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H.B. 295





Sponsor: Michael E. Noel

             5      This act modifies the School and Institutional Trust Lands Code and Transportation
             6      Code by amending State Land provisions. This act clarifies that claimants filing initial
             7      unpatented federal mining claims shall include more detailed information and
             8      subsequent filings shall only include the name of the claim and the owner's intent
             9      regarding the claim. This act expands the directors authority to withdraw from
             10      permitting, a sale or other disposition, not just leasing, if the interests of the trust are best
             11      served through withdrawal. This act provides that certain board approved coal and
             12      mineral deposit agreements are not subject to the standard limitations concerning
             13      primary term and term extension. This act modifies the Transportation Code by
             14      providing that a temporary public easement granted for a highway is effective until a
             15      permanent easement has been established. This act makes technical changes.
             16      This act affects sections of Utah Code Annotated 1953 as follows:
             17      AMENDS:
             18          53C-1-201, as last amended by Chapter 260, Laws of Utah 2001
             19          53C-1-202, as last amended by Chapter 176, Laws of Utah 2002
             20          53C-2-104, as last amended by Chapter 202, Laws of Utah 1999
             21          53C-2-401, as last amended by Chapter 103, Laws of Utah 1996
             22          72-5-203, as last amended by Chapter 42 and renumbered and amended by Chapter
             23      270, Laws of Utah 1998
             24      ENACTS:
             25          53C-2-105, Utah Code Annotated 1953
             26      REPEALS:
             27          53C-2-406, as enacted by Chapter 294, Laws of Utah 1994

             28      Be it enacted by the Legislature of the state of Utah:
             29          Section 1. Section 53C-1-201 is amended to read:
             30           53C-1-201. Creation of administration -- Purpose -- Director.
             31          (1) (a) There is established within state government the School and Institutional Trust
             32      Lands Administration.
             33          (b) The administration shall manage all school and institutional trust lands and assets
             34      within the state, except as otherwise provided in Chapter 3 of this title and Section 51-7-12 .
             35          (2) The administration is an independent state agency and not a division of any other
             36      department.
             37          (3) (a) It is subject to the usual legislative and executive department controls except as
             38      follows:
             39          (i) (A) the director may make rules as approved by the board that allow the
             40      administration to classify a business proposal submitted to the administration as protected
             41      under Section 63-2-304 , for as long as is necessary to evaluate the proposals;
             42          (B) the administration shall return the proposal to the party who submitted the
             43      proposal, and incur no further duties under Title 63, Chapter 2, Government Records Access
             44      and Management Act, if the administration determines not to proceed with the proposal;
             45          (C) the administration shall classify the proposal pursuant to law if it decides to
             46      proceed with the proposal; and
             47          (D) Section 63-2-403 does not apply during the review period;
             48          (ii) the director shall make rules in compliance with Title 63, Chapter 46a, Utah
             49      Administrative Rulemaking Act, except that the director, with the board's approval, may
             50      establish a procedure for the expedited approval of rules, based on written findings by the
             51      director showing:
             52          (A) the changes in business opportunities affecting the assets of the trust;
             53          (B) the specific business opportunity arising out of those changes which may be lost
             54      without the rule or changes to the rule;
             55          (C) the reasons the normal procedures under Section 63-46a-4 cannot be met without
             56      causing the loss of the specific opportunity;
             57          (D) approval by at least five board members; and
             58          (E) that the director has filed a copy of the rule and a rule analysis, stating the specific

