(d) Before any such exchange under this section shall be effected, notice of the contemplated exchange, describing the lands involved, shall be published by the Secretary of the Interior once each week for four successive weeks in some newspaper of general circulation in the county or counties in which may be situated the lands to be accepted, and in the same manner in some like newspaper published in any county in which may be situated any lands to be given in such exchange; lands conveyed to the United States under this subchapter shall, upon acceptance of title, become public lands, and if located within the exterior boundaries of a grazing district they shall become a part of the district within the boundaries of which they are located: Provided, That either party to an exchange based upon equal value under this section may make reservations of minerals, easements, or rights of use. Where reservations are made in lands conveyed either to or by the United States the right to enjoy them shall be subject to such reasonable conditions respecting ingress and egress and the use of the surface of the land as may be deemed necessary. Where mineral reservations are made by the grantor in lands conveyed by the United States, it shall be so stipulated in the patent, and any person who prospects for or acquires the right to mine and remove the reserved mineral deposits may enter and occupy so much of the surface as may be required for all purposes incident to the prospecting for, mining and removal of the minerals therefrom, and may mine and remove such minerals, upon payment to the owner of the surface for damages caused to the land and improvements thereon. No fee shall be charged for any exchange of land made under this subchapter except one-half of the cost of publishing notice of a proposed exchange as herein provided. (June 28, 1934, ch. 865, § 8, 48 Stat. 1272; June 26, 1936, ch. 842, title I, § 3, 49 Stat. 1976; June 19, 1948. ch, 548, § 1. 62 Stat. 533.)

U.S. DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SOLICITOR, Washington, D.C., December 16, 1958.

To: Regional Solicitor, Denver, Colorado.
From: Associate Solicitor, Division of Public Lands.
Subject: State Exchange under Taylor Grazing Act, Proposed exchange of min-
erals between State Board of Land Commissioners and Bureau of Land
Management.

This responds to your memorandum of November 18 on the above subject in which the following question is presented:

May the State of Colorado, through its State Board of Land Commissioners, make an exchange under the provisions of Section 8 of the Taylor Grazing Act, of the separate mineral estate owned by the State in certain specified lands, for a comparable mineral estate in federal lands elsewhere in Colorado?

It appears that title to the surface of the state school lands in question has been or will be conveyed by the State of Colorado to the State Land Acquisition Commission, a new state agency responsible for acquiring title to all lands and interests in lands, presumably for eventual donation and transfer to the United States as the site for the Air Force Academy in Colorado.

As we read Section 8 of the Taylor Grazing Act, the apparent purpose of the exchange provisions was to help improve land management by improving the land (surface) ownership pattern, and what is there contemplated is an exchange of non-federally owned land for public domain land. The term "land" is used in its most comprehensive sense as including the surface and subsurface soil and rocks, the unsevered minerals in place, vegetation growing on the surface and water and water courses on or in the land. The only reference to minerals in subsections (c) and (d) of section 8 relates to their reservation by the exchange applicant or by the United States under specified conditions.

Although the severed mineral estate is frequently included in the term "lands" for many purposes, it does not clearly appear to have been so included in the Taylor Act for exchange purposes. It is readily conceivable of course that situations may arise where an exchange of mineral estates would facilitate land administration but it is not apparent that Congress intended to authorize such exchanges under Section 8. When Congress has intended to permit exchanges of lands and "interests in lands" amounting to less than free hold estate, it has so indicated in unmistakeable terms. Thus, the Forest Exchange Act of March 20, 1922 (16 U.S.C. 485) authorizes an exchange of privately owned land for other national forest land, or for "an equal value of timber within the national forests of the same State..." And the act of August 13, 1949 (63 Stat. 605; 25 U.S.C. 622) for the

benefit of the Pueblo and Canoncito Navajo Indians clearly authorizes the Secretary of the Interior for the purpose of consolidation of Indian lands "to exchange any lands or interests therein, including improvement and water rights . . . for other lands, water rights, and improvements of similar value" in New Mexico.

I reach the same opinion that you did, namely, that a prior severed mineral estate is not within the meaning of the term "lands" as used in the exchange provisions of the Taylor Grazing Act. Nor am I aware of any authority under which the separate mineral interest, if acquired by the Bureau of Land Management in an exchange, could be transferred to the Air Force. One suggestion, if it is feasible, is for the State Board of Land Commissioners to reacquire title to the land in question and then offer the land and mineral interests in a Section 8 exchange. Upon consummation of such exchange the offered land, as public domain, could thereafter be withdrawn and transferred to Air Force administration under E. O. 10355, without concern for mineral development thereon which could be precluded in the withdrawal order.

