuls: resen•ation fur dilche:o; ur
ennuis.
Withdrawals made under either of
these forms do not defeat or adn~rst:ly
affe.ct any \'alid ('ntr.r. locatwn. ot se-
l2ctton which segregated and withheld
the lands embraced therein from
other. forms of appropriation at the
d~te of such withdrawal: and all en-
tnes. selections, or locations of that
character should be permitted to pro-
ceed to patent or certification upon
due proof of compliance with the law
in the same manner and to ·le same
extent to v:hich they would have pro-
ce;eded hnd such withdrawal not been
made. All lands. however. taken up
under any of the land laws of the
United States subsequent to October
2, 1888, are subj<!ct to rights-of-way for
ditche.s or canals constructed by au-
thority of the United States Cact of
Aug. 30. 1890, 26 Stat. 391; 43 U.S.C.
945).
§ 2322.1-4 Effect of filing or farm-unit
plats.
\Vhere an authm ized officer bl• the
approval of farm-unit plats has deter-
mined or may rletermlne, that the
lands designated thereon are lrrtgable.
the filing of such plats in the Bureau
of Land Management and in the
proper offices is to be regarded as
equivalent to an order withdrawing
such lands under the second form, and
as an order changing to the second
... '"' ··~ ...... -··· : .................... '"",. .· ""'" · ·~·-·e .............. ;uu:lFfi'"H•· .... ..~-'7' ..... ,., .... _ .......... _-•-··. ·"~·:{(H~"Cit"l'l.-r·-r"· ....... , .... ...._..~'"···"~·.-. ........... ....., ....... ~._.._
t:ucn e"ltt:dl\'e 'cl:i-\.v any· :,~u.::h ti-U.cl:s~ ~~,c~.-. ·-""'"""'" A~"-"'"'... ~.~~··'=· ·~·knD\'""';_,~ Lhe LJ;·~;;at ~:~..;;· n 1•1.;;;;....,.;.;ry
This applies lO all areas shown on th~ '"'" .-commissionl sec lU Cf'l.f Chapter l. .f'or
farm-unit plats as subject to entry ·jp2~.1 ~>csignnliun uf Indian re:>erva· riKhls·of-Wa~· o\'er Indian lands: puwf~r pro·
under the provisions of the reclama. .~ .. twns an 1\lnl;ka. jects: see Jndhms 25 CFR 161.27.
lion law or as subject to the filing o! ,p:. water-right applications. and to all ·· (a) The inherent power conferred f · upon the Secretary of the Interior by
arm umts to which an authorized of-&ectlon 441. Revised Statutes <5 U.S.C.
§ ~344.0-3 Authority.
G'<a> Section 24 of the Federal Power
Act of June .10. 1020 <41 Stat. 1075; 16
U.S.C. 818>. as amended. The Act pro-
vides that any lands of the United
States included in an application for
ficer has announced that water is 485 >. to supervise the public l)usiness
ready to be deli\'ered. relating to the Indians includes the su-
~; ·>·i•l•> •> P · f I d · :, -·~----B) ment or tHl s uclJUtred.
If any lands embraced in any unap-
proved or uncertified selection are
needed in the co'1struction and main-
tenance of any irrigation works <other
than for rlght·''f -way for ditches or
canals rcser\'t~d under act of August
30. 1890, 26 Stat. 391: 43 U.S.C. 94f))
under the reclamation law. payment
therefor wtll be made upon agreement
of the mvner with the representative
of the Go\'crnment as to the value of
the land and the improvements there-
on. Wht:r(' the o;\·ncr of the land and
the rcpn.•sentatiY~;; of the Government
Jail to a~ree as to the amount to be
paid therefor. thE' same shall be ac-
quired by condemmi.tion proceedings
under judicial process, as provided by
section 7 of the Reclamation Act of
June 17. 1901 (32 Stat. 389; 43 U.S.C.
421>.
§ 2322.3 Effecti'r'e dutes of withdrawals
und restorations.
<al All withdrawals become effective
on the date upon which they are or-
dered and all orders for restorations
on the date they are received in the
proper office unless otherwise speci-
fied in the order. (George B. Pratt et
al., 38 L.D. 146.>
(b) Upon the cancellation of an
ent~ covering lands embraced within
a withdrawal under the Reclamation
Act such withdrawal becomes effective
as to such lands without further order.
<See Cornelius J. MacNamara. 33 L.D.
520.> Such lands under first-form with-
drawal cannot therefore, so long as
they remain so withdrawn. be entered
or otherwise appropriated, elthe1· by a
successful contestant or any other
person.
pervision over reservations in the
state of Alaska created in the interest
of the natives and the authority to
tease lands therein !or their benefit.
Opinion of the solicitor. May 18, 1923
· (49 L.D. 592>.
(b) The act of May 1. 1936 (49 Stat.
1250: 25 U.S.C. 496. 4'i3a> extends ccr·
tain pro\'isions pi the act of June 1 B.
1934 <48 Stat. 984: 25 u.s.c. 461-~79>.
known as the Wheeler-Howard Act. to
Alaska. and provides for the designa-
tion of Indian reservations in the
Slate. (c) The act of Ma!>· 31. 1938 l52 Stat.
593; 25 U.S.C .. 497>. authorizes the St'C·
retarv of the Interior m his discretion
to withdraw. subject to anr \'alid t•xist-
lng rights. and permanentlY reser\'e,
small tracts of not to exceed 640 acres
each of the public domain in Alaska,
for schools. hospitals. and such other
. purposes as may be necessary in ad·
ministering the affair~ of the Indians.
Eskimos, and Aleuts of Alaska.
tR.S. 2476, 34 Stat. !97: 43 U.S.C. 1201. 48
u.s.c. 351}
(35 FR 9556. June 13. i9101
PART ?.340-WITHDRAWAL fOR
OTHER AGENCIES
Sec.
Subpart 2344-Federal Power
Comminion
2344.0-3 Authority.
2344.1 Lands conside ed wlthdra·.;.-n or clas·
sHh~d for pow~r purposes.
2344.2 General determination undt'r sec-
tion 24.
234-t.J PctiLions for restoration.
AUTHORITY: R.S. 2478; 43 U.S.C. 1201.
SouRcE~ 35 FR 9556. June 13. 1910. unless
otherwise noted. ·
CROSS REFEkENC&S: For rh,hts·Of·WILY for
:>ower projecu and for power transmission
power development. under said Act,
shall from the date of filing of applica·
lion therefor be reserved from entry,
locaUon, or othe1· disposal under the
laws o( the Uni:~etl States. until other·
wise directed by the F~deral Power
Commission or by Congress. It also
provides that whenever the Commis·
sian shall determine lhat the value of
any lands withdrawn or classified for
power purposes will not be injured or
destroyed for such purposes by loca-
tion, entry or selection under the
public land laws, the Secretary of the
lntcrior shall declare such lands open
to location. entry or selection under
such restrictions as the Commission
rna)' determine. and subject to and
with a reservation of the right o! t.he
United States or its permittees or 11·
censees to enter upon. occupy and use
any or all of such lands for power pur-
poses. ·Before the lands are declared
open to location, entry or selection,
the Secretary of the Interior must give
notice or his intention to make such
declaration. to the Governor of the
State within which such lands are lo·
cated, and the· State shall have a pref-
erence ror a peri9d of 90 days from the
date ,of such notice to file under any
applicable law or regulation, an appli-
cation for the reservation to the State,
or any political subdivision thereof, of
any lands required as a right-of-way
for a public highway or as a source of
materials for the construction and
maintenance of such highways.
<bl The act of August 11, 1955 ·<69
Stat. 681; 30 U.S.C. 62ll. The Act
opened lands then, theretofore or
thereafter withdrawn or classified for
power purposes., with certain specified
exceptions. to mineral location and de·
velopment under certain conditions.
109
108
·. ' . '
§ 2:U.t.l Lunds considered withdrawn or
cln~!ii'ficd for power purpose.!\.
The following classes of lands are
considered as withdrawn or classified
Cor power purposes for the purposes of
section 24 of the Federal Power Act:
Lands withdrawn for powersite re·
serves under the act of .June 25, 1910
(36 Stat. 847) as amended by the act of
August 24. 1912 C37 Stat. 497, 43 U.S.C.
141-143); lands included in an applica-
tion for power development under the
Federal Powr:r Act~ lands classified !or
powersite purposes under the act of
March 3. 1879 <20 Stat. 394: 43 U.S.C.
31); lands designated as valuable for
power purposes under the acts of June
20, 1910 C36 Stat. 557. 564, 575), June
9, 1916 (39 Stat. 218. 219), and Febru-
ary 26. 1919 (40 Stat. 1178. 1180); lands
within final hydroelectric power per-
mits under the act of February 15.
1901 (31 Stat. 790: 43 U.S.C. 959>: and
lands within transmission-line permits
or approved right-of-way under said
act. of 1901 or the act of March 4, 1911
c36 Stat. 1253: 16 U.S.C. 5, 420. 523; 43
u.s.c. 961>.
§ 2311.:! General dclcrminntion under sec-
lion :!L
<aJ On April 17 1922. th£> Federal
Pmn:r Commission madt• a gt>neral d£>·
tcnnmation .. that •.t.·here lands of the
United States have heretofore been. o_r
hereafter may be. resen·ed or classl·
fied a.~ powersites. such reservation or
classification being made solely ~e
cause such lands are either cccup1ed
by power transmission lines or their
occupancy and use for such purp?ses
ha.s been .applied for or authonzed
unde:r appropriate law5 of the United
Slates, and such lands have otherwise
no value for Dower purposes, and a;e
not occupied in trespass, the commis-
sion determines that the .value of such
lands so reserved or classified or so ~p
plied for or authorized. will not be m·
jured or destroyed .·or the p~trposes of
pov.;cr dc\·clopmcnt by locatio~. entrY
or selection under the p~bhc land
Jaws. subject. to the reservation of sec-
tion 24 of the Pederal Water Power
t....-.-··---~
Title 43-Public Landa; !nterior , ·, . .
24 of the Federal Power Act. are con-1
tained in Group 3800 of this .:hapter.
§ 23.&4.3 Petition:. for restoration.
<a> Petitions for restoration of lands
withdrawn or classified for power pur-
poses. under the provisions of section
24 of the Federal Power Act, must be
fi]ed, in duplicate. In the proper office
(see § 1821~2-1 of this chapter). No par-
ticular form of petition is required.
but it must be typewritten or in legible
handwriting. Each petition must be ac-
companied by a service charge of $10
which is not returnable.
Cb) Favorable adion upon a petition
for restoration w,ll not give the petl· ·
tioner any preference right or right to
preferential treatment if or when the
lands are finally restored.
(29 FR 4341. Mnr. 31. 1964. as amended by
Circ. 2220.31 FR 16784. Dec. 31. 19661
P'ART 2350-WITHDRA W AL
PROCEDURES
Subpart lJSO-Withdrawal Proce~ure G11neral
Sec.
2350.0-l Purpose.
Subpart 2351-Applicationa
2351.1 Who may apply.
2351.2 Filing of applications
2351.2-1 Applications lor more than 5.::00
acres.
2351.3 Segregative eftect of applications.
2351.4 Appronl of application: publit:ltYi
hearing: Investigations: and negotia·
tlons.
2351.5 Findings, re\·iew:;.
2351.6 Payment for Improvements.
Subpart 2353-Publlc Land Order
2353.1 Public land order preparation. ap-
pro\•al, and publication.
Subpart £J57-Transf•r of ,Juriadictlon
2357.1 Withdrawals or reservallons for the
use or benellt of non-Federal agencies.
AUTHORITY: R.S. 2478. as amended; 43
U.S.C. 1201. unless otherwise noted.
Ch~pter 11-Bureau of land Management § 2351.~
§ 2350.0-l Purpose.
The regulations in this part 2350
apply to all proposals for withdrawal.·
reservation or restriction. under the
authority of Executive Order 10355,
May 26. 1952 <17 FR 4831), or under
the statutory authority of the Secre·
tary of the Interior, or under the Act
cf February 28. 1958 ('12 Stat. 2'll, of
lands or water areas owned or con·
trolled by the United States. However,
onb the following apply to proposals
bY the Department of Defense whidl
are governed by the provisions of sec-
tions 1, 2, and 3 of the Act of 1958.
supra: U 2091.2-5. 2300.0-5, 2351.1.
2351.2. 2351.3, and 2351.4.
Subpart 2351-Applications
SOURCE: 35 .FR 9557, June 13, 1970, unless
otherwise noted.
§ 2351.1 Who may apply.
The heads of Federal· agencies and
instrumentalities or any subordinate
officer designated by them may apply
for the withdrawal, reservation or re·
strict:on of lands or water areas owned
or controlled by the United States for
the use or benefit of the agency or in·
strumenta!ity they represent or where
such agency has a direct interest in a
f.)i:ate, Territorial. or local program,
for the use or benefit of a State, Terri·
ta:r;, or political subdivision thereof in
connection with such program.
(2) Legal .description of -the lands de··
stred. In terms of the public land sur-
veys. where applicable;
C3) When sections 1. 2. and. 3 ot the
Act of February 28, Hi58 <72 Stat. 2'1).
are applicable. location of the area ln·
volved, to include a detailed descrip-
tion of the exterior boundaries of the
lands to he Included within. and those
to be excepted from, the proposed
withdrawal or reservation.
<~i Gross acreage within the exterior
boundaries of the requested withdraw-
al or reservation, and net public land.
wat~r. or public land and water acre-
age covered by the application:
<5> The purpose or purposes for
which the area is proposed to be with-
drawn. reserved, or restricted. or ll the
purpose or purposes are classified for
national security reasons. a statement
to that effect:
(6) Whether the proposed use wlll
result in contamination of any or all
oC the requested withdraw~:} or reser·
vation area. and if so, whether such
conta.mln~tion will be permanent or
temporary;
(7) The estimated period during
\':.fhJch the proposed withdrawal or res-
ervation wlll continue in effect:
(8) Whether, and if so tb what
extent. u~c proposed usc wlll affect
cohtlnuinig full operation of the public
land Jaws and Federal regulations re·
lating to conservation, utilization, and
de\·elopment of mineral resources.
timber and other material resources,
grazing resources. fish and wildlife re-
§ 2351.2 1-'i!ing or applications. sources. water resources. and scenic.
f.a) Except where the application is wilderness. anti recreation and other
classified by the applicant for national values:
security reasons. all applications for (9) If effecting the purpuse for
withdrawal or reservation must be which the area. is proposed to be with-
filed in duplicate in accordance with drawn. reser'ved, or restricted, wlll In-
the provisions of § 1821.1 of this chap-valve the use of water in any State.
ter. Where the application is classified whether. subject to existing rights
by the applicant ag-:-:~cy for national under law. the Intended using agency
security reasons, it ~~just be submitted has acc:uired. or proposes to acquire.
to the Office of the Secretary, Depart-rights to the use thereof In conformity
ment o! the Interior, \Vashington 25. with State laws and procedures relat·
D.C. ing to. ~he control, appropriation, use.
(b) N.o specific form of application Is and distribution of water;
Subpart 2350-Withdrawal tJrescribed but It must contain the foJ-<10) A justlflcatlon for the proposed A~~;· The rct::ulation~ goVf~rnlng Procedures, General lowing information: withdrawal or reservation, lncludfni ~ . 1 t' on lands withdrawn U) The name and address of the ap-statements showlng the need for aU
-.
·u.
mu~:i!si~i~·~ ~~~: power purposes. in-souRcE: 35 FR 9557. June 13. 1970. unless PHcant agency and Intended using the area requested and for th~ llmlta·
or • · J 1 src•tJ'"'r1 oth"r'"lse not""d agenc'lr tl~nv_of~~on~"ur::r:et:'LUSP~~· -----·---1\I(Htw l'lncl'-' rt•(;tort•( ltnC cr. v ~----~ -"'-. ---'-·-------·~-------·-"-------~---"r-·-~-~---~-' ' ~;F,ti:. ');\-_.. • ·~ o•'. ;,~~-~-~~ ~"'t"':~-· . {' . . ' ···-. ~ . . ~. ~ ;-;:·~,~~·t -:~~ -~~ ,•>! j'~t '~ ti?;.'>;::'··~-... ;·'li'! > ' \\
)'~ ' ~ i f ~ () i "I I i § 2351.2-1
l
"""---" --
1 <ll) Citation of the statutory or
I olhe!· authority for the type of \.vlth-
1 drawal or reservation requested.
!
i § 2351.2-1 Appli\!ations for more than
· f 5,000 acre!r.
/ If the application is for the w~th
'1 drawal of more .:1an 5,000 acres for
[ a!•Y one project or facility~ the applica-
" 1 t10n must be accompanied by a map or
"' l maps, in duplicate. of adequate scale,
,
1
f showing clearly the location of the
. land by legal subdivisions; the pro-
i posed utilization of the property, in-
~ : ,, \
J eluding the location of the major im-
proveme-nts to be erected or installed;
areas to be inundated, if any; and any
cultura:i or other features of the la1Jds
requested and of the surrounding area
' !
\
l
--:--_l ~
I
[
l
1
;
I
deemed by the applicant to be signifi-
cant and to illustrate the need !or and
effect of the proposed withdrawal.
Standard base map!l, where suitable,
may be. used for the purposes of this
paragraph.
§ 2351.3 Segregati\'e a!ffed of applications.
(a) The noting of the receipt of the
application in the tract books or on
the official plats maintained by the
Land Offke in which the application
was properly filed or in the tract
books maintained by the Washington
Office of the Bureau of I.~and Manage-
ment if there is no Land Office for the
State in which the lands are located
shall temporarily segregate such lands
as provided in § 2091.2-5.
§ 2351A Approval bf application; publicity;
hearing; investigations; and negotia-
tions.
(a) The authorized officer of the
Bureau of Land Management will have
published in the FEDERAL REGISTER a
notice of the fning of the application
and of the opportunity of the public
to object to, or comment on, the pro-
posed withdrawal or reservation. In co-
operation with tht. applicant agency,
he .will also provide for publicity suffi-
cient to inform the interested public
of the proposed withdrawal or reserva-
tion.
(b) If. as a result of such notice and
publicity, sufficient protest is flied
against the proposal, or if, Jn h!s dis-
cretion, it is otherwise desirable in the
• •!-; .••. ,. .• wt .tlw ;:~nthori~ed offJcer
------'title 43-Pubh~ Land1: fnterior
o! the Bureau of Land Management
will, subject to the approval of the
Secretary of the Interior if the appli-
cant agency objects, hold a public
hearing at a time and In a place con-
venient to the interested public ana to
the agencies Involved. Costs of such
hearings incurred . by the Bureau of
Land Management, except for the sal-
aries of its personnel, wm be borne by
the applicant agency.
(c) The authorized officer of the
Bureau of Land Managem~nt will un-
dertake such Investigations as are nee
essary to determine the existing and
potential demand for the ~ands and
their resources. He will also undertake
negotiations with the applicant agency
with the view of adjusting the applica-
tion to reduce the area to the mini-
mum , :!lsential to meet the applicant's
nee· .,o provide for the maximum
conc~.a~(ent utlllzat1on of the lands for
purposes other than the appllcant's, to
eliminate lar.cls needed for purposes
more essential than the applicant's,
and to reach agreement on the concur-
rent management of the lands and
their resources.
§ 2351.5 l<,indings, reviews.
Ca) The authorized officer of the
Bureau of Land Management will
report to the applicant agency his
findings of fact, and where he has au.
thorit.y to effed the withdrawal or res·
ervation. his conclusions in respect to ··
the application. If the applicant
agency does not concur with such find-
ings or conclusions, it may request the
Director, Bureau of Land Manage·
ment, to review the case, and if It feels
aggrieved by the findings or conclu·
sions of the Director, may request the
Secretary !or further review. When
the proposed withdrawal or reserva·
tlon involves authority delegated to
the S€cretary by Executive Order
10355, May 26, 1952 (17 FR 4631) and
If the applicant is a Federal agency or
instrumentality outside of the Depart ..
ment of the Interior and it does not .
concur In the findings of the Secre-
tary, thn applicant may request the
Secretary to refer the case to th~
Office of Management and Budget. 1 ,,
<b> The Secretary of the Interior, or
hls authorized egent. will approve-:1r ·
deny the application in whole or ~
-·--··~-----------·---Chapter 11-Dur•au of Land M anagement ,: "':• ')
§ 2S6L0-2-
part, pr~vided that no withdrawal o reserv~t&on affecting land under r
admimstraUve juri~diction of an i~e
;;cutive department or agency of th~
uovernment other than the Depart-
mietnht of the Interior will be effected
w out the prior approv 1 renee of the h d f a or concur~
...... ~ 'T t
propriate order of withdrawal or reset· vatJon. . ,:)
(35 'DD • i' ·IX ;&'" 8558, June 13, 19701 · , ·~;:~;...·
Subpi.irf 2357-Trantf•r of ''
Jurisdiction !: .
ea 0 the department or agency concerned, or his delegate.
§ 2351.6 Payment for improvements.
wif~3r:~~~~nc; of ahn &ppUcation for
thl n er t e regulations pf ~ part wm be conditional upon tlil
payr1'ent by the applicant a e upo~ agreement of the gency or
agency to pay to th applicant of e owner or owners range or other improvE::uents placed
upon the lands pursuant to an agree
ment with the United States such
amount and at such ti t
thorized official of the&~~: o~ta~~
Management deems fair a~:~d reason ~ble under the c!rcumstanc.~s and th~
"e~m; of such agreement l.o compen-
sa e or the loss of the Improvements
providing that the applicant agency l •
authorized by Jaw to tnake such s
pensation. In addition, a ho1der ~~~
grazing license or permit for land
withJu a grazing district wm be com~
pensated for the loss resulting from ft~= use of the ~ands embraced in the
d f nse or permJt for war or national
d etens~ P•!rposes in an amount to be
e ermmed fair and re b
and to be pa~d by, the he:o~; tt:'e ~~·
Partment or Agency of the F d j
Government making such use. e era
I 2857.1 Withd'rawala or reservations for t~e ~se Qr benefit of non-Federal aren ctea. · -
Lands withdrawn or reserved under:
Group 2300 for the use or benefit of . non-F~deral agency will remain or wu~
be Placed under the Jurisdiction of th~
appropr!ate Federal agency.. ' e
CR.S. 2478; 43 U.S.C. 1201) • ,
(35 FR 9558, June li., 19701
PART 2360-NA TIONAL PETROLEUM
RESERVE IN AlASKA
Subpart 2361-Managem•nt and Pratedlon ef the NaUo,..al Petroleum ••••nr• ~it Ala•lca
Sec.
2
2361.0-1 Purpose.
361.0-2 ObJectives.
2361.0-3 Authority.
2361.0-4 ResponsibUfty.
2361.0-5 Deflnjtfons.
2361.0-6 £Reserved)
2361.0-7 Effect of Law. ~:66 11.·! Protection ot the Environment
6 Use AuthorfzaUoru; ·
236.1.3 Unauthorized Use ~nd occupancy.
Subpart 2361-Management and Pro-te~tlon ct.f the National· Petroleum
R.,i•rve In Alaaka
Subpart 2353-Public land Order
SOURCE: 42 FR 28721 June 3 1977 unJ othcl"Wise noted. ' • · • ess
~ 2353.1 Public land order preparation
appro't"al, and publication. •
de~/ed~henhP.n application is finally
t n w ole or in part by th li~~~~e~n of{~cer,Y:lw. he will have ep~~:·
Not· e .&-r.DERAL REGISTER a spe~u~ ~e ~etermination which . wm
fected lands :n~ ~~ j hl,our that the af-
regatf f re «eved of the seg-
tfon. ve e feet of the agency's appUca-
(b) When an It approved i h app cation Is finally
a th n w ole or In part by th li~he~,.:~~ of~er. he wm have pub~
e DERAL REGISTER an ap.
17
§ 2361.0-1 Purpose.
thT::~~~!~~~e ~C the regullltlons In
for the protec:Jo: a"r!"ovlde procedures
ronmental fish d d control of envl-
t •· an wUdUfe and 1 Js
PorJcal or scenic values in th~ Natto~ i
etroleum Reserve in Alask a
to the provisions of th a pursuant
" ::~~t:t~s:;~:2PrU0SducctJ6~5nON1I~tt~tf:~~:
• · · · e seq.).
1236! .0-2 Objective•.
The objective of thJs sub ar
provide for the protection or th! Js ~
rorunental. fish and wlldUfe and env •
torical or scen!c values of th' h~s-~: ~1l~t1 acUvltJes wht~h are ~~=r~~
e r mental to such va.Jues wUJ be
npatcnted Jnthl In nrrccted by the
_roposed right uf '"'lW The maps and
aeld notes Will 1 • • • • • . It• "J•Jtrovcd by thu au-
honzmg off.lt·1·a· 1,, d 1 ... t". Anu l"d . h up aca e. .;;
a.a rag t exiNtlna.t nl. lhe date of the
lmg of the r1 1·1 · t ".,,r-way application
. 11 .not be arr c•t~l c•tl lty lht filing or ap-
pro\ al ther~or. U Ht1 unpatented land
s lny~lved 111 1 11 •' i'llallicalion the au-lhon~mg offkc•r Will I"I!Ject H. allowing
the usual right or ht•lwaL
§ 2~·12.2-2 Bvltl,•cu-,. nr t . t't~nM ruc'lwn.
\~lhen the rallt """ 1:.; constructed, a
statement of llw c•uulnr~er and certlfi·
cate of the lH'P!lld•·ut c l•'orms 5 and 6
Appendix :\1 1"11!11 he.! filed in th~
proper_ offH·c•, In dHplicate. No new
ma~ ~111 be l'c•qutt •·d • .-xcept in case of
devtataons frotn llw rhlht -of-way previ-
ously appr<WI'tl, wh,·t.hcr before or
afte~ constnh·t h•n. when there must
be ftled IW\\' '"''l ''t :II HI field notes in
full. as hen·t" \ '''m·idcd. bearing
proper fo~m: •. t'tltllltt••d to agree with
the facts m t 1,,. ,.,,:11 •. The rna}: must
show clearly I he• \'llt'llops amended. or
bear a st~tt•nwl\t ""~•crlbing them and
the location 11\\ht ,,,. dt-scribed in the
fcrms as the t\\11n1.\nl surn~r and the
amended tkii•Ht. 1·wation. In such
!.'a~cs the l'•'l.\\1' tl•\ IIlitH ftlc: a relin-
•1tHShment. a•H.t,,, ·•·aL of all rights
und~r tht• tt•lll'l't ,,,1proval as to the
portions anw11d,•.t ·•tl id rC'linquishment
t u t:lk': ~ffl'l'l , •• t ••·11 t tw map of amend-
l'U dcf1!1t.tl' h•,·a:•··H •.• a.ppro\·ed by the
a:HhOriZlll~ ••II t.,
PART 2850-t'\.'1\\' t R TRANSMISSION
LINE$
SubpQrt 28!il\. r,," •• Transminion linea,
,, ... ~,,,!
2850.1}·3
'!850.0 5
::!850.0· s Lar•.t·. •• •· ·•• l·•~rant.
Subpart 28.!-1 r .... "t'•,ll and Proceduree,
Po•• '" ''''•••··•n•iofl Linea
• ' . ,· .t
· ···~.llt wn:>
Title 43-Public Lands: h~terior
Subpart 2850-Power Transmiuion
U11~a, General
SouRcE: 35 FR 9650.. June 13. }.970. unlesa
otherv.:lse noted.
. ' .
Chapter 11-8ureau of Land Manag.emllint § 2851.l-1
over public lands, ws_s superseded by ance with tlle rules p~escribed in the
the Federal P(;"'er Act of June 10 National Eb~.ctrl,c Safety Code, all Gov~
1920 <.U Stat. 1063>. as amended by ernmeot. and other te·lephone, tele-
sections 201 to 213 Inclusive. oi the act "ra.ph, t~-rad power transmission lines
of August 26, 1935 <49 Stat. 838; 16 from cc.nta.ct and all highways and
U.S.C. '191-825r), a:; to pqwer projects rallrQa.ds from obstruction, and to
§ 2850.0-3 Statutory authority. for the generation and transmission of ma.intajn his transmfsslon Unes In such
(a) The act of. February 15. !.901 <31 hydroelectric power, defined in section manner as not to menace life or prop-
Stat. 790: 43 U.S.C. 959), aut.horizes 301> of the act, excepting distribution erty. ·
the Secretary under such regulations lines. Applications for hydroelectric (2) Neither the prhrllege nor the
as he may fix. to permit the use of power plant sltes or rights-of··way for right to occupy or use the lands for rlghts-of~way through public lands main or primary hydroetectric power .. the purpose authorized shall relieve.
and certain reservations of the United transmission lines mus.t be made J.o him of any legal liability for causing
States. for ,:electdcal plants, poles. and the Federal Power C..::>mmission, Wash-Inductive or conductive Interference
lines f~'r the generation and distribu-ington, D.C., under the act of June 10. between any project transmission line
tion
0
• electrical power. and for tele-1920 • as amended. Rights-of-way for or other project ~'/Orks constructed, op·
phone and telegr~.ph purposes. and for transmlss,lon lines which a:re not Prl-crated, .or maintl4ined by him on the
pipe lines, canals, ditches, water mary lines must be secured under the servient lands, and any radio lnstaUa-
plants. and other purposes to the act of February 15, 1901, or the act of tlon. telephone line, or other commu-
extent. of the ground occupied by such March 4 • 191 1. See l8 CFR 2.2. nication facilities now or hereafter
canals. ditches. water plants. or other § 2850 .0_5 Definitions. constructed and operated by the
works permitted thereunder and not United States or any agency thereof.
to exceed 50 feet on each side of th.t <a> The opinion of the Solicitor of (3) Each application for authority to
marginal limits thereof, or not to the Department of the Interior of No-survey. locate, commence construction
exceed 50 feet on each side (;:.! the \'ember 1, 1940 <M. 30846>. held that work and maintain a facility for the
center line of such pipe lines. tele-lands acquired by the United States. generation of electric power and
phone and telegraph lines, and trans-by P~Jrchase or otherwise, were reser-energy or for the transmission or dis·
mission lines. by any citizen, associ-vaUon lands within the meaning of · tribution of electric power and energy
ation .. or corporation of the United the acts of February 15. 1901, and of 33 kilovolts or higher under this
States. where it is intended by such to March 4, 191 L subpart shall be referred by the au-
exercise the use permitted under the § ~850 .0 _8 Lands subject to gr.ant. t horized officer to the Secretar)' of act. the Interior to determine the relatlon-
ibJ The act of Ma.:-~h 4. 1911 <36 Permission may be given under tht• ship of the proposed facility to the
Stat. 1253: 43 U.S.C. 9611. a.s amended. act of February 15, 1901. and the a"'i power-ma:-keting program of the
authorizes the head of the department of March 4, 1911. for a right-of.,,·a,· United .States. Where the proposed fa-
ha\'ing jurisdiction over the lands, over unsurveyed lands as well as sur-cility wlll not conflict with the pro-
under general regulations fixed by veyed lands. gram of the United States the author-
him. to grant an easement for rights· i.:ed officer. upon notification to that
of-way for a period r. >t exce~ding 50 Subpart 2851-Principals and t.'ffect, will proceed to act upon the ap-
rears over and across ptiblic lands and Procedures, Power Transmiuion Lines plication. In the case of necessary reser~•ations of the United States, for changes respecting the proposed loca·
poles and lines for the transmission SouRcE: 35 FR 9651. June t3. 1970. unit'$$ t ion. construction. or utilization of the
and distribution of electrical power, otherwise noted. iacilit.Y in order ~ o eliminate connicts
and for poles and lines for communica-with the power-marketing program of
tion purposes and for radio, television § 28 51.1 Nature of interest. the United States, the authorized offi·
and other forms of communication § c-er shall obtain from the applicant
transml'tt.l'ng, reJav aild recel'\··1rlg · 2851.1-J Terms nnd conditions. . i , \\·ruten consent to or compliance w th
structures and facilities to the extent <a) By accepting a. right-of-way for s such requirements before taking fur-
of ~QO feet on each side of the center Power transmission line, the applica:~: t her action on the application: Pro-
t:ne a! such lines and poles and not lo ll~ereby agrees and consents to com;:-:.y n'ded, however, That if increased costs
exceed four hundred feet by four hu~· Wlth and be bound by the followir~ :o the applicant will result from
dred feet for superstructures and facti· terms and condiHons. excepting the~ changes to eliminate confllcfs with the
ities to any citizen, association. or cor· Which the Secretary may wai\'e in .:; power-marketing program of th~
poration o! the United States. where i~ ·:..: Particular case. in addition to the~ United States. and it. is determined
is intended by such to l'Xercis£> the us~.'···: specified in§ 2801.1-5, that a right-of-way should be granted,
pamitted under the act. ~··:. <l) To protec~ in a worli.manlik;o surh changes wlll be required upon
lr> The applirability of thr arts of rnanr:e~. at crossmgs and at places :.:: t"QUitable contract arrangements cov-
!!ll5 i.l Na!H~t· ,.
:!~51 1-1 Tt'! !~~' ,
~H5L:! Pn,,·t·.l.; '.
:!11.51 !! i t\l•i• ' \ . Pebrunry 15. 1901. and March 4, 1911. Prox 1.mlty to his transmission lines c.:: :-ring costs and other appropriate rae-
--~ -·-·--··-.. -· _ ·-·-·-·~-~~-·-·----~---~~-:nc __ , ____ tJ1 P_t-.trr.b.t-"' L"-'"-'-'-"-' ~~'-~ .,iry.,.~.__ ............. ~---~:.·~-~
·· dx-f ' .:{r",·
1
I
·--------~---., --.-~ ------
Title 43-Public Landi: Interior Chapter 11-Bureau of La~d Management § 2.&5 1 .1-1 . .
(4 l The app1icant shall make prO\·i-fication will beg; . .en to the holder and er's normal operating standards,
sian. or bear the reasonable cost <as the holder shall furnish to the Depart-~xcept that the Department shall
may be determined by the Secretary) ment within 30 da~·s a certifi£ate stat-have the exclusive right to utilize any
of making provision for avoiding in-ing whether the transmission facility increased capacity of the transmission
ductlve or conductive interference be· has any surplus capacity not needed facility which has been provided at
tween any transmission facil!ty or by the holder for the transmission of the Department's expense.
other works constructed, operated, or <::lec~.ric power and energy in connec· (g) The holder will not be obligated
maintained by it on the right-of-way tion with the holder's operations and, to allow the transmission of electric
authorized under the grant and any il so, tne amount of such surplus ca-power and energy by the Department
radio installation, telephone line, or pacity. to any person receiving service from
other communication facilities exist-t b) Where the certificate indicates the holder on the date of the filing of
ing when the right-of-way is author· that there is no surplus capacity or the application for a grant, othe·r than
ized or any such instnHation, line or that the surplus capacity is less than statutory preference customers inclu4-
facility thereafter constructed or oper-that required by the Department the tng agencies of the Federal Govern·
ate:d by the United Slates or any authorized officer may call upon the ment.
agenr.y thereof. This provision shall holder to furnish additional lnforma-<h> The Department will pay to the
not relieve the applicant from any re-tion upon which its certification is holder an equitable shc1re of the total
sponsibillty or requirement which may based. Upon receipt of such additional monthly cost of that part of the hold·
be imposed by other lawful authority information the authorized officer er's transmission facilities utilized by
for avoiding or elimin.~tfng inductive shall determine. as a matter of fact, if the Department for the transmission
or conductive interference. surplus capacity is available and, if so, of electric power and energy, the pay-
(5) An applicant for a right-of-way the amount of such surplus capacity. ment to be an amount in dollars repre·
for a transmission facility having a <c> In order to utilize any surplus ca· senting the same propo.rtion of the
voltage of 66 kHovolts or more must, in pacity determined tn be available, or total monthly cost of such part of the
addition to the requirements of Sub-any Increased capac .. y provided by the transmission facilities as the maxi·
part 2802, execute and file with its ap-Department at its own expense, the mum amount in kilowatts of the
plication a stipulation agreeing to Department may interconnect its power transmitted on a scheduled
accept the right-of-way grant subject transmission facilities with the hold· basis by the Department over the
to the following conditions: er's transmission facility in a manner holder's transmission facilities bears
(i) In the event the UrJited States. conforming to approved standards of to the total capacity in kilowatts of
pursuant to law. acquires the appli· practice for the interconnection of that portion of the transmission facili-
cant's transmission or other facilities transmission circuits. ties. Th~ total monthly cost will be de-
constructed on or across such right-of-<d> The expense ot interconnection termineti in accordance with the
way, the prit:c to be p::ud by the United will be borne by the Department. and system of accounts prescribed by the
States shall not mcludt! or be affected the Department will at all times pro-Federal Power Commission, exclusive
h\' anv \'alue of the right-of-way grant· vide and maintain adequate protective of any investment by the Department
ed to 'the applicant under authority oi equipment to insure the normal and in the part of the transmission facili·
the regulations of this part. efficient operation of the holder's ties utilized by t-he Department.
( ii) The Department of the Interior transmission facilities. <i> If. at any time subsequent to a
shall be allowed to utilizt> for the <c> After any interconnection is com-certification by the holder or determl-
transmission of electric PO\\'£'r and pleted, the holder shall 0perate and nation by the authorized officer that
energy any surplus capadt:.r of the maintain Its transmission facilities in surplus capacity is a\'ailable for utili·
transnw;sion facility in excess of the good condition, and, except in emer-zation by the Department, the holder
capacitY needed by the holder of the gencies. ~hall maintain in a closed po· needs for the transmission of electric
grant <subsequently referred to in this sition an connections under the hold· power and energy in connection with
paragraph as "holder") for the trans-er's cor.trol necessary to the transmis· its operations the who!e or any part of
mission of elcctrjc power and energy sion of the Department's power and the capacity of the transmission facili·
in connection with the holder·s oper· energy O\'er the holder's transmission ty theretofore certilied or determined
ations. or to increase the capacity of facilities. The parties may by mutual as being surplus to its needs, the
the transmission facility at the De-consent open any switch where neces-holder may request the authorized of-
partment's expense and to utilize the sary or desirable for !naintenance. ficer to modify or revoke the previous
increased capa.cir y for the transmis-repair or construction. certification or determination by
sion of eJ(•ctric powel' and energy utili· (j) The transmission of electric making application to the authorized
zation by the Department of surplus power and energy by the Department officer not later than 36 months In ad-
or increased capacity shall be subject over the holder's transmission facill-vance of the holder's neE:ds. Any modi·
to the following-terms and conditions: ties will be effected in such manner. as fication or revocation of the certiflca-
(a) \Vhen the Department. desires to will not interfere unreasonably with Uon or determination shall not affect
utilize surplus capacity thought to the holder's use of the transmission the right of the Department ~o utilize
exist in thC tran~rni~J.OJ1 {flgiJil'.:. i)Ot i~ ~--JHriJiJj(>s_ln .. Rt't·n~rJn,nno_,.,iL'h-.U·w-J•.~L-1 ____ -·--'"~"-'·~·--~-·-•--·-~-,~-~·-~-~ --· .,,
0
. available under a contract entered into
by reason of the equit~bh: contract ar·.
ran11emcnts provided for 1n this sec·
tion.
U) It the Department and the holder
qisagree as to the existence or amount
of surplus capacity in carrying out the
terms and conditions of this para;
graph, the disagreement shall be de-
cided by a board of three persons com-
posed as follows: The holder and the
authorized officer shall each ~ppolnt a
member of the board and the two
members shall appoint a third
member. U the members appointed by
the holder and t~e authorized officer
~re unable to agrt!e on the designation
of the third memt•er. he shall be desiK-
nated by the Chief Judge of the
United States Court of Appeals of the
circuit ln which ttie maJor share or the
facilities involved is located. The
board shall determin~ the issue and lts
determination, by majority vote, shall
be binding on the Department and the
holder. <k> As used in this section, the term
"transmission facility" includes (1) all
types of facilities for the transmission
of electric power and energy and factU·
ties for the interconnection of such
facilities. and < 2> the entire transmis·
sion line and associated facilities, from
substation or interconnection point. to
substation or interconnection point, of
which t.he segrnent crossing the lands
.of the United States forms a part.
<l> The terms and conditions pre-
scribed in this paragraph may· be
modified at any time by means of a
supplemental agreement negotiated
bet ween the holder and thP. Secretary
of the Interior or his designee.
Cb> Unless otherwise spec'fied In a
right·of·way granted under the act of
March 4, 1911, and unless soon~r can-
celed, the right-of-way shall expire 50
years from the date thereof. If, howev-
er, within the period of 1 year prior to
the expiration date, the grantee shall
file, in accordance with 1 2802.1. a writ-
ten appUcation to renew the right-of-
way. and shall agree to comply with
all the laws and regulations existing at
such expiration date governinP. the oc-
cupancy and use of the lands of the
United States for the purpose desired,
the right-of-way may be renewed for a
·~ .. -:-_--~::; ... £,?~;~~·t.J:§~;·r· .o . Lc.
I
application is filed. the existing
t-or-way will be extended subject
then existing and future rules and
tions. pending consideration of
application.
Slat. 190. 36 Stal. 1253: 43 U.S.C. 959,
I)
FR 9651, June 13. 1970, as amended at
FR 44985, Sept. 8. 19711
1.2 Procedures.
1.2-1 Applications.
(a) Applications filed. Application
er the act oJ February 15. 1901. or
act of March 4. 1911. for permis·
to use the desired right-uf-way
rough the public lands and reserva-
must be filed and approved
ore any rights ca~ be claimed
ereunder.
b> Applications for lands in nation-
forests and other reservations, < 1 >
ications under the act of Pebru-
15. 1901, for ri!;hts·of-way ;).Cross
anal forests should be prepared in
ce with the regulations issued
the Department of Agriculture and
bmit.ted to the proper officer there-
In case a right-of-way is desired
public lands partlY within and
rtly without a national forest. scpa-
e applications must be prepared.
d the one affecting lands within the
onal forest filed with the forest of-
r. and the other filed in accordance
tth § 2802.1. <See section 1 of the act
February 1. 1905 C33 Stat. 628: 16
.S.C. •172).)
(2) Applications for a right-~f-way
er t;he act of March 4, 1911, mvolv-
lands under the control of a de·
rtment o:-agency other than the
partm('nt of the Interior should be
pared in accordance with the regu-
ions issued by such department or
and submitted to the proper
ice:r thereof. <Sec 2~1 Op. Atty. Gen.
3.) .
lC} Required showings. <1 l A descnp-
n of the plant or connecting gene_r-
ing plants which generate or. wtll
crate the power to be transmitted
cr such line. such description to be
sufficient detail to show. to the sat·
action of the authorized officer. the
~racter. capacity, and location of
ch plants.
-
Title 43-Public l~:md~·: 'nterior
<2> A description of the tt~nsmlssion
line of whjch the line for which a
right-of-way is requested forms a part,
giving in reasonable detail the po!'1ts
between which it will extend, its char·
acter:stics and purpose. There .must
also be included a statement as to the
voltage for which the line is designed
and at which it Is to be operated ini-
tially, and a statement as to whether
it is to serve a single customer, or a
number of customers, or is intended to
transmit power solely for the appli-
cant's use. If the line is to serve a
single customer or is for the appll-
cant's own use, the nature of such use
must be given <such as airway beaeon,
coal mine, and irngati.on pumps).
(3 > The applicat~on and maps shall
specify the width of the right-of-way
desired. Rights-of-way for power lines
will be limited to 50 feet on each side
of the centerline unless sufficient jus-
tification is furnished for a greater
width and it is otherwise authorized
by law.
(41 If the line is to have a nomina_'
voltage of 66 kilovolts or more. the ap-
plication should include a one-line dia-
gram of the proposed line and the im-
mediate interconnecting fil.Cilities in-
cluding power plants and substations,
a power flow diagram for proposed
line and connecting major )lines show·
ing conditions under normal use. and
typical structure drawings of proposed
line showing construction dimensions
and list of materials.
C5) Any application under the act of
March 4, 1911 for a line right-of-way
in excess of 100 feet in width or for a
structure or facility right-of-way of
over 10.000 square feet must state the
reasons why the larger right-of-way is
reouired. Rights-of-way will not be
lssi1ed in excess of such ·sizes in the ab·
sence of a satisfactory showing of the
need therefor.
<6> <i> A detailed description of the
environmental impact of the project
shall be included with the application.
It shall provide, among other things.
information about the impact of the
project on airspace, air and water
quality, scenic and esthetic feawres.
historical and archeological features.
and wildlife, fish. and marine life. d.
OD The proposed site, design, an
construction of the project shall be
.... __....__...._.,_........_.____ . " ......... -........ ...._........___ .... __ . ____ ......... .-~ ... -·~ ..................... ..___ ---...... ----. ' .. · Chapter li-Bu.rea~ of Land Mancagement
consistent with the "Environmental
Criteria for Electric Transmission
Lines," prescribed Jointly by the Sec-
retary or the Interior and the Secre-
tary of Agriculture, &.S welJ as such
other environmental critera and guide-
lines as the Department shall from
time to time prescribe. "~nvlronmen
§ 2861.1 ......
tal Criteria for Electri ransmlssion
Systems" Is available from the Super-
intendent of Documents, U.S. Go\'ern-
ment Printing Office, Washington,
D.C. 20402.
(iii) If all ot.her requirements are
met, the application may be approved
if It Is determined that the beneficial
purposes and effects of the· project wm not be outweighed by an adverse
environmental lmpat· If the author-
Ized officer determines that the appli-
cation cannot be approved as pro-
posed, he will, whenever possible, sug-
gest alternative routes or methods of
construction, or other modifications
which tf adopted by the applicant
would ·nake the application accept-
able.
{35 FR 9651. June 13, 1970. as am~nded at
36 FR 6828, Apr. 9, 1971; 42 FR 44986. Sept.
8. 1977)
§ 2851.3 Boulder Canyon Project.
Section 5<d> of the Boulder Can•:on
Project Act of December 21; 1928 "c45
Stat. 1057; 43 U.S.C. 617d), authorizes
the use by any agency receiving a con·
tract for the purchase of electrical
energy from Boulder Canyon Project
of such pubJic and reser\"ed lands of
the U&ilted .States as may be necessar~·
or convenient for the construction op-
eration, and maintenance of ~ain
transmission lines to transmit said
electrical energy.
PART 2860-COMMUNICATIONS
Subpart 2161-Radlo and hlevi•lon Slte1
Sec.
2861.0-3 Authority.
2861.0-5 DeflnltloH:;.
2861.1 Procedures.
Subpart 2862-hlephone and Tel11yraph Line•
2862.0-3 AuthorAty.
2862.0-5 Definitions.
2862.1 Procedures.
Subpart 2861-Radio and 'ieleviaion
Sites ·
§ 2861.0-3 Authority.
The act of March 4, 1Cll <36 Stat.
1253; 43 U.s.c. 961), as amended, au·
thorizes the head of the department
havine Jurisdiction over the lands,
· under general regulations tlxed by
.hlm, to grant an easement for rights-
of-way for a period not exceeding 50
years, over and across public lands and
~eservations of the United States, for
voles and lines for the transmission
and dis~ributlon of electrfcal power,
and (or poles and lines Cor communica-
tion purposes anC: for radio. television
ll.nd other forms of communication
transmitting, relay and · receiving
structures and facUlties to the extent
of 200 feet on each side of the center
line of such lines and poles and not to
exceed four hul!ldred Jeet by four hun-
dred fee~ for superstructures and facil-
ities to any citizen, association, or cor-
poration of the United States. where it
is Intended by such to exercise the use
permitted under the act.
[35 FR 9653. June 13, 19101
§ 2~61.0-5 Definitions.
The opinion of the Solicitor of the
Department of the Interior of Novem-
ber 1. 1940 <M. 30846), held that lands
acquired by the United States, b~r pur-
chase or otherwise, were reservation
lands wfthln the meaning of the acts
of February 15, 1901, and March 4 1911. . .
[35 FR 9653. June 13, 19701
§ 2861. I Procedures.
<a> Applications for a right-of-way
under the ac&. of March 4, 1911. lnvolv·
ing lands under the control of a d.e·
partment or agency other than the
Department of the Interior should be
prepared In accordance with the regu.
lations Issued by such department or
ag~ncy and submitted to the proper
offiCer thereof. (See 29 Op. Atty Gen aoa.> · ·
(b) Any application under the act of
March 4, 1911, Jar a line right-of-way
in excess ot· 100 feet In width or for a
structure or facility right-of-way of
over 10,000 square feet must state the
I
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c!N,.nc-. and similar Ktions· ... ~..; ... :·.i:-t~L:;,_~-
.fROM: (N•me.-~ aymbol,~ancy[Post).·
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·FEDERAL ENERGY REGULATORY COMMISSION
Chief, Forest Service
Department o~ Agriculture
P.o. Box~ 24·1 7
Washington~ D.Co 20013
Pear Sir:
WASHINGTON l04l0 ~~~()/!/
·" ~ . ~~~~ b' · .. c J ~ ,,.1'982
DA-2-South carolina~ u.s. Forest Service
APR 6 1981
In regard to a proposed land exChange with the Sou~ caroJ.ina
Public Service Autl\orit)'" (Authority), the Forest Service bas
requested restora~ion to sele~tion, su~ject to.section.24.o~.
the Federa1 Power Act, of Francis Marion National Forest ·
lands withdrawn for Project·-No. 199 (the Authority•,s Santee-
Cooper Hydroelectric Project) • .
The Authority subsequent1y requested vacation of ~e proj~ct
withdrawa1 upon conveyance of the projeC::. 'lands. As an
alternative, the Authority stated thai:. i;t. •wi11-··conaider -.
accept;ng a Commission order restoring the lands in question
to entty, leeation or. se1ection subject to section 24 but on
the condition that ~e Commission waives whatever authority
it may have to assess annual charges for the use of those·
lands or assesses a purely'nomina1 Chargee• The Authority
contends that the Commission has no authority to as~ess
annual charges for lands patented subject to the p~ovisions
of S~ction 24~
The Authority cites two prior Commission a.cti.ons to support
its request for va~ation 9f the project withdrawal. In
'DA-222-Washington, issued July 5, · 1979, the Commission oz·dered
the vacation of the withdrawal for Project No. 2149 as to
6.1 acres included in that·project ae licensed, upon conveyance
of tt."le lands to the licensee. The Director, Office ·of Eltactric
Power Regulation, acting under delegated authority, took
s~ilar action with respect to Project No. 1894 in DA-l-South
Carolina,. dated January 31, 1979. our earlier interpretat5 .. on
of the. phrase •until otherwise di~ected by the Commission,•
in the first sentence of Section 24, appeared to provide adequate
authority for these vacationa since the Conunission's licensing
authority was not jeopardized. Subsequent research indicates
that Section 24 does not contemplate vacations of withdrawals
covering lands with significant power value. Therefore, the
Commission denies the Authority•s· request for vacation of the
w:.i .. thdrawal.
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Congressional reports an~ debates in the legislative history
of Section 24 indicate that Congress created a.pewer reservation
int~nded tq remain ~n the people in perpetuity. See, for
~xample:
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1. Debate in Rouse on s. 1419, Comments of .. Rep., Ferris,
Chairman, House Comuiittee o.n Public Lands:
2.
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The salien~ features of a correct and adequate
water-power po~iey ~ •• are as follows: . .
Pirst. No'legislation, Executive order, or
dep·:~·::'tlllental rul.ing should periuit the patenting
or "~·: .. ,. title in fee to pass out of the Federal.
Gov··~i~;';;i~~}·:. 'lt under a.ny conditions. 'l'he fee title
sb· ·;( reserxed in perpetuity to the United
·.
S~~-t_::.,~ " • It. has been [the private water-power
int,~ .. ~ c •• ;·'] determined effort to secure from the
Govez1,!i"~~·c·.,~~ the ·Nation • s vaJ.uable water-power· resources
in perpetuity as ·distinguished from a term o~ •
years • . • ~ • Pour times in previous Congresses this
contention has been denied them, and it has been
denied them in this bil1. 1/ -I
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I Memorandum on s. 1419, ~ synopsis entered into the
Record by Rep. Sinnott and prepared by Mr. o.c.
Merrill~ Chief Engineer, Department of the Agriculture,
Forest Service: . I
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Under this provision of (Section 24] the Unite4 States
will have the exclusive r.ight in perpetuity to use
or per.mit the use of power sites on the public lands
for power purpose~. 2/ -l ~e~~, I
a) Bearings on.B.R. 14893 Before the House Committee /
on Public Lands, 63rd Conq., 2d Sess. 413 (1914) ll
(statement of Mr. o.c. Merrill, Chief Engineer, ,
Depa~tmont of Agricult~re, Forest Service). 1
'b) ti.R. Rep. No. 842, 63rd Cong., 2d·Sess. l, 10 (1914). 1
Report recommended passage of H.R. 1.6673 (a bill . j
substantially similar to H~R. 14893). j
c) s. Rep. No. 66, 64~h Cong., lst Sess. 13 (1916) (quoting 1
the views of Sec~ of Interior Franklin K. Lane "on the f
56 Cong. Rec. 9301-03 (1918).
Memorandum on the water-power bill (So 1419), pttssed by
aouse of Representatives September 5, 1918, Appendix to
Congressional Record, p. 613, September.l3, 1918$
the
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subject of water-power legislation. • • i~ a
letter addreesed by him to the chairman of the
senate Committe~ on·Public Lands during the •••
Sixty-third Congress·. • • • • (pp. 13-15}).
d1 59-Cong. Rec. 1034-35 (1920) (r:emarks. of Rep~ Raker}.
e) ~9 Cong. Rec. 6527 (1920) (remarks of Rep. Lee).
..
As to the annual charges issue raised by the Authority, "
tbe status of lands patented sUbject to ~e provisions of
Section 24 was explai~.1ed by the Acting Secre~ry o~ the
Interior in a July lZ~ 1920, deciaion1
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.'l'he evident purpose of S~ct-ion 24 · ia to permi.t of the
agricultural or other use of lands withdrawn or classified
as water-power sites in so far as same may not be thereafter
needed. and utilized by the United States_, its permittees,
or licensees for power purposes, as authorized and defined
in the act. The reservation is analagous to that contained
in agricultural entries and selecting patented under the acts
. of Congress of March ·3,. 1909, June 22, -l9l0, July 17, 1914,
and February 25, 1920,·wherein certain minerals and the
right to enter ·upon !ands for the purpose of pros~ectin9
. for, mining, and removing same is reserved to the United
States, its grantees, permi.ttees, or lessees. All.
these reservations, as .well. as the reservation contained
in the· act of June 10, '1920, supra, are, in the opinion
of th~ Department, exclusive and ·reserVe-and retain'in
the United States the riqht to utilize and develop the I . resourc• so withheld • • • •
It is manifest from the language of section 24 of the act
of June 10, 1920, read in connection with the remainder of
the act, that water-power development upon any lands which
may be patented by the United States, with the reservation
provided for in section 24, car& only lawfull~ be made by ~he
Unit~d States, its per.mitteea,·or. licensees, and that the
person securing the limited patent has no ~ight whatever· by
virtue of the patent or his possession of the land thereunder
to.utilize or develop ~e water ~wer resources, unless and
until he shall have secured a permit or license from the
united States, as provided by the acti The Federal Water
Power Act, 47 Pub. Lands Dec. 556.
Charges assessed for the Section 24 interest are identical
to charges assessed for lands in which the United State~
owns the full title because rights granted by the Commission
are identical. In both cases the licensee is granted the
right to use the land for project purposes and must pay for
damages to improvements not covered by special power site
stipulations.
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The Authority's request for reduction or waiver"of these
charges is denied.·Such a-reduction or waiver of annual
charges as consideration for a licensee's conveyance of
lands to the Fore·st $ervice would· be inconsistent. with-the .
requir~ents of Sections lO(e) and 17 of the Federal Power
Act. . .·
·~ .
The Authori.ty has indicated that it may not accept-the .
~ands subject to Section 24. Ne~ertheless~ a deter.mination
. enabling such conveyance was requested by the Forest. Ser"'ice
and could foster further exChange negotiations. Conveyance
of the National Forest lands to the Authority, subject to
the-provisions of Section 24, would have no effect on proje~t
operations • ·.
Under the circumstances, the Commission:
.. ·-~·--··~
.. (1) Determines that the power val.ue of the Francis Marion I . .. ~-National. Forest lands withdrawn for Project No. 199
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...... will. not be injured -or destroyed by their convqance
to the Authority, ·aubject to the provisions of
Section 24 of the Pederal'Power Act. ~-~;( . .
(2) Denies the Authority's request for ·vaca.tion of the
land withdrawal. for Project No. 199.
(3) Finds ~t the establ.ished practice of assessing·the ·
same annual. cJtr.~arge for lands patented subject to the
provisions of Section 24 of the F-ederal Power Af.:t
as for lands in Which ~e United States owns t~he full
title is appropriate.
By the commission.
. '
Secretary
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TJN1TED STATES DEPARTMENT or· THE INTERIOR
~ A. Seaton, ~.,.,
GEOLOGICAL SURVEY
Thomas B.. Nobm, Directar
GEOLOGICAL SURVEY CIRCULAR a
·HISTORY OF LAND CLASSIFICATION RELATING
TO WATERPOWER AND STORAGE SITES ·
•
Wubfnatoa. D. C.t 1.967
Frw OD applleatioa to th• Geolor.c:al S1U"Ve7, Wuhiqtcn 25, D. c.
--·--··--·••*•· ---.. ·-·· .......... -.... -r-~~·---~,
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HISTORY bF · LANri ·cLASsiFICATION RELATING· . : . . .. : . . . . .
TO WATERPOWER AND· STORAGE SITES
-. . . . . " ...... .
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.Aba~•·• a•••• ••• •ct•~• ••• ·~•.~•••••••~ e i
ID.traduct.:1oa :;,., ~ ........ ~ • a ................. •• 2
.D18c-ua•!_QJ1 •• , •••• 8,.. .... t.·· ...... , ~........ 2 .·
Segreption ot laada. ~~ ulu.e-tor
dewlcpDant at nter reaourcea \t.'U,_tu-•t·
undertaken tol.lovins ~ tc't ot ~bel" 2,
lB88 vhicb prOvided tar the vithdr-.1 of
rnenoir eites ·ud ·l.aDda actjacent,., a near,
vb1Ch vould 0. ·auaceptible ot 1l'r1pt1on.
1'!1ia act1Yity vas curtailed 'b7 tbe act ot
Auguat 30; lB90 vbicb rapeal.ed. the act ot
October· 2, .l.888 to the· extent that onl.Y
r.ctual aitea ot reaenoira vere retained in
a vithdnvn atatua. 'Dt.e act ot ~ch 3,
lB9l vu deeisaed to reduce laDda 1D vith-
clraval to .the miniraa-required tor atorage
purposes, ~ inaotar · u pra~ticable to _ 1 exclude lands occupied by settlers on the
date ot. the vithdraval ot the reservoir
site. ·
Segr,gation,ot lands into reserves as
a means ot protecting their ~ater resources
values vaa again undertaken in 1909 with
the reserwtion ot nearly li mUllen acres
in temporary power aite vithdravala;. .· These
vi 'tbd.raval.s vere: confirmed under the ·
authority ot an act ot June 25, l9l0~and ·
vere JZde permanent power site reserves by
executive order~ ot Jul.y 2, 1910. Lands
valuable tor vaterppver v~re withdrawn as
power site reserves under this act until
1920. Another act ot June 25, 1910· provides
the authority tor reservation ot Indian
lands. . l • ·
Valuable paver site ~ in Arizona·
and New Mexico, the. reveated lands ot the
Oregon and California Railroad Company, and
the Coos Bay Wagon Road in Oregon, vere
vithdravn in Water Power De~i~tiona by the
acts ot June 20, 1910, June 9, 1916, and
l
Chroaological list ot waterpower and
reservotr·claaaitication lava,
Page
. executive ~rdera 1 and depe.rtmental
orclera ......... o ••••• ·-·· ••••• · •••••• ~ •••• ~ ~ 6
Fe~ 26; 1919, reapect~:vel.J.
1he ~eral Water Power ,Act ot 1920,
•• amended by the Federal.~ Act Of 19351
provides a means whereby lands vithdravn
because ot tbe1.r potentia1 waterpower value
can be •de available tor o~r uses 1 w1 tb
t4a power right• retained by the Government,
until ouch time aa 'they are required tor
waterpower dewl..oplllint. Since passage ot ·
this act, public do•in l.an4 bae 1 with tf!!!V
exeeptiOM, been withdrawn tQ.r ~er
purposes b~ order~ ot Paver Stte
Classitica~ion.under the Organic Act ot the
GeolofP..cal Survey with tuU terce and
effect. under Section '24 ot the Federa~ ?ower
Act. These orders are signed by the
Director ot. the C-eological Survey.
Lands which are vithin a reservoir site
which 12 potentially valuable tor.power
development l!lfiJ =~ classified and withdrawn
iil·a Pow'~r Site Claa-a:litication. Where
potential power-value is clearly subordinate·
"to 'floOd control, irrigation, or other values
and develo].D!nt would not. be Justi1'1ed tor
power alone 1 the lands •Y be vithdravn in
a Reservoir Site Reserve.on the basis ot
their value for storage regulation tor these
other '})urposes •
PQver Site Reserves affecting public
lands 1 P~er Site Reserves at'tecting I:1dian
:J-anda, and Wtater Power Designations are
revoked by the Secretary of the Interior,
the first by a Public Land Order and the
latter two by d'!partmental _orders • Power
Site Classitications are cancelled by the
Director o~ the Geological Survey.
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'1'he: · authorit1t!a providing the basis tor
withdrawal ot the public do.in ot the
United. States tor waterpower aDd storage
aitn were deaipec:l to IIIHt the requir~ta
ot a })U'ttcular atap 1D the growth ot tbe
electric paver 1Dduatr1 aa4 the expaa41Ds .
coucepta ot irriptiorl. AlJ a rilault ot tbia
DU'I'OII app:'Oilch to the pl'Oblell. ot protecting
thia portion ot our atural. resource• 6
ftl"io\18 acta were puaed 111-cotasre•• vhich
were dn1~ to ae.~cpl Sah· tbe vithd.raval.
~;.~ such. laDda, each ot vtU.ch vu a product.
r:~•the apecitic 'oeect at the tt. 1D vhich
theJ vere eaacted..
'!be .. tDllov1Dc paper 1JI a ·~ ot tbe
lava and d1recti vea which· haw been used in
the past aD4 are aov beine used to effect
the v1thdraval ot public lands tor water-.:
power and storage purposes. In this paper
an attempt baa been •de to present the ..
•tWa ot· vithdraval. in such a wnner that
the hiator)' ot l.MDd claaaiticatioD tor water.
resources ftl.WHI vill be clear to tboae vtLo
have a rnpouibil1t7 tor ad•1niatration Qt
the publJ.c l.aDda. .
DISCUSSICII
i!le act at Mai-eh 3, 1879 which created.
the Geological SurftJ &lao charged ~
Director vith the tuk ot claaa1.1'yins the
public l.anda. Hcvever, tw, 1t BD1 1 claa•i-
' ticatiODS ot lands tor water resources
values were mde until· paaaage ot the act ot
October 2, l.B88 vhich reads in pert aa .
tol..lova:
''Storase reservoirs in arid rf'lgiona •
:tnVeatip.tion. .
"For tbe purpose ot investigating the
extent to which tbe arid region ot the
United states can 1Mt redeemed by irription,
and the segregation ot the irrigable .landa
in such arid region, and tor the ae.lection
ot site• tar reservoirs and other hydraulic
works necessary tor the storage and utili-
zation o'l water tor irrigation and the
prevention ot tlooda and overtlcwa 1 * * *·
And aU the lands which may hereafter be
designated or selected by s~h United Statea
surveys tor aitea tor reservoirs, ditchea,
or canals tor irrigation purposes and aU
the landa made suaceptible or irrigation by
auch reservoirs, di tchea, or canals are trom
this time henceforth hereby reserved trom
sale as the property ot the United States,
and shall not be subject after the passage
ot this act, to entry, settlement, or
occupation until further provided by,lav."
,,
2
A nu.ber of' withdrawals vere made UDder
thia act shortly .atter 1ttt ~sseee, but
c:oaaideratile · resiatauce •oon arCHie because
large area• adJacent to the reservoir aitea
~· vithdravn for pz:oJect purposes and were
theretcre -not available tor aett,.,_,t.
'l'bne were· Otten the beat farznlenda and
thue vu DO bpl.. mthacl ot permittiDS
. tblir use·. tor tand.n&. or other purposes
peadiDC coaatructioa. ot the proapectiDS
proJect. As a result ot diaaatistaction
v1tb tbne v1tbdr~,. Congress 111 the .·
9uDdr7 Civil Appro:pl"iat101l.Act ot Ausuat 301 1890 •d.e the toll.ovins proviaion in the
Secticm 011 'foplp-apbic SUr we,.:
•'l'opofF!PhiC Surftya •
,;liar toposrapbtc •urve1• in Yarioua ·
port1ona ot tbe United states~ three
hUDdred and tventy-ti ve tho'Uaand dollar~,
cme-~ ot which aUlA shall be expended
. veat ot the o~ hundredth meridian; ·aa4 ao·
.ach ot the act'. ot October aecoa.d, e~teen
huD4recl aDd eigb.t)'-e1gllt, entitled. 'An act
•ktng appropiationa tor almdr)' c1vU ·
eX}'enaa ot tbc Go'V'erDIIIent tor· the fiscal
jar e.adf.Ds J\ma thirtieth, eighteen
huDdred aDd eigllt;y-nine, and tor other
parpo-, ' u provide• tor tbe withdrawal
ot tbe pabllc lauds trca entey, occupation
aD4 aettlement, 1.8 hereb7 repeal.ed, and all
entries made or claU. 1Ditiated 1D ·good
taith aad valid but tor said act1 . shall be
recognized and •Y be perfected in the. aame · .
.aner u it said lo:.v .bad DOt been eaacted,
except that reaervoir aitea heretofore
located or selected •hall remain segt"egated
and reaerved !'rom entry or settlement, aa
provided by said act, until otherwise
provided by iav, and reaervoir aites here-
after located or selected on public lands
ahaU in like manner be reserved trom the
date ot the location or aelection thereot."
The withdrawals under the act ot
October 2, l.B88 vere further l1mited by an •
act approved March 3, 1891 entitled. "An act
to· repeal the timber . culture lava and for
other purposes." One section or this act:
reads tn part as tollavs;
~t on reservoir sitea.
"Sec. 17. '!hat reservoir sites
located or selected and to be loca~ed and
selected under the provisions ot 'An act
m.ld.ng appropriations tor swidry civU
expenses or the Government for the fiscal
yaar ending June thirtieth, eighteen
hundred and eighty-nine, and tor other
purpoaea, ' and amendments thereto, shs.ll be
restricted to and shall contain only so mucn
land aa is actually necessary for the
construction and maintenance of reservoirs,
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excludins ao tar· u practicable lands
occupied by a~ual aettler• at the date ot
tbe location ot aaid reaerwira."
Landa vitbdravn UDder the act ot .
October 2, J.888 vhich retained 1D vithdraval
attar the adJuatmenta reaultiq tram the acta
ot Auauat 30, lB90 and March 3. J.69l.and
au'Mequent executiw Ol'dera are atUl vitb-. ·
dravD. Preaua~ it 1a still ~aible to.
vitbdrav reae:noir aitu tor ne~tion
pm;~n uader the act ~t Oe.tober 2, lB88
u aoclitiecl.'by tM acta ot Aupat 30, 1890
IIDd iKareh 3, 1891. Br:Mtwr, the-record ·a
DOt clear u to the eua:zellt .tatua ot thetle
lr,~a aDd poeaat claJ' vithd.ravala are Jllllld~ ....,.
1oonr Site ClUaiticatiODS UDder the Ol"pn1c
Act ot the Geological. Sun'eJ" aad. the Federal.
Paver Act or u Ponr Site or Reaervoir Site
Reaerfta UDder one ot tbe ac1;8 ot JuDe 25,
l9l0o
By 1909 it becue apparent that Jlll!ley ot
tbe beat hydroelectric pc;ver &itea· vere. ··
beiDg traa~~terred traa the public ~ill to
private 'iDdi viduala and corporat1ona through
tbe uae ot l.aDd •~~ipt.,. tx.utead~, and by
other w:ana. In a letter dated AprU 23,
1909~ the SecretarJ ot the Interior
1DIItructed the Director ot the Geological
SUney to inftatipte waterpower Sit• on the
public cto.iD .and to recaawad. their te.po.
rar,. ~thdraVIIl peacU.J28 legialativa action
· by tbe C~••. '1'h1a letter 1a quoted aa
tol.lDwa:
"You. v1ll please t.aediatel.y detaU
auch ~yee·or employee• .of your service
aa are available to make an i.Qvea't~Z:~~I1 ot
water-power .aites on the public dcmain, out-
aide ot national torests, which are not
included within vithdravals tor reclamztion
· purpoaea, with the viev ot securing at the
next session ot Congress legialation to
control and regulate their ditiposit1on.
"You vill please have your report with
regard to such la.ada available u early sa
poaaible in order that any necessary with:.
dravala may be made to protect &uch power
sitea pending the securing ot such proposed
leg1ala~ion aa may be recODIIDended by the
?reaident.
"All wi.thdrawal.a made tor the purpose
herein mentioned w11l be of a temporary
nature to allow the securing ot such
legislation aa will permit· ot the dis-
position ot th~ lands in question.
"The Reclamation Serv:Lce will cooperate
with you in order to secure the necessary
data."
3
By ,Jul.y 1 1 . 1910, aerrl.•/ l.S .. ailliOD acres
had been included in 7.Dpor&Z1' Power, Site
Wlthdrawala and on Ju.1.y 2, 1910, t~ese
vithdravala were confirmed and. contmued
aa Paver. Site Reaervea by Executive Orders
under m act at June 25 1 1910. · Actually
there are tva acts of JUDe 25, 1910, vhich
are pertinent to paver •1te aegreptiona.
ODe provide•: · · ·
-,.t tba Preaident _.,. at 8117 tiae •
· J.D. JWa d1-acretioa, taporar~ v~thdrav
tJ'QII •ettleaeut, ~at.toa, aale, .or .entry·
aey ot the pablic laDda ot the United· Statea,
1Dclu41Dg tbe Diatrict ot AJ.aaka, · awl
reaerve the aw tor waterpower ai.tea,
irrigation, claas1t1cation ot tbe.laixla or
otber purpoaea to be· specified in the ordera
ot vithdr•vala, and. auch vithdravala or ·
reaervationa aball reDBiD 1D torce until
re~ked by hia ·or by an act ot Coasre••."
'lbe other pravidea ;
•Sec • 13. Tbat · tbe Secretary ·of the
Interior be, and he 1a hereby, authorized
1D hia discretion, to rae.rv.e tram
location, entry, aale, all.Dtment, or other
apptopriat~oo aD)' laDda v~tbin any Indian
reaervation, val~ble tor power or reservoir
aitea, or vhich •Y be neceaalll")' tor use 1D
connection vith llD)' 1rr1p.t1on project here-
tofor-e or hereafter t.o be authorized by
C!.»agreaa • " · · · .
'Such OL'"'Ciers signed by the SecretarY ere
knovn ~ de~l orders. J·
Section 2 ot the t~st act 'provided .
that the vitbdravn landa ahould "be open to
exploration, discovery, occupation, and
purchase under the mining laws ot the
United States so tar aa the same apply to.
minerals other than coaJ., oil, gaa, 8Jld
phosphatee." 'l'h1s proviaion permitted
interior locations, such aa building-stone
quarries of little value, on valuable power
aite lands. The act of August 24, 1912,
changed thia provision to permit .exploration
cahd purchaae under ·the minin8 lava tor
lllll!talliterous mineralJs only.
The act ot June 20, 1910, vbich enabled
the people ot Nev Mexico and Arizona to pre-
pare constitutions for admission to the
Union, provided tor the withdrawal, in those
Territories, ot all public J.a:.;·, which was
considered valuable tor waterpower purpos~a.·
Such withdrawals were termed Water Power
Deoignations •
The acta ot June 9, 1916, February 26,
1~19 1 and AUgUst 28, 1937, prov.ided tor the
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claaaUicition ot. the reveated·'J.anda -..oi'· tlle
Oregon ·and·. -Calitorniil Ra1lra&d : COJt:'P8DY and··
the reeonwyed. lands ot the. CO.)S Bay Wagon· :
Road . grant 1D · 'Oregon-. and the "ritht:lrf.Nal:o±'
any of tha' ]..anda· valuable.· for vaterpov~~· · ·
lfl.lrlJO•es ;···. "lheae vi thdravala ¥ere tila'o :
kliown: aa Water ·P.oVer .Deaip.tiona • · ''file · · · · ·
laDda · tiN: inCluded in. Wate-r 'Povi!r ··
Deliigaat1oDa were· vithdravrJ. b7·.;·.he '··
Secretary ot the Inre.:.r1or UDder autharit)'
g1 wn ·bia; l>J' ·a.ae apecial-acta 9t · CQD8!'ees.
tand8 i.J:lcluded in '1later Fwv Beai;iDatioa.s · . are rePz'ded •• bavtq· tbe --atatua ... ·.
·J.Aau· m'l'Oiier Site Rea•anu.· ·· · ·
'•
, C):\ Apr11.':·2ij,_ '194tl;. tbe ~aiden~i·'b)'
E:XecutiV. Order No.:.· 9J.46, delegated ·to -the
:.se.cretary ot tlle ~tiu.-ior authority to llllke
or rewlie··Pover ·Site :aeaervea other than · .. thqae ott Indian-land• vhich the SecretarY
bad:a.Iready been gi:~:n autborit~' to vith· ·
drav tor n.terpa\ter ~1urpoaea by 1111 act ot .
Congreaa ot J'1me 25, 1910. · Executive Order
No. 9146 vu auperaeded bJ Executive Order
lfo. 9337 dated AprU. 24;·1943, which
authorized the Seeretiiil")' ·ot' th.~ IDterior to
Vi ~drav or ~retlerft la.uda ~ the public
dcmain or other ~. o-'med or. co_ntrolled •by
the United State .. to·ttie aue extelit'·thii.t'
· •itch l.imda Jld.8ht· be vitaldl'aVtl' or ·reserved· by
the Preaident and alao to •'0Cl117 or rf!VOke
·Vitbdravala ~or re:~anatiozi8 ot auc&. · L..~da,
prov1deti · thiat 'the Secre'tar7 should' haw ·
prior :spproval. ot th-e Dir~ctar ot the :
Bure~u ot the Budget aDd the Attorney
Cieneral. and the head. ot an~ depar'tment or
agency outside ot the Department o~ the
Interior hav1ng jurisdict~on over the lands.
Exec:uti ve Order Ho. 9337 ~ iJ.D turn, vu
aup;iraedt:d by Executive Order No·. 10355
dated May 26, 1952, which deleted the
required 'approval ot the Director or the
Bureau of 'the Budget and Attor-n~y General,
and which provided tor the reference of
disputes to the Director ot the ~eau of ·
the· Budget and, 1t necessary, to the · ·
Pr~sident.
'The F~al Power Aet vas originaliy
enacted as 'the Federal Water Power Act and
Bppro~-ed June 10, 1920. On Mareh ·3, '1921~
it waa amended to exclude any authority to
license water power projects 1n national
pa.r:ks or national Dlnuments • 'l'he Federal
Power Commi!us ion, originally composed ot ·the
Secretaries of Interior., War (At-my), and·
Agriculture, vas reorganized aa ~~·inde
pendent Commission under'the act approved·
June 23'; 1930. The original Federal Water
Power Act was made Part I ot the Federal
Power Act·by Title II of the Public Utility
Aet ot 1935 approved August 26, 1935• . . .
Section 24 of the Federal Power Act
provided protection against acquisition for
4
other usea · ot lands clusUied, "betq~e or ·
atter passage ot 'the act, aa· yal.uable-t,or
paver ait!!ll· This· bad the e:ttect ·9t ·• ::
blanket vi thdraval of all lands which might
at any :u.rae be 'claa111f.ied as yaluable }or
·.~tez:: power purposes.:... Th1a blanket ·· .. ; ·
all'thority made-it· poaa1~ tar the ..
Geolqgic;u Survey to· ettecti vel)'· vittidrav ...
}lOVer aite laDda b)' mere-ly claaa11')'1ng; thelil
u. auch under· the authoi-ity provided b)' ·t~
act of Mareh 3, 1879 to vhich refereuce ·baa
alr~e-Jy been made .... Pr.ior· to puaqe ot·.tbe. ·
Federal. Power Act, ·J.anda could ·be· cl.UaUied
aa-~er aitea by the Geological Survey,·
but thia had no protective· ettect unle•• · ·
they were also vithdravn· b)' · ~ Preaident:· ;
or ·ey ·th~ Secr~tary ot ·Interior tmd,r one··
ot the apecial vithdraval acta aucb aa that ·or October 2·, l.888, or ot~June 25, ·1910¥
Power Site ClasaU'icatioDB, u these .
vithdravala e.re lmwn, were originally ade
by the Director of the Geologica~.Survey and,
vhen ·approved by the SecretarY bt ~th!: . :o • •
Interior,. had tull.'. force aDd effect ·under :
· · the Federal. Paver· Act.. Departmental ·Or.aer
1fo. 2333 ot June '10, i947, autboriz~ the ·.
Director ·0!' the GeolOgical &.JrVey "Vithout
prior aeeretaria.l aPirQval.~ to classity
public domain landa aa poVe!' Illites ·~ tO
•· IIIOdUy or revoke 8uch claoaiticationa. ·"
Since t~t date, Pover Si~ Cla8aU'1cationa
have required only the aigDature ot· the
Director, Geological. Survey, to gi Vie them
full force and effect under Section 24 ot
the Federal ~er Act.
' Section 2~ of the Federal Power Act
provides tor enothex: type ot· w:lthdraval·
closely related to and frequently covering
the same areas as the withdrswals· by the·
Geo~ogical Survey. This pro:vi~es that:. . ~ .
"Any lands ot the United States
included in any propooed project under the
provisions of this Part (Part I) shall tram
the date of filing an application tor permit
or license therefor be ·reserved tram entr.y, '
location, or ?ther disposal Under tha ·lava
ot the United States until otherwise · ··
directed by the Commission or by Congress • " .
'!he lands withdrawn aa a result ot the·
tiling of an application for per.mit_or
liceruse rl!m&in vithdl;'awn, ·ev-en though the
permit or license·· is· re.wked ·or allowed to
lapse,. until such:: time. a~: the withdrawal .is
officially vacated:.· · · · '
. ' ! . .· . ' ·,.