             59      reasons and justifications for its findings, with the Division of Administrative Rules and
             60      notified interested parties as provided in Subsection 63-46a-4 (7); and
             61          (iii) the administration shall comply with Title 67, Chapter 19, Utah State Personnel
             62      Management Act, except as follows:
             63          (A) the board may approve, upon recommendation of the director, that exemption for
             64      specific positions under Subsections 67-19-12 (2) and 67-19-15 (1) is required in order to enable
             65      the administration to efficiently fulfill its responsibilities under the law. The director shall
             66      consult with the director of the Department of Human Resource Management prior to making
             67      such a recommendation. The positions of director, deputy director, assistant director, legal
             68      counsel appointed under Subsection 53C-1-305 (2), administrative assistant, and public affairs
             69      officer are exempt under Subsections 67-19-12 (2) and 67-19-15 (1);
             70          (B) salary for exempted positions, except for the director, shall be set by the director,
             71      after consultation with the director of the Department of Human Resource Management, within
             72      ranges approved by the board. The board and director shall consider salaries for similar
             73      positions in private enterprise and other public employment when setting salary ranges; and
             74          (C) the board may create an annual incentive and bonus plan for the director and other
             75      administration employees designated by the board, based upon the attainment of financial
             76      performance goals and other measurable criteria defined and budgeted in advance by the board;
             77      and
             78          (iv) the administration shall comply with Title 63, Chapter 56, Utah Procurement
             79      Code, except where the board approves, upon recommendation of the director, exemption from
             80      the Utah Procurement Code, and simultaneous adoption of policies for procurement, which
             81      enable the administration to efficiently fulfill its responsibilities under the law.
             82          (b) (i) The board and director shall review the exceptions under Subsection (3)(a) and
             83      make recommendations for any modification, if required, which the Legislature would be asked
             84      to consider during its annual general session.
             85          (ii) The board and director may include in their recommendations any other proposed
             86      exceptions from the usual executive and legislative controls the board and director consider
             87      necessary to accomplish the purpose of this title.
             88          (4) The administration is managed by a director of school and institutional trust lands
             89      appointed by a majority vote of the board of trustees with the consent of the governor.

             90          (5) (a) The board of trustees shall provide policies for the management of the
             91      administration and for the management of trust lands and assets.
             92          (b) The board shall provide policies for the ownership and control of Native American
             93      remains that are discovered or excavated on school and institutional trust lands in consultation
             94      with the Division of Indian Affairs and giving due consideration to Title 9, Chapter 9, Part 4,
             95      Native American Grave Protection and Repatriation Act.
             96          (6) In connection with joint ventures for the development of trust lands and minerals
             97      approved by the board under [Subsection] Subsections 53C-1-303 (4)(c) and 53C-2-401 (1)(d),
             98      the administration may become a member of a limited liability company under Title 48,
             99      Chapter [2b] 2c, Utah Revised Limited Liability Company Act, and is considered a person
             100      under Section 48-2c-102 for such purposes.
             101          Section 2. Section 53C-1-202 is amended to read:
             102           53C-1-202. Board of trustees membership -- Nomination list -- Qualifications --
             103      Terms -- Replacement -- Chair -- Quorum.
             104          (1) There is established the School and Institutional Trust Lands Board of Trustees.
             105          (2) The board shall consist of seven members appointed on a nonpartisan basis by the
             106      governor with the consent of the Senate for nonconsecutive six-year terms.
             107          (3) (a) Of the initial appointments to the board, the governor shall appoint one member
             108      to serve a six-year term, one member to serve a five-year term, one member to serve a four-year
             109      term, one member to serve a three-year term, one member to serve a two-year term, and one
             110      member to serve a one-year term.
             111          (b) All subsequent appointments shall be for a term of six years, except if a vacancy
             112      occurs, the governor shall appoint a replacement, following the procedures set forth in
             113      Subsections (2), (4), (5), and (6), to fill the unexpired term.
             114          (c) Any member of the board who has served less than six years upon the expiration of
             115      that member's term is eligible for a consecutive reappointment.
             116          (d) Neither the term provision in Subsection (2) nor Subsection (3) applies to an
             117      appointment made under Subsection (5).
             118          (4) (a) The governor shall select six of the seven appointees to the board from a
             119      nomination list of at least two candidates for each position or vacancy submitted pursuant to
             120      Section 53C-1-203 .

             121          (b) The governor may request an additional nomination list of at least two candidates
             122      from the nominating committee if the initial list of candidates for a given position is
             123      unacceptable.
             124          (c) (i) If the governor fails to select an appointee within 60 days after receipt of the
             125      initial list or within 60 days after the receipt of an additional list, the nominating committee
             126      shall make an interim appointment by majority vote.
             127          (ii) The interim appointee shall serve until the matter is resolved by the committee and
             128      the governor or until replaced pursuant to this chapter.
             129          (5) (a) The governor may appoint one member without requiring a nomination list.
             130          (b) The member appointed under Subsection (5)(a) serves at the pleasure of the
             131      governor.
             132          (6) (a) Each board candidate shall possess outstanding professional qualifications
             133      pertinent to the purposes and activities of the trust.
             134          (b) The board shall represent the following areas of expertise:
             135          (i) nonrenewable resource management or development;
             136          (ii) renewable resource management or development; and
             137          (iii) real estate.
             138          (c) Other qualifications which are pertinent for membership to the board are expertise
             139      in any of the following areas:
             140          (i) business;
             141          (ii) investment banking;
             142          (iii) finance;
             143          (iv) trust administration;
             144          (v) asset management; and
             145          (vi) the practice of law in any of the areas referred to in Subsections (6)(b) and (6)(c)(i)
             146      through (v).
             147          (7) The board of trustees shall select a chair from its membership.
             148          (8) Before assuming a position on the board, each member shall take an oath of office.
             149          (9) Four members of the board constitute a quorum for the transaction of business.
             150          (10) The governor or five board members may, for cause, remove a member of the
             151      board.

