[Federal Register: January 6, 2003 (Volume 68, Number 3)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 1860
Conveyances, Disclaimers and Correction Documents
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
SUMMARY: The Bureau of Land Management (BLM) amends its regulations
pertaining to recordable disclaimers of interest in land. We are
amending the regulation by: removing the 12-year regulatory filing
deadline for states; removing the requirement that an applicant be a
``present owner of record'' to be qualified under the Act; allowing any
entity claiming title, not just current owners of record, to apply for
a disclaimer of interest; defining the term ``state'' as it is used in
this rule; clarifying how we will approve
disclaimer applications involving another Federal land managing agency.
DATES: This rule is effective February 5, 2003. Any application for a
recordable disclaimer pending on the effective date of this final rule
will be subject to this final rule.
FOR FURTHER INFORMATION CONTACT: Jeff Holdren 202 452-7779. Individuals
who use a telecommunications device for the deaf may contact Mr.
Holdren through the Federal Information Relay Service at 1-800-877-8339
24 hours a day, 7 days a week.
I. What Is the Background of This Rulemaking?
II. How Did BLM Change the Proposed Rule in Response to Comments?
III. Responses to Comments
IV. How Did BLM Fulfill Its Procedural Obligations?
I. What Is the Background of This Rulemaking?
Section 315 of the Federal Land Policy and Management Act (FLPMA)
authorizes the Secretary of the Interior, through a delegation of
authority to BLM, to issue a document of disclaimer of interest or
interests in any lands in any form suitable for recordation, where the
disclaimer will help remove a cloud on the title of such lands and
where the Secretary determines a record interest of the United States
in lands has terminated by operation of law or is otherwise invalid (43
U.S.C. 1745(a)). BLM may issue recordable disclaimers to disclaim
Federal title in a wide variety of instances, including avulsion,
reliction, or accretion of lands, survey errors, clerical errors, or
when applicants assert title previously created under now expired
The following statutory requirements must be met before the
Secretary can issue a disclaimer:
1. An applicant must file a written application with the Secretary.
2. The Secretary must publish a notice in the Federal Register of
the application setting forth the grounds supporting it at least ninety
days before the issuance of the disclaimer.
3. The applicant must pay the Secretary the administrative costs
associated with issuance of the disclaimer. The Secretary determines
the amount of the costs.
4. The Secretary must consult with any affected Federal agency.
BLM published regulations implementing the Secretary's authority
under section 315 of FLPMA to issue recordable disclaimers in 1984 (49
FR 35296). These regulations imposed requirements in addition to those
identified in the statute. Specifically, the regulations restrict
applicants for a disclaimer to ``any present owner of record'' (43 CFR
1864.1-1). The regulations also specify information the applicant must
submit in the application and the costs associated with submitting an
application. For example, an applicant is required to submit ``[a]ll
documents which show to the satisfaction of the authorized officer the
applicant's title to the lands.'' (43 CFR 1864.1-2(c)(3)) This
requirement may be waived if BLM believes it is not needed to properly
adjudicate the application. The regulation requires that BLM deny an
application if more than 12 years have passed since the owner knew or
should have known of the alleged claim of the United States (43 CFR
``Interest in land'' can pertain to various situations because
there are different types of interests a property owner can hold. For
example, for a specific parcel of land, interests could include surface
rights, subsurface rights, mineral interests, timber interests and
various other interests which, when combined, equate to a fee simple
interest for that parcel. Interests in land can be sold, given away,
leased, or otherwise transferred from one entity to another by means of
various conveyance documents (e.g., deed or patent). They may also be
temporarily transferred from the one entity to another by means of a
lease, permit, license, or other such document.
Some Federal property interests may transfer by operation of law to
another entity. For example, the Submerged Lands Act (43 U.S.C. 1301-
1315), provides that title to the bed of navigable water bodies passes
from Federal to state ownership when the state is admitted to the
Union. The Act does not require that BLM either initiate or complete
this title transfer of land, but by providing a recordable disclaimer
of interest, BLM may lessen future disputes.
On February 22, 2002, we published in the Federal Register (67 FR
8216) a proposed rule to amend our regulations pertaining to
Conveyances, Disclaimers, and Corrections Documents. The proposal
sought to amend certain provisions of the regulations originally
published in 1984. The proposed rule would further the purpose of
section 315 of FLPMA to remove clouds on title to lands or interests in
lands by allowing any entity claiming title, rather than only a present
owner of record, to apply for a recordable disclaimer of interest. The
proposed rule also sought to eliminate the application deadline in
section 1864.1-3, as it applies to states. This change would conform
the regulations more closely to the Quiet Title Act (28 U.S.C.
2409a(g)) which, in most instances, exempts states from the 12-year
statute of limitations under that act. These two technical changes are
the only ones that BLM proposed in February 2002 to the 1984
Basis and Purpose for the Final Rule
This final rule removes certain restrictions from the current rule
that are not required by section 315 of FLPMA (43 U.S.C. 1745). The
final rule also reflects a change that Congress made to the Quiet Title
Act in 1986 (28 U.S.C. 2409a). These amendments to 43 CFR subpart 1864
will make the recordable disclaimer regulations more consistent with
both section 315 of FLPMA and the Quiet Title Act. This rule will
reduce the potentially inconsistent administrative interpretations and
application of the recordable disclaimer regulations by eliminating the
requirement that an applicant be a ``present owner of record.''
Specifically, this final rule amends the regulations by
incorporating the following changes to the way we process disclaimers
of interest. The rule:
[sbull] Eliminates the application deadline in 43 CFR 1864.1-3 as
it applies to ``states.''
[sbull] Allows any entity claiming title, not just current owners
of record, to apply for a recordable disclaimer of interest.
[sbull] Defines state as used in this rule.
[sbull] Clarifies how BLM will evaluate disclaimer of interest
applications pertaining to non-BLM federally managed lands.
