No. 35541 (Emergency Rule): Rule R850-41. Rights of Entry

DAR File No.: 35541
Filed: 12/14/2011 05:11:52 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Pursuant to Subsections 53C-1-302(1)(a)(ii) and 53C-4-101(1), the Director of the School and Institutional Trust Lands Administration is directed to make rules for the sale, exchange, lease, or other disposition or conveyance of trust lands, including procedures for determining fair-market value of those lands. The previous rule governing the right to enter upon trust lands and conduct non-disturbing, short-term activities was inadvertently allowed to expire, eliminating the agency's ability to allow and manage this type of activity on trust lands. In order that the agency may continue to manage existing rights of entry, as well as issue new ones which provide income to the various trust beneficiaries, this emergency rule filing will allow the agency to remain in compliance with statute until such time as the proposed new rule goes through the rulemaking process and becomes effective in February 2012.

Summary of the rule or change:

The proposed new rule is identical to the rights of entry program rule which expired. This rule governs the issuance and management of rights of entry and allows the agency to extend the right to others to enter upon trust lands and conduct non-disturbing, short-term activities for the benefit of the various trust beneficiaries. This emergency rule will allow the agency to remain in compliance with statute until such time as a new rule can be made effective. (DAR NOTE: The proposed new Rule R850-41 is under DAR No. 35542 in this issue, January 1, 2012, of the Bulletin.)

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: State law, as cited above, requires the agency to maintain rules for the disposition of trust lands. If the proposed rule is not enacted, the agency will not be in compliance with state statute.

State statutory or constitutional authorization for this rule:

• Subsection 53C-4-101(1)
• Subsection 53C-1-302(1)(a)(ii)

Anticipated cost or savings to:

the state budget:

This rule is in essence a re-enactment of the previously expired rule so there will be no addition cost or savings to state budget beyond what previously existed.

local governments:

This rule is in essence a re-enactment of the previously expired rule, and there will not be any additional cost or savings to local government beyond what previously existed.

small businesses:

This rule is essentially a re-enactment of the previously expired rule and there will not be any additional costs or savings to small businesses beyond what previously existed.

persons other than small businesses, businesses, or local governmental entities:

This rule is essentially a re-enactment of the previously expired rule and there will not be any additional costs or savings to persons other than small businesses, businesses, or local government entities than what previously existed.

Compliance costs for affected persons:

This rule is essentially a re-enactment of the previously expired rule and there are no additional compliance costs for affected persons beyond what previously existed.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule will continue to benefit businesses through allowing short-term commercial use of trust lands.

Kevin S. Carter, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

School and Institutional Trust Lands
AdministrationRoom 500
675 E 500 S
SALT LAKE CITY, UT 84102-2818

Direct questions regarding this rule to:

• John Andrews at the above address, by phone at 801-538-5180, by FAX at 801-538-5118, or by Internet E-mail at [e-mail]

This rule is effective on:

12/14/2011

Authorized by:

Kevin Carter, Director

RULE TEXT

R850. School and Institutional Trust Lands, Administration.

R850-41. Rights of Entry.

R850-41-100. Authorities.

This rule implements Sections 6, 8, 10, and 12 of the Utah Enabling Act, Articles X and XX of the Utah Constitution, and Sections 53C-1-302(1)(a)(ii) and 53C-4-101(1) which authorize the Director of the School and Institutional Trust Lands Administration to establish criteria by rule for the sale, exchange, lease or other disposition or conveyance of Trust Lands Administration lands including procedures for determining fair-market value of those lands.

 

R850-41-150. Planning.

Pursuant to Section 53C-2-201(1)(a), this category of activity carries no planning obligations by the agency beyond existing rule-based analysis and approval processes.

 

R850-41-200. Rights of Entry on Trust Lands Administration Lands.

1. The agency may issue non-exclusive right of entry permits on Trust Lands Administration lands when the agency deems it consistent with agency rules and trust responsibilities.