Another solution, if the State lacks authority by reason of its own laws to convey, might be through legislation by the State authorizing transfer of the mineral estate to accompany transfer of the land for Air Force Academy purposes. This solution will depend upon the status of the lands for they may be lands granted to the State under the provisions of the act of January 25, 1927 (44 Stat. 1026; 43 U.S.C. 870, et seq.) in which event Congressional legislation also would be required. (See Subsection (b) of Section 1 of the act of January 25, 1927.)

A further solution might be special legislation by the Congress authorizing an exchange of the minerals for an equal value of "public domain" minerals, or even lands, title to the State minerals then merging with the title to the transferred site lands. This likewise may require legislation by the State.

I am somewhat puzzled as to the State's authority to convey the minerals in an exchange through the State Board of Land Commissioners when that same Board doubts its authority to convey the minerals in a conveyance of the land title. CHARLES M. SOLLER,

Associate Solicitor, Division of Public Lands.

ADMINISTRATION'S PROPOSAL FOR NEW LEGISLATION DEALING WITH EXCHANGES OF LAND AND MINERAL INTERESTS, AS CONTAINED IN RELEVANT PORTION OF H.R. 5224, 94TH CONGRESS

SEC 213. ACQUISITION OF LAND

(a) The Secretary is authorized to acquire, by purchase, exchange, donation, or otherwise, lands or interests therein where necessary for proper management of the national resource lands.

(b) Acquisitions pursuant to this Act shall be consistent with applicable land use plans prepared by the Secretary under section 103 of this Act.

(c) In exercising the exchange authority granted by subsection (a) of this section, the Secretary may accept title to any non-Federal land or interests therein and in exchange therefore he may convey to the grantor of such land or interests any national resource lands or interests therein which, under section 202 of this Act, he finds proper for transfer out of Federal ownership and which are located in the same State as the non-Federal land to be acquired. The values of the lands so exchanged either shall be equal, or if they are not equal, shall be equalized by the payment of money to the grantor or to the Secretary as the circumstances require, provided that payment does not exceed 20 percent of the total value of the lands transferred out of Federal ownership.

(d) Lands acquired by exchange under this section or section 301(c) which are within the boundaries of units of the National Forest System may be transferred to the Secretary of Agriculture for administration as part of, and in accordance with laws, rules, and regulations applicable to, the National Forest System. Lands acquired by exchange under this section or section 301 (c) which are within the boundaries of national park, wildlife refuge, wild and scenic rivers, trails, or any other system established by Act of Congress may be transferred to the appropriate agency head for administration as part of, and in accordance with the laws, rules, and regulations applicable to, such system.

(e) Lands and interests in lands acquired pursuant to this section or section 301 (c) shall, upon acceptance of title, become national resource lands, and, for the administration of public land laws not repealed by this Act, shall become public lands. If such acquired lands or interests in lands are located within the

exterior boundaries of a grazing district established pursuant to section 1 of the Taylor Grazing Act (48 Stat. 1269), as amended, they shall become a part of that district.

EXCHANGE AUTHORITY PROVISIONS OF PROPOSED PUBLIC LAND MANAGEMENT POLICY ACT OF 1975, AS SET FORTH IN SUBCOMMITTEE PRINT No. 2, SUBCOMMITTEE ON PUBLIC LANDS, AUGUST 13, 1975

EXCHANGES

SEC. 206. Anything set forth in section 203 (a) through (g) to the contrary notwithstanding and without compliance with the provisions of section 203 (a) through (g):

(a) A tract of public land or interests therein may be disposed of by exchange by the Secretary and a tract of land or interests therein within the National Forest System may be disposed of by exchange by the Secretary of Agriculture where the Secretary concerned determines that the public interest will be best served and better land management will result by making that exchange: Provided, That in such determination the Secretary concerned shall give full consideration to the needs of State and local people, including needs for lands for the economy, community expansion, recreation areas, food, fiber, and minerals: Provided further, That lands which are part of the National Forest System may be exchanged under the authority of this section only for lands within units of the National Forest System.