II. How Did BLM Change the Proposed Rule in Response to Comments?
In this preamble, we respond to significant comments we received on
the February 22, 2002, proposed rule (67 FR 8216). Because a majority
of responses were form letters opposing the rule, we address those
comments generally. We have directly responded to individual
substantive comments in support of or in opposition to the rule. In
response to several comments we have:
1. Included a definition of ``state,'' as it is used in this rule,
2. Clarified how BLM will process disclaimer of interest
applications affecting non-BLM managed lands.
III. Responses to Comments
During the 60-day comment period BLM received about 18,000 comments
in support of, or in opposition to, the proposed rule. Most of the
correspondence consisted of form letters
expressing opposition to the proposed rule for a variety of reasons.
General Comments Opposing the Proposed Rule
Letters opposing the rule generally stated the rule would:
[sbull] Enable BLM to transfer large tracts of public lands to
[sbull] Impact sensitive wilderness and roadless areas; and
[sbull] Adversely affect wildlife and habitats by allowing states
to build major thoroughfares through wild land areas.
General Comments Supporting the Proposed Rule
Letters supporting the rule generally stated the rule would:
[sbull] Maintain access to public lands on existing routes in rural
[sbull] Support state control over routes in rural places; and
[sbull] Ease the process whereby BLM could transfer public land to
We are responding to these general comments as they arise in the
context of more specific substantive comments on the proposed rule.
Several commenters claimed that the proposed rule is illegal
because 43 U.S.C. 1745 does not allow BLM to alter the intent of the
statute from the present owner of record to ``any entity claiming title
to lands.'' Other commenters asserted that the proposed changes are
inconsistent with 43 CFR Subpart 1864 because they do not further the
purpose of 43 U.S.C. 1745 and would lead to an increase in inconsistent
administrative interpretations, and would allow anyone to make a claim,
not just the existing owners of record.
We disagree. The term ``present owner of record'' is not found in
FLPMA. In the existing regulations, published in 1984, BLM required the
applicant to be a present owner of record to prelude third parties
having no property interest in the lands in question from applying for
a recordable disclaimer. We think this present-owner-of-record
requirement is inconsistent with the actual language of section 315 of
FLPMA. The present-owner-of-record concept artificially limits FLPMA's
goal of eliminating clouds on title. A cloud on title is less likely
when there is also an actual present owner of record. Land title
disputes often arise with parties who have gained title by operation of
law, such as states that obtained title under the Submerged Lands Act
to lands under navigable bodies of water. For example, a state applying
for a recordable disclaimer may not have a record of the state's title
to the lands in question in a county clerk's office. Nevertheless,
Congress has passed title to the state by virtue of the Submerged Lands
Act. Moreover, today's rule does not increase the potential for
inconsistent administrative interpretations. Applications containing
invalid claims will be rejected regardless of whether they were filed
by present owners of record or others.
A significant number of comments asked about the relationship
between the proposed rule and R.S. 2477. A coalition of California
conservation organizations expressed concern that the proposed rule was
intended to facilitate disclaimers by the United States of its interest
in lands that are used for recreation, conservation, wilderness and
other public purposes, as a result of R.S. 2477 right-of-way claims by
individuals and local and state governments. The commenters believe
that the FLPMA disclaimer-of-interest procedure was not intended to
include R.S. 2477 claims within its scope and that BLM has no legal
authority to employ the disclaimer provisions to process, acknowledge
or determine the existence or extent of R.S. 2477 rights-of-way.
Revised Statutes (R.S.) 2477, first enacted as section 8 of the
Mining Act of 1866, states that ``the right-of-way for the construction
of highways over public lands, not reserved for public uses, is hereby
granted.'' 43 U.S.C. 932 (repealed 1976). R.S. 2477 was repealed by
FLPMA on October 21, 1976 (Pub. L. 94-579, Sec. 706(a), 90 Stat. 2744,
2793). FLPMA did not terminate valid rights-of-way existing on the date
of its approval (Sec. 509(a), 90 Stat. 2781, 43 U.S.C. 1769; Sec.
701(a), 90 Stat. 2786, 43 U.S.C. 1701 note). In most instances, R.S.
2477 rights-of-way were not recorded on the public land records or in
official county records because R.S. 2477 did not require any formal
approval from the Secretary of the Interior or other Federal government
official. The uncertainty resulting from unrecorded rights-of-way under
R.S. 2477 has created clouds on title.
FLPMA authorizes the Secretary of the Interior to issue recordable
disclaimers of interest in lands in specified cases if the disclaimer
will help remove a cloud on the title to lands or interests in lands
and if the Secretary finds no Federal interest (43 U.S.C. 1745(a)).
Recordable disclaimers may be issued where applicants assert title
previously created under now expired authorities. For example, after
adjudicating the claim, BLM may issue a recordable disclaimer of
interest to disclaim the United States' interest in a highway right-of-
way under R.S. 2477.
Many commenters, including a consortium of 14 environmental groups,
expressed concern about the relationship of this rulemaking to the 1996
Congressional moratorium placed on the Department and other Federal
agencies on R.S. 2477 rulemakings. The commenters expressed the view
that the proposed rule would be illegal because section 108 of the
Omnibus Interior Appropriations Act for Fiscal Year 1997 prohibits
Federal agencies from placing into effect any final rule or regulation
pertaining to the recognition, management or validity of a right-of-way
pursuant to R.S. 2477 unless expressly authorized by an Act of Congress
(110 Stat. 3009-200).
We do not believe that the Congressional moratorium on R.S. 2477
rulemaking precludes BLM from making effective this final rule
implementing the Secretary of the Interior's authority to issue
recordable disclaimers of interest in lands. On August 1, 1994, the
Department of the Interior proposed new regulations (59 FR 39216) to
create an administrative process for resolving right-of-way claims made
under R.S. 2477. Before the R.S. 2477 proposed rule was published as a
final rule, Congress enacted a moratorium prohibiting any Federal
agency from preparing, promulgating, or implementing any rule or
regulation regarding R.S. 2477 rights-of-way until September 30, 1996.
This provision was an amendment to the National Highway System
Designation Act of 1995 (Pub. L. 104-59, 109 Stat. 568, 617-18 (1995)).
