No. 30499 (Amendment): R850-40. Easements

DAR File No.: 30499
Filed: 09/27/2007, 04:11
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended in order to move easement-related processes and procedures from the agency's sales rules and consolidate them with the existing easement rule. The changes are also intended to simplify and clarify existing procedures.

Summary of the rule or change:

Procedures relating to the determination of the status of temporary easements and rights-of-entry were previously removed from the agency's sales rule and are being added to the easement rule. Other changes to this rule involve the consolidation of easement processes for greater clarity with the resulting need for the renumbering of various subsections.

State statutory or constitutional authorization for this rule:

Sections 53C-1-302 and 53C-4-203, and Subsection 53C-2-201(1)(a)

Anticipated cost or savings to:

the state budget:

It is not anticipated that there will be any additional cost or savings to the state resulting from these rule changes since no changes have been made to existing processes. This amendment is for the purpose of relocating existing rule-based processes and clarifying those processes for the ease of the applicant and agency.

local governments:

It is anticipated that there will be no additional cost or savings to local government as a result of these rule changes. The changes are for the purpose of relocating existing rule-based processes and for clarifying those processes.

small businesses and persons other than businesses:

It it is not anticipated that there will be any additional cost or savings to small businesses since the changes to the rule are for the purpose of relocating existing rule-based processes and clarifying them.

Compliance costs for affected persons:

There should be no compliance costs for affected persons as a result of this rule amendment since the amendments are for the purpose of relocating existing rule-based processes and giving those processes greater clarity.

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

These modifications are primarily renumbering and clarifying changes. Consequently, I do not anticipate that there will be any impact to business. There is the possibility that by clarifying the rules, their application will be easier for the business community. 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
Administration
675 E 500 S
SALT LAKE CITY UT 84102-2818

Direct questions regarding this rule to:

Kim S. Christy at the above address, by phone at 801-538-5183, by FAX at 801-355-0922, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/14/2007

This rule may become effective on:

11/21/2007

Authorized by:

Kevin S. Carter, Director

RULE TEXT

R850. School and Institutional Trust Lands, Administration.

R850-40. Easements.

R850-40-100. 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 and 53C-4-203 which authorize the [Director of the School and Institutional Trust Lands Administration]director to establish rules for the issuance of easements on, through, and over [any Trust Lands Administration]trust land, and to establish price schedules for this use.

 

R850-40-150. Planning.

[Pursuant to Section 53C-2-201(1)(a), the Trust Lands Administration shall also undertake to complete the following planning obligations, in addition to the rule-based analysis and approval processes that are prescribed by this rule:]The agency shall:

1. [To the extent required by the Memorandum of Understanding between the State Planning Coordinator and the School and Institutional Trust Lands Administration, submit the proposal]Submit proposed easements for review by the Resource Development Coordinating Committee (RDCC) unless the proposal is exempt from such review; and

2. [Evaluation of]Evaluate and respond to comments received through the RDCC process.

 

R850-40-200. Easements Issued on Trust[ Lands Administration] Lands.

1. The agency may issue exclusive, non-exclusive, and conservation easements on trust lands [when]if the agency [deems it consistent with trust responsibilities]determines such action would be in the best interests of the trust beneficiaries.

 

R850-40-250. Determination of the Status of Temporary Easements and Rights-of-Entry.

1. In order to determine the existence of any temporary easements or rights-of-entry on a specific parcel of trust land (the subject property), the agency may undertake the notification process set forth in R850-40-250(2). This evaluation shall not adjudicate the status of any highway crossing the subject property that may have been established pursuant to any federal statute, such as R.S. 2477 Highways established in accordance with the requirements of federal law, including R.S. 2477, prior to the state taking title to the subject property are recognized as valid existing rights.

2. In order to determine the existence of a permissive statutory temporary easement or right-of-entry on the subject property, the agency shall give notice to responsible authorities, as defined in Subsection 72-5-202(1). This notice will provide information to any responsible authority asserting a temporary easement or right-of-entry on the process used to file an application to make such temporary easement or right-of-entry permanent (the "application") The application must contain a description of the facts which lead the applicant to believe that a statutory temporary easement or right-of-entry exists on the subject property, and other information that may be required by the agency to verify the assertion. Notice shall be provided as follows:

(a) Certified notice shall be mailed to the Attorney General and the executive body of the county in which the subject property is located. This notice shall include the legal description of the subject property and a map showing its location. The executive body of the county shall have 90 days from the date of the notice within which to submit an application.