2. Commercial use of Trust Lands Administration lands: a right of entry permit shall be required for any person to use, occupy, or travel upon Trust Lands Administration land in conjunction with any commercial enterprise without regard to the incidental nature of the use, occupancy, or travel, except that a right of entry permit shall not be necessary when the use, occupancy, or travel is across authorized public roads or permitted under some other land use authorization issued by the agency and currently in effect.

3. Non-commercial use of Trust Lands Administration land shall not require a permit provided that the use shall not exceed 15 consecutive days and shall not conflict with an applicable land use or with a management plan. At the conclusion of the 15-day period, any personal property, garbage, litter, and associated debris must be removed by the user. The use may not be relocated on any other Trust Lands Administration land within a distance of at least two miles from the original site or be allowed to reestablish at the original site for 20 consecutive days. If, for any reason, a non-commercial, incidental user desires a document authorizing the use, the agency may issue a Letter of Authorization upon payment of an administrative charge.

4. Non-commercial uses of Trust Lands Administration land exceeding 15 consecutive days will require a right of entry permit.

 

R850-41-300. Rights of Entry Acquired by Application.

Rights of entry on Trust Lands Administration lands may be acquired only by application and grant made in compliance with the rules and laws applicable thereto. All applications shall be made on agency forms. The filing of an application form is deemed to constitute the applicant's offer to purchase a right of entry under the conditions contained in these rules.

 

R850-41-400. Valuable Consideration for Right of Entry Permits.

The consideration for any right of entry permit granted under these rules, including those granted to municipal or county governments or agencies of the state or federal government, shall be determined pursuant to R850-41-600.

 

R850-41-500. Agency Contractors.

Any person doing work for the agency under a contract or other permit may enter upon Trust Lands Administration lands for the purpose and period of time authorized by the contract or other permit without obtaining a right of entry.

 

R850-41-600. Right of Entry Fees.

The agency shall establish minimum fees for right of entry permits which may be based on the cost incurred by the agency in administering the right of entry permit and the fair-market value of a proposed land use.

 

R850-41-700. Application Procedures.

1. Time of Filing. Applications for right of entry permits are received for filing in the office of the agency during office hours. Except as provided, all applications received, whether by U.S. Mail or delivery over the counter, are immediately stamped with the exact date of filing.

2. Non-refundable Application Fees. All applications must be accompanied with a non-refundable application fee as specified in R850-4. After review of the application, the agency shall notify the applicant of the fee pursuant to R850-41-600. Failure to pay the fee within 15 days of mailing of notification shall cause the denial of the application.

3. Refunds and Withdrawals of Applications.

(a) If an application for a right of entry permit is rejected, all monies tendered by the applicant, except the application fee, will be refunded.

(b) Should an applicant desire to withdraw the application, the applicant must make a written request. If the request is received prior to the time that the application is approved, all monies tendered by the applicant, except the application fee, will be refunded. If the request for withdrawal is received after the application is approved, all monies tendered are forfeited to the agency, unless otherwise ordered by the director for a good cause shown.

4. Application Review.

(a) Upon receipt of an application, the agency shall review the application for completeness. The agency shall allow all applicants submitting incomplete applications at least 15 days from the date of mailing of notice as evidenced by the certified mailing posting receipt (Postal Service form 3800), within which to cure any deficiencies. Incomplete applications not remedied within the designated time period may be denied.

(b) Application approval by the director constitutes acceptance of the applicant's offer.

 

R850-41-800. Term of Rights of Entry.

Rights of entry granted under these rules shall normally be for no greater than a one year term. Longer terms may be granted upon application based on a written finding that such a grant is in the best interest of the trust beneficiaries.

 

R850-41-900. Conveyance Documents.

Each right of entry shall contain provisions necessary to ensure responsible surface management, including the following provisions: the rights and responsibilities of the permittee, rights reserved to the permitter; the term of the right of entry; payment obligations; and protection of the Trust Lands Administration from liability for all action of the permittee.

 

R850-41-1000. Bonding Provisions.