Section 24 of the Fede~al rower Act
~made·· all. Power S1 te Reserves, Water Power
Designations 1 and subseqitent Power Site
elassifications secure against alienation
under any law"' The act of August 11, 1955
modified the lava governing power site
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vithlravala to permit aeq,utait;ion· tor·
wining purpo•e• or laDds in such vol.thdrawals
subject to tbe proviaion that·: : · · · :··
a'l1le United Statea, ita Permittee• aild
L1cenaeea ahall not be responsible or held
liable or incur ~ liabillt)' tor tbe da•ge,
cleatruction, or laea ot u7 •1zdns clam,
llill aite, 'tacU1t7 iDetallecl or erected,
1Dccae, ar other ~7 ar 1Dvest.nte
mult1q trca the actual .... ot auch lade
cr partiaaa tbareot tor paver .dewl.opllent
at ~ ts-vhere. auch paver devel.apment 1a
-.de bJ ar UDder the AuthcritJ ot the
Ullited Statu, except vbere such dulap,
dea'tnlctioa, or ~· ruulta b'oa tbe
ne&lJ.gence ot the United States, ita
Pvlaitteea aDd Liceueea."
'!be act ot Julie 25, 1910 which pro-
vided tor the eatabliahment ot Power Site
Reserfta ia •till 1D effect; however, aince
pua~ ot the Federal. Water Power Act in
l.920, power-•ite vithdrswala by the
Geological SurftJ haft, vith rev exc~ptione,
been •de throup tbe Jllftcl!Uil 'l't Power Site
Cluaiticationa.. 'Dlia ~cecJ,ure i.e Bimpler
than vi~ in Paver Site Ruerwa
becauae Power Site Clu .. Uicationa became
ettectift vhen aigMd b7 the Director ot the ·
Geological Survey vh1le Paver Site Reserves
require appcoval. by the Secretary ot the
Interior as· explail!ed srller.
I.anda vithin IDdian Reaervation.s
c:laaaitied u val.uable tor power by the
. Geological Suz:veY, 11' approftd by the
Coznheioner ot Indian Attain, are
re•ened. by the Secretary ot tbe Interior
under the pertinent act ot June 25, 1910,
df:acribed earlier. It Indian land and other
public doDBin land lie in the •ame power
site area tvo aep&rate orders ot v1tdd.rawal
are neceaaar)'.
· Prior to Aproil 24, 1942, Power Site
Rea ern! a · vere revoked by Executive Order.
On that date, the Pre•ident delegated this
authority to the Secretary ot the Interior
1!1 Executive Order No. 9146. Subsequent
reviaions ot 'to~ delegated authority have
been made aa deacri~d earlier, but the
ba•ic delegation of the ?.resident • s
authority to the Secretary is still in
force. Water Paver Designations and Power
Stte Reserves on Indian lands are revoked
by Depertmental. Order. Revocations ot
Power Sit~ Reserves or Water Power
Designations usually resul.t b'om recom-.
mendationa by the Geological Survey with
concurrence by the Federal Power Commission.
Prior to July 10, 1947, land in a
1~er Site Classification which vas found
5
to ba-.. no power valUe vms elillliDated by . a
Power· site Cancellation •iiDed by tbe
Seeretar)' ot the Interior. Departmental
Qr4er No. 2333 ot that date, as noted
earlier, delegated authority to DIIOdUy or
revoke Paver Site Class~ications to the
Director ot the Geological SUrvey sn4. at
]~resent, orders ot Power Site Cancellation
are· ai&1led by hilll ..
Tile order rewkiDg a Power Site
Ruerft or a Water Power DeaiSnation U.u&u.7 ·provides tor the reataration ot
the laDda to d1apo•it1orl· under the public
land lava. 'lbe Geologiccl SUrvey bae nc
authority to restore laDda; therefore, upon
cancellation ot a.Pover Site Clasaitication,
the Bureau ot Land Management issues a
Reatoration Ordu under authority delegated
to it by Departmental. Order .Ko • 2582 ~t
Auguat J.6, 1950, as amended, vhich restores
the lands to entry and prepare• the vay tor
their disposition .under public land lava.
Such order• are publlab.ed in the Federal.
Regiat~rr.
lfear~ .2 .6 :l'l]lton acreil ot· land had
beeD segregated 1nto Pow'er Site Reserves by
June 1920. Much ot thu land vu valuable
tor other purposes, auch u SSZ:icul.ture,
but there-va• no legal. vay tor the
Gowl"l1D!nt to dispose ot ·the land and still
retain the paver rights. Paver Site
Reserves could be modU1ftd but auch modi-
fication, while •atietactor,y tor a right-
of -way, did not anaver ·the deacd tor use
ot all the land untU such time u it would
be required tor paver develcpDent. · The
Federal. Water Pavel'· Act ot June 10, 1920, ·.
r~died this to a great exten-ts; tm-ough the
provisions ot Sec.tion 24. This section, as
lllllended in 1935, pro"' i.ae:a !=. part :
''Whenever the CODilisaion shall deter-
mine that the value or any lands ot the
United States so applied tor, or heretofore
or hereatter reserved or claaaitied as
paver sites, vill not be injured or
destroyed tor the v~aea·or power
development by location, entry, or
aelection under the public land lava, the
Secretary ot the Interior, upon notice ot
such determination, shall declare such lands
open to location, entry, or selection, tor
such purpose or purposes and under such
restrictions as the Commission may deter-
mine, subJect to and with a reservation ot
the right or the United State~ or its
permittees or licensees to enter upon,
occupy, and ~e any part or all or said
lands necessary, in the judgment of the
Commission, for the purposes of this Part,
which .right s~ll be expressly reserved in
every patent issued for such lands; and no
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clam or r'ight to compe~ation aba:lJ.,accrue
~the occupation ~ruse o~ any.ot said
lands · tor said purpc)aes • . ihe United States .
or any licenaee for any such lands hereunder
rr;ay enter thereupon tar the purpQ~e• ot tliis.
Part, upon·_pa~nt ot ~ damagea .. tq.·crope,
buildings, or .other. blpro~nta· ~au.ed
thereby._to the owner therept, or:upm ,g1v1q
a good &Dd autt1c1.ent boDd ~ the Unit~ .. ·
Statea fm.• the uae arld beuet1t ot tbe owner
to secure tbe. pa,.at ot auch a••au aa ma,-
be determibecl u4 tiDd in an acti9n brougbt
upon the bond in a court ot ccapetent Ju,ria-
dic~:ion., •i!.1d boDd to be 1D the form
preacribed ~ the cc--1aa1oa. n
·:--.: · . R~stm:at1ona W:lder Section 24 ot the
· hd~ Eol!er Act are •de by an order ot ...
the Bureau ot laDCl Mlmage:l!!nt UDder dele-
gateii •utharity· toillNi.ns a "ao inJurY~
determ:I.Dation and reeCIIIIID!ndation by the
Federal ~er eommiseion acting upon the
advice and rec0111111erldaticin ot the Geological
Sur!eY. ~ oi;her: intereated agencies through
the familiar "DA" (detera1Dat1on appli-
cation) reports.
' .
.... !lhe:.~eed for the ·Federal Power
CCmmiasion t0 mate determiDationa COD~
cern~ 'appllcationa tor en~y, location,
and patent tor. mini.Dg purpoaea .V.. elimi-
nated by the paaaage ot the act . of
A~t ~;.~955·
: : si tea which are priMrUy. valuable ~
reservoir sitea ·are withdrawn in Paver• Site
Claaa1ticat1ons 1t they 1nvolve pcver ~ any
way either at the sites or through regulation
affecting downatream .paver sites, ~e•reloped
or undeveloped. ihere are two reason.-s for
this.. First; the site 1a protected againat
alienation under any law 1t it is withdrawn
under the Federal Power Act sa n Power Site
Classification except. as a~h alienation 1a
alloved by the act of A~t ll, 1955. . ,
Second, the mechanics for making the vi th-
drawal as a .Power Site Classification signed
by the Director~ ot the Geological. Survey.
are simpler than thoae for a Reservoir Site
Reserve. HO'I!ever, 1t no power 1a 1nvolved,.
lands in reservoir aitea can be withdrawn
under the broad authority given the
President by the act of June ·25, 1910,
which provides the basis tor Power Site
Reserves as well sa Reservoir Site Reservea.
As with Power Site Reserves, the authority
to make and revoke Reservoir Site Reserves
vas delegated to the Secretary ot the
Interiar by Executive Order No. 9146 and
subsequent delegation Gr1iers. Lands in
Reservoir Site Reserves are subject to entry
under the mining laws as they apply to
metalliferous minerals but are not subJect.
to disposal under Section 24 of the Federal
Power Act •
6
...... ~ ........... ~--....c .... ,. ----·!·•••-.... , .. .._..,........,.. ·•-=--·~-.. -.... -....... -'I•• ••.JI .. -*• • ..... • ..... •••
The are!!l. withdrawn tor wat~er.
purposes, as ot June 30; 1955, total.ea ·
9,258,000 acre~ of which 2il54,~ have
been reeU)red to entry. 'nle net withdrawn
area,. at 5-ye~. int~la, ia aa·fo~a:
........
Year ezuU.DS ..
June.30 .· .
· Het area withdrawn
t9r waterpower .
(tbouaanda ot'a~rea)· ..
1910 ........ 0 ••••••. ~ ... ; ~ •• • 1,454
. 1915 ........................... 2,~228
192~ o•o••••e.-•··~~••••••••· 2,588
1925 •••••••••••••••• ~ ••• 5,247
1930 •• ~-•••••.•••••••• ~ ...... 6,,aB.
~ .
• ..
1935 • e .. e. e. e e ... ~. tf .... G • e 6, 465 ,-~.
1.~0 • eo • • • • -.. o o • • G • • c •·• • c :6,685
1945 o••~•••••••••••••••• 6,774
1950 ... ~ ••••••• •· ••••••• 0 • 6' 848
.: 1955 0· ••••••••••••••••••• ~1' ;~Q4.
'l'he pronounced increase 1l1 the with-
drawn area between 1920 and 1925 was due. to
the withdravala •de aa a reault of tiling
of applications with the, Federal ~r· .
CCIIIDiaaion for pei'iAi.t.a or· licenses. for .
paver proJects, in addit1oa ·.to the vith-
dravala. ~tiated. by the Geol.og~cal Survey~
AMifO'rA'l'El) CBROHOLOOICAL LIST OF
WA~' AND RESERVOm CLASSIFICATION LAWS,
~IVE ORDERS, ADD DEPAR1MENTAL ORDERS
' .
Act ot March 3, 1879 (20 stat. 394;
43 usc 31) '
Act.creating the Geological·survey and
the one under which Power Site .. ·
Classit'ications are .madeo
Act of October 2 1 1888 (25 Stat. 527)
Provided for the withdrawal, by the
Geological Survey, ot irrigable lands and
the sites !'or·.reaervoira 'and other~ bydraul.ic
works necessary for the storage and utili-
zation ot w~ter tor irr.igation and the
~evention ot f'lood.s and overflows·.
' -
Act ot August 30 1 1890 (26 Statu"391}
Repealed.the act of October. 2 1 1888,
exc~pt the withdrawa~ for reservoir oites
which remained. in effect and lett the 1888
act still applicable as to r~serV9ir sites.
All but actually' necessary lands to be
excluded from rer.ervoir site reserves •
•
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1'bia ia the lt'ev Mexico aDd Arizona
Eoabllng Act under which Waterpower
DeaignatiODII were •de WithdraWing all
public laDd havinS paver value iD Rev
Mexico aDd Arizoaa.
Act ot· ·June" 25 ~ 1910 {~ Stat. 847,
Chap. 421; 43 usa l4l~
AMndecl by the Act ot AUguat 24, 1912
(37 Stat. 497) and by the Act ot JuDe 10,
1920, aa amended (41. Stat •. 1075; 49 Stat.·
846; l.6 usc 818)
ProYidea far tellporal'1 vitbdravals ot
waterpower .. itea and other public purpoaea.
Power Site Reaervea and Reaervoir Site
Reaervea c1111 be •de under thia act ..
Act ot.June 25! 1910 (36 Stat. 855, 858,
859; Chap .. 4_1; 25 USC 33l-336
Fever Site Reaervu on Indian landa
are made UDder Sectiona 13 aDd. l4 . ot th1a
act.
Act ot Aumt 24, 1912 (37 stat •. 497; !3 usc l 2) .
Amends act ot June 25, 1910 to permit
exploration, cliacoveey ,. occupation and pur-
chase under m1D1Dg lava. OU and gas
righta and .homestead «Dtriea 1D force ·at
time ot vit~al. rezai.n 1li effect.
Act ot June 9, 1916 (39 Stat. 218)
Provides tor withdrawal ot revested
Oregon and Calitor:nia Railroad COmpany lands
in Oregon valuable tor waterpower purposes.
Act ot February 26, 1919 (40 Stat. !179)
Provides tor w1 thdrawal ot reconveyed
Coos Bay Wagon Road grant land• in Oregon
valuable tor waterpower purpoaea 1n JIIIUUler
provided by the act of JUne 9, l9lti.
Act ot June 10, 1920 (41 Stat. lo63t
16 USC 791-823; March4i, 1921, 41 Stat.
1353; June 23, 1930, Stat. 797;
August 26, 1935, 49 Stat. 838, 16 USC
. 79la-825r as amended r
The Federal Water Paver Act changed to
the Federal Power Act by amendment ot
August 26, 1935·
Under this act, lands included in
proposed projects are withdrawn trom all
terms ot entry effective as of the date of
the tiling o! the application !or the
project, and lands reser~d or clas,itied
' ..... "-. ..."
7
as ftluable tor· waterpower PurPoses are alae
withdrawn tram all tonaa ot entry. Ce.Dcel-
lation.a or revocatioDS ot Federal. Power
CCialliasion permits or llcenses do not cancel
~ w~t~awa.l. It the Federal Paver
C011Diesion t1Dda that land withdrawn by a
ti.lJ.ng tor a ~eral. Paver ProJect does not ·
.have-paver value, it will iaaue an order
v8cat1Dg the withdrawal.. 'l'b1s vacat1Dg
order doea not attect Reserve• or Cl.uai-
~icatioas •de bJ the Geological. SUrvey.
Sepu'atct action,· reatoration .or cancel.J.81;ic,n; ·
d~iDS on the type ot withdrava1, ia
required •
Section 24 ot this act pzoovides ·tor the
disposal. ot land withdrawn tor power pul'p:)ses
UDder this or other acta wi.th the Government
reta1Din8 the paver rights.
Act of Auau!t: g8; 1937 (50 Stst. 874) '
Provides tor the disposition of
rewated Oregon and Calitornia Railroad and
recon\.oeyed COca· BAr Wagon Road groant lands
1n Oregon UDder the acta ot June 9, 1916
(39 Stat 0 218) aDd February 26, 1919 ( 40
Stat.· 1119), respect1 vely. About 60,000
acres o~ lami 1D Oregon have been desig·
aated u valuable tor power as Waterpower
Deaignationa.
Execut1 ve Order No. 9146, AFil 24, 1942
7 F .R.. )067.)
Delegated authority to withdraw li.md to
the Secretary ot the Interior. SUperseded by ·
Executive Order No. 9337.
Departmental Order No. 1694, May 15, 1942
Revoked by Departmental Order No. 2511.
Executive order No. 9337, AFU 24, 1943
(8 F.R. 55Jl))
Delegated authority to withdraw or
reserve lands and to modity or revoke w.i th-
drawala to the Secretary o:f the Interior with
the approval ot the Director ot the Bureau .
ot the .Budget and the Attorney General and
the head ot any department or agency under
vhose jurisdiction the land was held.
Superseded by Executive Order No. 10355
(17 F.R. 4831).
Departmental Order No. 2331 2 June 5, 1947
Required that land Orders signed by the
Secretary must be cleared by all interested
Bureaus by letter to the Secretary1 through
the Director, Bureau of land Management.
11: i " .
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Autnorized the Dire~t.or ot .. th'=.. . . .·r··.
Geoiogic.&l Sun-ey to classify pUblic . ~: -·.: 1
domin ~ds ~·per sites am ~ .mcdit)r,.:: :
or reVoke a.uch .cldsificationa. . · : · ·· · . . ... . ~ ~ .. .. . . . ..
~n~ brcter ·No.· 25lli Mar~h · 3} '194? .:
Denrzntai ·Order· !fo. 2583, AUeat · J.6: · i95o
.~.R •. 5643) . :-.. ·;··;
Departmen~ 'orde;. llo. ifoa, ~~r 7,·._1252
. .'Dlue three· Depart.ntal Order•
prescribe the ~cs ot preparing Public 'land: or"'ers .in the Bureau. ot-Land . . .
'Management. · ·· ·
Executive Order. Bo. 10355 1 May 26, 1952
(~7 F .R.--!@3:1) · ·· ·· · ·--~ . ·
. ~legated autkity'~o withdraw ·or
restQj-e. larids 'at. t~e. Public dcmain to the
se"er~taey · ot the Interior-. Doe• nat require
approw~ ot the DirectOr ot the .Bw:-eau ot
the .BUdget en-· the Attorney Genttal., but doea
requ:ir'e'· a~vitl. ot. the bea'ii ot. any d~.;
ment.o~ agency.under_vhose edmfnfa~at1Ve
jurisdietion the affected laD4a migpt lie.
Provides tor re1'err1Dg diaputea to tbe ·
Director ot the Bureau ot the Budget.
" . : .. '
-~ . . .. ' . .. --.
Act ot AU§U!~ ll1 1955 (69 St~t. 681)
. ' .
... · Mining Cliat. Righta Reatoration Act . ' ot 1955·. Eltminatea need tor Federal Potter
Commission to make a determination con-
ce~ing applications tor entry, location,
and· patent '!;rr mining purposes • ·
. .
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------------··--------··-----------------------------------------------------0--------· I
4976 WATEH HESOUHCES SITE PHESERVATION ON FEDERAL LANDS !
KEY WORDS; hydraulics; hydroelectric power sites; land use; legislation; I
planning; reservoir sites; site acquisition; water resources .1
ADSTHACT: The Bureau of Heclnrnntlon, Federal Power Commission. and Geological
Survey preserve water resources sites. Through cooperative procedures of these
agencies and the land management agencies, Federal lands designated as being valuable
for water power or reservolli sites are managed to forestall undesirable encumbrances,
yet allow many lntcdm uses without destroying site values. These desig-:ated sites are
acquired for water development either through Congressional approval oi projects to
occupy them or through operation o! public !and laws. Slte preservation procedures
ae~ve to protect a limited resource 1.1nd to retaln control of advantages derived; nnd such
operations are bcncflclnl to all organizations developing water resources, whether
Fcdcrn! or not.
HEI-~EHENCE: Sax, Kenneth W., ••water Hesources Site Pre:>ervatlon ·on Federal Lands,"
Journnl of the Hydraulics Division, ASCE, Vol. 92, No. HY6, Proc. Paper 4976, Novem-
60r, UiG'i, pp. 81-tH.
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• . __ ......... -.... ~u ,., ,.,_,.,_, -·-4976 ----November, l966
Journal of the
UYDnAUL!CS DIVISION
--
Proceedings of the American Society of Civil Engineers
Water Resources Site
~ .. .
Preservation on
Federal Lands
by Kenneth W. Sgx, M. ASCE
neeaea 1n ot:uau u1 •u~ va::u);l.a.c.
2. Congressional action affecting Ule disposiUon of Federal lands.
..
Note.-Dlscusslon open until Aprll 1, 1967. To extend the closing date one'_m_o_n...,.,tlt ..... ,-a
written request must be filed with the Executive Secretary, ASCE. This paper 1• part
of the copyrighted Journal of the HydrauUc• Dlvlsion, Proceedings of the American
Society of Civil Engineers, Vol. 92, No. HY6, November, 1966. Manuscrlpt was sub-
mitted for review for possible publication on June 7, 1~66.
1 Hydraulic Engr., Conservation Dlv ., U. S. Geol. SUrvey, Dept. of the Jnterlor,
Sacramento, Calif. · ·
z Kerr, R. S., Report No. 29, Select Comm. on N~tlonal W'\ter Resourccs,87ijt QQQ-
&ress, 1st Session, 1961, p. 19.
s Kennedy, Joh!l F., Message from the President of th~ United State= Relative toou.r
Natural Resources, House Document 94, S7th Congre•s, lat Seaslon, 1961, p. 3.
• Ackerman, E. A., and Lof, G. 0. G., "Teclmology in American Water Develop-
ment, • Jolm Hopkins Press, Baltimore, Md., 1951)., pp. 471-481.
1 0lson, G. T., Monograph No.1, 111 Preserva~lon of Reservoir Sltea,• Unlv. of North
Carolina, Center of Urban and Regtona1 Studle•, Ralel&h, N.C., 1963.
GGoddard, J. E., •consideration• In Preservlnc Reservoir Site,,• Journal oft~ '
Hydraulics Dlvlslon, ASCE, Vol. e1, No, HY1, Proc. Paper 4188, January, 1965, pp. 1-1.
81
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4976 November, 1966
Journal of the
HYDRAULICS DIVISJ()N
Proceedings of the American Society of Civil Engineers
WATER RESOURCES SITE PRESERVATION ON FEDERAL LANDS
By Kenneth W. Su,1 M. ASCE
INTRODUCTION
In H!cent years, strong emphasis has been placed by the Senate Select
Committee on National Water Resources, 2 the President's conservation mes-
sage· in 1961,3 a book by Ackerman and Lof,4 and articles by Olson 5 and.
Goddard, 5 on the value of preserving major reservoir sites. ·Thus, it seems
appropriate to review Federal activities related to preservation of water de-
velopment sites on Federal land in the western states.
Congress as proprietor and the President as administrator of Federal
lands have long recognized that protecting hydroelectric power and reser-
voir sites ior anticipated use is a proper function oi government. Federal
activities in the area have evolved from implementation of certain basic phi-
losophies, policies., and objectives of water-resources development, including
the following:
1. Protection of resources to assure availability for the best use
needed in behalf of all people.
2. Congressional action t:~ecting the di_sposition of Federal lands.
when
Note.-Discusston open until April 1, 1967. To extend the closing date one month, a
written request must be filed with the Executive Secretary, ASCE. This paper is part
of the copyrighted Journal of the Hydraulics Division, Proceedings of the American
SocietY of Civil Engineers, Vol. 92, No. HY6, November, 1966, Manuscript was sub-
IT.!tted for review for possible puhlicatlon on June 7, 1966.
1 Hydraullc Engr., Conservation Dlv., U. S. Geol. Survey, Dept. of the Interior,
Sacramento, Calif.
2 Kerr, R. S., Report No. 29, Select Comm. on National Water Resources, 87th Con-
gress, lst Session, 1961, p. 19.
' Kennedy, 'John F., Message from the President of the United States Relative to our
Natural Resources, House Document 94, 87th Congress, 1st Session, 1961, p. 3.
4 Ackerman, E. A., and Lof, G. 0. G., •Tecl:mology in American Water Develop-
ment,• Jol:m Hopkins Press, Baltimore, Md., 1959, pp. 471-481.
5 Olson, G. T ., Monograph ~o. 1, •Preservation of Reservoir Sites," Univ. of North
Carolina, Center of Urban and Regional Studies, Raleigh, N. C., 1963.
• Goddard, J. E., •considerations in Preserving Reservoir Sites, • Journal of the
Hydraulics Division,ASCE, Vol. 91,No. HYl,Proo. Paper 4188, January, 1965, pp.l-8.
81
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November, 1956 ·HY6
3. Congress may t'equire that F£.deral land be developed in a manner to
avoid monopoly and bri.'lg. about a wide-spread distribution of benefits.
4. Water and related land resources development and management are es-
sential to national economic growth. ~-Surf<u!e storage in reservoirs is essential to the optimum use of water
supply. Reservoirs control periodic and seasonal fluctuations of &treamflow,
and the regulated flows can be used for domestic and industrial water sup-
ply, irrigation, generation of electric power, flood control, recreation, and
water quality control.
6. Saving the limited number of favorable water power and reservoir sites
is fundamental to planning for efficient land use.
7. Site preservation is not an end itself, but serves to enhance the attain-
ment of other objectives of water-resource development.
8. The primary purpose in preserving water development sites on Federal
land is to protect a limited reaource and to retain control of benefits derived.
This conservation of sites is beneficial to all developers, whether individuals,
private companies, public bodies, or the Federal government itself.
Water resources development is a subject that is receiving considerable
attention by government at all levels. More skilllul management of water re-
sources is necessary to meet the needs of-expanding population and economy.
The Senate Select Committee on National Water Resources (87th Congress)
has furnished an excellent survey of the problems to be solved. Whatever
methods are used to develop more water to meet increasing demands, it is
obvious that more surface reservoirs for storing water will be required. Es-
timates., indicate the need for almost doubling the amount of storage now
available by 1980 to meet demands for water use.
With the rapidly growing pressures in society for the total benefits from
the provisions of water resources development, greater regulation of nearly
all of Ame·rica's streams can be anticipated. Multiple-purpose water devel-
opment will be emphasized to provide for as many uses as possible from
each water storage project.
It is evident that with increasing development of water resources by con-
struction of storag;e facilities, there will be abundant chances for hydroelec-
tric power development. Advantage shoulrt be taken of opportunities for such
power production so that economies inherent in large-scale installations can.
be passed on to electric power users and the drain on our nonrenewable en-
ergy resources can be minimized.
As the prime unit in integrated multiple-purpose development is the stor-
age reservoir, protection of favorable sites from encumbrances by land uses
that forestall future efficient river basin development must be carefully eval-
. uated. The number of sites is physically limited, thus taking one for a limited
water use or for a nonwater use rules out essential benefits. These sites
should be developed for maximum serviceability. Steps to protect potential
sites which would occupy nonFederal lands nationwide and particularly in the
East involve difficult problems relating to purchase or zoning, and only iso-
lated attempts have been made to conserve them. No doubt this subject will
receive considerable attention 1n the future. Action with respect to favorable
'Wollman, Nathaniel, -water Supply and Demand, • Committee Print 32, Senate Se-
lect Committee on Natl. Water Resources,. 1960, Tables 1 and 2.
- ---. .
HY6 WATEfl RESOURCES PRESERVATION 83
'
sites located on Federal land 1n the West is, as indicated, a continuing acUv.-.
ity by the government, and much has been accomplished. •
Federal authority and procedure• in sUe preservation are outlined belown
followed by brief descriptions of site acquisltion, problems in protcctlne
water power and reservoJr site41 on Federal lands, and a •ummary of
acconlpllshments. ·
FEDERAL AUTHORITY . ., .
Basic.-A. great body of laws governing Federal responsibilities in water-
resource development and manage~ent has evolved, not always consistently,
but to meet the needs of the Urnes. The concepts and actlvltiea in preserva-
tion of '!'ater development sites &.l Federal land have been derived from cer-
tain iispects of these laws. In th~ Jate l "100' s, there was Utt!e need for Federal
activity. As water supply needs and problems increased, they began to exceed
the capabilities of private interests and state and local governmeQts to deal
with them, and the Federal government exercised Its responsibilities, first in
the field of navigation, and &ubsequenUy in reclamation of arid Iande, flood
control, hydroelectric power, recreation, fish and wildlife conservation and
municipal and industrial water supplies. · ' ·
Two maln lines ot authority in the operaUon of the Federal government
. m.ake provision for the preservation of water development sites on public do-
main land. These are ( 1) the inherent power of the President (Executive) to
withdraw public lands in aid of conservation and development of natural re-
sources. 1 a."ld ( 2) the unlimited power of Congress over the use of the publJc
lands entrusted to it by the P&·operty c~ause of the Constitution.•
From reference 8,
"The Supreme Court has recognized inherent power in the President
to withdraw public lands for public purposes and the act of June 25
1910, merely rrecognizes and does not clr~umscribe that power. •• '
With one exception, the two lines of authority are merged in Federal lalld
administration and vested by statute and Ji:xecutive Order with the Secretary
of the Interior, who has the responslbility for public-purpose withdrawal of
public domain and other lands oWJ}ed or controlled by the United States and
for restoring these lands to unreserved status when the need for withdrawal
has passed. The exception lies in the statutory authority granted to the
Federal Power Commission ( FPC) by the Federal Power. Act which will be
described subsequently below. Direct preservation of water development
sites is accomplished by means of public land. orders signed by the Secretary
of the Interior, or by issuance of notices of land withdrawal by the FPC. ·
Chronological Summary of Statutes.-The ·act of March 3, 1879, which cre-
ated the. Geological Survey (USGS), charged the. Director with the task of
classifymg the public lands. The first classifications of lands for water re-
sour~es values wer.e made after passage of the act of October 2, 1888, which
proVIded for the w1thdrawal of reservoir sites and lands adjacent, or near,
:37 Op. Atty. Gen. 433, (236 U.S. 459i 266 U.S. 545).
W t
Foster, B. A., Jr., fu..ru., •water Resources Law,8 Report of the Prealdent'a
a er Resourceo Polley Comm .• 1950, pp. 29-30. . · ·
...
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84 November, 1966 HY 6
which would be susceptible to irrigation. This activity was curtailed by the
act of August 30, 1890, which repealed the act o! October 2, 1888, to the ex-
tent that only actual sites of reservoirs were retained in a withdrawn status.
The act of March 3, 1891, was designed to reduce lands in withdrawal to the
minimum .required for storage purposes, and insofar as practical to exclude
lands occupied by settlers on the date of segregation of the reservoir site.
Lands that were withdrawn under the .act of October 2, 1888, and remained
segregated after the adjustments resulting from the acts of August 30, 1890,
and March 3, 1891, and subsequent executive orders, are still withdrawn if of
value for that purpose.
The Reclamation Act of June 17, 1902, which created the Reclamation Ser-
vice [later the Bureau of Reclamation ( USBR)] provides in Section 3 a means
whereby irrigation project lands are withdrawn. In certain cases, reservoir
site preservation is accomplished in conjunction with irrigation project study
many years before actual site use.
By 1909 it became apparent that many of the best hydroelectric power-
sites were being transferred from the public domain to prlvate individuals
and corporations through the use of land script, homesteads, and other means.
In a letter dated April 23, 1909, the Secretary of the Interior instructed the
Director of the USGS to investigate waterpower sites on the public ,domain
and to recommend their temporary withdrawal pending legislative action by
the Congress. The desired legislative action was achieved on June 25, 1910,
when the President signed two bills providing fo1· segregation of lands for
water resources development. By this time, nearly 1,500,000 acres liitd been
included in Temporary Power Site Withdrawals and on July 2, 1910 these
withdrawals were confirmed and continued as Power Site Reserves by Execu-
tive Orders under U1e acts of June 25, 1910. One of the two acts of June 25,
1910, which are pertinent to powersite segregations provides:
1. "That the President may at any time, in his discretion, temporar-
ily withdraw from settlement, location, sale, or entry any of the public
lands of the United States, including the District of Alaska, and reserve
the same for waterpower sites, irrigation, classUication of the lands or
other gurposes to be specilied in the orders of withdrawals, and such
withdrawals or reservations shall remain in force until revoked by him
or by an act of Congress.»
2. "Sec. 13. That the Secretary of the Interior be, and he is hereby,
authorized .in his discretion, to reserve from location, entry, sale, al-
lotment, or other appropriation any lands within any Indian reservation,
valuable for power or reservoir sites, or which may be necessary for
use in connection with any irrigation project heretofore or hereafter to
be authori~ed by Congress."
Section 2 of the iirst act provided that the withdrawn lands should "be open
to explor:1tion, discovery, occupation, and purchase under the mining laws of
thP United States so far as the same apply to minerals other than coal, oil,
gas, and phosphates." This provision permitted inferior locations, such as
building stone quarries of little value, on valuable powersite lands. The act of
August 24, 1912, changed this provision to permit exploration and purchase
under the mining laws for metallilerous minerals only.
;-...._..,. __ _
..
f
- -- --. .. . .. ..
HY 6 WATER RES0'3RC~S PRESERVATION 8~
The act of June 20, HH O, whlch enabl~d the people of Arizona and New
Mexico to prep~re constitutions for admission to lhe Union, provided 'that
lands valuable for waterpower •hould be designated by the Secre~ry of the
Interior within 5 yr after 2,pproval of the act. The Secretary, acting on the
advice of the USGS, designated considex-able areas along the streams of those
:tates as being valuilble for powersite&. TIJese classUicatlons were termed
Water Power Deuignations. •
The acts of Juue 9, 1916, February 26, 1919, and August 28, 1937, provided
for the classification of the revested lands of the Oregon and California Rail-
road Com~any, the reconveye4 lands of the Coos Bay Wagon Road grant ln
Oregon, and the designation of any of the lancls which were valuable for water-
power purposes. These wlthdrawala were also known as 41 Water Power Des-
ignations.• Lands included in Water Power Designations are regarded as
having the same status as lands in Power Site Reserves.
The Federal Power Act waa originally enacted as the Federal Water
Power Act and approved June 10, 1920. This Act and its history reflect a
purpose to encourage non-Feder~ hydroelectric power development while
safeguudtng the public interest. The FPC's licensing authority extenda to
waters under the jurisdiction of Congress and generally to public lands. On
March 3, 1921, it was amended to exclu'de any authority to license waterpower
projects in national parks or natlom~l monuments. The FPC, originally com-
t-osed of the Secretaries of the Interior, War {Army), and Agriculture, was
reorganized as an in~ependent Commission under the act approved June 23
1930. The original Federal Water Power Act was made Part I of the Federai
Power Act by Title II of the Public Utility Act of 1935 approved August 26,
1935 .. Section 24 of the Federal :Power Act provides for another type of water-
power withdrawal. This provides that: . ·
"Any lands of the United states included in any proposed project
under the provisions of Ulis fttrt (Par~ I) shall from tne date of filing
an application for permit or license therefox-e be reserved from entr,,
location, or other disposal under the laws of the United States u.ntti
otherwise directed by the Com{llission or by Congress." ·
The lands withdravm as a result of the filing of an application for permit
or license remain wUhdrawn, although the permit or license is revoked or ~~
lowed to lapse, until such time as the withdrawal is officially vacated by the
FPC. These "Power Project WUhdrawalsn have also conser;ved many valu-
able sites on Federal lands. Such withdrawals constitute the one exception,
previously noted, to the vested authority of tne Secretary of the Interior to
withdraw public land for water development.
Section 24 of the Federal flower Act specifies the procedures for acquisi-
tion or use of lands clasaUied ,as valuable for powersltes before or afte:r pas ..
sage of the act. Tl}is gave the FPC control of the conditional disposition of all
lands which might be classified as valuable for Wd.~ .. rpower purposes~ This
authority made itpossible for the Secretary of the Interior, through the USGS
to effectively protect powersite landa by merely classifying them as such un~
dgr. the auU1orlty provided by the act of March 3, 1879. Prior to passage of
the Federal Power Act, lands could be classified as powersites by the 1JSGS
but this had no protective effect unless they were also withdrawn by the P~·es~
ident or by the Secretary of ttle Interior under one of the special withdr;twal
.. ...
86 ~ '{-f:J . . November, 1966 HY 6
acts such as that of october 2,. 1888, or June 25, 1910. Power Site Classifica-
tions are made by the Director of the USGS and, when appt·oved by the Secre-
tary of the Interior, have full force and effect under the Federal Powe1• Act.
&ch classifications are now i:ssued as public land orders.
SITE PRESERVATION PROCEDURE
Certain land management agencies, such as the U. S. Forest tiervke and
Bureau of Land Management, indirectly preserve valuable water development
~ites by the nature of their control of Feder~ lands. However, direct water
.resources site preservation functions related '> Federal lands are performed
by two Interio; agencies; the USBR, and the USGR, and by one independent
agency, the FPC. Procedure by each is outlined below.
Bureatt of Reclamation. -Reclamation Withdrawals, common~y known aa
"Fins( Form" withdrawals because of the language of the enabling act, are
made pursuant to authority contained in Section 3 of the act of June 17, 1902
( 32 Stat. 388; 43 U.S. C. 416). Authority to withdraw is restricted to the Sec-
retary of the Intel'ior under Section 2 ( n) of Departmental Order No. 2765,
Amendment 5, dated December 22, 1958. Instructions state that "The Regio-
nal Director or the Alaska District Manager shall prepare a list of the unen-
tered public lancl that will be required in connection with project construction
and development. This list shall generally be based on feasibility studies; •
however, in special cases where reconnaissance studies or other in!ormation
indicate a definite need for the project and the area has a potential for devel-
opment other than water resources·, recommend~tion for withdrawal may be
made on the basis of reconnaissance or other information."10
Under these instruclions, the USBR has retained reservoir sites for later
use in addition to acquisition of lands for construction of authorized projects.
Generally, Reclamation Withdrawals relate only to contemplated develop-
ment by the USBR; however1 in a number of cases such withdrawals have
saved sites which later were used for project construction by another Feder-
al agency, a non-Federal agency, or a private organization.
Reclamation Withdrawals are reviewed every two years, and retained if
{ 1) the lands are required for construction or irrigation purposes within ex-
isting or contemplated projects; (2) the continuance of the withdrawal is re-
quired for the operation, maintenance, ~d protection of an. existing project;
or ( 3) the lands are required for potential dam or reservou sites o:r for the
protection of the watershed of potential or existing USBR projects. Other-
wise such withdrawals are revoked. Q~ders under the 1902 act usually specify the lands $(are hereby withdrawn
from all forms of appropriation under the public land laws, including the min-
ing laws." The affected lands are available for leasing under mineral leasing
regulations of 43 CFR 3103.2. Upon application, lands may, ~ certain cases,
be resto.red to entry under the mining laws for locatable mmera.ls as pro.-
vided in 43 CFR 3400.4. Rights-of-way through Reclamation Withdrawals are
granted by the Bureau of Land Managem~nt under applicable laws and! regula-
tions if the USBR believes site values can be protected. _
ao Reclamation Instructions, Part 2l4.1.2, U. S. Bur. of Reclarrlation, Dept. of the
lnterlor, Washington, D. C., 1963.
.-... --- - -
...
... . .
WATER RESOUllCJi:S ~RESERVATION 87
Federal Power Commission.-The sUe P.r~servation accomplishe4 PY th~ ·
FPC is of great value in wester-n public land states. Preserv~tion, in this t.n~
stance, depends on the flUng of ap~Ucations by non-Federal organizations for
preliminary perm1ts or licenses for waterpower developments. Upon {ll1J11,
the FPC issues a notice of land withdrawal under ~ction 24 of the Jt,ederal
Power Act ( 16 U.S. C. 818; 43 CFR 2022.0-3) for the Federal lands involved.
The notices state "under said Section 24 these lands are from the date of fll-•ng of said application, reserved from entry, location, or other disposal un-
der the laws of the United States untU otherwise directed by this Commission
or by Congress. • Filing for a projec~ 11vea no loqg-term priority to the ~p
pllcant. Many schemes of developme~t were filed but never constructed, par-
ticularly in early years of the FJ,'C'a operation; thus, a substantial number of
potential power and reservoir sites remain wlthdr~wn. As a conservation
practice, the FPC vacates previous withdrawals not actually 1,1sed for devel-
opment only when other lapd uses are indicated to have a higher value or
studies indicate that there is pegligibh! power value.
Permits, grants, and sometimes patents, may be obtained through the Bu-
reau of Land Management for other usee of lands Jn Federa• ~ower Projec~
Withdrawal Congress, the FPC and the USDI, have established reg,.l~tlons
for interim use of lands in power with4r~wal. Generally, such uses are per-
mitted if they will not seriously interfere wlth or encumber the site. Regula-
tions for mineral leasing are glvep in 43 CFR 31n3.2, and regulation• for
entries related to available minerals are coQtaine·d in 43 CFR 3530. Entries
unrelated to mineral development •re processed u~der provisions of Section
24 of the Federal Power Act stated 1n 43 Cf'R 2022. Provision has been mad,
for the Bureau of Land Management to permit a wide variety of short-terltl
uses on power withdrawals without referral of cases to the FPC.
Geological Survey.-The USGS classifies Federal lands as being valu~ble,
or eminently suitable, for power or re$ervoir sites. These classifications,
made under the authority of the Secretary of the Interior, neither commit t:Qe
Federal government to construction nor prohibit private use foJ" water re-
source development; however, they do serve to identify, protect, apd foreatal•
the encumbrance of potential sites. The USGS administers lands include4 .in
Reservoir Sitea under the act ef October 2, 1888; Power and Rel!lervolr S!te
J{eserves under the act of June 25, UlO; Water Power Designations under the
acts of June 20, !910, June 9, 1916, and Februttry 26, 1919; and Power Site
ClassHications under the act of March 3, 1879. &ch actions have conserved
for la~e:t· use a great many sites in the western public land states.
Practice in the USGS consists of initiating i>ower Site Classification for
reservoir sites if they have value for development of waterpower either at
the sites or through regulation affecting downs~ream powersites! developed
or undeveloped. However, if power develop~ent 4s not feasible in conjunc:Uon
· with storage, lands within reservoir sites are withdrawn as Reservoir $ite
Reserves under the broad au~ority given the President by the act of June 25,
1910. Power Site Classifications are not in.itlated over lands already in ftec-
lamation or Federal Power Project Withdrawal; however, P1·oject Withdraw ..
als often include land subject to earlier USBR or USGS acUe,ns, or eve"
earlier pr.;Dject filings. FPC Withd:rawals, 1n ~ sense, confirm the validity of
classification actions. The USGS ende~vore only to designate ap important
potential land use to assure p:J:"oper consideration of that value in any deci-
sions as to utilization of the subject lands. !ts classifications are based on all
...
88 /)ttJ November, 1966 HY 6
available information in the field of water resources planning and are fre-
quently initiated at the request of Federal and State agencies.
USGS classification actions are kept to a minimum consistent with the
concepts of site conservation, ·are continually reviewed fm· harmony with
changing trends in water development and competitive land 'Uses, and are re-
voked when no longer needed, or when conflicting land uses are indicated to
have a higher value in the public interest.
Neither classification as a potential powers1te, nor Federal Power. Project
WithdJ:awal, constitute •withdrawals• in the usual s~nse of the word, as the
lands may continue to be u~.:d for other noninjurious purposes with the under-
standing that power development cannot be precluded by such entry. Condi-
. tional disposats of lands unrelated to mineral development, which affect USGS
power classifications1 as Power Site Reserves, Water Power Designations,
and Power Site Classifications, come under the jurisdiction of the FPC ( 43
CFR ~022.1). Section 24 of the Federal Power Act provides that restoration
to entry for various purposes under the public land laws of lands reserved or
classified for power development may be made put·suant to a favorabl .... rteter-
mination by t~e FPC to the effect that such a restoration will not inJure pow-
er value. Regulations for locatable mlnea·als on powersite lands conform with
Public Law 359 of August 11, 1955 and are found in 4:i CFR 3530. Mineral
le'asing is permitted under regulations of 43 CFR 3103.2.
Classifications of potential reservoir .sites, as Reservoir Sites (Act of
1888), or Reservoir Site Reserves (Act of 1910}, do not come under provi-
siotls of the Federal Power Act; thus, lands in such classifications are sub-
jec.t to alienation under the mining laws for metalliferous minerals. Mineral
leasing entries are permitted under 43 CFR 3103.2 with conditions to protect
site values. Entries unr.elated to mineral development are allowed in cases
wher-e the site value can be protected.
All applications filed with the Bureau of Land Management affecting water·•
power or reservoir sites, except for short-term uses, are processed through
the USGS and the FPC so that entries in the public interest may be allowed,
yet sites may be kept free of encumbrances that m~ght impair subsequent de-
velopment. Uses of National Forest lands in power or reservoir sites, ii of a
temporary nature, or involving structures which c2.n be readily removed and
do not impair the value of the lands for these sites, may be permitted by the
Forest Service with stipulations that the use is subject to prior reservation.
Other uses are referred to FPC and the USGS for recommendations, and
some require Secretary of the Interior approval.
SITE USE
~ Designated sites are released for water development either through Con-
gressional approval of projects to occupy them or through opera~ion of public
land lawsi and their release involves only the usual procedures applicable to
other Federal land. Fede1·.al site use is first summarized, followed by non-
Federal site use.
Federal development of water resources is authorized by Congress, usu-
ally on a project basis. Consent to use Federal lands involved is inherent in
such auUwrization. However, the USDI, FPC, and USDA have opportunities to
comment and make recommendations on water resource developments using
... ----.. . ... .. . . ... . ·· . ., . .. .
HY6 WATER RESOURCES PRESERVATION
"
lands under their jurisdiction3 lncludlng those lands covered by waterpower .
or reservoir site classifications or withdrawals. The two main Federal con-
struction agencies utilizing such sites are the USBR and the Army Corps ot
Engineers. Each seeks project authorization from Congress for water re-
source developments that are normally planned as integrated multiple-purpes~
projects incorporating several re.ated ·uses with widely-spread beneflbi.
Congress, in a long sertes of act~, has encouraged state and 1oc~t pro·
grams of water development by providing funds .and Federal assistance,
Examples of such legislation include ·the SOU Conservation and Domestic All~t
ment Act of 1935, the Water Facilitlas Act of 1937, the Water Utilization Act
of 1939, the Watershed Protection and Flood Prevention Act of 1954, and the
Small Reclamation Px·ojects Act of 1956. fleads of the designated Federal
agencies having a direct· interest ln a state or }ocal program may apply for
use of Federal lands for the use or benefit of the State or political subdivision
concerned. .
When non-Federal organizations use Federal land for water development
projects, it has been a well-established national policy to retain title of lands
essential to such development. Consent to use the Federal lands may be given
by Congress ln a. special enactment that' does not require action by a Federal
administrator, or Con~ress may em)!Ower· a Federal administrator to autho-
rize the use of publlc land for the P'..:i'pose needed.
In the past, Congress has authorizec:l certain individual water development
-projects of non-Federal organizations to permit use of Federal lands. Grants
given by Congress have not followed a set· pattern, although some have PI-
valved power production and others have not. Examples of these actions in-
clude the City of San Francisco's Hetch-Hetchy Project on the Tuolumne
River, the East Bay Municipal Utility District's Project on the Mokelumne
River, and the City of Los Angeles Owans River-Mono Basin Project, all in
California; and the Salt Lake City municipal water supply project on tribu-
taries to Great Salt Lake in Utah.
Congress has authorized the FPC to license non-Federal hydroelectric
projects located on stJ:eams over which Congress has jurisdiction or which
affect public lands and· reservations of the United States. Permission to use
United States lands for non-Federal water resources projects that do not in-
dude development of waterpower may be given by Federal adlllinistrators
unde .. r authority granted by Congress in a long series of legislative actions.
Most authorizations for use of public lands are given by the Secretary of the
Interior; however, certain authorizations may be allowed by other adminis-
trators, such as for those in National Forest.s.
The earliest act of Congress dealing with federal lands for use of water
is the act of July 26, 1866. This act provided for recognition of water rights
vesting and accruing before and after that time under local customs, laws,
and decisions of the courts; and acknowledged a right-of-way for ditches and
canals. The act of March 3, 1891 grants a limited fee for rights-of-way, con-
ditioned to use for that purpose, to canal ditch companies or to districts
formed for irrigation or drainage purposes. This act was amended by the act
of March 11, 1898 to include rights-of-way for purposes subsidhry to main
purposes of irrigation. The Carey Act of August 18, 189-i maltes desert lands
available free of charge to States for l'eclamation, such grants being condi-
tioned upon actual reclamation. The act of February 15, 1901 provides for
revocable permits for rights-of-way to 50 ft on either side of the marginal
..
90 D-l (L{I; . . . . November~ ~966 HY 6
(}TABLE 1.-PROJECTE. WITH HYDROELECTRIC POWER FACILITIESa
State I Name River ~tzill.ed capeclty, Total atorage,
ln ldlowatta In acre-feet
(a} Conatnlcted
Alaska Eklutna Eklutna 30,000 160,000
Alaska Salmon Creek Salmon (C::.; 5,600 19,000 l
Arizona Parker Colorado 120,000 716,000
An:..-callr. Davia Colorado 225,000 1,818,300
Ariz.-Nev. Hoover Colorado 1,249,800 29,827,000
Arizona Glen Canyon Colorado 900,000 28,04Q,OOO
California Iron Gate Klamath 18,000 58,000 .
Callfornla Shasta Sacramento 379,000 4,396,000
California Orovllle-Wynndotte Feather 90,800 163,800
Callfornla Folsom ' American 162,000 1,000,000
Caltrornla Trl-danl Stanlalaua 81,100 295,SCO
Callfornlll Mammoth San Jo&quln 1211,400 120,000
California K'.tnga River Klnr• 2'76,300 312,000
Colorado Green Mountain Blue 21,600 154,600
Colorado Gross So. Ba..:ldor (Cr.) 8,000 42,000
Idaho American Falla Snake 27,500 1,700,000
Idaho BUss Snake 75,000 1,200
Idaho C. J. Strike Snake 82,800 250,000
~daho Anderson Ranch Boise 27,000 493,000
Idaho Brownlee Snake .360,400 1,470,000
Idaho Oxbow Snake 220,000 52,500
Idaho Cabinet Gorge Clark Fork 200,000 42,800
J:daho Alben! Falls Peod Orellle 42,600 1,155,000
Montana Canyon Ferry Mllsourl 60,000 2,051,000
Montana Hungry Horse Flathead 285,000 3,468,000
Montana Kerr Flathead 168,000 1,791,000
Montana Noxon Rapids Clark Fork 282,880 495,600
.Oregon McNary Columbia 986,000 1,350,000
Oregon Round Butte Deschutes 247,000 535,000
Oregon Pelton Descbutea 108,000 4,100
Oregon The Dalles Columbia 1,125,000 ;}30,000
Orego:a lUlls Creek Willamette 30,000 249,000
Oregon Lookout Point Wlllametto 120,000 456,000
Oregon Carmen Smith 80,000 12,000
Oregon Trail Bridge McKenzie 10,000 -
Oregon Cougar McKen%le 25,000 165,000
Oregon Detroit Sarrttam 100,000 455,000
Oregon North J:'ork Clackmas 38,400 6,000
Oregon Lemolo Umpqua 29,000 16,900
Oregon Green Springs Emigrant {Cr.) 16,000 76,500
Oregon John c. Boyle Klamath 80,000 -
Utah flyrum Blacksmith Fork 2,000 -
Utah Flaming Gorge Green 108,000 3,789,000
Washington Box Canyon Pend. Oreille 60,000 -
Washington Grand Coulee Columbia 1,974,000 9,562,000
Washington Chief Joseph Columbi!l. 1,028,800 516,200
Washington Rocky Reach Columbia 711,550 36,000
Washington Wanap.tnl Columbia 748,100 161,000
Washington Priest Rapids Columbia 788,500 44,430
Washlngto;:~ SWift Ill Lewis 204,000 755,580
Washlngtotl Baker Baker 198,400 363,000
Wyoming Boysen Wind 15,000 819,800
WyomL-tg Seminole No. P\atte 32,400 1,012,000
Wyoming Koms No. Platte 36,000 4,700 .
Totals: 54 14,419,030 100,811,910
(b) Under ConetrucUon
Cnllfornla Oroville Feather 644,00<: 3,523,000
California TrlnUy ·• Trinity 100,000 2,508,000
California McCloud-Pit McCloud " Pit 330,000 109,400
----- -
HY 6 WATER RES01J~CES PRESERVATION
Callfornla Upper American Arraerican M0,800 503,000
California Middle Fork A..-rlcan 210,300 330,000
Colorado Blue MeA GwmliOD so,ooo 140,800
Colorado J/iorrow Point GwmtiOil eo,ooo 12,000
Idaho J:,.alla Canyon SD&ke 4113,000 1,200,000
Idaho Dworab&k Clearwater 300,000 3,tU,OOO
Montana Yellowtall Blc Hom 200,000 1,375,000
Ore.-Waah. Jolm Day Columbia l,360,000 2,500,000
Orecon Green Peter SanUam 80,000 433,000
WaahlU~tGn Bouodal.-y Pead Orellle 826,500 -
Wa1hlngton Well a Columbia '1'74,000 -w .. hlngton Yo••~oc!t CowUtz 300,000 1,217,000
Totals: 15 8,268,600 18,25t.200
&Thoae projecta conatructed wlthln tile paat SO yr Ullln& Federal Janda prevtooaty
olaaalfled for cuch purJ>Oi!ea.
TABLE 2.-PROJECTS WITHOUT HYDROELECTRIC POWER fACILITIESq.
Name River
(a) Coaatnlctod
Artl.ona Painted Rock Gila
Callfornla Friant Ban Joaquin
California Pine Flat King•
CaUfornla Isabella Kern
Cal!fornla Monticello Putah (Cr.)
Colorado Taylor Parle GUilD1son
Idaho Arrowrock Bolae
Idaho Lucky Peak Bola9
Montana Tlber Marf~•
Montana Tongue· River Tonsue
New .Mexico Navajo San JUilh
N6W MeXIco Jemez Jemez
Oregon Owyhee Owyhee
Oregon Warm Sprlnga Malhour
Oreron Buelah Malbeur
Utah Woodruff Narrawa Bear
Utah East Canyon East Canyon (C:o:.}
Wyomi~ Fontanelle Green
Wyoming Keyhole Belle Fourche
Total a 19
(b) Under Con~:~tructlon
California Rollins Bear
Colorado Ruedl Frytncpan
Waah!ngton Sultan fl Sultm
Totals 3
Total atorqe,
In acre-feet'
2,491,700
520,500
l,ooo.ooo
f.\50,000
1,600,000
106,200
286,600
307,000
1,337,000
69,400
1,709,000
114,000
1,120,000
112,400
60,000
28,000
28,730
•o3,ooo
200,000
1?.,123~530
60,000
101,000
97,'700
258,700
a Those project• conatructed wlthln the paat 30 yr ualnr; Federal lands prevloualy
claaalfled for nuch purposes.
-..
. .
91
. .
1:
.. ,.... ---
92 November, 1966 HY6
limits for all purposes except irrigation and purposes subsidiary thereto.
The act of February 1, 1905 permits rights-of-way through National Forests
for dams,· reservoirs, ditches, flumes, pipellnes, tunnels, and canals for mu-
n!cipal or mining purposes. 'fhe act of March 4, 1911 grants rights-of-way to
200 ft on each side of the center line for electrical distribution lines, commu-
nication lines and other forms of commimtcation transmitting, relay, andre-
ceiving facili:les. The Federal Power Act of 1920 overrides all previous acts
relating to rights-of-way for waterpower, except those involving Indian allot-
ments, and certain national parks and national monuments. These exceptions
are still governed by the acts of 1901 and 1911.
Subsequent Congressional action rdevant to water development by non-
Federal organiza..tions includes the Recreation and Public Purposes Act of
June 14, 1926. This act grants Federal lands under certain conditions to
states, counties, municipalities, other political subdivisions, or to nonprofit
organizations, for purposes not otherwise provided for by public land laws.
Lands in withdrawn status may not be granted under this act un.J~ss the with-
drawal is first revoked.
All the above acts follow a consistent course, in that a person is not enti.;
tled to an easement over any public land for a reservoir or right-of-way, or
both, for related purposes used in connection with water rights, until he has
first acquired a watex-right.
The three agencies active in preserving water resources sites on Federal
land have varying responsibilities regarding project construction on these
sites. The two Interior agencies, the USBR and the USGS, make recommenda-
tions to the Secretary of the Interior regarding project suitability and use of
previously designated site lands; and the Bureau of Reclamation exercises
control if it has been authorized to construct the project. The FPC has au-
thority, through its licensing power, to select for development those non-
Federal hydroelectric projects which in their judgment will be:
"best adapted to a comprehensive plan for improving or developing
a waterway or waterways for use or benefits of interstate or foreign
commerce, for the improvement and utilization of waterpower devel-
opment, and for other beneficial public usest including recreational
purposes/' 11
PROBLEMS IN SITE PRESERVATION
The problems encountered in the preservation of desirable waterpower
and reservoir sites on Federal land are varied and numerous. They evolve
from the following !~cts:
Site preservation is 4 concept that deals with anticipated rather than im-
mediate needs, and with general ideas and policies rather than with specific
plans or designs.
Site preservation of Federal lands involves the idea that the final use of
the lands affected need not be decided now as this is not an irrevocable ac-
tion, but rather a declaration-a designation, a tagging-of one potentially
prime land use to be carefully consirtered in any decisions as to the final best
use of the lands. In the process of .giving clearance to proposed site preser-
u Sec. lO(a), 41 stat. 1063, 1068, as amended, 16 U.S.C .. 803(a).
.. -•; ····--.... ____ . --. .--~~ _,.,-------~ ------.. . . . ....
_. ... . ..
HY6 WATER RESOURCES PRESERVATION
vatlon actions, land management ag~ncles may confuse ttle lntentiop of hold-.
ing sites for future use with withdrawal for immedi!lte construction.
Section 24 of the Federal Power Act has ser~;edwell to protectpower•itesp
yet provide a means for allowing nonlnjurious interim uses. A difficulty is
that when sites in power withdrawal or classUication have passe4 to paten~
under provisions of Section 24, there is no assigned right of recovery {Gir
reservoir use unassociated with production oi power as there ts for power-
sites. A parall~l method for protectL'lg such reservoir~ should be provided.
F.orestalling the encumbrance of attractive power or storage sites en
Federal lan"s is often made difficult because the lands involved ot.re also
valuable as transportation or communication corridors, as recreation area11,
or as sites for urban or commercial development, or for agr!cultural "-ctivt-
tles. The "profit• or value of wr.ter development oftep is one of socloeco-
nomic benefit measured by its indirect effects on the economy or socJety, ~d
thus is extremely difficult to ev~uate.
Although a great many major reservoir sites on Federal land have bee!l
recognized and protected, the study of secondary sites is not as well ad-
vanced. Justifying site preserv!ltion for smaller sites may not be an easy
task.
ACCOMPLISHMENTS
Despite the many problems involved in Federal site preservation acUvt-
ties1 the fact remains that many favorable waterpower and reservoir site&
have been identified and successfully protected from encumbrances for sub-
sequent use. Since 1910, cases where Ute United States has lost control of de-
sirable sites are scarce. Only a meager number of large water projects
affecting Federal lands has been constructed which did not use lands included
in prior site classifications or withdrawals.
Table 1 lists a number of watex; development projects having hydroelectric
power facilities constructed in the past 30 yr, or under construction, which
use Federal lands previously classified for these purposes. Table 2 Ust .. a
number of water development projects without power facilities constructed 1n
the same period, or under constru~Uon, which use Federal lands previously
classified for such purposes.
CONCLUSIONS
In the fall of 1965, there were about 16,0001 000 acres of Federal land 1n
powersite withdrawals or classifications, of which 2,200,000 are in Power
Site Reserves, 500,000 are in Water Power DesignaUons, 11,800,000 in Power
Site Classifications (of which 9,000,000 acres covrer one Alaskan site), and
1,500,000 acres in Federal Power Projects. An esUmatedadditional1,300,000
acres in Project Withdrawal duplicate earlier USGS actions. About 130,000
acres of other Federal lands are within Reservoir. Site Reserves. The num-
ber of individual sites protected is difficult to.state with any degree of accu-
racy as this would entail a determination of exact plan of development 1n the
western basins affected.
Fed~ral activities relating to water develor1ment site preservation are
. modest in scope and size. The total personnel involved full time is less thaq
11!!11 -- -- -
94 November, 1966 HY6
50 employees. Examples can be cited showing that many years expenditures
have been matched by the savings at one reservoir site on the basis of costs
of private land acquired for project purposes. However, the avoidance of the
necessity of purchasing lands is incidental to the true purpose of site preser-
vation, which is to protect a limited resource av.d to retain control of benefits
derived from the government in thu public interest.
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POWER PLANNING COMMITTEE,
PACIFIC NORTl-IWEST RIVER BASINS
COMMISSION
POWER PLANNING COMMITTEE
~· ~ ..
PACIFIC NORTHWEST RIVER BASINS COMMISSION
Nute .--
Chester E. ~hler, Chairman
Verl G .. King, Vice-Chairman
Zane R. Harper, Secretary
Paul Mann
Eugene F • Pike
Charles E. Allen
Alton E. Alspaugh
.. Tack. Madison
H. Maurice Ahlquist
Fred D. Hahn
Daniel L. Simmons
Joel F.. Adamson
William N. Hale
Mark L. Wright
Norman H. Moore
M. J. Martz
David tJ. Lewis
Robert W. Zeller
Arvid Ellson
Loyd L. Young
R. K. I.ougaker
~-;.:ancis !,. Nelson
Gordon N. Boyer
Members
Agency
Bonneville Power Administration
State of Idaho
Bonneville Power Administration
·State of Idaho
State of Mo!ltana {Missoula Elec Coop).
State of Oregon
State of Oregon (PP&L Co)
State of Oregon (Tillamook County PUD)
State c£ Washington
State or Washington
State of Wyoming
Bonneville Power Administration
Bureau of Mines
Bureau of Mines
Bureau of Reclamation
Bureau of Reclamation
Corps of E~gineers
Federal Water Quality Administration
Forest Service
Geological Survey
Public Health Service
Public Health Service
Federal Power Commission
Technical Staff
Harold R. Br·~sh
Zane R. Harper
Richard L. Mittelstadt
Bureau of Reclamation
Bonneville Power Administration
Corpa of Engipeers
A SYMPOSIUM ON
WITHDRAWAL OF PUBLIC LANDS
FOR
WATER RESOURCE PROJECTS
Pot-IER PLANNING COMMITTEE
PACIFIC NORTHWEST RIVER BASINS COMMISSION
MARCH 3, 1970
.
WITHDRAWAL OF PUBLIC LANDS FOR
WATER RESOURCE PROJECTS
FOREWORD --·
By Arvid c. Ellson, Panel Moderator, Forest Service
On the afternoQn of March 3, 1970, the Power Planning Committee,
Pacific Northwest River Basins Commission, and interested guests
heard a panel discussion on handling, processing, and effects of
various public land withdrawals for water project purposes.
Several members of the committee and of the panel itself expressed
considerable interest in assembling the speakers' notes and papers
for future reference. Since this was the first such inter-agency
discussion of public land withdrawal in the Pacific Northwest River
Basins Commission, al~ the participants agreed to submit their
papers for "t;his booklet.
Members of the panel were:
Jesse L. Colbert
Norman H. Moore
Joseph 0. Sondeno
John H. Minger
Virgil 0. Seiser
John H.. Brillhart
· . Arvid C. Ellson
Geological Survey
Bureau of Reclamation
Federal Power Commission
Corps of Engineers
Bureau c..f Land Management
Forest Service
Forest Service
Portland
Boise
San Francisco
Portland
Portland
Portland
Portland
In addition, Kenneth W. Sax, U.S. Geological Survey, Sacramento,
agreed to summarize his remarks, made during ~he discussion, to be
included in this packet.
In reviewing this symposium, pl~ase keep :n mind that this was an
informal panel discussion and the papers do not necessarily reflect
the policies of the panel members' respective agencies. At the same
time, the imp~essive amount of experience of the members in the
public land wi thdrawctls makes the papers v·ery useful in understanding
the subject.
WATER RESOURCES SITE PRESERVATION
Remarks by Jesse L •. Colbert,
Acting Regional Hydraulic Engineer,
Geological_Sprygy ___ _
INrR.ODUcriON
From 1879-1934, the Geological Survey was the principal lan~ classi-
fier. Our role.then as now was to provide for future needs. Along
the way certain action agencies were established which at first used
personnel who had been doing related work in the Geological Survey:
the Bureau of Reclamation and Forest Se~vice in 1905; the Park Service
in 1916; the Federal Power Commission in 1920; and the Grazing Service
in 1934.
After the General Land Office and Grazing Service were merged, there re-
mained to the Geologic~l Survey only the classification of mineral
lands and water resource sites. Under the Taylor Grazing Act the
withdrawal of public lands from entzy until classified finally accomp-
lished effectively what Powell had tried to do unsuccessfully in the
Act of 1888.
Congress as proprietor and the President as administrator of Federal.
land have long recognized that protecting hydroelectric power and
reservoir sites for anticipated use is a proper function of government.
Federal act~vities in the area have evolved from t~e use of certain
basic philosophies, policies, and objectives of water resource develop-
ment, among which are:
1. Protection of resources to assure ~vailability for the best
use when needed in behalf of all people.
2. Congressional actio~s affecting the disposition of Federal
Lands.
3. C:ongressional requirements that Federal land be developed in
a manner t;o avoid monopoly and bring about a wide-spread distribution
of benefits.
4. Water and related land resourc~s development and management
are essential to national economic growth.
5. Surface storage iu reservoirs is essential to the optimum use
of available water. Reservoirs control fluctuations of streamflow,
and the regulated flows can be used for domestic and industrial water
supply, irrigation, generation of electric power, flood control, rec-
reation, and water quality control.
6. Saving the limited number of favorable water power and res-
ervoir sites is fundamental to planning for efficient land use.
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7. The primary purpose _in preserving wate~ developme~t sites on
Federal land is to protect a·limited resource and to retain control of
benef.its derivede This conservation of sites is ben.eficial to all
developers, whether indi"'Tiduals, private companies, public bodies, or
the -Fe.deral -government itself; --· · ·
Water resource development is a subject that is rece1v1ng considerable
attention by government. and others at ali levels. Mare skillful manage-
ment of water resources ~s·necessary to meet the needs of exp~nding
population and economy. The Water Resources Council has furnished an
excellent survey of the problema to be solved in its 1968 report, "The
Nation's Water Resources." Whatever methods are used to develop more
water to meet increasing demands, it is obvious that more surface reser-
voirs for storing water will be required. Estimates indicate the need
for more than double the amount of storage now available by 1980 to
meet demands for water.
With the.rapidly growing pressures in society to reaiize· the total
benefits.of water resources development, greater regulation of nearly
all of America's streams can be anticipate~.· Multiple-purpose water
development will be emphasized to provide for as many uses as possible
from each water storage proje~t.
It is evident that with increasing development of water.resources by
constructj.on of storage fac1,lities, there will be abundant chances
for hydroelectric power development. ·Advantage should be taken of
opportunities for such power produc~ion.so that economies inherent
in large-scale installations can bejpassed·on to electric power users
and the drain on our nonreneWable energy i:esources can be minimized ..
As the prime unit in integrated multiple-purpGse development is the
storage reservoir, protection of favorable sites from ~ncumbrances by
la~~ uses that forestall future efficient river basin development must
be carefully evaluated. The number of sites is physically limited,
thus taking one for a limited water use or for a nonwater use rules
out· essential benefits. Ihese sites should be developed for ma~imum
serviceability. Steps to protect potential sites which would occupy
non~Federal lands nation-wide and particu~arly in the East involve
difficult problems relating to purchase or zoning, and only isolat~d
attempts have been made to conserve them. No doubt this subject will
receive considerable attention in the future.. Action with re$pect to
favorable sites located on Federal land in the West·is, as indicated,
a continuing activity by the gover~~ent, and much has been accomplished.
FEDERAL AUTHORITY
There are two main lines of authority in the operation of the l t' . ·~al
government which provide for the preservation of water developro•·, ··
sites on public domain land. These are the inherent powers of the'
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President to ""l.thdraw public lands. and the unlimited powe~ of C'ongres_s
under the Property clause. of the Constitution. Wi~h .one.ex~eP.tion ,~qe
two lines of authority are merged and vested by. Statute and'Executive
Order wit_h the Secretary of the Interior who has _the responsibility for
public p·urpose withdrawal of pub!"i.c domain and other lands -owned or ·
controlled by the United States, and for restoring these lands to un-
reserved status when the need for w·ithdrawal haD passed~. The exception
lies in the statutory ~uthority granted to the Federal Power Commission
by the Federal Power Act'" Direct p~eservation of wate-r development
sites is accomplished by means of public land orde~3 signed by the·
Secretary of the'Interior or by issuance of.noti~es of lanQ withdrewal
\'ly t;:he Federal" Power Commission.
S~ PRESERVATION PROCEDURE
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Certain land management agencies, such as the U.S. Forest Service and
Bureau of Land Management, indirectly preserve valuable water ~evelop
ment sites by the nature of their control of Federal lands. However,
direct water resources site ·preservation functions relatecl to Federal
lands are: performed·by two Interior agenc1es (the Bureau of Reclamation
and the Geo.logical Su_ney)· and by one fndepe-ndent agency (the Federal
Power Coami.ssi_on). · · · '. ·
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As used in the Branch of Waterpower Classification, Geoiog·icai S~rvey.
classifications for·wat~r ·storaga·and waterpower purposes designate
Federal lands as being valuable or eminently suitable for power or
reservoir s·ites_ •. These cla~sifications neither commit the g·overnment
to constructi:_on nor prohibit p.r_iv~te use for water reso:urce develt?p-
ment; however, they do serve to id~~ntify, protect, and forestall the
encumbrance of potential sites. Geological Survey classific~tions
include rese~voir sites under the Act of 1888; powersite reserves and
reservoir site reserves under the Act of 1910~ waterpower designations
under the Acts of 1910, 1916, and 1919; 'and powersite classifications
under the Orga~ic Act of 1879 which created the Geologi~al Survey.
Practice in the Geological Survey consists of initiating Powersite
Classification for reserVoir sites if ~hey have value for development
of waterpower either _at the sites or through regulation affec~ing
downstream powersites, developed or undeveloped. It need not be
proven at this point in time that use for water storage or hydro-
electric power development ~s the best use. However, if power 4evelop-
ment is not feasible in conjunction with storage, lands within reser-
voir sites are withdrawn as Reservoir Site Reserves under the broad
authority given the President by the Act of June 25, 1910. Powersite
Classifications are not initiated over lands already in Reclamation
or Federal Power Project Withdrawal; howeve~, Project Withdrawals often
include land subject to earlier Bureau of Reclamation or Geological
Survey actions, or even earlier project filings. Federal Power
C0mmission withdrawals, in a sense, confirm the validity of classi-
f~cation actions. The .Geological Survey endeavors only to designate
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an important potential land use to assure proper consideration of that
value in any decisions as to utilization of the subject lands. lt3
classifications are based on all available information in the field
of water resources planning and are frequently initiate.d at. the re-
quest of Federal and State agencies. For the purpos.es of discussion
·in this.group ·powersites mean lands in"reservQir.sites. .
Geological Survey classification actions are ~ept to a minimum con-
sistent with the concepts of site conservation, are continually
reviewed for harmony with changing trends in water development and
competitive land uses, and are revoked when no longer needed, or when
conflicting land uses are indica· ~d to h.'!ve. a higher value in the
public interest.
Neither classification as a potenL.al powersite, nor Federal: Power
•Project Withdrawal, constitute "withdrawals" in the usual sense of the
word, as the lands may continue to be used for other noninjurious pur-
poses with the understanding that power development cannot be precluded
by such entry. Conditional disposals of lands unrelated to.mineral
development, which affect Geological Survey power classifications~
as Powe~site Reserves, Waterpower Designations, and Powersite Classi-
fications, come under the jurisdiction of the Federal Power Commission
(43 CFR 2022.1). Section 24 of the·Federal Power Act provides that
restoration to entry for various purposes under the public land laws
of lands reserved or classified for power development may be made
pursuant to a favorable determination by the Federal Power Commission
to the effect that such a restoration wi.ll not injure power value.
Regulations for locatable minerals on powersite lands conform with
' Public Law 359 of August 11, 1'955, and ara found in the Code of F~deral
Regulations (43 CFR 3530). Mineral leasing is permitted under other
regulations (43 CFR 3103.2).
Glassifications of potential reservoir sites, as Reservoir Sites
(Act of 1888), or Reservoir Site Reserves (Act of 1910), do not come
under provisions of the Federal Power Act; thus, lands in such class-
ifications are subject to alienation under the ~ining laws for metal-
liferous minerals. Mineral leasing entries are permitted under 43
CFR 3103.2 with conditions to protect site values. Ent~ies unrelated
to mineral development are allow~d in cases where the site value can
be protected.
All applications filed with the Bureau of Land Management affecting
wa~erpower or reservoir sites, except for short-term uses, are processed
through the Geological Survey and the Federal Power Conunission so that
entries in the public interest may be allowed, yet sites may be kept
free of encumbrances that might impair subsequent development. Uses
of National Forest lands in power ok reservoir sites, if of a tempo-
rary nature, or involving structures which can be readily removed and
do not impai~ the value at the lands for these sites, may be permitted
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by the Forest Se~~ice with stipulations that the use·is subject to
prior reserv~tion. Other uses are referred to the Federal Power
Co~ission and the Geological Survey for recommendations, and some
. ·-require-S"l!eretary· of the Inter-ior appro"\lal.._. -·-_ .. .. -·
Examples can be cited showing that many years' expenditures for the
classification program have been matched by savings at just one res~
ervoir site when the costs of acquiring private lands for project
purposes are considered. However, the cost factor is incidental to
the true purpose of site. preservation which is to protect a limited
~esource and benefit the public interest.
SITE USE
Designated sites are released for water development either through
Congressional approval of projects to occupy them or th~ough operation
of public land laws; and their release involves only th~ usual p~o
cedur~s applicable to other Ft~deral land.
ACREAGE CLASSIFIED OR WITHDRAWN
In December, 1969, there were about 15,800,000 acres of Federal land
in powersite withdrawals or classifications, of which 2,100,000 are
in Powersite Reserves, 500,000 are in Waterpower Designations, 11,700,000
in Powersite Classifications (of which 9,000,000 acres cove.r o~e Alaskan
site~, and 1,400,000 acres in Federal Power Projects. An estimated
additional 1,300,000 acres in Project Withdrawal duplicate earlier
Geological Survey actions. About 128,000 acres of other Federal lands
are within Reservoir Site Rese~vese
Many favorable wate~power and reservoir sites have been identified and
successfully protected from encumbrances for subsequent use. Since
1910, cases where the United States has lost control of desirable
sites a~e scarce~ Only a meager number of large water projects affect-
ing Federal lands has been constructed which did not use lands included
in prior site classifications or withdr.:aw!;ils. The number of individual
sites protected is difficult to state with accuracy due to the necessary
choice between alternative sites and overlapping.
Hydroelectric sites which ut~e Federal lands previously ~lassified for
such purposes include such well-known sites as Hoover, Glen Canyon,
Shasta, American Falls, Brownlee, Hungry Horse, Round Butte, Pelton,
The Dalles, Lookout Point, and Cougar. Other sites which do not have
power facilities include Arrowrock, Lucky Peak, Owyhee, and Warm Springs.
In Alaska over a 20-year period the Branch of Waterpower Classification
has studied 274 potential waterpower sites, mapped 61, and abtained
geologic reports on 47 of them. Geological Survey withdrawals have
been rr~de for 80 sites and 27 are under Federal Power Project
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Withdrawals. Two Qf the mapped sites have been developed, tw~ are
under construction, and at least four more are under actiye consid-
e~ation by. the Corps of Engineers ~nd Bureau of Reclamation.
Two facts stand out in relation t~ preservation of wate~ deveiopment
sites: (1) such sites are finite in number, fixed in position,
in~reasingly scarce, and irreplaceable;. and (2) .in a ·rapidly changing
society, in which the specific needs of the future are impossible to
forecast and where t;echnology provides many alternatives, a primary
tenet of pl~p~ing shauld be tp maintain flexibility for the future--
site classification is one step toward this goal ..
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RECLAMATION WITHDRAWALS
Remarks by Norman H. Moore-Assistant Regional'Director,
Bureau·of Reclamation
-~ Before the Power Planning Committee • ·Portland, Oregon-·
Mar_ch 3, 1970
To establish the scope of Reclamation's withdrawals in the Pacific
Northwest and thus its general interest in the overall subject, the
following statistics are presented. There are approximately 753,200
acres of public land presently under Reclamation withdrawal within
the boundaries of Region ~ which is, in general, the Columbia River
drainage~ ,The areas withdrawn in the various states within the Region
are as follows:
Idaho = 445,700 acres
Oregon = 103,300 acres
Washington· = 124,.500 acres
Montana = 54,700 acres
Wyoming -25,000 acres
Approximately ZOO,OOO acres of the above are located within or im-
mediately adjacent to existing ,reservoirs eo
Withdrawals on unentered public land for< reclamation purposes are
made under the authority contained in Section 3 of the Reclamation
Act of June 17, 1902 (32 Stat. 388).
Reclamation's request for withdrawal of public lands originates from
its projects' requirements, that is·, for project construction, operation,
and maintenance, protection of constructed works, settlement purposes,
and material sites such as borrow pits. In addition, land can be with-
drawn for recreation and fish and wi~dlife purposes.
Recommendation for withdrawal is usually based on feasibility studies.
The level of these studies is of such a degree that the planning report
prepared in accordance with them is ultimately presented to the Congress
for its consideration for authorization of the project. However, there
are some cases whera reconnaissance level studies are utilized for
withdrawal purposesQ In this. latter case, generally the reconnaissance
information indicates there is little do!)bt of the justification of the
project, there is a definite need for the project, and the area has a
potential for development other than water resources... Also there are
times when Reclamation withdraws additionally required land on already
authorized or constructed projects.
When withdrawing public lands for settlement purposes, all available
public lands within the exterior boundaries of the area to be devel-
oped a~e withdrawn. By settlement purposes we mean here that the
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p~blic land will be homesteaded as part of our reclamation development.
Thus, the land is then available for the establishment of farm units,
right-of-way for irrigat;on facilities, and other purposes· such as bor-
row areas, operation and maintenance, etc.
-·when making -withdrawals· for .reservoir sites lands are withdrawn to
provide a minimum of 300•foot horizontal distance from the high water
line of .the proposed reservoir. The land is withdrawn by legal sub-
divisions and thus the withdrawn area will, ·in most cases, ext~nd
bac~ a bit more than the 300-foot minimum. At times, additional lands
are also withdrawn to block out areas to eliminate administrative
problems.
While lands can be withdrawn to provide rights-of-way for canals, pipe-
lines, transmission lines, etc., this generally requires the acquisition
of considerably more area than is actually utilized by these facilities.
The Bureau of Reclamation therefore would prefer not to withdraw land
for this type of right-of-way but to reserve easements across the public
lands. these easements can generally be reserved to the United States
under the Act of December 5$ 1924 (43 Stat. 672).
In general, Reclamation's request for withdrawal or!ginates at one of
its regional planning offices. We have three of these off~ces in the
Pacific Northwest. The first is the Lower Columbia Development Office,
located at Salem, Oregon, the second is the Upper Columbia Development
Office, located at Spokane, Washington, and the third, tne Snake River
Dev~lopment Office, located at.Boise, Idaho. After one of these
planning offices has provided the list of needed lands and reasons for
withdrawal, the Regional Directo~ of the Bureau of Reclamation requests
approval from the Commissioner of the Bureau of Reclamation and th~
Assistant Secretary for Water and Power to file an application for
withdrawal of such lands for the reasons stated. Upon receipt of
such approval, the application for withdrawal is filed with the appro-
priate State office of the Bureau of Land Management. (BLM). This applica-
tion,. although not a specified form, must contain certain information,
such as name and address of a~plicant, legal descriptions of the lands
desired, purpose of the withdrawal, what effect the withdrawal will
have on present operation of the public lands in question, estimated
period of withdrawal, any water rights that may be involved, and total
acres to be included in the withdrawal. If the area to be withdrawn
is more than 5,000 acres, an adequate map must also be furnished with
the application.