Congress extended the prohibition on ``developing, promulgating, and
thereafter implementing a rule concerning rights-of-way under section
2477 of the Revised Statutes' in the Fiscal Year 1996 Interior and
Related Agencies Appropriations Act (Pub. L. 104-134, 110 Stat. 1321,
1321-177 (1996)). In section 108 of the Fiscal Year 1997 Department of
the Interior and Related Agencies Appropriations Act (Interior
Appropriations Act, 1997) (Pub. L. 104-208, 110 Stat. 3009, 3009-200
(1996)), Congress stated that:
No final rule or regulation of any agency of the Federal Government
pertaining to the recognition, management, or validity of a right-of-
way pursuant to Revised Statute 2477 (43 U.S.C. 932) shall take effect
unless expressly authorized by an Act of Congress subsequent to the
date of enactment of this Act.
Section 108 could be construed as either permanent legislation or
as having expired at the end of fiscal year 1997. If section 108 is
construed as permanent legislation, it would prohibit the Department
from making effective a
final rule or regulation pertaining to the ``recognition, management,
or validity'' of a right-of-way pursuant to R.S. 2477. In 1997, the
General Counsel of the General Accounting Office (GAO) issued an
opinion concluding that section 108 is permanent law and did not expire
at the end of the 1997 fiscal year (Letter of Robert P. Murphy, General
Counsel, GAO, B-277719, at 1 (Aug. 20, 1997)).
Even if section 108 is permanent legislation, it only applies to
``final rules or regulations'' relating to the ``recognition,
management, or validity of a right-of-way'' pursuant to R.S. 2477.
Because today's final rule merely amends BLM's existing regulations,
which define the administrative process by which an entity can apply
for a recordable disclaimer of interest under section 315 of FLPMA, the
section 108 moratorium does not apply to this final rule.
If section 108 were interpreted to prevent BLM from promulgating a
regulation relating to recordable disclaimers of interest, section 108
would, in essence, partially repeal sections 310 and 315 of FLPMA (43
U.S.C. 1740, 1745). Under section 310, BLM is authorized to
``promulgate rules and regulations to carry out the purposes of this
Act and of other laws applicable to the public lands.'' Section 315 is
the specific substantive authority for BLM's disclaimer regulations (43
U.S.C. 1745(c)). As a general rule, courts do not favor repeals by
implication. In Morton v. Mancari (417 U.S. 535, 550 (1974)), the
Supreme Court stated: ``In the absence of some affirmative showing of
an intention to repeal, the only permissible justification for a repeal
by implication is when the earlier and later statutes are
irreconcilable.'' In Tennessee Valley Authority v. Hill (437 U.S. 153,
190 (1978)), the Supreme Court stated that the doctrine disfavoring
repeals by implication applies with even greater force when the claimed
repeal rests solely on an appropriations act.
Although repeals by implication are especially disfavored in the
appropriations context, Congress nonetheless may amend substantive law
in an appropriations statute if Congress does so clearly. (Robertson v.
Seattle Audubon Society, 503 U.S. 429, 440 (1992)). The question
depends on the intention of Congress as expressed in the statute. See
United States v. Mitchell, 109 U.S. 146, 150 (1883). Therefore, unless
Congress clearly intended to amend sections 310 and 315 of FLPMA,
section 108 of the Interior Appropriations Act, 1997, and sections 310
and 315 of FLPMA are all effective.
Section 108 contains broad language and does not indicate which
final rules or regulations are encompassed by the words ``pertaining to
the recognition, management, or validity of a right of way pursuant to
Revised Statute 2477.'' The legislative history, however, indicates
that Congress enacted section 108 to prevent the Department of the
Interior from promulgating final rules and regulations setting out
specific standards for R.S. 2477 rights-of-way. (See H.R. Rep. No. 104-
625, at 58 (1996)). Instead, Congress itself wanted to enact
legislation defining the key terms and scope of grants for R.S. 2477
rights-of-way. The House Committee on Appropriations stated that:
[T]he public interest will be better served if these grants [for
highway rights-of-way across Federal land] to States and their
political subdivisions are not put in jeopardy by the Department
pending Congressional clarification of these issues. Section 109 does
not limit the ability of the Department to acknowledge or deny the
validity of claims under RS 2477 or limit the right of grantees to
litigate their claims in any court.
Section 109 of H.R. 3662, the Department of the Interior and
Related Agencies Appropriations Bill, 1997, was renumbered section 108
after the Senate Appropriations Committee deleted section 107, an
unrelated section of H.R. 3662, in its entirety (S. Rep. No. 104-319,
at 56 (July 16, 1996)). The Appropriations Committee reported the bill
to the Senate and recommended it pass, as amended. Accordingly, when
Congress enacted section 108, it did not intend to prohibit the
promulgation of all final rules and regulations that may, directly or
indirectly, address R.S. 2477 rights-of-way but, rather, those that
provide standards for recognizing, managing or validating an R.S. 2477
Today's rule on recordable disclaimers does not provide standards
for recognizing managing, or validating an R.S. 2477 right-of-way.
Rather, BLM's rule merely makes technical changes to the existing
regulations under which an applicant may submit an application to
remove a cloud on title to lands to which the United States asserts no
ownership or interest. First, the rule amends the existing regulations
to allow any entity claiming title, as opposed to only present owners
of record, to apply for a recordable disclaimer of interest. This
change eliminates inconsistent administrative interpretations of the
owner-of-record requirement, a term that is not defined in the existing
1984 regulations. Second, the final rule eliminates the application
deadline in section 1864.1-3, as it applies to states. This change
conforms the regulations to the Quiet Title Act, 28 U.S.C. 2409a(g),
which exempts states, in most instances, from the twelve-year statute
of limitations under that Act. These changes to the existing
regulations do not expand the kinds of circumstances in which a
disclaimer could be issued, expand or modify any rights created, or
create any new rights under R.S. 2477. BLM may issue recordable
disclaimers relating to valid R.S. 2477 rights-of-way under the
existing 1984 regulations, and this capability will continue under
today's final rule.
