95-8236. Excessing of Lands within the Fort Berthold Reservation of the Three Affiliated Tribes at Lake Sakakawea and the Standing Rock Sioux Tribe Reservation at Lake Oahe  

  • [Federal Register Volume 60, Number 68 (Monday, April 10, 1995)]
    [Proposed Rules]
    [Pages 18069-18071]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-8236]
    
    
    
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    DEPARTMENT OF DEFENSE
    
    Department of the Army
    Corps of Engineers
    
    33 CFR Part 211
    
    
    Excessing of Lands within the Fort Berthold Reservation of the 
    Three Affiliated Tribes at Lake Sakakawea and the Standing Rock Sioux 
    Tribe Reservation at Lake Oahe
    
    AGENCY: Army Corps of Engineers, DOD.
    
    ACTION: Proposed rule.
    
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    SUMMARY: The Corps of Engineers proposes to expand its policy regarding 
    excess lands with Indian reservations. This action flows from 
    Congressional intent expressed in Public Law 102-575, language in 
    Public Law 103-211 encouraging the Corps to proceed with the Department 
    of the Interior to identify excess lands and transfer them to the 
    Tribes, the President's polices regarding Native Americans, and our 
    desire to give to the Tribes as much interest in the project lands at 
    Lakes Sakakawea and Oahe as possible under existing law. If approved, 
    this policy will enable the Corps to retain sufficient real property 
    interests in certain Corps administered lands to fulfill project 
    purposes, yet declare certain other interests in the lands excess to 
    project needs, thereby permitting eventual transfer to the Department 
    of Interior to be held in trust for the Tribes.
    
    DATES: Comments must be received on or before July 10, 1995; dates for 
    public hearings will be announced to the public at a later date.
    
    ADDRESSES: Comments should be mailed to U.S. Army Corps of Engineers 
    District, Omaha, ATTN: CEMRO-OP-TN (Mike George), 215 North 17th 
    Street, Omaha, NE 68102-4978. Addresses for public hearings will be 
    announced to the public at a later date.
    
    FOR FURTHER INFORMATION CONTACT: Mike George at (402) 221-3988.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        As part of the Garrison Diversion Unit Commission, authorized by 
    P.L. 98-360, the Joint Tribal Advisory Committee (JTAC) was formed for 
    the purpose of assessing impacts to the Three Affiliated Tribes (TAT) 
    of the Fort Berthold Reservation and the Standing Rock Sioux Tribe 
    (SRST) resulting from the construction of the Garrison Dam/Lake 
    Sakakawea Project and the Oahe Dam and Lake Project. In its 
    recommendations, the JTAC stated that [[Page 18070]] some former Indian 
    lands should be returned to the tribes.
        The criteria used by the JTAC in identifying lands for return to 
    the tribes was based on a contour elevation which approximated the 
    reservoir maximum operating pool. As recommended in the Final Report of 
    the Joint Tribal Advisory Committee, the Omaha District conducted a 
    ``Special Assessment of Project Lands'' with the intent of identifying 
    project lands which would not have been acquired under current 
    acquisition criteria. The ruling guide was the 1971 Joint Acquisition 
    Policy adopted by the Secretary of Army and Secretary of Interior and 
    recorded in 32 CFR 644.4 and 43 CFR part 8. As a result of the Special 
    Assessment, 7,583 acres at lake Sakakawea and 3,218 acres at Lake Oahe 
    were identified as lands which would not have been acquired under 
    current acquisition criteria. Further analysis found that even though 
    these lands would not have been acquired under current acquisition 
    guidelines, some were nonetheless currently committed to project 
    purposes such as recreation or fish and wildlife management. Corps 
    policy, as expressed in Engineer Regulation (ER) 1130-2-400, provides 
    that lands which otherwise would be excess (because they do not fall 
    within current acquisition guidelines), but which are committed to 
    valid project purposes, will not be declared excess. At Lakes Sakakawea 
    and Oahe, 1,692 and 2,832 acres, respectively, were so identified. In 
    addition, some lands were encumbered by outgrants of interests in the 
    lands, such as leases and licenses.
        In 1989, in accordance with the policy expressed in ER 1130-2-400, 
    the Secretary of Army decided to exclude the lands devoted to 
    recreation or wildlife purposes, but to otherwise transfer the balance 
    (5,891 acres at Lake Sakakawea and 386 acres at Lake Oahe). A report of 
    excess was completed and the property was transferred to the GSA which, 
    in turn, transferred it to the Department of the Interior to be held in 
    trust for the tribes in accordance with P.L. 93-599. P.L. 93-599 
    provides that excess federal lands within the reservation boundaries of 
    a federally-recognized tribe be transferred to the Department of the 
    Interior to be held in trust for that tribe. The TAT accepted the 
    transfer of 5,878.25 acres at Lake Sakakawea (the 5,891 acre figure 
    mentioned above was adjusted and refined when property descriptions 
    were prepared), the SRST, however, rejected the transfer of 386 acres 
    at Lake Oahe. The transfer to the TAT was completed in July, 1992.
        On October 30, 1992, the President signed the ``Reclamation Project 
    Authorization and Adjustment Act'' (P.L. 102-575) into law. Title XXXV 
    of this Law, ``The Three Affiliated Tribes and Standing Rock Sioux 
    Tribe Equitable Compensation Act'' (106 Stat. 4731), specified that 
    administrative jurisdiction over all lands above a specific contour 
    (more or less the reservoir maximum operating pool) would be 
    transferred from the Army to the Department of the Interior. Interior 
    was then required to offer the former owners or their heirs (including 
    tribal members, individual allottees, and non-Indians) a right to 
    repurchase these lands. Any lands not repurchased were to be offered to 
    the Tribes for purchase. The Army attempted to transfer administrative 
    jurisdiction over the property to the Department of Interior in October 
    1993, but the Department of Interior did not formally accept the 
    transfer. The land transfer provisions of the Equitable Compensation 
    Act were repealed on February 12, 1994 as part of the California 
    Earthquake Emergency Appropriations Act (section 407 of Public Law 103-
    211). Legislative history cited excessive costs of the proposed 
    transfer as the reason for the repeal.
        The repeal of the land transfer provisions of the equitable 
    Compensation Act included a proviso that ``the U.S. Army Corps of 
    Engineers should proceed with the Secretary of Interior to designate 
    excess lands and transfer them pursuant to Public Law 93-599.'' Again, 
    P.L. 93-599 envisions the transfer of excess Federal lands within 
    Indian reservations to the Department of the Interior to hold in trust 
    for the tribes.
        As indicated, the Corps had determined previously that application 
    of the existing excessing policy, as expressed in ER 1130-2-400, would 
    not result in designation of additional excess lands. Because of the 
    expression of congressional intent found in Public Laws 102-575 and 
    103-211, and the great public interest in this issue, the Assistant 
    Secretary of the Army (ASA(CW)) decided to look again at this issue and 
    to determine whether a new policy could be developed that would take 
    into account the competing interests, and allow us to declare certain 
    interests in real estate not necessary for project purposes to be 
    excess.
        Based on input from the North and South Dakota congressional 
    delegations, state government, the Tribes, special interest groups, the 
    public and others, the Office of the ASA(CW) developed proposed 
    criteria for excessing certain interests in land for purposes of 
    further public discussion. Under this concept, the Corps would retain 
    only such interests in lands as are necessary for project purposes and 
    transfer the remaining interests to GSA for ultimate disposition to the 
    Department of the Interior for the benefit of the Tribes. In 
    identifying the lands that could be transferred, the following 
    criteria/factors would be considered: (1) Investments made by others in 
    the property; (2) the need to maintain access to public and private 
    land; (3) the need to maintain municipal and rural water supply 
    systems; (4) precedential implications. Furthermore, the Office of the 
    ASA(CW) proposed that only lands acquired from the SRST and TAT should 
    be considered for excessing.
    