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Subsequent to the filing with BLM, the Bureau of Reclamation receives
a copy of the notice of proposed withdrawal, prepared for publication
by BLM. Such notice is published in the Federal Register. If an ob-
jection is filed to the Bureau of Reclamation proposed withdrawal,
Reclamation is advised of the nature of the objection and generally
negotiates with the objector, to determine whether or not any
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adjustments would be appropriate. BLM is then advised of the results
of the negotiation and of any changes to be made in the withdrawal
application by the Bureau of Reclamation. If no further action or
-correspondence. is. required,. BLM prep_a_~~~-an approp-ciate wi thdrawa~
order. The land becomes W·i thdrawn when the withdrawal order is
published in the Federal Register.
It is the policy of.the Bureau of Reclamation to continually review all
lands withdrawn to determine if the withdrawal is still needed within
the context of the overall Reclamation program. If such lands are not
needed the BLM is requested to take the· necessary action to release
them from Reclamation withdrawal. It is also the general policy of
Reclamation to turn over to other land operating agencies,lands which
are not directly required for the operation of the project. For
instance; withdrawn National forest lands that are not required for
actual operating needs are turned over to the Forest SerVice to administer
for recreation and general forest purposes. Whei, Pubii.c Domain lands
are involved they are turned over to the Bureau of Land Management for
grazing administration in accordance with existing agreements with that
agency.
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A .check is made to see that area is on U. S. lands •.
An extensive research is made of the withdrawn lands
withdrawals overlap) •.
(scma
A tabulation is then made of lands. withdrawno T.his tabulali'on
·of lands withdrawn is. sent to:
(a) Geological Survey.
(b) Bureau of I.and Management.
(c). Forest Service.
(d) Published in the Federal Register.
The need for the FPC to make· determinations concerning applications
for entry, location, and patent fo.r mini:ng purposes was eliminated by
the passage of the A.ct of. August 11, 1955 (the Mining Claims Restora-
tion Act).
This law -is· subject: to·t:he prov1.s1.ons that "the United States, its
Permittees and Licensees·, sball nat be responsible· or held liable or
incur any liabil:ity for the damage~, des_truction, or loss of any mining
claim, mill s:i;te, facili.ty installed or erected from use of. such lands
for power development .. "
This wa~ ·fur·ther: clarified by the "Memorandum of Understandi:ng'J between
the FPC and the Department of Interior (July 20, 1966). This memorandum,
among other things, sets out p~ocedures for other uses of the withdrawnj
lands. · ;
Grazing privileges may be allowed by the BLM without refsrence to FPC
on lands within powersites which are not within a power project, in
accordance with the Commission's determination of Febraary 16, 1~37,
which established grazing districts, 3raz~ng permits, etc.
"
The .BLM may issue, with·oui: refe~ence to FPC, o.ther nonmineral leases,
licenses,: or permits c.overtng powersites which are not included within '
a power project, in accordance with the Conunission's letter of September
29, 1950. (Spe!cial permits for use of small tra.cts, with provision
that U. S. and licensee are e·xempt).
Any grazing privileges or apy other lease, license, or permit must in-
clude the applicant's agreement.
The BLM shall refer ~11 mineral leases, licenses or permits to the
·FPC for its concurrence and recommendations for special stipulations,
if any. All leases, licenses or permits shall contain the "powersite
stipulation'' in accordance with the FPC letter of April 3, 1957. This
lette·r give.s the conditions for use of lands.
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Memorandums also give the BLM authority to sell or make other disposal
of any timber, other forest vegetation, minerals or other materials
from powersite lands so long as the lands involved are not l!Jithin a
power project.
In zeference to Ri.ghts-of-Way, the memorandum states that BLM may
restore lands classified as Transmission Line Powersite Reserves,
subject to Section 24 without reference to the FPC for determination.
The memorandum goes on to discuss the Rights-of-W~y.
Section 25 of Reg~lations under the Federal Power A~t gives the pro-
cedures for the vacation of FPC po~?,r withdrawals made under Section 24
~£ the Fed2ral Powe~ Act.
An 3pplication for a determination permitting restoration to entry of
the p.ower wit!ldrawal may be ·filed directly with the Commission at its
offi=es in ~Bshington, p.c., o~ its regional offices, or at an office
of the Bureau of Land Managewent.
In processing applications <:or va.:ation pf withdrawal, the CommissiQn
reviews the pow'!r potential~ of the powersite and if it finds that the
site no longer serves a ~seful purpose for power, an order vacatin~
th~ power withdrawal i~ issued and published in the Federal Register.
Section 25 of the Reg~1 "It ions also r ._·ovides for hearings in the deter-
mi~ation of vacation of FPC power withdrawals. HQwever, as far as
can be determined, no hearings have been held in recent years.
It is probable that a hearing would be held if an appeal was made to
the Commission's determination of power withdrawal vacation.
Additional proceci~:r:e for restoration or vacation of power withdrawals
is given in the Memorandum of Understanding.
_./ \11 petitions for restoration or vacation of power withdrawals under
i,.ection 24 o:f the FPC Act shall be directed to the BLM. BLM will make
~ determination as to whether land disposals including exchanges and
other transfers sou~ht in petitions are conEistent with proper land use.
Where it is not consistent, the BtM will reject the petition without
referral to other agencies. All ether petitions, together with the
L~:: findings, will be referred to the FPC~ through the GS, for a
d\etermination pursuant to Section 24; the G,S shall make such recommen-
drttions or comment RS it deems appropriate.
A recent example of a rest~ .::~tion of a ~"PC power withdr3wal was the
t~equest by Boise Cascade ±·:.:>r the use of certain lands in the Tuolumne
River Basin (California) be(..w~~:.:..·, the Nev.Y Don Pedro Researvoir and
Yosemite National Park. This withdrawal w&~ the result of plan devised
in the 1920's by the Turlock Irrigation District. In 1931, the FPC
issued a Preliminary Permit to the Turlock lr~igation District for the
proposed hydroelectric power project.
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After further determination, the irrigation district decided that the
proj~ct would not be economical and withdrew its ~pp!i~ation for license
in 1934~ However, the lands of the proposed.project remained withdrawn.
Boise Cas~ade proposed that they develop a recreation reservoir in this
site and. requested that the withdrawal be vacated. ·After reviewing the
area for possible power develop~ent, the FPC in February of this year
issued an order vacating the power withdrawal made Ultder Section 24 ·
of the Federal Power Acte ·
I have other examples ot FPC action regarding FPC power uithdrawals if
anyotte cares to see them after our discussion.
A. Recreation
B. Mining entry
c. ~her uses (no FPC objection)
D. Publication of lands withdrawn in Federal Register
E. ~estoration of lands
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WITHDRAWAL OF PUBLIC LANDS FOR WATER RESOURCE PROJECTS
Remarks by J. H. Minger, Corps of Engine~rs, Real Estate
at the Meeting of the Pcwe~ Planning Committee,
. P~q ,., i~ P~rt land t Oregon .
~reb 3, 1970
Divi~ion
. .
In this presentatiQn., I will outline somP-of the purposes for. withdrawal---
of public land for Department of the A~y, Corps ~f Engineers projects;
discuss some of the eff~cts of.these withdrawals on other land manage-
ment agencies; and touch briefly on the handling and .processing of
withdrawal requests as suggested in the communication announcing this
panel discussion.
Regarding the purposes, i.e., the reasons and uses for which p~blic
land is withdrawn for Corps projects, I will confine my comments to
dam and reservoir projects. The purposes for which public lands might
be withdrawn for other Corps civil works projects would be quite similar. . ~ . . ' .. .
Public land is withdrawn in connection with a Corps project to reserve
this land from ent:y and use by others that would be adverse to the
project ~ to establish the public l~na as necessary or appropriate
for construction and for future operation, maintenance and management
relating t.u the pr;oject. Basically, the Corps withdraws public land
fnr a project for the same purposes and reasons that it acquires non-
Federal land from private ownership.
The criteria for determining the public land to be wi~hdrawn for a
project are essentially the same as the criteria used for determiniug
the non-Federal land to be ecquired. These criteria are set forth in
"Joint Policies of the Departments of the Interior and Army Relative
to Reservoir Project Land" as~published in Title 4~, Subtitle A, Part 8,
Code of Federal Regulations. These policies were developed jointly
by the Department of the Interior, Bureau of Reclamation, and the Depart-
ment of the Army, Corps of Engineers, early in the 1960 1 s and have
been in effect for a number of years.
The·uses that are made by the Corps of withdrawn public land are
dependent upon the location and extent of the public land at the projects.
In t~is regard, withdrawn puhlic land at a project may be useri L ~ole'
or in combination with land acquired from non-Federal ownersh1:~
such purposes as: (l) dam site and construction area; (2) perm.,
buildings, overlooks or visitor facilities; (3) to accommodate the
reservoir pool "t-7ith reasonable freeboard and to provide a minimum 300 •
horizontal strip above the maximum pool for public access as reouired
by th~ Flood·Control Act; (4) to provide for additional public ciccess
where needed; (5) various operational purposes, such as debris collec-
tion areas; (6) relocation of highways, railroads and public utilities;
(i) for fish and wildlife purposes where approved under the F&W Coordina-
tion Act; and (8) for public recreation under the Federal Water Project
Recreation .\ct.
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In establishing the boundary or the extent of .publi~ la,:t~ t~ be .with~.
drawn for~ p~oject, the p~biished Joint Army-Inteiior.poli~i~s here-
tofore mentioned--are followed 'and the Corps -·adheres to the princi-ple .
of "blocking .out" on tangents to a "guide taking'.' line ~or the project
established·· from engineer_ing :data, .. as provided for in: the referenced ·
Joint Polic~es. · --. . ~ ~ -
Regarding the· effects of Corps mthdrawals of. public land on land
management agencies,· it is ~ppropriate to point out that the Corps
of Engineers is, in fact, a land management agency in a degree to the
same extent as other agencies s_uci.t as the Bureau of Land Management
and the F~rest ~ervice. The Cor~s is not just a construction agency
as is .sometimes sugges.ted. The .Corps has responsibility not only for
the construction.af ·its ~tithorized and funded projects but generally
for their future operation, maintenan_ ·; and management, including the
man~gement of perim~ter lands withi~ the project boundaries. The
Department of the Army and the 'corps _have authority not ·only to
acquire·land for Corps proje~ts, but authority for a wide range of
manageme~t and dispo~al ac~ions ~nder various general and special
laws. . .
Since public lands of the u. s.·are already in a.management status
under a Federal agency, such as th~.BLM or Forest Service, ·:the imposi-
tion of a withdrawal of public land for a project.of the Deparement
of the Army, Corps of Engineers, which.also has.~and management
responsibility and 'a.uthority, produces a ''.'gray" area with respect
to the land management policies anc procedures to be. followed. Insofar
as the public land withdrawn for the project is concerned, two (o·r
perhaps more) Federal agen~ies having l~nd management authority and
responsibility are involved. The impracticability of two agencies
trying to manage the same segment or parcel of land and the public
confusion resulting in_ such cas.e has been recognized for some time.
To re~olve the problems.attendant to the above situation, the Depart-
ment of Agriculture and the Department of the ~rmy in 1964'entered
into a basic agreement with respect to Corps 'projects within or
partially within th~ boundaries of National.For~sts. This agreement
provides basic guid~lines for determinations regarding planning_for
arid tn~ management and administration of such projects. It further .
provides for the development thereunder of supplemental, individual
project Memoranda of Understanding between the'Corps and Forest Service
for each such project. These individual project memos basically cover
the coordination of planning for the project, the manag~ment and
administrative practice's and procedures to be followed, which agency
will be responsibl'e for what areas and functions, and the interchange
by transfer between the two departments of land. jurisdiction consiste.nt
with the provisions of the memos. Several of these project memos h~ve
been consummated for projects in National Forests in the Pacific
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Northwest and one land interchange with the Forest Service for a
portion of the Libby Dam Project in Montana has been completed.
Another basic depa+tmental agreement between the Department of the
Interior and the Department of the Army with respect to Corps projects
involving public land under the Bureau of Land Management, currently
is in proc~ss of completion on the Washington, D. ~o level. It is
understood this agreement has been signed by the Secretary of the
Army and signature by Secretary Hickel is now pending .•
This Interior-Army agreement is along the same lines as the 1964
Agriculture~Army agreement heretofore discussed. Similar to that
document, this Interior-Army agreement provides that whenever public
land under BLM jurisdiction is involved in a Corps. project, the Corps
will coordinate with BLM during the initial survey and investigation
stages and the planning stage. It also provides for indivi:iual
project supplemental agreements between the Corps and BLM covering
the management and administrative practices and procedures to be
followed and which agency will be responsible for what areas and
management functions at tha project. Also provision is made for
development of individual project agreements on existing Corps
projects involving withdrawn BLM land where there ma.y be problems
relating to management responsibility.
After t~ basic Interior-Army agreement is consummated, it is eXpected
that Pu .... ~3.c I.and Orders withdrawing BLM land for a Corps project will
be issued afte:r the individual project supplemental agreement has been
completed aud that the PLO will make reference tltereto and state that
the withdrawn land will be administered by the ~orps and BLM in accord-
ance therewith. If, because of exigencies of ~<.Instruction, for con-
vcnienc~, or other reasons, a PLO withdrawing B~ land for a Corps
project is issued before the project supplemental agreement has been
complet~d, it is expected that the PLO will state that administration
of the'land will be subject to a project agreement to be entered into
later between the Corps and BLM.
Further agreements, along the lines of the 'r .. t'iculture-Army and th.e
Interior-A~] agreements, with tither agencies holding prior withdrawals
of public land invdlved in Corps projects may be appropriate if problems
of land management arise.
Since the handling and processing of public land withdrawal applications
is a BLM function, comment on this aspect will be limited. BI"iefly,
the Corps, upon authorization to proceed with land acquisitj.on for
a prnject, submits its requasts for withdrawal of public land to the
appropriate State Land Office of BLM in ac~ordance with Subpart 2311,
Code of Federal Reg~lations. Under the new Interi.or-Army agreement
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for BLM lands there should have been prior coordination between the
Corps ~nd the BLM Land Office and a project agreement either completed
or in process. This should make· unders·tanding and t'eview by BLM of
the. Corps • application much easielt' than heretofore.. It is believed
that some Corps applications in the past have not always bee.n entirely
clear as to the necessity for the with,:rawal and the pai:tict·,lar uses
intended to be made of the land.
It may be appropriate to point out that the Corps in certain instances
also has requested and obtained reservation of public land prior to
project authorization to enable planning and prevent adverse entry;
e.g., for the proposed Ra~art Dam in Alaska.
It is hoped that this presentatioa, which has only touched briefl)
on the purposes, effects and procedures relating to Corps withdrawals
of pu~lic land, has been informative and helpful. Thank you.
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HANDLING AND PROCESSING OF WITHDRAWALS
OF PUBLIC LANDS FOR WATER RESOURCE PROJECT
Remarks by Virgil 0. S.aiser, BLM
INTRODUCTION -
This d.iscussion covers current practices and procedures fo1 · . .Jwed in
the processing of withdrawals of pub"ric lands. It is limited to
those withdrawals for which the Secretary of the Interior has re-
sponsibility under statutory o~ executive authorities. Therefore,
withdrawals under other st;:~tutory authority such as that grented the
Federal Power Commission by the Federal Power Act are not included.
Withdrawals of public lands are accomplished by Public Land Orders
issued by the Secretary of the Interior. Some background on the
nature of publ.ic land withdrawals is essential to an understanding
of withdrawal procedures and of some of their implications.
PURPOSE AND MEANING OF WITHDRAWALS
. . .
The Federal Government holds a vast acreage of public lands. Down
through the years, the Congr~8s has passed an estimated 5000 laws
governing these lands. Some laws provide for their disposal to
non-Federal interests while others prescribe Federally managed pro-
grams. To a degree, disposal laws are incompatible with laws providing
f~r Federal programs. The purpose of withdrawals is, therefore, to
except specific public landsa 1 to a greater or lesser degree, from the
operations of the disposal ] a.ws art.d to assign them to a particular
management programa This double nature of withdrawals is reflected
in the ternw applied to them, i.e., "withdrawals" or "reservations".
The term "withdrawal" suggest~; "removing lands from the operations
of the disposal laws" while "1~eservation" implies "segregation of lal.'lds
for specifi~'. public purposes. 11 The two terms are generally used
interchangeably.
EFFECT OF WITHDRAWALS
In various degrees, laws authorizing Federally managed programs a:so
provide for the granting of use-privileges to non-Federal interests.
In these circumstances, private use is restricted to the extent that
it would be inconsistent with t:le purpose of the withdrawnls.. The
effect of a withdrawal~ then, is not to prevent private use in favor
r.;:.f il F£H1e~:i.1l program but rather to harmordze pt .. 1.vate use as much as
possible with simultaneous Federal use. WithdruwOJls~ effectively
managed, should provide the highest type o£ multiple use.
Anathe~ aspect of withdrawal orders is that they may affect a trans-
tf.!l" b~~tween ngenci~s of jurisdictor.al and administrative responsi-
b.;.lH"'~l for the lands involved and the resqurces thereon.
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LEGIS!,.;._TIVE AtrrHORITY
·-The baaic legislative authority for the President to withdraw t'r ·
reserve. public lands in the United States and Alaska for pub:',.ic pur-
poses is contained (1) specifically in the Act of June 25, 1910
(36 Stato 847, 43 u.s.G. 141); (2) by implication, in other acts
relating to executive powers over public lands; and {3) special acts
relating to specific types of reservations.
Some of the special Acts have been cited in the discussion given by
the u.s. Geological Survey. The Reclamation Act of June 17, 1902
(32 Stat. 388, 43 u.s.c. 416) is another significant Act. The latter
Act authorized the Secretary of the ~nterior to withdraw lands re-
quired for irrigation works and other purposes.
DELEGATION OF AUTHORITY -.
By Executive Order 10355 of May 25, 1952 (43 u.s.c. 141, Note) the
President delegated all of his authority to act on withdrawal and
reservation matters to the Secretary of the Interior under the con-
ditions prescribed therein.
The conditions of particular interest to this discussion are in
general as follows:
1. That the Secretary of the Interior shall not issue an order j
of withdrawal affecting land under the authority of any department
or agency other than his own without concurrenc~ of the head of
such department or agency.
2. That any disagreement between two or more executive depart-
ments or agencies shall be referred to the Directer of the Bureau
of the Budget for consideration and adjustment. The Director
may submit the matter to the President for determination.
3. That the Sec~etary of the Interior is authorized tG issue
rules and regulations and to prescribe procedures for the exer-
ci~e of the authority delegated to him.
S~1ARY OF PROCEDURES
The Secretary of the Interior has issued rules and regulations
governing withdrawal procedures which are included in Part 2310 of
Title 43 of the Code of Federal Regulations.
Applications for withdrawals are filed in the appropriate Land Office
of the Bureau of Land Management. The regul.:~tions list in detail
the contents of an application. Some of the key items are:
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1.
2.
Legal description of the land involved.
Purpose of the withdrawal.
\
3. Whether the proposed use will contaminate any of the land,
and whetner such contamination.will be perrnDnent or temporary~
4. Hoti long the withdrawal will continue in effect.
5. Whether, and if so to what extent, the proposed use will
affect continuing full operation of the public land laws and
Federal regulations relating to conservation, utilization, and
development of mineral resources, timber and other material
resources, grazing resources, fish and wildlife resources, water
rescurces, and scenic, wilderness, and recreation and other yalues.
6. A justification for the proposed withdrawal or reservation,
including statements showing the need for all the area requested
and for the limitation, if any, of concurrent uses.
7. Citation of the statutory or other authority for the type
of withdrawal or reservation requested. ·
If th~ lands of another agency or department will be affected, the
applicant will be requested to obtain the concurrence of such other
agency or department.
Upon receipt, the withdrawal application is noted on the Land Office
records. The noting of the records will temporarily segregate the
land from use or disposal under the public land laws to the extent
applied for in the application for withdrawal. The temporary segrega~
tion does not affect the administrative jurisdiction of the lands.
The Bureau of Land Management publishes a notice of the proposed
withdrawal in the Federal Register. The Bureau of Land Management.
in cooperation with the applicant agency provides news releases and
other publicity to inform the interested public.
If, as a re~ult of public respa~se, sufficient protests are filed,
a hearing may be ordered.
The Bureau of Land Management will investigate anJ evaluate the
existing and potential demand for the lands and their resources.
The Bureau of Land Management may negotiate with the applicant
agency with a view toward adjusting the application to reduce the
area to the minimum essential to the applicant's needs and to pro-
vide for the maximum concurrent utilization of the land for purposes
other than the applicant's.
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In practice most Yithdrawal applications do not requi+e hearings and
only a minimum of adjustments. The Bureau of Land Management reports
i. ts findings and recommendations to the Secretary of the Interior who
will approve or deny the application in whole or part. Approval of
an application is finalized by publication of a Public Land Order in
the Federal Register. Cancellation of an appiication and lifting of
. the temporary segregation on the land is accomplished by a Terminatign
Order also published in the Federal Register.
22
WITHDRAWAL OF NATIONAL FOREST LANDS F"OR WATER RESOURCE PROJECTS
Remarks by John Brillhart, Division of Lands, R-6 Forest Service
In discussing wa.ter Resource Project withdrawals and effects of the
same on Federal lands which in this case are National Forest l~nds,
the derivation of Nat~onal Fore~t: l.ands in Oregon and Washington need
to be explained.
FQr all intent and purposes the vast majority of National Forest lands
in Oregon and Washington were reserved from public domain lands under
an Act. of·congress approved MDrch 3, 1891. By this Act the President
was given power to estahlish forest reserves from the public domain
(22 Stat. 1103). In other word~, most of the National F~rest lands
in Oregon and Washington came from public domain lands.
Withdrawal of National Forest lands from appropriation and entry for
water resource projects can be accomplished under the provisions of
several Acts of Congre~s and under Executive Order 10355 of May 26,
1952. In each case the order states the purpose of the t~ithdrawal as
well as types of appropriation and the uses that are prohibited.
Authority to withdraw National Forest lands reserved trom the public
domain has baen given to the Secretary of Interior for:
1. Fit'st form reclamation w.ithdrawals under the Act of 6/17/02.
2. Powersite classification withdrawals under the Act of
3/3/1879. These are bas~d on recommendation to the Secretazy of
Interi.or by the Dire~tor of the u.s. Geological Survey for with-
drawal of !lational E'ui-est lands for future power developt~tents ..
In like manner the Director can recommend modification and re-
vocation of such withdrawals.
In these two (1 and 2) th~ ca~1sent of the Secretary cf Agriculture
is not required. Howevel", by :.:nt:er.departmental agreement the rec-
commendations of the Forest Servic2 are ri.tquested by the Secr~tary
of Interior before such withdrawal~ are w~de.
3. Another form of withdrawal under the Secretary cf In:~erior
authority is for use by and at the request of other a?:;~n.cies qf
the Federal Government and require the consent of the Sec~etary
of Agrif:~ulture ~
All withdrawals of National Forest lands are, therefore, under the
Secretary of Interior's authority with a~e exception. This exception
lie.\"3 in the .statutory authority granted the Federal Power Commission
by the Federal Power Al.!t of June 10, 1920. By the autho~ity of this
Act, National Forest lands inclucied in proposed Federal. power p~ojects
are withdrawn from all form. of entry upon filing of an application
for preliminary permit or license.
· What are the effects of withdrawals upon National Forest land?
In the case of Bureau of Recla~tion withdraw~ls, until projecr surveys
and determinations have been made the land is managed as any other
·National For~st lands with the proviso that any uses authorized will
not be incompatible with the use of th! l~nds for reclamation purposes.
In addition, a Memorandum of Understanding between the Bureau of
Reclamation and the ~orest Service (signed January 1948) defines Forest
Service responsibility which includes impact planning as well as working
out with the Bureau of Reclamation supplemental Memorandums of Under-·
standingwhich stipulate that all contracts will provide for safeguard-
ing lands and resources under the adminis~ration of the Forest Servic~
Lands withdrawn for power-purposes under various types of withdrawals·
such as p~wersite and reservoir site reserves, wat~r power designations,
po~ersite classificationsj all by the Secretary of Interior and FPC
withdrawals; all have power values which &te protected to the greatest
extent possible consistent with other multiple use requirements of the
Forest Service. T}lis means uses of temporary nature or involving
structures which can be readily removed and do not impair t~e value
of the land for power purposes, may be permitted by the Forest Service
on such resezoved National Forest lands with the stipulations. that such
use is subject·to prior reservation of lands for power purposes.
National Forest lands withdrawn by the Secretary of Interior (with
Secretary of Agriculture's approval) for the Department of Army flood
ct~ntrol projects are managed under an agreement between the Secretaries
of War and Agriculture. This agreement provides for resolving differences
that might arise as to the Army requesting a withdrawal £or flood con-J
trol purposes. Supplement~! agreements drawn up between the two agen-~
cies include items relating to safeguarding land and resou~ce values
to be included in project contracts.
In conclusion you·may ask, "What about acreages of National Forest lands
withdrawn for' water resource proje~ta, is it sizable or not?'' A review
of our records indi~atE!s the following acreages have been withdrawn:
Reclamation withdrawals
Power withdrawals
Flood Control
Total
Total N.F. in U.S~ Region 6 -USFS
1,367.,501
3,096,754
60,169
4,524,241
84,103 acres
615,751 acref!
10 1 6~4 acres
710,538 acres
On these total 4~ milliot: acres of wichdraun lands, all the forest
officers must exercise judgment in pTotecting the water resource
valueR of withd~awn lands, particularly when the protection of such
values n~y be in ~irect conflict with other Forest Service interest.
24
WITHDRAWALS OF PUBLIC LANDS FOR WATER RESOURCES PROJECTS
Summary of remark~ by K.W. Sax, u.s. Geological Survey
March 3, 1970
The orientation by panelists Ellson, Colb~rt, Sondeno, Minger, Seiser,
and Brillhart covers the subject very well, but it may be helpful to
point out they were discussing two general types of withdrawals:
{1) those made as the result of an intention to proceed with develop-
ment of water resources projec~s, and (2) those made to protect water
resource sites fo1e' anticipated future development. The fi 't"st type of
withdrawals us.ually results from actions initi·ated by the Corps of
Engineers or Bureau of Reclamation, or are made automatically by virtue
of the filing by a private or public organizati!>n fur a Federal Power
Commissi~n License. The second type of withdrawals results from actions
, initiat~~ by the Geological Survey, or have rt!sulted from the fact
that many schemes of development were filed as Federal Power Projects
but never constructed, particularly in enrly years of Federal Power
Cn!nmission's operation. The second type of wi~hdrawals saves water
resQurce sites for future use--a conservation of sites as there is
an attempt to deliberately shift the use of land f~om the present to
the future because water resource sites are finite in number, fixed
in position, increasingly scarce, and irreplaceable.
Both the Forest Set~vice and Bureau of Land ltta.nagement have problems
with power withdrawals for anticipated future use as their presence
limits the freedom of land management agencies to use, exchange~ or
dispose of such lands; however, procedures are available for the re-
examiiw.tion of any case where power withdrawals appear to be an improper
obstacle of higher value land uses.· Conflicts arise since the with-
drawals for antiL:pated future use are single purpose in nature and
must compete with a wide range of potential land uses. The Geological
Survey has a continuing program of reviewing existing power withdrawals
to keep them current with both new plans and the changing concepts of
water resource development. Processing such studies i··iVolves a consider-
able amount of effort in land management agencies since revocations of
withdrawals are examined with reference to all existing rights, whereas
new classifications are examined only with reference to conflicting
rights.
Both Messrs. Colbert and Sondeno noted that through cooperative proce-
dures with the land management agencies, Federal land designated as
being valuable for water resources sites are man~ged to forestall
undesirable encumbrances, yet allow many interim uses without destroy-
ing site value. The worth of saving these sites for future use is
not alwayG evident, and even if stated in simplJ terms, many intricate
relationships must be ignored. However, in California we have become
aware. of several outstanding examples, including the following:
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· · u.r.t2-t-8t 'Regulcti.~ns 10,993
::!! ,:i J:Subpart E:-=-Application for.License for Major .··•· · , ,
Unconstructed Project and Major Modified Project · ·
'•
i:.1:~ i~:b!:!! L:,;•;;~:>:-.'1 !,:1: it. t:viJ.-lJU·••!~ .[1fil2,040]::.> · : ·· . , ;~
~.·ih:·~ .. ~r !"!:u:.-:t:fJ'.:'Jh : •• ;·:•·~· !:;·! ~J.r.'rt!•:..: :#!.;!• il.~;. ~·.:·:t~~~ ";-~ ~:.
§ •ttto Appli~a:bility .an4Aefinitions~ ~.;;;, ;;,. :· · :· .: ., .. , :;; ; .. · : ,.. ·· : ·
(a) Applicability. :The provis1V'i1s! of this subpart apply to ahy_ appti'iation
for'•an initial·lice'ri'se for a ·major: unconstructec;i project that would have a to~al
il1~talled;' ~ap~Ci.~)tpr ·:w?rf·:~ha~ '5 ''fnegawatts, ·and a~y.: application for an
ii}!.q~.I ~,OJ;';;·~~~.:i·~c~r,g)~~J~f..~~·p~j~~ .";~edified project .with a· total install~d
C;tP~«;i.ty~ mp_r~ .. ~h~"' ·.~,.,meg~~~H~: cAn applicant.; for. lic~nse for any major
-unconstr:uct.ed';or. .major modified :Water power: project 'th'af would have a total
inst~llect :generating capacity of .. s~m'egawa~ts''or tess· mtisYsubmit application
' 1 • • .,• • .. ~., I••• 11•"• ~•I , • I
under-Subpart G;(§ § 4.60 and ·4:6.1):·:· .:· .''l':J.; ·i ., .·· .
:• .. •• ",! =·•'1 *'; ..... ~. ~-.: i .. ·•!l~ '): .'·•: .. : Jt:r!~ ,
.. · . ('p).Def~n#i(}n;;. For. th~ purposes...: of tnis subpart: · .:J: · .
• • : • ~: ; • ! • j,. o • • M '0 '
;;; · :•:·(1} "Iiiit1al' liceh!e" means anY license· for a water power.· project. that is
i~s~~d :~nd~r the .f~~~.r.al. yy~t:f. f.P~r~ Ac~·~f ~920 ~~}h~ federal Power. Act.·
(2) "Major unconstructed·= project" means any • unlicen~cd water power
project that is proposed to: ... : .,.:'!' '0 '· : · '
'··· .l ~--t ... :!0~ •• 1 .. 1 •• -•••• ·~ •· ·~ ;·•" \~-• ! : ~,.... .
:.•il·.;,(i} .~~Y.~ ~~~~.~~.U.P,~~a}le~ ge~~'f.~~~ng capacity of more than.l.S MW; and
!. · (ii) Use the:water·power potential of a ;dam and impoundment which,at
the time· a{iplicat1on is• filed, has'hot been' constructed:. :: '': .. i .. ' .
• .. ,.. • • .f ~; > '" -'.. • • ~~~ ' .....
j, (3) ~~~ajor m.odified project': means any major project-existing dam, as
defined in § 4.~0(\J)(S) o~ thi~ cnap.ter, that is propos.ea to induqe:
:: : (i) ·Any rep~ir, modification or: reconstruction of. an exisLing. dam that
would 'resu'lt iri.:a significant'change'in the normal mv:!mum surface area or
the ngrrnal maximum surface· elevation of an existing impoundment; or ·.
' '~ ' ' • • !
(ii) ·Any change in existing project works or operations that would· result
i'n a' significant environmental impact:
"' • 4 : • '' .• • • I ·\ t•· • ...
(4) "New. license"· means any 'icense, except an annual license issued
under section 15 ofjthe Federal Power Act, for a water power project that is
issued under the Federal Power Act after the initial license for· that project.
• f • • '.. •
.(c) Guidance from· Commissio~. stall A prospective applicant for a
license for a major unconstructed project or major modified project may seek
advice from the Commission's Division of Hydropower Licensing regarding
the applicability of 'this· subpart to its project [see § 4.31(g)]. including the
determinations whether any proposed repair, modification or reconstruction of
an existing dam would result in· a sil'{nificant change in the normal maximum
surface elevation of an existing impoundment, or whether any proposed
change in exi~~ing project works or operatiJn would result in a significant
• environmental impact. ·
(d) Consultation. As provided under § 4.4l(f) of this chapter, the
appropriate Federal, state and local resource agencies rnust be given 'he
opportunity to comment on lPe proposed project prior to filing of the
application for license for a major unconstructcd or major motlificd IJrojcct.
Fede~al Energy Rtigulatory CoMmission
006 :!1
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..... ... "'. . . ~·; .~ ........ ' .... ,,.J ,. . .. . .... -~ .. ·· ' ~·· ~·. ~ ". • . • .. I ~·... ' ~: • • • , • • I . ,. ~: { .. x.~. ·. . . . .
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.0146 F.R. 55926 (No .. ·ember 13, i98~jj~flt£J(~f~ description of the-proposed initial ancl
.OS Histon'c•l recard.-section 4.40 •ead ultimate: schemes of development including
:.1a follows until it w~ amended in 4€ F.R. dnsi.aire(i:itipatities '·.'cd~i~mphited · irl e-d,
55926 (11/.!3/81), effecti:ve i2/l4/81: ~ . · r , scheme.. . -'T . ·,,,.\ . · ... 1 !14'· "·c'• .::~•· ,..,-,.:., ;;., {.h!'·!!• ~ s..•.j,L:Ut.: ?lid .ll e.:.•t,, ••.. Jiq :JJ, .. .J.'\.1 •• 1l·~:h1·.~··.;., 'J: ·~.?, !:0:~\~e~~~~iue·: !Mf t 1"·~1.)10 lY•~"~II112U(t(i), ~e P.~~~ ~~e Q~}~~~~et ~~f ~ht_ ~wer '~a;.n appll~~~~!?~,f~r. l~e~~sc f~{ a ~~m.ple\~ •. ) ... ~o ,be qeyelo~d. i!Jd!~~ill~ .• whe!her,applicanl ~~J_ect· ~f-:~~r~ ·.tna,~;:~;~ :ho~seP.o~~e· '·is .• ~.; P,~.tili~. u~H!LY. or.)Y!!l''l>ect~m~ :i publi!= m~tall.ed· capacll!' l~ be: C:~ns~trt~c~ed,~ 0~ :~~r ,a.~f~Lil!.tyt 1 an~:!f ~. w~~~t~~~j~ is~?.~ will be su~ject J'{l~~-0 f. pa~~' Pf S9~h .Pf9Je~.tl. ··~?•II .Qe~,v~rafa~d. •lJlo re&ulauon by-any State' agency. In case the
shall con(orm ux S,l31.2 o! .. tJus 1chapter1 .~ha11 11 ,·-· 1. •. :·· 1 •... r· .. · · · .. h ~!.. r·t;d. ~ ·· • -•·• d. i.,.., •· ... h .. :§· '4 31 ~· · d. • h 'll" ~r, -app acant can· gw .. no posattvc ass1.1rance t af:
uc I e In accor ance Wlt . , an S a set .1. •• • '11 r.... d 'd f 'h . ·
io'r'ifa':'i'N 1 ii"prop~f~te· cferiii the: foil~wilii' n~"'aere ts:?r wa uc: a em~n or t e ~er, upon
informatign in the order indicated c~~p_le9on ~f. ~!)nstr9c~zo~ of ~ht pro,JeCt,;ind (a~ The. exact name ~nd ~9~~ ~ 0~ :·th~ lo t~~-~l • it. _wi_ll ~ .. us~d o~ ~ist~~buted : !Jy the ap:Jhc~nl. (If the applicant desires that a~pl.aca~l or sold to others for use or
corresponden~e concernir;'! ·the:·app!ication· be ;_;;,dt~~~~~t.zon!~ a. fu~l ~.and: co~ple~e ·statement
directed to any. ~rson other, than the. one, who . ~np expl_a~atu:~n. ~~~II be made of the
lligns"tlie applicatlon,'.the Co~inission sh'ouid. applicant's expectations in Lhis regard and of
be n~ti!iec of ·lha.t• fact· and!of ~he· namr. :and I J•lh~ ~·~is Lhj:refor:. !.:J ·": .
address of such nther person by a statement (j) The location and capacity of ali power'
in~icating that such other persoz:~ is authorized P.lants or other electric facilities owned or
to·act as· agent; a·nd· ~nat .service 'upon. him :wm:: · ':o'pt;i-~ted bY the ~pptican't,· ihe market supplied
~ de~'P:!i.to b: ,se~yac~ ~~? ~he.apph~an.t.) io ;. thereby, ,and ~he relatiqn thereof t'! t'hc;·project
(b) II the apphcant ts a corporflllon, the,.,. ,.applied ior and a brief. description o( such
Stale or Territory under the laws of whicli' the'1
: ~~therplanis. •·. I •• ; ••
appl~cant ~as· organi:ted 1!-0d, if aut~!M'i~ed. ;o:~: d:-· " · . ': .. =. • . • , • • •.
operate in more than qne ~l~t~. an ~rti~ent .. , (~) ~ de.~cnpll~n ~f an~ :htstonca.l or
facts should be staied. .. . • ·'' . · ·'! · "1 ~ arcnelogtcal properues hsted m .. the Nattonal
· (c) The measure of c~ntrol or ownershipi if:, .. Regi~t~r-,e.stablished under the provisions of
any,· exercised by 1 applicant. in any. other. , }u~ltc Law 89.()65 (80 Stat. 915) or Ull;der
organization. or o~er aP.P,H.ca~t by any. other',· ccn!itderatio~ ·:or ~lig!ble for listing in the
organization.' ' •· · · ··· .. · · · _,,, ··' 1 National Register whid1 ~.re or may be
!i(d) ·The:name: of each. ·State• in which the 1 afft:cted b!' t~~ project. 'Jhe National Register
applicant operates or proposes Lo operate is ,cont~ined in tile FEDE~~ REGlsrER of
~lectric_power plants or facilities. February 25, 1969, Part 2 oC this chapter (34
:;(e) 'A concise generaFdesctiption of .the J'• F.R.\i 2580), and, is .updated .on the first
project and: .the principal project wod:s.' ,Juesilay. of ·eaci1 month thereafter. Inquiries
including .dams, rescrv9irs, water conduits, . with respect to. properties under consideratiun
pow~r houses, substations, switch yards, ~nd or eligible for listing may be directed to the
transmission· lines,· in such detnil as may b;:· State Liaison Officer, :11 list of which is
applicable.. •· • · ; ·• ; included in the FEDERAL REGZ~iTI::R of
';(0 The location of the_ project, the region of, .February 25, 1969,
its loca~ion d~signated by adjacent cities anp , (I) Those applicatio,ns. within Lhe purview of
towns, the name of lhe stream on which the proposed· ·project will be !oca'ted, and a § 2.8l(a) oi this chapLe:r must be accompanied
statement. or the extent to wh!,.::h 'ommerce is 'by a detailed statement of the environmental
carried thereo;;, factors enumerated in § 2.80 of this chapter.
(g) The lands and reservations or the United (m). Other da.La which the Applicant may
Sloiltes which will be affected by the proposed consider pertinent.
proj~ct.
..; i
~ 12,040 § 4.40
...
. . , ....
Federal Energy Guidelines
153 49
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. Reguldtigns 10',995 .
·m (!-BEF.QRE-.;q;lj:lE·,FE;QERAI:; :EN~RG Y:·:REOULAJ'PR Y COMMISSION;
APPLICATION FOR LIC~:N-~;E ,, ~OR~ , MAJQ~~~-:!:t:JJ':~G~lN.ST~PCTEP
PROJ)!:Cf 0~ MAJQR MODIFI;ED PROJJ;:CT ~ .. •rmmnq 1:;u; to er.oU:>!':Pn\lJ1.'ll m h:: f; .:;·: • •• i~~~ ,;: ~-::: 1:·~ : ... , . .1' · ;! 1 ! • ;
C
. :~L~: <n~ ft:i~rl!'~:)~f[~·~··~PJ?Hc~p~L~~9-Pl,y.~~.:·.tq:: t.~r ·~f~~er~t .f.] ~fe:gyh.-~e[~H}flt?rYr
ommlSSlon or a 1cense or new 1cense, as approp.riate or t e name o
project] water power project, as described in the attached exhibi~s ·[Specify
any. previous~FER<E:tn:ojectmumber.df!Signation.]~, !!r.·iJqh·, :,··: ·.:·: ;· t.
(2) The location oh.'1le''i)i!Mp'O~eo 1 pr~jecds': t ••. jqn ?f:•o; .l .. l i .. ;:·~ . ;." -~:,: i'i.· ::.:• •
~-.· ~~.-.(f ~·!·: \ ; '# ... · ..
·' . ,,,.,
•• • • • • • • .. ... • • • .... • ... 4 • f • ~ ........ I ,; "' • t ~ •
·~·.' (4) The applicdrit'is 1i' [Citi'zen of-the United States, association of citizens
of the United States, domestic corporation, municipality, or i state, as
appropdat~.:~~e ~R.Q.S.C . .(.96].~ . ,; .... ;.. .· .
. -., ~ ..... ,"I ~ ••1 ,., • ,,•••-.I-'.·~.1 ........ ' ;}·.,.,. .af.. •4 'i ·:.. ;.• • ~. ·~ :• "•
(S)(i) The stal'utory or regulatory requirements :of. the state(s) in which
th.e _projec~ ~o~~~ be .Jocated_:a!1d t_hat ,aff~~.t. t~e: proj~~t as proposed with
respect to bed and banks· and to the appropnat10n,1 thvers1on, and use of water
for power pur'pose's; arid with· respect td lhe 'right' to. engage in· the business. Jf
developing, tra'nsmitting, and· distriouting' power and. iri any' other busk•;SS
necessary lo accomplish the purposes of the license under the Federal Pm rer
Act, are: [prqvidr: citation and brief identificatiQn of the nature of each
requirement; if..the ~pplica.nt iS. a ·jnuni~ipality,: .~he· appli~~nt must submit
copies of applicable Slate Of local Ja\vs or ·a· m'untcipal charter or, if such laws
or documr:nts are not clear, any other appropriate legal authority, evidencing
that the municipality .is·competent under such laws to engage in the business
of developi'ngi,transmitting, utilizing, or distributing power].
' . .
• (ii) The steps whi'ch 'the applic~nt has taken, or plans to take, to comply
with each of the laws cited above ·are: [provide brief description for each
requirement'].· ·.; · · .... · . · ·~·.! · · ·'
. . -. . .. ~ . . . , ~ . -. .
(b) Exhibit A; is a description 9f the project. If the project ir)cludes more
than one dam· with associated facilities, each dam and the associated
component parts must be described together as a discrete development. The
description for each development must contain:
Federal Energy Regulatory Commission
000-20
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§ 4.41 ~ 12,041
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10,9,96:: i ·· Reg·uidtigol ~1;.; 12:1-81
(1) The physical compositi§nSd1i!lensi.9~s, and general configuration of
any dams, spillways, penstocks, powerhouses, tailr~~es o.r other st~uct~res.
proposed to be included as part of the project; .!ro~J,;:;u~:.p;. !O i;:·.c. •;.::t:c'._) ! ·•.·· :
-L ~~t2)0 .Tlit·horin.af:ffiati~!llm 1 wa'i.'~r 2 sJit~lce 1 1~e~1 anci ?rio~;n~f maximum ~ ·Il:J'"1l,t•='~",•·.· •'"· •1,1 ~··I 1 •• , ~·· • • water surface elevation (mean sea level), g·ro~s·' storage capacity· of ·an'y
impoundments to be included as part of the project; .i''·.r: ·: ... jr, \i:n·i:··· : :;,
;:-!ii(3)~t1ie=1 numb'ei-;·Tiype.Talicfrateascaparcity· of2any-:proposecFturbines or
g~dera lo~s· ici 'be.-:ineluded'·~s' pari-oflh~~P.roi~'Ci. ! "j i. l ~ fl.i ;: ~·1 u: ~. \ . i : : : .r.
•1.·~-··.·~J·,· ... ·.;1 .. :t ~ t·,rJ-!1 ··1:'.~t1 ..... ·,t ......... "'::· ... " .. ~···. ~ ~ J'-\ ..... I .. .t ""'"~ t .J\.a. ........ ... I~.! lj ~. •'•'~ ~-•' _,.'I~-.. •"
: ·~ • , ~~~,1 ~~e ~':lm~.er!..!~.~g~p, ~':lo!t~~e, 3:~~1 ;n~e.r~o~~~~~io~~ ?~ a~y. primary tr~~~~~~~l~~ ~~~~~ P.~~?~~~~· ~R .!'~ 1:~nc~ ~-~~.d;~ .P.~rt .. ~f 1~: · P.r~J~~~ [$ee .1 ~ U -~·C .. 7~11)}" ,~I •• I,J ! ·~~!J•;•· •~!"':·' f!d ,.: ••. J,.IJ ,._J1 '" .: •• :a ' ,,, ~~·t l\,•JI.:-• • . •
~., '-·:·:~~ .. !~·~·· =····· IJ "'rl• ·· '·· ·: ...•. ,,: ···· 1~ •• ;, ..... ~., •• , :. • '-.~ ·•1 • ... · \,.J ... '·"··· • ..'.:1.! •. 8 :.• .~ ~11 t1.•'•· .1r, ....... '~:-;. ,,.,_,"·.1-t~, • ,.·,··t .-:sJJ,,: j • .: ... · '!,
(5) The description of.:·any.~~~ddition'al.l.:mech.ani.cali'!-. electrical~· -and
transmission equipment appurt~~~~~_t~}q~_ P.~~te~t; .~nq" ... ::: ~, .1 ,~ ~ ••1!. ~ · 1 :: .
~--:<~)All lands of the Unit~d State~, i~cludif~g lands pa.~en~~~ sp.~j.ect to _the
prov1s1ons of section 24 of the Act, 16 U.S.C. 818, that are enclosed within the
projecr bou·ndary-described ·un·der paragraph (h) of this section·(Exhibit G);
identified. and, tabulated. by h~gal..subdivisions of a. public land ?Ur.vey, by. the
best available legal description. The tabulation must show the total acreage of
the.Iands -or the ·united ·states-within ·lhe-praJe-ct boiinda1ry. ... · · ' · · ·
v.c~) E~h}blt B 'is 1 ~· il~te~ent ·a( project op~ration. and rcsourc~.· ~tiiization.
If the project includes more than one dam with associated facilities; the
information ·must -be· provided· separately for· each discrete development. The
exhibit m\lst contain:_ ......... -__ .. --·--·--·-.......
. ·: (l) A. desc~ip~ion .. of..~~~lt..~}terna~!ve. ~ite,_co~sidered in seles~ing of the
Proposed Site· , . ·· · ···:: -. · ·· • 1 "· • ·-·• • ._. ) ,.••••· •·•••• .J.•r, .. ~ ..... ~.<;J •• • J• -~•
(2) A description of any alternative r~dlity 'dest'gns, :processes, and
operati<»ns that: were considered.· . . · ~-;•,.· ~r:, : 1 .. ::! :. :. . : • ~ · .
-• • ~· ~ ; • • ' ~ • • ... , 1 4 \ ~ : : ! ·:· f • • ' • • • •
. (3). A statement as·. to' whether cipera'tion of the 'power plant will be
manual or automatic, ari 'estimate of the annual plant factor, and a statement
of how the project wilt' be operated during. adverse,. mean, and 6igh''.water
.. 1 0' • • ~
years; .. . . . , :: .. ·: . , . .
(4) an· estimate of th~'dependable capacity and average annual energy
production in kilowatt-hours'·'(or meclianical equivalent), supported by the
following data::. · · ··· ; . ..-'•·.. · · · · · · ·· ·
.. . • .! 1 ~·.: ....... , ·, .,. •. :. 4 •
(i) The minimum, mean~. and maximum recorded flows in cubic feet per
second of the stream or other body of water. at· the powerplant intake or point
of diversion, with a specification of any adjustment made for evaporation,
leakage minimum flow releases (including duration of releases) or other
reductwns in available flow; a flow duration curve indicating the period of
record and the gauging ~tations used in deriving the curve; and a specification
of the critical streamflow used to determine the dependable capacity;
(ii) An area-capacity curve showing the gross storage capacity and usable
storage capacity of the impoundment, with a rule curve showing the proposed
~ 12,041 § 4.41
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Federal Energy Guldellnea
019-21
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Zt.t-12·1-81 · Regulati~:mi 10,997
pper.atjO[\.;of.-.the;impoundmentrand how the.·~sable iStorage capacity. is to be
t 'i'' d• !_ , ""J''"' • '"' •• ;;s;~ I •• • .. • • ... ,-l u 11ze ; · ,. · . · · . . ...... -.-, . • .... .. • . •.
(iii) The estimated hydra~lic capacity'of!the -pow~rplant-in. terms of flow
and efficie~~~i~EPJ~iEi .f~~~! P.~~; ~~~~k~?1., ~~ ~rye_~p.~~.f!}N}\ ~Qd ~est; g~~~~; a~? th~
correspondu~g gen~rator output m 1 owatts; . .. .
·.;l.:.iJ<JI'/!)1(1 lO ?.J~IUJI):J jJ~·I~i'll.j bili!fll;;,:•\ ''!J :p ;,.;; • ···~: -~ ! ' · '
.·r~1 1fiy\A 1tailwater rating;curve1• and' ...... ···:··~ ... : .. ! ..... : :;· :J,~ ·~ ~·'~~ ~,.,~ ... .., ~ ,, ..... , .......... '. l ... ...... • • • •'. ·~: ...... .. " • -. ..
J n·: !:'(v )i!~ •cur4e·~·sh'owing:·.~bwerplah f! tapaoiii tY. versus head and 'specifying
max'imumlJnornia.lVand 'mininiUrif heads: .. ';~:::, ;..:(;-;· p;; ...... ! ...• ; . I; ' I ' .
I • J I , . ~
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(5)-A state~ent o{ systeif!. and regional P'·~:wrer needs and the manner in
which itHe0 =power'~geiierafed atl the' projecf1 is1 l(o~ !oe';iJtilized/'including the
amount of power to be used on-site, if any,;SJ.Jpportedby..the following data:
• I
(i) Load ·curves ailcL tabuhir·dala, if: appropriate;: -: ;:,_.· . i: ·. . · · ·
:.; .I•Y (ii) !Details· or:·conser.vation! anti .rate ·design. programs and I their rdstoric
a:nd j>roje~ted=impacts.on system loads; and?fi;;i .·: ::.. .• '
. \,: .. ·(iilf'-1-h·~i ~h{~t'n~ i.i~tj !6~e 1 ; t8 1 Be-.;s~ld·~·a~dl'·.th~ 'identity of propost:d ···~ , •.• I•: ' ~ .... , ,.P -~ ... ~-·[· ... , .•.•. ,. ·I···· ... . . purchaser(sj;' a'rid ... ~ · · •·• · ·• -·· ·-.. · · · · ·~ · ., ., ·I • · • • · • • •. ' ·
(6) A statement of the applicant's plans for future development of the
project or 'Jf any other existing or proposed ~ater ·power =project ·on the
affected stream or other body of water, indicatipg. ~he approximate location
and estimated installed capacity of the proposed developments. . .
..., .• :•· Hl;~J ~~t: .. t !U t~~.·J 1.t.!JnilJ~::: ttl1~·~-u :-· .• ·H).:·~ :t,!: ~. •11-• ··' ·~~ • ~
~ ..... (d), -Ex..hibit G. is. a :proposed .construction schedule. for the project. The
informationirequired may be'supplemented:witti.a bar chart.,The construction
schedule must contain: :1;:•ib· ... :. :.•·•, . .
(1) The proposed commencement:· and comp}etion dates· of 'any new
construction, modification, or repair of major .proj~c~ works; . . r. .... _ .. ,., ... -· 'J • • •
(2) The proposed commencement date. of .. first commercial operation of
each new major facility and generating unit; and ..... . ...
.. ; ::1:L. '-·: ; .... ·'~lt:i·· J "'.~. • .... 1 . -.· ... : . ·~ ·! · :; ·. · .
. . (3).:Jf ~.any .:POrti.9.n ,Q[:.the. proposeq· p~oj~_ct. cc.nsists of. previously
constructed, unlicensed water power structures or facil:des, a chronology of
original .completion dates of those structures or facilities specifying daLes
(approximate dates must be .identified ·a; s'uch)' of:' I • • • I • •
: .. :1 4. ~ • . i ; :·• . t •• 1 ·~ .• ; ... ·" • ' • "! •
(i) Commencement and completion of cqnstruction or installation;
(ii) Commenceinerirof first: commercial operaiion; and ~
. -". ~ • .. !
(iii) A.fJ.Y. ad9itions or modifications o.ther than routine maintenance.
~(e) Ex~ibit D is a. statement of project costs and financing. The exhibit
must cQntam: • · -: · . , . , ·:· .
(i~· A.staleJ?ent of estimated costs of:any'new:~onstruction, modification, J.J ~ L :~
or repa1r, mcludmg: · $ G • ~ T'
...,..... (i) T~e cost or' any land or water rights necessary to the development; 1 A f t' ,.,J ~
. . . t,' 1' I It
(ii) The total cost of .all major project works; .,
Federal Energy Regulatory Commission
024-20
I
§ 4.41 ~ 12,041
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::;~-c.(iiihlndirect c~nstr~ciion··cosis sucli iis ·costs of. construction~ equ~pment; ~ p },1 A f• V~
camps~ and commissaries; ·i~·. : · \. 4~ J ~
vml! ~iv).Interest du'rjng co~struction; an_d:J :-.ilL: .. ·: ·>i n:1:.:ti. .J ~ ... ~. ,; . ·.:J
;:l:i.J !~::,) dve'rhe~d;! canst~~~ti6ri·/ iegai exd.ens'es; art~ co~titig~nt!es:•: . : .· ..
,~~·.!:·\tiVil}l ni; . I~;:!.·· :t ... ·~:ai:··: .::.: ..... ~.~.. • ; ~
(2) If any portion of the proposed project consists . of pr_ev10usly
constructed, unlicensed water power structures 'or facilities! a statement of the
9~igjna!;-.~Qst2f ~_q.os~ ~s-~~\lc;tur~s;pr: f~~il!~i~t,spec~fying-fo~_eacp,._to _th~ extent
possible, the actual or approximate ~Q~~!..cg~~ .. (~pproxi_mat~. ~o~t.s _must be
identified as such) of; · . __ . .
It! ·!"'l·:.-;:::i':.' ·:ffl ~~=t:~; ~l)!}~fl 1~·;.:r:c~ !~r:~ .. ;::.!!":' il!li", ~·c:u:.·-!·. ~~ .!!~·~; i~!!!:J; .:. ~ · ~}:.~riY.!~~~9J?.H\'1!l~~jri,g~~ n .. e!=~~afy,tq tJte e~isting proj~ct,~ork~; .
~-(iiJ ~n:majoi. piojed. \vorks;-'and"::-1l-1: ,:::J·:, '":: .. .. '·'i ·!·1.-.~. · · ;: •.. ·
(iii) Any adcj.i~ions or· mOdifications .other than·.routine maintenance;
·:~ ~·; ;(3) If the aiJplican~ds.~adi;:enseeJ applying• for a ·new license;:and is not a
municipality or a state, an estimate. of the:imount. which-would be payable if
the project were to be taken over pursuant to section 14 of the Federal Power
A.~'t;' 16 u.s.c:.-867, tipon~hpiration or-'the iicense'in effecdiit'ludi11g: . . . .
t .. ': J: • ~ ~ •• •
, ._(i) Fair value; . , . . , .. . .. . . . ~ .. ::; :• :i~. ·: r•·:' .:'.· ~: :l"!:J.lL;; ·~,~: ,;:!!·:~i :. }:il:'":H~!!'J1: ... i· 1·-! :: .. : :~~t,~ .:~
.) ;: ,(iD Net \nvestll)ent;.an~ J•·-·Y·h~.a.r ·:,, ;;:.: ... : ·,·; .. :·::: :._ ·
1 .. .. • •
• ! (iii) Severance aamages::!fDi.!i!' .-,·;{1;-,"i j. \•J-·•.j ~-,:· ... ) ···~·-. ·-:i , .•
··i•t -.~:~~: •......... h·!···· ·~·_,. ... ·:1;. ·:, ..... 1t·~~:,·t·~· .:~ .... ; •. ! .•
(4) A statement of the-· estimated average· annual cost" of the total project
as;' proposed~ specifying·~any~ projected: changes·' in ·the costs (lif!!~cycle. costs) ·
over the estim~'i:ed financing or licensing·.perioddf the applkant· takes' such
c!tanges into account, including: ;1; r • .... ·· · :!
(i) .Cost of capital (equity and.debt);:1:.:. ::· .. i ·, . · ... : .. <•: ..-:
(ii) Local, state, .and Federal taxes;1 '~ .... ::;·· •. : ... ::iii l ·.::·.!.,:~' (;
•.· (iii) Depreciation or arii~rtizatlon, an<f :·. i: ;·· : ·-.. . .. · :. --:
(iv) Operation and ~~int~na~~~---i ~-x-~e~~es, in:cl.udi~g· interim
replacements, ·insurance;-. administrative· and general expenses, and . . .,
contingencies; · .?1 ·; ~--•·• : ~ .;:··: •. •· • i· ··.-' · •.
.. l I • $ 0 ~ 1 : • • t ~" '"., • •'• I ' ~ • ; •; 1 ,
(5) A statement of the estimated annual .value of project power ba.;ed on
a showing of the contract price for sale o'f power or the estima'tt~Ci avera'ge
annual cost of obtaining an· equivalent amount·of power: (capacity and energy)
from the lowest cost alternative source. of power, specifyit:tg _anY. p(ojected
changes in the costs (life-cycle costs) of power irom that source over the
estimated'·financing or-licensing period ·if· the applicant takes such ·changes
in to acc~~n t; . . :; ·1:: . • I'
(6) A statement describing other electric energy alternatives, such as gas,
oil, ~oal and nuclear-iuele9 powerpla_nts anq other conventional and pumped
!ilorage hydroelectric plants; ·
(7) A statement and evaluation of the consequences of denial of the
license application and a· brief perspective of what future use would be made
of the proposed site if the proposed project were not constructed; and
1I 12,041 § 4:41 Federal Energy Guidelines
006--21
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l ,? I~!(S)>A 'state~e~t. specifyipgr; tbe;· sources and· extent of. financing and
annual revenues· available to the applicant to meet' the costs identified in
paragraphs (~)(1) and (4) of this sec;tion. .
:;! J ·~ .r&1 ; ''ili~ ·dtf~'"l: •• :: •• ~t) :~ ... t•·: ~ i~· · ..... •• .. , :·, ... 4
• •
i ,:1·: (0 Exhibit.E ,is. ari Environmental Report. Information provided in the
report.: must':; beborgani:z.ed: and .. referenced according_ to. the itemized
subparagraphs below:.I; information required is not· applicable, the applicant
must briefly explain why it i~ not applicabl~. For application for license for a
. major uncor1~tru'c'tedior ·major)i1odified' project" (more than 5 MW) submitted
under ',.ttli's::·subparf or!·'for 'applications for such projects (5 MW or less)
submitted unde'r 1§ l4'.60' and '4.61" 'of this part, Exhibit E must be prepared in
accordance '?lith, th~ following consultation. provisions, after consultation with
appropriate 'Fed~ral, state, 'arid 'iacaL:resoui-ce -~-~encies; as indicated in this P.aragr_~J?h 1 _.¢§iisy!~a~fq~)~~S.~; p~ ~o!=k~ente-:: ~r :app~nd:irig· to the report a
letter :from,,_each agency consulted. that ir.dicates the nature, extent, and
• -• ~ , .. • • ; I.~ ~o· .. : • ' : ~: ~ . t ~ • .. ' , · V • • ! • •. " • : . P \ ' " • ;.
results Qf.cons~ltatlon.·If any agency that '.m applicant is required to consult
fails to: con!iult""or' fails' 'to 'provide. documentation of the consultation process
within a reasonable time after the applicant' informs· the agency of the
proposed · projec~ ·and:.. requests ·to consult,· the applicant may submit a
summary.' of. tneJ: consultation· or attempts .. to· consult, .including any
recommendations: of ·the· agency. An applicant must, allow at least 60 days for
consultation··11nd documentation, unless the agency indicates that it has no
comment:.A list of agendes to be consulted can be obtained from the Director
of. the ·commission's Division of Hy"dropo~er. Licensing. The Environmental
Report must contain the following information, commensurate with the scope
of the project: · ·
• 1,. .. :: i • I ~
(1) General Description of the Locale. The applicant must provide a
general. description ·ar ·the' env'ironment· of th·e proposed project area and its
immediate' vicinity~·:· The ··description· ·must include location and general
information helpful to·an 'understanding oi the environmental setting.·· ·
..... (2) Report= on· Water· Use :and Quality: The report must' discuss ~ater
quality and flows and contain baseline data sufficient· to determine the normal
and .. se.~sonal·: variabHity, th~)mpacts expected-during constru~tion and
operation·,' ari~ . any~ mi~igative, enhancement, and protective . 'rr1easures
prop~sed'b} the .. ~ppqcant~ The r~port must be prepa;rcg in c~nsultation with
the state and .. Federal age.ncies with responsibility for management of water
quality. and quantity' in. the afiected stream or other body of water. The report
must include: .. .' · ·, _ .. · · ; .
J. '
· · (i) A description of existing instream flow uses of streams in the project
area tha't would: be ·affected'' by· construction ana operation; estimated
quantities of• ·water· discharged from' ·the proposed project for power
production; and any existing and proposed uses of project waters for irrigation,
dom~~tic. wa.t~r supply, Jndu~trial and other purposes; .
. • ·;. •. ' . • • '. ! . '... •
(ii) A description: of the seasnnal variation of existing water quality for
any stream, }ai(e,.or reservoir that would be affected by the proposed project,
including (as appropriate) measurements· of: significant ·ions, chlorophyll a1
nutrients, specific conductance, pH, total dissolved solids, total alkalinity,
Federal Energy Regulatory Commission
014-23
•
§ 4.41 ~ 12,041
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total hardn.ess; dissolved ·oxygen; bacteria~ t:w.pP.rature, suspended sediments,
u.irbidity·and vertical:'illurnination;~::·:ih~qs: !~~i: t;J ._:.: di ·~ :·~=~t: ···n :·:: .
(iii) A description of any exisd~~i 1 f~k~i·br i res~~~oki ·and ;a~y of the
proposed. 'project ;reServcirS':fncluding surface ·area, volume, maximum depth,
mean :·depth,·: flushing! Tate/; shoreline· ·length;· substrate· classificatiOI'l 1 and
gradient .for streams ·directly'affe1Ctea by the:proposed project; .. ''(."
: ·• ~ :~··:; :..~~! '.· s;•:1il·~:.i .. :;·;(,,'~ ";n'·j .. !•l!JJ~· .. ··~ 'HJ£· _'": .. t£! ;~j 1t +·-·:c" ~.... l•=! ·
::.1 :1 .(~v).: A·.:.Q\l.anti!,!c.~tiq~:r:?f::·the 1 : an~~~~P.ateq :impa.cts of .t!le propost~d
ccn~.trt}ctipl! 11 an~: op.~~~~io}7.,;1 .~f :.Proj~ch.f;J.~i~it~e~: on. Y{ater:· qual.ity and
9~wn~~.r~.~ ~l9w~, .~!l~~ .~~ .• ~~[):p~r-~.tpre, ~~~bj~itY,.~nd nutrient.s; . , ·u :
:·· . .-. (vf:k~raestfipti~n~roC:'ifkeasureiir'ebommend~d· tiy Fedef~l 'and. state
agencies an:d'' lhet applicanP'ro'r :the~p;urpose 'of :protecting or imil:C.oving· water
qua'lity'·aiid' :stre'ain'1!flows 1dLting~;prbject ::construction and' operation; an I
, explana'tibri' of\\~n'§ 'the1~pplica'n~t 'lias 'rejected I any' measures rec'omrii'imded' by
an agency; 'a'riH h?descriptioti'~£!ltne: a;pplicant·~· alternative measures to protect. or improvf!"<Yatefqtiali'ty stre'a·ffi:'flQW:.·i; 'i~ :::~;'.~. •·: •li :· _' _:·. • .·:·"-.
•• 1 .. \..." ... ~~~:.":~: .... •• t.· • .. ~:·tJ.!l it: . ..:"):·_,, .. !;•J! 1•~ .. ' •. ~ • •. ;.· ··:·" ~.
(vi) A description' of-groundwater in the vicinity of the proposed project,
including·.water table! andxartesian 'conditions,' the hydraulic gradient, the
degree to'.'\vhich groundwater£and surface water ,ue hydraulically 'connected,
aquifers 1 ~Lnd. their .. u'se as·.w·ater supply,.~and th.!.location of springs,.• wells,
artesian· flows and 'disappearing streams; ·a· description of anticipated impacts
on groundwater and measv~es: proposed·.byi the applicant and others for the
mitigation of impacts on·groundwater;·and ·
(vii) As an appendix, either:
t· . ... •• •• ':_ ! .. t ... : ·, ,, .. . • • \ " ..
(A) A copy of the. water quality certificate (or agency statement that
such certification is waived) as described in Section 401 of the Federal Water
Pollution Control Act <P.e.1n Water Ac~). [s~~ 3~ U.S.C. 134]; or· . · ·
(B) A copy of a dateq :le~~er frq11,1 ~he app_licant ~o the~appropriate ag.ency
requesting suet) cer.tificatjon: . · ., :: :. 1 • ·:. . • .• ••
(3) R~port on· Fish, Wildlife,· and BotaniCal Reso~/ces. The' applicant
must provide' a· report that describes the fish, wiialife, and botanical resources
in the vicinity ~r the proposed project; 'lexpec'ted impacts of 'the' project· on
these resource:;; and mitigation, enhancement,· or ·protection measures
proposed' by the applican·t. The report rriust b'e prepared in consultatio.n with
the state agency or agencies with responsibility for these resources, the U.S.
Fish and· Wildlife Service, .the National M~rine. Fisheries Service (if the
proposed pr~ject may affect ~nadromous, es~uarine, or marine fish resources),
and any state or Federal agency with managerial authority over any part of
the proposed project lands. The report must ~ontain:
(i) "A description of exi~ti~g fish, wildlife, and plant communities of the
proposed project ar.ea and its vicinity, including any downstream areas that
may be affected by the proposed project and the area within the transmission
line corridor or right-Qf-way: A map of vegcta.tinn types should be included in
the description. For species considered important because of their.commercial
~ 12,041 § '4.41 . Federal Enorgy Guidelines
031-21
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ot:r.ecreationahyalue~dhe 1nfoqnation provide_d· should include temporal and
spatiai.:<iistriq~tions·:-ahd:densities .of·such-species.··Any fish, wildlife, ~r plan~
spe_ciestpropose~:i.-or.Jlisted:·.as1threatened; or· endangered ·by the U.S: F1sh a·ta
Wildlife Service or National Marine Fisheries.! Seryice [see 50 CF.R .17.11 :.md
1,~.12}.ll)US1~1 b~_ip~nJtjfi1 ~~; .• , ,,,:.1 j ,!···•· .... ;, .. q ·t.·;, ... !.t .... · . · .. ,: ... ~-~' •• ., " .,.•Jlt.. " t .. • .... -4,., -!JI£ •••• a I f:J ... J •• • .. '·· *. . .~... . .
. ~· :1 ,(ii) ~~ r.d~~criptjon 1 :o.f 1 ~the:; anticipated·· i~pacts·:on fish,: wildlife· ~nd
botaJlical_.. r:esour.ces; :of. the: prpp~sed: constructiOn i and operation .of· proJect
facilitjes,: ~n~l\l:<HJlg: possibl~'. changes in siz~,. dis~ribuLiQn, and reproduction of
essential poP.u.laiiop of t.hese resQurces ancl .anY.· impacts on human utilization
qf.~~es~res~~~ci~~L;,l __ : '1'•~i:il:ri h,,. , ,;·. ·r··:· ...... :: ·. . ... ~,-t·~t· •• -1 / ;.t .. ~··· I ••• .! .... i •• -· •. o,.l• ......... <! :AI·-., . .... .. • ~,. ..
. . . (iii).l\:~9e~~rip~ion. of 11nx.m~as~:~res or f~cili~i.es recommended by state or
Federal ag~nc~e~·fpf, th~Lmitigat!pn ·of .imp~cts ~n fish, ,wjldlife, an4:bota~ical
resources,' or.for the protection or enhancement o!.these resourc~s: the impact on' thre~ie'ned otei1dang'ered·species):.and an expianation of why the applicant
haS • deierniineQ ~any 'meaSUteS I Or:: facilitieS • recommended by ·an agency are
inap.pro11riate··~s· .. well· :a'S' ~ laesd·iption' of'alternative. measures proposed by
applicant to protect f1sh, wildlife' and botan'ical iresources; and .
~ i i (i~) Tile· follo~ing mat~·rials 'anp infor~ation regarding any mitigation
measures or facilities,· identified under'·;Clause (iii), proposed for
implementation.or .. construction:. ~-,;: , ! ·.~· · ,,,.: .: ,1 . • •
(A) Functional design qr,a;w~ngs; ;:-:
(B) A description of propqse~ ~peration aJ!d main~en~nce procedures for
any proposed measures or facilities;
···l ··~;;.' r ;.:-··· .•. :,~ ... ,. • . .. <t' • ....
. (C) A.~.;i!m~lementation,.;~~~struction and .operation ·schedule for any
propose_d m~~.s~;~~ ~,r f~cilb~~es;.l:1 ••• ·; .. :. • . ,
(D) An estimate of the' costs· of constuction, operation,. and maintenance
of any proposed. facilities or implementation of ·an{ measures;
(E) A statement'of the sources and a~ount:of financing for·mitigation
measures or·facilities;·and: ~ ;-· ."·:· ,. :: ': ~ ::· .,
~(F) :A map or drawi~g show~~g,· by ,the. us~ of ·~h,ading, crosshatching or
other symbols, the identity and loca.tion of any'proi)osed measures or facilities.
• ! ~ ~ • : • . ' . • • • ~ • ": ~
{_....-(4) Report on Jlistoric and Archeological Resources. The applicant musl
provide a report that discusses any historical and 'archeological resources in
the proposed project area, the impact of the proposed project on ·Lhose
resources and the avoidance, mitigation, and protection measures proposed by
the applicant: The report must be prepared in consultation with the Stale
Historic Preservation Officer (SHPO) and. the National Park Service of the
U.S. Department of Interior. The report must 90ntain: . .
1..---/ (i) A desc~iptio~ pf any discovery measures, such ~s surveys, inventories,
and limited subsurface testing work, recommended by the specified slate and
Federal agencies for the purpose of locating, identifying, and assessing the
significance of historic and archaeological resources that would be affected by
~onstruction and operation of the proposed project, together' with a statement
of the applicant's position regarding the acceptability of the
recommendations;
Federal Enero Regulatory Commission
001-22
•
§ 4.41 ~ 12,041
..... _
\~. ;;:~ 1~ ... :~ ., :·~~ r ·;,!~J ~ , ~· ;_ . .. . . : ----~-~------~-1 . ~ '··. :::ii :::;•\ · ii.~o.o~· ... · ·. ; · ;•· Re9Uiclti9n'S 71 12<1-81
m.-
~-. '"' .. I :.4) :-.The: results t of:~s'uiveys;i 1 inv~ntories; ·;•and · subsudace· testing·· work
recoll)mended by tne!state\and, Federal:agencies listed above, 'toge.ther with an
explaiuit1on' by the ·applicant:df any.:.variations1from. th'e 'survey, inventory, or
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testing prbceaures:recoinmende'd;::;!-.·~ri-:i"t -'!1 i L:-~F ·I 11 , 1:1' · : •• : .. · .• , • ·. 1
/ (iii) An identification (without providing sp.ecirii:" ~i~e: or p~J~erty
l'ocatioiis) :or any historic'·or-~ari:haeol6gi~al site ~rn ·the proposed--project area,
\Vith ~ particular;-.~emphasis:on-n:rsites) or:::-properties :either! ·listed'"; i'n, or
recommended by.the SHPOifor:inclusiori in,· the National. Register of Historic
Places that would be affected by .the construction of the proposed project;
.v/ (iv) A description of the likely direct and indirect impacf~·~r proposed
project cons'truction;"or: opera doni on sites J'<)r!'!properties l either.: listed . inr or
recommended·as'eiigibie·ro·r., the National Regisfer bf Historic Plac·es; ·
~·:'<~) 1\~m~ig~·~~nl:P.·i~~~~ro~ ~he:~"v.Jid'i·~~~ a(J~ ~itig~i"io~·~t:'i.rnpa~ts. o~
• • t .-,, ...-• • .. • ; . • ..• 1 t. ' ...... 4: • • • 1 •" • • •' ~ • ~ 4 ' • s • • • ... • • h1stonc or archaeological s1~es and resources.based upqn the recommendatiOns
qf th¢. sta_te and Federal ·ag~nciep liste·d; above and con.tairtirig 'the applicant's
explanation" of var.iations fro~.thos'e.re~ommerid.~tions; anp
.: ~ • • t • • • .. -: .. •. ·' • f : -' ~ ... ' •• : • .. • t .. 4
.. , ,(yj): The follow~ng .materi~l~. an~ information regart .ing the. mitigation
uieasur£;5 de~cdb~~'iu1d~-~ paragraph.<0<1)<~) pf this secticx : :.
L..........-(A) A schedt!le for implementing the mitigation prc?osals; ·. : r. • •
(B) An estimate of the cost of the measures; and · · · · ! ' .
(C) ·A statement' of:·tne··sburces ind exte1rit of financing.
--(vii) The applicant must provige five': cdpYes (~~ther \han the fourteen
co~ies ·required under· § 4.3l(b)' o·r: the·:·commission's regulations) of any
survey, inventory, or subsurface testing reports containing speCific site and
property information,,:.an~i_. including; maps .and. photographs showing the
location and any requir.ed al~eration of. historic. ;1nd ~m.:meological resources in
r~lation ~o propo~ed .Project facilities.. . . . . . , .
t/cs) .. R.ep~;t· ~~ S~~-~~conomi; Imp~c~s:· The applicant mu~t provide a
report· .which identifies, afld., quantif}es the . .impacts .. of constructing and
operating. the proposed. i>roj~~l on employm'ci1l:"population, housing, personal
income, local 'governmental services, local tax r'cvcnucs and other factors
within ·the towns and counties in the vicinity of the proposed project. The
report must include: • · ·~: ,. · · n:; ,
H :: t ,
.._/ (i) A description of. the socioeconomic impact area;
...,.-.~ (ii) A description· of employment, population-and personal income trends
in the impact area; ·~. : ~ · ·
' < '1 • • •
--· (1~~) An evaluation of . the impact of. any substantial in-migralion of
people on the impact• area's governmental facilities and services, such as
polic~·fin~, health and educational facilities and programs;
(../ '(1v) on-site manpower rcquircme~ts and payroll du
1
ring a~d after project
construction, including a projection of total on-site employment and
construction payrqll provided by month;
• f , • •
I/' (v) Numbers of project construction per£onn.el who:
~ 12,041 § 4.41~ Federal Energy Guidelines
Oil ·21
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~~J.VfA).Currently reside·,.vfthin tne impact area;· :, · · d' ·., · ·: : · ·
: '{~Lj;(· B) 'W ouiJ! b1biriln~'te: daiii' 'lo~ th'f icons~'ruciidri '.site from .places situated · O'ut51<ie tfie irli.l)ai:'t: ar.e~,.:a.rid' ;~.:~ !~! • ; .• ;:·l··· · · :... ••· · · • · .. • .. ~~, •• p~ ', .. r·~·! ~ ....... , .... ,~. ,, .. ~. ,·. ; 1 • , ••• ;..:· ~·1·;._ ' ... 'i., ... :r..t'""'' :..-~.AJ.•~ .... : •• ·'.., '•'1.!•1... ... .. • • •
.. :~). W.ould relocate on a;temporary.basis within the impact area;
:~;i) ''A 'determi~atioi1 ~fwhethei the' existing' su'pply of available housing
withinttli~ hripac't ~area' is 'sufficient to "meet' the{ needs of the additional
population;
· ~ Numbers· and types ofresid~nce~ and busi~ess establishments that
would· be displaced. by the proposed project', ·procedures to 'be utilized to
acquire these properties, and types and amountr, cf relocation assistance
payments th~~ would be paid .to the affected property. owners and businesse!\; and • • • : .. ··• • I . . . • . . • , • •· •. • •
0viii) ~ fi~~il ... i,iripa~f ;!~~~l~~i~· evaluati~~·: th~ · increme~tal l~cal
government··expe'ndi~ures·lin relation to the incremental. local government
revenues that would result from the construction of the proposed projecL
Incremental .. expenditures may. include, but are not. limited to, school
operat~ng ·c.osts;:road .mai~tenance and repair, Pl;lblii:.safety, and public utility
: • ·;. '"' ~ • ... ..) " •• ' ~ -.•• ., ... ' • -. .. .. • • • it • •
c~~~;~;~s.~~··~~~Jo~ic~/~~~ S~il Re~our:e~. T~e·a~~licant ~ust .provide
a report.on the geological and ·soil resources in the proposed project area and
o~her lands that would be ·directly or ·indirectly affected by the proposed
action and· the. impacts of the proposed project· on those resources. The
iniorma.tion required may. be supplemented with maps· showing the lo~ation
and description of conditions. The report must contain:
/. (i) A detailed description. of geological features, including bedrock
lithology,:·stratigraphy, structural features, glacial features, unco~solidated
deposits, and mineral resources; .
\..../""(ii) A detailed description of the soils, in'cluding the types, occurrem::e,
physical and chemical characteristics, erodability and potential for mass soil
movement;
·""'.,.