Even if BLM were to issue a disclaimer of the United States'
interest in a valid right-of-way under R.S. 2477, the recognition of
such right-of-way would not be the result of this notice-and-comment
rulemaking but, rather, an informal agency adjudication resulting in a
final decision. (See 5 U.S.C. 551(7)) The legislative history of
section 108 expressly states that Congress ``does not limit the ability
of the Department to acknowledge or deny the validity of claims under
RS 2477 or limit the right of grantees to litigate their claims in any
court.'' (H.R. Rep. No. 104-625, at 58 (1996)). Because BLM's rule is
not a final rule or regulation relating to the ``recognition,
management, or validity of a right-of-way pursuant to Revised Statute
2477,'' this rule is not subject to the moratorium in section 108 of
the 1997 Interior Appropriations Act.
Several commenters expressed concerns that today's rule will enable
states to make ``illegal'' R.S. 2477 claims on ``cow paths'' and ``foot
trails'' and turn them into major thoroughfares in sensitive areas.
We disagree that the changes to the existing rule will allow
illegal claims. If an applicant does not have a valid, legal title, BLM
will reject the disclaimer application. The existing 1984 rule and
today's final rule are the same in this regard.
The Southern Utah Wilderness Alliance (SUWA) opposed the rulemaking
because it did not mention any case law, particularly SUWA and Sierra
Club v. BLM, (96-CV-836C (D. Utah); appeal pending, No. 01-4173 (10th
Cir.)). SUWA believes this omission invites attempts to evade
application of this case and others in an effort to validate R.S. 2477
claims which could never meet the legal prerequisites. The group also
asserted that the proposed rule did not describe the standards BLM
would apply in determining whether to grant recordable disclaimers.
This rulemaking pertains only to disclaimers and not to any
made by various entities for R.S. 2477 claims. Therefore, a discussion
of this case law is not germane to today's rulemaking.
An Alaskan environmental group believes the proposed rule is not
necessary to provide appropriate access across Alaska lands because
there exist statutory processes to determine rights-of-way for roads
and other access across most of the land affected by R.S. 2477
assertions. The group also states that recognizing R.S. 2477 assertions
under the proposed rule will undermine these established processes and
frustrate land management efforts of responsible public and private
The existing regulations already allow applications for disclaimers
for R.S. 2477 rights-of-way, and this has not undermined established
processes for determining access. This rulemaking makes technical
changes to the existing rule.
Many commenters, including the Idaho County Farm Bureau, and the
consortium of environmental groups, expressed concern that BLM is
proposing the rule to circumvent FLPMA and Congressional restrictions
against implementing R.S. 2477 rights-of-ways. The commenters assert
that Congress provided a means to grant rights-of-way under FLPMA,
negating the need for R.S. 2477. The focus of their concern is that
this proposed rule will allow states to acquire sensitive lands, the
BLM to circumvent the environmental impact review process, and the
BLM's ability to charge fair market value rentals under Title V of
FLPMA repealed R.S. 2477 and provided for applications for new
rights-of-way. Sections 509(a) and 701(h) of FLPMA also preserved valid
existing rights-of-way. Therefore, although FLPMA created more flexible
authority to address right-of-way issues, it did not displace existing
rights-of-way authorized by Congress.
States may seek disclaimers to sensitive lands for which they
already hold title. For example, submerged lands under navigable bodies
of water may be environmentally sensitive. Congress, however, granted
states title to these lands. A disclaimer would merely provide evidence
of an existing title. Because the state already owns such lands, there
would be no need for environmental studies or rental payments.
A commenter opposed the proposed rule because the commenter
believes that the proposed rule change is not necessary. The commenter
also stated the BLM Questions and Answer sheet and press release
accompanying the rule were confusing and obfuscated facts relating to
R.S. 2477. The commenter also expressed concern that the proposed rule
could allow ``counties and other `sagebrush rebel' entities in the West
to file claims for public lands, with minimal processing of claims and
no time limitations.'' Lastly, the commenter believes the rule will
result in increased trespass incidents and other illegal activity by
those wishing to lay claim under the proposed rule change to public
lands, creating long term effects on the entire western ecosystem and
BLM regrets that the Question and Answer document was confusing to
the commenter and did not create the clarity we intended. BLM intends
that this preamble will clear up any misunderstanding regarding this
rulemaking. As we have stated, this rulemaking does not change the
requirements for asserting title to an R.S. 2477 right-of-way. The
rulemaking is intended only to make it easier for BLM to clear up
clouded titles when the United States has no interest in the lands in
dispute. A disclaimer of interest does not convey an interest in land.
It is an administrative determination that the United States does not
have an interest in land.
The Local Highway Technical Assistance Council of Boise, Idaho,
asked BLM to clarify the current means besides FLPMA that can be used
to secure a right to an R.S. 2477 highway reservation.
FLPMA repealed R.S. 2477 in 1976. There is no longer any way to
secure a new right to an R.S. 2477 right-of-way. An existing owner of
an R.S. 2477 right-of-way may apply for a recordable disclaimer under
existing regulations or as amended in this final rule. A quiet title
action in federal court is the only other way to resolve R.S. 2477
claims with finality. The purpose of section 315 of FLPMA is to avoid
litigation in Federal court.
The Nye County Commissioners, Nevada, believe that the proposed
rule may resolve some questions relating to R.S. 2477 rights-of-way but
are concerned that the proposed rule is inapplicable to R.S. 2477
rights-of-way (or any other rights-of-way), because the United States
continues to hold a valid interest in underlying lands. The
Commissioners expressed support for BLM's effort but did not support
the proposed rule.
If a state made a valid R.S. 2477 right-of-way claim on public
land, only the rights pertaining to the right-of-way are authorized for
use. The commenter is correct that the BLM would retain all other
rights, such as the right to sell the land, allow mining claims to be
filed, or administer the lands for appropriate purposes. BLM may issue
recordable disclaimers for interests in land and is not limited to
disclaiming only fee simple title.
An environmental group believes BLM has purposefully and
incorrectly stated the purpose and intent of the proposed rule by
citing it as a relatively minor revision to an obscure regulation with
little substantive impact. The group believes this hampered the public
review process by not informing the public about the importance of this
We disagree that this rulemaking is a major regulatory action. We
believe that we adequately and accurately presented the purpose and
intent of the proposed rule. The rulemaking makes technical changes to
the existing rule. These changes are outlined within the SUMMARY
section of this preamble. BLM has issued 62 recordable disclaimers
since the enactment of FLPMA in 1976; on average, fewer than 3
recordable disclaimers annually.