(b) Notice to other responsible authorities who may have an interest in the subject property shall be given through publication at least once a week for three consecutive weeks in one or more newspapers of general circulation in the county where the subject property is located. In addition to the legal description of the subject property being considered for sale, the advertisement shall put responsible authorities on notice that the agency may take action extinguishing the temporary easement or right-of-entry upon sale of the subject property. Other responsible authorities shall have 90 days from the first date of publication within which to submit the application.

3. Upon the receipt of an application to convert a temporary easement or right-of-entry into a permanent property easement or right-of-entry, the agency shall evaluate the request pursuant to the fiduciary responsibilities of the agency. A decision on whether or not to approve the application shall be made at least 30 days prior to a sale of the subject property. Prior to the agency approving or rejecting an application, if any, the agency shall review the supporting documentation submitted by the applicant. The agency shall consider material submitted by any responsible authority pursuant to the applicant's appropriate statutory authority. If no application is received after notice is given pursuant to R850-40-250(2), or if an application to make the temporary easement or right-of-entry permanent is not approved, the temporary easement or right-of-entry on the subject property shall be extinguished.

 

R850-40-300. [Easements Acquired by Application]Easement Acquisition.

1. Easements across [Trust Lands Administration]trust lands may be acquired only by application and grant made in compliance with these rules and the laws applicable thereto.

2. Easements,[ No easement,] or other interests in [Trust Lands Administration]trust lands, may not be acquired by:

(a) prescription,[ by ]

(b) adverse possession, [nor]or[ by ]

(c) any other legal doctrine except as provided by statute.[ All applications shall be made on agency forms. The filing of an application form is deemed to constitute the applicant's offer to purchase an easement under the conditions contained in the conveyance document and these rules.

2. Pursuant to Section 72-5-203(2)(a), applications shall be accepted for easements for roads in existence prior to January 1, 1992 for which easements were not in effect on that date. Easements issued under this section shall be subject to all applicable provisions of R850-40.]

 

R850-40-400. Easement Charges.

[1. ]The charge for any easement granted or renewed under these rules, including those granted to municipal or county governments or agencies of the state or federal government, [shall]may be [determined pursuant to R850-40-600]based on either the market value of the use or the market value of the land encumbered by the easement.[

2. The charge for easements issued to a subdivision of the state pursuant to R850-40-300(2) shall be subtracted from the aggregate pool of value collected from sovereign land receipts and other sources allocated for this purpose by the legislature pursuant to statute. Payments may be made over time.

3. The agency may, when issuing easements pursuant to R850-40-300(2), also accept payment from sources other than the aggregate pool and may credit the value of benefits accruing to trust beneficiaries from continued maintenance of the easement and the value of access against accrued interest.]

 

R850-40-500. Surveys.

1. Anyone desiring to perform a survey on [Trust Lands Administration]trust land with the intent of filing an application for an easement, shall prior to entry for surveying activities, file with the agency written notice of intent to conduct a survey of the proposed location of the easement.

2. The notice, which may be in letter form, shall describe the proposed project, including the purpose, general location, potential resource disturbances of the proposed easement and survey, and projected construction time for any improvements.

3. The notice shall also contain an agreement to indemnify and hold the agency and any authorized lessees harmless against liability and damages for loss of life, personal injury and property damage occurring due to survey activities and caused by applicant, his employees, his agents, his contractors or subcontractors and their employees. In lieu of an agreement the applicant may submit a surety bond in an amount agreeable to the director.

4. The written notice shall be reviewed by the agency. The agency may require the applicant to obtain a right-of-entry agreement.

 

R850-40-600. Minimum Charges for Easements.

The agency may establish [price schedules for easements]a minimum charge for an easement based on the cost incurred by the agency in administering the easement.[ and the fair-market value of the particular use.]

 

R850-40-700. Application Procedures.

1. [Time of Filing. Applications for an easement shall be received for filing in the office of the agency during office hours pursuant to R850-3.]All applications shall be made on agency forms. The filing of an application form is deemed to constitute the applicant's offer to purchase an easement under the conditions contained in the conveyance document and these rules.

2. Application approval by the director constitutes acceptance of the applicant's offer.

3. The easement shall be executed by the applicant and returned to the agency within 60 days from the date of applicant's receipt of the written easement. Failure to execute and return the documents to the agency within the 60-day period may result in cancellation of the conveyance and the discharge of any obligation of the agency arising from the approval of the application.