· _..(iii) A description showing the location of existing· and potential
geological and soil hazards and problems, including earthquakes, faulls,
seepage, subsidence,. solution cavities, active and abandoned mines, erosion,
and mass soil movement, and an identification of any large landslides or
potentially unstable soil masses which could be aggravated by reservoir
fluctuation;
,/
... / (iv) A description of the anticipated erosion, mass soil movement and
other impacts on the geological and soil resources due to construction and
operation of the proposed project; and
V' (v) A description of any proposed measures of facilities for the mitigation
of ir;>pacts·on soils.
i..-/ (7) Report on Recreational Resources. The applicant must prepare a
report containing a proposed recreation plan describing utilization, design and
development of project recreational facilities, and public access to the project
Federal Energy Regulatory Comm!ssion
OO!l-22
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§ 4.41 ~ 12,041
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11·,0.04. Regulciti9ns 7.1:.' 12-1-lU,
/area. Development of the plan:shpuld.includeconsideration of,the needs of the
V J?hysip~lly ~f1ndi~appe9r·fiubJic.and rivate recreational facilities r.ovided by
other . hat wour . J ' cf 5 . e note ui the' re' oft. e report
must be prepared in consultation with appropriate oca ' reg10na1,···state and
Federal recreation! ragencies· ;and;. planning ·commissions~-.the National: Park
St;~!S~:Pf. *~. P .§. ;~~I?,ar;gp~P.~ ~f .th~ J~~e:i9r:; ~n~t ~ny_ <?~he~ .st~te or F~deral
a:~~.~cr ~i~h .•. ~al)ag~~Ii~J 1 r~rJ?OI]~~b.i}i~Y: f~r ,aqy part oJ. the project lands .. r~e.
report must contain: .. ,.. . .
~it ~d-1~.~~~.~P.\i_9'1;;;~f::S:HY. S:r~~~:.;~~~~}n <;>r in the vicinity of. the ~;o~~sed
p,r.ojc;~f:e~yn~~ry,1 t~~h..~.~~d':l.~l~~te~:..i.n, f!.T hav~ ?een d~signated for study for
u~cluston ~n:.1 .. :.1 •. J··I:J-: ·1 0 ~··r.u.• .. ·i·' i-1 •• }. ~· .,.. ;-. • ·'-·t· ., ,. . · ·
• •I' I o<ll ••• .~ ,. ~ • \..~.. " ~ .J • '"'" • ~~ • ... ,. • ~ • .t "" • .., • J ,.: ... ,. • • t; •
:i:·.!!' '(A) The·Natio1i~JWild;aiia s~enic:Rive~s Systems (s~~~l6'li.s._c. § 127,1);:
. . .~Bt; T~~ .~~~~~na:t~ra~11.~ is~~~;~ .<s~~)f:: p ~S.C. ~.~-?~I?!:·?:~ ..
(C) A wilderness.~rea designated.1.1nder the Wilderness Act (see 16 U.S.C.
§ 11~2); :•1 ..... • ... ·:ii ~ .. n> .:..):, :·~i~.··.:.' ·.•:ii r •• ·! -· ! .r~·.·· · :. •
~i) 'A detail.ed description'.ldf ex'isti'ng recreational 'raciliti'es! within the
projeCt v1driity,r•a'nd :itleipublitre~readonal facilities whicil are· to be p'rovided
by the applicant a~ its :ole. cost or in cooperation with others no lat~~ than 3
xears from the date of ·flrst: commercial 0 eration of the orooosed or Je a
t ose · recreallon!i acmtles · anned for futur develo ment based on
anticipated deman'd:J When pu lie recreation facilities are .to ·be provided by
other entities, the applicant and those entities should ent~r in~o an agreement
on·the. t e of.facilities .. to .be rovided and the method of Copies of
agreements wtt cooperatmg enllt1es are·t,o e appended to the plan;·
. JI•)'J ·A\ "I C' , ...
~) A. provision :for: a :sHoreline· buffer zone· that must. be within the '1
project. boundary, above 'tlie·non..tal maximum: surface elevation of the project l
reservoir, and of sufficient width to allow public access to project lands ;~nd
waters an~ to prot~ct . ~h.e sc.enic, publ~~ recreational, cultural, ~nd other
environmental values (,r the reservoir shoreline; . · . .
•
/ .... ·• :. ,. : ~ • • ~ • ·:.. 1
(iv) Estimates of existing and future recreational use at the project, in
daytime and overnight yisitation (recreation days), with a description of the
mctho9o!ogy used fn developing th~~c dE;tl~; . . . •
(
Vcv) A develo;me~~ schedule· ~~d c~st estimates of the construction, )
operation, a.n'd rna. inlenance of existing, initial, and future public recreational
facilities, including a statement of the source and extent of financing for such
f ar.ili ties;
LA-v'i) A description· 'of any measures or facilities recommended by the
agencies consulted ·ror · the purpose of creating, preserving, or enhancing
recreational opportunities at the proposed project, and for· the purpose of
enS\.! ring the: safety. o( · the public in its use of project lands and waters,
including an expla f why the a licant has rejected any measures or
fac1 1t1es recommended .by an agency; ~I! . ""'-..._
v (vii) A drawing or drawings, one of which describes the entire project.
area, clearly showing: ..
~ 12,041 § 4.41 Federal Energy Guidelines
016-~2
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~~ .: . ~ 11:·· ~ . • : 7:l~·ii~:l-8.1\ "-. . .: ,.. . : . Regula~igns· 11,005.
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' 7' --Ji:: ,,~,,J'he 1 loca \ion ,qf projec\ lands 1 aild ·~he· types • and; n)lmber of existing.
~ r~cr:eatio.Qali facjli.ties·.and,~~~ose.: proposed .. for.: initial develop'ment,. including
--·
..._... a.t;ce;iS_rQads:and trails,·.and facilities;for camping, picnicking!·swimming, boat
d.QC.king..r and·· :laun~hi.rig;i Jishing1 and~:· hunting,,. as· well· .as· provisions for
L
·....._.
sanit.ation and;wa$te·disposal;:!·~ :.::!•.'llf!.h\. ·= ·• ~:!!H~ .,.: il-.:1 •. !t;! .: 1 •. ••
.. ,. •. • .. .. I~ ,. .• ' • • ,. • 1: • .... ..
V(B) Ti1e location qf" project lands, arid :.the type ·and number of
rec:;.-eatiQnal facilities: planned for fu~ure.developmenq. ·:-.!. · ,,_, • • ! ·. ·
f:'~cfThe. 'icicailo.n-u&r·'1a·ii ~'rbjec.\:· ia:n. d.· s· re.served.~ far.,'ricr~atlonal uses. othe~ l t,han th.ose included in paragraphs (f)(7)(vii)(A) and (B) of this section; and j
'~):_:1-~~l, ~.~?j§c~.,.~~9~d~ry::Xexchi~f~g .s~r~e~i~~,:~~ei~ilsr ar a~t ar~as.
designatea ·fc,r~ ··recreatiQnal''·development:'· sufftctently:;} referenced to the·
appropriate E:~hibit G drawings to show that all·lands reserved for existing
a.nd. fut~re pub}\~ .n~c;r.ea~ion~tdev~Jopment and the shoreline ·buffer zone are
includcCl within tne p~;oject;. boun.d.~ry: Recz:eational cottages, mobile homes
and year-round residences for private use are not to be .considered as public
• ~ t" • • •,. •• • I I ' • ", r t 1 ~ ~~ • ~ · ·, ' I t I • ' "
recreational' facilities·,· and the lands hn\vhich these private facilities are to be
deve!9Ped are not to be included within the proposed project boundary. · ·:
..:;::;4tsVRepoFtioii;~estheti'c·Resouicils. :Th~~·a~plicant ·must 'orovide i report
o • "' J • • I' "I ' • , • .. , • t ~ o that describes the aesthetic resoiirces~ )of!' the p·roposed project area,· the
exP.~cted impacts • of. i. thi! : projeGt, on · t~e.se· resources, and· the. ·mitigation,
enhancement or protection measures proposed .. The report must be. prepared
following consult.~tion ;:with, Federal;;1 st.ate,. and· local· agencies. having.
managerial responsibility for any part cr. ~he proposed project lands or lands
abutt~ those' lands. The 1report must' c~h'tain; ' · · . ·· '· .
Vci) A description ;~i·the aesthetic· ~ha~a'ct1er 'of lands ~na .waters directly
and injttectly affecr:ed blthe proposed' project facil~ties;·. ·:· · · .. , .
/cii) A d~scription of the anticip~t~d i~pacts on aestheti~ resources from
construction :activity. an,d rela;ed' equipment arjd m~~eriai,: and tqe suosequent
prese · e oC proposed project facilities in the landscape; ' · ..
. . . . ' . . .. .. ! . • . . .. : ;. ~ ' ~ . . . . t • .. .. & :
· .. · (iii}· A des«;ription of; mitigative :measures proposed· by. the applicant,
including architectural design, landscaping, 'and other reasonable treatment to
be given project works to preserve and enhance aesthetic and related resources
durin_g construction and operation of proposed project ~acilitics; and
~(iv) Maps, drawi~gs and photographs sufficient. to provide an
understanding of the information required under this subparagraph. Maps or
drawings may be consolidated with other maps or drawings, requir'!d in this
exhib}l:'at:ld must conform to the specifications of § 4.32.
/(9) Report on Land Use. The applicant must provide a report that
describes the existing uses of the proposed project lands and adjacent
pwperty, and those land uses which would occur if the projec.t is constructed.
The report may reference the,discussions of land uses in other sections of this
exhibit. The report must be prepared following consultation with local and
state zoning or land management authorities, and any Federal or state agency
with managerial responsibility for the proposed project or abutting lands. The
report must include:
Federal Energy Regulatory Commission
009-22
§ 4.41 ~ 12,041
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• ~ • : " ' ;. -.: t' ~.. ~ l •
I'l\006. · ·.; · : .· · · · · Regol~tions' 71 . · 12-t.at
~) 1 A:· dc:Scri~tion :: of.irexistihgh li'ind.l:use in i the lpropased ~:proJect=' area,
including· .identifieatiorll of:.wetlarids,l· floodta·nds,:pr.ime ·or;·unique farmland as:
designated·:b}·!;thedSoil:::~onservation·•:Service ~of' tlie::U.SJ 'Department of
Agriculture,. the Special Area.Mana·gem'ent: Plan· of the· Office· of !Zoastal Zone
Management, National Oceanic and Atmospheric Administration, and-lands
~~n~~·~~ ;~~bj~?~.to:.~;o~tr~~19Y .~~Y.er.n~;ent ~~e~_cies; !. ..
_,/(ii) A description ofrthe:.proposed•land uses .within and-abutting ·the
proje:~.boun~~r~.~~~.S·lY?H~l~ .. ~c~ur_~s~.!.~esu.lt _of d.eY.~lop~~~P~ and operation of
the proJect; and.~.!J ~);!,:'!I '·r.· ,, .. , :;,.l ,. ·1. . ... 1 ".-i,.. ·. · •• t .. ~t,.t'<~•••-... "•11; Jl \,'-'•.,. i.;.1f"'",/;.,.· •• t..~''·; "tl • •·I• • ..:'·~·1 ,I .•'!;•
r·1:A(isi) Aerial.,p~otog~aphs,1 maps, .drawings. or _oth~r graphics sufficient to s~~~ ·. ~~e': .1~~~~9p;1 ·e~-~~~k:~~~~ ~n~iHf~: ~! i th~· la~d us~~; r~fer~ed · lo in this
5g~H~~::: ·.:·· b:~:·t.•~:J"! :;fm,:i \l.: '.·:n.~ •'lt·r .• : 1 ~ ~; Ji·.· 't!' !J .ild:,L · · ·:: · •· : ·L/'6o) Alternative ;£Oc_atio!ls/ iJesigns,..'and Enerir Sour~es. 'fhe applicant
must·provide an environment:assessment'of -the following: . :... : · .
;..•r,'• : '·. i .tt .,.: ... ~i ft' ·• ·14 •·; ~ .·1' !)lj.! ~· ••· ~ ""' : ,.
t: ..... (i) Alternative sites considered in arriving at the selection of the proposed ... : . •* ... I : 1 *..t •• I• ~ ••• ' i I ! ~('I : .:.: ( l 1. •
proJec~ s1te; • , :·· ·: : . . .. . i 1 I •• •• • • , • •
L/'Ji,i): Al~e;n~~~'f~,:ra.~it!·t;, ·~.d.rs!~;~~!·.' ·~~~~~es, anqr.~H7raJi9\lS.. that were
cons1deted and the reasons for them reJeCtlOn; . . · · .. . .. , . . ,
, , .e..,1o -"' l t I ,.i ' • 41-•\,.: f, J • 0 1""' • •• • ,: _I • i~•• IH ..: I • • o '-· • ••J J • t
.v--r(my. Alte~naiive electrical' energy sources; ·such' ~a~ gas,· oil, co~l, and
nuclear-fueled power. plants;: purchased power or diversity exchange, and other
conventional and pumped~storage hydrcielectric plants; and · ~!
".. · .. · .. ·. , ~ i ••·· .. ' . .-.. ; • ;.. I .. · "" · ' ~ !
(iv) The overall consequence~ if the. license application is denied . .. ·.H·~~~~' .. J J, .. ~.. .• •: • • •
1 I (11) List of Literature. Exhibit E must. includf; a list of all publications, r~ports; and other lite'rature :Wh~l=li.; w~ie Ci'ted or other.wise utilized in. the
prep~ration of any part of the environmental report: • .
·~ 'f -~ '"* ,. ·~~·~!.. .. .• .. -! .~ .... ·, ~ •·t. ~ .li". .. . •
... (g) Exhibit' F'consis.ts of general 'design dra·.vings of the 'principal project
works described'':und'er . paragraph tb). of this section (Exhibit A) and
supporting information used ·as. the basis Of design. If the Exhibit F submitted
with' the application is preliminary in· nature, applicant must so state in the
application. The drawings must conform·tO the specifications of.§ 4.32. ·
! . ,. . .. • I~ • • .. • • • · , • ~ t ~ : • • ' • •
(1) The drawmgs _must show all maJOr proJect structures in sufficH!nl
detail to provide a full understanding of the project. including: · ·
(i) Plans (overhe~d view); ! . . . , •
(ii) ElevJltions (front vi~W)i .. ·: ~.
(iii) Profiles (side view); and
(iv) Section~:' .. · . ::
11 (2) The applicant may submit preliminary design drawings with the
arplicfltion. The final Exhibit F may be submitted ·during or after Lhe
licensing, process and must show the precise plans and· specifications for
proposed s~ructures. If the project is licensed on the basis of preliminary
designs, the applicant must submit a final.Exhibit F for Commission approval
prior to commencment of any construction of the project. :
~ 12,041 § 4.41 Federal Energy Guidelines
018-21
•
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;:, . : :· ~ ~-... Yi~~:t~• ,;· . ; 'I· ; ~·. ·' . 'l • l·:"''~.t;;\t.l ·~;'1•, • '~;.,; '. , ', •·. i ·. ··1:·;:!~,,1 ··• ... ; ... :.· . .-:r-1·~ · · ·:~r~·.
'. . . ' . . . 'i . .. . f .. l .r. 12-1-8~ . . , ·I .. : Regulation's 11,007
i. • ; • ! i : · ~ · u·
:.. ·1 ~ l · ·;. ~~Jl:: fJ)1 ~S~pfl~rting.: :Design: .·Report. :,The . applicant,· must furnish, at a
( ··~ 1; • • minhnum,.1theJfoJlowing,supporting:information to·,demonstrate that existing
~-· \fond: pro~~d . .s~tl\~.t.ur~s.-~e safe .. a.nd _adequate.toJulfill their stated functions
\_ .. :
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~nd!·.mu~h.s~b.IJli~ ~~~tt .. inform~uion· in! a sep,ara.te report at the .time the
~ppHca~lQQ:i$·.{il,e~ .. :fh~ r.epo,r~·must.ipclude: !•:: .; .. ~:; :· ... · : ..
r·l :·.:l (i) ::An '~as~e~sn!i"er!t i.of"tHe~ l suitability: of!th~ · ~n.~·· and . the reservoi~ rirn
s'iability I. b~se(fl: 'on·~. ge'ologi¢~P an(! . subsurface. investigations, including
investigations!: or .tsoi~sl and)ock 'borings ,and tests_ for the evaluation of all
fouridationsi•arid Iconstriiction-'mate'rials sufficient to ·determ.ne the 1 lOCation
and type of dam s'tructtire!suitible'·fcit:the'site;·· ... ·; .. :I·<!. . . · .. : ...
·~.J :;: (ii) Copies"of boring·logs,r geology reports and laboratory· test reports;
" • ... • ... ,/ • " ' . ' .. t • ~.) 11.;(iHr: iW 1 metiiifib~ti~i{ -'~i';~~wr·t,c:;rA);. ar~as~ -~~d qua~'rY s'ftes a·nd · an
~stfmat{?~r~~r&!r~~fq~a:~·~iti# of ~{i~t2.ble cbnstrudiori':~aterial;
.Ill• •'I ~1.£.1.• .• ·.··• ·J ·~;-;uJJII\,1 :ll.J .,1~.(1 J,•, • •· t ·••· • •·· •
.: t. (iv):-Stabinty an~ _stress, analyses: for! all major ·Structures. and critical
abutment ,s!qpe~ 'under all.! probaple loading conditions, Jncluding seismic and
hydrostatic forces induced by water loads up.tg,the.Probable Maximum Flood
as appropriate; and
·~:· .; ~ 4:• ~··til i'~J't ·-~~·••"r' f 4• .;+f'H~)J•) "'~'H~1 P ·, ,! •. ,,· .J~ ~nj ,~.
. (v) The bases. for 'deh{rmination' of seismic .. loading· and the Spillway
Design Flood in .detail suffi<:ient•detail to independent staff evaluation.
. . (4) The applicant must:submit five. copie.s (not fourteen copies as
required under § 4.3l(b) of this ·part) of the supporting design report
described in paragraph (g)(3) of this section at the time preliminary and final
design drawings· are submitted to· the Commission for review. If the report
contains · prelimh1ary drawings',·· it· must be designated a ''Preliminary
Supporting Design Report." ·.· : ,.:::. . . · · 1.~
~(h) EY.hi'pit .G is~:~1-~map·:~f t~e pr~ject that. must conform to the
specifica.tions 'of § 4.32. 'If more than one sheet is used, the sheets must be
numbered. consecutively, and each slieet inust bear a small insert sketch
showing the entire project and indi~atjng that. portion of the project depicted
on that sheet. If at any time after. the application. is filed there is any change
in the project boundary, the. apP.licant musk ~ubmit;. within a reasonable
period rollowing ~h~ completion 'of project cor~~trur.tion, a final Exhibit G
showin,g the extent of such c~anges. The map mus.t show;
t----(i) Location of the project and 'prinCipal features. The map must show
the location of the project as a whole with reference to the affected stream or
other body of water and, if possible, to a nearby town or any other permanent
monuments or objects, such as roads, transmission lines or other structures,
that can be noted on the map and recognized in the field. The map must also
show the relative locations and physical interrelationships of the principal
project works and other features described under paragraph (b) of this section
(E~tA).. .
,... (2) Project boundary. The map must show a project boundary enclosing
all of the principal project works and other features described under
paragraph (b) of this sccticr. (Exhibit A). If accurate survey information is
not available at the time the license application is filed, the applicant must so
Federal Energy Regulatory Commission
009-22
•
§ 4.41 ~ 12,041
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Regulations. 71 : 12-1-81
state.ana a tentative bou.ndary.:mayo~. s~bmiiied_.:The.boundatk.mus~.enclose
onl' those·land;s cessa . for:·o erat1on:~md ·mamt e of t e ro ect:and
: fgr other project purgo5z.s,.suc ·as flowage, P.U ~i~ recreat~oh{~~oreline.c·ontrol,
or: protcct10n of· envuonmental :resources.: If the· boundary 1S' ~on land covered
by a public land survey, ties must·tie showh'ori the·map·'~t sufffcient·points to
permit accurate platting of the.position.of the boundary relative to the lines of
... , : .. •.• ·-t• ··~· l••'-'• ·r. ,,.,1 \"' ... ,•~•a .. ·• .. . ... ;, .. • th~~P.Hbl.i,c Ian<;!. SU!Y~Y.·.r~I tht;)~~d~ ,~re ;n.<?~ c~ye.r.ed.PX aJ>Ub~i~ land survey,
~~!!··Re~t.~yail~ble.l.~gaJ. de_s~r.ip~i~~ ~f.~~~-position .. ~f, th~ bol;lndary in us~ be
pr(nrjq~~, : .incl.'-'9ingk.~is~anc~s .. l~~d. ~j.r~~tio!ls. i.fr.om: f~e~ 1 .monymen ts or
physical features. The boundarY. .~.':l~kPC:.P~¥=r.ibed asJollf?':Ys: r• .: . :. , . . · . ~i):hnpoundments.:.The boundary:aro~nd a· project im · oundment must be
no more than 200 feeL(lionzontal measurement rorr. the exter~or. maq~in of
the reservotr, oelined by iiie 'normarrilaxihttirn surfice 'elevatioh, m.:cept where
deviatJons may. 'be' ri~c'essaJ . 'in '·i:ies~dtiil( the . boundar . a~i:ordin ' to 'the
inetn&l used,· or: where ·a ttional':lan s·;'are necessary;for·project·purposeY,
~uch :as. public· ·recreati$!} .. ·!The oound"ar may. be: described b any: one or a
combination of thiTOifowin! meth s:~··.:.:•.H ·.·· .... · ·· • ··· .; ;.~.,. . :. : · · •
e . .;r~;; .. ~. i ~·"·
·~-~~~:.Canto~-~ .~i~~{!!r~~1lu~i~g. ~e~eo~~~u.:r~:~~~~~!~n [~fe.!~~f~d ~~thodJ; or
~B) Specified courses·and dtstantc:s (metes· ana bounds); or·., · ·
~C) If the 'prefect: lands are covered by a ·public land survey, lines parallel
to the·Iiries of tne survey; : .. ' -~ · ~: u • 1 • • : . : .•
; . . .. ;~{ ~! :• · s: L .... !:., .. !!·:~t~ '.'i~. •·f ~ !r. :~(·::·-:··. :.;:!. ;. :! . -.:· .. ~:
~ (ii), . ContitJuous Jeatures. Th~: boundary around linear project features
such as access r0!.4s, transmission lines and conduits may be described by
si>ecified dista.ncel.1 from center hnes or offset lin§·of th~,survf!y. The width of
such corrtdo~ mt~sf: no~ exceed 200 feet, unless g@d cause is shown for a
greater width,. Severa! sections pf ·a continuous feature may be shown on a
smgle sheet/wfth information showin'g 'the sequence of continuous sections.
~ ; • 1 ... • J " • •! J .1. • • : J .. • ! ~ .. • ~ . . . . •
~(iii) Nonco,,;iiJUous features. The boundary around noncontinuous project
WOrks SUCh as dams, Sf!illways and powerhouses must enclose only thoseJil.rujS
t?at ··are necessary for· safs, and efftcient operation and rnaintenanc; of the
proJect, or lor other specified project :·purposes, such as public recreation or
protection of et.vironrnental resources. The boundary may iJe described by any
one or a..combinabon·ol the following. methods: ·"
·--~!:(A) Cont~ur lines; or · · ..
_'. ·(6;) SpecHie~ COij:"Ses and dist~nces; or
~·(C) If the project lands are.cove~ed by a public land survey, lines up~n Or
paraJlel to the. lines of the survey. . · .. • .
t/ (3) Federal lands. Any public lands and reservations of the United States
("Federal lands")1 [see ·16 U.S.C. 796(1) and (2)] that are within the project
boundary, such as lands administered by the U.S. Forest Service, Bureau of
Land Management, or National P~rk Service, or Indian tribal Ianris, and the
boundaries of those Federal land ' .st be identified as such on the map by;
1f 12,041 § 4.41 Federal Energy Guidelines·
038-21
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·~~z . ReQuiOtiori$ 11;009
:::;;, !:(i) ·I.:egal··.~u~di;/isit)ris"of ~a· public land survey of· the· affected area (a
P.r~t~ac.tjon .· of:::~~~p~gi~9.' l!o~Ji~:hip.' an~;· sec~i~n ~~~es )s: sufficient r~·~ this
· ~~~~\:;,:d;;;~~;·~~~~~~:·:;~.~~~;ed ~y sy~boi ~i ;~~;~d,.~h~t maintains or
rmi'~age~· e'ad-i':id~entified ·'sl;lbdivision of_ t~e .pu~li.c la:nd survey within the
proje}:('boundary; or... -• ,:, :. -. . .. . .. ,. . . : . _
. :V(iii) I~;.the 'ab~e.nc{ of
1
a public land survey, th~ location of the Federal
lands according. to the distances·. 'imd directions from. fixed monuments or
physical fe2ttur~~ When~·a·Fedeiil.~Mrve)T J11o.num·eni 'or a federal bench mark
will be destroyed or. rendered unusable by. the construction of project works, as
~east two permanent!· marked witness monuments· or bench marks must be
established ·at acC'essible points: :The maps show the location (and. elevation,
for bench: iua~~)",Qf the suzyey. !~~nument ·~~. ~ench m~rk''which will be
destroyed or rendered ~r.usable; as well as of the Witness monuments or bench
marks. Connecting· courses and distances from the witness monuments or
bench'jmarks to the 'original must al~o be shown.
t ,. Y.. • I ~1 f &" ~ ·• l" "'Jh ..
· v (4) No~-Fede;aJL':inds .. Fo~·-those lanqs ·within the proJect boundary n~t
identified under. paragraph (h)(3) of this section, tll.~ map must identify by
legal J!hdivision: .: :.~ .. 1• ·; • .. .r 1 t.. · . · . . ., · ..
7·(i) ·Lands o~tied in fee by the applicant a~d lanas that the applicant
plans t 'acquire in fee; and .. ; : --."""! .. ---'"'~----
ii) Lands o~er ~hich t~e applicant has acquir,~d .or plans to ~cquire
rights to occu}Jancy .and use·other than fee tiUI!, including rights acquired to
be required by eas~ment or l~a~~· ' :
.. ,~.!, ·.: 1. '· , • . ,, .
. 01 46 F.R. 55926 (November ll, t9s't):·. "
.05 Historical record.~ection4.41 'read
as follows until it was ~~ended in' 46 F .R.
55926 (11/13/81), effective 12/13/81: · ' .. • ·
."". .Jth;~o1 •• 4
§ 4.41 Required exhibits. . '"" . ,.
The following exhiblLs must be ·filed as part
of the applicalion {or a license. Any exhibjt not
incorpora.led as a 'part of the applicatioll shall
be certified in conformity with § 131.4 oi this
chapter. Exhibit /', may be incorpo~ntcd in an
application by reference where ar. applic~nt
riles applications for several projects one of
which already contains an Exhibit A or, 'in aoy
case, where an applicant has filed an Exhibit A
wi.hin 10 years preceding the filing of the
application. -;
Exhibit A. If applicant is a corporation: O:!e
copy of charter or certificate and articles of
incorporation, with all the amendments
thereto, duly certified by the secretary of state
of the Stale where organized, or other proper
aulhority, and tte r.equired nuinber af
additional uncertified copies; one certified and .. .
Federal Energy Regulatory Commission
097-34
the required number of additional uncertified
copies of the by-laws; and six copies of the
certificate of organization with one additional
copy for. each interested State commission in
conformity with § 131.3 of this chapter. If •.he
.project is located in ·another State than that in
which. llie corporation is organized, a
certificale a119 lhe required addiliond copies
shall be submillcd !rom the secretary o( state
or other proper authority of the Stale in which
the proj~ct is located, showing compliance with
the laws relating to foreign corporations.
· If the applicant is a State: Copies of the
laws undu authority of which the application
is made, or reference thereto.
If the applicant is a municipality as defined
in the Federal Powtr Act: One CP!lY of its
ch:tner or other organization papt.rs, d.uly
certified by the scc~elary of state of the St:lle
in which iL is located, or other prQpcr
aulhoriLy, and t.hc required number of
additional uncertifit:d copies. Copies t.f, or
§ 4.41 1{ 12,041
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!--.~~~~~------~--~~----------------~--~~~~ 'f · ... :J.i.;.:it:::!l·I::!Pit ~ ..... ·:~_ ··~·: ~ .. : : ·~1 !1 · ,.. · ~ . ·f -I
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·1.·1 n N _,;'!lf;:! ·;.:1~!~.;r·:c~·.' -~ .. ; .-·· ...... ~.lj:.' I . . I . . !':
~-~-.'~_~i~~.-~1.~~-:~:-·!~:·:·...:~: ;:·:~l;QlP ·;· . :~. _.-·1·: ·: _Regulat!9ns t.; 1·2•
-·-·-·\· .. ·--f ...... i.,,.. i·• . · .. ;· •.. ·r .• · .... 1·· .~;. •• • • 7 1-81
t . ..: :.:· .. · . , f .. ,1
1
~ ::: _:· ;~;e!~~;~ r~~ .. :~~~ .. ~~~~;: }~'fi.~ ~~1.p9r.i~in_g,:~e :J hil.~e~c:i~ i;V~quire~ !>Y:S~t~ 1.~~ as _a ~«!ndition
1 ~ • '1 . 1 . oiJ4:~tions contempla~~d .~Y l~~ -~~p~i;?tjQq,~ 1 .-. rPr.~~~~~nt to, th~1 :appl~~~~t s: rtght to_ l~~~ or
i
11
• • tne· app &cant ts a natura person: n • ..
( . affidavit by applicant that he is a citizen of works, duly certified evidenc:e·or sucti approval
1 I · r."Ir 1'd 11 1''1 •t ••.• ·" r: •• l• .. J• •• • •• rAJ.J ... use the water for the·ope·att·n of the proJect
H 1 ~"e~Y~J~~q;~~a~e~!:!~~l~~.eJ~~qu~~~ -~~~~! Pt :.1_or -~~mission, l?r a_sh~~;in~·of cau~e :why such
!11 adqilio~al copies .. t~~r~f ..... ~ ", _1,.. ~ ~· ~ ~.,. ~vt~enc~ .. c~nnot be /ea~~abl:( -~~bmJ~t.ed s~a!l i!l·ll· ·. ~:!· _,,. r I! l!.lit: .~ .•••••. !.lw:.f .. tfr. •.. :i J.w ,oJ also· be•·hled 'Wtien a 1Slate··cerllflcate ·JS " ~ I the appucant ts an assoctal1on: une . · . ~ , . •
1 verified copy and the required number of tnJO!v?d• one cerllfie_d .... opy· an~· the reqmred •
il' · " ~~dit~on~l-J;opies:~f:.i~;~~~i~l~~}l! .~~~·tion,·~z.::J~:JOr;:.l ~~~n;~~-':~!.!.led __ ;:~p~es shall be •. ../J \
ii',,,l~.ll.,: u··... lf.th~r~~~~q~:!':fPcl~,of;a~~~.att~!\~h~~-f~ct. i~::r .... ': :··: , .•. ··: I' Jf' sh.~p . ~. s~ate~ '?Y~r .. ~H~ -~.1gqat.~~~
1
ot_ :~ch :. . h1b1t F. Fut~ ~et~lls as ~~ la~ds owned by '-I ·-,
member of the 'association •and the ··requirea:. apphcant, ·and as to· apphc:ant·s -plans for 1/
!,)': aaditimial'copiei of the ·statement submiL'ted~ri !:a~quiring title:to or the ·right• to occupy and~
H A:'complete·lisr. of; members and a.J~~te.ment;9.f: :!-.1:1~.: )a,nds .. qther_. t~~'!-:~h.~ ... owqed ,bY. .the
·· the citizenship of ~ch. must.be •given: in-an.,., applicant.or by the United States, necessary or
1._,1111·.. affidavit''t)y one' ~1 the~:ancfi\n' ori!l~'~i arid':" issentiai' for 'carrying ciutihe proJect covered
" ·the -required ·~umber ::.,c'-~dditloria) ·~opiei !!'Hy ttie' application. 'If 'th~ 'applicant, al the
~.1 submitted'.-~ .i.'Ll :id .. lt>iit (l.!H1.l!W ~:11 It~ c:!: If~time:"of:~fiiing 'application;· has' by easement,
~ ·;·:t.EziuDii B; Copy ofall minutes: resoluti'"ons 'of 'i ~~ lea5e, franchise; or othei"A!ise acquired the right
.
:. u. stockholders or directors, or .!Other~:{~~. ~C:~P~: ~n.d: !-!Se ,lal]ds ,o~ned .by 9theys, the
1
representatives. of the applican~ •. properly, sta~emen~. s~ould. show wt~h res~ct to each
attested;: and' the reqiiired ··addi'ticiriar: c'opie$:: ·;).separate rtgllt-of.occupanty.rand use-:. . j authQrizinK.the.filing of: application{:~ i: i·;;: ;~i:h 1.;(1) Front whom acquired.~·! v' : ·: ... · ! •
j!: , .. · Exhibit C .. I! special hydroelectric:, (2) The date acquired. :;·;. ·V· ·; .. /
w~~~rpow~~. o~ trr!S~t~on 1~\VS of. the ?ta~e ~r ..•. (3) Nature and extent of the right acquired. .
I :States involved pertain to tne' construction of • I" J. • ' ' · · · · · • · . • r; · · / / . . . . (4} Whether perpetual or hm1ted term.
I the apphc:anL's proJect, submat coptes o£ such · ~. ~ . ~-~, . ~ ., '·'·'. · ·
·. . laws Qr reference thereto. (General State .. (5) If of _hm!led term, when. such term
I i~corpo·;~tion acts are not des.ired.} : ,·.''\l .:.!.·-. expires.•' I l!. •W'!l : • ';• .. ; .. ·-! ·. . . E;rhibit D. 'Evidence thai' th~ applicant has ·, :; d '(6) For _each parcel acquired, the area i_nside / ! ·· comphed with the requirements of the laws of of the.pr~Ject boundary and the area .outstde of ! · . the S:ate or Stales within which the project is the . P.•oJeCL boundary, and a reference to
r I to be located with resP.f!~t.tQ bed and banks Exh1~1L K. . . ·-.
! . ~nd LO lh!! appropriatio~ •. dive;sion:-'nnd usc of . Exhibit G. Statement showing Lh~ financial i 1 wauir for power. purposes' and \•ith reSpect io ai;ility 'of the applicant io carry out the project 11.. the '• ri~ht to . engage . in . i.he .'t:iusiness'''or ill~piied' ·ror, ' l'ogethei with •a' statement or
power, and in any other businw, neccssiiry' to financing the construction thereof. . ' .
!, .I ... ,· . ~eveloping, transmilling,' ''and dinribut.'ing e~planation :of· th'e proposed ·'m~tliod of
effect the purposes of the license applied. Cor: i ExhiBii 1 n:: A stateme~i: of' the' proposed
1 including a certificat'e ~·or-'convenience and ~pera·tion 1f th.e project worked during times of
l necessity; if'required. ·This:·evidence shall be low normal and flood flows on the stream
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accompanied by a statement of the steps that inciuding a.' staterncu\ 'of reservoir' elev:1 Liun~
have been taken and the steps that remain to anclthe minimum flo~ proposed to be released,
be taken to acquire franchise or other rights (Hiring the recreation season :ind periods of low
fr~m St*tes, . counties, .. and municipalities wale~, . and, lO the extent possible, full
bc10re the proJeCt can be c~mpiet.e~ and put e~po~i~ion 'of any proposed usc of the project
into ?.P~rat_ion. . ::;, .,-for the ·conservation and utilization in the
Exhibit E. The nature, extent, and publii: interest of the a'vailable water resources
ownership of water rights which the applicant for the purposes of power, navigation,
proposes to use in the development of the irHgation, reclamation,· flood control,
project .covered by· application, together with recreation, fish, wildlife, and municipal water
satisfactory evidence that the applicant' has supply. A statement of the effect, if any, the
proceid::d as far as practicable• in perfecting project would have· on water quality, in the
'its. rights to use sufficient water ior' proper reserv.oir or downstream, plans for maintaitting
operation of the project works.· A certificate or impro'ving water quality and a statement on
from the proper Stale agency setting·forth the the. extent of consultation· o.nd cooperation with
extent and •talidit.y of the applicant's water Federal, State, and local agencies having
rights shall oe appended if practicable. In case responsibilities for water quality control. A
the app1oval or permission of one or more State statement as Lo whether in reladon to existing
~ 12,041
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§ 4.41 Federal Energy Guidelines
012-58
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i Regulations· 11,011
d dr .·.1 ·. h · ·· 1 h · r h
71 '12-1-81
an propose uture projects 1n t e same or arrtvm at a &enera compre ens1on o t e
related watersheds, the fullest prac:tic:~.ble proj
utilization of the water, storage possibilities .. (4) Reference to the detail map (Exhibit K)
and head available will be made possible. indicatins by outline the portion shown on
Furnish operating rule for reservoirs with each sheet.
• draw-down and usable storage; State criteria
Car determining spillway capacity. To the (5) If all features cannot. be shown with
extent that ::~spects of water quality, referred suHicienl distinctness on one sheet, two
to .herein, related to fish and wildlife and general maps may be furnished, one for the
recreation are covered in Exhibit s or in power plant and appurtenant works, and one
Exhibit R, respectively, a specific reference to for the t~ansmission system. (See specifications
Er.hibit S or Exhibit R wm suffice. · fol)irawmgs § 4.32.)
Exhibit I. Estimate of the depend!ible VExhibit K. Detail map covering entire
capacity and average annual energy output to project area. Scale shall be such as to show
be generated by ··the project (dependable clearly, but without unnecessary multi~Jlicily
capacity for purposes of this section is eqlal to of sheets, the essential details of surveys jlnG of
the amount of ~pacity from an alterna:tive notes as to ownership or right of occupancy of
additional source which would be required to lands within the project area. In general, a
meet the load during the critical now period scale of approximately 400 feel to the inch is
for the system if the proposed hydro-project appropriate for features containing a relatively
were not constructed). Specify the period of large amount o£ detail, and scales of 1,000 or
critical stream flow used in determining the 2,<XX> feet to the inch where there is little
dependable capacity and describe the load into . -detail, as is frequently the case with respect to
which the power generated by the project will transmission and telephone lines, roads, and
be utilized. Furnish the following engineering r• Hways. Eleva Lions shall be Lied to
data: A flow duration curve indicating the Govr.:rnment bench marks whenever available,
period of record and gaging stations used in and shall be referred to mean sea level except
deriving this curve, a tail-water rating curve, il that in the case of projects in navigable waters
''e showing etimated plant capability having a datum accepted for local use by the
v. .1s h~ad, and an outlinr .>f pian ior future Office. of the Chief of Engineers, Department
proposed hydro-projects on tne stream involved of the Army, such local datum shall be used. if
and their approximate location and ultimate more than one sheet is used the sheets shall be
installed capa.ciLy. When pertinent, state numbered consecutively, and each shall bear a
assumptions used for evaporation, leaka&e, and small diagram showing the entire map and
head losses. indicating the portions shown on each sheet.
v/" Exhibit ]. General map covering the entire Several sect!ons of a ~ond~it, transmission line,
project area, showing on a single sheet and to telephone lme, .road, ratlway, etc., may be
an appropriate scale the location of the shown upon a smgle sheet, each so placed or
following: limi\ed as to avoid crowding or confusion.
(i) Principal structures and other important
features of the project, including such roads,
railways, tramways, and bridges as it is
proposed shall become part of the project
works and be placed under the license.
(2) All transmission lines, substations,
switchyards, and telephone lines, which il is
proposed shall become a part of the project
Except to the extent and in such particulars as
the requirements may be expressly waived or
modified by the Commission the detail map to
be filed as this exhibit shall conform to the
specifications for drawings, § 4.32, and the
.allowing requirements:
/(1) It shall show the project area and the
project boundary.
works and l:,e placed under license, as well as V'(i) The project l!!:!undary for reservoirs may
general layout of the transmission system, if be shown by metes anJ bounds, or by a
any, with which the project may be connected, contour, or if the project lands arc cuvered by
indicating prominently b)· appropriate symbol lhe public land survey by lines along or
the portion or portions of the transmission lines parallel lo lines of the public land survey.
o& system covered by tt.pplicalion for license. Where a flowage easement or right· of use
. (3) Stale and county lines, reservations of involving other than a conveyance in fcc for a
V the United States, towns, streams, stream reservoir applies loa whole tract of land and is
gauging stations, railroads, power plants, not otherwise defined, the project boundary
irrigation systems and other features in the may enclose the entire tract.
vicinity of the proposed development, Aii> The project boundary for continuous
information concerning which will aid in structures, such as transmission lines,
[The next page is 11,011-3.]
Federal Energy Regulatory Commission
016-58
§ 4.41 ~ 12,041
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' {elephone·•iand~'contr'ol ·unes,:. i:o=natliis~ r'o'ads,
. etc., may be described by center·orlorlset1lines'
of survey. specifying (distances ~r the.\ project
boundary therefrom. ln", •· .. ·,h I f.'l!;:~:b.H:;
/(iii)' E;xcep~\vith ·resliect to'l~hds:'riecessar
l or app-ropriate~ for •'recfeatior{•piil~'; 'for,
which it~ is recognized •\hai.":'aodiii9iial projeCt
area •' will' generally! bC i'required;1'the; project
boundary :·shalll'i:)e'':hd 1 more r.than ;.zoo: feel
(horizon taP measur~inintJ from: tll'e::exterio'i
margin:;;(iri'·!'ge'nerai!:11 high-waterl level), 1of •
< :eurvoirs::'1tor: shall lhe width': or::tbe'~project'
' area for-·c~nals!:diidii:s;·pipelines;tranS'rilission
lines, roaru:::'anO: •'other ,J sc>::c'alled•= continuoUs
structures··exceea :200 feet,: unlesi·utisfactory
r~s are"tiveh .. 'to t~e c:Onlrary:'The:prp]ect
bOundary shall bti'sho\.vitl on'' the maj:i in 1such
manner that it car. be readily identifiea··on:the'
ground. There shall be shown the loc:ation and
description of;t m'onum'ents. anri other ·marks
with reference lines therefrom to permanent
objects in accordance with .. good. prac~ic~ i in
1 ~".~ ~~f~~Y!~g·u: I..;:J: • ;·.:; . i•·! · • '' •;
. (iv) If the P.f~1jec~ b_oundar~ i~ :l~at.e~ on
VIands covered by the public land survey there
shall be showri"a ref~~ence :line from the initial
poin' • of the project·' boun'dary survey 'by
distances and bearings to an established corner
if one can be identified within a distance of 2
miles: ' At. e~ch' iniersection-of i.he project
botJndary with an identified line of the public
l:md survey, there shall be shown the station
number Gn the' bou~dary survey, and' the
bearintt and distance to the nearest identified
corner in each -direction on the 'public land
survey line crossed, if such distance does· not
exceed one mile. The station mtmbe{·or the
boundary survey shall be shown at points of
entering and leaving lands of the United States
or lands in which 'the United ·States has ·an'
imerC3t. ' '
~ (v) The projccl boundary, if described other'
than by a contour, shall be accurately plotted
on the map with courses and distances fully
and legibly shown either along the ploued
boundary or in tabular form on the map. The
project boundary iC described by a contour
shall be accurately plotted on the m:1p with'
such data as completely and accurately fixes
its location and permits its recovery in the
field.
;/""' (vi) If a conLour project boundary is located
on lands covered by the public land survey, a
permanent monumenL shall be established at
c:1ch intersection of the boundary with· an
identified line of the public land survey. The
map shall have the location of all such
monuments with the bearing distance from
each monument to nearest identified corner in
Federal Energy Regulatory Commission
016-!IB
~ach direction if such distance dotS n\ \ exceed
one mi'e. .· .
:;-/'(vii)'Whi:re~er a Federal survey mo1ument
will'be de5troyed or rendered unusable by the
proposed development, at· least two
permanent, marked witness monuments shall
be established at accessible points. The map
shall show, a description of the monument ' . . ,.; .. . . .
destiovcd o:: render.ed unusable and location of
the witri~ss' monuments with the connecting'
courses and distances to the original
monument~· Similarly where Federal be.,ch
marks are . destroyed' or rendered unusable,
witness. bench''inarks shall.be. established at •
accessible·· ;-~in~$: • ·The map "shall show the "0
location' and •elevation of· the ~original and ~' {
witness ·bench~ inarks witfi: connecting ·courses I"~ r
and distances: • · · · ' · ·· -· • ~trJ ~" ~ •
.(viii) The;e. ~hall be. shown the. status as· to' 0 So\" I"
ownership," and the boundary lines and area of /
each parcel of land within, or partly within,
the project area,· designating separately lanc.ls
owned by 'the· applicant, la<1ds to be acquired
bf the applicant, lands for wh1ch the applicant "'Q C.. f.A,.
holds nghts of use·and occupancy for purposes /l. Q
of the· project, ·I reservations· (indicating 1).., \
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separately each reservation), and public landsC&:-c./-,
(indicating separately lands, full title to which ~& •
remains in the United Stales, and lands in • ~ ~ ~hich t.he. United States retains onlv an A~" ,tJ
mteres ere L e proJCCl works occupy .11 r 1 /lit
an s not owned by the applicant, but as to • / r L. (I
which the aJ;olicant holds· only an easement, ~,-P J
franchise, tel.' ..e, or· other right of occupancy'
and use, the map shall show the nature of such
right and shall give appropriate reference to
Exhibil F for further details.
v{ix) Each map' shall have thereon a
statement by the person who makes or
supervises Lhe survey that the survey was
accurately made ·and is correctly shown on the
mnp. Each map shall have thereon a statement
that the person who makes or supervises the
survey has been employed by the applicant to
make the survey.
(2) The location shall be accurately shown of
all project works, such as..:..
(i) Dams.
v (ii) Reservoirs. Show Lhc rtow lines for
maximum and minimum water levels and for
elevation of spillway crest, and give tables or
diagrams of areas and capacities for maximum
and minimum water levels and for each
contour line.
(iii) Water conduits. Show center line, grade,
:1nd elevation of bouom at each change of
grade, and designate lengths of each type of
conduit, i.e., flume, ditch tunnel, pipe, etc.
§ 4.41 ~ 12,041
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71 .. 12-1-81
.. :(•0. Powerbouses· and substations (see)
sP.e~if!catio~s as iJ! § 4.~~) .. ; . . . . .
.:.{v)._.'fr.~r.smissi~n .. l_!~es la~cLappur~~n.~pces, :··Exhibit M .. General· descriptions of
t~leph_o'le ~Jin~s, .. rc~a~~. ·u.r~iJ~.~Y~i' traji~,· mechanical, electrical, .and transmission
tr~f'l.\way~ and .b~id.gc:~..,n quhv)1 !_,.,2 ,"lipJ'l·.: eq~ipme.nL .a~4: th~~r .. appurtenan.ces in
:: (vi) Navigation strudures.::~~~;·:: ,:t::!:~t:r.r '~" 1 s~!fic~en~ 1c,ic;tail to. ~naqle ~he Commission to
· ·· · · . · · h~ve· a full understanding of. the project, to
·: (~:ii)':·ChanrieY app.ioache~'; to=·:~avigati~ni deie;minc.i.he.installed capacity in horsepower
structures.' I.n~icat~.··~~~~Kt!~n·~.?f .bo'tio!" ~f~r: a~d kilowattS: and.Jo determine the safety of
distance of not le~s · t)lan J ,<XX>
1
~,_f~1et abO~e ·an~, the project , works and Jheir adequacy and
below the structures: · · · ·"~; .... l • "·'·'·· "· ; . , .· .. .. .,., •!:I.'·•:~ !..~. . ..• ,,~.1 suitability for the developrnent,and utilization
,. / · .(3)~ Shpw. con~o~r l.ines~1":ith. :con.to~r: of th: resources inyolved, ~IS<?. proposed name
V intervals of not more than· 10 feel for the entire plate. ratings for.generators and turbines, and proj~i. ·a.ru..,~.~xc.ep:t,suc~:.po~tions as wiil be when 'required. by.' the ;·Commissi9n or the occupie~ .. only: by. such. P[Oject . .,'t~·orks. as are Secretary performance data for generators and
~~~m~.~ated in (2)(v), or as.:~i~l ~.included in turbines. and general specifications ,of r~ryoir~ ,pe!ow., th~i miniJ!lum .. elevatiop .to ~i!-=·h~nical, electrical; ·aqd transmission
..
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which the water may be drawn down, Profile:s ~gui men.t. . : . .. . ·
of tunnel lines may be s~bstituted for, contours ' ... xhibit .N. Estimate•· of the cost of
~fo~~ ~u~h lines:. '(~~~ •. ·~~eci~!~a~i~~s ..Jyr developing the project· including the following -• ~ (.~ ~~·.":•.n~s.•.n §4.42.) ~-... ,.. .· ·: .: '·' items: , , · .. : _. ·~ AI A I-VII/,. J#S • ~p 11
·: Exhibit. L General·des,ign .ds:awings sho~ing · •Land and land rights; V"' -'-~., ftl 11 • 6 \,. ltl'-
pJans,,.elevatipn, :and ;SCCtiop~iof .all principal Pow~r plant structures and inmprovements;
structures .and· apppurlcnant works .. or other · Reservoirs, dams and waterways·, /-
features of the proje~t .. These d~awings shall be
in .. sufficient detail and shall.l>e. accompani..;d. ·: :.~a.ter ,\'{heels, ll,Jrbines and genera'tors;
by sufficient: information relating· to . Acce~sory electric equipment;
Cf.lnlrolling factors (such as character 9f : Miscellaneous power plant equipment;
foundations and explorations thereof, materials ~oads; railroads, and bridges (pe'rmanent _
and types, of conslructiQf!, .. important facilities); and ·, ·
elevations, gradation of i filter: and riprap · · · ·
!llaterial, . design , and ultimale1 strengths. for. V:: Jrimsmission facilities. .,...
concrc~e. and steei,. sb·eshanq/or stability : .When required by the Commission or the
analysis for imp9rtantstrucq.ares, water levels;· Secretary, under each i-tem show quantiLies,
spi!JV'ilY· ~ating curves. ·etc.} .. ~o. enable the unit casts.a'nd total costs; indirect construction Ca:rtmi~i.on to have a fl!ll 4ndersta~ding of t~e ~.csts. such as· construction equipment, camp
project and to check safety,. .adequa.cy,: and and commissary, etc. if the work is not to be
desi~abilhy .in th~ development of t.he done under contract; or if under contract
resources involved. . . . . . . : inc.lude the indire!=l costs amo~Jg the various
• .. ' J • • ·: .. • cost items' above; overhead .:onstruction costs Scales are not specified, bul,it is desired that
they be no larger than n~cessary to show such as engineering, supervision of
construction, lega~ expense, taxes allowance for
clearly the information required. DrawinKS funds used lluring construction, aclminislralivc
should be simple. Detaila arc desired only as and general e.tpcnse, and a contingent item, if necessary to show f~oa,t.ures. of importance in
llctermining safely, adequacy and suitability necessary .. · . ·
'I
of design. Working drawings are not desired as Wh'en required by the Commission or the
pan of application, but should be prepared for Secretary, furnish ·an estimate of the annu;d
purposes of cqnstrucLion and retained as ·a ~ost including the following:
record of the work when completed. In this Rate of return or interest;
exhibit shall be h'lcluded-· Local, Stale and Federal taxes;
(1) Dams and appurtenances, such 'as
l'pillways fishways, outlet work~, etc. '
(2f Navigation structures and approaches
thereto, including locks, lock ga!es, op$!rating
machinery, etc, . .
(3) ConduiLs including forebays, intake
worKs,. surge tanks, and other pressure reiiei
devices, c~~·. ·
~ 12,041
Deprccia tion;
Insuranr:e; and
Oper'ation, maintenance and general or
a~ministrativc expcr.se,
When required by the Commission or the
Secretary, furnish information as to the
method used in evaluating the power output
from the project or the cost of obtaining an
Federal Energy Guideltnes
OJG. 56
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lq~iJ&Ie~ti~il\Hunt:!;;r=~·e-;"rro.ri··.rn~al~\!rn'fi~ -~b). EStimated pre5ent or initial recreationai ·
~ourc'e expresSed <•iii'· terms Jo! ti.ollars ;•;pe"r! use and 'projected ultimate recreaLional use, in
k~low~~r. ye.~f ::iCc¥pac,ity ··~nd .)~W~f:;P..~t; ~ayti!"~ ~=~.?~~r?.~s~1 visits. · .· ·· ··
kil?~~l.~ ho~u~,of ~~~~g.~:~.n~~~:l. ~~~r~·;,,,1 ••. :!· yi,t.c) A. s.chedule of ini~i~l an~ future
· Exhibit..O .. I!etatled ~tatemenCof the. ttme recreational development and cost esttmates of
desired ;ror·, 'beginning ;.a~·d· 'cQqtpleli.rig, any·. existing,.' and' of, initial and projected
construction. of.,\~e·= projects '!works.,']£ · .. ·the futu~ development.: . ·;· ,. .
ultill_late dev~lopme~,t. is ~o .~e .compl~.trd. ~~d. ---(d) The nature and extent of consultation
. ~ul mto. operat~Qn ~n .. ~~0 or mor~:·pa~~· .:h.~ and e~ rati~n with·,the Bureau of Outdoor
L1me demed for begmnmg and completmg the .pe · • · f' · · h ··• h II be . ' o1 .. Recreauon of the Departme:ll of the Intenor, constructton o eac part.. s a g&ven. . • _ · · . . . . .... ·: ·. : . . a.... .. . ·· ·· · :· :· ::, w•th,.t'ederal agenctes.havmg supervts1on over ,
i ~h1b1t f .. (Not rt;q\'u:ed u.n~e~ .~h!s ~~~ton.~· lands of th~ United States affected by the /t. 1
.;Eibibit Q. (N~t r~~.uir~ l!nd~r •. ~h,~~~tion.). projec.t,.and w.ith appropriate _Slate and localJ.I'e 1
~E;thi?~t :.!l·~· A~ pro'Pf!S_ed p_lan .r~r. fu!t p~~lic. agenc1es.: Copaes. of, cooperlit!ve. agreements'
uuh:r.at1on of PfOJCCt wa~"': · and adJacent lands entered 1nto .. wath such agenc1~~ shall be
ror recreational'purr'·. i~-~: •• .~sistent· included as part ofthe Exhibit R. ·
with proper ope:~ • ··.i,;e f~v •·.L.f0r1the c/(3}· Excepi ''tb;the extent and in such
development of v:. r c~:· ;':.v=:'~~ .::i:~~ . '·~er ·P.UbUc; particula·rs .. as ''tli'e requirements· may be
purposes. The CT.,:-,:~; 1 !;;;,~;~ ;ri'\:~~:·3 . !! y;:~:•,:.;; expressly; waive'd Or modified by the •
. /11) 'A map o~· 0~" :; .• ,u,·a,.,.,roprilhe scalei Commission: Exhibii:R·maps are to be filed in
Von~ of which.: ·:fj,, .;•,.; :: 'iire projecF·area:,; conformity.with thespeci!icationsfordrawings
clearly deJineatj·o.~"; '::., !.F· Of symbols, shading; COn.tained in § 4.32." " • .
crosshatch.ing, et.~:.: ·· ,; '.· 1 • . •• · !! , •. : ·"' • · • · · · . , Exhibit S. A report on the effect, if ar.y, of ~a) Th~ location of 'p~oject lands and 'water~ the.projecl upon the fish and wildlife resources
(i) alreaay developed,(ii) designated for initial in the project 3Jea or ill other areas affected by
development, and (iii)' those ultimately the project and proposals for rneascres plann~d for recrea~i~~al. use. ' , • .· · · considered . necessary to. conserve . and, if
~o( r) ~ r' S ~(b) The location, type, a.nd number of the practicable, to enhance fish and wildlife J IJ . various recreational facilities in existence aild resource~ affected by the proj~ct .. The exhibit
A 611 1 ., 1/ ~JI't .-a. those planned for im_me?iate de~elop~~~t, i.e., shall include functional design drawings of any
\.-I" ~, access roads and tra1ls, and facli1l1es for fish ladders proposed to be constructed in
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camping, picknicking, 'bathing, boating anrl compliance. with section 18 of the Fed'!ral
boat launching, fishing, hunting, and similar Power Act,. such other facilities or
recreational activities , as well as provisions for dey'elopments. as. may be necessary for the
sanitation and waste ~isposal. · , protection,1 conservation,. improvement and
~· (c) The location, type,, and number of the mitigation of losses or fish and wildlife
various r.:creational facmties planned for resources in. accordance with section lO(a) of
future development according to anticipated the Act, and cost estimates for such facilities
demand. (These plans may be revised quring and developments .... The Applicant shall
the license periQd subject to approval by the prepare this exhibit on the basis of studies
Cummissiun.) made after con:mltation and in coopcratior
._,...... · (d) The project boundary (excluding .with the U.S. Fish and Wildlife Serv.ce,
sui'Veying details) at all areas designated for Department of the Interior, and appropmHe
;ccreatior.ai use and development, referenced stale fish and wildlife agencies and in the .:asc
sufficiently to the appropriate Exhibil K of public lands, advise Federal Agencies having
maps, to show that all lands reserved for jurisdictional responsibilities therefor of its
existing and P,roposed recreational proposed plans. The exhibit shall include a
development arc included within the project slatemcnt on the nature and extent of
boundnry. . . ... applicant's consulation and cpoperation with
(2) On the map, or on separate sheets to be the above agencies. To the extent those aspects
v riled as part of the' exhibit, the ·following of· fish and wildlife related to recreation arc
• information: . . covered in Exhibit. R; aspccific rcicrcncc lO
/ (a) Which of the facilities shown are to be Exhibit R will suffice.
Y provided by the applicant or licensee at ils sole· Exhibit T. A statement setting forth why
cost, or in cooperation with others, consistent the development and operation of the project
with the economics of 'the project and the by applicanl rather than the Federal
potential recreational Opj.Nl'LUnit.iPc;, • . Government W9Uid be best auapted lO a
~:ederal Energy Regulatory Commission
OJB-)7
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§ 4.41· ~ 12,041
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· lrl;Oll-:6· 71 .12-1-81;
t!· -··-~"1........ I n
c..Qil)prehepsive., plan .for, improving.,. or generating .a.nd transm!ssion,.:apability of Lhe developing.the'water~ay oi'~atcrways~with'in p~ojecl'wiiti· the' needs' and, resources of its
the. mea1n~nfof SeCdQn ~~if O(,~he :~cl: :a~9l SYS~ent'~'nd' or''othCf I interi:oriiiected SyStemS.
why the development orthe watef·reso'urc~·by· Such si.~iements shali''se'l 'rorth fuli details of
the Fei:Jeral' Governmerit isi not.:neces5arY 1 'to the. load;. gener~li~n,:'· and' ilme periods
achieve these =public·'pi.irposes!:•(This 'exhibit:"is 1 e'mpioyed. ·with · 'respeci ·'to: information on
not· required in applicationS:• for relicensihg 'of de.pehdable' capacity :··'requ~ired • in Exhibit I,
State or municipal projects.-Jn=:•nqui::'.'!ri.r ;:utJ~;1 applic:ants shall Furnish a summer and winter
E;rhibit! Ci ·This· exhihiLII.'shall~;!(uniess loi1d: cu'i-ve either' on:~ week.ly or monthly basis,
speCially irequested ··during ·the i course l of s-h~w.iili,.' ,LP~.l.;:~Qn~rib«~i~n·. t~a~·. the projec.t
processing ·or an application) ·be: applicable tol would make :to the dependable capacity on the
applicationSll.fOr'l projects"; b'oth lronldnitial. applicantis :system as· weii :is 'the regional'
licensing ~n'd ~relicensing, having or: proposing! system load (m• Whictl it :WOUld or' COUld 'be' US(;d
to have:25,000 kilowatts or·.more of capacity!! and :=indicating; any change .. in dependable
· It:shall consist of a detailed statement showing: «:a:~~-~~tY· of t~e: p~ojc;~~ ":ilh1 l~!ld: growth. aL
the manner·! in· which. an:t~.power: or energy: approp,r,iat~ l!lt~ryals frpm .a~d a_f~er ~he dqte
?eveloped or to be dev~lo~d'by, the. _proj~ct;:or: of.~~pplica.ti~J?-. c~ :initjal:~per~tion .....
~~ ~tte ~se. Rf. an,,~P.ebcaH~n fpr ~~hc~!lsT.ng._of {./(Exhibit:. Vf\; A·: 'map," together with text,
·~· ex,i~Hn~ .pr,~j~~~~:•!'Y a~~ilional p~~~~lj 8~: photographs or drawings as may be needed to
e~~~gy ~ yropo~9 ·> ~~ • ~f ~~:-'.~_l~P,.Cd •.. : '!V~IJ 1 cPf.~ describe the· • loca tiOI1!' .of.• and -architectural
u,ul!~~~· .}~? ,. th~ :~.a~n~r1 : •• '!l·· "Y.~IC~ ~ny) ~~sign,;; l~nds~!lP.iqg, .. ~nd. othe reasonable
aq~!~!~~.~~ .,?;ow~r. ~h ~~e:gy. th~.t. .c.oulg,. ~e~ t,r.~~~:~m.ent. to. be., ~ive~ to project works,
economically dev~lope? mtgh:.~.:~e .. \.l~,t~u:,ed: ~~~. i!lclud.\pg compliance with, the Commission'.s
As a part of apphcant s electn.:: sys.te'!l; (b) as "Guidelines for the Protection of· Natural
a'·par( of the'electric·'sy~Lems' of others.'with Historic Scenic· and Recreation~l-Values i~
wh~c~ appl.ibint elect~ica!lY interconnects an.d' the Desi'gn and Loc:llion .of Rigiits:Of.Way and
coordmates~_and (t} as a part of the· electnc Transmission Facilities"' in the interest of
systr~s ·of ~thers with' which· appli.cant could· protecting and enhancin~ the:. natural, historic,
elec_ln~all~ mte:connc:ct 'a!ld: coordl~~te upon and scenic values and resou'rces of the project
an ~conoms~ baSIS. . ,.;.,•.:·1
I : ... ! '; • •• ; i ' area. Th'e exhibit shall incluae measures lO be
Ainong'.hc·d~tails 'to be. so:prcvided:·:i.he' taken du~ing construction and operation of the
exhibit' shall 'identify 'by FPC; ::ate sche"dule~ projed. works· including temporary facilities
designation' (or furnish as part of the;exhibit;lif' such 'as roads, borrow and fill' areas, and
nor on file 'with the Commission; including any· clearing .of 'the rescrv'oir area to prevent or
agreeinenis) · all oi the u'rioertakings of' 'the· mlnimize damage to the environment :md to
applicant to int.erconne~t· and·;coordina'i.e··its• pr~serve· and enhance tht; project's scenic
generation.'· and! 'transmission ''facilities With' Values, together with estimated CO!JlS Of such
thoSe of. ,others for purposes·~£ ~ales, purchases,' treatments, location, and design. Applicant
or ex$hanges of v:irious types of capacity, shall . prepare this· exhibit, on the basis of
energy:·' transmission; or· other· servicing studies ·made after consultation with, or
including; but: not necessarily·-limited i.o, 'all consider'ation ·of comments· submitted by,
requirements service,· partial requirements Feder·al·, Sta\e, and local agencies or
service, hydrostorage and hydrothermal· organizations and individuals having an
pumped baek ·operations, economy energy interest in the· natural, historic, and scenic
transactions, equipment· mai.:nenance values of the project. area, a.nd shall set forth
scheduling, reserve sharing, frequency. control therein the nature and extent of this
and point to point or displacement deliveries of consultation or consideration. The exhibit shall
electric power and energy. ·• include the location of existing rights-of-way
The exhibit shall inter alia state the belonging either to the applicant or others
following: (1} Nature and extent of the which could practically by used in rputing the
applicant's ·consultation with other electric projects transmission lines. The applicant shall
systems, power pools, or power planning· groups submit a statement indica~ing which of such
in formulating its plan for development.and· rights-of-way it intends to usc and explaining
utililation of the optimum output of the why the other rights-of-way shown arc not to
project, including the disposilion · of excess be used. Where any projee:t works will or may
power and energy from the project to others be located sufficiently near to have a
than the applicant and the terms of any such significant effect upon any of the national
disposition; (2) the nature and extent of historic places listed in the National Register
applicant's activities .in correlating the of Historic Places maintained by the Secretary
1[ 12,041 § 4.41 Federal Energy Guidelines
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Regulations ·r ..
71 12-l..Sl 11,011-7
' Q( the Interior. or ,any park, scenic, natural, or
recreational ~rea: officially designated by duly
constituted public 'author.\lies, applicant shall
nate the reason for such location and efforts
being taken to minimize the adverse effects of
that location. Whenever such historic places
are affected by· the project, applicant shall
locate the project by latitude and longitude. To
the elClenl that these requirements have been
fulfilled in other exhibits, a specific reference
to the applicable parts of thase exhibits will
suffice. ' ·. ·
uhibit W. ~pplications covered by 18 CFR
2.81(a) shall be accompanied by an applicant's
environm~ntal report. Such report shall
comply with the detailed requir~ments set
down in 18 CFR 2.80-2.81, anrt shall include
a one-page summary of the report.
Furthermore, such report with its supporting
papers shall be self-contained .
[11 12,042]
§ 4.42 Specific~tions for drawings. [Revoked.]
I
.01 44 F.R. 61328 (October 25, 1979).
.OS Historic.al record.-Section 4.42
originated in Order 175. 19 F.R. 5216
(8/18/54); and was.amended in Order 501,
39 F.R. 2266 (1/18/79); and was revoked in
Order 54, 44 F.R. 61328 (10/25/79),
e£fective 11/26/79.
[The next page is 11,013.]
Federal Energy Regulatory Commission
73«·· 14
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§ 4.42 ~ 12,042
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~lilifil!i(! ii t:!l ;i!it !i; llii Ill i lli'tliiJJI~~i:!l~iiltl; l!!l!ii~!; I ~~~s~
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C-1 Form (. ... z
(Revised October, 1975)
FEDERAL ENERG~ REGULATORY COMMISSION
TERMS AND CONDITIONS OF LICENSE FOR UNCDNSTRUCTED MAJOR PROJECT
AFFECTING LANDS OF THE UNITED STATES
~Pticle 1. The entire project, as described in this order of the co .. ission, shall be
subject to all of the provisions, terms, and conditions. of the license.
~rticl~ 2. No substantial chang~ shall be made· in the maps, plans, specifications, and
stat~nts. ~1i~i:ribed and designated as exhibits and approved by the Commission in its order as a
part. of ttl~ ii~anse until such change shall have been approved by the Colfl!llission: Provided,
however, That if th~ Licensee or the Com.ission dee•s it necessary or desirable that said
approved exhibit~~ or' ~J1Y of thellh be changed, there shall be submitted to the COMission for
approval a revisid, or" ~dd·itJional exhibit Qr exhibits covering the proposed change; which, upon
approval by t~1i CoMission, shall becDM a .Part of the license and shall supersede, in whole or
in part, s~n exnihit or •xh)bits theretofore made ~ part of the license as may be specified by
tht Co•ission.
Article 3. Th~ pr~ject ~rks Sbill be canstructea in substantial conformity with the
approved exhibits referred to in Article 2 ber-in or as changed in accor~ance with the provi·
sions of uid article. E~ctp$; \roi'hen eMrgency shall require for the protection of navigation,
life, health, or property, there shalt not be aade without prior approva~ of the C~~ission any
substantial alteration or addition no~ in ~~nfof~ity with the approved ~lans to any dam or other
project works unde~ the lice~se or any SuUstantia1 use of project lands and waters not author-
ized herein; and any e~?~ency alteration, additi?ft, or:-usa so ude shall thereafur be subject
to such modification and ch&~~~ iS the C~ission may airE~~-Minor changes in project works,
or in uses of project lands and '~ters, or divergenc• fro• such approved exhibits may be ~ade if
such changes will not result in a 1ecrease tn efficiency, i~ a ma;eria~ increase in cost, in an
adverse environMental iapact, or in i.pairment of the general sche~ of development; but any of
such ~inor changes sade without the p~ior approv~l.of· the Commissi0n, which in its judg~nt have
produced or will produce any of s~h result$., shall be subject to such alteration as the Co•is-
s ion uy direct.
Upon the coapletion of the project, or at such other time as the Commi5sion may direct,
the Licensee shall sub•it to th~ co .. ission far approval revised exhibits insofar as necessary
to show any divergence froa or variations in the project area and project boundary as finally
located or in the project works as actually constructed when compared with the ar!a and boundary
shown and the works described in the license or in the exhibits approved by the Commission,
together with a statement in writing setting forth the reasons which in the opinion of the
Licensee necessitated a~ justified variation in or divergence from the approved exhibits. Such
revised exhibits shall, if and when approved by the Commission, be made a part of the license
under the provisions of Article 2 hereof.
Article 4. The construction, oper1tion, and maintenance of the project and an~ work
incidental to additions or alterations shall be subject to the inspection and supervision of the
Regionai Engineer, Federal Energy Regulatory Co•ission, in the region wherein the project is
located, or of such other officer or agent as the Ca..ission may designate, who shall be the
authorized r.epresentative of the CoMmission for such purposes. The Licensee shall cooperate
fully with said representative and shall furnish him a detailed program of inspection by the
Licensee that will provide for an adequat• and qu&lified inspection fore~ for construction of
the project and for any subsequent alt&rations to the project. Construction of the project
works o~ any feature o~ alteration thereof shall not be initiated until the progra• of inspec·
ticn fa~ the project works or any such fe&ture thereof has been approved by said representative.
The Licensee shall also furnish to said representative such fur•iler information as he may requir~
concerning the construction, operation, and maintenance of the project, and of any alteration
thereof, and shall notify hint of the date upon which work will begin, as far in advance tr.ereof
11 said representative •ay reasonably specify! and shal'l notify him promptly in writing of any
suspension of work for a period of more than cne week, and of its resumption and completion.
The Licensee shall allow said representative and other officers or elllfJloyees of the United
Statts, showing proper credentials, free and unrestricted access to, through~ and across the
project lands and project works in the p•rfonnance of their official duties. The Licensee shall
comply with such rul~s and regu1atior)5 of general or special applicability as the Co~ission may
prescribe fro• time to ti• for the protection of life, health, or property.
Article 5. The Licensee, within five years from the ~ate of issuance of the license,
shall acqu1re t1tle in fee or the right to--use in perpetuity all lands, other than land~ of the
United States, necessary or •ppropriate for the construction, maintenance, and. operation of the
project. The Licensea or its successors and assigns shall, during the period of the license,
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retain the possessi~r. of all project property covered by th• license as·issued or as later
am~ndcd, including t project area, the project works; and all franchises, easements, water
rights, and rights of cupancy and usi; and none of such properties shali be voluntarily sold,
leased, transfeTred, aba ned, or otherwise disposed of·without the prior written approval of
the Cammi'ssion, except that~ensee may lease or otherwise dispose of interests in project
lands or propt.!rty without specific written approval of the-CQmmission pursuant to the then
current regulations of the Commission. The provisiollS of this article· are not intended to pre-
vent the abandonm~nt or the retirement fro• service of structures, equip•ent, or other project
works in connection with replaceiiM!nts thereof when thl!y become obsolete, inadequate, or ineffi-
cient for further servic~ due to wear and tear; and mortgage or trust deeds or judicial sales
.ade thereunder, or tax sales, sha11 not be dee .. d voluntar,y transfers within the .. aning of •
this article. ·
Article 6. In the·event the project is taken over by the. United States upon the termi-
nation of the license as provided in Section 14 of the Federal Power Act, or is transferred to a
ne~ licensee or to a non-power licensee under the provisions of Section 15 of said Act, the
Lic~nse~, its successors and assigns shall be responsible for, and ~hall make good any defect of
title to, or of right of occupancy and use· in, any of such proje~t property that is necessary or
appropriate or valuable and serviceable in tbe maintenance and operation of the project, and
shall pay and discharge, or shall ~ssume responsibility for pi'JMent and discharge of, all liens
or encumbrances upon the projet:t or project property created ty the Licensee or created or
incurred after the issuance of the license: Provided, That th! provisions of t~is artic1e are
not intended to require the Licensee, for the purpose of transf~~ring the project to th~ United
States ctr to a new license, to acquire any different title to, or dght of occupancy and use
in, any of such project property than was necessary to acquire for its awn pui~~c5 as the
Lii:ensee.
Article 7. The actual legitimate original cast of the project, and of a~ addition
thereto or betterment thereof, shall be determined by tn. Commission in accordance with the
Federal Power Act and the Commission's Ru'les and Regulations thereunder. . ·
Article 8. The Licensee shall install and thereaftt!r Maintain gages and stre~gaging
stations for the purpose of deterndning the'·stage and flow of the streu or streams on which t.he
project is located, the amount of water held in and withdrawn fro~ storage, and the effective
head on the turbines; shall provide for the required reading of such gages and for the adequate
·rating of such stations; ·and shall install and maintain standard meters adequate far the deter-
mination of the amount of electric energy generated by the project works. The ~u.L~r, charae•
ter, and location of gages, meters, or other measuring devices, and the method of operation
thereof, shall at all times be satisfactory to the Commission or its authorized representativ,.
The Commission reserves the right 9 after notice and opportunity for hearing, to require such
alterations in th@ number, character, and location of gages, meters, or other .aasuring devices,
and the method of operation thereof, as are necessary to secure adequate det.en.inations. The
installation of gages, the rating of said strea~ or str~ams, and the determination of the flow
thereof, shall be under the supervision of, or in cooperation with, the District Engineer of t.he
United States Geological Survey having charge of stream-gaging operations in the region of the
project, and the Licensee shall advance to the United States Geological Survey the amount of
funds estimated to be necessary for such supervision, or cooperation for such periods as may b•
mutually agreed upon. ihe Licensee shall keep accura~e and sufficient records of the foregoing
determinations to the satisfaction of the Commission, and shall make return of such records
annually at such time and in such form as the Commission may prescrioe.
Article 9. The Licensee shall, after notice and opportunity for hearing, install addi-
tional capacity or mal(e other changes in the project as directed by the Coi!VIlission, to the
extent that it is economically sound and in the public interest to do so.
Article 10. The Licensee shall, after. notice and opportunity for hearing, coordinate the
operation of the project, electrically and hydraulically, with such other projects or power
systems and in such manner as the Commission may direct in the interest of power and other
beneficial public uses of water resources, and on such conditions cancerning the equitable
sharing of benefits by the Licensee as the CoiM!ission may orde1·.
Article 11. Whenever the Licensee is directly benefited by the construction work of
another licensee, a permittee, or the United States on a storag~ reservoir or ather headwater
improvement, the Licensee shall reimburse the owner of the headwater improveaent for such part
of the annual charges for interest, maintenance, and depreciation thereof as the Commission
shall determine to be equitable, and shall pay to the United States the cost of making such
determination as fixed by the Commission. For benef·its providect by a storage reser-voir or other
headwater improvement of the United States, the License~ shall pay to the ComM;ssion th• a.aunts .
for which it is billed from time to time for such headwater benefits and for the cost of making
the determinations pursuant to tne then current regulations of the Commission under the Federal
Power Act.
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Article 12: The operations of the licensee;· so far as th.ey affect the use, storage and
discharge from storage of waters affected by the license, shall 4t all times be controlled by
such reasonable rules and regulations as the Commission may prescribe for the protection of
life, health, and property, and in the interest of the tulles~ practicable conservation and
utilization of such waters for pgwer purposes and far other beneficial public uses, including
recreational purposes, and the licensee shall release water fro~ the project.reservoir at suc.h
rate in cubic: feet per second, or such volUM in acre-feet per specified period. of time9 as. the
co .. ission aay prescribe for the· purposes hereinbefore mentioned • .
Article 13. On the a~~lication of any person, association, corporation, Federal agency,
State· ar-~unicipality, the Licensee shall per.it such reasonable use of its reservoir or ather
project properties, including works, lands and water rights, or parts thereof, as may be Clrdered
by the Co.-ission, after notice and opportunity far hearing, in the interests of comprehensive
deYelapment o1 the waterway or ~aterways involved and 4 k~ conservation and utilization of the
water resour!.:es of the region far water supply or far the purposes of steam-e 1 t..ctri c, i rri ga-
ti.on, indut,rial, 111\tnicipal or similar uses. The Licensee shall receive reasonable co~~~pensation
far .zse of its reservoir or other project properties or part$ thereof far-such purposes, to
include at least full reimbursement for any da•ages or expenses which the joint use causes the
Licensee to incur. Any such co•pensatian shall be fixed by the Commission either by approval of
an agree•~nt between th~ Licensee and the party or parties benefiting or after notice and oppor-
tunity far hearing. AF,plicatiorts sha11-ccmtain information in sufficient detail to afford a
full und@rstanding of the proposed use, including satisfacto~ evidence that the applicant
possesses necessary water rights pursuant to applicable State law, or a showing of cause why
such evidence cannot concurrently be sub111itt.ed, and a statement as to the relationship of the
propc1~d use to any State oT municipal plans or·orders which may have been adopted with respect
to the us~ of such waters.
Article 14. In the constr-uction or maintenanci! of the project works, the Licensee shall
place and ma1nta1n suitable stru(:tures and .devices to reduce to a reasonable degree the liabil-
ity of contact between its trans~ission lines and telegraph, telephone and other signal wires or
power transn~ission lines constructed prior to its transmission lines and not owned by the Licensee,
and shall also place and n~aintain suitable structures and devices to reduce to a reasonable
degree t.~h.e liability of any structures or wires falling or obstructing traffic or endangering
life. Hone of the provisions of this article ar~ intended to relieve the Licensee from any
responsibility or requirement whcih maybe imposed by any other lawful authority for avoidiog or
eliminat~ng inductive interference. ·
Article 15. The Licensee shall, for the conservation and development of fish and wild-
life resources, construct, maintain, and operate, or arrange for the construct.ion, maintenance,
and operation of' such reasonable facilities, and comply with such reasonable modifications of
the project structures and operation, as may be ordered by the Co~ission upon its own motion or
upon the recommendation of ~he Secretary of the Interior or the fish and wildlife agency or
agencies of any St1te in which the project or a part thereof is located, after notice and oppor-
tu.nity for hearing. ·
Article 16. Whenever the United States shall desire, in connection with the project, to
co~struct flstland wildlife facilities or to improve the existing fish and wildlife facilities
at its own expense, the Licensee shall pen.it the United States or its designated agency to use,
free of cost, such of the Licensee•s lands and interests in lands, reservoirs, waterways and
project works as ~Y be rea$on~bly required to complete such facilities or such improvements
thereof. In addition, after natic::.~ a!1d opportunity for hearing, the Licensee shall modify the
project ope~ation as.ay be reasonably prescribed by the ColiVIIission in order to permit the
ma;ntenance &nd operation of the fish and wildlife facilities constructed or improved by the
United States under the provisions:of this article. This article shall not be interpreted to
place any obligation on the United States to construct or improve fish and wildlife facilities
or to relieve· the L.icenste:<of.any obligation under this license • . ~ ......