    Public Input
    
        The ASA(CW) held public meetings in North and South Dakota in June 
    of 1994 to solicit public input on the proposed criteria. Written input 
    was also solicited and received. A Summary of Public Input can be 
    examined. A general discussion of the public input follows:
        Most commentors, whether they favored or disfavored the proposed 
    action, urged more public and state government participation in this 
    effort, and encouraged an open process.
        Many commentors expressed concerns regarding continued access to 
    shoreline for recreation purposes and grazing. Many commentors also 
    noted concerns regarding existing recreation areas. Some of these 
    commentors expressed the view that recreation areas should remain in 
    government hands to guarantee continued public use.
        Some commentors stated that lands on which the government had 
    expended tax dollars should remain open to the public. Others stated 
    their desire that lands on which private investments have been made 
    should be withheld from transfer, even though those lands were merely 
    leased from the Corps.
        Many commentors stated that the repeal of the Equitable 
    Compensation Act was a broken promise to the Indians. Many also 
    expressed the need for the government to redress the flooding of Indian 
    communities when the projects were built. Some commentors noted that 
    the interests or investments of lessees on Corps lands should not be 
    protected in perpetuity, because those interests are, by nature, only 
    temporary.
        Many commentors stated that lands should be returned to non-Indian 
    former owners also.
        Some commentors were concerned that this action would increase 
    existing jurisdictional confusion. Other [[Page 18071]] commentors 
    questioned the precedential implications of this action.
    