1. Prior to the issuance of a right of entry, or for good cause shown at any time during the term of the right of entry, upon 15 days' written notice, the applicant or permittee may be required to post with the agency a bond in the form and amount as may be determined by the agency to assure compliance with all terms and conditions of the right of entry.

2. Bonds posted on rights of entry may be used for payment of all monies, rentals, royalties due to the permitter, reclamation costs, and for compliance with all other terms, conditions, and rules pertaining to the right of entry.

3. Bonds may be increased or decreased in reasonable amounts, at any time as the agency may decide, provided the agency first gives permittee 15 days' written notice stating the increase and the reason(s) for the increase.

4. Bonds may be accepted in any of the following forms at the discretion of the agency:

(a) Surety bond with an approved corporate surety registered in Utah.

(b) Cash deposit. However, the Trust Lands Administration will not be responsible for any investment returns on cash deposits.

(c) Certificates of deposit in the name of "School and Institutional Trust Lands Administration and Permittee, c/o Permittee's address", with an approved state or federally insured banking institution registered in Utah. The certificate of deposit must have a maturity date no greater than 12 months, be automatically renewable, and be deposited with the agency, the permittee will be entitled to and receive the interest payments. All certificates of deposit must be endorsed by the permittee prior to acceptance by the director.

(d) Other forms of surety as may be acceptable to the agency.

(e) Due to the temporary nature of rights of entry, if the agency imposes or increases the amount of a bond, a stop-work order may be issued by the agency to insure the adequacy of the bond prior to the completion of work or activities authorized by the right of entry permit.

 

R850-41-1100. Conflicts of Use.

The agency reserves the right to issue additional rights of entry or convey other interests in property on Trust Lands Administration land encumbered by existing rights of entry without compensation to the permittee.

 

R850-41-1200. Amendments.

Any holder of an existing right of entry permit desiring to change any of the terms thereof, shall make application following the same procedure as is used to make an application for a new right of entry. An amendment fee pursuant to R850-4 must accompany the amendment request along with other appropriate fees.

 

R850-41-1300. Unauthorized Uses.

A right of entry permit does not authorize a permittee to cut any trees or remove or extract any natural, cultural, or historical resources.

 

R850-41-1310. Prevention of the Spread of Noxious Weeds.

1. In an effort to halt the spread of noxious weeds, trust lands are closed to:

(a) the possession, use or storage of hay, straw, or mulch which has not been certified as noxious weed free or noxious weed seed free, and

(b) the possession, use or storage of supplemental grain or grain products which do not meet the requirements of the "Utah Commercial Feed Act" standards.

2. These restrictions do not apply to:

(a) the use of pelletized feed by authorized occupants on trust lands,

(b) persons with Modified Grazing Permits or Agricultural Special Use Leases that provide for the use of these materials, or

(c) persons with authorization pursuant to R850-50-600(6).

 

R850-41-1400. Right of Entry Assignments.

1. A right of entry may be assigned to any person, firm, association, or corporation qualified under R850-3-200, provided that the assignments are approved by the agency; and no assignment is effective until approval is given. Any assignment made without such approval is void.

2. An assignment shall take effect the day of the approval of the assignment. On the effective date of any assignment, the assignee is bound by the terms of the easement to the same extent as if the assignee were the original grantee, any conditions in the assignment to the contrary notwithstanding.

3. An assignment must be a sufficient legal instrument, properly executed and acknowledged, and should clearly set forth the easement number, and land involved, and the name and address of the assignee.

4. An assignment shall be executed according to agency procedures.

 

R850-41-1500. Termination of Rights of Entry.

Any right of entry permit granted by the agency on Trust Lands Administration land may be terminated in whole or in part for failure to comply with any term or condition of the conveyance document or applicable laws or rules. Based on a written finding, the director shall issue an appropriate instrument when terminating the right of entry for cause.

 

KEY: natural resources, management, administrative procedures

Date of Enactment or Last Substantive Amendment: December 14, 2011

Authorizing, and Implemented or Interpreted Law: 53C-1-302(1)(a)(ii); 53C-2-201(1)(a); 53C-4-101(1)

 

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