Article 17. The Licensee ·sh11l construct, maintain, and operate, or shall arrange for
the construct1on, maintenancel and operation of such reasonable recreational facilities,
includin~ modifications thereto, such as access roads, wharv!s, launching ramps, beaches, picnic
and camp1ng areas, sanitary facilities, and utilities, giving consideration to the needs of ~he
phy'.;ically handicapped, and shall comply with such reasonable modifications of th@ project, as
may.be prescribed hereafter by ~he1Co~ission during the ter~ of this license upon its own
mat1on or upan.the recommendation·of~the·~ecretary of the Interior or other interested Federal
or State agenc1es, after notice andtopportunity,for hearing.
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Art1cle 18. ~o far as is.consistent·with proper operation of the project, th~ Licensee sha~l allow the pubJ1c free access;·to a\-r~~asonabli extent, to project waters and adJacent
proJect .lan~s owned by tt,e Licensee for· the pu,ose of full utilization of such lands and waters
for nav1gat1on and for outdoor rtcre~tionai purposes. including fistr;ng a~d hunting: Provided,
That the Licensee may. reserve froe~•pu~Hc. access·rsuch portions of the proJeCt waters, adJa ... ~nt
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lands, and ·project facilities as may be necessary fo~ the protection of life, health, and prop-
erty.
Article 19. In the construction, maintenance, ar operation of the project, the Licensee
shall be respons1ble for, and shall take reasonab1e measures to prevent, $Oil erosion on lands
adjacent to streaMs or other waters, stream sediment&tion, and any· form of water or air pollu-
tion. The C~ission, upon request or u~on its c~n motion, may order th~ License•· to take such
measures as the Commission finds to b~ nt~essary for these purposes, after notice· and oppor-
tunity for hearing. · .
. Article 20. The Lit!nsee shall coniult with the appropr1ate·St&t~ and Federal agencies
and, withln cne year of the.· date of issu~nce of this license, shall subMit far Ca.ission approval
a plan for clearing th~ reservoir area. Further,· the Licensee shall clear and keep clear to an
adequate width 1 ands a 1 on9 open conduits and sha 11 dispose o.f a 11 tt:!llpor~ry s.tructures, unused
timber, brush, rf!fuse, or other materi~l unnecessary for the pu.,oses of the prt'ject·.whicl1
results fro• t~e clearing of lands or fro• the main~enance or alteration af the project works.·
In addition, all trees along. the periph~ry of project ~eservoirs which .. Y die durin~ operations
of the project sh!ll be reaoved~ Upon approval ·Of t.he clearing plan all cle1ring of the lands
and disposal of the unnecessary material shall be d~n•·with due diligenca and to t~e satisfac-
tion of the authorized representative of. the Commission and in accordance with appropriate
Federal, State, and local statutes and regulations.
Article 21. Timber on lands of the United States cut, used, or destroyed in the co~ .
struction and ma1ntenance of the project ~rks, o~ in the clearing of said lands, shall be paid
for, and the resulting slash and debris disposed of, in accordance with the requir .. ents of the
agency of the United States h~ving jurisdiction over said lands. Payaent for ~rchantab1e
tiMber shall be at :urrent stumpage rates, and pa~nt for young growth timber b•low •erchant-
able· size shall be at current damage.appraisal values~ However, the agency of the United States
having jurisdiction ma~ sell or dispose of the .. rchantable timber to others than the Licensee:
Provided, That timber so $Old or disposed of shall be cut and re.oved f~ the area prior to, or
Wlthout undue interference with, cl~aring operations of the· L.ic1nsee and in coordination with
the Licensee's project car.struction schedules. Such sale or disposal to others shall not
reHe,·e the-Licensee of t·esponsibi 1 ity for' thr;; clearing and d~sposal of all slash and debris
fro• project lands.
Article 22. The Licensee shall do everything reasonably witt1in its. power., an.~~ ;hall
require 1ts emp 1 oyees, contractors, and emp 1 oyees of contrar;tt)rs to ·~~ eveerythi ng 1 reasonably
within ~heir power, bath independently and upoi1 the request otr officers of the agency concerned,
to prevent, to make advanct preparations for s.uppress ion of, ctnd to suppress fires on the 1 ands
to be occupied or used under the license. Tht Licensee shall be liable for and sha11 pay the
costs incurred by the United States in suppressing fires caus~d from the construction, opera-
tion, or maintenance of the project Wu:"ks or of the works appurtenant or accessory thereto under
the 1i c.ense.
Article 23. The Licensee shall interpose no objection to, and shall in no way prevent~
the use by the agency of the United States having jurisdiction over the lands of the United
States affected, or hy persons or corpont·icns occupying lands of the Un'fte1 States under
·permit, of water for 'fire suppression frau any stream, conduit, o~ body of water, natural or
artificial, used by the Licensee in the operation of the project works covered by tha 11cense,
or the use by said parties of wat~r for sanitary and dQmestic purposes from any strea~, conduit,
or body of water, natur~l or artificial, used by the Licunsee in the operation of the project
works covered by the license.
j--Article 24. The Licensee. shall be liable for injury to, or destruction a1't ai'Y build·
ings, bridges, roads, trails, lands, or other property of the United States, occasit)ntd by the
~onstruction, maintenance~ or operaticn of the project works or of the works appu~tenant or
accessory thereto under the license. Arrangement5 to meet such liability, either.by Cotlpen-
sation for such injury or destruction. or by reconstruction or repair of da•aged pr~perty, or
otherwise, shall be made with the appropriate department or agency of the United States.
Article 25. The Licensl!e shall allow any agency of the United States, without charge, .to
construct or permit to be constructed on, through, and across those project lands which are
lands of the United States such conduits, chutes, ditches, railroads, roa~s, trails, talephon~
and power 1i nes, and other routes or means of trc:msportat itm and COIIIII'-'ni cation as arE not i ncon·
sistent with the enjoyment of said lands by the Licensee fo~ the purposes of the license. This
license shall not be construed as conferring upon the Licensee any right of uset occupancy, or
enjoyment of thf lands of the United St~tes other than for the construction, operation, and
maintenance of the project as stated in the license.
Article 26. In the construction and maintenance of the project, the location and stan·
dards of roads and trails on lands of the United States and oth1r uses of lands of the United
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States, including the location and condition of quarries, borrow pits, and spoil disposal areas,
shall be subject to.the approval of the department or agenc~ of the United States having super·
vision over the lands involved.
Article 27. The Licensee shall make provision, or shall bear the reasonable cost, as
det31'11in.ci by the agency of the United S.tates affected, of making provision for avoiding induc·
tive in~erference between any project transmission line or other project facility constructed,
operatid, or .. intained under the license, and any radia installation, telephone line, or other
co..unication facility installed or constructed befor~ or after construction of such project
trans11ission line or other project facility and owned, operated, or used by such agency of the
Unite~ States in ad•inistering the lands under its jurisdict)on.
Art ide 28. The Licensee shall uke use of the Comission' s guidelines and other recog.-
nized guideline$ for treatment of transmission line rights-of·way, and shall clear such portions
of trans•ission line rights-of-way across lands of the United States as are designated by the
officer of the United States in charge of the lands; shall keep the areas so designated clear of
new growth, all refuse, and infla .. abla material to ~he satisfaction of such officer; shall trim
&11 branches of trees in contact with or liable ta contact the transmission lines; shall cut and
re110ve all dead or leaning trees which ~ight fall in contact with the transmission lines; and
shall take such other precautions against fire as may be required by such officer. No fires for
the burning of waste asaterial shall be-set except with the prior written consent of the officer
of the Unite~ States in charge of the lands as to ti~ and place.
Article 29. The Lis:ensee .shall cooperate with the United States in the disposal by tile
United Statesi under the Act uf July 31, l94i. 61 Stat. 681, as amended {30 U.S.C. Sec. 601,
et seg.), of ~ineral and vegetative aaterials from lands of lhe United States occupied by the
project or any par~ thereof: Provided, That such disposal has been authorized by the Com.issfon
ana that it does not unreasona6Ty interf~re with the occupancy of such lands by the License• for
the purposes of the license: Provided further, That in the event of disagreement, any qu~sticn
of unreasonable interference shall be detena1ned by th~ Commission after notice and opportunity
for hearing. .
Article 30. If the Licensee shall cause or suffer essential project property to be
remcved or de~troyed or to become unfit for use, without adequate replacement, or shall abandon
or disc(~tir.ue goad faith operation of the project or refuse or neglect to comply with the terms
of tne lic~nse and the lawful orders of the Co~ission mailed to the record addres$ of the
Licensee or its agent, the Commission will deem it to be the intent of the Licensee to surrender
the license. The C~ission, after notice and opportunity for hearing, may require the Licensee
to remove any or alJ structures, equipment and power lines ~ithin the project bounda~ and to
take any such gtner action necessary to restore the project waters, lands, and facilities re~~1~
ing within the project boundary to a condition satisfacto~ to the United States agency having
jurisdiction over its lands or the Commission's authorized representative, as appropriate, or to
provide for the continued operation and maintenance of nonpower facilities and fulfill s~ch
other obligations under the license as the Commission may prescribe. In addition, the Commis-
sion in its discretion, after notice and opportunity for hearing, may also agree to the ~urren
der of the license when the Commissio~, for the reasons recited herein, deems it to be the
intent of the licensee to surrender the li:ense.
Article 31. The right of the Licens~e and of its successors and assigns to use or occupy
~•ters ov~r which the United States haf. jurisdiction, or lands of the United States under the
license, for the purpose of ~int:ining the project works or otherwise, shall absolutely cease
~~the end oi th1 license period, unltss the Licensee has obtained a new license pursuant to the
then existin{l laws .1nd regulations, or an annual license under the terms and conditions of this
Hcense.
Article 32. The terms and conditions expressly set forth in the license shall not be
construed as 1~&1r1"g any ter.s and conditions of the Federal Power Act which are not expressly
set forth .her;ain. ·
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. . • 55938 1 Federal Register I Vol 48. No. 219 I Fri'day. November 13, 1981 I Rules and Regulation.
• i
(Ul tocal.·•tate. and Federal tue.: • appUcant ~uat allow at leaat eo daya for · (v') A description ol measuiea ... -l-
(W) Depredation or amortization.. and coanltation and documentation. unless _ reco:nmended by F~ and 1tate"' .f
(!v) Operation and ma.lnten•nca :-the agency lndJcatea that it baa no . · · agende1 and the a.p~licantlc;r the -j
expen~e~.IDcluding IDterim comment. A JJ-t of ageuciea tD be·.. . . · JHUPf?le of protectiDI or improviDs·. ·.1~,
replacemen~ lnsunmce. admfnfatratlV. • coD.IUlted can be obtaiDed from th .. · · · , water qaallty and stream flowa durfal:
alief general upensu, md . .. . DJredor of the Cnmmbalan' 1 Division of project CODJitructfon and opera.tfou: u\
cantingeDiiU: .-.....• ;· .. : ~. ·-·-:.· 'Hy«fr9powerticenaing.'l118-.:··. -.:~· ~ :~ explanatf~~~o~.whytlie·al'pliCBDthu t
. -· (5) A atatem.~t ol the atbn~bid: ·. ::.. Emainmmenfal ~port ..)DDt ~laiD the. rej~ted Uf me~ recamm~_l,
:. · · ... •nnaU.nlua of project power b ... r .... # ToUowiq mformatioD. a:mzm~ · .:: muigtmey; and. i dUcriptiDD ottb . J
.. . alhowi:q of the cautract price far Ula· . _with the M:DJm of the pmj~ :-·. -~ .: ·: ·!:--appUcaara· altema!tve ~amra bi ·. l
. ·. ~ . ,:· of power ar the eatimated average-. ·:..: . . {1) Gmerrzl Descziptloil of 1M LtXiitlti. .... proteCt or improVe water quality 11re~
\ -: · •mmal colt of obt•iningu equivall!lll . The appUcant must provide a general : flow; .... ::· .... · -.·.: .,; ~ "iJ;!-;::;·.~ -:;.:.:;.r.":;. •;~!
· -.• .--&III.01IDl of power (capacity and eaerm'l d~ptiaD of the enYinmment of the: _ ~~ : . '_(vi) .A desc:riptl~ of grauiuiwater_Ja)
. ___ -· • . . from the lowes.t ~~ al~~ acmrca. . . p~sed.pro)ect ~a and Ita ~edla~. . the vicfr&!ty of the propoaed proJrd;. :·:i
.. : . of pawezt I~ DJ pro]~ :-:: . Yiclaity. n. d.escriptfODIIIUt Include · ·. JDcludlq .water table and mesiaD... i .. I
; : eb•nses in the. coati {Ufe-c:ycla ~J ~ "\ ._ locatlmi and seneral !Dformatlon hel.Pfal. ccmdltlons, "the hydraulfc"gradient. the:[
• . powl!r frOm that 10urc11 Dftl' tlut -~ --·. · -. . to im 1111dentanding of the:--:."-: · : : · ;. =-!. • ~ degree to whic1l pmmdwater and -:. .. 1
_ . estima~ fin•nc!"B or Urznsins period I( -mviiomnental aettfD&-·i. :~::-=.'"._~_ ... .a· !.·;.:-~ · surface water are"-iydraulicaJlr:-·; 111. ··.I
••• 1 ••• • theapplic;_aDt_talcesmch~•-~ .:.· . (2}llepD11DIJ WatuUst~'anil"QUalltf. connected..aquifeiaandthei'ru.eu·:..i
· ;i • --.-_accouD.t;[ ·' -·-· ~.-=. d., -:.:ib~ :-die;.;...-"=-· The mport_mwst discus• water quality. water supp~y. and the location of , =\ .':.l
-&, ~ ltat.ement escn mg 0 . -:.. • and Jlowt and contain buelhie data. . tprinp. wells. artuiaD fl~ aud. .. ~
. electric energy _altemajives.mch u SU. · IU.fficient to determine the nimnal and dlaappea.ring •treams; a desi:ripti~ a£\ . ~-, o~ m~ a¢ nuclenr-fuelea 3!0we~Plantl seasonal variabilitY, the impacts anticipated .tmpact.l on groundwater axi
L'"ui ~ther canventi~ and~ ? • expected during construction and · .. :. measures proposed by the applicant e, ·
storage hydroele~ planbl; • ·~ · · operation. ud any mitigative. . ... . others for the mitigation of impacts ~ l·
(7) A statement an~ eyaluati~n of~ enha'!cenient, and protective meas"LU"el groundwater; and • · ; . ; .. • . !'i consequ~ces of d~al of the li~ proposed by the applicanL The report. . (vii}~ an appendix. eitha: · · , l
•. ~ppUcaticm ~a briefperspectiYP m.. muat be prepared 1c consultation with (A) A copy of the water quality.-_.· · ·. i
·· .. what futmt: u.e would ~e made -~f.~.:-_ the .atate and Federal agencies with cmtific:ate (or agency atatemmt that • l ~sed ute if the prop£?se~ pro]~ · . :responsibility for mamagemcnt of water. such certifiaitlu:m t. waived) u· -'-·!
were nat coutructed: and . . • ..... .. uty a fit-~-the-~·-"-"-' d cribed '-C!--~· ... ,.. fth -F d-1: .. , ·(a) A atatement specifyins the aDurcei ~~tu.au an quan •1 • .w ~&Uei;ICU ··.: : es .&.0 ~7.10n ~"' 0 e e ~i
and exten(of financing and annwil ·· . atream or other bodr o~ water. 'Ihe ~. • Water PoDufic!n Con&ol Act (t::J~m .:; .1
. . · manes available to the applicant to . . reportlDUit.lnclude: · · .. _: .. • ~-~· .: · ·. Water Act) [.ee 33 U.S.C.134]; or • •. ~
-: · : meet.lbaCDitri · ·. ~ . (I) A deJCription of exiltmg ~tream . £Bl A copy ol a dated ~etter from~·~
~ ""(e) {t] and (4) ofthilaectitic.·-... _....:.. flowues of atreams iD the proJect area· .. appllcant.to ~e appropnate agen~ ·-~:
!.-..:.-(f].ExhibitEb imEDVinmmeDtid-·':: · __ thatwou1d be~cted bycons~ctkm_ ~-requesting such certlfi~ti~ : __ .;. __ .. ~~ · L_ · ReporL Informatimi.~ · · e · • -: and op~tlcn: estimated qum;ttities of.-~-· . (3) R;eport 011 FJ.Sh. Wildlife. and -. :,
. ~ ttptllf mt£§1 Be organized and referenced: · wa~ discharged from th~ proposed • ·: , · Botani'ctd ~t:Jl"Ca. The appli~ ·-· ·
• • r •• • • according to the iterimed aubp&ragraphs --proJect far power.pro_ductio.n; and.any · must p~~de a report that d_escnbea tJu
· · below. lf inloimation required i.i not ::. _ existing and propost1d uses of proJect · fish. wildlif'e.-and ~otanical resources ii
-· · appUcabl~ the applicaDt lD1llt l;rieflr' "--· waters for irrlgatiorJ. domestic water · · the vicinity of the proposed pro jed:.· .. '
---. _, ... · .explam why it u not applicable..For · : ·-supply, indus!rl& and ·ather purpcsesi . expected ~R&Cb of the project on thesi
· application for Jiceny for a .majar·4 ~-,._ • • • (11) A descnption of the seasonal -, resources; and _mitigation. enhancement
UDCOD.!tructed or major modified projed. . vari8tion of existing water quality far· or protection meuurea proposed by th!
. . .. {more than s MW) submitted und!f' thil . . any atream.lalce. or re!ervolr ~t would. applieant. Th~ report muat be prepared
. · · IUbpart or for applications for such. . · be aif~--ted by. the proposed proJect.: •:: in con.eultation with the state ag~cy ar
: projects (5 MW or less) submitted uDder 'Jncluding1u.appropriate)-·~;.: .. -.: :· agencies witliresponsibwty far these·
II 4.60 and 4.81.of this part. Exhibit B :: measurements of: signiflcant Ions..':. · resources. the U.S. Fish and Wlldlffa '
-must be prepared in accordance with.; chlorophyll 4 nutrients, apecific · •·: Service. the Nation.BfM.arine F1aheries .~
the following consultation proviaio111.-. conductance. pH; total dissolved solids. Service (if the proposed project maJ · ·
after.consultation with appropriate · · . total al~aUnfty, total hardness. dissolved affect anadromoua. estuarine. or ll1ai'ine
FederaL state. and local resource . · · · oxygen. b'acteria. temperatura. ·. fish resources). and any state or Federal
agende& umdicated in this paragraph. suspended sediments. turbidity ~:. . . . agency with managerial authC'.rity over
-Consultation must be documented by ·· · vertical illumination: •· ·. ~-. :...~ · . ·: · :"" ·any part of the proposed project landL"'
appending 'to the r~rt a letter fmm : -:;·: · flil) A description of any existing lab · The report muaf conta!D:-'· •· ~· ····• ::: .!
: -each agency C:onsulW.d that indlcates ~ · ~ or reservoir and any of the proposed (i) A description of existing fiah, · · ·•
nature. extent. and .rew.lta of . . . . . . project reservoirs lnclud.Jng surface : . wildlife. imd plant communities or th3 ! •
consultation. H any agency1hat an: -. -B.rea. volume. maximum depth. mean · proposed project area and Ita vicinity.·-
appllcant f1 required to consult faila to depth. fillllh.ing rate, shoreline length. including any downstream areas that·.-
. . consult or falls to provide .. . . substrate classification. and gradient !or may be aff'ected by the proposed projed
documentation of the consultation strermu directly affected by "the andlhe ma wit.biri the trammhsiOll .
-pro'?eu within a reasonable time after proposed project; ~ ! . -· · line corridor or right-of-way. A map ol '
the applicant informs the agency of the (lv] A quantification or the antidpat.ed vegetation types 3hould be Included in-
proposed project and requests to . . Imp acta of the proposed construction :the description. For species considered
consulL the applicant may !lubm.it a and Dperation of project fadllt.ies em· ·, important be'.;ause of their commen::W
summary of the consultation or attempta water quality and dowtl!tream nawa. . . or reaeat.ional value. the in!ol"'Il&timt .
to consult. incluc.i!ng 1m1 such as temperature, ~IeUty and· · ··. provided should Include temporal and
recommendations of the. agency. AD nutrients; · · .. -: ...... : ·_-:. · :~ · :.:· · !!pat.ial. distributions ana densities_ of • ·
..
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. '• . . ,.. . . . . . . -.. . • 4 ....
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-~
,,
L
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.. ~ IUCh 8pedea. Any flah. wOdllte. ar pJut ud Umlted a1.1baurfa~. teatlq work.~.: -employment. popu!atfcm. hOU!fug. • l
apecia prapoaed or U.ted •• threatened m:ommended by the lped6ed •tate aDd ~rsanal mcom~ Jocalsovemmental .. [
. ar endaqered by the U.S. Eiah and...... . .Federal agencies for the purpote al aennas, local tax revenuea and ather • l
Wlldlil~t Servic:a or NaUonal Aiai.rine ••. · locatm& iden~ ud ataesaing the f'ac:tara within the tawna aad counUu fD f ~-L--=--r!---t.-f • b'll ~ ....... -d • -;.,...;,; f'L.J:-to_;,. --.1 •' . al.."•· ....:.-=-lty·ol the·!U''f'lp0sed ftl'ft.llect. nw., .l, c~ ~lliil: , •• iiiU ,._.A-~ AD -·~~ce 0 .wJII ....... ~::.·· =·· ' -~ .. .:.. Ill Y.IWIII r--r-":'~
. -U.lZJ must be Jaentlfied:-.:_ !' :~~.:·.;\: =-::\·::. archaeologii:aJ reicnirca that would be. repOrt itniat lnclud~ " ... · . : L .. ~.:. .:.. ?:~~; . \
.,· ·tw• (hl A de;tcrip~aD. of_tqi .&nficfpated'.: . affacted by conatru.cJiOD ·mc;~.o~tfOD ~ (I) A de~criptioD of theaodo..::_r.: ';.-:; ..... .:\
I~ : _ . Jmp~cts 9Dof~ wi:Idlif' .daild ~~wu~ :-.: of the proJH?f•theeo ~l.j;;!~e!li~tf·With ~ . eCauamic im_pact area:. ... :: .• :_.-... • .; ~o;-~-~~~ b ;, ; _ .. l'eso~a :~·~e co~ .. · atat~ea,fo ... app ta.~ .~_.;.~: -~(U):Adeii:ripUcmalemploym~.;....::-~
. ~~· ad ~~mi al F.Oi~. ~ti~ .;~;. ~-: 'JeSardiai tbe .. accwta!JlDtr '!~the·~~ J!\;. ~... populatJan &ad pen0ual1Dcoizl:ti treDda , \
·: : ~pouihl~:~•ngu ~~-:.;-·~ . _l'e'CQJJIJUDdatfam; ··:-.,. .":~: •:: :·.: .~-··1 ::·.-·m the impact arec . .:;.;_::. ·'t"': i ·~ i· .... ~~~·~;
1) .. 1 .. c:Ust:ributicm. aad reprodu~~ Gf · :. ·:. ·:·. . (tg "nle ~ll ol ~ Juy~top~ • ~AD evaluatfcm afthe Impact ol : :.:.1
: : •mtial papulaticm of. the.se rna~ : ua'!f ~ce testiq wark ~ . ..:.!··. ·-:· :: ·• Ul'l.mb1 tantlal iu-migraticm of people:_-~ j>1 ~ :.. : ad ~ impacta. ~ ~!'!!'!'!~ ~!'':~~-of_ l'KIJ!"o'"end~d by the •t:ate and Federal .. " em the impact uea'•sovemmeu~ : -_. ::_ 1
--, these~ _ : ... _ ._. _·. ~ _..; •·--:~:-~es list~ above. tog~lher wi~ ~. . fadlitia ud senicn. mc1s u pollee.-·-, l~l; : : ~)A desc:npticm al any~~ ~.: explaDatJcm b)· the applicant of UIJ' ·: ~ '·· fire. health uad eaucational facillti-. · .:-!~;
' fa~tla recmm:Deaded by atate Of • ·-: varia~~~ ..nq, mventary, f!r ·'. aud Yn"nlft'lltft···-· ..... ~~ ........ ·~~· -:.._.;; =-: .... :1
Federal •eem:in for the miti.,.timl of · J.u+l ..... ~.:_.;.recommended; :-· · -.•r, . r·-~:-;:-· ~. · .. ·. ·· ·• · : . •· ···:~ ·
1-~.··
l ;
. -o • .. o-· .. . ~ Jl&-...u~~ • .. • ··::: _ • • (lv) OiHite manpower re~u • "·] fmpactacmfisl&.wildlif'e,a-dbot;anica! .. : (ihlADidentificatfon{wtthout .• Q~.-·:':.. and. Dduring dafter · "'ect ·-!"-~-
resources, or far the p1ootectlaii ar . ·~ .. : . proyidlug specific ail:~! or property:.. -... -;:·.: payro • ~ . proJ ~ ~-:
enhanc:ementoftheseresoiin:es; the ~-:• . locatfans) ofa.riyhiatoric..-·: -:~. ~· ~.. co~tru~~oa. iDcluding aproJ~~Oll ~1: ::[ ~ct. ail thieate.ued or enda.Dserecr :. : · archaeological site fD the proposed ._. -: loUd au~te ~playm~ ~ ~ . : -· ~, -~
apedei. ed aii explu:atiOD of'wliJ the . · lJrOiect area. with particmar tmiph.W. . CODStru~cm p~yrcll.J?M"ld~d ~~ ~~-l
applicanl hu detemliDed ay melisuru em litea ar properties either listed £D. ,. : (v] Numhen of ~~ed '?.'fli~~DD ....;,...:. .. (
·armCilitia-ret:Ommmded by 'aD qeac:1 recommended by the SHPO forinclusicm . peraGDD~ wha: .. :: .. :-.. :=: ~;·· · -.. _:'. -;~ ':.; '
· -u,s iDappropriate:u w,n u a·::. :·! -~: · . · Ju. tha Natioual Register ofHistaric •. -:. : .. (A] Cw:reutly ~!1de ~thin the.m1pac:t.
descripticm al altemative nieamei: -~ ·. Places that ~Ould he a.ffected by the _ :.. ~ · .:: = :-· :-. . · . ..: · . .' =· ... ; :":-. ::::.-:-.... ~
prapoled by appUcant to protect ftsh." • . j:DJUtructiaD of the propoaed project;:·:-;-· (B} WOul4 commute daily to the · ~: 1·-~:'· .
wildUfe and botanical rnourcea; "mi:l. · ; {iv) A desc:riptfau of the likely cUred . coaatruction lite 'from places limated ..... ·· \
~ (iv) The fo.D~ materia1;t ~ ·~ · '":'=: ··· ad IDdirect impacta of prop~ed project: · outside the impact area; aad.:: :r ;~-.. ~ ;:-.; ~1: J.
,-. iDfarmatkm rea~ ADY DUtip~OD -· ·:.. emu~~ at operation OD ai~«:.: :·· . . (C) Would relocate em. ~mparaq -:;~· .:
measures or f~cilitia.-ldeutlfied lmd• · .: propertiU e~ther :111~~ ID. ar ~· w :~ .: ~ •• ::= • buia Within the impact am: ..;. · \ ·:-~~3 '
. . daue flh"). J!MPOIU!~ r~ ~pl~":l!~~· . recammea~ u eliaible for.· the .. :, . -!• ~ . ('Vi) A'dMeTmluatiou of whether 1be .. :~ ~
. or cans~aa:-.-·-:-:: . ---··: ·:· ... ,:a :·~ ·.:::. NatiaDal Register of Historic Plac:a: ~ .... ._ exiating epply or &Yailable haush:ls •• : ~. } ·~ (A) FUDCti~ duigu drawmp; -~·. ·. :·, . (':).Am.an.apm~t pl~ for the~·-.:.: ._,_, .within the 'impact area 1i sufficim! m•·.~~ ~1
. (B)~ descnpU~ of propaaed • ··-··: · · avot~ca·af. or ~tfgati~ of. _Jmpacta · :. z • meet tlie n.eda of the additJouilr:.; . ~!~ ·:
· operatiODaudmaintenaDca~. oulUatoric·orardiaeoJog~calslln_&Dd:-·. pulatiari;~. ~-4 ·-·~-:-'"::::'-~~~~~!X:".
for any propoaed meiiStll'eS or. facilltfec . re10111"CU based upon ·the .. : ~ ·•. ·: ·: · -: P,('(vii) NUmbers aiid' tiP~· iil r,;si,Jt!DOefi1 ~
• . (C} A'L implem~taU~ ~:H~ · ·. recommendati.r:ms of the state lllld - . : .:. . and'buslness establilbments ibat would ~ ~
I, ; .. . ~d operatiOD achedule for aar ~f. .. ·-:.:£.··= . Fe~. agmetea ~ted above and ,:· · be dispiaced by the proposedJJroj~ ; ~
1 • prapoaed measures or fadl!tin; ... ~...~ .: contammg the applicant's explanat:an, ·-b · . d. . ·: : .: - . ,
---:-. . (D) Au estimate of the costa of·-;' ·~::-· .. · of · ti fro thou . . .. •. . #> :. ~ ·--p~ures *a e ut:ili.%2 to a~. . • . : ~ · ' ·co .. •tructio .. operati"'" an::. :,. :· -·= -:;..•...::-::· _V,.fJJ:Ulmm. anadati~'! --~ .. •· · · · ··:·. · these properties, and types and amormts ·
&.1.111 ... ..,..., Y • -.. ~ --.... """" eu ... ~ au&.~ .. ... • , .. --• .., ... . ... . • .. ...
I
"' :ii.· . maintenance cif anj propos~d tacni~: ~--. (vi) lbe fallowing mat~· ~ci ': ~· . o( reloca~ouft assistance payments that·.:.~-'
· or implementatfcn·of any me~.... ..: .iD:formation.regarding the mitigatf011 .. .would b~ pcud b? the ~ected P~~ez:t! .•.. i? .LEl A .11abmlent "!'the aourcea ancl:~-: · _meuures·described under paragraph . ..: i . -0 ~ and 'b~esses; and . : •-:.: ~ .;:-. .! -
.. amount offirumCng!armitigatfau. .·· :.· :. (fj(4)(v) of this aectia.n:· .. • ;,; ~,! : .. ·:-.: :.,:;:.£. : (vml ~m~ ~pact analyala" .•. ~":.-:..:. :· .
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measlln!s or facili~~ and .;.;.. ~ :··-i;::::;:..... -··(A) A schedule forJmplemmting iha s. . · eyaluating the m~~ lpQl . · · .:.::: ~ (f) A map or ~whig showing. by~· mitigation ~sail;-.. ~, .. ":··:: ;.o:,. -~~....-, -:;:~. govemment e.xpendi~ ~ p;:lati~ ~: ,
use of •hading. cros~atching or other . -.":. ·. (B) AD estimate of the cost of the:..:-:~._.; '! the incretne:_ntalloal government. . ,;:-:-
symbola, the identity BDd l~tiou of· · · · measures; 8nd~i.:":-~:-:; .. ::·· . ·~ .. : ·:."".: ......• -:-z:ev.enues _thB.t would result fn?m ~~~ :-. :
a:py proposed measures or facilities.. ... ~ ·: · (C) A statement of the ~OUJ:C'!II and .. _ cana~ction of the ~roposed P~Ject. · .. : * (4) Report on Hiswri~ and.· . •:.. · .. · . extent o.f financing. .. : -.:--: . ·:. - . Inc:remental ~~di~es may mclude. .
Arr:haeological Resources~ The : : :-. · ...... 1 (vii) The applicant mJllt proVIde five . . bu'l an: n_ot be limited to..school : · .
.. · applicant must provide a report that ~_. · : ~ies {rather than the fom1een eopiea , operat:ing costs. road mamtenance and :--·
discusses any hbtorical and -. . · · .·; required under §4.31(b) ol the . __ .. . :.=-,repair. public safety, aru:f publi.c.utillq. ·· .
archaeological resourees in the· ·· ...:. . -Commission'• regul&tiona) of any . · . -costa,... .. : .-.. :., ; :..:_; . ._.: :-"""':. '~. ? • ~ .•:; ~
proposed project area. the impact of the nurvey, inventory, ar aubsurface testing · (8) Report on Geological and Sail"· : .
proposed project on those re.sources and rP.ports containing specific .sUa and · . ·-Reso'urce& The applicant must provide a
the avoidance. mitigation. and·:.;: i ... property !nformation. and Including' _ ! · report on the geological and aail .•. :,:. :
protection measures proposed by the • maps !lJld photographs ~hawing the resources in the proposed project ana ...
applicant. ~e report must be prepared · location ind ~y required alteration of and other lands that would be ~tiy ·-
in consw~tion with ~e State _Historic ' historic and arcliaeoiogical resources h:.t ?r indirectly affected by the proposed
Preservation Offii:t:r (SHPO} and the relation to p_roposed project facilities...· action and the impacbl of the pro~sed
Natio'nal Park Serrliee of the U.S. .. ". -~ (SJ Report on SOcio-Economic · . project on those resources. The · .
Department of Interior. T.be rep9rt must lmpacu. The applicant ~u~t provide~· .information required may be :-; .... : .. ~ .
contain: . :· . .: .. ;; _ .:.-: .;,, .. .. . · report whicli identifi~s and quanti?~ supplemented with :m.sp.s showing !,he • ·
(lJ _A description .of any dis~overy :· . the impacts !'(construe~. ~d. · .. • location and description of conditions. .
measures, such. -':S surireys, lriventones, operating the proposed projea on .• · "The report must contam; . · _ :-: ;,_ ,.
,. ~ ..... • •• • -• • • • • • .. • • .. < • -~>• • • . . . . . . -. . . . , . . . .
...
. .. --· ·-·
-..
-... .... ~ ... .. . -. . . .. . ._..;..,
.f ·~ ·I ... / I ~~::7~';;; ··· ~· • ~--.....:·" ....... · -------"-~ ~. • P-· ----· ~ I· · o · ·· *r' ·=· · ,., · nr _,, ti rttf .. ~ )'*--:• i
~ !." · 53S-iu Federal ,-,. -:.·•--: '"r.l J:A No. .,n I Friday, Nc\'t'!n:·'!r 13, 1981 I Rules and. Regulations . l ·j~ I r . -;: ~:.;;~d.:.~~:~~·::::~~~--~pe~~ 0~ the proposed project ami thuppmprlaia Exhibit G m.ri..P ~ .l
future1. .Including bedrock lithology. thoae recreation facili6e1 pi&DDed far ahow that all lands reserved far exbtiD&I
alntfgraphye 11ructural features. sJaci&B future development based on : and future public recreatfcmal-. · . ~ · • ·. {
· featums. mx:ouolidated depoaJb, mel anticipated demand. WheD.publlc. · · developl"'ADt and the th~ buffi:r . .;J II'
I v •
t .. -•• -mi:Derall"nn''IlCni -~-\ •. ·• . ·• .... · .: . : m:r~Uon faciUUe• are.ID be provided :""'~ ". m~e are included within pie project:·.:.J
(D) A detailed deac:riptioa of the toill.· by other entities. the appHcaDt aud.·--·--= . bound,..ry. RecreatiODal ~ttasn. mobile! ' ; I, . -
I •· I I .
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, IDdudizJs tbe t)'pes. ocrmn:ac:e., phJ1fcal those entities ahauld enter-into m . .:... : :: homea and year-round re~idences lur · ·1
~ chemical.charactemtk:a. emd•hiHfr · qreement 011 the type of ~~~~ties !'J be ... ' printe iDe are not to De eoz2:'id~ • J
ad potential for mau 8Gil wow em~ ; . • pi'DYided aud the method Of operatiaiL-~· public recreaticmal fac:r1Dfa. ad lhlt· :--:1
. (ii) A dac:riptloa ahowiDc the ~: :/.:> ... --::~ Ccpiu of agrei!DII!Dtt wilh coopaatms · laDda aa whfch these pnvate fac::ilitid·&'W1
1 r~ ~.,.. l«:atiaD of existing IIDc} poteDtial .: :,!~-.:~ .~ • eatitiea are to be apPended ta the pbm; ·• ··. are to be deYeloped are not to bi. •··:-=-·.:. '.~
pological &lid ICil haz&rda am~ ... ,_--. ~ . ~ fdi) A F.DYfsjOD fDr. shoreline buffer . mclude'd withfD the proposed pmj~ ·.: ._-1
problema. fnclJJdina eanhqtt•Tces, faults.. zane that must be wi!hin the p;rgjecl-· b-..t .. -:. ' ·Q•:..:...;--"".s. •~'i~·e .-..:-.::.~.
--'L.:..t ....... -'·· • · • .:..: •• • ·· 1.-.. .. ..t .. -'---.al.-----' • "'~I· • · · • • • 1 aeepa.~~ ~tiall ~11 ~ \..: uv-...-..,. auuvw: we~ manmnm _ ~ (8} Beporiim Aathedc JliiiW;;;;t.: ··-=_~
i I .... __: -
f ' • , ll -:
acti~e awl abandoned mmps ~· ·:.; aurface _elentioD of the proP:d ·-! . ": "?:: The appUcaqt DllUt provide a report auifj
aDd: mau. aoil mDYe1D1!Dt.. aad ~-· . •. .... • reservmr. md ol ~den~ width to ~ · · duc:n"ba the aesthetic iesourt2S of U.. I ~li&caitaa of CDJ large J.nc¥aHda ~ ~ aDpw public access to P10Jed laDda ami proposed prcject area. thl! ~.: ~j
; l ; ~
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_potmtiallYUDatable soil~Quauwhlci watera ami to protect the ~,puhlic · . . af th · • · AL--•· .;. :;· -=-~
-. could De &gravated l.Jy reserviar :: .: : _ recreationaL cultural. aud other:.. :. • . . UDpadl e prDJ~ oa. w=~~.t.~· !. ·--~-~~
1 Ductuatfcm: :·:.: .... -.;_._ :":' ,..-· .• -~~··• · _: enviro~eatal values of the reteroil'·. reso~ and the=~~:-• ·.: ... ~-·1
! -fw) A des~ptron of the antidpated . · shorelir..c ~ . : ·• · -~ i ~ :-·-: : . :: "!·-:~:: ·: . enhancemem ~ P.Mtecti~ measures ~
.· erosicm..mau•onmovementa;a4 a~~ (iv)Estimatesolexisting aDd future_~· p~ed. "111.ere~~tbe PfeP~-:.,~
lmpacta oA'1he geological alid aail· ~ .. · recreational use at the project. m .. . . . followiDg ~~ti~ with t:ed.eraL. ;--?<
, •. resowt:d ihie to amstnzcticm amr· · '-:' daytime and overnight YUitatfml. . :. , • atata. m~ local 2 B~C::~ 'haVlJ11."·. · • 1
oper.tion of the proposed P.roiect:·~: ·· (MI:ftatfcm days). with a desc:riptiou ol ~gerial ~ility far BDJ' part olJ Jt-. {Y) A descriptiDI!.!iimy pro~~ . the methodology' used~ developing.: . the p~posed proJect lands ar landa . .: •. -:1
me . :r n of these data: :_ ... ....:......: ..... ..:=~ _. : . : : · ;·.. . abutting those Ian~ The~-mua& . ~
,. actS.mfsoiJ&; . :: -_-:--:: ~· ·:.·." . [v) A cft:y--eJopment tch~ule e;ad cost _ CODtaiD: :·. ;' •. :-. ·!...~ ...• .:.~-:: ·:< :..-;: ·:::-. :i
' · ('1J~portDJJJla:retzt:i.anDBesow'CI!&._ es • ates of the cmist:rucfi~~rai:ioa.¥. (i)Adescriptioa.afthe aesthetic·~ ~-.
· 'Ibe applicaD! must proepere a ftROd: .; • · aud)mamtenrmc:e of'~ting. iiuud. aid-character o~ land .. and waters directl;r · i
i:aDt•ini~g a ~posed :recreation~; futUre public ~tiODAJ facilities;~ . and iDdin:ctly affected bJ the proposed· ,'
describiDg utillzaticm. desigrumd ·: · .. hu:luding a atatemat 'of the source ar4 project fadljtfes; ·; ~ -··. ~ -... , ...... :.:..; .•. ,;;:
. • . • . -·~ . . ~ _.:·. · ~~ of fin•'?d'?l fer such fac:ilitiu; ·~ ~ _ (ii) A desc:riptfoa of the. autfdpated., .. ::;
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facilities. aiJG public accesa to \ha -.. :; .. *:' (~)_A descriptilm of any m.eamres C&' : impac:ta on aesthetic resolln2S fnmt ····• ·. ;.
JJ!O}~ ~ Develo_pmen~ af the P~ ••.. · facilities recommended by the agenda. . constructloll activity and related·--: ~~..:-: ~; I; .&iloUid ini:Iwfe. ~ideratiDil. of ib ~ . _ .. coDSDlt-:d far the~ of ~tiD& ·: -.: equi~f and ma. teiial. ~ fhe.":' _h :.~ • ~
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•. 1 .IJ needs of the pliysu:aDy handicapped.:. . . preser'VlJIB. or euhaacmg recreatirmal : subsequent presence of proposed proJect~
Public and private recre•ticmal fadlitiet · opportunities at the prapo.ed project. · facilities m the lands~ .o: .... •• :.:. •• J~·
provide. • d by others. that w_ Ou1d abut the_ . • and for the purpoe of eD..8Urlrlg the.· · ~.. (ilii) A desM"intion otmi.r.;·aitia-:.: .:.~ ,_·: ..
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! proJect shouldbeiiof:edm. the~~~··~-safety of the public in its.u.se afproJI!d ?.'·measures ~~sed by the ~pplicanL'.-':"~
1 . .-The rep~mu.s.t be prepm:d hi.····.;:.:--.. ~an~ waters. including !'D·' ..:. -~ . including a.rchitedu.-ral design. -... ' . .-~--t
' ~~ . ~. ..:: ~~fiaD. wtth appropru.a~ _toea; ... "·='-:-~lanation of ~by th.a appll~ ~ landScaping. and other rea.senahla · : -· .. ;
, . reg~o~ ~Ia~ and ~eckral recn:a~ . ··:· reJected any measures or facilities ··-treatment to be given project wcu:b to ~
ll ~; • . • asr:sae• imd plmm!ng ~mmiaau~~ ~ _:· ~c.o~ended !'Y an agenc:r, and · ·· · present: and enhance aesthetiC anc1 .. :· •
1 :_ •• Nationad Park Service af the US. .... :· .3l/~ (,ul A drawmg or drawmgs. one of 1-ted :..t .. ...:..,.., 4-.-.~-·· --· . . D .. t f the !lit • d. . •.. ~~which d ... th . j . n a resaurce.s ~~.const.L~a ~ .... · epartmem o enor, an ~ ..:.:·!· . escnoes e ~~ P~ ~.area. and operation of proposed project. : ·:.·~:-...
-. o~ata~al~Fed~~CJ'_Wlth·art·::...r.~e(arA)lt:~~~ti -of ..• :.:;.~.:~ : .. ~:....3 . facilities;.and. ~· . .: .: ...... ~.:::,:::::
I . manage.n respollSlWA.A.a..r :'m:' SDTP w. ~-· .L.ue unoa. on proJ~ .ww.ua. ~U~U ·_, L' .. ;• ,. · ·.:. · · • ' · ... · ....... ..
..: the project lands. the report :muat·~. ·: · . the types and number of exi.!rtiq .·.1:,. I ~ "'r' · frv) _Maps.. dra~• and pho~p~
' :, -• . • •• ' • t -,.~,.·•--··· .. " •• ti• na}fa-!Ua:----..2 th _.z:::r::..:_ .. to pro"""~"" awun-2--•--..t;.... .. ~, • contaiD:· :· .. -:-·: "''--: ··: :· ..... :~· =····~: ··~· ~ recrea ~ . ~l.ll:olt·&U.U o .... -.,·,·~ ·.-: . :s~ua. • .. ... ~ ~ w:n~uu:~.UI i~
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(iJ ~ d.escrlpfion m tm'f' areas wtthin ·• proposed for in!Ual developmmt.: .:. :. ....... the info~tian required und~ thi.:: ~· ::-.:
or .in the vicinity of the prtJposed project incl~tding ace2s~ roads and trail-. and subp~ph.. Map• or drawmgs maJ _ ·. .
boundarY that aie incfuded m:or haR . facilities far camping. picnicking. ·: be CO~olidat.e.d Wl!h O~er m~~ tW'. • ~
been designated far study for mclusimi . sw1mming. boat' cloclciD8 and lannching. drawmgs requir1!d m this. exhi~Jl ~ -~n:-·--. : ..... ,., .. ; ·\ ... ·-·~ : ; :· :..: . ,:,· ... -"fishiug and htmting. aa wen.. must confo~..t~eaticna·ol : · ..
. (A) 111e National Wild and Scenic •. . provisiona for sanitation and wute . .. ~ . ;...7-· ··.:->-~~·: · · :· ·'
Rivem Systems (see 18 U.S.C. 11Z1l}: disposal: ·· . • • • ... ··. ·! •• • •• :. :* ·9. Report llll Land US~!. Tb a~llf8-:ll -
(B) The National TRLils ~tem (seeU* (B) The location ofprc!ect lands. must provide a report.that des~ the ·
U.S.C.1241); ar .•· .. :. · ~.' ·· · • ~ ' •· . the type and number of recreational ~ · • ropoS!'llpi-oject :
(C] A wilderness area de:signa ted · · facilities planned for futant · ·. ·. : •. -. Ian& and adjacent prop~·. and those -=
under the Wud.emesa Act (:ree 15. U.S.C. · developmmzt; · . . :, ·. ·. .. .-~ : ' .. -:. · land uses which would OIXW' if the · ·· . .
·113%~ ~ .. ",; ;;..;': ...• _ .. .__. 4
., •• :· 'k (C) The location of an project lands project is aJnstructed.l'he report may.--
.-?':-[il1 A &tailed description of exi!ting • · reserved fer recreational uses ether~ reference thor; disC'Q.!sians of land uses iD.
· recreational facilities withia the project "· those included m paragraph. (f)(7)(vii) other sections of thiJ exhibit. Th.e report
vicinity, and the publicrecreaticmal · (A) and (B] of f?i:s section: and - . must be prepared folloWing C:onsultatfcu
facilltie' which are to be provided by ~ (D) The project bmmdaiY (excludJnr with local and state ionlng or land. .... ---
the applicant at its sale cost or~ •. · . surveojing detitils) of an .areas .. ~~ ;·.: · management authorities. and any
cooperation with other.s no later ilillD ~ designated for recreational ; • · ·: Federal or state agency with managerial
ye!U3 from the date of fir.rt camme.rciaJ.. development. sufficiently referenced to n;~po~oillty for the prop~d. project __ .. -.. ' . . ,. •. , . . . . ..
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.{ 1•.• . · r....t.;ral ~ist"' i \'ol. 46. No. z::;; ! ii"riday, NoVember 13. tsHn CRules and .Regulatl.W·,i·. 55~ J
Jl . ; ,.. abuHIDalaudL Th• report mud proce•• ud 1111111 sbow. tbe p..di.: ""'"",. 4· (1) LDt:lltiDIJ t1/ t1111 pmject tllld · ·' '"· . ·l
IDciude: , • • • . • · . ; ..: . plaua ud specifications for pro poled · principal feature£ 'I'he map mut show· · 1 11· ~ (I) A descriptiou of exlatlug land ue atructureL 1f the project Ia Ucenaed 011 · the location of the project •• a whol& · ·-j
l . m the: proposed project area. includius the bazla of preliminary design~. the -with reference ta the afl'ected at:ream or. . l ' I ldatiflcatian of wetlanda. Jlcvviland~w . appllCBDlmUit submit a final Exhibit P -other body of water and. Jf possible. ta a. !
~.1.. · prime ar UDique farmli.Dd aa· designateCI for Commfuion approval prior to: , ·• -uearby towu or any other permanmt.·-;, ~ 1
: " · · .. by the Soil Conservati011 ~ of tha: commeDcement of any conatructifm af· ·~ · mcmumeata or object~. such u roads.:-. .-~ i
• · U.S. Jlepartmeut of Apicultme, the . .,_-··;·.. the proJect.~-.-.·--;Je:" e~:r.!·:-.: ~!-~·-:-.:-;. :•: t tranami•lionlma or other l~l . ·;.
I Special Area Meqealmlt Plm af tH·~ .. -~·. ··(3) Supp«ting Duip Jl,eport. l'h_.,. ·.:. ~ · that caD be noted 011 the map ad. 1 ~:: -~··· ~
· • ~ofCoutalZoueMaaagemat.:-·.:··· appUcmt~tfumish. •! a minimum.:-:·· recapizedm the~ "''htmap~.~.:r~l I National OcellDic and Atmospheric-=~ _. · the ~oDOWJDS supporting iDfo~tian to • • . also ahow the relatln locatlcma aDd .. -.;. •!
· Administraticm. and 1aada owned ar :--. dem~trate that exiati.Dg and propoied :-llhJsic81 iuterrelatiOilsbips-af the -__ ,. ~ -;
nhject.b;l cantrol by government • ~-:·; '~ · s~ are safe aDd 1.dequate.to · · ~ prim:ipal project warb uuf·other ~-··.·.: .l
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. · -a.pDCfa; ·:-.. ·~-:-·~ ··:=~;;;.:.:··~~-=:··a~.?: •. fulfiD theirstatedfw:u:tiODI andmud · ~ features descrlbedumierparqraph {b)-·[
····~ rul.Adeicip~ouafthe~poUd~ IUbpiitsuchiDfarmatiaDIDaaeparate ~. aftbiaiedia4(Eui'bilA)::: :·.-...'·! ·1..;-i.l I
. ilia withiD amlabuttiq tha.projec:t.: ·. ~ . re~H;Jrt at the time the appli~tiOil Ia ~ed.*= (2) Prolect boundary. Tlle map mast -~ il
- . _boundary that would occur as a rutdt of The report muat mcludc:. -·.-.:'!. • •• : ~;,.-... ; •• ahow a project bmmdary eacloai:Dg aD af !
. · dlrY_ilapmmt ~-O{l~~ ~-~:.:~;;~·'!" . ·· (I) ~ assasm:nent of ~e ~tab~~ · ·the priDcipal project 1¥orb arid allier~: = j proJect:~ . . .. •• ..· .... .;-J :-~~--• the uta and the ~servoll'rl.m atabiJ~ ··• features described UDder paragraph {bl 1
1 ~ fliil Ae.nal photagrap~ map•<-: ··: ~ . . based .o~ geol~cal and ~ub~C! ·.. · of this section (Exlu"bit A]. If accurata ·.: · I · . drawms• oro~ graphics_ sufficient ta ·. 1D~tigationa. mclu~ mvestfgaticm.a· survey iDform 8 tton ii not available at . ~ !
show .the locati~ exti!Dl ~ ~~ of .· of soilt ~rock bormgs an~ ~ta far ~-. the time tJie licm:zse appUcatlonla fiL!d. . ; -~land uses n:f~d to}D tfi1s ·~ ·. the evaluatiOil of~ foUDda~ons aDd '!. the appllca.ut mu.st·so state azul a "");.. --:~
(10) AltematiVf! LiK:tltiDIU4 J?es~ ;·. cona~011 ma~ sufii!=Jent to. tentative boundary may be submitted.-~ J
and ~e!XY So~. The applicant· mUst determme ~~ location an~ type ~dam The h'!Uilda.ry must enclose only those: : !
pnmde ~ ~~;_n~ -~!~.!"!~t ~ -a~cture ~wtable f~r the 11le; · • · -lands ~eeessary far operation and :.: • · ... ·i
. · the followiDg: · : . ~ • .-~·_ · ~ .· · ·. •. . . (ii] Cop1es of,bormg logs, geology maiDtemmce of the projed and for athl!l" _: ~ . (9 !'lten.uttiYe sites ~dered ill · reP'?~ ud lab_crat~ test reportJ; . . ~jed purposes, such 81 flowage. : . : = :
. . amvlil8 ~t .th~-~~~~ o_f ~-P!=~~~ ~-(iii) AD identifi~ticm of all b~ public zecreatioD. shareline controL ar.-; !
• ~jed Sltll; . • •. . .• • --!. .... .-··-: •• area aDd qcarry 11tu and an estimilta. .--.: f . .:-tal u ' . ") Altem tiv fi cili .. ; ~...;i-·... w--Of--'~ tities of "tabla. pra~.GWWOil o I!Dn.~>unmen resonrceL »-! a e • . •3 ..... ~ .. .. ... ~ ..... 110; .. quam • • IU1 . ·~ -the boundary is milaDd coveted l?f• .; .. : ~saes, and operaticma that wez::e ·: . .,· camtractf~ m~terial: .. ;:-· . pulillc; laUd survey. ties IDU.It be shoWD ;.-
ca_nmdered and_th~ n:~~~!~~ ~:.:·. (l·r) ~tabillty imd stress ~yse~ far aD the map at mfiicimtpoint.s to permit
rPJI!Ctian:. -·· • . •. . .• • .•• _ .... ~~ -,. . all maJor strw:taras anch::ntical . · R -pi tting of the • ti of the ··· ao~~=!s~:!.~:.t= :;· -~-io~'d':;n!:fti':n~~i~~==,;~.. ~daryr!Iativemthi:'n~tb: .i~.:
.. mu:.J~ar-fueled power plants. plU'Chased . ami hy~tic f~s induce~ by_wa~ . ~~byd .survbllq. ~a'!d ~ aretha~ .. i
-:::2! .... ..J.. d .. L-' ~-•-th Prob ·-bl M . . . cavc::n:u a pu c Sw;yt:, • .• --power or wvers1.3 exQ)ange. an o~.. _1.oau.. up .... e . a. e &.YI';TD'l. • •· . bat available legal duc:riptiem of th8 ;·.; . ·
-CGDVentfonal ud pumped .. torage··. ' . Flood as appropnate; meL ·· .. · .... ~· ·.: · of"L~ ,._ A .. _...;;..;_ L:.... ......
. hydroelectric plants; and . :.:.: -· · . · ~: ~v) "put b~es far determination of • P 051?011 • a.w: u;-'un~s .r.u~• UIIJ • _;~
-· ;_ (lv) 1'he overall consequences-if the · : sewma loading and the Spillway De51p P~~ed. m_cluding ~taDces ~ ··--.: ~-liau:u~e application is c:Umied...,. · . · ·.· . Flood lD detail sufficient de WI to~ .. . . . _ ~ems fiom fixed mommw:ibl ar -·· -~ (U) List of Uterature. Exhibit E must_: independent staff evaluatimi. ..:. · :-~:.: .. : .' ph~cal feature~ ~e ~da.r;y muat be ~
· ? . include a list of all publications. reportS. (4) ';!'he appll~t mua~· submit fn:e .· ;. . described as follows:·..:...; : : ·•'-f • ;:~:.~·-::-:
. and other literature which were dted or . copies (not fourteen cop~es as required -.7f (i) Impo~'!mf!I!t& 111e ~~ ~-=~.
othinvise utUized in the p;eparatian of· .• under J"4.31(b) of this part) of tha · '· __ ,_ . ~und 8 prqJect ~prr..m~t ~uat .~ ..
· · any part of the environmental reporL -• _. · Supporting design rePQ!'1 des~:ribe~ b(._ ~ · . no more thaD 200 Ieet (horJZO?ltmt :. :) ~ · ·:
. · [g) £xlzibit F consists of general:-. ·. paragraph (g][~) of this section a~ the . .. . . . meD.SUJ.'ement~ from the e:rleri~ margm..:
· · · design drawings of the principal project time preliminary 8lld final design .: ., . :· of th~ reservoJ.r. defined ?Y the !umn.aJ.: ~ · .
works described under paragraph (b) of drawings are submitted to the : .. :: · ma.xun~ ~ac:! elevation. except . · .:
thi.a section (Exhibit A) and supporting Commission for review. If th_!! report . when; ~1atiou may be neces!ary iD:
in!oniiation used aa the "bad~ of design. contains preliminary drawmgs, it muat descnbmg the boundary acco~ io_ .. .
1f the Exhibit F submitted with the . be !fesi • • · ary Supporting the method used. or.where ~dditional.:.~:
epplication is preliminary in nature. · · D g:t;~ Report...,. ·· :-, ·· Janda are necessary far proJect ~... .· · .. .•
applicant muat so state in tba · · ·. · [h) ·~bit G I.s a map o ~ project purposes. such as publi~ recreation. The .
. application. The drawings must conform t.. . . pecification.s, boundary ;nay be descnbed b~ ~ cme
· .tu the "ipedficatfons·of 14.32. .. : · :·.;..· . : an one sheeii.:. usedo or a combmation of. the fo~ · -~:. .· *" (1) The drawings m115t show ail major the sheets must be numbered .-· · methodl: • ··-: ·. ::1.· ·,"':"-:.:: :--::-;. :· 1 .
· p~1ject structures in &nffident de tall to-. consecutively. and each sheet must bear 7f-(A] Conlour line~ including the · · . '• -
provide a full und~tandiilg of the :· a small insert sketch showing the entire . contour elevation {preferred method]; ar:
project.lncludi.ng: ::~_ ... __ .:"·· .. ·:·· · project and.indicallilg that portion of the ~ [B) Specified C01U'Ses ~distances ·1
(i] Plans (overhead view);.:· :. · . : project depleted on that sheet. If' at any · (metes and bounda); or .-. ·, ; · · ._ · • ::r~ ••
(ill E!evatioilJI (front view): · •.--·.. . • . time after the application is filed there is ~{C) If the project lands are covered bj
(lli1 P.rofiles (side view}; and. ·:: any change in the project boundary. the a public land survey, lines parallel to the
[iv) Sections. ·· · .. ·: :~ · . applicant must submit. within a • lines of the survey. -: . ·.~ · · · ·
(2}The applicant may submit . reasonable period following the· : · · 7f fu1 Continuous features.. The · • •. •
preliminary design drawings with fhe · completion of projeCt constrnctlon. a boundary around linear project !eatun!s
application. The final Exhibii F may be final Exhibit G showing the extent of -such as accel!s roads, transmission lines 1 ..
» • aubmit1ed during or a.tter the llcen.sing such change:t. The map must show: and cond~!,s may be described bJ .. · ·
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Federal Recnster / Vol. 4• No.-219 ., F:. ridav, Novern'u'~ ·a l~. 1 !'0 1 / '"·· :--··-.a "·-'a..a .. 4
'i'll .. _. "' J, ... .,. ei'Q ,.,.; •• --;_ ... a.-. ..... b ..... ".:.,'"~
. tpedfied distaDca b cr:Dter llaes w sectloa. the ~P must identify by legal ~ provided·m pa.ra-graph (f) a,f lhl. •l!enm
ofrHt llDa ol the nrvq. The width of · nbdlvisiaa:-· · '· · · the apprcprimie FederaL z.,tAta, and
ncb ccrridan must nat ex.ceed 2:00 feet. ~ (I) l.anda cnwecliD fee by tba . . . resource asenciea mut be givm the
mie11.1 good cauae ia ahDWD far a sre-ter . app~C&Dt ad !eda that the applicant oppartumty to c:amment oD the nPf"'lftft•••
···--• . width. Severalsecticma_ af a ~tiDuou. _plua to acquire h1 fa;t= azxl. -.: ~:· ..:. -: ·~ project. priar to filing of the -.-.. --
. f~tura may be Wnm OD aJiDsle ab.ea~ (U) T.anda OYer which tl1e applfeazlt .. • . far-6ceD.Ie fot major project i ;existirJa
&. !r. -~ . With iufarmaticm shnriag the sequmu:a· hu acquired or pima tq acquire rlghta · '-dam..lllfomzatfon from the can.sultatic~q·
I. · . . _of ;outinuou s~oaa.....:.·--~= ... : ·. ··"=' .~-.'~; _ to ~p~ ~d uae oth-:z-thanf~ .. .: .· procaa mut ~ lnchuiediD.th.ia no..... I..=-%
. v-fdi)N~afadwes. 11.·: ... :~ title.mcludmsrlahn acquired ia be·;:· . v u •"""'.....~ ..... · ... ,·.---.a'--:...-~ _,...,-bo-..1--_ __.__..~ ~ '--. •. . """" r~-.a---. . . .,.. ....... -• -z &nniiJQDancnDtinuaa praj-=t. &'"'fW&IIR6 .. 1 eaaement az=leua.·--.-,~:.-...... ·:· -:,' .. ;. --· ~-.:, -· l_ .. :-:;-~ ..
WO
• -L----2.. .. -...2-.. !ft-.-, --~ ...... ••• ···-·-•• · • ..~: ~ , •. _ •.• ~ ..... :· ••••• --·--···-~~-:"*~=---·--:., ..
.: • m.t~IJ1AOI& WPm•, spmw.JW -.uu ... ...., 4.. Sedf0114.31 f:i riuaidec£1-ie-fis• -.. . ._:V. . .. •..• -·-. t. , .... -.. -.,._-; -· -:!;;::
. . powerhouses~ endon aulr tbaR . . . . . • . wr -ms ~ (f) l}rhilnl Eta 8D euviraninmtal·:. I. -Ian~ that are DeC:aaUJ" far sat. ami q · .pa111~~~-~~J~~~~ ~~~~~ ~ ~~~ /. -reiJort..Iaf~ticm p~dl;d Jn tlia :::l
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.. ; ... ·· effioentaperatimumdmaiD!'"•'aar~ -.l.u-t ·Accepance~ftllng~ref•ctiGa.-: repartmutlie~arsd~c
· .. -.:·: the project. arfaro~apecifiedpmjed_ . [a) • '! ·?A~ :-::·:_.;::=-=t"!~w.~-:~!.:.~;::· ·-··~to~ provwcml of_~ ·~~· .1
· pmpa.a. nchupablic~~KDa~aaca :-(;) • • •·::·~·".:. ~ 4;':t.:~"·.;.:: ~:.:.; ·-~ parqra~h.I!'arequut~ar~~!
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• _ protectfcm af mviroml!ental resourc:~~&..-. {ihl IJcenM for a maJor u.CCD.~tnu:t.ed . ~ applicable. the applicaDt mut. .: -c;.J
'Ihe bo11DdarT _may be d.ncribed by ~ proie!:t aad a major modified prujed:· -briefly e::'PIU& why it d_oea DOt a:pplj.-f!
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; • GDII ar a camb~•tiaD of the fo.Dowma . Jl.f..40 ud~42;. ·"~ "-~~ ._ .. :: •:.~: >k~ ~-'J:!le Envmmm~tal Re~ fs prepan.l ~
method .. _ ·•-· · · • -.. ··· · · · .. ,.. · --.. · ~~-co--·'tatioa wa"th a ..:-•--I --; • .-....... : .~ .• ;,... :.u·-.~~~",:<>-~""· -:~~-.•• : :· •• ·:; ........• ;.:. •~4~~=:"=~ ~·;.._-cu~ u.aw pprop~~ :-.:. 1
; _-: ~-(Af~~n;m:.::·-~:.:.::::~~-~=~:..!1 -=_::··~~~~cin4.~cui~end.ed·bJ;~-F~stateudloc:ilreso~ ~.~-~
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•. . -·(B) SpKified.c::rarsa aDd ~ ar parapph (a} tc read u foDOW£ • ·-:-" · .. ~-· ag~es. If uy ~et!CY that u ··. ·. • · · ·:1 ~ (C) IfthepmJectiud&a., ccvered &, · --·~ •. , •. · · . .,..:·. -: .. · ... · .: &:..". -.-.::;~ ~.; ~ _applicmt is reqwred to cansultf~tD:1
!i publlc_lam;i I'DI'ftY• Dnea 'lipcm or·,;,.;;~ .. ~. · 14.50. ~ IIDd ~ :· •• :-.. · :~ult or f~ to provide . , ~. __ .;.::; ·l
. parallel to the linea~~ aurvey.,_-·· ·::·;-. {a)Appiic:abiD'ty. {1) Except u ;::.:-... dOCJDDen~tic;,m of~e consult~tiOD • ~=~ . * • (3) Federal lAndS. "Any public"lands . . provided In paragraph (a)[2J of thia _ . process ~~a reasonable time after.~~
. _ ._ · aDd mservatiam of~ UDi~ States . _ aect!ou. the provisioDS of this subpart · the applicant _iDlonmJ the agency of the 1
· . · tfederallaiuis'1 [see 18 U~C.198 (1)-. apply to aDY appDcatfon for either an proposed pm~ and requests to .... ;i ·1
•
ad {%}] that are withm t!-.:a projeCt ·. • iDiUal Uceny or new license far a major CODiult. the appUC&Dt may mbrp.it a : -·-i
bmmdary. such ulands·•dmini•ten!d : project e:dstiDg dam that iS proposed mmD1IIl'Y of the C?nsul~~bD or attemp~
by 1he U.S. Fo..-est Service. Burna al .. :·~ . to have a total ~ed capacity of· . • to consult.IDcludiba IIDJ"; ( · :.-;: · ..... ~~-·l
· Land Management. or Naticmal Pam·· : · more thm 5 megawatts. . · ~ .-•. ~-.:. recommendatlaas of the &geDCJ. ~ -:~
Sln-"vica. or JDdian mhal lands. ad the : {~ 1'hia m}Jpart does not apply)o aD)' a~licant muat allow at least 60 da:p fai'·
boundaries of those Federal lands, l'lmSl majel!.praject-exiatin.g dam ($ee.§4.40j . thia ~n.sultaticn ~ ~o~ta~~ -~
be identified as mcb em the.map hy: : ·that IS proposed to entail or include · uul~• the agency mdicatea ~thiD-that I ~ (i) Legaf subdivision& of a pubUc ~-• .' (i) Any repair. m(;.,-illicatiOD a(= · •· ·-pe.nad that it hu DO cmnmeuL A list af !
survey of the affected area (a -. · ... ~··. reconstnu:tfCJI! Of an emting dam that -asen!='es to be amsulted can be -•. : .. :.::-_)
pmtractiOD of identified tCiWnlhip mid ~ would result in • iig:nificant change m obtailled fmm the Director of tha -... •:·,: :;:
section lines ia sufficient forth.ia : the normal maximum surface area. ar ·.. Commission's Division ofHydropowtir;
purpose); ami ·:: · . : ~·-, ~ . · ~ · -:-~ ; normal maximum suriace elevation of Lic:ensing. The Environmental.Report :·l
· ~ (iij The Federal agency., Jdentifi2d by. · ~ ~xisting ~oundment; ·or. · .. : · i must contain the !allowing lnformatioa.l
____ -_ .symbol or legend. that mainta.ina or · · (u1 Airy new developm~t or change · commensumtlf with llu! St:Dpe of tJ:. .=::1 ~, " · manages each identified subdivision al in project operatiOJl that \vould remit.iD proposed project:: '! ·.: -_::..;. •• : -~-: .:.! : ~ I. the public land survqwitbin tha project a significant enVironmental .impact.·;.;.: .; ..• • ·::' ;~ :=.;. :•·.<~,;·.:-;;. ':·. =~~:: £. ~ ..... i!:~!'.:: jo~dary; ar·-: .. ·: :. -:·-~· -.... - . ~-.. ·' ::t . (~) A:u ~pplicau~ for li~ense for 8.11J'-····: -:-·-.:·a. s;bp;tH (!i uii~d Viri~-= I:;;.;.i
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.. 7f (m11n the absr;mz of a p~blic·l&nd maJor proJ~--eXls~ dam ~.hat w~~ ·. ~ . revised to)ead u foUowS:. .. : .. · -:._ · 2 ?.:·:.;
· survey. the !ocatiau af the Federal 1anda have _a _total ma~ capadty .of~. · .-:... . · -·-:-: ·. ·· .• -... _.. .• ~--·::· ·~ . .:. ·: ~.-. .::.:
_ _..; .. ;.to the .:u~----..;·--..:1 m.egawa.._ · ... -Ie·•·m .... •t b il... -·~.~.... ·.. · --'.,. ... ..,.,. ~ · 11
"' ·•• ............ ••• ·-.-:: ~ .... , a ..... wu.•••·•6 UUI~ AllY :_:•· l~. ;,.'~' • • u•.... -UD SU !IU • ·••· _...,._:-. ·": -·-~ ~-:· :·~~ • .s ~-"":':-• ..:-.:-"C.~ ..... ~:
.. ~om~ fmm fixed monument. ar. · · _. . applicati~.~ ~uh~art G (I l';t.SO .. ~ · SUbpart ~,ippaati'on fai Uc~ loc .: .. .:-~
physical !eatare.. When a Federal:~~-=·. and 4.61.). _ ~: .• :· • : ·:.. •· ·.:··. :·: .. ;: :. :_':_::. . '" Transmission Une om, •.. : .... ·: ~-· :-:··~:
surveymonumentoraFederalbench· ~~ ~.;:..,--.·· ·•· · :;.. .. , ·.~·._.•-·.:..-.-=-:,, ... ·· . .:: .... ·.:. : ... .:-~·;.:·.:.' .·
mark will be destroyed or rendeied :.. - . : . .:..:_ · ·'·-: ~ ... .:·~-~·-~; ~:,· ·. -.-· .. :.~ 1 .·:" ~-:: • :;·. A~liCabnft,. . ~ .. · .·-:: -~-:; ··: ::
. unusable by.the constmcticm of project 14.50 [Amendedl · . · ~· . . .. :: 4.71 Content. o! appU~ticm. · ·. · : .. =-·:
works. at least two permanent. marked B. Section4..50 il amended m.. ~ · .-~~::: · • . ..;. • · · ·• • :. \ .. ·· · · ·: : :;
witnesamonumentsarbenchmarb. :. · parag:raph{b](S)byaddingth.~woid ... ·~·· ··. -::: -.; ::~:. "~: -·:-~_-:::· ....... ··
must be establbhed at accessible points. .. and~ at tha end ~r clau.e (i), by ·· . r.:: · Subp~rt ~APpti~ti~n-: {; [i~~-1· 1
The mapa shaw the location (ami ·. · · . . deleting the semicolon at the end af. ~ -~nsmfssJan Una only -~a ~.
elevation. far bench JIUUb) of tha ·"'"':'·· clause (ii), and imierting a periOd in uea: • -.. . ., -·.: ~; :-.:;:.. : au;;~ey monument ar bench made which there?£. and by removing t:Jauses (iiij . i• I 4.70 .. ~ppfteabllftT-~:·~-~:-:-·.;:· .~.:: :: • :,·•:
will be destroyed ~rendere~ unusable, ·Bild (tv). -· ·-: .( .=· -·: •· •. : • •· .~ • This subpart 'appllea to ~J ·~ . ~!."'·~=:-
u well as of the wttne:a mormm.ents ~ 7. Section 4.51 il amended by"revising application for license issued solely .for· ·
D:nch m.arks. Conn~ courses and. the introductory statement and . a transmission line that lran11mils power'
_distances front thew!lne~ monument.. paragraph (f) to read an rona~· from a licensed waterpower projector :
or bench ~)a to the original mu.t dso · -· · ---· other hydroelectric project authorized .
be shown.. ... ~. . . . . . . • -: · .... · § .-.s~ ContentS of appnc:ation. :· : by Co ta th . t r cti j -¥ (4) Non-F~eral Lands. :f~"iho~·. ·: . All ap~!icatio·n for U~ und~·tm. th disn.gress_ e pam o J!cm on with · · 1 .i_ ·aL:-th J bound -r e tributiou system or vnth tha :, ·-,
aDU3 WlWJ.U e pro ect a.r) ·: l't subpart must cont.aJn the follo'-V'in• int d · · · 1
. identified UDder ara b {h){3) of thit .. .._ · en:onner.~ pnmary 1ransmissl.Oil' . ~ • P grap information in th~ !arm specified.. AI ·• system. ":-" .. ·.. . ::· ··• · :.:n n.: ;._· .,: • .,· .~ • . . ... .. , .. ...
--. -"'' -
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Council on E'uvirotunental Quality
Executive Office of tht: President
~r~ ..
; . ~......... ..... .. ~ . ) . ~ -..
REGULi\.TIONS
----·
11{1\Jl£ OAt( ' I Nil
l~[A !1~!f&CEii . fl.' ~71
!!AH',i£ ~·itll I I 7
GlOlCGIST I i
Wll!lllf( I • 1 it£w! •~o•.-N . T
•Q
! S~:J q-J h.o~;:-:'!7 1~~·-_~"_· • __ ,-_·!: O O '
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For Imple1ncnting Th~ Procedural Provi~i<Jn~ (.)f 'fhe
NATIONAL
EN\liRON1·fEN·T~-\L
POLICY .. A.CT
Reprint
0 43 FH. 5597U-5G007
>;oven1ber 29. 1978
40 CFR ParL<i 1500-1508
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CO~TE:KTS
Regulations for Implementing the Procedural Provi-
sions of the National Environmental Policy Act . 1
The National Environmental Policy . .A •• ct _of 1969, as
:\mended. 34
The Er.vironn1e:ntal Quality hnproq::ncnt Act of 1970 . 39
The Clean Air Act § 309 41
Executive C 1rde:r 11514, as An1c:r:ded by Executive
Order 11991 t, ~
For further infom'l:~.tion, contact:
Nicholas C. Y oat~ General Cou~l
Council on J:::nvinmmcnta.l Qualitr
Executive Office of the President
722 Jackson Pl. N. W.
Washington, D.C. 20006
(202) 633-7032 •
t'or :\~11'1 '•Y tht :iut~triiii'JIIIIutl: oiiJtii:UiiH•II~I ~.: ,; \iv\·rrunaunt l'rtiiiiHII Ollk:e
w tl.l.hlllltl(lll, lJ. (.;'. :f_,lf.J;
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Topic
A:fect~d Environment
Al~ernativcs
.~ Index to CEQ Regulations
Alphabetical Order
categorical E:{clusion
Circulation of EIS
Classified Information
Combining Documents
Consultation Requirement
Cove-= Shee~ (Format EIS)
Page Limits, Summary, Alternatives
List of Preparers
Cumulative Impact
Decision Points (Implementing the Decision)
(DES) FES
Economic Effects
Effective Date 7/30/79
EAR's (E!lvironmental Assessment) ·
Environmental Consequences
Environmental Documents (EA, EIS, FO~SI, X of I)
Environmental Protection Agency
Environmental Revie'l.v Requirements
Filing (EIS)
Findings of no Significant Impact
F&\-1 Coord. Act
Graphics
Handbook
Human Environment
Impacts (eff~cts)
Intensity
Interim Actiot"'.s
Joint Lead Agency
Lead Agency
Pages
12, 13
5,9,12,19,25,30
3,4,5,27
14, 21
26
3,4,21
3,4,7,15
12, (12)
3,7,11
12, 13
28, 30
19 (20)
(11) 11,15,16
28
25
5 '7' 21, 22' 28
12, 13
28
12,17,18,24,28
3,4,7,15,16
24
3,4,5,28
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11
23
10,9,29
28, 30
31
20
4,6,7,8,_18,21124
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Topic:
.
}~jor Federal Action
Matter
Mitigation
}1onitoring
Natural or Depletable Resource
NEPA Process
Notice of Intent (EIS)
OMB Circular A-95 (clearinghouse)
ONGoing Activities (See effective date)
Planning
Program EIS
Proposed Action
Publie Involvement
Reeord of Decision
Response to Comments
REA
Scientific: Accuracy
Scope
Seeping (Process~
Significantly
Social Effects
Summary
Supplements to EIS
Table of Contents
Terminology
TIERING
Time Limits
Timing
~nen to Prepare an EIS
Wilderness Act
\~rZ.ting
2
Pages
10, 29
17,.18,30
12,13,16,19,20,30
19,20
13
30
7,26,30
13,19,22
25
3,10, 29
12, 30
5,15,22
19~ 20
16
20
10,31
28
3,12
11
12
27
3,10,14,31
4,7,8___,.
10, 24
5
23
11
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1
2
3
4'
5
6
7
·8
9
10
11
12
13
14
15
16
17
17,18,
19
20
. 21
22
2:
24
25
26
27
28
29
(
Indeh to CEQ
(Numerical Order)
'l'opic (s)
T of C
T of C cont. 1500 Purposes Policy
1500.3 1-tandate, 1500.4 Reducing Papert~ork
1500.5 Reducing Delay, 1501 ~EPA & Agency Plan
1501.2 Apply NEPA early, 1501.3 when :o prepare an.EA
1501.4 ~fuen to prepare an ES
1501.5 Lead agencies, criteria for
Coop. agen=ies 1501.7 Seeping·
1501.8 Time Limits
1502 ElS, 1502.2 Implementation
1502.3 Statuatory Requirements 1502.6 Hajor
Federal actions ~equiring preparation of EIS
1502.5 Timing
1502.6 Interdisciplinary Preparation 7 page limits
• 8 \~riting • 9 praft & final -supplemental state
1502.10 format, •• 11 Cover sheet .12 Summary
.14 Alternatives
,
1502~15 Affected environment, .16 consequences .17 Prepares
.18 appendix
1502.19 Circulation of E!S .20 Tiering
.21 References .22 Incoop~ete information
. 23 Cost/benefit analysis . 25 Reviet~~
1503 Commenting 1503.1 Invinting comments
.1503.2 duty to co~ment .3 specificity of comments
~4 response to comments
1504 Predecision refuals to CEQ of Proposed Feeeral
Actions determined to be unsatisfactory
1504.2 Criteria for referal 1504.3 Procedures
1505 NEPA and Agency Decision making 1505.2 record
of decision in cases requiring EIS
1505.3 decision implementation 1506 other requirement
of NEPA. Limits on actions during NEPA process
1506.2 Elimination of publication 1506.4
combining documents, 1506.5 agency responsibility
(b) EA (c) EIS, 1506.6 Public Involvement
1506.7 Further Guidance 1506.8 Legislation
1506.9 EIS Filing Requirements .10 Timins of Action
1506.11 Emergencies 1506.12 Effective date (7/30/79)
1507.1 Agency Compliance
1507.3 Agency Procedures
· 1508 Terminology and Index.
Definition -Act, Affecting, Categorial Exclusion
Coopcarating agencies council
Cumulative impact., effects, environmental assessments
environmental document, envir. impact statementt federal
agency,. finding of no significant impact
Human environment, jurisdiction by law, lead agency,
major federal agency
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30
31
32,33
34-38
39-40
41
42-44
Topic(s)
~~tter, mitigation, NEPA process, notice of intent
(EIS), proposa1J scope
Significantly, Tiering, 1
Index
NEPA as Amended
Environ. Improvement Act of 1970 (H2 o)
Clean Air Act:
EO 11.514
2
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TABLE OF CONTENTS
PA2T 1500 PUIP'OS1, POLICY, AND
IAAHDATE
See.
1500.1 P'\ln)oae.
1500.2 Polley.
1500.3 Mandate.
1500.4 Reduclni p&perwork.
1500.5 Reducl."la delay.
1500.5 A5:ency autho:1ty.
PAilT 1501-NEPA AHO AGEHCY
PLANNING
1501.! Purpose.
1501.2 Apply NEPA early In thft process.
150l.J When to prepare an envlronmen·
ta.1 .SSe$'im!n t.