The Blue Ribbon Coalition supported the proposed rule and asked BLM
to clarify whether a disclaimer of interest process must be followed
for each and every right-of-way under consideration. The group also
asked BLM to explain how difficult and complex the process would be for
the applicant and the BLM for other types of interest that may be
disclaimed under section 315.
An applicant may apply for as many disclaimers as it has clouded
titles which may benefit from the process. The complexity of the
process depends upon the nature of the ownership sought. Titles clouded
by avulsion, reliction or accretion may require historic maps and
patents and newly-created data, such as aerial photographs. State
applications for disclaimers for submerged lands may require detailed
studies of water levels and commercial traffic at the time of
A consortium of environmental groups believes the proposed rule
changes would have a direct effect on private property land rights
because it would lead to numerous rights-of-way crossing state and
private land. The commenters also believe the proposed rule will
``cloud title'' to large amounts of public and private land by
extending the time that states are allowed to file claims. The
commenters are concerned that the rulemaking will affect private
property owners and title insurance companies because BLM has not made
any effort to notify them of these potential impacts.
Today's rule will not adversely affect private property land
rights. As we have
stated, this rulemaking pertains to disclaimers of interest in federal
lands. It does not apply to private or state lands. BLM does not
anticipate that title to private land will become clouded by
implementation of this final rule. We expect the opposite to occur--
title issues arising from a variety of issues may now be resolved by
means of issuing a disclaimer of interest.
Commenters asserted that the proposed rule would enable BLM to
transfer large tracts of public lands to states and increase
environmental impacts on sensitive areas.
BLM may issue a disclaimer only when an applicant can show that a
specific property right is not held by the United States and the
applicant has requested that BLM document this by means of a recordable
disclaimer. The rule would not enable BLM to transfer vast tracts of
land to states. Any land disclaimed would already be owned by the
applicant, with or without the disclaimer. This rule would not result
in either an increase or decrease in environmental impacts.
States may apply for recordable disclaimers for valid R.S. 2477
claims. Applications will be evaluated on their merits and, if the
claims are valid, BLM may issue a disclaimer of interest.
Another environmental group was concerned that the rulemaking will
circumvent the public comment procedure by placing the determination of
``interest'' in the hands of the agency. The group does not believe BLM
has made provisions for public notice, comment, participation, or
appeal of its disclaimers which they believe deprives the public of
protections during the process of determining the ownership of federal
Today's rule does not impede or remove opportunities for public
notice or appeal provisions for disclaimers. The existing regulations
at Subpart 43 CFR 1864 address the group's concerns about public input.
Specifically, section 1864.2 provides that BLM must file a notice of
the application and the grounds supporting it in the Federal Register
at least 90 days before a decision is made on the application. Also,
BLM publishes a notice describing the application and its justification
in a newspaper serving the general vicinity of the lands that are the
subject of application for three consecutive weeks during the 90-day
time period. Today's rule does not address this section. Under 43 CFR
1864.4, ``an applicant or claimant adversely affected by a written
decision of the authorized officer'' may appeal to the Interior Board
of Land Appeals under 43 CFR part 4.
Regarding the group's suggestion that BLM seek public input to
determine ownership of public lands, the point is not determining
ownership of lands, but rather how to remove clouds on title to land to
which the United States disclaims title. In this case we continue the
The Gilpin County Commissioners, Colorado, expressed concern about
the rule's potential to open ``historic roads and tracks,'' increase
threats of erosion, and introduce noxious weeds into unroaded areas.
The commissioners believe this rule could harm small ranchers who have
rights on BLM lands.
This final rule will not result in the situations the commenters
pose. The applicant would already own any land or interests disclaimed.
With or without the disclaimer the same impacts would occur, so there
is no environmental impact from this rule. The rule does not apply to
private lands and does not affect grazing permits.
The San Bernardino County, Department of Public Works, California,
and others, asked whether an applicant must apply and be denied a
right-of-way under the FLPMA or other statute before requesting a
disclaimer of interest.
The denial of a right-of-way application under FLPMA has no bearing
on a request for a disclaimer of interest.
Several commenters, including The National Parks Conservation
Association, and the Nye County Commissioners, Nevada, asked how the
BLM can process disclaimers of interest on behalf of another surface
management agency because BLM's mandate may differ from that of other
agencies. The commenters raised the following concerns:
[sbull] The final rule may alienate thousands of acres of park
lands and instigate construction of roads and other structures on NPS
[sbull] The proposed rule could frustrate Congressional intent for
the protection and management of resources contained within the
National Park system.
[sbull] It is not clear how the rule will apply to lands under the
jurisdiction of DOI agencies other than BLM.
[sbull] How will the rule pertain to lands that were under BLM
jurisdiction in 1976, but which have since been transferred by Congress
to other DOI agencies?
Section 315 gives the Secretary of the Interior the authority to
issue recordable disclaimers when a record interest of the United
States in lands, whether managed by Interior or not, has terminated by
operation of law or is otherwise invalid. The Secretary has delegated
the authority to BLM to issue disclaimer documents when BLM determines
that a disclaimer of interest application is valid. Under the existing
1984 regulations, BLM will refer an application involving lands
administered by another agency to that agency for review and comment.
The U.S. Forest Service provided comments generally supporting the
proposed rule. We believe its comments are also helpful in responding
to the above concerns. The Forest Service stated:
If implemented the proposed rule could improve our abilities to
resolve certain forms of land title claims by states, such as title to
the beds and banks of navigable streams, and for rights-of-way for
highways under the Revised Statute (``RS'') 2477 (repealed). Currently
there is no administrative process available for states or land
management agencies like the Forest Service, to resolve such title
claims; the process is time consuming and requires expensive litigation
in Federal Courts. * * * [T]he proposed rule for recordable disclaimers
of title would provide a useful tool in resolving some state land title
claims. With the addition of a provision stating BLM will not authorize
any application over the objections of the Forest Service for claims on
National Forests, we would strongly support the proposal.