             152          (11) An aggrieved party to a final action by the board may obtain judicial review of
             153      that action under [Section] Sections 63-46b-15 and 63-46b-16 .
             154          Section 3. Section 53C-2-104 is amended to read:
             155           53C-2-104. Preexisting federal mining claims on trust lands -- Filing of notice --
             156      Conclusive evidence of abandonment.
             157          (1) The Legislature recognizes the importance of having an effective state filing system
             158      for unpatented federal mining claims located on trust lands prior to the state's acquisition of
             159      title that would allow the state to determine the extent of preexisting unpatented mining claims
             160      on those lands and eliminate the cloud on the state's title created by abandoned unpatented
             161      mining claims, while preserving the rights of owners of valid preexisting unpatented mining
             162      claims located on those lands.
             163          (2) [Prior to January 1, 1998, and annually thereafter] Annually on or before December
             164      31, each owner of an unpatented lode mining claim, placer mining claim, mill site claim, or
             165      tunnel site claim located pursuant to the general mining laws of the United States on lands now
             166      owned of record by the state in trust for the common schools or other beneficiary institutions
             167      shall file with the administration a notice as prescribed by Subsection (3).
             168          (3) (a) The initial notice required by Subsection (2) that is filed [prior to January 1,
             169      1998,] by a claimant shall include:
             170          (i) a statement of the owner's intention to hold or abandon the claim;
             171          (ii) a brief description of the type and nature of the claim;
             172          (iii) the date the claim was located, and the date the claim was filed of record in county
             173      and federal records;
             174          (iv) a copy of the official record of the notice of location or certificate of location of the
             175      claim; and
             176          (v) a legal description of the claim, by legal subdivision or metes and bounds
             177      description, sufficient to locate the claimed lands on the ground.
             178          (b) [A] Each subsequent notice required by Subsection (2) [that is filed after January 1,
             179      1998,] shall include:
             180          (i) the name of the claim; and
             181          (ii) a statement of the owner's intention to hold or abandon the claim.
             182          (4) (a) The administration shall note the existence of all claims for which notices have

             183      been filed in the central index of all trust lands required under Section 53C-2-101 .
             184          (b) The administration may impose a reasonable filing fee as a condition for accepting
             185      the required notices, not to exceed $50 per claim, to defray the administrative costs of
             186      maintaining an index of claims.
             187          (5) (a) Failure to file the notice required by this section constitutes an abandonment of
             188      the claim by the owner.
             189          (b) Filing of the required notice by one owner of a claim in which multiple persons
             190      own or claim interests fulfills the filing requirements of this section.
             191          (6) Filing of a notice under this section does not make valid a claim which is otherwise
             192      invalid under other applicable law.
             193          (7) Acquisition of rights to extract minerals underlying trust lands is governed by Part
             194      4 of this chapter.
             195          (8) This section does not waive any fees, filings, or other requirements imposed by
             196      federal law.
             197          Section 4. Section 53C-2-105 is enacted to read:
             198          53C-2-105. Withdrawal of trust lands from leasing or other dispositions.
             199          (1) The director may at any time withdraw trust lands from applications for leasing,
             200      permitting, sale, or other disposition of any nature upon a finding that the interests of the trust
             201      would best be served through withdrawal.
             202          (2) Any withdrawal which is in force on May 5, 2003, shall continue in force until
             203      revoked by the director.
             204          Section 5. Section 53C-2-401 is amended to read:
             205           53C-2-401. Coal and mineral deposits reserved -- Exceptions.
             206          (1) (a) Except as otherwise expressly provided by law, coal and mineral deposits in
             207      trust lands are reserved to the respective trust.
             208          (b) Each certificate of sale and patent issued shall contain such a reservation.
             209          (c) The purchaser of any lands belonging to the trust:
             210          (i) acquires no right, title, or interest in coal or mineral deposits; and
             211          (ii) is subject to the conditions and limitations prescribed by law providing for the state
             212      and any person authorized by it to:
             213          (A) prospect or mine;