1501.4 Whether to pr~pare an environ·
menta.ltmpact staternenl.
1501.~ Lead a.gencles.
1501.6 Coaperatini Po¥ancies.
1501.7 Sco:;Jlni.
1501.8 "''1me limits.
PAlT 1502--EHVllONMEHTAL IMPACT
ST ATEMcHT
lSO:.l Purpos-e. _
1502.2 Implcmenta.tton.
1502.3 Statutory reQuirements !or st.ate-
ment.5.
1502.4 MaJor Federal ac;t.1ons reQUl.rini
the preparation o1 em1.ronment!.l
l.m~a.:t statements,
1502..5 'nm.\ni.
15-02.6 Int.erd!3ctpllnary preparation.
1502. '7 P~e llmits.
150:..S Wrlti.\'1.1.
1502..9 Dn!t. !1nal, and aupplt:mental
5t&temenu.
1602.10 Recommended tot·uuLt..
150:!.11 Cover sheet.
1~02.12 Summary.
1502.13 Purpo.se a.nd need.
1502.14 Altema.tJve.s includi..'li the pro·
~d a.ction.
150:!.16 A!tected environment..
1502..16 EnVironmental consequences.
1502.1'l' LLst ot preparers.
1502.18 Ap~ncU.x.
1502.19 Circula.tlon ot the environ.men·
tal impact s~t.ement.
1502.20 Tterimt.
1502.21 lncorpora.tton by reterence,
1502.22 I.ncom;>lete or unilvn.Ua.ble 1nfor·
mat.1on,
.•
Sec.
1502.23 Cost.-bene!lt &..'le.lysts.
1502.2~ Methodolo&::r a.nd scientl!ic a.c-
cura.cy.
1502.25 En\'ll"or.ment:Ll re1.1ew -cd con·
aul ta.t1on requL""ement.a.
rART 1503 CO~NTiNQ.
1503.1 L"lV'1tt.,..-comments.
1503.2 n\.::.y to comment.
1503.3 S~eci!ic!ty ot comments.
1503." Re.apcnse t.o comments.
r~J.T l~racDcCISION REF::;tU.LS TO
TH~ COUHCU. OF PRO?OS~D FSDE~A.L
ACiiO~S DETi'lMIN!D TO a!: EHVliO~
MEHi.6.LLY UHSATISFACTOiY
150~ .1 Pur;,ose.
1504..2 Criteria for retetTal.
150i.3 Procedure for re:ural.s utd re-
sponse.
PA.lT 1505-N=PA AND AG~NCY
DEClSION.MAKlNG
1505.1 Aiencl' decislonma.!dn; proce-
dures.
1505.2 Record o! decU.ion in ca.se.s re·
qui.r' .. 'lg environmental lmpa.;:t &:ate·
r.1cnts.
1505.3 !mplement1ng the deci.slon.
PART 15oo-OTMER lSQU:l2MCHiS Of
H!:PA
1506.1 Limit.at.lons on actions during
h""E.P A process.
1505.2. El1m~t1on o! duplSCAtlo.n with
St.a.te a.nd local procedures.
1506.3 Adoption.
l50B.o\ Comb:ning documents.
1506.5 Mency rt>Spon.dblllty.
1508.6 Public involvement.
l508.'i Further iU1da.nce,
15~.8 Proposals !or lepl.r.tlon.
1506.9 Filing requirements.
1506.10 Timir.v; o! a.icncy s.ctlon.
1506.! l Emergencies. .
1506.12 E!!ective dnte.
P "R.T 1507 -AGENCY COMPUANO:
1507 .l Complla.nce.
1507.2 Agency cs.pa.bUlty to comply.
i507 .3 A5:encY procedures.
PART lSOS-TEitMINOLOGY AND IN02X
1508,1 Tennino\ogy.
1508.2 Act.
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l!lOS.J Al!ectin:l.
l~na.~ Cate~rorica.l excltl!llon.
1::03.5 Cooperating uency.
1b08.6 Council.
1608.7 CUmulative lm~a.ct.
1508.8 E!teeta.
1608.9 .,... .nvtron:nent.al uaeaament.
1503.10 E:n1ronzne:nt&l document.
1508.11 En\ironr.aenw impact 1t.a.t.e·
ment. ·
1508.1:£ Federal ~enc:y.
1608.13 Ftndw. of no alini!len.n:;
impact..
1508.H E:uma.n envtronment.
1503.1~ Juri.sdlcttcu by l&w.
1A03.1ti Lead a.a~ncr.
1608.17 Le~!.atlon.
1608.18 MaJor Federal action.
1508.1~ Mst.t.er.
1!i08.20 M!tiption.
1!10&.:1 l'.'"EP A pro~.
1608.22 N\Jtlce o! L'ltent.
1508.23 Proposal. .
1503.2~ Referrtr1i' age:1cy.
150a.l5 Scope.
l~OB.2a S~al experttse.
1508.2'1 Siml!lcantly. isoa.2a "''t~rln.:.
.lnci~x.
PART 1500-?URPOSE, POLICY, AND
MANDATE
1500.1 Pun>ose.
1500.2 Policy.
1:100.3 Mr-"lda.te.
1500,4 Reducin~ pnperwork.
1500.5 Reduc1ns;: delay.
1500.6 Agen•=Y authority.
AO"l'HOJU'TT: Nr:PA, the En\·tronrnenta.l
Qus.l1tY Impro\'ement Ac;t o! 1970, a.s
!.mended (42 U.S.C. 43Tl et. seq.), section
309 of the C!ee.n Air Act, e..s a.mended <~2
U.S.C. 7609) and Executive Order llSH,
Prot.ectton and Enh&."lcement o! Environ·
mental Quality <Mo.rch 5, 1970 a.a s.men.d·
ed by Executive Order 11991, May 24,
1977).
§ 1500.1 Purpoae.
(a.) The Na.ttona.l Env1ronmeni..a.l
Polley Act (N"E?Al is our bas~c na.·
ttonal cha.!"'~r !or protection of the
environment. It establishes pollcy,
sets goals <section lOl), and :provides
mea.ns (section 102) !or ca.rrytng out
the policy. Section 102(2) cont.s.ins
.. a.ctlon-!orcing" :provisions to make
sure that federal agencies a.ct ac·
cording to the letter 2.Ild spirit o! the
Act. The reKUJ.ations that follow 1m·
:plement Section 1'02(2). Their pur· pase 1s to tell !ederal ag-encies what
they must do to· comply with the
'
procedures and achieve the goalc: at
the Act. The Pl'esidcnt, the f~deral
agencies, and the court.s share re·
sponsibil!t.y ior eruorcin~ the Act so
a.s to s.chiev'! the su'bsta."ltive re·
Quirements o! section 101.
(b) NEP.~ procedures mu:;t insure
that envl.ronr..enta.l !.r..fonnat!on, 1s
a.v&ilable t · p.Jblic o!!icia.ls e...:.d citi-
zens be!ore declsla..~ Are ma.de and
before actions a.I'(1 ta.lten .. The inlor·
mation must be ::;..l hlih qu;.llty .. Ac-
curate scient1!ic ~ysl3, expert
~ency cc,mments, and public scrut1·
ny s.re essential to iml)lementinil
:t-i'EP.A. Mo3t im:;lcrta.ntp N7'..:?.~ doc\.:·
ments must concent.--ate Oi:l ·the
wues tha.t are truly si~I!lcant to
the a.ction in question, rather tha.n
Pmasslng needless detail.
(c) Ultimately. o! course. 1t is not
better documents but better ded-
stons tha.t e:o.W'lt. NEP A's Pt!l'P03e is
not to generate pa:;lerwork-even e:.:·
cellent ;JE.perwork-but to !oote:-ex·
cellent e.ctlon. The l'.~A pro~ss 13
intended to hel-p public o!ticia.ls
m~~ decisions tha.t are ba.sed 0~1 un·
derstandi.ng of environmental c.::nse-
quences, and tue a.ctions th~!. pro·
teet, restcre, and en.~'.1.ance the envi-
ronment. These regul~t1o!lS provide
the di:ect1on to s.chiev~ this pur-
pose.
§ 1500.2 Policy.
Federa.l agenclc-.s shall to the !ul-
lest extent possible:
Ca.) Interpret and administer the
policies. regulatio~. and public·ls.ws
ot the Unlt.ed States in a.ccorc:mce
wi\.h the policies set !orth in the Act
a.nd in these reguls.tions.
Cb> Implement procedures to make
the ~"E? A prt1ce~ more use!ul to
decf.sionms.kers and the P'ltlllc; to
reduce pa.perwor}: e.nd the 8./~c-..:.::.ula·
tion o! extraneous bs.cX&rou..'"'ld ds.ta;
a.nd to emphasize rt;,::.l enviro:une::n.al
issues s..nd s.lternattves.. Envi:ror.r;.leo-
ta.l impact std.~ment.! sh..s.ll be ccn-
cL!e, clear, and to the polnt. &nd
shall be supported by evidence that
.n,gencies have made the· necessary
environmental analyse.!.
(c) Integra.te the requirements o!
NEPA w1th other plan.ning and envi·
ronmental review procedure:5 re-
quired by law or by agency prn.ct!ce .
so that all such procedures n::.n con·
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cu..-rently ra.ther than consecutively.
<d> Encoura.ge and !a.cU1t.ate pu.ollc
lnvolvec.ent. in d~1s.tona which
a.!!ect t.~e qu.e.llty of the hum.an en-
vtroill:De:lt.
(e) Uae the N~A Drcx:ess to 1denA
ti!y and use!B the reason.a.ble s.lter:
nAt!ves to propoaed a.ctlons that will
&void or m.1.n.!m.1ze a.dvel'!e e.t.fects o!
these o.c~ior.:S upon the Quality at the
human t:'nvtronment. en O;~ a.ll pra.cticable mea..WOUI. con·
sis tent WIth the requirementJ of the
Act and other es.sentta.l cons1der-
a.tlat15 a! national policy, to restore
and er..ha.nce the Qua.lB;y o! the
hU!Xl.n.n en":1ronment and avoid or
m!.nlm!ze a.ny possible adverse e!-
! ecU a! their ~tions upon the qual-
1t.Y o! the hums.n environment.
§ 1500..3 Maruiate.
Pa.rts 1500..1508 at this T1tle pro-
\1de regul&t1on.a applicable to and
bl.nd.i.na on all Federal agencies !or ·
11:nplement1ng the procedural pro\'1~
aioru of the Na.tions.l En\1ronme:lta.l
Polley Act o! 1969. u amended CPub.
L. 91-190, 42 u.a.c. 4321 et seq.)
(l'l'Z? A or th~ .. '..ct) except wh~re
camp Ua.'1ce would be 1ncons1.stent
with other statutory reQuirecents.
TI1ese regul&t1on.s a.re ie.sued purnu-
a.nt to W"& A, the Environmental'
QU&llty Improvement Act. o! 1970, as
amended C-12 U.S.C. 4371 et seQ.) Sec-
cion 309 of the Clean All' Act, a.s
amended (4~ U.S.c. 7609) and Execu-
tive Order 11514, Protection a.nd En·
ha.ncement o! Environmental Qual-
ity CMa.rch 5, 1970, u.s amended by
Exeeut!.ve Order 11991, May ~4,
1977>. These resul&t!ons~ unlike the
predec~~r guidelines, are not con·
fined to ~-l02C2l<C) <environmen-
tal l.mpa.ct. statements>. The re~ls.·
tions apply to the whole of section
102C2). The p:-ovisions o! the Act and
o! tnese regula.t1on'l must be read to-
get-her as a whole in order to comply
with the spirit and letter of the la.w.
It l.s \.,he Cou.ncll"s intention that ju.
c:UclaJ review o! agency compliance
with these regulations not occur
be!ore an ~ency has !lled the !1nal
environmental lmpa.ct statement, or
h.a.s made a tinal !1ndJ.ng o! no sli-
ni!1c:ant impact <when .such a. !lndlnsr wm result in action a.ttectt.ng the en·
vtronment>. or takes a.cticm that will
resul: 1n 1rrepa.ra.bl~ !;;jury. Further-
more 1t 1s the ·,6ouncU's intention
thc;.t 'a.ny trivial ·v1ola.tion o! thesa
reilJ,la.t1ons not give rise to any inde·
pendent ca.u.se o! action.
§ 1500.4 Reduclnr pa.~rworl.r..
Agenc1e:.shall reduce excessive p~
;gerwqrk h'!l:
Ca.> Reducing the length ol envl-
rorunenta.l impact statements
<§ l502.2(c)). by me&nS such e.s S·!t·
tL'1i appropriate page ltml ts
(t§ 1501.7(~)(1) B..id 1502.7).
.. (b) ?repari.."lg analytic ra.ther than
enc:~clopedic enviror.ment2.l. irr.ps.ct. ·
statements <§ l502.2(a.)).
<c> Discussing only briefly issues
other tha..'l signi!ica.n~ one!
(~ 1502.2('0)).
(d) Writi.nz environmental impa.ct
statements in pla.1n langu&..g"e
(§ 1502.8}.
(e) Followtng a clear !orrnat !or en-
vironmental impact suternent.s.
<§ :.502.10).
(!) Emphasizing the por-!or.s of
the enVironmental impact SU!.'-Cmcm.t
tha.t a.re u.se!ul to decislonmakers
and the putJlic C§§ 1502.14 ana
1502.15) and reducins emp!"~..sis on
ba.cwound mn.teris.l <§ 1502.16).
<t:> Osil'l8 the seeping process, not
orJy to ident1!y s!gniiica.nt environ-
mental issues deserving of study, but
sJso to deemphasize insign!ticmt
issues, n.a.rrowing the scope oi the
environment.aJ. 1mpa.ct statement
process a.ccorcllngly (§ 1501.7).
<h> Summa.r1z!ng the env1ronmen·
tal 1m:pe.ct stn.tement (§ 1502.12> and
circulating-the summary ins~ea..d ot
the entire environmental impact
statement 1! the latter is unusually
long C§ 150.2.19).
(!) Using program, pollcy, or pla."l
environmental impact state:ne:u~
and tiering !rom $ta.tements o! broa.d
scope to those o! nan-ower scope, to
eliminate repetitive discussions of
the same issues <§§ 1502.4 and
1502.20).
(j) Incorporating by re!erence
(§ 1502.21).
(k) Integrating h'"EP A require·
ment.s with ot.her envirOiunent,
review and consultation requlre·
ment.s <§ 1502.25).
<1> ReQuiring comments to be as
spe<:1!1c a.s possible (§ 1503.3).
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<m> Attaching £s.nd circulati."1g only
changes to the draft environmental
impa.ct. statement., rather tna.n re-
writing P.nd circula.tin~ the entire
statement when changes are mlno:-
tf 1503.4(C)).
!nl Ell:nina.t1ng duplication with
Sta.'Le &""ld local procedures. by pro·
vid.L-:..i !or joint prepa.ratlon
<§ 150,~t2>. a.nd with other Federal
p:oceG'ures, by providing that an
agenc7; may a.dopt appropriate env1o
ronin~ntal documents prepared by
another agency <§ 1506.3>.
Co> Combin.L,g environmental doc-
uments v.1th ot.her documents
(~ 1506.4).
· (p) Using categorical exclusions to
de!!ne categories of a.cticns which do
not indlv'idun.Hy or cumuln.t!vely
have a. significant effect on the
human environment a.nd which are
there!ore exempt !rom reQuirements to prepare an environment.a.l lmpa.ct
statoment < § 1508.4).
(Q) Using a finding o! no signifi-
cant impact when an. e.ct1on not oth-
en.-lse excluded will not ha.ve a sig-
nl!icant ef!ect on the human en .. ·i-
rpn,ment and is therefore exempt
!ro:n rcqulremenr.s to prepare a.n en-
. vironmental impr.ct statement
( § 150~.13}.
§ 1500.5 R.educinr delay.
Agencies shall reduce delay by:
(a) Integrating the NEPA process
Lnto early plannL'1g <§ 1501.2).
< b > Emphasizing l.nteragency coop-
eration before the. environmental
impact statement is prepared, rather
tha..n submission o! adversary com·
ment.s on a completed document
(§ l$01.6) •.
{C) Insuring. the swift and !air reso-
lution o! lead agency disputes
(§ 1501.5).
(dl Using the scoping process !or
an early identification o! what are
and what are not the rea.l issues
(§ 1501.7).
< e > Establishing appropriate time
limits !or the enviTonmenta.l impact
.statement process <§§ 1501. 7(b)C2)
and 1501.8 ),
(f) Preparing environmental
impact statements-early in tL.le proc·
~ <§ 1502.5).
(g) Integrating NEPA require-
ments with other environmental
4
r~view a."ld consulut!on reQuire-
ments<§ 1502.25).
(h) Eliminating duplle&tion w!th
State a.nd local procedures by p:-o·
vid1nb' !or jo~t. prepa.:at1on
c § 150o.2> a.nd \;"ith other Federal
procedures by p:-ovidir..g tnn.t a.."l
agency may a.dopt n.ppropria.te en'\o·i·
rorunentr.J docu:nents pre:lnred by
another &gency <~ 1506.3)& en Combinini environmental docu-
ments with other do::uments
(§ 1506.4).
(j) Using accelerated procedures
for proposals !or leg'.sla.tion
(§ 1506.8).
<k> UsL'"lg cate&orico.l excluslo~ to
define categories ot actions which do
not Individually or cumulatively
have a significant effect on the
human environment <§ 1503.4> ~"1d
which are there:fore e1:em~t trorn re-
Quirements to prepare an enviro:"t·
metltal imps.ct statement.
< t) Using a. !indL"li o! no sisntfi-
ca.n!. impa.ct ~:hen an n.ctio::1 not. oth·
erwr:l..c;;e excludl!d "9-'ill not have .n. s!z-
I"Jf1cant ai!~ct on the huma."1 envi·
ronment <§ 150~ .13) and is thereto:-e
exempt from reQuirements to pre-
pare an environ:nenta.l impac: state-
ment.
§ 1500.6 Ag-ency authority.
Each a.gency shall interpret the
provisions of the Act a.s a. supple·
ment to its existi.."lg authority s.ncl as
a ma..11date to view traditional poli·
cies and missions in the light o! the
Act's national environmental objec-
tives. Agencies shall review their
poli~ies, procedures, s.nd rei'Ulat1on.s
accordingly and revise them as nec-
essary to insure full compliance with
the purposes a.nd provisior..s o! the
Act. The phrase "to the fullest
extent possible" fn section 102
means that each age .. 1cy oi t!le F~d
era.l Government shall comply wlth
tha.t section unless existing la.t:." ap-
plicable to the e.gency's operations
expressly prohibits or me.kes compli-
ance impossible.
PART 1501-NEPA AND AGENCY
PLANNING
Sec.
1501.1 Purpose.
1501.2 Apply NEPA ea.rh· in the process.
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1501.3 When t.o prepare a.n em·tronme:.-
taJ a:osess:nent.
1501.4 Whethe,. to preps.re an envtron·
mental impact st.a.terueiJ.l.
lbO 1 • .5 Lea.d a.gencleo.s.
1501.6 Cooperat.!.ne aRenclea.
1501.7 Scoplni.
1501.8 T1me limits.
ACTHOlliTY'! NEPA. the. Environment&.!
Qua.llty Improvement Act o! 1970, a.s
e.cended <42 O'.S.C. 4371 et. seq.), Section
309 o! the Clean AJr Act, s.s &mended < 42
U.S.C. 7609), and Executlv'! Orde: 11514.,
?Totectlon and Enhancement ot En'.'ir::m·
mental Qua.l!ty CMarch 5, 1970, as amend·
ed by Executive 0:-d~r ugel, May 24
lP7'7>.
§ 1501.1 Purpose.
The pu..""t))ses o! this pa.rt include:
(a) Integrating the NEPA process
lnto ea.~ly planning to insure appro-
priate consideration o! NEP A's poli-
cies a.nd to ellmina.te delay.
<b) Empha.sl.zbi cooperative con·
sults.tlon amO!li agencies be!ore the
en\1ronment&J impact statement is
prepared rather the.n submission o!
a.dversar~· comments on s. completed
docum.ent.
<c> Providing !or the swift and !air
resolution of lead agency disputes.
(d) Identi!ying at a.n early sta.IZe
the sign1!1ca.nt environmental issues
deservtng o! study and deempha.siz·
ing insignificant issues, narrowi.11g
the scope oi the enviroilr.lental
impact statement accordingly.
<e) Providing a mecha.nism !or put·
t1ng appropriate ti.rhe limits on t.he
enviro?Unental impact statement
process.
§ 1501.2 Apply NEPA eal"ly in the proc·
esa.
Agencies shall integrate the NEP A
process with other plann.ln~,-a.t the
earliest possible time to insur.~ that
pla.nnlng a.nd decisions reflect envi-
ronmental values, to avoid dela!-'S
later in the process, a.nd to hea.d ot!
potential contlicts. Ea.ch agency
shall:
(a) Comply with the mandate o!
section l02(2)(A) to "utWze a. sys.
tem.atic, interdlsciplina.ry approach
which will insure the ·integrated use
o! the natural and socia.l sciences
a.nd the en\1.t0nmental design arts 1n
plannins and in decisiorunaking
v;hich may have an impact on ma.r~·s
environment," a.s specified by
§ 1507.2.
(bl Ide:1t1fy envtron1·nental e!!ecc.s
a:,d values in adeque.te der~n so they
can be compared to cco;'lomic anci
technical analyses. Environmenta.!
documents and appropriate analyses
shali be circulated and reviewed at
the same time as other pl3J'U"\L."l~ doc-
uments.
(c) Study, d~velcp, and describe a.p·
propria.te alternatives to reccm-
mended courses o! action 1ri a...'1Y pro.-
posal which involves unresolved con-
flicts con:::err..ing alterna.~ive uses oi
a vail able resources as provided by
section 102(2)CE> ot the Act.
<d) Provide for cases where 2.ctions
are pla.r.ned. by prlva.te applic:l.Ilt.s or
other non-Federal entities be!ore
Federal involvement so that:
< 1) Policies or designated stat! are
available to advise potent1&1 C.!=':Jli·
ca..-1ts o! studies or other i6''tfor::.1atton
foreseea.bly required !or la.ter Feder-
al a.ction.
C~!) The Federal agency consults
early with appropri:;.te State n.nd
local agencies a.nd 'Indian tribes a.,~
-;.i:.h Interested private persons z.r,d
organizs.t.ions when Its ov."Tl involve-
ment is ren.sonably foi"eseea.blc.
( 3) The Federal agency corrun.::nces
its NEPA process at the earliest pos-
sible: time
§ 1501.3 When to prepare an environ·
rnent.nl liftsesRment.
(a) Agencies shall prepare an envi-
ronmental assessment (§ 1503.9)
when necessary under the proce-
dures ado. ted b individual agencies
Lo s u o.-o~l:-:e·m~;,e.-n~,t~t';:'h~e~se~r~e;;.;::r~u~ ... ~-~~l:.:o:.;.r.s:;.::.;as
described in § 1507.3. An a.sscS5:":lent
L? not necessary ~f the a.~ency has de-
cided to prepare a.n environme:n:a.l
impact statement.
(b) Agencies may prepare an envt·
ronment.n.l assessment on any action
a.t any tlme 1n order to a.s.sist agency
pla.n.ning a.n.d declsionma.king.
§ 1501.~ Whether to prepare g.n environ·
mental impact at.ltement.
In determining_ whether to p:r~are
an -envtronmentiJ !mpi\ct sCitemegt
the Federa.J agency shall:
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<a.> D~termine Ulide:-it.s procedures
supple:nenting these regul2.ttons <de·
scribed In § 1507.3) whether the pro·
posal is one whlch:
<1> Normally reqv,tres c4'"'l t:nvi.."""n·
menta.! impact stli.teZl -~nt, or
!2>. NotTilD.ll:; does not reQuire
either an envtro~enta.l impact
statement. or an envtro~'"tlental a.s-
sessmer.t (ca.tea-o:-ical exclt:..fllonl.
(bl U the proposed action J.s not
covered l:iy paz>a,g-raph Ca.> o! this sec-
tion, prepare an en\1ron.ment.al as-
sessment.<§ 1508.9). The agency shsll
involve environmental age:1cles, a.})-
plican:.s. and the public,· to tne
extent practicable, in prepar..ni 'loS·
sessments reQuired oy § 1508.9<a>G >.
<c) Ba.sed on the environmental as-
sessment make tts determination
whether to preps.re a.n environmen-
tal impact statement.
(d) Commence the scop1n~ process
<§ 1501.7), 1! the a.gency will prepare
a.n environmental L"'lpact. sta.t~ment.
< e > Prepare a t!ndlng o! no signi!i-
ca.Y}t impact<§ 1508.13·). U the 3.iency
determines on the bss.ia ot tha envi·
ronmental assessment not to prepare
a. statement. c 1) The agency shall mn.ke the
!1ndinc o! no s1snH1cant lmpa.ct
e.va.ilz.ble to the ~!ected public e.s
specified 1n § 1508.6.
(2) In certain llmtt...o.d circum·
stances, which the ~ency may cover
1n ito procedures under § 1507.3, the
a.gency shall make the .tlnding ot no
s1gni!lcant impact available !or
public review <Lncluding State and
areawide clearinghouses) !or 30 days
before the agency m~es its final de·
termlne.tion whether to prepa.re a.n
environment&.l impact sutement and
be!ore the action ma.y begin. The cir-
cumstances a.r'!:
<D The proposed action is, or is
closely simUa.r to, one which normal·
ly requires the prepa.rntion o! a.n en-
vironmental impact statement under
the procedures adopted by the
agency pursuant to § 1507.3, or .
<tD The nature o! the proposed
a.ction is one without precedent.
§ 1501.5 Lead ngenc~I!S.
(a} A lead e.genc~ shall supervise
the preparation o! a.n environmental
impact statement 1! more than one
Federal agency either:
6
(l) Proposes or 1s ir.volved !n the
ss.:ne a.ction; or
(2) Is involved in a. group ot actions
directly related t.o each other be-
. cause o! their functional interdepen-
dence or g~ogra;>hical prcxlmlty.
(b) Federal. Sts..te-. o? bca.l ~~~n·
c1es. 1ncluding t:..t. least o:le F:d~rii.l
· agency, may act !3 joint lea-d :l;:en-
cies to prepare an envf.ronm~:1tal
impact sts.tement (§ 1506.2:•.
(c) I! an action !t.lls within the
provisions o!. paragraph Ca.> at th.ls
sec~ion th(' potential lead agencies
shall deter:nl.J.-,e by lette:-or memo-
randmr. which a.g~ncy shall be the
leaci a.;; ency and which .shall be COCP·
eratln~ aiencies. The n.s-encle:; sho.ll
resolve the lea.d agency question so
as not t6 cause delay. I! there is dLs·
agreement e..mom: the e.geocles, the
following ta.ctors (which a.re listed 1."1
or,'ier of descendL'1~ lrn;>O:tance>
shall determine lea.d agency desii":l&-
t1on:
(1) Mz.gnitude o! &a'ency's involve-
ment.
(2) Project s.pprova.l/clliapp&-ova.l
authority,
(3) Expert~e eoncerning tha toe·
tlon•s environmental e!!ec:S.
'"' Duration o! s.gency's involve-
ment.
<5> .3equence oi agency's in\'olve-
ment.
<d> /LilY Federal agenc;,-. or S-'"lY
Sta.te or local agency or prtvs.t-e
person substantia.lly a.ftected by the
absence o: lee.d agency desibnatlon,
may make a ~ntten reQuest to the
potential lead agencies that a lead
agency b:: designated. .
(e) Ii. F.ederal agencies ue uns.bla
to agree on which agency 'Will c:: the
lead agency or if the procedure de·
ticribed in pa.r&6t'e.Ph (c) at this sec-
t.ian bas not resulted within 45 days
L"l a. lead agency designation, s..ny ot
the e.gencies or persons concerned
ma.y file a request with the Council
asking it to determine which Federal
a.gency shall be the lead a.gency.
A copy o! the request shall be trans-
mitted to each potential lea.d agency.
The request shall cons13t ot.:
< l) A precise description ot the
nature a.nd extent o! .. the proposed
s.ction.
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C!D A detailed stat.t:ment oi why
e~h potential lead agency should or
should not be the le~d agency under
the criteria specified in paragraph (C)
o! th~ section.
(!)A response may be !iled by any
potential lead agency conce..~~d
witb.t.n 2.0 dars n.!ter ~-reQuest b tiled
with the Cotu&cii. The CouncU shs.JJ
determme as· soon u po!:Sible but
not later ths.n 20 days a!ter receiv-
ing the reQuest and o.ll respomes to
it v;hicn Federal ag-ency sha.ll be the
lead a.iency and which other Federal
agencies sh~ll be cooperating aa-en·
ciel.
§ 1501.6 Cooperating agtencit:a.
The purpose o! this section Js to
emphe.sl.ze agency cooperation early
in the NEPA process. Upon reQuest
of the les.d agency, ·any other Feder-
s.l agency ·~·hich has Jurisdiction by
law sha.ll be: a cooperating agency. In
addition a.ny other Federal a.gency
·\"'·•bich has special expertise v..·!th re·
spect to 2.ny envi:ronmental issue,
which should be addressed in the
st&.tement ma~· be a. COOPl'.r.ating
·agency upon request ot tne lead
agenc~'. An agency may reQuest the
lead a.genc:• to designate it a cooper-
attn; agenc}'.
(s,) The lead agency sha.ll:
(1) Request the participation of.
es.ch cooperating agency 1n the
~"EPA prc·cess at the: earliest possi·
ble time.
(2) Use the environ.."'lental ane.ly3is
and proposals o! cooperating-agen-·
c:ies with Jurisd1ct1on by law or spea
cial exper:ise. t.o the maximum
extent possible con.siscent with its
responsibl11 ty as lead agency.
(3) Meet "n1th a cooperating agency
at the latter's reQuest.
(b) Each cooperating agency shall:
Cl> Participate in the NE?A proc·
ess a.t the earliest possible time.
C 2 > Participate 1n the scopL."lg proc-
ess <described below in § 1501.7).
C3) .Assume on reQuest o! the lead
agency responsibility for developing
in!ormation and preparing environ·
mental analyses including portions
o! the environmental impact state ..
ment concerning which the cooper-
ating agency has special expertise.
(4) Make avs.ila.ble sc.a.!t support at
the lead agency's request to enhance
the la.tter's i.."'lte~d!sciplinary capabil·
1ty.
(5) Norm&.lly use 1t3 O\\.'Tl !u.:.-lc:!3.
The lead agency shs.ll. to the extent
u.va.Uable funds permit. !t!lld those
maJor a.ctiv1t1es or analyses it. rc-
Que.sts !rom coopera.tl.."lZ agen=ie:l.
Potential lead agencies shall lncluc!:
such !U!ldin~ requirements in their
budaet requests.
< c> A ccopera.ti•"'lg agency rr.a:.r !:1
respo~tsc to 2. lea.d &l'.ancy•s ret;uest
for e.ssistance in prepa.:L""lg the en;'"i-
ronmenta.l imp~t statement <de-
scribed 1n paragraph (b) (3). (4), O'!"
C5> o! thts section> reply that other
pr06.t"3Jll co:rn.mitment.s preclude my
1nvolventent qr the degree ot L""lvolve-
ment reQuested in the action that 1:~
the subject of the envirorunenr.a;
impact statement. A copy a! th~
reply shall be submitted to the
Council.
§ 1501.7 Scoping.
There shall be an er.rly 3.nd oper.
process fo:-determi>·ling the scope o:
~ue~ to be addressed and lor ic!t;~,
!J:inS' the significant issues relatea ~.o
osed action. ThiS'process shaH
~,ablg r,··~ ...................... ~~~'-""'w.w~ ....... --.
en·.irol"..mental impact st§.ten1en; a.n:-~
bejors the §~oping process the lead
azency §hall publfsh e. notice ot
intent <§ 1508.22) in the F::m::;v.~
:az:orsi;;a except as p;-oV1c!ed in
§ 1507.3(e).
<aJ As part of the .seeping proce::zs
th: lead e.:tency shall:
(1) Invite the participation ot e.I·
!ected Federal, State, o.nd locs.l agen-
cies~ any a!t~cted Iridin..., tribe, the
proponent o! the action, and o:her
interested persoos (including those
who might not be 1n accord with the
act1o:1 on environ."nent.al grounc.\3),
unless there is a limited exceptic.',:l
under § 1507.3{c) . .A."'l agency ~z.:.:
give notice in a(:corclance ~1t.h
§ 1506.6.
(2) Determine the scope <§ 1508.;..; ·'
and the si~i!icant issues to be a.nu.
Iyzed in depth 1n the environmenu_~;
impact statement.
(3) Identify and eliminate !rom de·
tailed study the issues which are not
siem1!1ca.nt or which have been cov-
ered by prior environmental re\1ew
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<§ 1506.3>. narrowins-the dlscu.s!ion
of these issues in the statement to a
brief presentation o! why they will
not have a. significant «;!feet on the
hu::oa.n en· .. tronment or providing a.
reference to their coverage elsrJ·
where ..
(.() Allocate assignments for prepa-
rat.ion of the envirunmental impact
statement among the lead and coop-
erating a.Kencies, with the lead
agency reta.L."llng responsibility !or
the statement:
(5) Indies.~ ru1y public environ-
mental a.ssessznents and other envi-
ronmental imps.ct &tatements which
a.re being or will be prepared tha.t
a.:re re!ated to but are not part o! the
scope of the impa.ct statement under
consideration.
(6) Identify other environ.'llenta.l
review and con.sultstion reQuire:.
ments so the lead a.nd cooperating
agencies ms.y prepare other required
analyses and studlea concurrently
with. s.nd inLegrated with, the envi-
ronmental impact statement as pro-
vided in § 1502.25.
<7> Indicate the relationship be·
tween the timing .o! the preparation
oi. cnvlronments.l analyses a.nd the
agency's tentative planning a.nc deci-
si on..'"na.king schedule.
(b) ll.S part of the seeping process
the lead agency may:
C 1) Set page limlts on er,wlronmcn-
tal documents C§ 1502.7>.
<2> Set time limits <§ 1501.8).
<3 > Adopt procedures under
§ 1507.3 to combL."le its environmen-
tal assessment process with its seep-
ing process. ·
(4) Hold a.n ea::-ly seeping meeting
or meetings which may be integrated
with any other early planning meet-
ing the agency has. Such a. seeping
meeting will Often be appropriate
when the impacts of a. particular
action a.re con!i."1ed to specific sites.
(C) An agency shall revise the de-
terminations made under para·
graphs <a> and (b) o! this section i!
substantial cha...'lges are made later
1n the pi."oposed action, or if nign!!i-
cant new circwn.stances or lniorma.-
tion n.rise which bear on the propos·
al or its impacts.
s
s 1501.3 Time limite.
DJthoPgh jhe Cguncil has de:cid~d
that prescri_£ed universaj_t!rne li;rjt.s
for the: entire :£1.1-zPA process ru-e too
infiex~ible. Federal a.genc1es a.re en·
COtiii.Z.'i9toset'liffie ll:mt 'i apr:-o;?rl·
ate to 1IDi1vidua1 actior:.s <conslJt.e-:.t
with the time Intervals rt:.;uirr:d by
§ 1506.10). Vlhe:n mult~ple a.g~ncics
are involved th~ reference to ~ency
below means les.d ager.1cy. .
(a) The agency shall set tl:ne limits
1! an applicant for the proposed
action requests ther:1: Prov-:.d.cd.,
Thnt the lil'n1ts c.re: coe.slsten! · ~:!u~
the purposes of NEP.A ~'1d other es·
septjal cnnsld~tions of natiacaJ
~y.
<b> The agency may:
< 1) Consider the jollowl.."li !actors
1n determininrr time lll:nits:
<i> PotentiSJ for envtron..--nent.a! ·
hs.nn.
CiD Size o! the proposed s.ctlo:1.
(iif) State ot the art o! a.na!;;r.ic
techniQues.
<lv> De~ree ot public need for ~::e
provosed action. lncludi..~6 the cor~e
Quences of delay.
(\') Nu...-nber o! pe:-s!:lr'.s s.,.-.d s.ger.-
cies affec~ed. ·
(\'i) Der.ee to v:hich r~!c!'/.!r.!. 1:.·
!orma.ti,1n is knov.-::: a..'1d i! n.:it ~~O'ftT.
~he time required for obtsinL.'l& it.
Cvii > Degree to which the action is
controversial.
CviiD Other time limits imposed r., !1
the agency by l~w, re;;.'1.llations, o:-
executive order.
(? S~t overall time limits or· Hml~
for each constuuen. pan o •·=
!1""EPA process, which may ir;clude:
<i> Decision on whether to prep~e
an environmental impact stiten::.en::.
<Ii not already decided).
Oi> Determin&tion o! :~e scope o:
the environinentc.l l.m:pact state-
ment.
<HD Preparat!on of the dra.fl. e:~".i
ronrnentG.l impact statemc:lt.
<iv> Rc:wiew o! a.'"ly co:r-rnents on
the draft environmental impact
statement from the public a.nd ar.en-
cies.
CY) Preparation oi the !lna.l en\'1·
ronmental impact statement.
(vi) Re·Jiew of any comments on
the final enviroru-nent:ll lnrpact
statement.
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\v!D Dec!slon on t!n.: :1.~\l\JI'! tr~~ct
ln ps.rt. on u-.e ~nviron,;~~n~fl.l imp;:c~
EtP.teme:'lt.
.P!"OC· e~ss~.~--~~~~~~~~~~~~
(c> State or local a.g:ncie.:; o:r mern-
::.~rs of the :public mar :equest &.
?ederal Agency to set tune limits.
PART 1502-ENYiRO~i"t1i:::.CTAL
IMPACT s·r AT:;;J1t:NT
Sec.
1502.1 Pur";)OSC.
150:!.2 Implc:m~:ltl\t.!on.
1502.3 St.a!.u:::~:-y Rcqutrcmt:-nt.s for
S~ter.1ents.
1~0~.-t ~ ... ~:.:.jo: Fe•i~!'?.l Act!..:)t'.!l R.·~m:a:!ns
t.he P:-ep:.:-;l.=.ion o! .:;twl.ro~~enta.l
!:n:;>t.ct S..t.l.~ c:no;:-n t.s.
150::.!'1 T...~1:1~.
l5G!!.6 !.nt.::rcisc!p!:.."'l.ar: · F':-e~m.rn.tio:-1.
l5C:!.7 P:l~~ 1..l.:ni!S.
l5v::.& vlr:~!r:~:.
150:!.9 Dl·~It. ~:..::.:. n.:1·... 3:JI:;;Jir.:;~1~:-lt?.l
!502.11
150~.1~
l3C:!.l:!
l~~:;;.l·i
CGve:-~:-.e~t.
S\!:.r.O~:>·.
?·. ":,0:.-\i: ;:.::ti ! ; .;: .::..~-
;.,rl~*~ .-. '·' • . ...-r ..
!~,·.~.:.5 ;~fl~ct·~:: :2;:\"::u ... ~::~...::,:_
! ~-:.· ~.16 .!.:n·-..:~:i:-4!.:.-::~: !;~.:1:t~GUE' .:w:e.s ..
150=:.1 '7 Li.:;t of P:-~pan:r~.
lSV:::.l3
lbl)::.: ~
;. r.iJ~&;G: :·;-
c~::ui,=:.t:\1;1 v~ ~!\(: F.::·,.·i;v: .;l·,t': ...
t.a! !rr,pa.ct St..?.te::1:.~~
150!:!.20 '!:lerin;.
15C•:2.2i ln~o:-;>u:-a~!v:: t.: ::~-:~erem.t~
!502.22 Inc~r:i;);el.e o: 'Jh::~va~la.bh· ln·
fon:oar.iou.
1502.2~ Co::st-Bene!l: A.nfdy~ls.
1502.:!-i ~-tet.hudo!O.b~' "-flU Scle.r.tific
A\"!CU;':!Cj'.
150~.~5 Er;'.'iro:'!.mer.tt:.! ~.;·.·i~'~ ;.nc Con·
s~l!.at!on Rc·cuirt-n,·,:::.~.
Atr::~oRrn·: NE~.,A. t:.·.: Enviro:un~nl:?..l
Qu.ilny I.'l'l!')TOVt!~1ent • .;ct Jf 19i0, as
r..::n!!nded (.;2 G.S.C • .;i':'l ct sc~.). S!!C:t..ion
309 of the Cl!!an Al:-:'.c~. ~J.S s.r;1endcd <~~
O.S.C. 78·;}~). And Exc:,;:t.:tlV~ O.rder 11514.
Prot.ectlon i4'"1d Enh;.nc:ement. a! E:lviran-
mentA,l Qua.!i:.;· \M!U'cL 5, 1970. a.o amend·
ed by Executi\'e Ord.:r !1991, M.:&l!' 24,
197?),
~ 1502.1 Purpun.
'T'·ne ':"l...;:.ma: .. •• ""~'''"'":.,s., o( o,., n\1"'1"'1· -yL •"Y ,.,.~......_ .-•'"'./ ._. • ~--1-.-.a..,\t
ron.c:::ental L"'npact !J!.aternent is to
se:-v-e as c..n ~.ct.ion-fo"cing-devic~ to
i:-&S~ l:-c ~ hs.: :.r: :4 p~~lci es c:.~o goab de·
f!~cd m ~he Aci. a!'c: ir...!us~d ln~o tht:
on~oin;; p:-o;;Ta.rr:s and ac!..ior:.s o! t..h!:
Feclera.1 Gm·err.:.I':'lent. It sha.il pro·
vide .tul! and !::.ir dtscu.co..slon o! sig·
ni!iCi.'!..~t env!rvnm£:nt~1 impacts and
sha!i 1r.!m:·~·n c!eci.sion:n::.kers ~H;l th:.:
public of the reasonc:.ble altc:nJ.r.iv~~
-;:hich wc:.tlc avoid or m!..-·'lU"\ize ad·
verse lmJJa.c~ or er.:-~3.nce the ~ut-.lity
o! the ht:=...?..:l envi:-.-ln.."nent. Agencic3
.~ "'!a.n tocns on simificr-..""lt environ·
~:-.!a.l is.s~es a.nd r~terna.th•es a.:Ad.
~ l!· reduce paperwork ~T'\C th{~ a.c·
c .:ula.tion of e:,tr.:meous b:::.ck·
ground cit:.t"-. S:n::.-:.-::-.;:n~ sh~l b..::
concise, cl,~~•. ?-'"1d 1:0 t:n~ poin::. t:....'"'ld
sha!l be sl..:pported by r:viden.:e th.!~!.
the a6ency h::.s m2.de the nccassa.ry
er:vironmenr.al analyses. An er1vi:-on·
me~:.J.1 i:r.pact stJ.ta::.ent is more
than a dis=losu:-e docu.-nent. It sh~l;
be us~:! by Feceral c!f!c!nls h: con·
junct!Ci."l -;.·i:.h or.her relev:!.Ilt. !':lateri·
a.l to pla...T~ a.c~icns and m3.kt: de.:i-
SlOi.".S.
:.:. ~ 13~:.2.:. .:.;~':i.:~t::; s::-~~t!: p:-t:~;J·::·e
(,;!:·~=--=~:::::.:.: ir.:-~.?~: st.at-c::n~e:--.~1
r.nt· :·o::uwbc; :."'i(:.J.-:..r:.e::
··~ ....
!~~·.; ;"'-·""" --.-. ···.-,.:~-· •: . ·;-.,; .. ::~ .::~ .. ~-~!:·
,.~: .... •• • -!.-.•• ·~!"\ ...... • •• r:• :t• ........ -~ .... • -'...,. ... _ ~·-.... ; .. , t,. __ , • , ·r· k+J,, ..... .
... .,., .'' ·~·;: ·; R-;;; I;~.
\ c: i I::~p: ... c~.s ~}:.::.~1 :,e disc1.~;:..5~G ;·n
--·""'-r'.,...: .. ,_ :-.. -. r~ ..... ~J·-. "'--..1···1·("'11,...,..,,.._ ~··. Vt:f~-\tl.'l.,;.i.•'! -. ._, \I ._... • • '~.:a· •• ._ ~~'••• •;;~:.
:':1c:·rc:. sr:<i.:• :..:: o.:ilY nne: di.:;cussion
o: other t.hz.:l signi!1~t issues. J-_s
!n ~ f!ndin~: of no significant impac~.
~:·~:::t shc·J.:C:. be tt1lY enough dl ... -.~t.:..:.·
s!::o~ to show why more study is n')t
warranted.
\c) E:"yi;p;;~!iinta! im~a.ct stat.;.-
rr. e~~s s~,1.~1 ~e i·:e. t ctl!"lc1.;0 ~.:1.:-i al-.:~ 11
be ~:o ion~.!::-: ~h:!::: c-.::,:i,)lut.e:!.' ne~e~
s~r\· to cc,r:-.. ::•;:; ~'lt!*J. .f~~.!...,l~ ~ .. :.~ ~/!t ... !
t!1t~se re:;ttls.r.:~i:lS. I.,..:r:.;:-:,!1 s.-.~1:~ . ..::
vs.ry !!n:: w,~r:. p.:r::e:1ti~ env!:-Cir:.·
me:n:r-1 prc~iim~ r.41.C:: :he!'l ~/ltt: ;.rc:j-
ec: size.
(ci)
10:2( l) o! th.~ Ac~ ~'1ci ott,e!' er.";fl·(m·
tu.ent~ la\~·s :::..nd policies.
(.;:} The rmr.;\: of alternr.tiw:3 dL:;·
c'..!..5.5ed L.~ environrnerr:.:..:
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st.s.temc:nt..S shtt.E ~nco.:)~?a.ss r.hose to
be cnn.~j,r:-~;-,_..-l p·. :.he u!ti=.G:e
agency C.t:cisicn!!l:.ll~c:-.
H> A"enc!g;s ';!lf_;l ngt comr-it re-
sou ... ce .. n-n;•!.-lt .. ;~, S2~<:>. .. J:iA..-. oi ~1-.. :> '-• -~1..;.-J:LH·n -~·-'OJ .......
c1;;ini' {~ 1 ~Qd,l}. , ===-
(g) E.£,v=l!'or-... "":1:!)t.al impa.ct stat.e-
me:lts shall ser_,e P..s the r;1ea.!'L., o! a;s.
ses.:iln'' th: epyt!"or:p.spt.aJ imo::tc~ 5.!
proppsed ~gep;-:y sc~i,()'il;,~. ratner
th3.n ju,s~.ifviph" de;fc:igns ali~c:!Y
az.aQa
§ 1502.3 St.·uuto:-y re~uirtmcnts fo-::
st:lLement~.
As re.~uired by sec. 102(2)(C) o!
NE?A en·.riro:lrn::mtal L."l'l~~ct stat-e-
ments (§ l50o.llJ are to be includ~d
In every r~commcndar.!on or report
On pro;:>osa:..S < ~ 1508.23)
For lC6i;;l~tion and ( § 1508.17)
Other n-:.ajor ?ederal actions
( § 1508.18i
Slgnifkan! l ~· c ~ 150&.27 >
ldfE-CLing ( S i ~503.3, 1508.8)
The Ql.Ht!l~!t· of t.n-e hurr.:..n en\'ir~=-~·
ment c~ ~5n£;.l4)~
§ 1£02.·• ~~t~jur F ~:t!~ra.l actjnns rt:(iuiri:-1~
the prei)arE.:h;n of ~m·:iro:m·.~n~i
lmpa~L 1\~~·!m..:ntJ.
(s,J .l'~benc:d s.:-a.al.i rn.c.l::~: r.~!:r~ tr.1c
~:-Op'Js:tl -;.l!hic!"l ts t::.e subJect. .;;~ 3.:-'1
envircn.:.Jl.enc.~1 L~::c..c-;: s!a.L~:: . .=!1' ts
Pro "' ... "".l'' ,: ... ~·,,.... ... ._...; A:r.::.-.,-.los ~-...u,n U.Se Y"-• J ._..'-•-•'-• ..,....,.!J"""•--...•""" .., ......
r.he criteria for scop-e (§ 1508.25) to
detenn.ine which ;>ro~vQ~J(s) s.h~l ta
th~ subje-.:t at a ~~icuiar .lLat-:-
ment. Propos;;.l.:i or p~LS o! propcs-
a.i.s wh1ch ~re related to e:!ch oth~r
closely enou~h to be, in e!iect, a
sb:sle course of E.ction shall be ev~
U£ted 1n s. sh"1.gle impact statement.
(b) E:lvirorunent.a.l impact state·
n1ent.s may b: pre.Part!d, e .... "'ld are
soecti.me.:; reQ~ired, tor broa:1 .F'cder-
a.l a.ction.s st:.ch B--i che adoption o!
new agency progrc.::-..s or regul:.i.tions
(§ 1503.18>. Agencies shall prepare
statements on broad n.ctio;u; so that
they a:e reir:Yant to policy E.!.1d are
timed to coincide with meanir.atiul
points in agency planning and deci·
sJonmakin~.
(c) \Vhen prcps.l·inrr s\aterr..~~nts on
broad actions <includin; propc.sals
bv more th3.!1 one agency}, agencies ~a.y !lnd it usefu·l to evaluate the
10
;irJ;>osa:c~> !..:. cne of the !olio7r"ir.c
·wars:
ClJ GeobTa='hical!y, includi."'l~ ac-
tions occ~-ring ll'1. the Sa.Ir.(; &c:'ler:J.l
klCl:.tlo!'l, =uch :;.s body oi "r:r.ter,
region, o:· metropol!ta.""l area..
<2> Ge:le!ically, inchtdi!'l~ !!.Ceior_c;
~:h:ch hn.ve relevc.r!~ ~..:.c.H~i:ies,
such ~ corr...mon tin1i:r:.~. inlP~~ .... aJ.
tcrn.n.tives, methods of il:tpl~:nc-:1w.~
t1on, med!2., or subject zr:...e.~ter.
(3) By sta.gt! c! tc-cr..!lolo:;ical ot:Yel-
oproent L."'lcludi..i.J iede!"s.l or ied~:ra.l
ly tSSist.ed rese~ch, d~velo~w·::::r. or
demo:A.Strs.tion PT:J31"'~ for :l::!W
tcchno~o~ctes which, ii appli~d. C)t:.ld
-l·D":":~: ... , ... t" lv "!>.~,"r·~ct tr-e a,q~'~+:•: of ~ 1:>~·-J. •\,-::.... J ... •'-' •• .._ ._.. • ...,_ -
the huma.l enViZ"Ol'?.,\:lent. S~~i:e~·..::1t.s
sha.il be prepare~! ;:;:. s:.:=h p::-o~rc::..-:-_s
and sh~ll be ~.\'u.r . .:.:,L~ before the
- -..... ,. .._,..oa...._.~ -;..a.(: .•. r" .. :l ... •::t 0 r ; ;}• pro . .,r~~ n.::.u 4 .............. -.. • -w ... -z, .... ~ ~
'..tes;,r."lt!nt or cc!I"""--n!tl-:lent to ~.;,ie· ~
::::~t.71t:o:: l!~~ly to dete:mi.-.-e st~,·:..s:·
QU:::!"lt C.e\·elopmenc o:-rest:-ict 1~.:er
al {,·~r::."-L.i ~: ~~-
,~ d i ;.-~~I1Cies shall ;~ (:_:J;.-:-:r;J~~.4~e
.:·~~>i!.:·~· ~~oping <§ 15\ll.'":). ~1::::-_:itz
, ... , ...... ,....,,) ,.._..,l -.... .:l_ ...... o_.. ....... !j,., .S •. :Hi.:. ... i) , r....~.oo O-.ne. ;:n_t.;.L ~~ l .... ~-u
. .. ~ 1 -1'\ ,, .. ~ d 1-.... ~ 5 r c r "~ " ... t:. t!l ~~ ~'jtJ.~ ca.;., Du''· -. ' .. t: .. _ .. .,._
o..-o~C a.."'ld n~-ro~l ae~!ott..s E.rlC ~o
a.~:old d'.!~li::r.::or. ar~d a~~~::·.
...... ~ . --,,-·A.~ ,.-.--..~ .... c!"'r"'\-.;._" .. 5L• ;,Qg.u Qa. ep2.!"ut•;.'-".L• ---.... '-'"" \.,. L••;_,,._~\,11·
ad in ti:ne lor tha final 3taterne::l:. ro
• I 1 • • i "" ...; A ~ •• , oe ,nc.y;;r;q ,n gr;!·t ___ rc;<o~: .. n_n".u; ........ vn . .. ~.. . o; 1·epcn on tne nrooos~. 1 ne s.:,:.t:e:-
~ ... .,,... ... ~· ..... ,.L • ... .:. ............. ., ..... "",:. ,....,_,v eno····.., .....:..-. •• .., .:a.1lc.J. Uy k'.A'r'zi"""~l;;O~ ·--•. ... . ., • .-
C'Q -n· a• It. C"~ go.-r•n _,_,,. .• ,,....,,1 .. ~:~.:: .. -. .. L. ., • ..,..;,i .... ~ ...... J .......... _.._.l _, ;:.~.
U:nport.?-'1t cor.t:-1bu;<1on. to -~.t)..: \1~~
s;oruna..~!:;:'l;: ~:·ocr;:_~ :.:'.nc ~:n! n0t oa
-. ~. . . . -----~ u:::eu to :::..t.!CnC:....t:!:e o: Jt!.: .. ;.? {;t:Cl·
sions ~e::.C.); !:lade (~~ l.5U~.::~c).
, ::.r., 2 ~"'c.-1:-o-:. t,J. ;..'"'o·· h· o:-"~"·!·rt .... ~· _...,u-. , c.;.... .., ....... • -• --~·"-\;.•
'~ J' ";:;~-. •• -·r"'' ... c;~ ..... :h·.: .... ~l,. u~--4,-.:·-:-.I..·. \.-... .._ V. I" tJ_; ..... .,-..11 \oJ.M -'""'"'•;} ••"A .... _........,
er~ b~· Peoeral r-~e:~ctes t.he en··:t:.-cn-
me:rc.~l iw~a.c~ stc..tc::::.ent shall be
pre;i!lrec. e:c the fee.sib!Hr.:r· &..nalysis
\;so-no ~o) stage: and may be: supple-
I:le:1ted at a later sta:;e tr• necess~ry.
\b) Fo:-a.pplicatiom; to ~ne a,re~cy
app·:-opriate en\·i:-cn~-n:::ntr~i C ,..,){!SS·
:nent.s or sr.~r.e.ments sha.!.i be com·
menced no ls.r.er th8..!."-). irn.:ncdi:...tely
. -
-
•
.·~ ., ~
\ ~"
a!ter the ~p;:•Hc..lUon i~ receivc:-d .
Federal a.gencies arr.:" e:1couraged to
basrtr1 p:-ep~a.tion o! such assess-
ments or st&.te=,·:mt..::i {:;-:-Her. ;r:eter-
e.bly Joir..t.ly v.rtt.h appU::a.olt.: .:;;.~~::: o:
local agencies.
(C) For adjudication, the !i!1al e;l~:J
ron:n~ntal 1mpa.ct statement shall
normally precede the !Jnll. sta.!! rec-
ommendation and that portion ot
th~ public hearL."lg ri!la.t.ed t.o the
impact~ study. In n;>prop:'iate clrcum-
st.ance.s t..~e s:..:.tement Olij,Y follow
prel!Jn.lna.r~: hearings desisnC!d to
gather tnfonna.tion !or use in the
statements.
<d> For in!onna.l rulez:1s.!d.ng the
d:a.!t environmental impact state-
ment sh.:.U normally accompany the
pro;>osed role.
ciplf.I:.~· a.;;m;-oaca whicn ~· 1.nsu1 e
tb.c L"'ltebl'a.te¢ u.se Qf-~he ns.t.ul"s.l
a..l"ld soclc.J sciences and the environ-
menl=U di~7-2-rt.s <section l02<2XA)
o! the .i~.cti. The c:tis~ipllr.es o! the
prepa.rers sh!lll be a:ppro:;Jria.te to the
scope r.ncl ~ues identified L'"'l the
scopL.i.ii: process C§ 1501 .. 7).
1':. '50'' "': n .• ''" 'I mt' • ¥ • •ttl • .a...,,.._ I •• ;.;a.
':I'lle · te:~t of !in:.d e:wi;~onr."l~~~:.F.!
L-;npr..ct 'stn.tements (e.g., p~u·n.cii"a:Jhs
\d) through (g) of ~ 1502.10) shci!
non:nally be less th!:l.t~. 15~ pr,~.ges cr:d
tor proposa.l!! o! u.n~suEJ scope or
cocple>=ity shall normally be le~
tha.n 300 pages.
§ 1502.8 Writi.;1g.
E:wiron.menta.l impact statements
sha.l! be 'l:lri:"itten tn plni..'1 b ... "'lgua.ge
and l'l:lil:i use ap~ropriate grsphi~ so
that. deds\or.rr.akers a.nd the public;
c:s.n re;-a.cilly uncersta."'ld then:. Agen-
c1e3 shoulcl ei:J:ploy \"..7itern o1 c!eat
~;..rose or editors to vrrite, review. ur
edlt stste:nents, whi:h will ba bc.sed
uyon th!! e.na.lysl3 a.nd suppo;ti:lg
da.ta !rom the r.atu...-a.l s..YJd social sci-
ences a .. t'ld the environmental design
s.zi:s.
§ 1502.~ Dr:stt.. nnn!. U'lU IUp;>lem~nt.:li
st.:1ternenta.
Except !or propos8..ts tor le~~l:~.tion
a.s provided in § 1508,8 en1,"irorunen-
tal i.rn;;,?.ct. st.~::e:-:1 ents !'!:~U c~ p:~::
;>::.reci i:l t"W.·o sts.~Ds ar:ci mc:..y be su))-
:,Jlt:mented.
<s.> D:~.ft e~vironr:1enta.l 1:.::pa.ct
st.r .. te::::wnt.s sh~l be pre;u=.red in a.r:-
C:lrda.:.'1ce wl:.h the s~ope decid::d
t:PO::l i.'"l the sco;Ji:1!1.' pro::e.::~. T!'le
lead •gene;; sha.ll wor!: wi~h c.nt: C•:i·
ope:-a.tins a.~encies a.nc shall obt:.:.la
co:r~ent.s as :-equlred L'1. Pa.-; 1503
ot th.is chs.pter. The d.ra.!t stat.e:ne:lt
must fulfill and sa.t!sfy to the !ull~.st
e:<t.-?:'lt possible the ·re\;ulrements es-
tablished io: fi:lal statements 1n sec-
tion l02GD<Cl o! the Act. !! a draft
.sune:ne:at is so lna.decn.:a.te r:.s to p:-e:-
cl~c~ meaningful a.."12J.YsUi, the
agency sh~U prepare-a:1d ci:-cu!a.ta a
revised d!'a.!t o! the O.P?ro-pri::..tc por-·
tion. The sgency shall make every
e!1'or.. to di.s:lose and Cisctl.S5 at n.~
pro;n1a.te poL.'1ts in the d:-.:.!t st:.t~
ment all mCJ.jor p:)ints of viev.-on :ht
en'."i:on.mental impa.cts of tn e s:.lte.r-
na.ti·,.es including the p:opcsed
a.ction.
Cbi Fin~.l e:tvirorunenta.l 1rn.-,ac:
stz.tementn shc.!l re.::;>ond to co:::-
m;-nts t<.r; reQuired 1~ ?art lf.O~ ot
tbis cha.r/C.!!". The agency sh.s.ll ci!s-
cu..s.:z at a.p;>ropriate poin:s in the
!lnr.i. statement 2-"lY respor-~tble O"!'-
posing-\'iew which was not adcc:u~,tn•
!:: dir.ct:.s.sr.C.: i:! ti·· e d:-~~ st .. 1.t~rn(.!~t
; ... :~c sha:~ ii.":::i::-J.~e-the D.iel!cy's r~
s~o!'_o;e ~~ th~ t.ssues raised.
<c) A~~mci~.:;:
< 1! Shall ;J~e):)arc:· Si.!;:'pi.c:men~ to
either d!o.ft o: r'i.nai e:nviroru··nent.a.!
L."npsct state:nt::r.l'.s :.::
(!) T~e E.g"enc~~ ::::la.l-:.es substantlnl
c~s.nge.s 1r:: r.he pro,o.;ed ~>.ct !on thst -
are relevant. to er.vlron.I'!!enr.s.l con-
cerns: or
(!ii There ar, significant new cir-
Ci.!..""::.St!l.nces or· l.i"li1:>rrn.aticn relcva:1~
tv emrironmen~ cor.cet-:u az:C. be:ar-
~"1S on the pro~o.sad &.c~ion o: !~ !::n-
ps.ct-3.
(2) t~ay ~o p;repz.:-e su;~~le:nents
when the agency det.errr.J..~ie.a t~at
the purposes of the Ac: ~:ill be
itl.!"thered b:: dolns so.
(3) Sh2.ll adopt proc.;dure.3 for in-
troducinb' a. s'J.pple::nent in~o its
!ormsJ a.dm!r-.ist'Lative record, 1t s!lCh
s. record e):ist.s.
(4) Shall prepare, ci.rculs.te. and
tile a supplement to a. sts.tcment in
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the sa.n1e. !ca..sh.!cn < e:-:clusive of seep-
ing/ c.s a c!ra.tt :l."'ld final statement.
unh~ss a..!te:-native p:-ocedures are ap-
p:-oved by the Co~'cil.
§ ,W!:.!.! 0 R&-com:n~ndf:d fuli'i'"a&t.
Agencies shall use '3. !urma.t for en-
vironmental impact sta.t.ements
whJch will encoura.g~: good analysis
and cicar present2.tion of the ~lter
nn.tives including the proposed
a.etiou. Th~ fgHgj.\!ing standard
!Q.CDll.t [or en~·tronmental tm;:mct
s~ai,ement.~ shop1d he followed u;liess
the ar;epcv det~m1ines that there 1s
a compelling ,.e::-son to do otherwise:
. ··(a) Cover sheet. -
(b) Summary.
<c> Tabie of Contc:mts.
<d> Purpose o! and Need !or
Action.
(e) Allemat.lves Including Pro-
posed Action <sees. 102C2><C)<iil> and
102C'2HE> o! the Act).
(!)Affected En\'i::-onment.
(g) Env!roi'l£~em.al Consequences
< especia.lly sections l 02<:2 )( C i 0 >, < !D,
<h•>. and (V> of t.he Act.).
(h) List of Prep:l.!'ers.
(1) List. o! A2e~cies, 0:.-ga.ni.za:cicn.s,
a.nd Persor~ to \Vho:n Copies of the
Statement. />..reSent.
<J> Inde:(.
<k> A-,pendlc!:s Oi a.n~n.
I! a. ai!!erent format is used. it shill
i.~cludt! parag-n.phs \a). '(b). (C), (h),
<1>. a.nd (j), oi th!s section a.nd ~hall
LY'lclude the subst3.!1Ce of pa.rs.~aph.s
<d>. <e). (f). (b>. and (~;) of this sec-
tion, as further described in ss 1502.ll-lz·02.lB. in a.."'lY a.p:propn.
s.te !orrnn.t.
§ 1502.11 Cover 1heet.
The cover shec:t shall not c~~ceed
one page. It shall include:
(a) A list of th~ responsible agen-
cies .includint; the lead agency and
any coo?erating agencies.
(b) The tltle of ~he proposed
action that is the subject oC the
sta.temeht <and if appropriate the
titles of reln.ted coopr.rating ngency
actions), together with the St&te<s>
and eounty<ies) <or other jurisdic-
tion i! applicablt:d where the action
is located.
<c> The name, liddress. R.nd tele-
phone number o! the person n.t the
12
~.gc:.--~c:; -w·no can suppiy !urth~r L"'l·
iorn~ation.
<di A desie;n~tion o~ the sta.ternent
as a draft, final, or dro.!t o:::-!i:lcl sup-
plement.
<e) A o:.-1e pa:a.~aph e.b.;tract ot
the sta.tcmen t.
<!> 7he date by wh •. ::h co:r ... ~ents
must be recei7ed (compuc.e.:: in ceo;)·
era.t1on with EPA under§ 1505.!.0).
The inforrns.tion r~Q\li:'•ld 0).• t.his
section may be entered on Sta.r.da:-d
Form. 424 (in items 4. 6,. 7. 10. a:1d
18).
§ 15G2.l:Z Summnry.
Ea.c.;h enyironrr..enW im;Jact st.nte·
rnent sha.ll contain a s:uzr .. ""na:Y which
a.dequate!y and S.CCU!'ately surnrna·
rizes t.he staterner.t.. The slllt".m5.::-y
shall stres.s the ma.jr.:: concl usicns,
areas oi controversy Cinclud!:1g
issues rr.iscd by a.rsencies e.nd the
;iUblic), c:.nd the issues to be res:,!ved
(includin6 the cnoic~ a.monz .:.ite!"r:3.·
ti•;es). The sur:una:y '.:.•il! no:rr.u•.:1y
not e;.:ceed 15 pa~es.
§ 150~,.}3 ?ur?{l.ili: :snd need.
The st~tcm.eni.. s."lall br!efly spec:.:y
~he U.'l'lderlyin.g ;ju.?ose and ne-ed ~o
-;.·hich r.i:.e ~£'cmcy is r~!-)!mding i:l
pro~osir;~ ~be a!~ema.th:es inciudir .. g
t~e prc.posed P.c~:o:1.
~ 1502.1~ hlt::rn;;tivP; tr;s;iyd!n-; th~_Qro--
-· poaeJ action. · -
This section 1s the heci of t~t e:l·
\ironmental i:rr.. act. sta.teme~t.
Based on the ir,Jc~a.tlOn s... ..,;.. ·-
sis presen~ea 1:-::.:1e secc.;ons 0:.-1 the
• f,. c.c• , .. 1 ::;;rt.,... "lro_,..,., ~"= ( < .L-,.,. .... ~) n.,.y wr.v ._. ... ylicody••y s t.Jv4..J.\.<
a~~ • b ,~ t:;pY1rorruen !ci Co!".!le·
Ql.lences <§ 1502.15), it shou!c pra>e:tt
the enYirol1l":lentai imP.:l.Cts of the
Pro 0 ··~ · !1 ... a· ·ne ... ;r.· e-. .. .--.-·:.· ·r:--, -.c · c.:41 \••• ~. .. ..... ;.. i ..,.;:, .;..
.•• 1 a:ar.ive fo .1. t~1.us sh~.rPlY ae.
~--J.Z..c;u~s :'.l-:d pr~vti::.a.n; a
clear b:.:;is .or c .oxce am~ng op~;~.,J.
bY tht: c1eclS10nmal·:er and tr:e pu~::arc.
In ~nis section s.gencics ~hall:
<e.) r!.1~orous!Y t:,.:plore sr.~ objc:c·
ti"Jely evaluate o.ll rea.son"-ble s.lter·
natives. and for a.lt.ernat.ives which
w~re dlm!nated !rom de~i!ed st"..ldY,
briefly discus.:; the reasons for their
hating been ellm.L11ated.
(b) Devote substantial trea.toent
to each alternative considered in
detail including the proposed n.ct.ion
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so that. re\•iewers J~L.:.y ~:va.lue.Le their
comparative meriu. .
(c) Include rea.son:1bie alt~rm~tives
not within the Jurisdiction cf the
lend agency.
<d> Include the alternative ot no
action.
<e> Identity the a.gency's preferr•!d
alternative .or alterna.,!ves, 1t one or
core exists. in the drs.!t. statement
n.nd 1denti!y such a.!tema.t!ve in the
final statement. unless a.nother l9.w
prohibits the exp!'ession of such a.
pre!e!'ence.
<!> Include a.ppropris.te mitigation
measures not already included in the
prcposed s.ction or a.ltema..tives.
§ 1502.15 AJT~cted environment.
'the en·rironroental l!r.ifact state-
ment sha,jl succ~~lv descri:)e the
e:oytronmept of the a.rea(s) to be s.i·
!eet&d or cre'=~,ted bv the alterna!.ives
under co~.sjgera.tion. The descr1p-
t1ons shall be no longer than lS nec-
essa.r:: to u.nderst.arl.Ci the effects of
the itternat1 ve:s. .u~ta a.na 3.£"1hlyses
in a stn.t.cment shall be comoensu-
rate with the irnpo::ta:nc: oi the
i.rnpP..ct, with less impor;s.nt mat.cria.l
sum.."'larized. consoliti~tcd, or simply
refe:-enced. Age:-1:ies shal~ avoid use-
less bull: tn stat~ment.s a..'"ld shrul
concent:r.tc effort ~.nd f1.t.te:1~~on on
LT"C,Ports.r.t ~·ues. Verbose de!-ic:!p-
tions o! the ai!ected en-..·iron . .''rwnt:
a.re themselves r.o me::.sure of !.he
a.dequa.cy of an environmcnt.al
im;la.ct statement.
§ 1502.16 Environm~n~i corusequences.
This section fu~rr.:; the scientific
n.nd a;: +lytie b?.sis tm· ~!'le compari-
sons under ~l;~~J-.14. IL ;;hall consgliu
dn.te t d's ___ ~ ns o! those ele-
ments required by se\:.:i. O~i.-\ \ >.
Cii), 0".'), a..."1d <v> or N.fill.-A wh1cn ere
witfiL."l the scope oi the statement
a.na a.s mucn oi ,s.::c. i6~(25(CJ\hi) n.s
1s nec~ary t.o SUD~Of the CO!n!Jn.rt• ~ons. The dLc;cU..'liP';p 1n"1 11 de fJie
e~,Yironmental impncts of the n.lt.er-
n!lttv~ incl~~;~~ t~e proposed actJOn: aJiv adverse kwtrQmn_~ta.l
eft,..ct.s .. , Which ce.n...ryot be, a.vo!ded
s ould the · roposal be implemented.
the relations tp etwcen ~' o -, 1
us'*s of man's en\'irgnme £ and the
mafntcne.nce and enhancement o1
long-term productivity, and a..ny trre-
-.·-···-· --. ..._ ..... ,_,. __ "~---·-.... ·-···,--~--· ........... .
versiol~ or jrretr!,..vahl e commit·
me~ts of resom·ces wc!cp would be
in~·ol·:ed !n the ;nqposa.l should it be
im;>lemented. This section shoufc
not duplicate discussions in
§ 1502.1-i. lt shall iriclude aisct!SSibtts
o: -rCa) Direct eife~t.t:; and their si~ifi-
/ can;::e C§ 1508.lD. l Cb) Indirect effects s.nd their slg-
t ni!ictw""lce (§ l50o.8).
\ (c) Posslbl~ con..+"licts between the
~· proposed a.cti.')n a..""'ld the objectives
: of Pedera.l, regional. State, a.nd loca.l
<and ln the case of a resen·at1on.
· Indian tribe> la.."'ld use pla.-,s, policies
: and co~trols for the area. concerned.
<See § l506.2(d).)
<d> The environmental e!fects of
a.lterns.tives including the proposed
action. The ~ comparisons under
§ 1502.14 will be based on this discus-
sion.
(e) Energy rectuirements a."ld con-
servation potcnt.i~J o! various alter·
natives and mitigation measures. <n Nat~1rs.l or depictg,bic resourc~
requireme11ts and conserv.l.tion po-
tentia! oi various alternatives and
mitigation me:-.sures.
(~) Urb:1.n qua.Uty. historic sntl cul-
tural resources, c..'"ld the cosign of
the built environ."'lent. includi:'lg the
reuse and conservation -potentir .. l cf
vc..riou.s alterr:.:J.tiYes and mitigat1on
measur¢z.
C!1) 1-.fe~ to mitigate adverse en vi-
\ ronrnent.al impacts <if not fully cov-
L. ered u.11der § 1502.14<!)). -
§ 1502.17 Liat of prepare~A.
The environme::1ts.l impa.ct state·
men t shall list the names, to~athe:
with their qua.litics.tions (e:>:';)erc.is~.
experience, proiessiona.l dlsc1pH .. "la.sl,
ot the persons who were pri:ns...··ily
respon5ible for preps:in~ the envi-
ronmental impa.ot sts.tement o:-s!z-
nifica.nt ba.cks;rround papen:. 1ncluc-
1ng bs..sic components o! th~ s!..!?.te-
ment (§~ 1502.6 e.nd 1502.8). '-ilb.e:e
possible the persons who are respon-
sible tor a. particular a.'"la.lysis. includ-
inG' analyses in. backg:-ound papers,
shall be identified. Normally the list
will not exceed two pages.
§ 1502.18 Appcndi:(.
If a.."l agency prepares an appendix
to an environmental L."'!\pact state-
ment the appendix shall:
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(n) ConsiSt of m~tedal prepa.rt:d !n
connection \\lith an environmental
lmpa.ct statement <as dist!nct from
material which 1s not so ;Jrepe.red
a.nd whtch t.s lncorpors.ted by refer·
ence <§ 1502.21)).
(b) NormallY consist o! materia.~
which substantiates L."1Y analysis
!Wld&menta.l to the Impact state-
ment.
(c) Nonn~lly be a.ns.lytic and rele-
va.nt.. to the decision to be ma.de.
(dl·Be circulated v1ith the environ-
mental impact statement or be readi-
ly available on request.
§ 1502.19 Circulation of the environ-
mental impact it.alemenL
Agencies shall circulate the entire
dra.!t and !ina.l enviro~'Tleht.'\1
impact statements except for c~rtai.n
appendices a.s provided· in
§ 1502.18<d> a.nd unchanged stP.te-
ment.s e.s provided 1n § l503.4(c).
Howe\'er, 1! the statement. is unu.su-
s..lly lon~. the agency. may circul!l.t.e
the stll':"..mg,ry i:l.Stead. except tha.t
the enUre statement shall be fur·
nished to:
<n.> Any Federal agency which ha.s
jurisdiction by la'W' or special exper·
. tlse With respect t.o a.ny environ..'"Ilen-
tal 1mps.ct involved a.nd any appro·
p~:;.te I-"'ederel~ Sts.te or local agency
2.-ut!":.orized to develop e.nd en!orc~
envi:onmental st:mda.rds.
Cb > The applicant, i! any.
(ci Any person, organization, or
agency requesting the entire envi-
ronmental impact statement.
(d) In the ca.se of a. final envi:"on-
menta.l impact statement any
person, organ.izz.tion, or agency
which submltted substantive com·
ments on the dr&.!t..
It the agency circulates the sum·
muy and thereafter receives a.
timely request !or the entire state·
ment s.nd for additions.! time to com··
ment, the time !or that requester.
only shall be extend~d by at least 15
days beyond the m1nimwn period.
§ 150:!.20 Tiering.
Agencies are encouraged to tier
their environmental impact state-
ments to eliml.ru.te tepetitive discu.::;-
sioh.s o! the same issues and to !ocus
on the actual issue! ripe !or decision
14
at c~ch level o! environrnentnJ
review <§ 1508.28). Whene·1er ~ bro~d
environmental impact sta:.emen~ !:as
been prepared (such as a pro~a..>n or
policy statement) B:.'¥l.d e sub.seque.~t
ste.teme:1t or em.-iron.-nental e..:;s~s.s
ment Is . then prepared on C:...""l a.:tion
included -;.·ithln the entire pro~am.
or polic:y <such ~ a. site spe-.:!!lc
action~ the subsequent sts.teme:-:t. oz-
envircru:nent.a.l a.ssessrr.ent need oni:l'
summarize the is:iues discil.ssed in
the broade:-stat·ement. &..l'ld 1ncorpo·
rate discl.lSSions from the broader
statement . by reference a.nd shall
concentrate on the issues specific to
the subseQuent action. 'the subsa·
quent document shall sta.te where
the earlier document is available.
Tiering may aJ ;o be appropriate !or
differer.t. sr.a,;,;es o! n.ctior.s. CScc.
1508.28).
§ 1502.21 Incorpo~tion by re!ert-n~;:.
Ai:encles shall tncor?onte I':l.?..teri·
al into an environmentW. icpact.
statement by reference whe~ the
e!iect will be to cut. do-.;rn on b:lllt -
without impedL"lg agency s.nd pt:.blic
review of the action. T'ne incc;·po:~t~
ed trJ.Gter!EJ shall be cited L.~ the
statement r..nd 1ts content b:i::~~Y =~·
sc.oibed. No material mr.j' be ~co:-?O·
rs.teci by reference ur~esz-!i1S' rea.-
sonabiy -a.va.Ua.ble fo·r-inspeccion b;; po ten tiilh'-ii) terest.nd:i:l-e:-sor.s within
-the .tiine.auO.wed.foz:..comment. M:~te·
rial based on proprietary ds.ta. which
is ltsel! not s.valls.ble fo:-revieo;.· and
com..-rnent s!1al1 not be i:lcorpo•a.r..,"cJ
by reference.
§ 1502.22 Incomplete or unavailable in-
formation.
When an a.gency is C\'e.lua.tins sig-
nificant a.dvetse effects on the
human envirorunc'!lt in an env1:or:-
ment.r.l imps.ct sta.temen: and the.oe
2.re ga.ps in relc\'a...'¥lt information cr
scientific uncert~L'¥1ty, the a~en::y
shall always make clear tha.t such in·
!ormation ls lacking or that l.L-.cer-
tain t~· exists.
(a) If the infonnation relevant to
adverse impacts is essentta.l to a. ri!:-.·
soned choice Cllnong alter.n::..tives ~1d
is not knov.-n and the overall costs o!
obtaining it are not e:r.:orb1tant. the
agency sha.ll include the intonnztion
..
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1n the environmental L-npact state·
ment.
Cb> I! (J,) the t.ntcrmation relevant
to adverse impa.c;s is esse:ltial to s,
reasoned choice among alternatives
&nd is not known and the overall
co.st.s of obtainL.,g It e.re exorbit3..'Plt
or C2> the irJorn:a.Uon relevant to
adverse lm~~ts is i.."ntJOrtant to the
det:t.slon a.nd the means to obtain it
are not kr.ovn:1 <e.g., the means 1o:-
obta.ining it are beyond the ~tate o!
the art) the agency shall wei•h the
need for the action agra.ir..st the risk
and se·verity of possible adverse im·
·pacts were the action to proeP.ed in
the face o! uncertalnty. I! the
a~enc:v proceeds, it shall include a
worst case analys~ a.nd an indlca.tion
o! the probabillty or 1mprobabU1tY
o! lts occurrence. ·
§ 1502.23 CosL-bteneflt analy1ia.