(b) In exercising the exchange authority granted by subsection (a) or by section 205 (a), the Secretary concerned may accept title to any non-Federal land or interests therein in exchange for such land, or interests therein which he finds proper for transfer out of Federal ownership and which are located in the same State as the non-Federal land to be acquired. The values of the lands so exchanged either shall be equal, or if they are not equal, the values shall be equalized by the payment of money to the grantor or to the Secretary concerned as the circumstances require so long as payment does not exceed 20 per centum of the total value of the lands transferred out of Federal ownership. The Secretary concerned shall make every effort to reduce the amount of the payment of money to as small an amount as possible.

(c) Lands acquired by exchange under this section by the Secretary which are within the boundaries of the National Forest System may be transferred to the Secretary of Agriculture and shall become National Forest System lands and subject to all the laws, rules, and regulations applicable to the National Forest System. Lands acquired by exchange by the Secretary under this section which are within the boundaries of national park, wildlife refuge, wild and scenic rivers, trails, or any other system established by Act of Congress may be transferred to the appropriate agency head for administration as part of, and in accordance with the laws, rules, and regulations applicable to such system.

EXCHANGE PROVISIONS OF S. 507, 94тH CONGRESS

SEC. 213. ACQUISITION OF LAND.-(a) The Secretary is authorized to acquire, by purchase, exchange, or donation, lands or interests therein where necessary for proper management of the national resource lands: Provided, That land or interests in land may be acquired pursuant to this title by eminent domain only if necessary in order to secure access to national resource lands: Provided further, That any such national resource lands acquired by eminent domain shall be confined to as narrow a corridor as is necessary to serve such purpose.

(b) Acquisitions pursuant to this Act shall be consistent with applicable land use plans prepared by the Secretary under section 103 of this Act.

(c) In exercising the exchange authority granted by subsection (a) of this section, the Secretary may accept title to any non-Federal land or interests therein and in exchange therefor he may convey to the grantor of such land or interests any national resource lands or interests therein which, under section 202 of this Act, he finds proper for transfer out of Federal ownership and which are located in the same State as the non-Federal land to be acquired. The values of the lands so exchanged either shall be equal, or if they are not equal, shall be equalized by the payment of money to the grantor or to the Secretary as the circumstances require.

(d) Lands acquired by exchange under this section or section 301(c) which are within the boundaries of the national forest system may be transferred to the

Secretary of Agriculture for administration as part of, and in accordance with laws, rules, and regulations applicable to, the national forest system. Such transfer shall not result in the reduction in the percentage of in-licu payments receivable by State and local governments. Lands acquired by exchange under this section or section 301 (c) which are within the boundaries of national park, wildlife refuge, wild and scenic rivers, trails, or any other system established by Act of Congress may be transferred to the appropriate agency head for administration as part of, and in accordance with the laws, rules, and regulations applicable to, such system. (e) Lands and interests in lands acquired pursuant to this section or section 301(c) shall, upon acceptance of title, become national resource lands, and, for the administration of public land laws not repealed by this Act, shall become public lands. If such acquired lands or interests in lands are located within the exterior boundaries of a grazing district established pursuant to section 1 of the Taylor Grazing Act (48 Stat. 1269), as amended, they shall become a part of that district.

EXCHANGE AUTHORITY PROPOSAL PREPARED BY HON. GEORGE L. TURCOTT (DOES NOT REPRESENT OFFICIAL PROPOSAL BY BUREAU OF LAND MANAGEMENT OR DEPARTMENT OF THE INTERIOR):

SEC. 1-When lands or mineral estates owned by the United States are intermingled with non-Federal lands or mineral estates in an area identified by the Geological Survey as a Known Coal Leasing Area, the Secretary may accept title to any such intermingled non-Federal lands or mineral estates and in exchange therefor may convey to the grantor of such lands or mineral estates any intermingled Federal lands or mineral estates which he finds proper for transfer to non-Federal ownership. The values of the lands or mineral estates so exchanged shall be equal, or, if they are not equal, shall be equalized by the payment of money to the grantor or to the Secretary as the circumstances require, and in a manner prescribed by regulations issued by the Secretary: Provided, that no payment of money shall be in excess of 20 percent of the total value of the lands or mineral estates transferred out of Federal ownership.