             214          (B) remove the deposits; and
             215          (C) occupy and use as much of the surface of the lands as may be required for any
             216      purpose reasonably incident to the mining and removal of the deposits.
             217          (d) (i) Coal and mineral deposits in trust lands may be leased on a rental and royalty
             218      basis.
             219          (ii) The administration may also, with board approval, enter into joint ventures,
             220      farmout agreements, exploration agreements, operating agreements, and other business
             221      arrangements for the disposition of coal and mineral deposits in trust lands.
             222          (iii) The mineral estate in trust lands may not be sold except as authorized in
             223      Subsection (2).
             224          (iv) Agreements made under Subsection (1)(d)(ii) are not subject to Subsections
             225      53C-2-405 (3) and (4).
             226          (2) Except as otherwise prohibited by the Jones Act of January 25, 1927, 43 U.S.C.
             227      Sections 870-871, mineral interests in trust lands may be exchanged for mineral interests of
             228      comparable value or otherwise disposed of, if their retention would create a liability exceeding
             229      their value.
             230          (3) (a) Common varieties of sand, gravel, and cinders are not considered to be minerals
             231      under this section but may be reserved by specific action of the director.
             232          (b) Common varieties do not include deposits which are valuable because the deposit
             233      contains characteristics which give it distinct and special value.
             234          Section 6. Section 72-5-203 is amended to read:
             235           72-5-203. Public easement or right of entry -- Grant -- Application -- Conditions.
             236          (1) (a) (i) Subject to Section 53C-1-302 and Subsection 53C-1-204 (1), a temporary
             237      public easement or right of entry is granted for each highway existing prior to January 1, 1992,
             238      that terminates at or within or traverses any state lands and that has been constructed and
             239      maintained or used by a responsible authority.
             240          (ii) The temporary public easement or right of entry granted under Subsection (1)(a)(i)
             241      is 100 feet wide for each class A and B highway.
             242          (b) Each easement shall remain in effect through June 30, 2004, or until a permanent
             243      easement or right of entry has been established under Subsection (2), whichever is [less]
             244      greater.

             245          (2) (a) The School and Institutional Trust Lands Administration and the Division of
             246      Forestry, Fire and State Lands shall make rules in accordance with Title 63, Chapter 46a, Utah
             247      Administrative Rulemaking Act, establishing an application process for a responsible authority
             248      to obtain a permanent easement or right of entry over any temporary public easement granted
             249      under Subsection (1), subject to the provisions of Subsections (2)(b), (c), and (d).
             250          (b) A grant of a permanent easement or right of entry across sovereign lands shall be
             251      made upon a showing to the Division of Forestry, Fire and State Lands that continued use of
             252      the easement will provide a public benefit commensurate with the value of the permanent
             253      easement or right of entry.
             254          (c) A grant of a permanent easement or right of entry across trust lands shall be made
             255      upon a showing to the School and Institutional Trust Lands Administration that the grant is
             256      consistent with the state's fiduciary responsibilities under Section 53C-1-302 and Subsection
             257      53C-1-204 (1).
             258          (d) A grant of a permanent easement or right of entry across state lands other than
             259      sovereign and trust lands shall be made upon a showing to the managing unit of state
             260      government that the continued use will provide a public benefit commensurate with the value
             261      of the easement and will not unreasonably interfere with the purposes for which the land was
             262      obtained or is now held.
             263          (3) The grant of the temporary public easement or right of entry under Subsection (1) is
             264      consistent with the trust responsibilities of the state and in the best interest of the state.
             265          (4) A responsible authority that has been granted a permanent easement or right of
             266      entry over state lands may maintain the permanent easement or right of entry for the uses to
             267      which the permanent easement or right of entry was put prior to and including January 1, 1992,
             268      subject to the right of the managing unit of state government or private party to relocate the
             269      permanent easement or right of entry.
             270          (5) The grant of a permanent easement or right of entry under this section is effective
             271      on the date the highway was originally constructed or established for public use.
             272          Section 7. Repealer.
             273          This act repeals:
             274          Section 53C-2-406, Withdrawal of trust lands from leasing.

Legislative Review Note
    as of 2-13-03 3:47 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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