 

R850-40-1000. Bonding Provisions.

1. Prior to the issuance of an easement, or for good cause shown at any time during the term of the easement, upon 30 days['] written notice, the applicant or grantee, as the case may be, 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 easement.

2. All bonds posted on easements may be used for payment of all monies[, rentals, and royalties] due to the [grantor, also]agency for costs of reclamation and [for ]compliance with all other terms and conditions of the easement, and rules pertaining to the easement. The bond shall be in effect even if the grantee has conveyed all or part of the easement interest to a sublessee, assignee, or subsequent operator until the grantee fully satisfies the easement obligations, or until the bond is replaced with a new bond posted by the sublessee or assignee.

3. Bonds may be increased in reasonable amounts, at any time as the agency may decide, provided grantor first gives grantee 30 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, Trust Lands Administration will not be responsible for any investment returns on cash deposits.

(c) [Certificate of deposit in the name of "School and Institutional Trust Lands Administration and Grantee, c/o Grantee'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 grantee will be entitled to and receive the interest payments. All certificates of deposit must be endorsed by the grantee prior to acceptance by the director.

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

 

R850-40-1100. Conflict of Use.

The agency reserves the right to issue non-exclusive easements or [other ]leases, or to dispose of the property by sale or exchange, on land encumbered by existing easements.[ when compatible with the original grant.]

 

[R850-40-1210. Easement Conversion.

Easements issued for uses or purposes which would more appropriately be authorized by a special use lease shall be converted, whenever possible, to a special use lease. Any application for the conversion of an easement to a special use lease must follow the process outlined in R850-30-500(2)(g).

 

]R850-40-1300. Renewal of Easement.

Prior to the expiration date of any easement, [heretofore or hereafter granted for a limited term of years, ]an application may be submitted for a renewal of the grant upon payment of the consideration as may then be required.

 

R850-40-1500. Removal of Trees.

[In the event the easement crosses forested Trust Lands Administration land, no trees may]Forest products shall not be cut or removed from the easement unless and until a small forest product permit or a timber contract as provided for in agency rules has been obtained.

 

R850-40-1600. Easement Assignments.

1. An easement may be assigned to any person, firm, association, or corporation qualified under R850-3-200, provided that:

(a) the assignment is approved by the agency;

(b) if the easement term is perpetual, the easement shall be amended so that the term is 30 years beginning as of the original effective date. However, if the remaining number of years on an easement so amended is less than 15 years, the ending date of the easement shall be set so that there will be 15 years remaining in the easement; and

(c) payment is made of either:

[(]i) the difference between what was originally paid for the easement and what the agency would charge for the easement at the time the application for assignment is submitted, or

[(]ii) an alternate fee established by, and at the discretion of, the director. In allowing for any alternate fee the director [shall]may consider the following factors:

[(]A) the fee established under [1(c)(i)]R850-40-1600(1)(c)(i) would [exceed $10,000, or would otherwise ]create an undue financial burden upon the applicant, or

[(]B) the assignment facilitates an agency objective.

2. An assignment shall take effect the date 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, land involved, and the name and address of the assignee and, for the purpose of this rule shall include any agreement which transfers control of the easement to a third party.

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

5. An assignment is not effective until approval is given by the agency. Any assignment made without such approval is void.

 

R850-40-1700. Termination of Easement.

1. Any easement granted by the agency [across its land ]may be terminated in whole or in part for failure to comply with any term or condition[s] of the conveyance document or applicable laws or rules.

2. Upon determination by the director that an easement is subject to termination pursuant to the terms of the grant or applicable laws or rules, the director shall issue an appropriate instrument terminating the easement.

 

R850-40-1800. Abandonment.

1. In order to facilitate the determination of an abandonment of easement, the grantee shall pay an administrative charge every three years during the term of the easement as provided in R850-4.

2. This administrative charge shall not be construed as rent.

3. In lieu of this charge, the agency may allow a grantee to pay [to the agency ]a one-time negotiated charge.

 

KEY: natural resources, management, surveys, administrative procedures

Date of Enactment or Last Substantive Amendment: [November 1, 2002]November 21, 2007

Notice of Continuation: June 27, 2007

Authorizing, and Implemented or Interpreted Law: 53C-1-302; 53C-2-201(1)(a); 53C-4-203