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USE PERMITS FOR NATIONAL FOREST LANDS
WEDNESDAY, APRIL 10, 1974
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON FORESTS
OF THE COMMITTEE ON AGRICULTURE,
The subcommittee met, pursuant to notice, at 2 p.m., in room 1301, Longworth House Office Building, Hon. John R. Rarick (chairman of the subcommittee) presiding.
Present: Representatives Rarick, Melcher, Goodling, and Baker. Also present: Fowler West, staff director, and Anita Brown, staff assistant.
Mr. RARICK. The subcommittee will come to order.
The bill before us today, H.R. 3174, introduced by our colleague from California, B. F. Sisk, proposes "to establish certain policies with respect to certain use permits for national forest lands."
The legislation before us addresses the contractual arrangement between the Federal Government and those individuals who obtain permits for use of lands owned by the Government. The bill seeks to establish a possessory interest for any individual who acquires or constructs structures, fixtures, or improvements on national forest lands providing all incidents of ownership, except legal title, for such acquisition or construction of these structures, fixtures, or improvements to these individuals and further providing that such possessory interest cannot be taken for public use without just compensation.
The bill raises several interesting legal questions which the subcommittee will want answered. Generally speaking, we will be interested in determining the nature of the present contractual arrangements, the specific changes advocated by the legislation before us, and the value both to the interest of the permittee and the Federal Government of each suggested change.
Basically, the subcommittee recognizes the necessity of protecting the permittee and his interests; however, it is clear that the land is part of the national forest system and as such belongs to all of the people. Thus, the interests of the Federal Government must also be taken into account and must also be protected.
[The bill H.R. 3174 introduced by Mr. Sisk, and the U.S. Department of Agriculture report follow:]
H. R. 3174
IN THE HOUSE OF REPRESENTATIVES
JANUARY 29, 1973
Mr. SISK introduced the following bill; which was referred to the Committee on Agriculture
To establish certain policies with respect to certain use permits
for national forest lands.
Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That any person who has prior to the date of enactment of 4 this Act acquired or constructed, or who after such date 5 acquires or constructs, pursuant to any permit issued by the 6 Secretary of Agriculture, any structure, fixture, or improve7 ment of any national forest lands shall have a possessory 8 interest therein which shall consist of all incidents of owner9 ship except legal title, which, except as hereinafter provided, 10 shall be vested in the United States. Such possessory interest shall not be construed to include or imply any authority,
1 privilege, or right to operate or engage in any business or 2 other activity, and the use or enjoyment of any structure, 3 fixture, or improvement in which the concessioner has a 4 possessory interest shall be wholly subject to the applicable 5 provisions of the permit and of laws and regulations relating 6 to the lands. Such possessory interest shall not be extin7 guished by the expiration or other termination of the permit 8 (including failure to renew or extend) and may not be 9 taken for public use without just compensation. Such pos10 sessory interest may be assigned, transferred, encumbered, or relinquished. Unless otherwise provided by agreement 12 of the parties just compensation shall be the amount equal 13 to the sound value of such structure, fixture, or improvement 14 at the time of taking by the United States determined upon the basis of reconstruction costs less depreciation evidenced 16 by its condition and respective serviceability in comparison 17 with a new unit of like kind, but not to exceed fair market 18 value.
DEPARTMENT OF AGRICULTURE,
OFFICE OF THE SECRETARY, Washington, D.C., April 8, 1974.
Hon. W. R. POAGE,
Chairman, Committee on Agriculture,
DEAR MR. CHAIRMAN: As you requested, here is our report on H.R. 3174, a bill "To establish certain policies with respect to certain use permits for national forest lands."
The Department of Agriculture recommends that H.R. 3174 not be enacted. H.R. 3174 would provide that any person who, pursuant to any permit issued by the Secretary of Agriculture, acquires or constructs structures, fixtures, or improvements on National Forest lands shall have a possessory interest therein. That interest would consist of all incidents of ownership except legal title which, except as provided in the bill, would be vested in the United States. It would not include or imply any authority, privilege or right to operate or engage in any business or other activity. The concessioner's use or enjoyment of any structure, fixture, or improvement in which he has a possessory interest would be wholly subject to the applicable provisions of his permit and of laws and regulations relating to National Forest lands.
The possessory interest which would be established by the bill would not be extinguished by expiration or other termination of the permit, including failure to renew or extend it. Such possessory interest could not be taken for public use without just compensation. It could be assigned, transferred, encumbered, or relinquished. Just compensation could be determined by agreement of the parties involved. If not determined by agreement, just compensation would be an amount equal to the sound value of such structures, fixture, or improvement at the time of taking by the United States. The sound value would be determined on the basis of reconstruction costs less depreciation evidenced by its condition and respective serviceability in comparison with a new unit of like kind. It could not exceed fair market value.
About 86,000 special use and grazing permits issued by the Forest Service in this Department presently authorize use of National Forest lands for a wide variety of purposes. Most of these permits involve permittee-built and owned improvements of some kind. The value of these involvements could exceed $1 billion.
National Forest permits are legally drawn and executed agreements between this Department and the permit holders. These permits specifically set forth what, if any, obligations the Federal Government will have for compensating the permittee for improvements built on the permit area area upon the expiration or termination of the permit. They also specify the rights and obligations of the permittee as to the removal of any improvements upon such expiration or termination.
These permits are of two general types insofar as duration is concerned. One group is terminable at any time and the other is issued for a specified term of years. None of the permits provides for any compensation to the permittee when the permit is terminable at any time or where the specified term of the permit has expired.
The permittees who have acquired or placed structures and improvements on the National Forest lands have done so under known and agreed to provisions of their permits. In many instances it is known that the permittee's need for use of the area or the period of use of the area to be allowed will be temporary or for a limited time only. To give these permittees the possessory interest and entitlement to compensation as H.R. 3174 would do, would bestow on them an asset or windfall that was not contemplated when they accepted their permits.
Use of the National Forest under a permit is a privilege extended to a relatively small number of people under specific conditions. If permittees were granted a possessory interest in the structures and improvements that could not be extinguished without compensation at the expiration or termination of the permit, they would apparently have a right to retain the improvements or structures in place. This would in effect give permittees vested rights in the use of land itself. Thus existing permits, would be converted into grants of permanent rights, even though existing permit provisions in accord with existing law provide otherwise.
The result of these provisions would be to give private interests priority over public interests in management of National Forests lands. We issue permits for specific uses at particular sites, dependent on the use being consistent with other existing and foreseeable resource uses and needs. We have found that the kinds of uses that can and should be permitted on given areas depend on factors that are changing rather than static in nature. If every permittee with structures and improvements on National Forest lands were given a possessory interest, we would lose the flexibility to accommodate general public needs. The only way we could terminate private uses would be to spend general funds to acquire the interests involved.
H.R. 3174 would therefore create for the Federal Government a major new financial obligation to provide compensation for structures and improvements. At the same time it would provide a windfall to permit holders. The effect of such an obligation would be to discourage issuance of any new permits or authorization of new improvements where a higher public use could be foreseen in the future. It would also effectively discourage full development of National Forest range lands carried out in cooperation with grazing permittees because of the new financial obligation it would place on the government to provide compensation for structures and improvements. Assignment of possessory interests in structures and improvements could also lead to claims of a right of compensation when permit stipulations are revised to meet environmental standards and provide protection of other National Forest resources and values. For example many grazing permittees feel there is a strong argument favoring some level of com