BLM has responded to the Forest Service's comments by adding
language to the final rule clarifying that BLM will not issue a
disclaimer of interest over the valid objections of the surface
managing agency having jurisdiction over the affected lands.
Gilpin County, Colorado, and Valley County, Idaho, expressed
concern that the proposed $100 fee is ambiguous and excessive. Valley
County asked if the application fee would apply to each route upon
which an assertion is made. They are concerned that this could result
in hundreds of dollars in fees for large counties. Gilpin County
requests that BLM consider a one-time processing fee for a block of
We disagree that the $100 application fee, which exists in the
current regulations, is ambiguous and excessive. The existing
regulations at 43 CFR 1864.1-2(b) provide that ``a nonrefundable fee of
$100 shall accompany the application.'' This fee will not change as a
result of this rulemaking. Subpart 1864 distinguishes between filing
fees and administrative processing costs. Neither the proposed rule nor
today's final rule alter these requirements.
The San Bernardino County Department of Public Works in
California criticized any potential cost recovery that the rulemaking
may impose because the number of claims the county might potentially
file could create a financial burden on San Bernardino County .
This rulemaking does not change BLM's application procedures or fee
structures and does not involve cost recovery. Each application would
be subject to the $100 application fee unless BLM waives it. Section
304(c) of FLPMA authorizes the Secretary, through BLM, to either reduce
or eliminate charges for administrative costs. BLM will continue to
place the money it collects into the U.S. Treasury for use for various
public purposes. If BLM receives multiple applications, the individual
case costs should be less, or BLM may waive the processing costs if
many applications cover similar types of filings.
A commenter stated the proposed rule does not specify how to
process the application or reference what the application requirements
will be. The commenter says BLM must be specific about these and
reference them in the final rule.
BLM has addressed the application requirements in the existing
regulations at 43 CFR 1864.1-2. The final rule does not alter these
Another commenter asked how the public will know whether the fee
and deposit are fair, if only BLM determines what fees the applicant
BLM is planning to issue guidance to field offices on how to
establish fees and parameters to ensure fairness. The guidelines will
include a provision that returns a portion of the fee if the
application is denied. (Until those guidelines are completed, 43 U.S.C.
1735(a) provides an explanation of how BLM handles deposits and
43 CFR 1864.1-3(c) (Action on application) and 43 CFR 1864.2(a)
(Decision on application) explain BLM's procedure for billing an
applicant for a disclaimer of interest application. BLM has chosen not
to estimate an average cost to process a disclaimer of interest
application because of the variable factors in each application.
However, on a case-by-case basis, we inform the applicant of the
estimated costs. When the application processing is completed, BLM will
give the applicant a final accounting, which will either require
payment of additional fees, or, if an applicant has overpaid BLM, we
will issue a refund. Today's rule does not change the process.
A commenter asked whether BLM State Directors should have the
authority to issue disclaimers of interest. Otherwise, subsequent
administrations will have the authority to change the rule.
The Secretary has already delegated the authority to process
disclaimers of interest to the BLM Director, who in turn has delegated
this authority to State Directors. Delegations of authority are always
subject to change.
A commenter asked if the rule would apply to unpatented mining
claims or other mineral interests.
The rule will not apply to a mining claim title. Title to mining
claims is determined under the General Mining Law of 1872, as amended,
and BLM regulations at 43 CFR Part 3800. BLM will determine whether the
rule applies to clouded private mineral interests on a case-by-case
basis. In general, the public obtains Federal mineral interests through
leases BLM issues under the Mineral Leasing Act (30 U.S.C. 181 et
seq.), or sales authorized by the Materials Act of 1947 (30 U.S.C. 601
Section 1864.0-5 Definitions
In response to several comments we are adding language to section
1864.0-5 in today's rule to clarify that the term ``state.'' As used in
this rule, we define ``state'' as ``the state and any of its creations
including any governmental instrumentality, within a state, including
cities, counties, or other official local governmental entities.''
The Commissioners of Valley County, Idaho, believe the term
``state'' as used in the proposed rule to determine who would receive
the benefit of the waiver of the 12-year filing deadline, is too
restrictive because the state may not always support local government
assertions and could prevent local government's from filing
applications for disclaimers of interest. The Commissioners recommended
that the regulations provide for local governments to apply directly.
We have defined the term ``state'' to include local governments. We
do not believe the rule will create restrictions upon states or other
governmental instrumentalities within the state. States may file an
application for a disclaimer where a title defect appears to exist.
Because counties and other entities of local government are within the
jurisdiction of a state, they will have the same rights as a state. The
waiver applies to counties by definition.
Section 1864.1-1 Filing of Application
Current section 1864.1-1 (a) provides, in part, that any ``present
owner of record may file an application to have a disclaimer of
interest issued.'' The phrase ``present owner of record'' is not
defined in Subpart 1864.
FLPMA neither uses nor defines this phrase. In real property
parlance, the term ``present owner of record'' usually refers to a
property owner in whose name the title appears in the official records
of a county recorder's office or other office of record. Thus, it
appears that the phrase ``present owner of record'' in section 1864.1-1
potentially could limit applications for a disclaimer of interest in a
way that would unduly restrict the Secretary's broad authority under
section 315 of FLPMA.
Today's rule amends this paragraph by removing the phrase ``present
owner of record'' and replacing it with ``any entity claiming title to
lands.'' This change clarifies that it is the interest in the lands,
rather than record ownership, that determines whether an entity is
eligible to apply for a disclaimer of interest. This change also
broadens the class of potential applicants for disclaimers of interest,
which could include, among others, a state, corporation, county, or a
single individual. The language is unchanged from the proposed rule.
Several commenters did not think BLM was clear on the standards we
will apply when determining whether or not to issue a disclaimer of
interest. The commenters urged BLM to apply standards that are ``crisp,
rigorous, and conform to recent federal case law.'' The commenters
believe that because an applicant doesn't need to have color of title
to request a disclaimer of interest, this makes the proposed rule an
``illegal land granting statute.'' The commenters state that BLM must
also correct the language of the original 1984 regulation (section
1864.0-5) purporting to define lands to include lands ``now or formerly
forming a part of the reserved or unreserved public lands.''