SEC. 2-Conveyance may be made pursuant to Sec. 1 hereof only where, as a result of land use planning, the Secretary determines that: (a) a tract of Federal lands or reserved mineral estate, because of its location or other characteristics, can be developed more effectively if its ownership is consolidated with the ownership of lands or mineral estates adjacent to or surrounding it; and (b) a tract of Federal lands or reserved mineral estate, if acquired for a specific Federal purpose, is no longer required for that Federal purpose; and (c) the tract of Federal lands or reserved mineral estate, being conveyed is not required for a Federal purpose which would outweigh the public benefits which would ensue from the use to which such tract will be put if transferred to non-Federal ownership; and (d) the lands or mineral estates to be transferred to Federal ownership in exchange for Federal lands or mineral estates are necessary to create contiguous coal reserves to facilitate effective development of Federal coal at acceptable economic and environmental costs.

SEC. 3-In determining the effectiveness of the development of tracts of lands or mineral estates in Section 2(a) and (d), the Secretary shall consider among other factors the economic and environmental costs of development.

Mrs. MINK. Are there any futher questions?

Mrs. Pettis?

Mrs. PETTIS. Thank you, Madam Chairman. I did have one question. You state on page 5 of your testimony that there is necessary information still lacking. I believe I counted 11 questions unanswered. Can you tell us for the record when those 11 questions can be answered?

Mr. TURCOTT. To the extent we can get it, we will have this information in 2 to 3 weeks. We will at least try to have it done by the time that the departmental study is completed because I think the information has to be reviewed together. Some of it will be basically estimates because a lot of it will have to come from industry and the railroad companies and they can give us what they want.

Mrs. PETTIS. Thank you, Mr. Turcott.

I have no more questions.

Mrs. MINK. Mr. STEIGER?

Mr. STEIGER. Just one area, Madam Chairman.

George, I have got a real concern on the exchange as an alternate. I would like to explore it with you because it will make a pretty valuable record.

Is it the BLM's policy as it is in the Forest Service, that all exchanges must be demonstrably in favor of the Government?

Is that the policy now?

Mr. TURCOTT. Under the general exchange authority of section 8 of the Taylor Grazing Act, yes.

Mr. STEIGER. OK. Do you envision unique problems with mineral exchanges or surface rights including minerals in the ascertaining of a defensible value of the minerals involved? Is it not much more difficult to arrive at a figure, particularly in light of the mandate you have to operate under?"

Mr. TURCOTT. Yes, sir, we have the fair market value mandate and it is very difficult as I mentioned in the testimony. It is most expensive.

The gentleman from the Santa Fe on Tuesday mentioned one core drilling per 40 acres. The USGS requirements are generally no less. It is very, very expensive.

Mr. STEIGER. Again for the record, core dilling in the case of coal, what is considered an adequate depth for valid information? Mr. TURCOTT. I defer to Mr. Bailey on that.

Mr. STEIGER. Mr. Bailey, I realize it varies with the terrain butMr. BAILEY. I believe the classification standards are that you go down for coal about 3,000, if you wanted to get to coal that was economical to drill, you would probably have to drill 3,000 feet. Mr. STEIGER. So it is a significant cost.

Mr. BAILEY. Yes, it is.

Mr. STEIGER. I do not want to get into those figures but so it reflects in the record, about how many dollars a foot is the going rate? Obviously it varies again with the area. Are we talking about $1 a foot, $10 a foot, 50 cents a foot?

Mr. BAILEY. I think you would be talking more in the range of $10 a foot.

Mr. STEIGER. That would be my thought.

So again let's just talk hard pragmatics here, recognizing, one, that you would have to do this kind of exploration in order to be prepared to justify an exchange involving minerals, is that correct?

Mr. TURCOTT. Yes, sir, we would have to have the information to get fair market value.

Now, perhaps in some cases the offeror or the applicant may have had a lot of the work done themselves and if they would share that information with us and the USGS would validate it as to adequacy and professionalism, we could say that.

And, that is a real keypoint to this.

Mr. STEIGER. On the other hand, if you are viewing it as an alternative, and if, one, if we determine it is a real problem, and, two, if one of the ways of solving the problem is to repeal 2(c), and one of the alternatives to that is exchanges as was suggested by the Justice Department; I think it is important that the committee be aware that that may not be a viable exchange under existing law, or at least under existing practice. That is what I am trying to get at.