U a cost-beneilt a..Tu!.lyais rele·.rant ~
to the choice a.mong env11:onmental-
ly di!ierent alternatives i.s being con-
sidered !or the p.roposed e.ction, !t
shall be 1ncorpor2.ted by re~erence or
appended to the s·t:;.tcment a.s ~ aid
in evaluating the environmenW con-
-sequences. To assess the adequacy o!
compliance with sec. l02(2)(B) o! the
Act the st.a.tement shall, when s. cost~
benr-!1t a.na.lysis Ls p:epa.red. discuss
the relationship between that a.ns.ly-
sls and any analyses of unquantf!ied
environmental L."'npacts, values. and
amenities. For purposes o'! comply-
ing with the Act, the weighing of the
merits and drawbac!--.s o! the various
alternatives need not be displayed 1n
a. ·monetary cost-benefit analysis and
should not be \'.'hen there are lmpoz:-
ta.nt QUalitatlYC cor.siderntions. In
any event, a.n en\·irorunental impact
. statement should at least indicate
those considerations, lncludtng !ac·
tors not related to environmental
quality, which are likely to be rele·
vant and important to a. decision.
§ 1502.2-S Melhodolo;n· nnd r~cientinc nc-
curocy,
Agencies shall insure the profes-
sional integritY, including scienti!lc
integritY. o! the discussions and
e..."la.;yses in cnviron.'ncntal !:::::,>act
sta.r.e:nents. The.y shS:.ll identity any
methodologies used e.nd sh~l ma.l:e
explicit re!erence by footnote to the·
scie:ltlfic and other sources relied
upon !or conclusions ln the stat·"'·
ment. An agency may ?la.ce dis~usw
sion o! methodology in a.."l r.ppendi:t.
§ 1502.25 En·1ironm.rntal t"evl~w ancl
consultati~n requirements. ·
(a.) To the !ullest e:,:tent possible,
a.gencles shall prepare dra.!t e::lviron-
mental impact statements co:lcur-
rently \\'lth and lntegr:ited with env1-
ror-.:nent.e.l impact analyses s.nd re-:
1s.ted surveys and studies reQui:-ed by
the lf't..sh and Wilcilife Cco:-dint.tio:l.
Act Cl6 U.S.C. Sec. 661 et seQ.), the
Natio:ta.l Historic Preservr..tion Act.
o! 1988 (16 U.S.C. Sec. 470 e~ seq.),
the Enda."'lgered Species Act o: 1973
(16 U.S.C. Sec. 1531 et s~qJ~ a..-,ci
other en,tiroiU"Tlental review b~·s ~~d
executive orders.
<b> ,The clra!t envtro~.r.1entai
impact statement. shall list a..U ?e-der·
al permits, 1iccnses, and other enti-
tlements which must be obts.ined ln
!.mpler::enting the proposal. r! it ~
u..'1ce:-r.:x.1n whether a. Pedert!.l permit,
Ucer~e. or other entitleme:n. is :lec-
es.sary, the drait environm.e:1t2.l
Impact statement shall so lLdtca.ce. ,.
PART 1503-COMMENTING
Sec.
150:3.1 lnvitlng Comments.
1503.2 Duty to Comment.
1503.3 Speci!lcity o! Cornment3.
. 1503.4 ~esponse to Comments.
ACTHOR.tn--: h'"E? A. the Env.{ror.rnenu=.t
Qua.ltty Improvement Act ot 1970, a.:;
emended c.;2 U.S.C.·4S7l ~t se~.). SecUon
309 of the Clean Air Act. r~ a.:.oc~:ied ( < 2 u.s:c. 7609), a.nd Executfv~ Order llSl'i,
Prote-ction a.nd Enh!Ulcem::r.t o: E::;.•,·;:-on·
mer.t:~.l Qua.Uty CMa.rch 5, 1970, as ~H:nC.·
ed bi' Executive Order llODl. ~~it.Y 2-1,
l9'ii).
§ 1503.1 Inviting comm~nta.
<a> After preparing a dra!t envi-
ronmeutal impact sta.tement a.nd
before preparing a !tnaJ en\•fron.-nen-
t.al Impact statement the agency
shall:
(l) Obtain the com.mcmts o! any
Federal agency which has jurlsdi~·
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lion hy law or spccln.l e;.:pcrt.ise "-'!L!i.
respect t.o n.ny environmental 1mpac~
involved or which is a.uthorizea to
develop and en!orce environmental
standards.
(2) Request th~ com.n-~ents of:
<1> Appropris.t~ State and local
a-gencies which are authorized to de·
. velop a.nd en(orce environmental
:;tan duds;
C11) Indian trlbes. wh-!n the e!tects
ma.y be on a. reserva.tit'ln; and
{111> Any agenc~· whi~h ha.s reQuest·
ed ths.t it receive stn.tements on a.c·
tions o! tile kind proposed.
O!!.tce or :M:2.na~ement and Budget
Circular A-95· CReVised>. through Its
system o! clearL,ghouses. pr<Jvldes a
~ mew o! securing the vfe-;.·s o! State
a.nd local en.vlrorunenta.l agencies.
Tbe clearinght"luses may be used, by
mutual agreement of the lead
agency and the clearinghouse, for ~·j·
curing State and local reviews of t ne
drP~ft environmental impact. str~te·
ments.
<3> Request comments fr,~m the
applicant, if any .
c ~ > ReQuest comments !rom the
public, af!irmatively solicit~:"'.& coo·
ments !ro.ct those persons cr orga.'11·
zations who mny be interested or af·
!ected. <b> An a.iency may request corn·
'menUi on a. tinn.l environmental
L'llpact. statement before the decision
is !in~lly made. In e..ny case other
a.genci~s or persons r.~ay !""ilake com·
ments before the iinal decision
unless P. d.l!!erent time is pro vi':' ~d
1):7lder i 1506.10.
~ 'b03.2 Duty to comment.
Federa..l a.gencii!s with jurisdiction
t·,;; law or special expertise with re·
.~pect to any environmen~.al impact
involved and agencies which are a.u·
thori?.ed to develop and enforce envi·
ronmenta.l standards shall comment
on • :-J.teznents within the!r jurfsdic·
tio,n, expertise, or authority. Agen·
cies shall com..r:1ent wlthL'1 the time
period specified. !or comment in
§ 1506.10. A Federal agency tn:.~'
reply that it has no commentJ. I. e.
cooperating a.gency is satisfied th. :
fts views are adequately reflected fn
the environmental impact state-
ment~ it should reply that it has no
comme.nt.
16
~ 1503.3 Spt!cificity CJ[ comment~.
(a) Comments on n.n environ.rnen·
tal L-npa.ct statement or on e. pro-
posed a.ction sha.ll be as specific a.s
possible and may address either the
adequacy o! the sta.te:nen~ or the
merits of the alte:::atives discussed
or both .
Cb) \Vhen a. commenting a!;en~y
critic!zes a lead agency's preC:ictfve
met..'rlodology. the. cQcmenting
aiency should desc:ibe the alterna-
tive methodology wru~h lt pre!e:-s
B.ll~ why.
Cc) ·A coopera.tiner agency shall
spe~i!y ln its comJ:ne:tts whe~:"ler it
needs addition~ 1n!ormat1on to tul·
!111 other a.ppl!c&ble envi:-or~~enta.l
reviews or cansulta.t!on re~uire~ents
and what in!orma.tlon It needs. In
ps.rt.lcular, it shall spec!!y any addi-
tional in!orme.tion it needs to com-
ment adequately on the draft stat.e·
ruent's analysis o! sib-l!ficant site-
speci!ic efiecr.s associated ~it!: the
granting or approvins by that. coo;J·
era.ting agency ot necessary Federc.l
permits, licenses. or entitlements.
<d) When a cooperating· G.;;rency
with jurisdiction by iaw objects ~o 01
expresses reservatior.s abot:t t!l!': pro-
posal on grounds o! envi.ranrr.:ent.3.1
impacts, the agency e:o:pr.:!ssin~ the
obje:tion or rcserv:Ltion s~a.n s;>~cify
the mitigation me&.su!'as it co:ru,~ders
necessr.ry to allow the a~c!ncy to
gra..T'lt or approve applic&ble ;l.:!rmit,
license. or re1ated reQuirements or
concurrences.
~ 1503.4 Response to comments.
(a) .t\n a.genc}' prepar.ng a !L.'"lal en-
vironmental imp~ct s:~.:ement sha.ll
assess e..nd cor.sider co~-nent.s bath
ll'idividua.lly r..n.d colle<:t.i·valy, e.nci
sh~Jl respond by one o:-I:lo:-e of the
means listed ·belo-;.r, sta::in2: its rr:·
spcnse in the finai stateme:lt. ?os.Si-
ble responses are to:
<lJ Modify alternatives inclucting
the proposed action.
(2) Develop and evaluate alterna·
tives not previously given serious
cnnsidera.tlon by the agency.
(~) Su~)lement. improve. or
modify its anal:;ses,
(4) Make !actual corrections.
C5 > Explttln why the comments do
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not wa.rrn.nt further agency r~·
spor.se. citing the sources, a.uthori·
ties, or reasons which support the
agency's position and, 1! appropriate,
1nd1C3.te those circumstances which
would trigi,er agency rea,pra.isal or
f~.1rther response.
(b) All substantiv-e comments re-
ceived on the draft. statement tor
summaries thereof where the re·
sponse has been e~cept1onally volu-
rnlncw..). 'should be attached to the
final statement. w!:le~her or not the
comment is thought. to merit inclivid-
ua.:: d.Iscus~1on by the agency in the
text o! the statement.
· (c) lf changes in response to com-
ments are minor and are confined to
the respor..t ... , . described in para.-
. gn.phs Ca.> (4.) and <5> o! this section,
agencies may wnte them on erra.ta.
sheets and a.t.ts.c:h them to the state-
ment fr..stead of rewriting. the dra.!t.
st&te~nt. In such ca:;es only the.
comment.5, the responses. and the
changes a.nd not the final state::nent
need be circulated (§ 1502.19). The
entire document with a new cover
sheet sha.ll be !lled a.s the !ina.l state·
men~<§ 1506.9>.
PART 1504-PREDECISlON REFER·
RALS TO TH::: COUNCIL OF PRO-
POSED F::DERAL ACTIONS
DETERMINED TO .BE ENVIRON--
MEN1'AI..LY UNSATISfACTORY
Sec.
1504.1 Pun:ose:.
1504.2 Crl:.eria Sor Referral.
1504.3 Procedure !o-: Referrals and Re·
sponse.
A'D"nnORITY. NEP A, the Envirt:!i~fnenta.l
Quallt)' Improvement Act o! 19'10. a.!'
amended C~2 U.S,C. 4371 et. seq.}, Se-ction
309 o! the Clean Air Act, as a.mender.l (42
U..S.C. 7609), &.nd Execut.tve Order 1!.514,
Protection and E;'lhanee!llent o! Environ·
mental Qu.allty <March 5, 1970, a.s amend·
ed by Executive Order 11991. May 2'4,
1971).,
~ 15G4.1 Purpon.
<a> This pn.rt establishes proce·
dures !C~r re!erring to the CoW1cll
Federal interagency dl.sagreements
concen:ing propcsed majo-r l~ederal
actions that might cause ur.s:=.:.i.s!ac-
tory environm~n~a.l e!fect.s. It pro-
vides mea.ns for early resolution of
such disagreements.
(b) under sectton 309 of the Cle;: .. n
Air Act <42 U.S.C. 7609). the .\d..:nin·
lstra.tor o! the Environmental ?ro·
tection Agency !s· diri:cted to re·.·tcw
and comment publicly on the cn-.·i·
ron."nental L."'npr.cts o! Federu.l a.ctivi·
ties, including actions tor which en·
virorunenta.l impact statements a.!'e
prepared. If af:.~r this review the Ad-
mlnintra.tor determines ths.t the
matter is •·unsatis!r.LCtory iro!':l the
standpoint of public haa.lth or we1-
!are o:-env!ron.menta.l Qtlalit.Y." sec-·
tion 309 directs that the ms:cter be
referred to the Com1cil Che:-ea.fter
"environmentn.l :·e!erra.ls").
Cc) Under section 102(2)(C) o! the
Act other Federal agencies me.y
make similar reviews of en"."ir:inmen-
tal impact statements, incluC.L.~!)
judgments on thc1 accept"'b!li-vy o.f
e..~ticipated enviror..men~ i.lr .. ;>a.ct.S.
These re"t,"iet:.'S must be made a•:&ila-
ble to the President. the Council and
the public.
§ 1504.2 Criteria for referral.
EnYiron.--nenta.l ref:!rra.ls shvuid be
m3.de to the Council only !1-:.~:;r cvn...
certed, timely <s.s early as po:·..>!:,le in
the process>. but unsucce.:..sful P..t·
tempts to resolve difie:renccs with
the lead tl.gency. In determining
v.•ha.t \':nvlron.m~ntal objections to
the matter a.re appropria.te to refer
to the Counc1l, an agenc~· should
weigh pote:1.tia.l adverse environmen-
tal impacts. considering:
(a.) Possibl~ \"lolation of na.tiur"!al
environ.~ent.s.l standards or policies.
(b) Severity. '
(c) Geographical scope.
Cd) Duration. ~
(e) Importance as precedents.
([) Avs.Babilit)' o! environment.o.l!y
:~referable l.llterna.tives.
:.J·L3 Procedure for referrals nnd rc-
eponae~,
<a) A Federal agency ma.kt..'lg the
r~ferra.l to the Cbuncil shall:
Cl) ."!.-:\vise the lea.d a.genclo' at the
earliest possible time that lt ~ntends
to refer a matter to the Council
unless a. satisfactory agreement is
reached.
17
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C2) Incluoe such advice in the re ..
fer:ing agertcy's co.:nments on the
draft environmental impact state-
m~nt. except when the statement
does not eonta.in ad~qu.a.te ln!orma.-
tion to permit a.n assessment of the
zr.~tte:-'s erwlronmenta.l accept&bil·
,,ty.
(3) Identi!y any essentio.l tn!onna.-
tlon tllat is la.ck.ini ~d request that.
it. be made a.va.Ua.ble at the earliest
possible time.
· ({} Send copies o! such ad\-ice to
the Council.
(b) The referring agen~y shall de-
liver its referral to the Council not
later than twenty-!lve (25) days after
the !ina! environmental impact
statement has been mad:! available
to the Environmental Protection
Agency. commenting agencies, and
the public. Except when an exten-
sion o! this period has been granted
by the lead a.genc~t. the Council \Vill
not acce~n. a r.efel·ral after ths.t date.
<c> The referral sh&.ll consist o!:
c 1 > A copy of the letter signed by
the head o! the referring agency and
deli\'ered to the lead agency inform-
ing the lead agency of the referral
and the reasons !or it, and request-
ing that no action be taken t,{) imple-
ment the matte: until the Council
acts upon the referral. The letter
shall include a copy o! the statement
referred to in <c><2> below.
(2) A statement supported by fac-
tual evidence leading to the conclu-
·ston that the matter is unsatisfac-
tory !r,Jm the standpoint. of P'llblic
health or wel!n.re or environmental
quality. The statement shall:
(1) l.tienti!y a.ny material .!acts in
co"ltroversy and incorporate (by ref-
erence i! appropriate) agreed upon
!acts,
(11) Identity any e:>:isting environ-
mental requirements or policies
which would be violated by the
matter .
<iii) Present the reasons why the
retarring agency believes the matter
is environmentally unsatisfactory,
<iv> Contain a finding by the
agency whether the issue raised is of
national importance because o! the
threat to national enYironmental re-
sources J~' polici~s or for some other
reason,
<v> Review the steps taken by the
ref~rring agency to bring Jts con-
18
cern.s to the z.ttentlon m tne iead
agency at the earliest possible t.ime,
and
<vJ> Give the re!errln; a.;cncj''s
reconunenda.tions a.-; to what mltig~.
tion Btltema.tive. furthe-:-stud:;, or
other cours~ of a.ct-1'-·~l <mcl-uciir.l
a.bandonment of t.he rn~tter> a:e net-
ess2.4-y to rer:tedy the situat;cn.
(d) Not la.ter t!la.n twenty-five (25>
days a!tcr the referral to the Coun-
cil the lea.d agency may deliver a re-
spon.'>e to the Council a.nd the refer-
ring agenc~·. I! the lea.d agen:y re-.
quests mo.re time a.nd ~ives assur-
ance that the matter Vlill not r.:o !.or-
ward 1n the interim, the· Council
mn.y grant n.n extension. The re-
sponse shall:
(l) Address fully the issues raised
in the referral.
(2) Be supported by evidence.
(3 > Give the le&d agency's res;:io:--J.Se
to the referring agency's recommen-
dations. ·
Ce) Interested persor.s (including
. the ap:pUcant) may ccl!ver their
\·ie-v:s in writin~ to the Council.
Views !n support of the referral
should be deli\'ered n~t. 1:!-ter t.han
the referral. Vie~·s in ~uppcrt cf the
response shall be delivered no:. ~a.ter
than the response.
(!) Not later U1a.n tl\·enty-!!vc C25)
days after receipt of both the refer-
ral and any respon..l)\! or upon b~in6
informed that there will be no re-
sponse <unless the lead agency
agrees to a. longer time>. the Council
may take one or more of the foilow-
ing actions:
\ l) Conclude that the process oi
referral and response has succe.ss!ul-
b' resolved the problem.
(2) Initiate discussions with t',
agencies with the objective o! m.e;:;
tion with referring and lead age~
cies.
(3) Hold public meetings or hear-
ings to obtain additional views and
lnfonnation.
(4) Determine that the issue is not
one of national ·importance and re-
Quest the referrlr:u; and lead agencies
to pursue their decision process.
(5) Determine that the issue
should be further negotiated by the
referring and lead a~encies ~nd is
not appropriate for Council consid·
eration until one or more heads of
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agenci-es report to the Council that
the agencies' disagre.ecent.s are irre-
conclla.ble.
(6) Publish its !inctings and :recom-
mendations <lncludi.'lg where appro-
priate a. findi:lg tha.t the s.~b::nltted
evidence does not support the posi ..
tlon of a.n agency).
<7> When approprin.te. suhmlt the
referral a.nd the response togeth~r
with the· Councll's recommendation
to the President !or action.
(g) ·Tne Counc11 shall tr:.ke no
longer than 60 days to complete the
a.ct1ons specified in paragraph en C2),
C3), or (5) ot thts section.
<h> W'nen the rlf'!erral involves an
action reQulrec! by statute to he de-
termined o.n the r~cord after oppor-
tunity !o:-a.g~ncy hearing, the refer-
ral shall be-conducted m a manner
comlstent with 5 U.S.C. 557(d) (Ad-
m.inistratlve Procedure Act).
PART 1505-NEPA AND AGENCY
OECI·SIONMAKlNG
Sec.
1505.1 Agency d~lsionma.kl.ng proce·
dures.
1~05.2 Record or decision in ca.~es re·
. Quiring enviror.mental lmpac: st~\te·
ment.s.
1505.3 Implementing t!le decision.
Atrn!ORITY: NEP A, the Environmenta.l
Quality Improvc:ment Act o! 1970, a.s
amended (42 U.S.C. 1371 et seq.}, Section
309 o! the Cleu.n Air Act., ll.! amended ( 42
U.S.C. '7609), and Executive Ol"cler 11514,
Protection and Enhancement oC En\1ron·
menta.l Qus.llt~· <Much 5, 1970. as amend-
ed hl· Executive Order 11991, May 24,
19!17).
§ 1505.1 Abency decisionmaking proce·
durea.
Agencies shall adopt procedures
<§ l501.3> to ensure tho.t decisions
are made 1n accordance with the
policies and purposes a! the Act.
Such procedures shall include but
not be limited to:
<a.> Implementinst procedures
under section 102(2) to achieve the
reQulrements at sections 101 a.nd
102(1).
(b) Designating the major decision
poi!lts !or the agency's principal pro·
gr:'JD3 l.U:;ely to have a sign!f!ca...'1t
et!ect on the hwna.n environment
and a.c;:;uring that tht! XEPA procc~
ccrresponds with them.
(c) Requiring Uul.t relevant. envi-
ronmental documents. commer. ... ..s,
a.nd responses be part of the rcco:d
in formal rulema.kJng or adJudica.-
tGry proceedings.
<d> ReQuiring th~t relevant er.,·i-
ronmental d{.)curn.ents. com..m·en~.
and responses a.cco:npany the pro·
posa.l through existL,g n.genc~! r-evie...-
processes so that agency offici a.ls use
the statement in rn&.Ki:'lg decisions.
. Ce> ReQuirin6 that the alternatives
considered by the declsion:na.ker are
encompassed bj• the rE.nge o! a.lter-
na.t1ves discussed in the relevant .en·
vironmenta.l docume:1ts and that the
dec1s1on.1naker consider the a.lte:na-
tl..-es described in the environme:1:a1
impa.ct statement. I! another dt:ci·
sion document s.ccompa.'lies the rele·
va.nt env!r.orunental docu.-nents to
the declsionmaker. agencies arc en-
couraged to make a.vP.ilable to the
public before the decisio~. is made
any part of that document that re-
lates to the comparison o! s.ltei:"r!r~
tives.
§ 1505.2 Record of decision in Ci;Se:l ic·
quiring environment-al impact at."lt.e-·
ment.s .
At the time o! lt.s dacisio:~
<§ 1506.10) or, if .,~ppropria~e. its rec-
ommendation to Coni;ross, ea.c:h
agency shall prepare a concise pubH:
re~ord of decision. The record, whic:1
may be -integrated into c.n~ other
record prepared by the agency. in-
cluding that required by O~ffi Circu-
lar A-95 <Revised), pa.rt I, sec~ioP.s 6
(c) s.nd (d), and part II, s~ct.ion
5(b)(4), shall:
<a) State what the dec:Sion l\"~.
(b) Identify all alterr.atives con.sid·
ered by the agency in reacl_lin~ its
decision, specifying the a.ltern::.tiv.:
or alternatives which were consid·
ered to be environmentally pre!=:r·
able. An agency may discuss pre! er-
ences n.mong alternatives based on
relevant factors lncludlng economic
and technical considera.tio:1s and
agency statutory misslor.s. A..,_
agency shall ldentl!y a.."ld di.scl!.Ss P.ll
such !actors including a.:s."ly e·S$ent1al
considerations of national pc.!!cy
whlch were balanced by the agency
1n making Its decision and st2.tc how
19
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those co.nsid~ra:.ior.:.s. cntcrt:d into !ts
decision.
<c> Sts.te whether all practicable
mes.I".s to ;l.vold -or mL.'"limize en·.4 iron-
mentaJ harn1 frac the ?-lr.ernattve
selected have been adopted. and If
not. ~·hy they W£:-re not. A monitor-
ing a.nd enforcement program shall
be adopted and swn.'ltarized where
applicable for any m!ttr:a.tJon.
§ 1505.3 lmplemer:rl.iR-J fh~ decision.
Agencies may t~rov!de for mont tor-
1ng to a:ssure that thei: d~cislons are
carried out and should Eio so 1n im·
porta.nt ~es; :Mitig&tion
<§ l505..2(c)t) and. other conditions. es~
tablished in tbe environmental
impact statement or during lts
review and comrni tt.ed as part o-! the
decision shnll be implemented by the
lead ag,ency O>r other appropriate.
consenting agency. The lead agency
shall:
<a> Inch~de appropriate condttlons
in grn..~ts. permits o.r other appro-
vals.
(b) Cond!t.ion !u.nciing a! actions
vn mitign.tiun.
Cc> Upon req.ut . iri!orm coopern.t-
ing or cornmen1 : azencias on prog-
ress in carrying , ,i,H. mltJga.tion meas-
ures whicl'l t!ley have ~ro~osed and
w'hich ·were adopted by the 3.6ency
ma.king the decision.
<d> Upon reQuest, make a.vailablP,
to the pub.llc the ·results oi relevant
:nonitoring.
.;--
PART 1505-0THER REQUIREMENiS
OF NEPA
Sec.
1506.1 Limltations on actions during
NEPA process.
1506.2 El!mlna.Uon o! duplic:at1Pn wtth
St.alle and local pracedures. -
1506.3 Ad.opt1on.
1506.4 Combining doc.:ument.s.
1506.5 A~ency responslb111tY.:
1506.6 Public involv·ement.
15Q6.7 F'urt.her guldc.nce.
1506.8 Proposals !or legtslll.tlon.
i50iL9 Filtng reQuirements.
1506.10 :t'i.mi:\IS o! a~~ncy ~£t1on.
1506.11 ~mer~endes.
1506.11, E!!ectlve date.
AUTHOJUTY: NEPA, the Environm(:nta.l
Quality Improvement Act o! 1S70 a . .c;
s.mended (42 U.S.C. 437l.et. seq,), S·_ctlon
20
30~ v: the-Clt::sn J'Jr Act, a..r. L"'t:!::-.ct:d : '.2
::.S.C. 7SC19i. s.."1c E.-:ec).!:.i\·e 0:-d::: 11514,
?:'c:.~ct~:~n e...id aha:.cen~·m:. o! E:1~:t:on·
me:-H.al Q~:.li~y CME.rch .5, l910. A.S .a.mt.:nd·
cc by Executive Order Ug:n. Mil.j' 2-t.
'Q"'"'" ... I I J.
~ 1506.1 Lintit&.tlons on rAc~kt:lll d~rillz
:'\EPA process. ·
Ca> Unti! nr.. ar.ency ~ues a. re~ord
o! cecision as provided In § lSD5.2
<except as nrovid~d in pa4'a¢ri;-h <c>
of ~his section>. no actio!'l c.cncernbs-
tht ;Jt'oposal shall be tak.e:1 whic:h
'V."Oi.!id:
C l) H2.ve ar. s.dverse environ.."ne~tal
impa.c;; o:r
\2i Limit the choice of rea.so~~ble
alternatives. ·
(b > If ::..ny agencj· is considering ;~
a.ppl!cati:m from !:. non-i-~e~eral
entity, and 1s aware that the a=';:ili·
ca-·u is about to take a:1 a.c:ion
v:ithin the a.gency•s jurisdictio:l that
~·ould mee-t either of the cri:.e:-i~ b
paragraph <a> of this scctir.~~. then
~he agency shr~ll promp~l~· notify the
a.p;>li:a."lt that the ~gene;: we.! take
appropriate e.ctiqn ~G insure that U:e
objectives and procedure~ ui ?\EPA
arc achieved.
(C) \Vhile wo:k on a. required ;:>rc-,.
672..."n en\·ironnu::!::.al im~ac~ s~•~tr
I:H:r. t is L-: progre~ a..J.d t.ht: a.c-:.!on i.:;
not covereC. by a.n existln~ pro~ar.:
statement. agencies shali 'lvt. u.::~c:.··
take i.:l the interim any major F'-::-dc:-
a.i ac:lon covered by· t. ;.:, .. ~ -o ....,..<: -· ...... jr-!4 ~· -.;~
~·hi!:h may slgnitic&'1tly affect tht!
quali!.Y oi the hun:an err1.~..rcr.rc.er!t
unle.~ such action:
( l) Is justitiad indcpe::.de~~i:: ot
the program;
<2> Is itself s.ccomparued by an ~d~
quate eoviron.~enta! !·n;,~ct sta.i.e-
ment; &.'"'ld
<31 -:,vm not; prejudice the J.:l:i:r:<'.t.:
decision on the p:-oe.,'J'O~'"'n. ~nte:-.m
a,;;tior:. prejudices tht; ultimate d:.-:·i-
sion o~ ~he program when it ti:n.:.S :~
deter.::'line subseque:.t developmen~
or limit alternatives.
Cd) 1~hls section docs not prach.:c~
de••elop:nent by e.ppHcants o: pl~~
or designs or pertorr.1a.."1.c~ o: o:.:::e::
wo:r~: r.eccssar:: to sup;,o:-t a...11 apr::!-
cation for Federal, State or local ;;e:-
mi t3 or assistance. N a thing in tnt'i
section shall preclude Rurs.l Elecr.?:-
!ication Administration approve.J-ot
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minimal expenditures not elf ect.ir~g
the en\ironment <e.". long lea.dtime
eQuipment c..'1d purchase options)
mn.de b~· non·gove:'nr.:'l~ntal entities
seeking lo~n guarantees !rom the
Ad.."ninistra.tion.
f 1505.2 Elimination Dr du.plic•tion ~·ith
State and lutal procedures..
(&) Agenctes authorized by law to
eoopen.te with s:.at.e agencies of
statewide Jurt..>d!ctio!l pursuant to
section 102C2)(0) o! t.he Act ma.y do
so. 1
<b> Agencies shall coope:-at.e wfth
Sta.te and local a encies Eo the ful·
les extent possible to r~duc~ dupli-
cation between 1'-;:EPA ana State and
local requir:m::J.t.s unl~§S the a.gep-
cies are ~pecitica.ll y barred !rom
doln so v soi:l~ other la.~·. Excep"t
!Qr cases.~e,.p; hi\~=~~h (a> o tni.1 Sectjii!{ St;;;hh cru;;eiiBnp sh itll
to the! fuUas~ exten; possible include:
(1) Joint pla.n.'11ng proces.s~s.
C2) Joint en\1ronment2.1 research
and studir.s. ·
CS) Joint public hearings <except.
-v.·here othe~ise provided by stat-
ut.el.
<~> Joint en\'lrc.nmental a:ssess-
ments.
<c? Asencies $Jln 1 l coone~:., with
State n.nd: locr-.1 agencies to the fu1·
lest extP.nt ;:>o~~ib!e to reouce aup!1-
ca.tion bet-;.·een NE? A a., a comp::lra·
't5!e Stife n.nd Ioc:il ·requirements.
ess the a.genc1es e.re speclflCally
barred rom OL.'16 so y some ~r
lMV. Exce?t for cs.ses covereii O'y
p_!U"agr9.ph (a.) o! thl.s sec~i_on. suFh
cooperation sna1l to the fullest
extent possible iriclude 3otnt envlrDn·
mental lmpa.c! _ staten1ent.s. In sUch
e.as~s og,~ or more F·edernl agencies
a.nd one or more SLa~e or loca.l e.gen-:-
cies shall be_jOT:rt= fead agenCies.
Where State laws or loc:a.l ordinances
h&ve environmental f.Xnpa.ct sta.t~
ment. requirements in e.ddttion to
but not in con!lir,t with those in
NEP A, Feder-.J a.gt.mcies sha.ll coop-
ez,lt~ .1.'1 !u!.!illil:l&' the~~ reQuirements
2.S well 2'.,s those o! Federal la.ws so
that oZle document will comply with
a.U appllcsble l~ws.
(d) To better lntessrate environ-
mental impact sta.taments into State
or local pla.nnL"l.S processes, state:
ment.s shall discuss any inconsi.sten"'
cy of a pro;:tosecf a.ct.io:1 with 2.:1,:: a:r
pro\·ed Sr.at.c or local ;Jl~"1 ~"'l~ ia\;·.,:;
< v.·h·~thcr or not !eden.!.!:,-se...'1•~
tionec). Where n.n inconsis:.en~j·
exists, the s:.at.emc:'lt. should descr!t-:.:
the extent to which t."le a.g-enc:;
~ould reconcile it.s J)roposed r.:~:on
~·itrl the plan or la.w.
§ 1506.3 Ad'option.
<a.> .. <\.n agency may a.dopt. a. Feder:U
draft or final en~ror .. z::u~ntEJ lmp~cz.
sta.~ement. or portion thereat pre·
vided tha.t the st.a.teme:.t or-po:-tion
thereof meets the sta..nda.A:"C.S !or 2.!!
adequate statement under these u:;·
ulations.
<b > If t.he actions ·covered C.:-· ~::u~
oriiinal envirorunenta.l L--np;.ct .sta.tc·
ment a..'1d the proposed ac:io:t e.:-e
sub.3tantia.l1y the sarne, ~he c..ge:1.~Y
adopting :u1ct.her agency's sta.te!:l~r .. ~
is not required to re:drculz.~e it
except s.s a. !L.'"la.l statement. O:he:-
wi5e the adopting agc:1cy sha.l. trc~s.r.
the statement as a dra.ft a..."1.d rectr=u-
late ft (except. as provided in )Ua·
w.a.~h <c> of. this section>.
<c) A coopera.:ing at!e.:nc:,· =:lY
adopt without recir.:ula.tin&" t.he en..,·i-
ror--nentaJ. impc.ct sta.tt::rr.~:!~ of :s.
lead agency when, after ~"1 L.'"'lc~
pei1dent review of the st:£.t{:i>".~!'li., t!"::!
covperatin~ agency. conc!u~.::s L~-;a.~
it.s com.,"';lents a.nd su;;;'estio:-.s ha·.-C!
been sa-tisfied.
<d) When a.n a6ency ado;lts a sta:.e·
ment which is .'lot fin~ wi:.hin t:-.~
agency that. prepared it. o:-when r.r..c:
action it. assesses is the subje.:-:. of ~
re-ferral under part 1504. or "·!u:r.
the stat.ement's adequacy is ti:: sub·
ject o! n judicis.l action W~!ch is net
final, the agency shall so specii}'.
?. 'I ·o~ .. .... . . . ..a • :1 .. 1:> u... \.,(lmoln.m; \40cumen.s.
Any env~ro:ru:nenta~ do~ur~-:::::nt in
11 ·-h ......... ?-.. .-c~mp a,nce WlL. ~-.;.1!. r .. ::::l3.Y c.: CO::'l·
bL""led with a.ny other-a-.rrency do.::u·
ment to reduce duplicati.:>n and pa-
perwork.
§ 1506.5 ~ency responsibility.
(a.> Information. II ,q.n a.zency re ..
gui:res' wapp~.tca.nt to' subhit: enVl·
ronmer.tal iniormation to-: poss!tHe u:seby .the· agency -ln pre,srm.; a.n
en,.ironmental imoacr· std.tement,
then the a-ge·ney should a..c:..~!st-r'tie
applicant bY oulhnhi_g. tfit: typ~~ o"t
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minimal expenditures 1~ot. ~j..ffecting
the environment <e.g. lo!lg lea.dtime
e~uip:nent &.'1d purchase options)
mu.de b~· non~govern~~~:.al entiti1.!S
seeking loa.."l guara.nt.ees !rom the
Ad."Uinlstra tion.
§ 150i.2 ElilT<ination o( dupli(aLion ,rdth
State and lucaJ procedures.
Cal Agencies autho:-ized by ln.w. to
cooperate with S~a.te agencies of
sts.tewide Jur1.sdlction pursuant to
section 102(2)(0) o! the Act may do
so.
Cb> AS'encies shall coope:-ate with
State and loeal a enc1es to the tul-
les extent poss1ble to reduc~ dupli-
cation between :r-.=zyA ana State and
local reguire:mQt.s unless the agen-
cies a.re speci!lcall y barred !rom
doin! so by some other law. Except
!QiO ci2se; ~e,.p;~y ~~(a) or ~is sect(ci!{ siid{ cM;fiitiOij shill
to the fullest. extent possible include:
<l> Joint plan.."'l!ng proce5s~s.
(2) Joint en\ironmental re.sea.rch
a.nd studl~.s.
(3) JoL~t public hee.!ings <exca;>t
:~;here otherv.ise provided by stat-
ute> .
<4) Joint enYlronmental assess-
ments.
<~> _Aser.cies shr-'l goom:ret~ with
State ~nd loc~l agencies to the ful·
lest ext.P.nt ;:>os..liible to reouc.e auplt-
cn.tion between NE? -~ a.-1d com para·
Ole Sto.t.e ana local reQuirements.
ess the agenc1es are specllica"'Ty
barred rrom OJ..."'lg so y some cr
law. Except for · c.s.ses coverec O"y
paragraph <a> o! this sec-..ion, such
cooperat1or. shr~ll to the fullest
extent possible Include Joint envlran-
mental impact statenlent:S. ln such
cases one or more Federel agencies
and one or more State or local agen:"
cies shall be 1ol..;t lead g,gencies.
Where State laws or local ordinances
ha.,'e envi.ronments.l impact sta.te·
m~~~1t requi.rem~mts In add~tion to
h\i.:t.t. not ln ;<;?: ... nict with those in
N'l!n:"'PA, ~'eder...J agencies shall coop·
ernte 1n !ulill1i1li these reQuirements
e.s well as those o! Federal l&.'i'f'S so
that on~ «iCX:tlme;nt will comply with
c.ll atJpH~ble la.ws.
{d/ To t·~tter integ-rat~ environ·
ment,n.l impact statements L"lto St.a.te
o.r lo;;a1 planni.."1.g processes, state-
m\1l:nt.s shaJl disc~ any inconslsten·
cy o:· a ;>ro?osed a.ct.lo:\ w!~h s.:;;: :;.:>-
pro\~ed St.a.tc o:-local ;Jla."'l :;;.."'ld law.s
<~·h·~thcr or not, feder~!r sa..""l•~
tionec). Whc:re an lnconsis:.en~.;:
exists, the ::>7-aternc:lt should descr!:,~
the extent tc which t!le arrenc:;
v•ould reconcile it.s nro;:>csed "-~:.:.Jn
~·it.h the plan or law.
§ 15G~.3 Ad!>ption.
C a) ... -\n agency m:1y adopt a F;::der:l-1
drrut or !lna.l cnvtronmentAl 1mpi!.ct
stai.ement or portion thereo: pre·
v~ded that the statement or po:-tion
thereo! meets the sta.ndart!s fer aJ~
a.dequ.ate statement under ~hese re;·
ulatton.s. . · .
<b> If the actions covered b~· t:1t:
orit;l!::al environmental i::.""npa.ct. state·
ment n..~d the proposed ac:.ion e:e
sub3t.a.ntially the sa.n:.e, the c:.ge;:tcy
adopting a.11other agency's sts.te!:l~n:.
is not required to recircuiz.t.e it
except as e. !L"lal statement. O:he:--
w.ise the a.dopth"'lg a.gc:ncy sha.l. trc~s.t
the statement a.s s. clra.fr. a.."1d :-ecir.:u-
lat.e it <except a.s provid;:d in para~
~&.?h <cl of this section).
<~r A coopera.:ing acenc:: ~~Y
a.dopt wi~hout recircula.tin3' t.he ern·i·
ror..:nental impact statem!:':!~ of ~
lead agency when, a.!ta:-~~ tnc~
pendent rc\:iew of the st~t~I:-.c~t. t!":.:
covpera.tin; ~bency. co:•clu~~::; t:-:s.::
1t.s cornr:1ent.s and suc;;estions hz...,·~
been sa.tisfied.
(d) \Vhen an a;ency adopts a sta:e·
ment. which is not fin~l ~·i~hin t:-. .::
agency that prepar~d it, O!' \;'he:l r.hc
~tion it. assesses is the subjec: or .::.
r·.:ferral under pa.rt. 1504. or w!1.et:
the sta.t.ement's adequacy is t~~e sub·
je\!t of n. judicial action W~!Ch is net
:final, the agency shall so specify.
~ l506A Comoining documents.
Any enviro:runentt-1 docu:.r.ent in
comi)l!a.nce with :?'~E? A mss b-::! cc-:4:'1-
bL·ted with a.ny other e:.r,-ency do~u
ment to reduce duplic~tivn and pa-
pen;•ork.
§ 1506.5 A.gency re&j)On5ib1lity.
(~) Ln/ormgf:iO.J!. If an a~er)cy re-
guires a.,.., applicant to submt c -e~:-..1-
roru:nental iniormation fer: poss!o1e
use by t.he agency in pre?a.rm,; a.n
env1.ronrnenta.l irn oa t -sta.tement,
then the agency should ?-"-.<;!st. e
a.pplfe;mt_ by out.Iininr. tht: tYP:.'s 6T
21
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infor:mt\tion required. The s.gcr.cy
shn.ll ir'depcndently evaluat.e the in-
!orrna.tlon :;u!Jmitt.ed a.nd shs.U be re-
spon::iible !or its a.ccurilC:f. !! the.
PJ{ency chooses oo use the mi£!E!D-·
tion submit.ted bY the applic~l..,t in
the enyirpnro.aotrJ Impact ~==;
ment. ejther d:rectlv·or bY reference.
then the nam"!s of the persons re-
sponsible !or the Independent evalu-
ation shall be included in the list o!
prel)arers C§ 1502.17>. It Ls the intent
of this subparagraph tha.t acceptable
work not. be redone. but that it be
verified by the agency.
(b) Enl,'ironm:zt!cl ~!essmenl..'J. I!
nn agency ~~rmits an applicant to
ttrepare an environment~! assess-
ment. the agencY. besides fuliilline;
the requlrernent.s of ps.rabfaph <afO!
this sect:f"on. sha}J make its ow·n eval·
u~~t~l~.o~n~o~f~th~e~e.~n~~~ir~o~n~m~·~e~n~t~a~l~l~ss~u~es
and take r.'"snoos!biHty fo:-the sco;>e
a.nd cont.ent or the envirol'l.."nentafas·
sessmen~.
Cc) .Environmental impact state·
ments. Except as provided m
§§ 1506.2 and 1505.3 rnv envi'"o'1men~
tal impact staterep;, prepr.red pur·
suant to the reguirem~nt.s of NEPA
shaH bF-pu~pared directly by or by a
contr;:.ctor selected by the l~aa
agency or \\'here appro;::>rie.te under
§ 1501.6Cb), a cooperat.1n; agency. 1t
1s the intent o! these regulations
that the contractor be chosen solely
by the lead P.gency, or by the lead
agency 1n cooperation with coopera.t-.
ins agencies, or where appropriate
by a. cooperating ag-ency to a.yold any
conruct a! intere.st. Contractors sh2.ll
execute a disclosure s:a.tement pre-
pared by the lead -agency. or where
appropriate the cooperating agency,
specifying that they have no !lnan·
cin.t or other interest in the outcome
o! the project. If the document is
prepared by contract., the responsi·
ble Federal official shall furnish
guidance n.nd participate in the prep-
aration and shall independently
evaluate the statement prior to Its
approval and take responsibility for
its scope and cont~mts. Nothing in
this section is intended lo prohibit
any agency !rom requesting any
person to submit information t.o it. or
22
' J
t.o prohib!r. n.ny person ir::J:n sub:nit-
ting infonnar.icn to &..T}Y a;:::ncy.
§ 150ti.6 Public involvemen!..
oili~cnt
efforts to invo -:e ~r1r:: puc;~.: n prf.·
,_ rp • ~~ ... ~;.. .. 1._ .. ,, • :" :-.i-pJ.ru.""lc. ana .... ;!l<:w-n .. ••.b ;:,:.~;;; ..
h"EP l-.. ;>ro-:ed;.l:-~s. ,
Cb> Provide pubJ1c no~ice of N:.::PA·
related hea.rln~s. public m~etms:s.
~d the e.vail&.bilitY of enviro~-nen
tal documents so as to_ir..for:n those
persons and agencies who may be ~"'l·
terestcd or a.!f ected.
< 1> In all cases the e.~::ncy she.!l
mail notice to those who have r~
quested 1t on an L"ldividur.1 K.Ctior~.
<2> In the cas.e of an act.bn 'h"f:.t e:-
fects o! national conce:n notic~ ~!'l~1
include publica.tiOl~ in the: Pi:Dzr:_;,.:.
REcrsT:t:R a.nd notice by m2-i1 to r.a·
tionc-1 orga.niz~.tioT'..s reasonably ex·
pect.ed t.o be Interested in the mattf;r
and may include lisr.in~ in th~ !. 02
lo!onitor. An s.r;t.'!ncy en~::.sed i:1 r':.l~C'·
ma.king r.1.ay pro\·ide no:.ict:' by mai!
to national orga.."'l.iza.tiw.~ -;.·~c.· n;;.:·:~
reQuested tha.t notice re;;,"'..:~a.rly :,:
pro\'ided. l\gencies shF.ll mr:.int.F.i~ a
list of such orrH~nization.s.
<3) In the case a! n..i a.c:..!on wi~h ef-
fects prim~ily of local concerr. the
notice may include:
<D Not!ce to State and r:..rec..wije
clearinghouses pursuii.nt t~ 01-.!:E
Circular A-95 \Revi.t;ed).
(ii) Notice to. Indian trib~s wh~:l
effects may occur on rese:r:atlon.s.
(iii) Following the affcc::.ed Str..tf:'s
public not.lce procedures fo::-com;:;a-
ra.ble actior-...s. .
<iv) Publication in loce-1 news;Ja-
pers <in papers of general circul~:.io:-:
ra.ther than leg&.l pa.pe~-s >.
(v) No'i..lce th;·ou~h vi:her. lo:a.l
media.
<vD Notice to potenti::.li.y .inter::-s~·
ed community orS'ani:z.n.t!.:ms !:;elud-
ing small business a.ssoclatior-...s.
(vii> Publicat.ion in ne-v;slc~ters
that may be expected ::..1 rea.ch po-
tentially interested persons.
(\'iii} Direct mailing to o\\-ner~ and
occupants of nearby or af!~ct.ed
property.
<lx) Posting of notice on ai1d o!!
site in the area where the action is
to be located.
(c) Hold or spot'..sor public ht~:-lr!ngs
or public meeting~ whcne\'er a.ppro-
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prin.te or in iiccordp,.ncc with st~.~uto·
ry reQuirements applicable to the
agency. Crit.erla. shull include wheth·
er there is:
< D Stibstant.tti.l en \'lrorunentnl con·
trovcrs}' concerning the prooo:~ed
o.et.lon or substantial lntere:;t Hi
holding the hearing.
C2) }_ reQuest !or a hearing 5y D.n·
other agency v.1th jurisdiction over
the nct1an supported by reasons why
a. hea.rtng will be helpful. It a. dra.!t
env!:on:nent.al tmpa.ct. statement. 1s
to be considered a.t a public he~-i.ng,
the e.ge:1cy should make the state·
ment a.v:illa.ble to the public a.t least
15 days in advance Cunless the pur·
pose o! the he-a.....ring Ls to provide in·
!ormation !or the draft environmen-
t;,.l gops.ct r..a.ternent).
<d> Solie1t ap~roprlate ln!o~ation
from the public.
<e> J;;xplai.n in its procedures where
1n teres ted persons can get in! orma-
tion or status repo:t.s on environ-
mental l!".l;:>a.ct statements s..."ld other
clements of the NE?.-\ process. "
<f> Make environmental iopact
statements. the comments r~ceived.
n.ncl any tihderiying documents avail·
~ble t.o th~ PUPH~ pursuant to the
provlsw:ts a! t.he Freedom o! In.!or·
mat1on Act <5 U.S.C. 552), without.
regard to the exclusion for inter·
agency memoranda where such
memoranda transmit comments of
Federal a.g-encie!: on the environmen,
tal !mp:..ct of the proposed action.
Matet"ials to be made r..vaila.ble to
the public shc.ll be provided to the
cublic without charge to the extent.
prac.ticable, or at a fee V.'hlch is not
more than the actun.l costs o! repro-
ducing copies required r.o b~,. sent to
other Federal agencies, includ~ng the
Council.
~ 1506.7 Furth~r guidance.
The CgU.L"'1Cil may provide further
guidance concemin~ NEP A and its
procedures including:
ta.) A handbook which the Council
may supplement !rom time to time,
which shall in plain language pro·
vide guidance and instructions con-
cerning the o.pplication o! NEP.A and
these re~nlla.tions.
(b) Publication o! the Council's
Mcrnora..."'lda. to· Hea.ds o! Agencies.
(C) ln con:u..-:ction wit~ the En·:i-
ronmenta.! Pro~ection Agt:ncy and
the publicat~cn of the 102 1'-:ionitor,
:.ot1ce o!:
\l) Research acti\'it!es;
<2> l\{cf!tin.g~ and conferences relat-
ed to l'-i~PA: a=1d
~3j Success:ul and inno\'ative· pro-
sedures l.!S~d b;; a~encies to im~le·
ment !-.~?A.
§ 1506.8 PropoA.als for legislation.
(a.) The 2-s-"EPA process !or propos-
als for legtsl.:.t!on <} 1508.li) signiti·
ca.ntly !.fiectL'"lg th~ quality of the.
hmnan en·:iron..'"nent shalf be inte-
grated with the lesi.slative process o!
the Cong:-ess. A leg-Cila~i\'e environ-
rnenta.l lm;;act statement is the di:·
tailed st.s.cement requi:-ed by law to
be included L"1. a reco:nmend::?.txon or
report on a legislative proposc.l to
Congress. A legislative enviroru:-u:~n
ta.l impact statement shall be ccm..sid·
ered part of the fonns.l tra.nsmitto.l
of a legislr-.:.lve proposr:.l to Con;-;-e:-s;
however, it :nay be tra.:ns:nltted to
Congress. up to SO dS.}'S later !n order
to aUow r.ime for con:plE:i.icn oi F-n
~~curate st~te~ent o;.·hich carl serve
as the bas!s ! or public C~,..'"'ld Congres-
sfonn.l de'ont.e. The statement must
be a\"ailabie :.n time !or Congression-
al hearings i!.n::i deliberations.
<b> Prepar::.~ton of a legislative en~
vironmental L-:lp~.ct statement shal~
conform to the requirements of
these regul:.t!on.s except a.s folio•.,:s:
< .\ > 'There need not be a seeping
pro~ess.
C2> The legtsla.tive stai:ement shall
be prepared in the sn...-ne manner as s.
draft statement, but shall be consid-
ered the "detaileci sr.atewe:n.t" r-c··
Quired by -=~:.ute: Pr.:n.1id.ed., 'rha.t
when any o! ~he fol1o'9:ing couditions
e:dst both t.he draft. ~.nd final euvi-
ronmental impact statement or. tl'•e
1 esislative p:cposal shall be !Yr(!pa.red
and circulated as provided by
§§ 1503.1 and 1508.10.
<1> A Cong-ressional Committee
with jurisdiction over the proposal
he.s a rule requirin:; both draft and
iinal en\·irorunenta.l impact state-
ments.
<H> The proposal results irom a.
study process required by sta.c.u:.c
~such ns those required by the \VUd
and Scenic Rivers Act <16 U.S.C.
J·
I 1271 et seq.) a..11d the \Vilderness Act
06 'IJ.S.C. 1131 et seq.)).
U!i) Leil.sla.tive a;Jpro·:al is scut;"!"l.t
!or Federal O!" tedera.lly h~i~t.ed con-
struction or other projec~ v.·hl~'1 the
agency recommends be located at
spec1!1c ieor.a~hic loc:a.tians. li'or
proposals requ1:intt an environmen-
tal!Iap&et sta.te=ent !or the a.cquisi-
tlotl o! S;la.ce by th.: General Services
AdmtntstN.t!o:l, a. ,:ira!: statement
shall.a.cco:npa.ny the Prospectus or
the ll<b) Report ot Building Project
Surveys to ~he Congress. and a ilna.l
statement ·shall be completed before
site a.cquisft1on.
Civ) The agency decides tr prepare
dra!t and !1na1 statements.
(c) Comraenu; on the legislative
statement sh~ll be given to the .le~d
agency Which shall forward them
along with it-.s own r~spon..se!> to the
Congressional committees with juris-
diction.
§ 1506.9 Filing requirement.!.
En,·irorunent.al impact statements
together ~·i:.h comments and re-
sponses shall be !iled with the EnYi-
ronmental Protection Agency, a.tten-
t!on Office of Federal Activitles <A-
10-1), 401 11 Street SW., Wa.shi.r~on,
D.C. 20460. Staten~fUlts shall be filed
vo.1th EPA no earlier than they are
also t.r!l.I1Sm.itted to commentin!r
agencies and made available to the
public. EPA shall deliver one copy of
each sts.ternent to the Council.
which shall satisfy the requireme:lt
o:f a.vailabili:y to the President. EPA
may issue guidelL'1es to agencies ·to
implement its responstbll1t1es under
this secticm e..nd § 1506.10 below.
§ 1506.10 Timing o{ llgency action.
Ca.> The En\ironmenta.l Protection
Agency shall publish a. notice in the
Fl:DERAL Rzctsn:R each week o! the
environmental hnpe.ct statements
!lled during the preceding week. The
minimum time periods set forth in
this section shall be calculated !rom
the daLe o! publica.t.ion of this notice.
<b> No decision on the proposed
action shall be made or recorded
under § 1505.2 by a Federal n~ency
until the lst.er a! the !allowing dates:
<1) Ninety (90) days atter publica-
tion of the notice described a.bove in
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pa.r::.g-ra;>h (!l) o! t..ill.s s~ct!o:1 to-: 2.
dr:...!t enviro:ur.et..t3.1 J..rn.p;..c:. state·
n:e:1t.
(2l Thirty C30) d;..ys a!te:-~u'blica
tion of the notice descrit-ed r.oove ~n
p~a.grei.ph <a.) o! t:11s Sf:c~iar. for s.
!L'1.al enviror.mcnW ill'~~....:: ~:ur.e
me:lt.
An except!on to the rules on t!r:o.ing
b.S.Y be made ir. the . ce.se · of a:1
a.genc~y decision wh!c:. :~ subjc..,:.
to a forma.l lnterna..l ~pp-::a.i. S•')n:e
s.t;encies have a. formally ~..s:.ab!is~cd
a;Jpea.l pro~css which a.ll6ws ot.ller
ag~ncies or the publl~ to take t"'.;=i-
~~ on a. decision and Id'ak!: ·their
·.iews kno~.-n. o.tter r.ublica::lor: 0!
the !!.psl envirorune-:1tci un::;.a..:t
sts~ement: In such cc:.~e.a, -;.~here a
real opportunity e>=ists !.;:, gJ;:e;-t.~;e
a·.::oci~•~on ""'he declS· ion··--" b.,. ,.....,..c·" """' -.:u l L.a.. ~•.:::;.,1 -... J..£ • ..., :.
ar.d recorder! at the as.m.e t4~e the
e::\·ironrnental L'npa=t s~t~me:1t is
P"..l~lished. This mea.n.:; tha; t~e
pe-:iod for 2.?Pea..l oi the dt.-:isio:; .~!-:.d
the 30-day period pres~rl!nd ~~ p~.r~
&:"aph Cb)(2) o! this secticn :-.-:.~;: n_:l
co:1cu:-rently. In such ~.sr.-.5 t!:.e t".;~!!
ro:unenta.l tnpa.ct s:.:s.:(;r:-~ent .s.hz..!i
er.pls.L., the timing a.ncl th:: ;JU!.:!:,·::
r!e;ht of appeal. An e.~=n~7 cn~.!).~e.:!
!::. ruiem~king und~r t.r.a ?..IZ".:;.li3t:-,;.-
~l~·e Procedure Act or o':.!:':c:-.sr.a.t.~:-=
tor the purpose or p:ol,.";C\;i.n~;: the
p::blic health or sa~~t:r. c:::..:--v.-~1·.-e
the time period 1n pa:-&--;rc: .. ~h (t,;~~)
cf this section a..'"ld publis~ c. ded .. i~vi:
on the !inc.l rule si::nll~e:.u.s::;
~"ith publica-tion of the notica of ::.:.e
ava.ila.bility of the final er.viron=.-.::Zl·
t.~ impact statement r..s describe.= in
~ara_o-raph (a) ot thi.$ sect!v::.. '
(C) I! the !in2.1 env":.:o~oonenta.l
i=.pact statement i5 !lled "~,;'i!.:.nL"1
n!.nety <90) days a.fter a. d:..Ut c;;'.'i·
ro:-L"Tlenta.i impact st&t:-et:le:ltk is filed
-;;.'ir.h the Enviro!'L."":lents.l ?:r~t.ec~ion
A~ency, the mi."'lirr.u::l thirvy C3n>
C.J.y period and the rn.i..'1irnu..-:-. l-:.;r!ety
( 90) day period may r\!D concur~·i:nt.
ly. However, subject to pa:-t.gr~ph
<dj of this sect1on agencic!s shall
a!lov.• not less thn.n 45 days for com-
ments on draft state:ncnr.s.
{d) The leo.d a.gen::: rn~y e:·=~~nd
p:escribcd periods. The Ezn·i:o::-.... r:ten·
:a.l Protection ,t...z-ency mr.y U;'J.:i:l a
sho~:lng by the lead ?.c;c~c:· ot com-
pelling reasons , of na.tionr-..1 policy
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reduce t.hc prescribed periods ar:d
may upon n. showing by any other
Federal s.gen:::~· or compelling rea-
sons o! national policy also t;;.::end
prescribed periods. but only after
consulta.tion with the lea.d a.6ency.
(Also see § 1507.3<d>.> FaJlure to file
timely comments sh!ill not be a. su!fi;
c:ient. reason !or exLend.Lng a period.
I! the lead agency do~s not concur
with the extension o! time. EPA may
mot extend it !or more than 30 da.ys.
:vfn~n the Environmental Protection
Agext~ reduces or extends any
pencl u! time it shall notUy the
Counc11.
§ 1506.ll Eme:-g·:mci~».
Where e~ergency circumstances
rna.ke lt necessary t.o take an action
~1th signl!!ca.nt er;.virorunent..al
Lr.npact without obse?Ving the provi~
s1~ns o! these regula.tions. the :Feder-
al agency taking th~ a.ction should
consuit with tbe CourJ.cil about alter-
tJative ~rraniem·en!.s. }.ge!lcies a.nd
\:he Council. will l!rn.it such arrl!.nr;e-
ments to actions nece.s.sa.ry to control
the lm:nedlate f.mpacts o! the cmer·
gency. Othef &ctio:lS rema.i.n subject
i..o l'-"EP A re\•.~ew.
§ !506.12 Er!~ctive date.
The effective date of these r~~ls.
tions is July 30, 1979, except, that fo:-
agencies that administer programs
that Qualify W1der sec. l02(2)(D) of
the Act or under sec. 104(h) of the
Housing and Community Develop-
ment Act of 1974 a.n additional !our
months shall be allowed !or the
State o: local age:1cies to adopt thei:-
impiementing procedures.
Ca.) These regulations shall apply
to the fullest extent practicable to
ongoing activities and envirorunental
documents begun be!ore the e!fec-
tive da.te. These regulations do not
apply to P"n environmental impact
statement or supplement i! the draft
s-ca.tement Ttla.s tiled he!ore the effec-
tive date of these regula.tiol'..s. Nc
~mpleted environmental document.'i
need be redone by ren.son of these
regulations. Until these regulations
a.re applicable, the Council':; guide-
lines. published in t,l:l.e :F'ZDERJ.L REG·
ISTER g! August 1. 1973, shall contin-
ue to be applicable. In cas~s where
these regulations are a.pplic~ble the
guidelines arc supersed!:d. Howc•:cr.
nothir!g shall prcver.t a.:t agency
from proceeding under these reh"uJa.-
tions at ~n earlier time.
(b) ).j"E?A shall continue to be P.P-
~licable to actions begun be!ore Jan-
uary 1. 1970. to tl!e tulle~~ ext.cn:.
po~!ble.
PART 1507~AGENCY COMPLIANCE
St:c.
1507.1 Co:nplia.nce. .
1507.2 Ae;enc~· Capa.bU1ty to Comply.
1507.3 Agency Procedures.
AtrniORrn·: NEP.-\, the Ezwironrnen~i!.l
Quality Improvemen~ Act o!" 1970, ~
amended (42 U.S.C. 4.371 e~ seQ.). Sect!:'-n
;30S o! the Clean Atr Act, t.s n.r:lendcd (.;2
U.S.C. 7CQ9), !!.Ild Execu:ive Orcl.:r l!SH.
Prottectlon and Enha.nce:men:. of Envlro; •.
mental Qua.ht.y <March 5, 19'70. L'> ~mena·
ed by Executive Ord~r 11991, M.£.:1' 2~.
·19i'il.
§ l5uT.l Compliance.
All agencies of the Fede~l Gov·
ern..-nent shnl1 ccmply wit:-:. thz:;:
regulations. It is· th~ intent of the:!;~
reS"".Jln.tions to 9-llm:: e(.'.ch s.;tency
t1e~ibility in n.da.ptint: ics irnplemt:r.::-
in~ procedu:es autho:-ized by
~ 1501.~ to ~he req·uire:ments of or;he:r
ap;llicc:.ble laws.
§ 1507.2 A~cn~y capability to comply.
E~r:h o.g"ency shall be ca.p~.ble (ir.
ten-....s o! personnel S.."1d other re-
sources) of c..cmp~ying with the re-
quirements enumerated below. Such
complia.:nce may include use ot
other's resources. but the us1nti
agency shall !tsel! have sut!icit:nt ca-
pability to evrs.lua.te What ot~er.s do
for it. Agencies shall:
(a.) Fuliill the requirements of s~c.
102( 2)(A) ot the Act tt: 'ltil&.Zt.f s. s:.-s-
tema.tic, 1nterdisc!p1tn3.4-y a.ppron.ch
which will lr.sure the integT&tt:d ust~
of the natural a .. ~(! sociai science:;
and the environn1.cntal de;:;ign ~.r:...s LYl
planning and in decisionm2.l:ing
v:hlch may have an i..."Upa.ct on the
human environment. A~encies sh:~H
designate n person to bt~ respoz~!'ble
for overall 1·eview of a. gene~· NE? A
compliance.
" (b) Identify methods and proce·
dures required bJr Sec. 102(2)(i3) i.O
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insure thr.t presently unquant!l.ied
env!ronmenW a.·"'uenities and values
rnay be given approprin.t.e consldt:ra·
.uon.
(C) Prepare adequate cnvirorunen-
ta.l imt;la.ct st:1.tements pursuant to
Sec. 102<2>CC) and corri.!."nent on
staternen~; 1n the n.reas where the
&iencj· hr...; Jurisdiction by law or
specicl expertise or i'i authorized to
develop a.."ld en!orce environmental
stn:ndards.
Cd> S~udy, develop, e.nd describe a.l·
terna.tives to !"t:cornmendcd courses
of action in any proposs.l which tn-.·
volves U."U'esolved coxu1icts concern-
ing a.ltem&tlve uses of available re-
sources. This ret;ut:-ement of Sec.
102<2><£> extends to a.ll such Pl"'Opos:
als. not tust the more limited scope
of Sec. l02(2)(C)CUD where the dis·
c~ion o: alternatives is confined to
impact. sr.atemen ts. <e> Comply w1t1l tlle requirements
o! See. 102C2>CH) that the agency ini·
tla.t.e and ut.Uize ecological 1niorma.-
t1on in the pla..'1.Ili.'1~ a.nd develop-
ment of resource-oriented projects.
(!) F".l.lilll the requirements of sec-
tions l02C2)(F), l02C2><G:., and
l'02<2>U>. o! the Act a.nd of Execu-
tive Orde:-11514, Protection and En·
hs.ncer:~ent of Environ.'l'lental Qual-
ity, Sec. 2 ..
§ 1501.3 A:ency procedures. .
(a.) Not l~t.e:t than eight months
a.!ter pc.blica.tion of these reJ;Ula ..
tions a.s finally adopted in t.he F!:Dr:a-
AL RECISTi:R, o:' !Jve month..c; after
the establis~'7H::nt o! an agency,
whichever shall come later. each
a"ency shall as necessary ado;>t pro-
cedures to supplement these regula ..
ttons. When the agenc~· is a depart·
ment. mr~jor subunits a.re encour-
aged cv.·ith the consent of the de-
partment> t.o adopt their own proce-
dures. Such pz·ocedures shall nQt
paraphrase these regulations. They
shall con!ine; themselves til lmple-
mentins procedures. Each ag~ncy
shall consult with the Council while
developing its procedures a.1d beiore
publ!shing them 1n the FED ntAL REG·
ISTI:R !or cornn'lent.. Agencies wtth
stmila.r progra.t'ns should consult.
with each other a.nd the CouncU to
coordinate their procedures, espe-
cially for pro6Tam.s reQuesting· simi ..
26
lar ir..fotma.t.ion from ap;ilica~:.:;. The
procedures sha.li be adopted .c.:&lj"
after an O?POrtunlt.y !or pubHc
re\·tew a...""ld after review by the Co~·
cil for conformity with th:: Ac~ a.11d
these rersulat!ons. The Counc!l .sh:1.l1
complete its review within 3Cl da.ys.
Once in e!Iect t.hey si .::.11 be filed
with the Council and made re:?.r.:ily
e::alla.ble to the public. A~cncl~=~ are
encouraged to publish c>:pie' .. nc:;.:..ory
guidance !o:-these reguln.tions r'"::1d
th~ir own procedures. Agencie.s srH!.ll
continue to review their policbs ~nd ·
procedures a..nd in consultation • . .:.:i:h
the Cotu,cil to revise them es nc~ces
ss.ry to ensure full com~lia.nce t;:ith
the purposes and provisions ot the
Act..
<b> A~~ncy procedures shall
comply with these regul:lt.ior..s
except ·where co:nplia.nce wo:Jld be
inconsistent wfth statutory require·
ments and shalllnclu~e:
( l) Those procedures renuircc by
H 1501.2<d>, l502.9<c>C3i. . 1505.1,
1506.6(~). and 1503.~.
(2) Specific criteria. fo• a.r.u idcn:.i-
iicat1on o! those typical clr.s.s~~.'i of
action:
{0 Which normally ('~O require en·
\·ironmento.l impact stn.tc!:)ant.s.
Cii> \Vhich normally d~ not rc~u:r~
either a.n environm~nt:?.l impact.
statement O!" a.n envirorm~~nt.._; C~..S·
sessment <categorical exclu.'\ions
(§ 1508.4)) .
<iii> Which normally recp .. :irc en\·i·
ronmental r..sses:;mcnts but not. r.ec·
essarily environment.nj impact s:.at.e·
ments.
(e) A~ency procedures rnay include
specific criteria for providing li~.Jt~d
exceptions to the provisions o! the.~e
regulations for classified propos:J.~.
'!'hey are proposed actions whicr, are
specf!ically nuthorized unda!" cr::eria
established by an Executi"v•e Ore~~ or
statute to be kept secret i:., t.be inter-
est o! national de!en:;e or ·foreit:n
pollcy and arc in fact ,Properly c:,a.:..sl·
fied pursuant to st1ch Executive
Order or statute. Environmental p_c;.
sessment.c; and environmental irr:pact
stat.ements which a.ddrcss clas::;!tied
propos~ls mas be safe~.:nrdect nnd
restricted from JJublic d!S$emin~tion
in s.cco:tdance with agencie3' own
regulations applicable to cla.o:;si!icd
inionnation. These document;v rnny
be Qrga.nized so that cla.ssU1cd por-
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tion.<; ea..'1 l:)e included as s.nnexes. in
order that the ll.l.iclassi!iec portior;,s
can be made a.va11abie to the public.
(d} Agency procedures roCl .. JI pro-
vide !o:-p~riods o! ttmc other tha.n
those presented Ln § 1506.10 wh~n
necessr;.ry to comply wlt.h other spe-
cilic statutorS' requirements.
(e) Ager:.~y procedures may provide
that where there i:l a lengthy period
bet.ween the agency's decision to pre·
p:t.re nn environmental impact state·
ment s.nd the time o! actual pr€p,ara-
tio:1.. the notice of int.ent required b:,·
§ 1501.7 ma.y be published at a reZL·
sonable time in ad•:ance of prep:!ra·
t1on o! the dra.!t stat.ernent.
PART 1508-TERMINOLOGY AND
INDEX
Sec ..
1508.1 Termlnolog~:.
1508.2 Act.
1508.3 A!!ectln;:.
1505.4 Cn.t.e~or!ca.l Exclu.sio:>..
1508.5 Cooperati."'l• Agency.
15iJB..6 Council.
1508.'7 Cu:nula.ti\•e lmprs.ct~
1503.8 E!tcct.a.
1503.9 l:.':w1ronmen:.al As.';ess:nent.
1508.10 E.m1ronmental Document.
lf-08.11 Environme:nt~ Impact. St&.te·
I:lent.
1508.12 Federal Ag1mc:;.
1503.13 F1ndlng of No Si~i!icn.nt
lmp~ct.
1508.1:.. Human "Environment.
U·08.15 Jurisdiction By Law.
1505.16 Lend Agenc:-.
1508.17 Leiislntion.
1503.18 Mnjor Federa..l Acr.lon.
150o.l9 Mat.r.er.
1505.20 Mltizn.tion.
1508.21 NEPA Process.
1508.22 Notice o! Int~nt.
1508.23 Proposal.
1508.24 Rr:f erri:"l~ A'•ency.
1508.25 Scope.
1503.26 Specis.l Exp'!rt1st!.
1503.27 Slsnl!!cantl~·.
1508.26 Tiering.
Atn'HORITY: N'EPA. the Environmental
Qu3l1ty Im;::~ro\'emem. .A,.Ct o! 1970, as
amended (42 U.S.C. 4371 el $~q.), Section
309 o! the Clean Air Act, a.::i &mended (42 u.s.c. 7609), and Executt:;e Order 11514,
Protection a.nd Enhanct!ment o! En\'iron·
menc,al Qua..Uty CMa.rch 5, l970, as amend·
ed by ExecuLlve Order 11991, Ma:r· 24,
1977).
§ 1508.,1 Terminology.
The terminology o! this part shall
be uniform =.hroughout the Feder3.i
Oovertunent.
§ 1505.2 AcL
"Act" r.n~a...~ the National Envi;-o:i-
menta.l Policy Act. as amended < ~2
U.S.C. 4321, et seq.) which is nlzo re-
ferred to as "NEPA."'
§ 1508.3 Az'"f~cting.
''A!icct!ng" means v.·il~ or. ma~r
have an e!fec.t on.
§ 15{18~·1 Cutegoricn! exclusion.
"Cat.~gorica.l Exclusion" means a
category of actions which do not in-
dividually or cumulativel7r ha:le a
significant effect on the hu.man envi-
ronment and which have been !ound
t.o have no such effect in procedures
ado;>ted by a Federal a.genc:r in irn-
plementn.t..ion o! these reg~.;~a.t!ons
<§ 1507.3) and !or which, thc~t1:ors,
neither an environrnentJ\1 a.:..~e~
ment nor an environmental irr,;:>act.
statement is required. An a::;ancy
may decide in it.'li "Rrocedu:-es or oth·
erv:ise. to prepare environmentaj as-
sessments for the rea.svi'ls stated in
§ 1508.9 even though it is no~ z:e·
quired to do so. Any procedn:rts
under this section shall provide !or
ex~:-n.orcinary circumsta..T"lces in
which a normall~,. excluded action
· may ha.·ve a. sib'Tlificant environ."l'ien-
tal efiect.
§ 1508.5 cr,o~rating agency.
"Cooperating Agency" means any
Federal agency other than a lead
agenc::;· which has jurisdiction by kw
or special expertise with respect. to
a.n~' environmental impact lnvol"..'ed
in n. proposal <or a reasonable 2.lt~r·
native) !or legisiat,ion or oth-::r majo~
Federal action significa."ltly a!!acti~b
the quality oi the human envirc..n-
mcnt. The selection and responsibil·
1Ues a! e. cooperating ag.::ncy are de-
scribed In § 1501.6. A State or loca.l
agency of similar quali!icatic. r.s or,
when the effects are on a reserva.·
tion, an Indian Tribe, maJ· by a.g;rec-
ment v.·tth the lead o.gency b1...co.me a
cooperating agency.
§ 1508.6 Council.
''Council" mec.ns the Council on
Environmental QunHtJ' establish~ci
by Title II of the l~ct,
27
.--
-
..
I
§ 1508.i' Cumu1litiv~ impact.
.. Cumulath'\! Impact" is the impact
on r.he environment which results
!ron:. the LTlcrei".lent.n.! jmnn.ct o! the
action when a.dded to viher past.,
pres~n:., and rea.sons.bly tore-see2.ble
futu:e actions regardless of what
agency <Federal or non-Federgl) or
person \!lldertakes such other ac-
tions. Cumula.t.ive impacts can !'esult
from indh'idul.lly minor bu~ collec·
tively s1;ni!1cant actions taking
pia.ce over a. period o! time.
§ !508.8 Etrect.a.
"Ef!e,::~·· include:
ca.> Direct e!Iects. which are ca.use·i
by th·e action Uld occur a.t the sam~
time and pla.ce.
Cb> Indirect et.!ects, which a.re
caused by the a.ctton and are lE'.ter in
time or !a.rther removed 1..'1 c!sta..."'lce,
but are· still reasonably !oreseea.ble.
Indirect e!!ecta may include bl"Owth
l.nducing e!!ect.s and other effects re·
lated t<> induced chan;es in the pat·
tern o! land usa, Jlopuls.tJon del"'..sity
or grovr~ ra.te, a..."'ld rele.t.ed effects
on air and water and ot.her natur?.l
Sl'Ste:r.s, lnclud!.."li ecosystems.
.E!!ec--~ s..:1d impac~ as used L."l
these regulations are S!-'Tlonymou.s.
Effects i.'1cludes ecological (.;uch a.s
the effects on"na.tura.l resvurccs and
on the compone~"lt.3. structures, 2.11(]
!unction.ing o! a!!ected ecosystems),
aesthetic. historic, cultural, econom-
ic, social, or health, whether direct,
indirect, or cumulc!,tive. Ef!ects may
also include those resulting from ac-
tions which may have both bene!1·
cial and d-atrimentn.l et!ects. even 1!
on ba.ls.nce the p.gency believes that
the effect will be blmeflcta.l.
§ 1508.9 Environment.'ll asaeaarnent.
'
1 Env1ronmental Assessment'':
(a) Means e. concise public docu-
ment !or which a. Federal a.cency is
responsible that serves to:
C l > Briefly provide su!!lcien t evi-
dence s.nd a."lSJysts lror detennining
wheth ~r to prepare a.n environmen·
ta.l impact statement or a finding ot
no sisniticant i.'llpact.
(2) Ald an agency's co'mpUs.ncc
with the Act when no environmental
Impact statement 1s necessary.
(3) FacUitate preparation o! a.
statement when one 1s necess~-trY.
28
Cb) Shs.ll L"'lcl:Jde brief d!~~~~ss~o.:-:..:i
of ~he need ior the proposal, o! z..l·
te:natives as required ty .sec.
102(2KEi, of the environ:nent.al iz:r..
ps.cts of the proposed action a.;.:i '=.l·
tcr:1a.tives, ai;C. a. lisi:L"'lg of agencies
a.nd persons cor..s'..l.!te..:i.
§ 1503.10 Envh·onm-ental dcH:U%':\~nt.
,.E.."lviroru:nental doc~en~" in-
cludes the documt!nts spe~!.!t(;:i in
§ 1508.9 Ccnviror.mental a.s.sesscent),
§ 1508.11 <environmel~tal im;:~a.cr.
statement>. § 1503.!3 c:tndln;; o! no
sl611Lt'ica.nt imps.ct), ~"id ~ 1503.22
<notice o! L.""ltent).
§ 1508.11 Environmental impact sute-
ment.
.. Environmental Impact S:..a.:.e-
ment.. mes.ns a :!euil~d "\l."rit~n
statement n.s rec;u:rcd by s~.
l02<2>CC) o! the Act.
§ 1508.12 F'ede:-ai a;;em:y.
"Federal agen~y" mean.s all a.~en
cles oi the Federa.l Govern...7!cn:. It
does not mea.n the Con;;ress, th~ Ju.
dicU!.ry 1 or the President., ir&cl!.!.:lL'rlg
the T'er!orm.a.."'l.ce o! stz..ii fW1c:.io:ns
!or tL1E: ?resident i.."l r..is Executive
Office. It t'.l.sC\ incluct=.:s !o-:-;n.:i-;.v:..~a
o! these regul11tions S~te..; 2.nd ~1!~
o! genern.l local govemnlent ~d.
Indian tribes assu."lli::lg i'\"E?.;. re·
sponsibilitles under section 10-t(~ii o!
the HousL'lg and Community Devel-
ot-.nent Act of 197·1.
§ 150S.lS Finding uf no d 0""nlncant
lmpad ..
"Finding o! No Sign!Cicant
Impact" mear_c; a documen.t by a
?edt:rlll agency briefly pre.sez:tL'1g
the reasons why an a..:::tion, nc-;. oth·
erwise excluded <§ 150SA~ .... wf:'l not
h&.ve a. signi!icant. effect. · o~ the
human environt~ent and to-:-"W'nich
an environn'lental L."'l':.p::l.ct st:lt~ment.
there!ore will not be pre?are.:l. It
shall include the environmcnta.i a:.s-
sessment or a summan~ o! it a.nd
shall note any other envfronmenta1
documents related to it
(§ 1501.7Ca.)(5)). It the s.sses ... u::u!nt is
Included, the !1ndingo need not repes.t
a.ny of the discussio~'l h& the assess-
ment but may incorporate it by ref-
erence.
'•
§ 150S.l4. Human 1-:nvirunrnen!... .
.. Hwnan Envi:-oi"..ment'' shall be i~~
terJ'rt~ted comprehensively t.o In-
clude the na.turaJ and physical e.nvi·
ronrner.t a.r~d t.h~ reln.t.ionship of
pee.ple with thht environment. (See
the de!!.nition o! "e!Iects"' <§ lSOS.u>.>
This mear.s that economic or social
e!!ects are not intended by them-
seh•es to reQ!!ire prepn.rs.tlon o! a.n
eln1ronmental impact statement.
When an environmental i."npa.ct
statement is p!'epared and eco:1om!c
or soc1-.::J and natural or physical en-
vironmental e!!eets arc interrelated,
then the en'li.ronn1enw !mpa.ct
st~:.cment ~ill discuss all o! these e!·
!ects on the human environmenL.
§ 1508.15 Jurisdiction Hy Lsw.
.. Jurisdict.ior. by la.w" means
asancy a.ut.horit.Y to approve, veto, or
!ina.nce all or part o! the propos·a.l.
s 1508.16 Lead i\)(enc:y.
'.tLea.d Agcn::y·• mea.!lS the agency
or a.ge:1c!es prcpa.rin~ or ha\·ing
taken pri.l'llUY responsibility for pre-
paring the environmental impa.ct ,
statement. ,·
I
§ 1508.1 'j' Lt~irll:llion.
.. Le~islation" includes a bill or leg-
islative proposal to Congress devel-
oped by or \;'ith the significant coop-
erat!~n and support of a Federal
agency, but does no~ L'1.clude re-
Quests !or appropriations. The test
!or significa..."lt cooperation is r .. ·heth-
er the proposal 1s in fact. predomi-
n8.ntly th~t of thE: agency rather
than another source. Dra!ting does
not · by itself coru=tftute significant
cooperation. ?i"oposa.l.s tor legisla-
tiun include reQuests tor ratification
ot treaties. Only the agency V.'hich
has prtmarr responsibility !or the
subject matter involved will prepare
a legisl.a.l,ive environmental i.mp.e.ct
statemeni:.
§ 1508.18 Major Fed~ral acHon.
"Mn.Jor Federal s.ction'· includes
actions wit~ effects that may be
major ana v.·hich art: potentially sub-
ject to Federal control and responsl-
blllty. Majgr reinforces but does not
have a. meaning independent of sig-
nificantly <§ 1508.27). Act.io~t; in·
ch.Ade trw circumstance where: the rt:·
sponsible of!i.~ials f.n.il to ~ct r~nd
th,a.t failure to act is revic:w;;.&Jle by
courts o:-ad.:nlnistrative tr~bunr:.!:;
under the Administrative Fro·:edt:re
Act or ot.her applicable la.w r:. .. c;
agency action.