We disagree with the commenters. BLM did not identify specific
standards because applicants can make a wide variety of disclaimer
applications. The issuance of a disclaimer does not grant land to
anyone. It merely documents that the United States has no valid
interest in the land. Requirements for how and what an applicant must
file are found in the existing regulations at 43 CFR 1864.1-2.
We also disagree that we should change our definition of ``lands.''
Often lands have been transferred from Federal to private ownership,
but a residual interest in the lands remains with the Federal
government either by design or error. The disclaimer of interest rule
is in place to correct such errors if they are found to cause a cloud
on a title.
Section 1864.1-3 Action on Application
Section 1864.1-3(a)(1) currently provides, in part, that the BLM
will deny an application for a disclaimer if ``[m]ore than 12 years
have elapsed since the owner knew or should have known of the alleged
claim attributed to the United States.'' This deadline was modeled
after the statute of limitations in the Quiet Title Act, which also
includes a disclaimer provision (28 U.S.C. 2409a(e)). The Quiet Title
Act now provides that ``any civil action under this section, except for
an action brought by a state, will be barred unless it is commenced
within twelve years of the date upon which it accrued. Such action will
be deemed to have accrued on the date the plaintiff or his predecessor
in interest knew or should have known of the claim of the United
States.'' (28 U.S.C. 2409a(g)).
As enacted in 1972, the Quiet Title Act subjected all parties,
including states, to the 12-year limitation period. In 1986, Congress
amended the Quiet Title Act to exempt states from this 12-year statute
of limitations in most instances. However, BLM has not updated 43 CFR
1864.1-3(a), issued in 1984, to reflect the 1986 change in the Quiet
Title Act. Thus, today's rule amends this section to be more consistent
with the Quiet Title Act.
Today's rule adds language exempting states from the 12-year filing
deadline to allow states, as we have defined this term in this rule, to
apply for disclaimers of interest under FLPMA at any time. We also made
editorial changes to this section and brought up-to-date a reference to
Section 1864.1-4 Consultation With Other Agencies
The existing regulations at 43 CFR 1864.1-4 direct BLM to refer
disclaimer applications to the affected Federal agency for comment
before making a decision on the application. As a result of comments
BLM added provisions to today's rule stating that if a surface
management agency has a valid objection to an application, BLM will
reject the application. If the application is approved by the surface
management agency, then BLM can issue a recordable disclaimer of
We specifically made the change in reponse to the U.S. Forest
Service comments by clarifying in this final rule how BLM will handle
disclaimer of interest applications for lands managed by another land
IV. How Did BLM Fulfill Its Procedural Obligations?
E.O. 12866, Regulatory Planning and Review
This regulation is not a ``significant regulatory action'' as
defined in section 3(f) of Executive Order 12866. Therefore it does not
require an assessment of potential benefits and costs, nor does it
require an explanation pertaining to the manner in which the regulatory
action is consistent with a statutory mandate and, to the extent
allowed by law, promotes the President's priorities and avoids undue
interference with state, local, and tribal governments in the exercise
of their governmental functions. Because this rule is not a
``significant regulatory action'' the Office of Management and Budget
has not reviewed this rule under Executive Order 12866.
Commenters asserted that the rulemaking is a significant regulatory
action because it relates directly to R.S. 2477 claims and will,
therefore, cause adverse impacts to the environment; presents novel
legal issues; and is inconsistent with the actions of another agency.
We disagree and stand by our analysis that the rule is not a
significant regulatory action. Today's rule does not change the basic
process for issuing recordable disclaimers and will not have additional
environmental impact, will better conform to existing statutes, and
better explains how the disclaimer process relates to other agencies.
Regulatory Flexibility Act
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as
amended, 5 U.S.C. 601-612, to ensure that Government regulations do not
unnecessarily or disproportionately burden small entities. The RFA
requires a regulatory flexibility analysis if a rule would have a
significant economic impact, either detrimental or beneficial, on a
substantial number of small entities. BLM has determined that this
proposed rule would not have a significant economic impact on a
substantial number of small entities under the RFA (5 U.S.C. 601 et
seq.). The changes to the current rules will have no impact on an
applicant's costs for filing or processing an application for a
disclaimer of interest which currently consist of a one-time filing fee
of $100 and fact-specific processing costs with provisions for a fee
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This regulation is not a ``major rule'' as defined at 5 U.S.C.
804(2) because it will not have an annual effect on the economy greater
than $100 million, nor will it result in major cost or price increases
for consumers, industries, government agencies, or regions. It will not
have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of United States-
based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
BLM has determined that this rule is not significant under the
Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, because it will
not result in state, local and tribal government, or private sector
expenditures of $100 million or more in any one year. This rule will
not significantly or uniquely affect small governments.
Executive Order 12630, Government Action and Interference With
Constitutionally Protected Property Rights (Takings)
In accordance with Executive Order 12360, BLM has found that the
rule does not have significant takings implications. No takings of
personal or real property will occur as a result of this rule. The rule
broadens the opportunity for the United States to issue disclaimers of
interest in land, thereby making it easier to remove clouds on title to
certain lands. A takings implication analysis is not required.
Executive Order 13132, Federalism
In accordance with Executive Order 13132, BLM finds that the rule
does not have sufficient Federalism implications to warrant the
preparation of a federalism summary impact assessment. The rule does
not have substantial direct effects on states, on the relationship
between the national government and states, or on the distribution of
power and responsibilities among the various levels of government. The
rule does not preempt state law. The rule broadens the opportunity for
states and other entities to apply for a disclaimer of interest in
land, thereby removing clouds on the title to certain lands.
A commenter believes the rulemaking will impact the public under
Executive Order 13132 because the rulemaking would change Federal and
state land ownership.
We disagree. Although states will gain an additional ability to
apply for disclaimers because we are removing the states' 12-year
filing deadline, no substantive changes in ownership would occur
because recordable disclaimers may only be issued for
interests which the Federal government no longer claims.