    Test
    
        As a result of the public input received, the ASA(CW) determined 
    that the proposed criteria were appropriate, but that they should be 
    tested by practical application. Corps headquarters directed the Omaha 
    District to randomly sample 10 parcels of former tribal land at Lake 
    Oahe and Lake Sakakawea an apply the four criteria/factors mentioned 
    above to each parcel to illustrate, by example, the effect of 
    implementing this policy.
        The Omaha District selected 10 sections (one square mile) of land 
    at each reservoir that contained former tribal lands. Once the sections 
    were chosen, a map was prepared showing the relationship of the former 
    tribal land to all other project lands within that section.
        Applying a 2.5 acre blockout using close tangents above the contour 
    of the maximum operating pool, parcels were identified which could be 
    considered candidates for transfer. Each of these former tribal tracts 
    were then inventoried, and the four mentioned criteria were applied to 
    the candidate transfer parcels. A matrix was prepared for the purpose 
    of summarizing the parcels and providing a basis for comparison.
        The findings of this study indicate that along the 828 miles of 
    shoreline at lake Sakakawea, using these criteria, there would be less 
    than 800 acres available for excess. The findings at Lake Oahe indicate 
    that along the 265 miles of shoreline less than 1,600 acres would be 
    available for excess. Depending on the application of the above 
    mentioned criteria, these numbers will likely be less.
        The results of the study, as well as the maps prepared for the 
    study, are on file at the Omaha District office, and may be examined.
    
    Conclusion
    
        After reviewing and considering the public input received and upon 
    examining the results of this study, the Acting Assistant Secretary of 
    the Army (Civil Works), in consultation with the Commander, U.S. Army 
    Corps of Engineers, Missouri River Division and the Commander, U.S. 
    Army Corps of Engineers, Omaha District, determined that the three of 
    the four proposed criteria were valid criteria/factors that should be 
    considered in determining which lands could be declared excess at Lakes 
    Sakakawea and Oahe. The fourth criterion, ``consider precedential 
    implications,'' was deemed unnecessary since this rule is limited to 
    Corps lands within the Standing Rock Sioux Reservation and the Fort 
    Berthold Reservation of the Three Affiliated Tribes and does not apply 
    to other Corps projects. Also, the ASA(CW) determined that it would be 
    appropriate and desirable to consider all former trust lands, allotted 
    as well as tribal, for excessing for the following reasons: Inclusion 
    of all trust lands is consistent with the manner in which lands were 
    acquired for the project, and it creates more manageable land units for 
    both the tribe and the Corps of Engineers. Further, including all 
    former trust lands would be consistent with congressional intent.
    
    Public Participation
    
        Dates and addresses for public meetings will be announced at a 
    later date.
        Although this document is a notice of proposed rulemaking that 
    solicits public comment, the Corps of Engineers has concluded that the 
    regulations proposed herein are interpretative and that the notice and 
    public procedure requirements of 5 U.S.C. 553 do not apply. 
    Accordingly, these proposed regulations do not constitute regulations 
    subject to the Regulatory Flexibility Act. The requirements of 
    Executive Order No. 12291 do not apply to these procedures. These 
    regulations do not constitute a ``major rule within the meaning of the 
    Executive Order.''
    
    List of Subjects in 33 CFR Part 211
    
        Claims, Flood control, Indian reservations, Public lands, Real 
    property acquisition, Reservoirs, Rights-of-way, Waterworks.
    
        For the reasons set forth in the preamble, the Corps of Engineers 
    proposes to amend 33 CFR Part 211, as set forth below:
    
    Part 211--Real Estate Activities of the Corps of Engineers in 
    Connection with Civil Works Projects
    
        1. The authority citation for Sec. 211.148 is added to read as 
    follows:
    
        Authority: Section 211.148 issued under 40 U.S.C. 483, 486.
    
        2. A new center heading and Sec. 211.148 are added, to read as 
    follows:
    
    Excessing of Lands Within Indian Reservations
    
    
    Sec. 211.148  Excessing of lands within the Fort Berthold Reservation 
    of the Three Affiliated Tribes at Lake Sakakawea and the Standing Rock 
    Sioux Tribe Reservation at Lake Oahe.
    
        For the projects at Lake Oahe and Lake Sakakawea, interests in real 
    estate that are not required for project purposes may be considered 
    excess to project purposes when:
        (a) The lands lie within the external boundaries of the Standing 
    Rock Sioux Tribe Reservation or the Fort Berthold Reservation of the 
    Three Affiliated Tribes;
        (b) The lands are former trust lands, either allotted or tribal, 
    acquired for the project; and
        (c) Appropriate interests in the lands may be retained, or 
    conditions imposed, as are necessary to preserve the integrity of 
    legislatively authorized project operations; provided:
        (1) There has been no substantial capital investment in the 
    property which cannot be recovered by the investor prior to excessing;
        (2) There will be no unreasonable impact on access to public and 
    private land; and
        (3) There will be no unreasonable impact on municipal and rural 
    water supply systems.
    
        Dated: March 23, 1995.
    
        Approved:
    Elizabeth L. Fagot,
    Deputy Director of Real Estate.
    [FR Doc. 95-8236 Filed 4-7-95; 8:45 am]
    BILLING CODE 3710-62-M
    
    

Document Information

Published:
04/10/1995
Department:
Engineers Corps
Entry Type:
Proposed Rule
Action:
Proposed rule.
Document Number:
95-8236
Dates:
Comments must be received on or before July 10, 1995; dates for public hearings will be announced to the public at a later date.
Pages:
18069-18071 (3 pages)
PDF File:
95-8236.pdf
CFR: (1)
33 CFR 211.148