Cal Acttor...s Include n.ew and conu
t1nuing activities, 1ncluc1ng p:-ojects
a.nd progr!ln"~ entirely or partly fi-
nanced, n.ss1sted, conducted. re=:r~lat
ed. or ~pproved b::,,. federn.l age:ncies:
new. or revlSed agency rules. r~gula.
tions. plo.ns, policies, or procedures:
and iegislat1ve proposals <§§ 1506.8.
1508:1"0. Actions do not 1'-1Clude.
!undh"1g asstst2.nce solely i..., the !orm
o! general revenue sharL."'lg funds,
distributed under the State a."'ld
Local Fiscal Assistance Act o! 1972 .
31 U.S.C. 1221 et seQ., with no F.::d~.-.
al agency control over the subse-
Quent use of such funds. Actions do
not include bringing Judicial o: ad-
ministrative civil or crimint~.l c-:1-
forcement f4Ctions.
<h) Federal actions tend t.o !nll
v:ithir. one o! tlle :!ollowint; cat.cgo·
ries:
(1) Adoption of o!'!!cia.l pol:cy,
such as rules, reguln.tlon.s, n.nd lnte:--
pr[>t.?..tio.ns adcptcd pt:.tsuant to the
Administrative Procedure Act.. 5 ·u.s.c. 551 et seq.: treaties r1.!~d int.er-
national convent.ions o:-agrc~:n~nts;
fonnal documents establishir.; a.."'!
agency's policies whlch wil.l result in
or substantially alter n.gency pro-
grams.
(2) Adoption o! formal p!a..'1.S, such
as o!!icial documents prepared o:r a.p.
proved by_ federal agencies wh!ch
guide or prescribe alternative uses of
!ed·eraJ resources. upon which future
agency actions will be based.
(3) Adoption of progr~rr.a.s, such as .
· a. group o{ concerted a.ctioi'l.S to {r.:-
plement a specitic policy or pla..-,:
systematic n.nd connected agency da·
cisio~ allocating agency reso1;.rc~s
to implement a. sper:;ific s:Ca.tut.o:-:'1'
program or executive dirP-ctive.
{4) Approval o! specific projects.
such as construction or m.a.nu.gement
ac;tivltJes locn.ted in a. defin~d ~eo
graphic area. F1rojects include ac-
tions approved by permit Ot' other
regulatory decision a$ \Vell as tederal
and federally assisted activities.
29
j
§ 150S.l9 M;t!.ter.
··},~n.tter" includes for purposes o!
P&rt 1504:
(s.) With resoect. to the Envt:·on-
mente.l Prot.cction .. .\gency, 9-Tlj." ~re
posed leg!.sla.tion, project, &ct1on or
regulation ~.s those tenns are used 1n
Section 309\n) o! the Cjean Air Act
(~2 u.s.c. 7509i.
(b) With. respect tv all other a.&en-
cies.· any proposed rn.E-Jor federal
act!o:t to which section 102~2><C> o!
NE? A applies.
§ 1508.20 Mitigation.
"~!itigation .. includes:
Ca> Avoiding the !mpa.ct altogether
by not ta.kins a certa.i.Tl a.ction or
par~.oS of a.n act!on.
Cb> Mtnix:Uzi.-,g impacts by llmiting
the degree or magnitude o! the
action and lts implementation.
(i:) Recti!Yi.Vl;;' the 1mps.ct by re-
p!Liring~ rehabiHtating. o: restoring
the a.!!ected environment.
Cd) Reduci..Tlg or ·elimfns.ting the
tmps.ct over t.it:e. by pr~s~rvation
e..nd maintenance operations during
the ll!e of the c.ction..
<e> Compensating fer the Impact
by replacing or providing substitute
resou!·ces or en,;iror.mer:t.S. ,.
§ 1SOS.21 NEPA proceu.
"NE? A process" means all meas-
ures necessary !or complia..""lce with
the requirements o! Section 2 and
Title I o! NEP A.
§ 1508.22 Nolie~ of intent.
"Notice of !nlent'' mea.r..s a. notice
th~t e.n envlronmental impact state-
ment will be prepared e.nd consid·
ered. The notice shall briefly:
Ca) Describe the p:roposed a.ction
and possible alterna.ttves.
(b) Describe the agency's proposed
seeping process including whethc:r,
when, and where a.ny seeping meet-
ing will he held.
<c> Sta.te the name a.nd s.ddress ot
a person wt thin the agency who can
a.n.swer questions about the proposed
s.ct1on and the environmental impact
statement.
§ 1509.23 Proposal.
"Proposal" exists o.t that. stage in
the development o! n.n action v.•hen
an agency subJect to the Act ha.s a
30
goa.! and 1s activels• pt~;>::-.rin~ to
make co~ decision on O:ie or more rd-
temat!v~ means of accorn?l:Shin:;;
that goal n...."ld the effec~ ca..~ be
zr.eanini;"!ully eva.lue.~ed. Pr~;>a:-~t!c::
c! an environmcn:.a.l ir.-.;,:..::: st::.~t.~·
ment on a. proposal should be tirr.e~
<§ 1562.5) so ~hat the !1na.l Eta~.e:ncnt
me.y be completed in time for the
stt.tement to be included L."'l !l...~~; rec-
ommendation or report en the pro-
posal. A proposrJ. rna:; exist 1!1 !e.c: P.S
v.-ell r.s by a.r;ency declaration that
one exlst.s.
§ 150S.24 Referrinx !i~ency.
"Referring agency" means the ted-
era.! agency which has re!c:"!'ed any
ma.tter to the Council a:tcr a. deter-
m.L"lat.io:l tha.t the ma.tter is ur.sa.t\s-
fa.ctory from the s~d:poin~ o!
public health or welia.re or envirc.n-
n::entn.l Quality.
§ 1508.25 Scope.
Scope cor.sists of the r2J1;e vf ~:.c
tior.s. tlternatives, ;.nd i.:np~~ t<• "e
considered 1n a.n ent1ror..l"ilet":~I:.1
1mp3.Ct statement. The s~~a ot z...~
!ndh1dua.l sta.tecent. ma.y d~;>enci o::
its relationships to other s""~te=e~~~
(§~1502.20 a.nd 15JJ.2S) T·) d:i.~~-
mine the sco;>e ot env.i&o~e:u ... ~:
i!ltpa.ct state1nent.s, agencies sha1!
co:l.Slder 3 types cf actions, 3 typ:~~
o! a.ltem:1.tives. a.nd 3 typ~ ot izn·
pacts. They include:
(a.i Actions (oth.;r than unconnect-
ed single actions> v.·hlch may be:
< 1 > Con..11ected actions, which
means thn.t they a.re closely related
and tl1ere!ore should be discussed t.1
the same ilr.ps.ct stn.tement. ActlorJ.S
are connected if they:
(i) Automatically t-rjlg&er other ::..~
tions which may require enviro::J.-
mental impact stn.tement.s. ··
(ii) Cannot or will not procr:eC::
unless other a.ctlons are tD.kt:n pre:·;:.
ou.sly or simultaneously.
Ciil> Are interdepencc~t pa.rts ot a
larier action fi.fid depend on t~"1e
larger action for t.heU" just1!ica.t1on.
(2) Cumulative r..ctions. whi!:.h
when viewed with other pro::>osed !:.C-
tions ha.\'e cumuls.tivel~· sisni!icEw.;.t
impacts and should therefo:;:-e be dis-
cussed ln the same impact s~t.e·
ment.
(3) Slmll ,;r e.ctior.s, which wh~:-"!n
~.
• 1. ; . ., \ . ,.
-(~\
I
./
~ rq
\1ew-ed 'Witt other rea.son!:.bly !ore-
seer.ble or proposed agency actions.
ha.v~ sbnllu·itles that pro•tide a b2.Sis
tor e·;::&J.ua.~i their envlrc:lm~:lta.l
co"CSeQuamci~ togeth·::r. such as
coc:u:n"n timing or geoif'3.phy. ~-V'}
e.genc:y mo.y wish to ana.l!!Ze these
a.ct.!ons ln the same ~act state-
ment. It ahoUld do so wheil the best
way to ~esa a.cieQua.t.ely the ccm-
b1n:d i:n;lacts of simUar actions or
reasonable alternatives to su::h ac·
tlor.a is to treat them in a B1niile
impact statement.
Cb> Alt~ma.tlves. which i."'lclude: <1>
No action ~tem.s.tlve. (2) Other rea-
so~ble coursea cl actions. ·c3> Mlti·
ption ces.sures <not in the pro·
posed action>.
<c> Impacts, which may be: <l>
Direct.. C2> Indirect. C3> Cu."n~tive.
§ 1SCS.26 Speciel expertiDe.
.. Special expertise,. means statuto·
rY responsibility. agen~y mission, or
related prOif'&m e~perience.
§ 1508.%7 Signifi.:anHy.
.. Sign1!lC2.Ilt!y" 2.5 used in NEPA
reQuires ccnside:a.tions of both con-
text and l.i''ltensity:
(a.) Conte::z:L This means that the
s!gni!lci!.nce o! S..Yl action must be
r.nc:.i~'Zed in &cverc:J contexts such a!; ·
society as a whole Chums..'1, na.tion-
aJ), the a!!ected region, the a!!ected.
lnt.arests, and the local!ty. Signlti·
ca.nce varies '1=.-ith the setting o! the
prop0a.ed action. Par instance, 1n the
case ot a. site-speci!ic action, sign1!1·
can~ would usually depend upon
the e!!ects in the locale rather tha.n
1n the world 2S a. -whole. Both short-
a.nd long-term et!ects a.re relevant.
.Cb) Inten.ritv. nus re!ers to the se-
ve:-1ty o! imp.a.ct. Responsible o!fi-
ciala must bear in mind that more
than one n.&ency may mo.ke decisions
about p!U"tial aspects o! a m.a.jo:-
aclion. The following should be con-
sidered in eva.lua.tL.""lg 1nt.ens1ty:
Cl) Impacts that may be beth
beneficl&l and adver.se. A stgni!lca.nt
e!!e<:t m.a.y e:rJ.st even lf the Federal
a.genr.y believes that on balance the
e!!ect will be bene!1cia.l. •
(2) The degree to which the pro-
posed action o..!!eets public health or
sa!ety~ ·
(3) UniQue chara.cteri.sti:::s o~ t!:e
geoc;ra.phic ?.res. such a.s p:-o:d.:~:y ·::o
historic or cul tu:a.l re.sourco?s, ;:.n.r:':
la.nds. pri:ne !armla.."'ld:i. wetla:~ds.
wild end scenic rivers, or ~oloi,'ically
criticz.l ~ee..s.
(~) Tne deit'ee to which· th~ et;·E:cts
on the Q.UA.l.lty of the h\L.uc"l.."'l en;:i--
rcnment are likely to be hi;h.ly c;on·
troversls.l.
(5) The der;ree to wh!ch the ;:.ds.s!-
b!e e!tects on the hullU:l en·..-..ron·
ment are hi::-nly uncer:.a.i::l o.: 1Ir1olve
unique or un!:or.own risl{S.
( 6) ":1'le de~ee to which the a.ction
mas est.Abli.sb a preced~nt tor tuture .
actions with si~"Ili!i~...nt e!teot:i or
represents a decisJ.:)il !n pri.t."-lci;>le
about a. !uture conside::-a.tio!'l.
(7) Whethez-the a.ctlo~"'l is rel3.tad
to othe:-actior.3 with i::ldividu.:ill~· b.-
si~!l~t b~t CU:c:lula.tiV~}y s!,;t"L:.f!-
cs.nt i.:n:;lacts. Si;ni!i:-ance exists i: 1t
is reasonable to ant.icipa.te a. CU."':!.~~
tiveiy s1im1tica.."'lt impact on tr:.~ en,,i·
ronrnent. Significar.ce ctt.r~ot be
avoided by tcrn:Ung a.n action ~r:-;;lo·.
ra.r~r or by ·ore~ 1t down into
sm:ill co::np::ment pa.r"'..s .
< 8 > T~e degree to which the r..ct~o::
may 2/.iversely P.!f~ct distrlcts, sites.
higC.w~ys. struct\.U'eS, c; oo;~-=·~t:i
listed in or eligible !or listi.:.~ 1:.. t.-.~
Nation2.1 Register of Historic ?l:=:.ccs
1 r ·~-t ....... ~~-.... a·· or may cause oss o c .... ., ~ '"""'"·~·--
signi!ica.."'lt scientific, cultu..-al, or his-
torical resources.
( 9) The degree to which the ~tion
may adversely a!fect an enda..."'l;ertd
or tr..reat.ened species or its habiut
that b.s.s been de~ennined to be criti-
cal undr.r the Ends.D.6e:r;;:c ~e::ies
Act c! 1973.
ClO) Whether the a..c:ticn th:rea.t.~"ZtS
a \iol~tion of FcdE:ra.l. Stc.r.e. u-:: 1o'!a.!
ls.,.::: or requirem.:nt:i .!.!npo:;....~ t.o~ tr.~
protection ot the en\.:u-onr.o.ent. ·... ·
§ 150S.2S Tlerin.-.
"Tiering'¥ reier.:; to the cov~ra~~ ot
general matters 1n broader en·.iron·
mental impact st~temenb <such z..>
na.tio:1a.l prognun or policy s~'\te·
ments) with .subsequent rur:-ow\!.r
statements or ern·ircnmenta.l :a...""1~1Y·
ses <such as r·~sions.l or b~in\.'lda
program statements or ult1tr.a:elj·
site-specific statements) l"'lCO:'?I~~t
ing by reference the gener~ d.iscus·
sions e.nd concentrating so!eh· on
S1
.•
the Issues specific to the statem~nt
subs-equentlY prepared. Tiering i.s S.;l·
proprinte when the sequence of
stn.te.'""ent:.; or &l&a.lyses is:
(a) !'"rom a. prognun, pln.!'!, or policy
envlrvt'.mental im;~a..ct statement to a.
pro•rrn.rn. pl:m·, or policy stn.tement
or analysis o! less~r scope or to a
site-specUic statement or ana.lysi:;.
(b) From an envlronmenta.L1mpact
sta.tement on a. specific action a.t a.."l
early staie <such as need and site se·
lection> to a supplement <which is
preferred) or a subsequent state-.
rnent or a.nalysis at a late.::· stage
<such as envlrorunentnl m.itl!:ra.tion).-
Tler~.ng in such ca.ses 1s e.ppropria.te
when it helps the lead agency to
focus on the issues which are ripe
for decision a.nd exclude !ron:, con·
sidera.Uon issues alres.dy decided or
not yet. ripe.
lnaax
Att-·-···---~·--1~01.2
Action--·~---·--1~1.18, 1601.1~
Ac:\lon-rordM ··---···.. 1~.1. uo2.1
Aeorn.IOA ··--.. -....... -•• -l~OO.I(nl. 1~00.1\(h),
Uot.3"
Alf.:r.e<~ <!:D·tt;-or.:::en~--· uo:ue<n. 1~o:Z.15
A.ffec~ -------· l~01.l. UOU Al.:\1:1 At.lthortL;,o •• ____ l£00.6
A:wr.cr Ca;!~tll~7 ""'""-UG1.2i&l, 1501.2
MIA':~· CGI:IPlir .. "lc~.-.... l$!rl.1
An!"'cy Procedi.U'CI ... -•• ~ UC•~.l. U!r..J
A:1nc1 Rc.IDONI:.&laL)' ·-1~.5
Alc.emadwu .... ---·--150~.l(C), 1:!0~.~.
161)2.\:ltcl. ~~o:.a.
14(1-),l{t), 1~&.2.
l~.:.tdl. 1&(\il.l~Cbl
AP~ncssc-e, ............... -........ 1~2.10~k>. uo::.u. ·
U02.24
.Appllcan: ....... -·····-··--~ 15CU.4tc1X1l. l'Ot.4~bl,
160!.111&). l!i02.lll!b),
1~3.l(aXll. uo•.3tel,
1~.1(-;1), 1)04.!-ia),
uo•.&uu
Appi)· lii:J>h Ea:ly In 1501.:!
Lht Proc: I:'M.
Ca&.cror1c:al I:~c.hulon...... 1SOU.4tpl, 1600.!10o,
1~1.4(&), 160i.3Cbl,
1604.4
C'lrculatlna o! uo2.111. uoe.3
Envtranment&llmpa.ct
Sta:.cn:~~nt.
C1LUll:ed Iruo~Uon..... 1!107 .3te>
• Cle&n AJ.r t.C'\ ..................... 150~.1. 1~4.1Pis.)
Comb~ Docw:en1.1.... 1:·00.4Co), 1!100.'5(1),
1~.4
Commcnunsr .............. -...... uo:.111. UO!.~. 1!103.2,
1503.3, 1.!\Col.~. 1.!\0S.Git)
Conaclt&Llon lb00.4(t.l. 1300 . .!1!11),
Rcquire~nent. l601.7ta.XISI. 1~02.2.5
ContexL --··-·---·--···· 1:108~1k)
CoopeBWiil Arene:r ......... 1S00.5tbl, l~l.l<b>,
1.!101.6Ce>. 1~1.6tf>.
l~l.iS. 1~03,HaXll. /
lt-03.2. 1~3.3.
150tUcc>. l508.6Ca>.
150i.6
Coe~·Beneftt ...................... 1~2.23
COWI~U on 1600.~. 1~01.~1el.
EnvironmtnLal QU&llty, l!iOUUJ. UOl.lllcJ,
32
~ l~C2.PicX•ll, 1604.1.
l&ot.2, l.!lt>t.3.
1~oe.ocn. uoa.P.
1~0C.lote>. 1~oa •. 11.
l.!IO'l.3,160U, 1~11.~4
!n~t
Cover fi!lc:ct-............. _ ....... !!'ret!:.::llaJ. ! .. 't62.ll
CWnu:a.uv: Impact·-···-·· l~u!l.':. l:i\iii.:!.\:.~.
Dec!.lionmai.ln; ·---··· De:!lllon ;;otnt.L.-... -•••••
0~11er.:t!nL ................. .__ ..
Drr.! ~ Envt:o!':lr.enl.aJ
Zmpe.:t SI.IL~mrnt.
E"'rly AP~llce Uon oC
NEi'.\.
E:cono:nlc Ertcc::., ............ ..
EUt-:ttve Ual.e ................ ~.
E!f!!Ct.'l .... --................ _ ••
EznerlfetlCies ...... -.. -· .. ··-
E:."ld&n~tcre4 Speelea Ae!. ••
&n~r;y •..••••• -....... _____ _
En·;lrun.-nent&J
A.uc.\m:u:rit.
C.'rwtrorvnc;nt.al·
CCin:leQuenees.
I:l\'lo'lronm~f'\UJ
Cun.suitatlon
Rcqulrement..s.
E:'l\'i ron:r.t'n :.aJ
Doc:1uncn~.
Enviro.nr:u:nta.i Impact
ti~~menL.
E:l\'lron:ner.z..U
P:-otec~lon N:-e:.c~·.
En\'lmnmtnll.l ne ... ·tew
neauirernent.a.
Exped!ter .. _ .................. ..
Fecle1"31 A;:enc>· ............... ..
nlln: -..... -........... _ ...•.• _ •.
Ptna.i E."\v:rorl.l'ltent~~ol
&~npa.::' Su.LJ:rnent.
flnrlln; oC Nt~
oll>tlll.ICILilt 1 mpact,
F1s,'l IUld WlldlUe
Cl'lor:1ln•t!on Act.
F'o:m11.t lor
ErwlronmcnLIJ i~!'a.cl
Sutement.
. Freli!'dom o! In.fon:natlon
Act.
F\lrtlter Oulua.nce ........... .
Generk ..................... -..... ..
~nt:~a.l Sen"!ecs
Adm;ntnre..tlon.
Gco~rra.phte ....... ~ .............. ,
.Or~~oph!ct, .......................... ..
Ha..'ldboolc. ............. -........... .
Hou::ln;: IU'ld Commu.r.Jt.y
'Oe\'t:lo~ment }.ct.
Hwr.IU1 E.nvlrorunent.-... ..
l:n;~:.::u .............................. .
lcplen,enttns: the
Oec1Slon.
lnco:npl~te or
UnavaJls.ble
InCotmMton.
1ncorporn.t.ton 1Jy
Beleren':e.
Index .................................. .
lnc!:&n Trlbea ................... ..
1l';I:J.l~el
l~.l~.i. 1)W.l
UO$.!!bl
UOS.!~a.)
UOl.i(&l
151lU
l~OG.l2
15~2.16. iSCU,
!Soa.Jt
1!\:l~.l~. 1SCII.::'7CbJ(iii
1~~2.16Cel
UJ1.3. 1:-:.n.~l~l.
l501.4(::!. l&ol.7C::>C3:,
lSI)!!.;tl:H~:. !~·:-5.3tb:.
1~G:1.-t 15uil.~. l~~u•··
1~c.u:a
1Ml2.1CXi). l5'J:!.~Ii
1~0~ ... {1:), 1371-J.!I';;l;
l!.:il.'iC•Hti, 1!1\J::.~:..
lSOl.l'.cl
l~Oi:.lO
UOO.<. lS,l,Hcl. 1!-0U.
l~r.:.l. 1!-12.:. 15~:.~.
u.) •. J. ~:.:;:::. '· •~u::.s.
1~2..C.. 15~\:! .... 151:1:.04.
uc:.o. u~:.ui. lll:):.a.
lM::.n. tliOl:::.ll.
l~~:.H.. l~C:US.
130U~. :~:.17.
1SC2.1Z. l~G:!.ln.
l~:.~.l:,~~.~~-
1 SQ;!.2:. l ! .. "!:.:Zl.
:~~::.:-:. l~~.:.:.s.
Jl;)5.2tbif.il, 13~~.~.
1 !."'-i.l. U\!~. U
1~o:.1 u:1. u~.1. l!H•t.:.
l:iu5.'!1C), UQ5.:•,
15~S.!IJ, l5Ci3.:::·::~o)
l!.G\1.4!~). '!~W: .. J.t::!"Ji
l~:JJ."!'c~·,.;zl. l~rJl~::-
15t;.l.~c.;
!.501.8(1:1)(~)
1!1~0:.1:
U()O.!l
l~O:!.:l:tll. !!10:.1.
!!l:ll.4(.,)
1SGil.3. 1.SGil.1\~).
1:.00.~1 !l. 1~01.4(e)
l~DUJ
lSC!.l$
13:1:!.10
l!IOG.am •
1506.";
l!I0::.4tcl(2)
150i1.81bi\~ I
l!I0!:.4Cc>: l>
1SLJ.7(a.)
l!ICIG.l:. 150&.::1
1!-o:.l. 1~:::.:!2. !!.oa.H
1503.E, 1!10&.23( el
1.50~.3
150:1.10<))
l~Ol.:ICdX:Zl, 1.!101.7(£)( ll,
l!ID:!.lS<cl,
1~ :-l. \( e.)!:Z.I\ 1!),
1~03.e4b)(3~lll. uos.s.
l!IO!!.U
~
I
I
I . I
I
I
I
!
I
I
I
!
I
!
·-lndrll. Jnci.:x
Q: I n!e:~t1·-·-...................... UOI!.l'Hb> 1-'ublle Hea!!.h and l~OU
ln:~:-d~IP~l::a.:,· 1 :,1)~.6. 1~02.1, W~l:~:-e.
P'N;»antion. Public lrwoivemenr. .......... H\:11.4te). 1~03.H&i(~;.
lnt.e:'im Acttor.s ................. t~~.l 1!'106.6
Jo::tt lA..S ~eney ............ l:,OUtb), l~UC1.2 .Purpoee .......................... -. U'lO.l. 1:.::1.1. 150:.1.
Judtclu Rnle,· ... _ ....... _ .. l~OG.3 l!.n.t.~
Ju:~~ bl• La .. ·-·--~~.u Pu~ ~r Ae~!on·---·· W)2.~0<d), l~Ol.13
Ll'14 Arwrw:r ·-··---U{I0.6C-:I. 1~01.1• '• Record c.r [)eda:on ........ -l$(1S.2. 1~Z8.1
UIJU. ucn.o. ~ . .:1.1. Rc!c~.-........... --aou. ! :.ot.l. 1~ou.
!~l!.l, U~·U. l501J.:(d)
l:.OIJ.:ZtbX,J, 191.1a4a), Rtla:rtr.1 Ar~nc)· .. -.... -.. ai)U, Uv-l.:.l~U
l~.l(Kot), 1~18 RII:;~CnM tb Cora.mant.t. ... U'l3.4
t.eftalallon .. -··· .. --·· ~~~J). U02.l, 160t.l. Runll!:leoc'-.. .ilcatlon UOI.lh!l
l~.n.uoa1 114a> A~Uon.
L:m!~Ut-n o.., Artlon uou Sclrot!flc l.ccura.cy -150:..!4
DuriDI N'!:PA ~. ~.~----·----I .. J::t.•<a>. l~:Z.IJC;o),
Ll.l\. cf !"r'wpa.nft_ .. ___ uo::.l.O<tt~. 1501.1' 1~.::?.
Loc::U Ill' ~1-C----... UOCI.4tnl. UGO.Mhl, S:o:.i....., •.. -·-···--·-1600.~Cbl, lSOl.ltdl,
1~1.~4XZI, !Mt.~t;J, 1~1.4(~). 1:0!.7,
uo~.~:SJ, 1:S01.'icax1>. l~l.DCI,), lt.OO.aCa.l
UOl.i.\Cci, l!N:.l~cl, S~tlca.n:J.:---· 1$0:!,,1, l~OB.'21
lSOl.UaJ..::J, 1504.'2tsl. · ss:n:.w ....... ·--· .. --1M3.~$
l.s-?4.Mbl,:U, 1504.6, a::u.ll BculMU l~ot.~bX3X\'U
uou :. 1~0 •• 11 AMoc.!A:lON..
MIJM hO.nl .AcUon ... _ ~m.l. 1~1.11 8ocl~ E!!ecu .-.. ·--UOI.!
Na:us.~.e -·--·--· .. ·-· lli"JJ.S s~~rt1se .............. 150!.28
..a..~------······· l·,ou. u~.a.l~3. B~lctt7 uf Co:r.m:nl.l . Uijw.4Cll. l~Ol.3
1600-li suc.e .. ")(! ~1::\de 1 S(l t.tte X'2l,
~ethcdoloiY ____ .......... t!Nl.!U Oeat1nro•ol.l.MI. 15>l3. lt&K2Jc:Ul,
. YlU~----···--·-uo:.utnl, 150'1.16<hl, lt.OU(b)Cli<D
1~.3(4), l~ll.2(1;), !t.a.:.e uuS Loe&l, ___ ... 15v:l."n), 1$00.5!:-.i.
UOS.l, UO •• ~ UOl.:Ce)tll. lSC!.~t~~.
:.\onr.onn; •••. __ , .......... l!IO~i.~\cl, uos.J 1501.5<ci>. Ui1!.7:':-< t-.
N:s.~ionw Hlltbne 150::.::5 15Go.2{:1, l.sYl.1~~~.
J"'~I'V&LUlD Act. uo:'tlC•\!:l. 1~6.-~ ~:.
N•:Jorut.l &rii.&t.: ot U0&.21thiC&l 1~0&.i<l>XS>, l~lia.~.
R1as.orlcal P\t.eea. uou:. 16Cii. u
JiaLu~ or t>.plci.&Dlc !502.16(tl St.&I.C and ~ Fbcal l&Oil.let&)
Ruo~.o:e ,...!.S!Atance Act.
~~"'C=&nu.
Si.l::1ma.:y, ___ ,_,_ ....... -•• 1~00.4(h}, 1~02.\0<bi.
to"" rc: Action .......... , ... _ Ui12.10:c1l, 150'2.1:1 uu:.12
h:::P.o\ PT'oe~ .............. -... !~.:1 S:J:z;~le:::er.t-~ t(' 1!10:l.5<el
Non·Peeei'WJ S:>o:uo:-....... l!JO!.!Udl I:r.vlr:~~enc.2.1 lmp..:t
~~. Ststeme::ts.
fl Jo.:otlC(' or lntcn~ ................ 4~01.7, l:t01.31cl. U08.22
0/olll Clm.:lt.: .... !)!!.. ........ 1~03.!(.,lt2lCI\U, l50!1.l.
7a.ble o: Con~r.~ ............. 1~0:.1 GC:l
\:' T:ehncio;;l~l 1:·02.41 t:i<3)
l!JOi.th t:JtlltU Oe'·~topment.
102 Mor.Jt.:;: ....................... Ut:·~.etox::•. UV!.'Itel 'I'cr:n!.-:o!o;y ...................... w;a.I
O::~tol:-.; Ac:~n1~1es ............ !!JOG.ll Tlenn: ,_ ... _ .................. 150w.·Hil. !~o~.4\tJ.
1"&1:1 LLc'll~ ........................ l!J•:O'J.Va.l, 1!101.7!bl, l50~2il. l5il~.~EI
:502.7 7,:ne l.!:r.ll.l ....................... 1~co.st .. l, l~~i.ltel.
Pla..~r.:,n.z •.....................•...... 1 :10!1.~ tr.1, I !0 1.2( b l, u~t.'icbv.::zi. 1:,u;..o
l5o:: .•• a,, uoa.u Tl:nlnc ... -_ .. __ ,.,_ .. l~Ol."· l!O::Z.S, 1!JCS.1Ci
Polley ......................... -....... 1500,2, \ ~02.4(:,), '1"'T'ea.t1e.s ················-··---···· l!iOS.l1
1~01\.lS,&I When to Prepare IU\ l!JC1.3
PrOtrn-":1 !:1'\\"ITOI\ment.aJ 1~.41 !,, 1!102.4. 1~02.20, Elwlronmentu lmp~t.
1 mpr.:1. St&tcment. 150f:.U SL&t.:c:cn~
Pror~ ............................ 15C2.4, UOa.ll(bJ Wild. 1.."\~ Seenle Riven 1508.l\CbK:I>
Pr"oJe<:U. -·-···-···-·-.. ··-·· 15\18.13 Act.
P!'o:>O&U-.. -.................... 1502.(, 1502.$, Uot.S, WUd!mesa Mt.-............... l~wa.ecb!<U;
l.~GI.2l WrtUna ·---·-.... --l~:!.S
ProDQMd Action .......... -.... t502.10td. ua:.u.
1~0C.2(C)
33
34
THE NATIONAL ENVIRONMENTAL
POLICY ACT OF 1969, AS AMENDED*
An Act 10 c:s:abliJh a naticn:1i policr {o: t.hc er.virr.wmcnt, to provicJ: fnr
tht ntabliahmc:nt ::.£ a Coun::il on C:n\•irnnmen~•l Qu.llit)", a.nd iC\r c·~~~~
purposca.
81 it •nat:td b)• :ia StntJtt t:nd Houu of ke_!Hr:tnltlfi:.•u uf titt Ur:i:t.:
Staus c.f A mtril-4 in Cor.trtu t:Htrr.bltd, Th:~ot thi~ .'.ct rna)' be cit~d ;u th:
''i\"ation•l En\·i:o:u~e:ua.! PCJiicr ,4,ct tJ( 1969. ••
PURPOSE
S1.c. :!. The purpuJes nl lhia Act :ore: To ded;u t a nuionai ;>oliey -..·h:Ch
-..·ili encc.turage prnC•JCti\'C' and cnjO)':able ha.:-rn"lnr belWCC'n rn&:"l aue (,!s
en\·ironmcnt; to p:-omou: dT ur u .... ·hid. will prevent o: elirnin.1!c d~m•:: ..
t~ the en\•ironm:n: a.nd biosphere a.nc stim~l.o te th~ heahh :and ... ·cl!.ln;
ot man: to enrich th: uncierilandins of the ecll!.-.gic:al S)'stem' anci naturai
resource• imporu.nc '~' the Nation; and to esa!:#lah a. Co:..:nc:il or. En,iron·
mcr.ta.l Q~.~~lit~·.
TITLE
OECLARA~ION o; NATIONAL ENViRONMENTAL POUCY
Szc. 101. {a) Thr Cong~ss, recognizing the ~roiound impac~ of rn:o:l't
ae~i\·ity n~ Lhe in::m:l~tions a! &11 r.)mponcnu oi the nat~.:ral .:n,;rm~m:n:.
particubrl)· the p:c.!our.d inf.ucnc~ o( popula.tion ~r(awtl-., high-densl:r ~rba::·
i.z~rion, ind:nui:a.! esp:uuiofl, n:sourtc c':;p;uli.iUior., anc! ne ... · l!lC ~S?ancin;::
t~chr:ulosical sd\'a.r.ce1 ~nd rcc-ogniting funhC'r thr critical· imj.lo::.1ncr o!
resaorinK and m.1ir.u.&ning er.,-ironrr.e:~u.l qu;:.li~)· to d'.e overall wc!£:1.:-e ;o.:;;i
dc,•:l::~~cr.t o! ma~. c:c:lares tha: it :$ ~h: ctm~nuins polit)' o! the rc:.!~:3l
Govemment, in coopcr3~ioa with St;.tr and lc.ca.l 1'0\'ern:ncr.a, and oth~,..
conc'!rned ~n.:blic :1nd prh-ate or-ganintior~s, to uJr ali practica.oi~ mr:otn• a.nc
me~urr:\, inclu.:iin~; financiaJ and technical ush~;..nC'e, in a n1a.nn:r calc:u!.llC'd
t\.1 fcn~er and pror:tot: the t,t"neral wel!a:-e, to cn:ate :a.nd m2.int"lin condition'
under which mar. ar.cl n:uure can ~xh: in producth·c-h:umony, :z.nc.l fulfill
the \Oeh.l. ecCinomi-=, and other· requir:mer.u of pre!.ent 2.nci iuture senen·
tiona 1:' r Am::ric:a ns
(b, In order to r.O\r::· out ·the pC"tlicr set fnrth in thi~ Act, it is the con·
tinuir.g rcspomibi!itr o{ the fcdeul c,.,.ernmt-r.: t'· u~r: i\ll prac-ticJ.bie meam.
c.onsu:ent with uthc:r cuer.tia.l con•ider:uio:u o{ national policy, to irep:-o .. ~c:
and coordin&te F cdc: raJ glans, !unctions, pro;ra.ms1 and n:sourec.s to the:
~:nd that t:1c Nation may-
( 1 ) fulfill th: respon3ibilitic:s of e:1ch generation U· U'\1s~c of tbc
environment ior auccecciing generations;
(2) auure ic•r all American1 sa!r:, healthful, pru.:iuctive, and c.sthctic•lii" .
IUld cuhurally plc::uing surroundings;
( 3) attain the wadeu rar1gc o! benefici:U uses o! the cnv~ronmcn: ..... i~!".·
out dcgTadation, risk to hca.lth or ~cty, or other undcslr:.blc and unin·
tended contcqucncc:s;
( 4) preserve import :ant historic, 'cultural, and natural a.apec:u of our
national herit<lge, a.nd mainwo, wherever pouible1 an c:n\';ronmcnt
which auppQtU diversity, ~nd vv.iety o! individual choice;
(5) achieve a bal:lnc:e bet ... /r~en populaticm and rcwurr:e usc which will
permit high au.ndarda o( lhins and 1. wide 1haring of life's ~enitics:
Uld
( 6) enhance the: quality cA rcnew:1ble re~ourccs and appro3ch the
muip1um atuinoable recyclins oC depleublc n:1ources.
•PuL, 1.. 91-190, '\2 U.S.C. 43~1-<4~~?. ]allu0\1"\' 1. 1970, as amended br
P~b L.9+-52,July3,1975,a.nd Pub.L. 94-83,Au~:.:st9.197!i.
-~ r·
..
J~ t
(c) Tht. Conl~reu r-~ogni.:C'I tha: e.u:h p-:ra.c.n lhCJuld enjoy a healtl'1:ul
environment and that C7.Ch penon n~ & r:s?Q:Uioilit)' to Contribute ~U th:
preterv-.tion and enhancement oC th~ C"nviror.r.:cnt.
Sac:. J 02. Tht: Con«reu authori:.c• ~nd dirccu tha.t, to the fullest r:x:c:nt
p611ible: ( l). the policie;, re:rul~tiuna, :s.nd pukllic. Ia...,, Cl! the United S~ll:•
ahall b\! intcrprc1cd and ad:niniatc:-ed in :~.eeo:daneo: with the volicic:a tel f~rth
in UP~ Acl, and (2} all ascn~ca of the Fedcr~l Co·."Cmmcnt aha.ll-
(A) Ulili:z.e a ayau:mauc:, intc.rdilciplinary a;:~;:~r~ch which will in1ure
the inice~u:d usc of &be nalural ami r.c;.;:iaJ .ciencea and the cnV:ron·
mtn:al c!t-aian ana in pl~nning aAd in deciaior.m..alina whi::h ma.'/ have
aza imp•ct '"' mar. 's en~i.ronment ;
(B) ldcfllily and develop methods-a.nd proc:edurc•, in consuzt:u.ior.
· wi\h th: Council em Environmcnul Qu.Uity eu.abliahed by tide 11 o! thu Act, which will inaurc th~t prcw:ntly unqua.ntifv:.:! environment.a.l
uacnitjc, and v:..l:Jca rz:ay hoe Riven a.ppropria:e considcr.~.tiun in dec:isio:J·
ma.&i~t~ along wi:h economic a.nci tech.nic:.a! considcra.!.iuns;
(CJ ln::lude in every fecoaunenda.tion or report on prCipo:~b !n:-
lcgi.tl:uion and other major Fcde:-al ~ctioru s.ignifu:.:tntly a.s1'ecting the
quality ol the hum~n environment, a. d=ta.il:d JU.Lca;.ent .~:t (Re rc!po:o·
uble ofilcial on-
( i) The en ... ironment:~-1 imp:1c: o! t.~c prop01cd a.cti():>.
(ii} Any :adv~:se cnvironmC"nta! cfic:ch which C"'..·;,ot be ;;,.voided
ahuuld th~. jltopou.l be implemented,
(iii) Ahcmativu to the ptopo6Cd ar.:ivn,
(iv) The rcbtioOJhip between lc.ea.! shon·tcrm UK'$ of m:~.n'1
en,.;runm~nt and the maintenance: ~nd e:ohJ.ncem~;nt of long-t::~
productivity, and
( v) Any irreversible and ir:et:ie,·:~.blc commitmcnn a! n:sra\m:~.t
whid, would be in"'·olvcd in the ?topw~~:d action should it be
implemented. '-
Prior tll na:l!:.ing a.ny dr:t:~.ilrd Jlatemc::::, :he re,j)oraih!.• Fedc:O':.l official
shllll conauh wir.la and obtain du: corr.rno:nu o! J.ny Ft.>dcra.! age::cy which
h:u juritdiction by ~aw or 1pui~l cxpertiae with respect to any em< , :J·
men~l imp:.ac& in\'CJolvcd. Copie, o! auch st:iltcmcnt and the commenu and
view• of the a~provri~t:: Federal, Su.!e, a~d ioc:a.l a;c:ncies, which :a.:-e
authorized to develo',l and en!orr.c' envirotvncnt:a.l 'Lllndarda, Jh:~o.H be
made available to the Prcaidcnt, the CoYncil on EnvironmentJ.l Quality
a.nd to the puLlic :u provided by ae<:tion 552 o! ti:l~ 5, Unhcd Sta;c:~
Cc.de, :o&.nd ah ... ll accompa..,y the propoul through the exhting agency
review proccss..::s;
(d) /\ny detailed sta.tement required under .,ubpa:a.gra?h (c) a!t:r
January 1, 1970, ior a.n? majM Fedc:a.! ac.rio~ funded under ;. p:-ogram
of gr:r.nb 10 Statca £h:.ll n>lt be deemed tc b.: lcg~ilr insufficient .olely
by reu~:m o£ h1v!ng bcc:n prep;;red by a Su.te agency "Or official, if:
(i) the State :I.JJcncy o: c.ffiei:.l h:u ~~tewidc: juriadic:tion and
ha.a the res?onaibilitr !or such a.cuor.,
( ii) the respun1ible Federal official i~mishea guidance ~d pu·
ticip:ltes in aueh preparation,
(iii) tht: reapcmsible Fcden.l c.ffici~l i:ldepeudentl) evalua.tra iuch
Ut.tc:ment prior Ul iu arpro ... ·~l and ado;:nion, a.nd
(iv) ahcr J anua.ry 1, 1976, t.he re,p;lcm,iblc Fr:deral offici:~. I pro·
vides carlr notilk~tion tc.•, and J>Oli::iu the viewa 1.J!, Any other S:a.\e
or any Federal land. -;';;Lna.gement entity of any acti1m or any :lltema·
tive thereto which ITIAY have aignific<:.nt impacts upon such St.atc or
~rrc~ted Fedcr:~-1 lUld man&(tcmc:nt cn~ity and, if there h any dit-
a.greement on auci\ impacu, prepares a written u,,eument of •uch
impacu :~.nd v:e,..•a lor incorporation into such dcu.ilcd &tatemcnt.
The pri'Cc:durca in this tuhparagnph sh:~.ll not relieve the Fcder1-l officW
of hia re•poo,ibil&Lica {or the SGope, objec:th·i'Y, a.nd content oi the entire
statement or of :~.ny oth.;r respon,ibllity under this },r:t; a.nd further, tht.
aubpara.graph doca not a.ffect \he lesal 1ufficiency o£ ltll(cment• prcp:~orc:d
by StaLe asc:ndcs wilh leu chan ~tatcwidc juriadicuon.
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(c) StuJr. cew:!up, :llld dc:Jcr:~-:-AiJjiCUprbtc:. ~hemati•.ltl to n:c.u:n·
mcnd~d co;.:ur.~ of :l.CttCifl in ~n)" ?rnpt.•,:ll which ir.volv:J unresolv:d
conflict\ con.:'!"mi:1g alt'!rnative \!IU of ~,·:Utablc resou:c~t;
f f) Rccl1gn::: the worldwide ar.d long·range ch:ara.ctc:r o! environ·
ment~l prol,icrm and, where: cora:.:ent ~ith the !t~reign poli:y ol th:
Unite-d St:.a·•, le!'ld appropriate &::?;•urt t:) initia.thlc,, re50iuuone, •nd
prn;;ro~ms deaiin:d tu m;u:imi:e ir.tern:ui~,n~l cC'XIpcration in a.ntic:.ip.ati:4:
and preventing a decline in the q01a.!ity c£ nu.nlind'.t world environ..'n:n:;
(&i M:&l.e a\·~l:..ule lO s:~les, C.":l\Jntin, municip:alitiea, institution~,
and indivi::haah, advi~e and in(orr. .. :nic:l usdul in n:at.Oring, ma.int&i:tir.z,
a.nd enhancir.& the quality o£ the cn\·ironmcnt;
{h) lnitia.te a.nd utili1c ccologie&l in!t~rma.rion in the pla.nnieli u.c
devdtJpsnent :>i ruounc•oriented p:-r.:jecu: :1.r.d
( i) As~ist th: CoYncil on En";r:;.::m::nt~ Qu:\lity es:.:lblisiteci by titi:
U ol this Act.
SLc. 103. All agencies ol the Fcde:al Government sh:1.l1 1"'-:"-il?w their pn:~nl
at:..•u&UI"J' authority. ;.drni:,~tr;uive reguiatior.s, :r.nd current puliC'ic:' ariCi pl"')-
ccdurcs lor the purp11ac o! dc:tetminins -...·h~ther ~here ue any deficienc:i~:s o:
iliconsiau:ncica tl':c:rei:1 which prohibit h:!l cnmplia.ncc -·ith the p~r-.,>t•»es ~d
pro\•isions of lbi' .~et and sh•ll propc..-: to the Prc:sidrnt not la.:e: th•n July i.
1971, such rncuuP.s ,u may be nccesn.l')· tu bring their :r.&Jthorit·,-:ar:d polic.ica
i111u wn'orrnity with the intent, put';)05es. ar:ci procedures set (or:h in this Act.
Sec. l 0-f. N<~thi:ag in IC'Ction 102 o: 1 ~3 th~ll in &n)· way alice: the Sj)Ctif.~
statuhlrj' (Jbliga.tions o! 3.r.y Fec!cr41l ~;-:::cy ( 1) to cornflly with criteri& Ol"
$tand:r.rds o! en,·iron:::enta! qualit~·. {:!. to cnordinate or comult with O&.r.)'
,,:hrr Feder.1l or St:l:e-·~~n::y, or (3; ~:' 3.Ct, Ol" rc-frnin fmm :1\:ting contin·
~ten: upon the n:cuanr.;~nd:uiur.s ur crr:;:i~:a.tio~ o£ anr lither Fedr:n.l ur S:at.~
.&ge:tcy.
Stc. !Cl~. The policies and sn:~.h \et !:-rth in this .o\c;: are su~plerr.~::tOirj' to
thCiv. set forth in cxis:i::g ~uthori::r.ti.:.ra o£ Feden.l a.genc:ics.
TITLE ll
COUNCil.. ON ENVIRONMENY'\L QUALln·
Su .. :?~::. The !'rl'!l.:~ .. r.t Jh:dl :r.1ra:: .. : :~• thr: C••nsreu annu:\llr bC"sia.nim;
J OJ!y I, 19i0, 01n I::.r.v;rr.>nmental Q<Ja:; :;-Rr:p ..• rt ( hc,'Cinal tcr rt'i('rrC"d IC• ;u
~he "rcp.,rt"j ... ·hi::h ~:.~il 1et f .. mh ~ 1, :h~ )~t'.Js and condition c·f the ma.j.:.:
n:.tunl, rn:1nmaC:::, ur ;:.J:ercd c:n\'ircm:::e.r.:al cl.u~cs o! the N:uion, including,
but lar>t limited to, the air, tlw 01.qu:uic, ;:-,cludir:g rn:uine, estuarine, :l.nd fre.\h
water, :.~.nd the terrcJ:rial c:nvironmc:n:, including, but not JioniLc:d to, the
forest, d:ybnd, wctb.nc, ra.n:;e, urL:1n, suburban and runl environmr.nt; ( 21
current •nd !orc:xeat.:e trends in the q:..alitr, man:a.gc:mc:nt and \Jtii:ut.ion oi
such environm~r.u anc the effects o! th':·le trends on the soc.ial, econornic, and
other rcquiremenu of the Nation; (3} the adcqua~y ol avail.Wle natur~l re·
S(lurc:.es £or fulfiiCing human and economic requirements of the Na.:i,ln in the
light o£ ex.pcc:tc:d population preuures; t 4) :1. review o{ the: progr-ms anc! •
accivities (including r~gulatory acti .. ities j o{ the F cderal Gcw.:rnmer&t, the
State and loc:r.l guvcrnrncnu, and nor.:;ovcr:uncnta.l cnthies or individuals
with particular reien:nce io Lheir effect o:t the environment 1.nd on the con•
SC:f'\'atign, devclopmcr:t and utilh::nion :::! n:&tunl resources; :Lrtc! ( 5) a. pro·
gram for remedying the deficit:ncies o! cxhcir.3' p:ogr;~ms ar.ci activitie3, tc.-
gether with recommendation~ !or lc:gi.datio:t.
Sc:c. 202. There iJ created in the E.xecuti\•c Office oi the Pre-sident a Coun·
cit <•n Environmental Qu:r.lity { hercind~cr re!crred to 11.1 the "CC>undl").
The Counc.il shall be c:ompos:d o{ three members who alu.U be :Lppointcd by
the Pn:aident to aervc at hia plc:Lsure, br &ncl with the; advi~~ and C:Ot'lsent ui
the Senate. The Pn:sic::nt ahaU design~te one o! the members oi the Council
lo v.rve u Chairman. !a.ch mcmbe: aha:: be a. p.:non who, a.a a resulL o£ his
tn.ining, experience, a.::d auainmenu, h cxc:c:ptionally "'ell qu.alified to
analyze: anq interpret environmental trends and in(onna.tion o( ~11 \:inds • u:; . . .
appra.ase programa :~.nd a.ctivities o! the Feder•l Government in the lighc o{
the pulir.y tel forth in t.i ll~: I o{ this An; to be cmuciuu~ ol :~ond reapon~iv~ '"
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the ..:ientilic, ecunomk, sr.cial, c:Jthe:ic, :&rtc c~:t~:-3.1 need~ and in:c:re1:s o£
the !'\ad?n; :an..! to forr.::ob.t1: ar.ci rectun:nen•: r.:ltion:a.l p('llic:iel tc, prn:nt.tt. t:.~
impro•,ement u! th~ qu:~olity ~i the envinmr.:e:-.t.
Sz.c. 203. The Go~.:n::il may ctn~lety such ,-,ffic~:s and em}1loyees :u :n:~.y be
nrccs&.:lr')' to c:~orry out it: hmcti•.•IH undo:: this A.::. i •~ addition, th~ Council
~..ay c:npl•·r :.nd f1lt. tr.e CO:·n•;'C'nuti"n of su:~ e::;:~rtt and con.tul~r.ts 2.l mar
be neccuuy !rJr thr: c::.m:n~ out of iu functi•~m .:noer thi1 Act, ir. accord·
am:e ""·ith .cctiun 3109 o! titlr ~. United s~ateJ Ct.de ~but withuut n:gz~d
to the l.a.t: sentence lhr.r:u{).
S&c.. 204. h ah:all be th~ d\HY :md function of the Cuuncil-
. l) to auist and aa"·i1e the Pr.~sidC'nt tr• :h: prepan.tiu:1 c.( the F.n·
"ir•Jnmcn,al Q"ality Rc:purt ~qllirc:d by lc:-::;..:n 201 CJf thh titlr-;
• '2} tu gather timelv :md :.utho:-it;ui"·~ i~fom1~tiuu cono:rr.inr:; the
crr.thtitms aod trends in the qu;ality r.f the e:-.virunmen\ ~nth C:ut"'"'f'l \ :anJ
prt.tlpccti\'e, co anal)"%e 1nd iuterpre\ s~.:ch m!ormMion ft•r the pl::'p.J:.e 1,!
d(':~rs:1ining whether ,,,,. h cunditions :.no trC':\ds ue int~rlrriag, : r are
1ilteiy to iuter£cre, with the iichic:\·cr::!:nt vf t~c: ptJiiq· set forth in i:!c: I
u:· this Act, and to cuinpilr: anq 'ubmit ;o t~: President uudie~ r:J:uing
tu such conditions and trem!s; ·
::n ta review ~nd :.ppr:~isc the v:arir,._.$ p:-~r.ams ar.d acti'l.'ities ol the
Ft<dt'nl Govcrnmt'n: in the li~ht o! tl:l! p .. li~y 'e' lnrth in title I of :~1is
An for the ~,urpust: of detc:mininy, the e:~C:\f'!l: tc• which suc-h prog-rJ.ms
a~c.i •ni,•itics <£re contributing tu thl:' £chie,•ement o! such puliq·, and
tr..> m:l£c ret:ommcnd:uionJ to thC' Prc-sidr-nt .... ith rc:spoec:t thereto;
\"') to dcvdop and rf't:omtnenc! lo the P::Jident rational policies cu
foatcr and prom"'e thC' imprcwcmcn: of en·.-:ron:ncnt:~.l quality to ITII'tl
th: c:onscrv:~.:io;.~. wc:i:.l, economic, he<~.lth, ;u:d other requirements ;md
go.;s o! Uac N:ltion;
~!J) to conduc:i tnvutig;uion.t, st1.!d!t•s, sur. :p, rese:uch, :lnd an:~.h·scs
rel;uin~ to c:cutogical s)'itcms a&ad. envir:m~cntal quality;
{ 6 j to document and dcfme ch•n;es in the natural environment, in·
c!OJdins the plant and animal syste~s. :~.:-.d :o ;a.c:cumul:~.:r: ncccss:.1j' cia.t:.
ar,d uther infc.nnation Cor-a. con:in\:in:; •na}j·1i~ cf these changes or
trcrads and au ir.terpretati1m of their un.:ierl1~ns cau,cs;
~ 7) to revort at lc1.1t once nch )"C:U to the President on the st:'ltc and
cc.;ndition o! t~e environment; and
t 8 j to m:lkc ;a.nd furnish such uucirs, ;:-?.;,ru tiwreCin, antl recom·
r..eJ•d~tit.~m with respect lO nuuers ul ;wil~y J.nd legisl:uion ;u the Prc:si·
dent may request.
Sz:.c. :m~. In cJ.ercising iu powers, functicr:.s, :lnd duties under this Act, the
Council ih~ll-
( I) C.:unsu!t with thr. (;itizcm' Ac!"i~'.l~' C·:maait:c:e on Environment.:t1
Q.,.•litr emi.Jiisheci b)· Ex.c:cutive 0:-dcr :-;o. ; !4i2, d:~.tc:d May 29, 1969,
OLO•~ with 1\n:h re?ri!Kntati\'es o( science, incunry, afiricuhmc, labor, con·
~r.·:ui~·n urganiutiuns, St:s.te <Lnd lo-:a.! govemmc:nl.l and other groupo,
:u :~ deems ad,·iaiible; and
{ :!} U~.:t~e, to the fullest elttcnt p~~u:hl:, the Jervit:.:s, fa.c.ilitic:~ :ulC
information (inc:ludinK statistical inf,);:-:n:ou.!~n} of puiJiic a.nd private
~en::ics and organiutions, :a.nd indi"idua.ls, in order that duphcatio:;
oi effort and cxpcmc-tnily he-:~.voided, thus usurins th:~.t the Co:.mcii's
acti";ties will not unnr.ce.u:tril)· O\'erbp or conflict with aimilar a.ctivitica
a\::ho.rized lJy law a1~d performed by cs::~.l.lhhed :~.genries. .
Str:. 206. Mernben o{ the Council shall aer:e full time and ~he Ch:r.irm:~.n
o£ th: Ct~undl sh3ll be compcmaled at the r:~.tc l':o,-ided for l.e\•el II vf t.hc:
Eacc:u!tve Schcduh: P~t.y R:atea (5 U.S.C. 5313). The other memhen a! the
Council ah~U be compenuted at thr rate pro,•ide<: for Lcvd rv o{ the E.xeCU•
tivc s,nedule P~y R:Atca (5 U.S.C. ~315).
Sr.c, 207. The Cuundl m:ay accep' reimhunemc:nta !rom nny prh·alc: nnn ..
prl)nt OJ'Bilnltat.iun or lrom any dep:lnmcnl1 :.gene;·, .:.1r inatrusnent.,Jity of the
fcdcn.l Government, anr State, or local go\'c:mmc:nt, !or the rc::uonablc tr.wd
c:xpenJ.et incurnd by an officer or employee: u[ the C·ouncil in connection with
his attendance at any conlcrence, J.Cmi:ar, or Li:n:lar meeting conducted iCJl'
tho benefit o( the Counc:il.
Sz:.c, 208. The Coundl may ma.kc c):penditurc:a in support of iu intem:~.
tioru.l a.ctivitiu, includir.r expenditures for: : I j intern:aional travc:l; (:2)
acti~·i :i1a in implemenu.tion u£ inlernationai Agre~menu: and ( 3) the lUp·
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port o! inu:milltion&! e.\:daangc: pro¥ranu in the United Sta.le:~ ;.nd l."\ Co:~iJn
r,c,uutrica.
s~c. 209. Tlu:rc an: authori:zed ro b~ appr!lpriat:d to ca.rry o~.&t lhe p:ovi·
aions oi thi.s chaptr.r nul to e:~:co:cd $300,0fJ0 (~;>r fiJc:al y~&r 1970, $700,000
lur fuca! ye.:sr 1971, a.~d $1 ,000,00(1 !or c<L.:h Ss.;.:U year thcrea!tc:T.
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THE ENVIRONMENTAL QUALITY
IMPROVEMENT ACT OF 1970~
TITLE !I-ENVIRONMENTAL QUALITY
{OF THE WATC.?. QlJALliY IMPROVEMENT ACT OF 1974)
SHORT TITLE
Sac. 201. 'Thi.J title m1.y be c.iccd as the "Envin:mmec~ Quz.lity lrr.provc·
meDt Act oi 19i0."
FINDINGS, OECtARATlOHS, AND PURPOSES .
Sac. 202. {a.) The Conan:» nnd.t--
( 1 } That aw:a h:&.a uwed chan get in the -:nviro::.=::n;
(2) 7n&t ma..'ly .of these chazlp rr~y :w'feet the M:!.au-o~i? bet~een
~nand hi.a cnviton=~nt; and
(3) Th;at poopu%Ation in~• ;and urban eonc.e:"'tntion co::.~.:ibut.e
~ctly to po.lluuon ud the derndation oC our ca•·::"Onmc:r.t.
(b) ( 1) The CD~ dcc:lan:a ili.».t there ia a nat:~al polict (I)( t~e t:'\•
vironmcnl which ~idu for &be r:a.ha.ncemcnt o! c:wironmcnu.1 qualiti. nJa ?')U.:y ll cviccncai oy IUlULCI bcn:ot.o(orc cn~ted ~!.&:iniJ I~ the fl~\·en•
tion, abJ.:cmcnt, aDd con&rO! of ea ... ironmcnbl J>jUu~o::, wate:-&r.d l.&nd
~:-ca, tn.~apo:-.. ui.on, and economic and ~gional de· .. t!opment.
(2} Ti.e primary r=pouai~lity for impl~tntntin& t.!:.i.a ~·:-li=y n:ata ...r.:.h Sut:
a:ad loul ~v:mmenu.
( 3 j The Federal Government cneoura 0-ca and •~p?-:>M.J implc:m~r.::loon
of t1'W po!.icy thrll~o~.ih approprialc re:aion.J orga.r.:.Uc:r...a ~t:.bLia.'·u:d under
cxutin,! :.aw.
(c) The purpo.c:a of thh ti Lie are--
( 1} To auur: tha.t each Fedrral drr:artm:n! :l:o::: -.;"enc. · condu~:ing or
auppo:-t.ing public wCJ.ri.' activitiea which a.ffect :~.: envi:onment )hall
implement the poiiciea eau.blhhed undu exiating !;,·.· i.nd
(2) Tu :u::ho:Uc an Office of £n,·!ronmc:nt.al Qo.:ai.:ty, which, nor-wit.l-j.
atandinR any other provision o£ l~w, shall ~rovide :.h.e pro{ e'-'ior.al and
a.dmir..istr:uive ;u.fi fur the Council on E.nvironmcnta..l Quality C'stAbuahed
by Public l.a.w91-190.
OFFICE OF ENVIRO!iMEHTAL QUALITY
Sz.c, ~03. {a) Then: is c:su.bli.t.hcd in thC' Executive or=ce of the President
:a.n offic.e lt-be known u the Office o! Z:n\"ironm::nta.l Q:.:~i')· (heru.ite: in thu
title ~!erred to u the "Office"). The Ch.inna.n o! the w:1neil on E.n-.·iron-
mc.ntal Quality eata.biUhcd by Public Law 91-190 aha.ll ~ t.~e Di~ctor d the
OfScc. There ,h~l be in tht Office a Ih:puty Director wb •h:!.ll be <tp;>ointed
by the Prc.Vicnt, by a:-4 with the a.dvicc r.nd content o( :::: Senate.
(b) Th~ campe~tion o! the Deputy Director aha.ll c~ fuced by the Preai-
dcnt ac a n.tc not in c::a:cc11 ol the annua.! "'r.e oL COr.l;>en.u.t:on payal:rle to the
Dcpury Din:cto:-of t..'le ll.urcau oC the Budp;et.
(c) The Dirc:c.tor u i.uthorizcd to cmpl('y auch office:t ~nd emplo)'ee.J (in·
c:ludinr esperu and con.r.ult.anu) u m:t.y bt: neceuU)' t:> ::r..l.ble the Office to
c:.a.n-y out iu (unc:tioru under t.hia title a:nd Public L.a.•· 9i-190, ex~pt th"&.t
he may employ no mo:-e than 10 apccialim and othe: tx;:r.::-u whhout rcoard
to tht pr?vi•io.r.J o{ mlc 3, Unlt:d Sut.ea Code, governing a.ppointmenta in the
compcucivc .crvic:e, and pay auch •?eci.a.liau and expe(t.l ._.i:nout rc:-ga..--d to the
prQViaiona ol c:ha,pt.er 5 t and aubcha.pter Ill of chapter 53 of such tit.le relating
to d.uaincation a.nd General Schedule pay rates, hut :,;;, tuch 1pecia.lilt or
•PUb. l., 91-22-+, +2 U.S.C. 4-371-43H, April 3, 1970.
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expert ah:UI be p:a,id at :oa rate in exceu of the muimum rate (or CS-18 ol the
Gcncr:~.l S<:hr.dulc-under aection 5330 of title 5.
(d) In c:arrying out hia functions the Director sh:~.ll :u.siat and ad .. ;JC th'=
f>rcsidenc on poiki.;s aud pr'O'~J o( tl1c Fcdc:r.a.l Covcmmcsat alicecint
cnvircnf!\entat quality Di'-
(!,) P~ding the prc.leu.iona.l :.n~ . .di"Riniura.ti'Ye sta.; a.no:! auppor: !or
the Council on Enviro:uncnw Qu:Uity e~tahlisncd by Public La.w 91-1 s-o;
(2) Aaaiuing the f'cdcra! agenciea and dcpart."11enta in appn.isin; the
eff:ctiveneu oC cxiatinK &nd propow:d {acilici.:a, progra..om, policie•, a.r.d
;.ctiviuca o! tite f'edcr:Ll Covcmmcnt. and tbc.c s~ific. -majc;t" projec:..'
dcsiilraa.tcd by &he President which dn not rr:---auin: indivi.iua.l projwct
authoriu.:ion, by Ct ngrcu, which a.ficct cnvironrncnw q'IUI.litr: .
(3) Reviewing the a.ciequa.c:y N cxutin~ 1yalenu f~r moni:OMi ~d
predic:tinr cn,-iror,mcntal change• in order to ad\ieve cffcetlvo: caw:r.&.,ic:
and efiident use o{ reaearch f~ilities and other reloOUrcet;
( 4) Promoting the adv:u\ccmcnt of s.cicntiiic: know led~ o£ tJ:.e cficc::.s
ol action• and tcchnoiC\g)' on the environment and encour:liC the develop-
ment of the meatu ~o prevent or r~ducc advcne eifccta t.bat c::u:b.n,;Cl·
the health :t.nd well-being o{ mar.;
( 5) Auining in coordinating a.naong the Federal depi!.l'tmc:tta a.n'
~g~ncica thou: program• and a.c:tivitica wbac:h aireet. protect, and im?""'-.
cnviranmcnul qu~~.lhy;
( 6) A.uiatinB the F ccleral deparuncn~ and ag-enc:iea i:). ·the develop-
ment and intei'Tcl:ltionship of environmenul quality c:ritcr"U a.nd aa.nd·
:lrds cat.ablialu:d through the: Fedcr.al Gtwcmmenl;
( 7) CoHcc:tin~. <olbting, ar.alyzing, and interprc:tin.; dat2. a.nd in·
fonnatio11 on cn,;ronm,;ntJ.l qua.lit)', CCC'IIu 0ic:J rc•carch, and c-.-:a.lu~tion.
( c j The Director is ~uthurizcd to contn.c.t with ;:JUhlic or private OLJcnci'!l,
imtiluticma, and orgar.iz:uium. and with individu;o!a without reg:s.:d to aco:ti:.·~
3G 18 and 3709 oi the Rc .. ised Statutes (31 U.S.C. 529; 4-1 'li.S.C. 5} iw
carrytng out hia !unctioru.
REPORT
Stc 20;. Ca~:h r:nvirunrnen:;al Qu•lity Repu• t r~quircd bt ?ublic I._a...,.
91-190 ah<Lll, upon tr:ansmilt<~l to Conl!ress, ~ rdc:rrcd tc. c:~.eh u~r.din!
··ummittc:c having jurisdictiun 0\'C:r a.nr p~rt o( the auujc:ct matter o! t..~.:
Report.
AUTHORIZATION
Sr.c. 205. There arc hereby authoritc:d to be 4ppropri:uc:d not to exec~
$5CJO,CJOO for the fisr.1l year ending june 30, 19701 nQt to cxc:ed ;750,()0oj Cc::'
the facll.l year cndmtc june 30, 1971, no: 'o exceed ~1,250,000 fo:-the~
year ending June 30, 1972, and not to exc:.ced $1,!,00,000 for the iW::.U yc~::
endirag June 30, 1973. These authori::ationa a.re in ac:ldilion to thoac cor.~r.cd
in Public Law 91-190.
~pprovcd April ~' 1970.
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THE CLEAN AIR ACT § 309*
§ 7609. Policy review
(a) The Admir.istr:ator shull rP\"iew and commc.:r.l. in writing on the l'!nviron·
mental irr:pta:t o~ any mott.er relating to duties llnd responsibilities grant.ed
pursuMnt \o thil c:hl.pt.er or othe: proviaiona CJ{ th!> 1\Ul.horily of thts Acmini.!;o
trat.o:-, conw.ined in MY (1) legislation propoeed by &.t&J Fe-:i(!:-nl department or
agency, (2) newly aut.hori:.ed Fed~ral proj~t.!l fo1· ~ouslruction and nny mnjnr
Federal ngenc:y ~ion (uther than o. project !or cor.stn.:ction) to which section
4332\2/.C) qf thi.=l title applies. a:1ci (3) propoMd r"gulation~ publishe-0 by ony
departr.tent or 1\~enc,· of the Fede~11l Go·1ernmenL. Such written commtmt
ahall be rnada p~blic: at. the conclusion of nny such review.
. Cbl In the event the Administrator dc~rminK thal auy auc:h legisl~:ion.
action. or re~tUlation i.i unsatia!a:torJ from the at.andpoint. of public: heo.ith or
wc-l!ue or environmental quality, he shall publi!lh his·dcterrnin!lt.ion nnd llu!
matter shall be roferred t.l t..\.att Council on Envirunment.al Quality.
•July 14. 1955, c:. 300. § 30&, as added Dec. 31, Hl70. Pub. L. 91-604 § \2tn), ·t2
U.S.C. ~ 7Gll9 (19i0J.
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42
Executav• OrO.r 11514. March 5, 1i70
P~OTECTION AND ENHANCEMENT OF
ENVIRONMENTAL QUALITY
Alo am•nded by Executive Order 11991. (SK~ 2(g) and (~(h)):
May 74, 1977• ·
· By virtue of the authority. vtst~ in me a.s Pr~icent cf the
Unit..~ Statt!lllnnrl ir. fur ..here. nee o! thP pur~ e.nd po!i::)' of t.ha
Nur.ionlil Environmental Policy Act. of 1969 (Public Law No.
91-1~0. npproved Jo.nuttry 1. 19701, it. is ordereci tu1 follows:
Section 1. Po!ir-y. The F(.-dere.! G-lvernment shall provide lel..ld·
erahip in protecting and f'nhan:ir.g th~: q!Jnlity of tht: !'ar.icn's
ttn,·ironment to auat.ain and enri:h huma."l life. Feder&L a'=endes
ahall initiat-E! measures needed to di:-e-:t their policies, pl~ns and
pro&ra..'ni 110 a.s to mf*t national environmental s:oal;. The
C!Quncil on Environment.cl Qual:ty, through th~ Ch11irmar., ah!!.lt
ad\•ise= and nssi.-.t tht: Prt-sidenUn leiacir:,; t.hi, nat.ior.ni effort.
Sec. 2. Rtsp<.m.sibt'iitifs of Frr:!.~ra! ct:Mciu. Conr.onant with
Title 1 of the NnLionnl Environ:ner.:.a.l Policy Act 01· 19i:i9. he:ro-
u{\.(:r refen-ed to a.'l the "Ac~''. the heads of F~eral ~e:v:!~~
11hall:
(a) Monitor. e"·alu.nto, and control on a continuing ba.ai!t their
egc:nc:iea' activities s.:o u to prot.ec: a:od enh:tnce the qualit:-· c{
the cn\·ircnment. Such Mctivitiu !'hAll include lhOk" di"-clf:d to
c:ontrollin;:-pollution and cnhnn:infi the environment tmd th:~
d.ai;:ntod to aceomp!i.!oh c:her p:o3Tnm objective!!' wr.:ch :r.ny
aCiect. t.ho qull.lit.y of the en\ironm!'nt. A1:unci~ lihall de,·nl~l'
p:CZfM'ii .snd :nt:.a..IJ\lr~ to pro:~ and er.h.a.,~ enviro~mer.:..~!
quality and shill! ~ proer!.~ i:l O\~l.in; t.he fpt....:iiie cbjr...:·
tivet or KU::h ftCtivi:ies. H~da oi a~,;;enci•.:s shall c:ona:.:lt v.it;:
51ppropriat.r: Federal, St.u:.e IU'IG loc.:~.! agencie:t in c:.orryir.~ ,:,ul
their acth-ities as t.he)' afl'e<:t. t.he qu::Uity o! the environme:-:t.
(b) Develo? prc-..~ure.-to ensure the fulles: practicable fl~'li·
sion o{ timely public information and underllt.llndin; ol Feci;m1l
plans and prognuns with environmental impa~ in order to
obt&.ita the vi.eww of int.er!'lted part.ie6, These proettdure1 shall
include, whenever 6ppropriate, pro,'iaion for public hearinga,
and ahnll pro\'ide the public with r~h:vant. informatio::1, including'
information on alt.ernativn cou~ of r&ction. Federal abanci~
sho.ll alao encourn;e Stet.e and loeal qenciN t.o adopt aimil01r
proce-durea for informing tho public concerning th£~ir act.i\'if.ies
affecting the quality of the en\ironment.. ·
(c) lMure that information rl"'.ssrdinit existing o~ poter.t.ial
environment.& problema and cor. trol methods develop6d ns jlart
of r~arch, development, demonstration. t.oat, or evaluat.~on
acLi\'iti~ is made avnilable to Fl.'Cie:-alt~ftencit'oS, S~t.t!s, eo11nti~.
municipaliLiM, inatituUona, nnd other ent.iliC&, 11.5 approp.-in~.
"'l"he Preamble t.o Executive Order 11991 has iollows:
By virtue of the authority vedted in me by the C-onstitution e.nd
statutes of the United Stat.es o( America, nnd 8.!1 President o( lhc
United States of Amcrico, in furtherance of lhe purpoM and
policy of the Na~ionnl Em•ironment.al Policy Act of 1969, tu;
amended (42 U.S.C. 43~1 ct ~cq.J, the Enviroaunc11t.al Quality
·Improvement. Act of 1070 (~:?. U.S.C, 4371 tt 1eq.), nnd Scc•,ion 309
o( the Cl.:an Air Act., 11.1 amen~ed (42 U.S.C. l8fj7h-7), it i.s hereby
ordered a.s follows:
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(c!) Review theil' ag~nc:ies' at.o.tu:.ory au:.:-to:ity, odministrutive
regulALions. policiea, and prtX~u~. inclu~in& tho!!e r~ln~in.; to
loanll, gr-anta, et~ntract.a. le~. licen;;es, o: p'!nnit:a. Ln order til
iJentify any ceficier.t::i~ cr in~onsi»t~nd~ t~r.:rei.n whi::h prc-
hibil Clr limit full cocpliAnc& with t~, pu~~~ and prcNisionl' of
th£• Ac-... A rt!p:»rt _on this review &nd t.h.: correc:tivo action!! t.A~:en
or planr.cc!, iz:u:ludin,; auch mouu:ee 1.0 ~ proj)Oflt'd to Lhe Preai·
d•nt ss iTIAY ~ n~C~eM~ry to brini\ t!n!r au!hority ar.d poli.:it>s
into confc:-man:e with the intent, pur;:-~. end p:-octodure:~ ci
th.t Act. 1hall 1:• provided ·"' th: Council on Environmeu.:.al
Quality not later thar. Seploember 1, 1970.
(e) E.~ngc in uchanse of dAta a:ld ~toarch rt:Rulu, L"lC
C:OOF*rllt.e with ..-•nciet of other iOvemmtn:.a tu foater the
pu:-poHe o( th8 Act.
<0 Proceed, in coordinat.ion with other o.;encir:a. with actions
re-quired ,,y aeetion 102 of the Act.
(,g) ln carryi~ out their reeponsibilites under the Act and this
O!"de:-. comply with !h• regula~iona is.•uee b;-· tht-Council exc:'!~t.
wh.re auch compli.ance would be iccor.ais~etn:. with ar.ntutory
requirem~nr.a.
Se.:. 3. Rt~poMibilitica ol Council Oil Er.t•I,.Jrtmell(c:/ Quality.
The Council on En\oironm"lntal Q-.J.a.lity eh&!l:
laJ E\'aluate exl.ting and proposed policif:6 ::md activiti~ of tht"
Fed!*r~l Government diro:tcd to the co:H-roi o! pollution tand the-
cnhan~~ment o( tha environrnant and to t..~e acc,:nplishment. o!
other-objtlctiv.:e which affec:. the quAlity o:· the t:nvironm~nt.
ThiJ lihllll include continuing r.e .. iew o! pr~eeures emr,loycd ir.
the develc•pmcr.t and enforcement oi FcsienJ stAndards affi.'Ct.in~
t:nvironm~n:.nl quality. Buecl upo:1 such l!';rJuat.iont'l the Council
shall, where appro?r~!.!l. recommend t.:l :he Pre-sident pol:cit:<>
and progrrr.C~t to a;:l'·dcv~ more cft"c-:ti·.-e pro:.&:tion anJ f:nhance-
ment of t:n'l.rironmental quality e.nd !hall. ·..,•here npp:-opriate,
seek Tef'Olution C( Jignificant e::'\Vi:"Cr.rnen~ is.'JUE:t!.
(bl n~omrot:nd fa the ?reaident anc t.o :,h;: ngcni!i.:s priodtics
amon• ~rt,l(ram.s dMignc:cl for tho controi cf pc.Hution ROd for
e:nh11ncrm~nt t~i th• e~wircnme:n:.,
{cl !>.:1.e.mniratt tht" nfle\i for new polid~s and programtt for
dealing w1th environmcnU&l p;:oblem• nc~ being ccc:.-quot.cly
add~.
(di Conduct, &S it de~rtnint..'S tf.l r"': npprop~ll:.t', public ht!urini:S
or conferences on iaaul:l:) of e1wiror.me~~-u ai;nif!cance.
(t-1 ?romo~ the devc:lapment !l.n:! U.Gt! \lf ir.di:es and :nonito:-inr.
ey~:L(:m' (l.l to 8!!5c-:M. cnvironm~nt..•: cond~:!\lns and trends. (21 to
prec!i::t the en\ironmental impact of pro~ public and private
ac:tion.r., and (3) to dctl!rmine the cfiocth·eneM of programs for
prutccting and enhancing environmental quality.
II') Coordinate Fodera! progra::11 rela~ to cnvir.:~nmcnt.sl
quslity.
(&) Ac!vW. and a.aial the Preeid,mt and the cgcncies in achiev·
ing in~mationsl cooperation for dealin& ·~.;th eM•ironm~ntal
problem&, und.,r lht! ioreirn policy guidan~ of the Secretary of
St.ath.
(h) lsaue regulations to Ft!dernl agencies for the imp!emer.t.a-
tion of thv procedural provision~ of the Act (42 U.S.C. 4332{2)).
Such regulationa 1ha'.l ba develo~ after consultation with
affected agenciea and a."ter auch public h!aringo u may be
appropriate. They will be designed t.o male~ the anvironmt=n~l
impact at.ac.ument proceu more WU!{ul r.o dod!i:>nmakers and the
public:: and to reduce paperwork and th~ acCllmulation of
ea&.ran\!Out bo.ckground data., in orde: to emphosiu-the nefo<i to
(tX:ua on real envircnmen~l is!lues and alternatives. The\' ";11
~uire impact at.atercent.s to b'! concise, clca:-, And to the ·point.,
and aupportcd by evidence th!\t agencies ~~we made the nece&-
;;lry -enVironment.ol ano.ly~~el\. The Counci! shall include in its
rer,ulatlona ·proeedurt~~t (1) for lh~ early prepar!ltion of environ·
mr.nll\1 impttct stat.emenu, and (21 for the referral 1.0. the Council
o( c:cmClictB between agencie~ cr.mc-eming t!':~ implcnwnt.ntion of
the National Environmental Policy Act of!%!', M nm('ndt.-d, nnd
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Section 309 of the C\P.an Air }.ct. 11.1 nmendc..od. io: the Council'•
reeomr:tandat.ion .. to :heir prom?t resolution.
(i) lsaue auch other inat.ruetior..s to no:uncica, a:ui roquest auch
reporta and other information from thern, as may hoe required t.o
carry out t.h• C..:Ouncil't re.pr.·n1ibilit.ies under th• Act.
(j) AMwt th•'P,..ident. in pntpa:0::-1;-the a.nnual EnviroDmental
Quality Report provided ior i.D 5-e<:tton 201 of the Ae-...
(k) F~ter inveatiaation•, atud~es. eurvays, n:M;trch, and ma!y.
au relat~ to (i) ecollosicalsyttec:s and environment.al quality,
(ii) the impact of new and chancing technologiN. thereoo, and (iii)
moa.ns of preventin; or reduo:ir.a advarse eifect.a from such
tcc:hnoloriee. •
~. 4. AtnendJMnt• of E.O. 11J7!. uecutive Ordt~r No. 110:'72
of May 29, l9li9, includin;; the-headin~ t...~er&::~!, ia hereby
amended:
(1) By aubltit.ut.ing for the term "the En,:ironment.al Quality
Council". wherever it QCCUn, :h~ followini: "t.he Cabin'!t Com·
mittee on the Environment".
(Zj By aubstituting f'or the ~r!:'l "the Council''. wherever it
occurs. the folluwin~r. ••the Ca!:>ine: Commit~".
(3) By inMrting in aub&ection (0 oi seetior. 101, after "Buci;e~,".
the following: "the Director of the Office or Science and
Technology.".
(4) By aubltit.uting for euhMction (g) or ~eetion 101 the
foUowin,:
"(g) 'rne Chllirmnn of' the Council on Environrnont.al QuAlity
(esU&bli.ahed by Public Law 91-l9Ct shall~&uaia~ t.he Pre6id.,nt. in
directing tho affairs of the Cobinet. Commit.t.ec."
(5) by·deleting tubMction (c) o! teetion 102..
(6) By aubetit.utini for .. the Office o( Scienco and T~hnology",
in section HJ.I, the fcllowin:: "tht Council on Environmen:.aJ
QuAlity (ettabiiahed by Public Law 91-190)".
('7) By aubitituting for "(herein~'Ur refen-ed to as the 'Com·
mittee')". in Hetion 201, the foU07oif16: "Cheroinalter reft!rnd to
u the 'Citiuma' Committee')''.
(8} By subatit.uti:lg for the term ":he Commit.:H", wherever it
occura, the following: "the Citi.uns' Commit.tee".
-----------· ·-·-... "'···· -.. -.... _.,......_, __ ··~-··-· .. ~ '"~·--......... ________ ... "'
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