Executive Order 13175, Consultation and Coordination With Indian Tribal
In accordance with Executive Order 13175, BLM finds that this rule
does not propose significant changes to BLM policy and that Tribal
Governments will not be unduly affected by this rule.
The State of Alaska supported the proposed rule and asked if a
disclaimer of interest could be applied to Indian trust or restricted
BLM will reject all applications for a disclaimer of interest on
trust or restricted Indian lands (43 CFR 1864.1-3(b)(2) of today's
rule). Indian trust lands are defined in 25 CFR 150.2(h) as ``an
inclusive term describing all lands held in trust by the United States
for Individual Indians or tribes, or all lands, titles to which are
held by individual Indians or tribes, subject to the Federal
restrictions against alienation or encumbrance, for all lands which are
subject to the rights of use, occupancy, and/or benefit of certain
tribes.'' For purposes of this part, the term ``Indian land'' also
includes land for which title is held in fee status by Indian tribes
and U.S. Government-owned lands under the Bureau of Indian Affairs
jurisdiction. This rulemaking has no bearing on these lands.
Executive Order 12988, Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
BLM has determined this rulemaking does not contain any new
information collection requirements that the Office of Management and
Budget must approve under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
National Environmental Policy Act
BLM has determined that this rulemaking is categorically excluded
from environmental review under section 102(2)(C) of the National
Environmental Policy Act, under 516 Departmental Manual (DM), Chapter
2, Appendix I, Item 1.10, and has concluded that the rule does not meet
any of the ten exceptions to the categorical exclusions listed in 516
DM, Chapter 2, Appendix 2. Under 516 DM, Chapter 2, Appendix 1, Sec.
1.10, this rule is categorically excluded because it is procedural in
nature, therefore its environmental effect is too broad, speculative or
conjectural to analyze.
A commenter believes BLM was incorrect in asserting that the
proposed rule is categorically excluded from review under NEPA, arguing
that there are several exceptions requiring the proposed rule to
undergo NEPA review, including the potential adverse effects on parks,
recreation, wilderness, and refuge lands, and the proposed rule's
potentially controversial environmental effects.
We disagree. BLM believes that the rule, as written, is exempt from
NEPA for the reasons stated in the proposed rulemaking. It is not
possible to determine the number of filings under the FLPMA provision,
nor can BLM determine where such filings will be made.
Executive Order 13211, Action Concerning Regulations That Significantly
Effect Energy Supply, Distribution, or Use
In accordance with Executive Order 13211, BLM finds that this rule
will not have a significant adverse effect on the supply, distribution,
or use of energy. The supply, distribution or use of energy will not be
unduly affected by this rule.
Clarity of the Regulations
Each Federal agency is required to write regulations that are
simple and easy to understand and to solicit comments and suggestions
from the public on the readability of the rule.
A commenter stated the rulemaking was unclear because it does not
mention R.S. 2477, although BLM's Questions and Answers and Press
Release pertain specifically to R.S. 2477.
We disagree. This rulemaking pertains to the issues of recordable
disclaimers and, therefore, we saw no need to address specific R.S.
2477 rights-of way types of recordable disclaimers in the preamble to
the proposed rule. Our mention of R.S. 2477 in BLM's Questions and
Answers and Press Release generated significant comments about the
relationship of this rule to R.S. 2477, which we have addressed in
List of Subjects in 43 CFR Part 1860
Administrative practice and procedure, Public lands.
Dated: December 31, 2002.
Rebecca W. Watson,
Assistant Secretary of the Interior.
Accordingly, for the reasons stated in the preamble and under the
authority of the FLPMA (43 U.S.C. 1740), BLM amends Subpart 1864 of
Title 43 of the Code of Federal Regulations as set forth below:
PART 1860--CONVEYANCES, DISCLAIMERS, AND CORRECTIONS DOCUMENTS
Subpart 1864--Recordable Disclaimers of Interest in Land
1. The authority citation for subpart 1864 is added to read as
Authority: 43 U.S.C. 1201, 1740, and 1745.
2. Amend Section 1864.0-5, by adding paragraph (h) to read as
Sec. 1864.0-5 Definitions.
* * * * *
(h) State means ``the state and any of its creations including any
governmental instrumentality within a state, including cities,
counties, or other official local governmental entities.''
3. Revise Sec. 1864.1-1 to read as follows:
Sec. 1864.1-1 Filing of application.
(a) Any entity claiming title to lands may file an application to
have a disclaimer of interest issued if there is reason to believe that
a cloud exists on the title to the lands as a result of a claim or
potential claim of the United States and that such lands are not
subject to any valid claim of the United States.
(b) Before you actually file an application you should meet with
BLM to determine if the regulations in this subpart apply to you.
(c) You must file your application for a disclaimer of interest
with the proper BLM office as listed in Sec. 1821.10 of this title.
4. Revise Sec. 1864.1-3 to read as follows:
Sec. 1864.1-3 Action on application.
(a) BLM will not approve an application, except for applications
filed by a state, if more than 12 years have elapsed since the
applicant knew, or should have known, of the claim of the United
(b) BLM will not approve an application if:
(1) The application pertains to a security interest or water
(2) The application pertains to trust or restricted Indian lands.
(c) BLM will, if the application meets the requirements for further
processing, determine the amount of deposit we need to cover the
administrative costs of processing the application and issuing a
(d) The applicant must submit a deposit in the amount BLM
(e) If the application includes what may be omitted lands, BLM will
it in accordance with the applicable provisions of part 9180 of this
title. If BLM determines the application involves omitted lands, BLM
will notify the applicant in writing.
5. Revise Sec. 1864.1-4 to read as follows:
Sec. 1864.1-4. Consultation with other Federal agencies.
BLM will not issue a recordable disclaimer of interest over the
valid objection of another land managing agency having administrative
jurisdiction over the affected lands. A valid objection must present a
sustainable rationale that the objecting agency claims United States
title to the lands for which a recordable disclaimer is sought.
[FR Doc. 02-33147 Filed 12-31-02; 12:48 pm]
BILLING CODE 4310-84-P
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