No. 42678 (Amendment): Rule R850-40. Easements

(Amendment)

DAR File No.: 42678
Filed: 03/13/2018 02:01:31 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The School and Institutional Trust Lands Administration (SITLA) wishes to more efficiently manage easements across trust lands to maximize revenue and to protect the interests of its beneficiaries. Certain rules have proven unnecessarily burdensome and can be improved through revision or elimination. These amendments will help reduce or eliminate the expenditure of SITLA resources for activities that are nominal revenue-generating activities.

Summary of the rule or change:

The current rule requires a 90-day notice and advertising period for a party claiming a temporary easement to acquire a permanent easement. By amending this to a 30-day notice and advertising period, adequate time is provided for interested parties to submit a road claim prior to temporary easements, or rights of entry across trust property are extinguished while allowing the agency to transact business on behalf of its beneficiaries in a more timely manner. The requirement to file a written notice prior to entering a trust parcel to perform a survey for an easement is unnecessary and is being repealed as it provides little to no benefit to any of the parties. The easement assignment fee requirement is being amended to facilitate assignments that are made for no money consideration between certain individuals or within a restructured company. The final change is to remove the requirement for an administrative fee to be paid every three years throughout the term of an easement as a means for the agency to determine abandonment of the easement. The agency no longer issues easements for terms longer than 30 years, except in specific exceptions, therefore, the need to determine abandonment is rarely necessary.

Statutory or constitutional authorization for this rule:

• Subsection 53C-2-201(1)(a)
• Section 53C-1-302
• Section 53C-4-203

Anticipated cost or savings to:

the state budget:

There may be a very minimal cost to the state budget as a result of these amendments due to removing the requirement for a permittee to submit an administrative fee every three years throughout the term of the easement. Since this fee is as little as $10 per easement, the savings in staff time to monitor this activity will probably outweigh the loss of the fee.

local governments:

Local governments will only be affected if they have an easement across trust lands. Easements owned by local governments are usually permanent and there is little likelihood that the easement will be abandoned. The savings to local governments will be very minimal considering the small amount of the administrative fee that has been required every three years.

small businesses:

Any savings to small businesses with an easement over trust lands would be very minimal as a result of removing the administrative fee requirement as the amount is so small and required only every three years.

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

Any savings to persons other than small businesses, businesses, or local government entities with an easement over trust lands would be very minimal as a result of removing the administrative fee requirement as the amount is so small and required only every three years.

Compliance costs for affected persons:

There are no compliance costs for affected persons as a result of these amendments being made to this rule.

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

Any fiscal impact on businesses will be to their benefit. Certain nominal fees will be eliminated, along with administrative costs in paying those fees. Certain assignments of easements will be less costly because these proposed rule amendments do not create any additional requirements. Therefore, there will be no additional costs to businesses.

David Ure, Director

The full text of this rule may be inspected, during regular business hours, at the Office 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:

• Kim 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:

05/01/2018

This rule may become effective on:

05/08/2018

Authorized by:

David Ure, Director

RULE TEXT

Subsection 53C-1-201(3)(c) exempts the School and Institutional Trust Lands Administration from the requirement to conduct a thorough analysis, consistent with the criteria established by the Governor's Office of Management and Budget, of the fiscal impact a rule may have on businesses, as required in Subsection 63G-3-301(5).

 

 

R850. School and Institutional Trust Lands, Administration.

R850-40. Easements.

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

1. In order to determine the existence and continuation of any temporary easements or rights-of-entry granted pursuant to Section 72-5-203 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 does 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 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 is intended to provide information to any responsible authority wishing to assert 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 by the agency 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]30 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, the advertisement shall put responsible authorities on notice that the agency may take action extinguishing the temporary easement or right-of-entry. Other responsible authorities shall have [90]30 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 an authorized easement or right-of-entry, the agency shall evaluate the request pursuant to the fiduciary responsibilities of the agency. 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, any statutory temporary easement or right-of-entry on the subject property shall automatically be extinguished. The agency will not sell trust lands for at least [30]14 days after a final decision to disapprove an application to make a statutory temporary easement or right-of-entry permanent.

 

[R850-40-500. Surveys.

1. Anyone desiring to perform a survey on 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.]

 

R850-40-1600. 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 in easement rental 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]alternate consideration established by, and at the discretion of, the director. In allowing for any alternate [fee]consideration the director may consider the following factors:

A) the [fee]consideration established under R850-40-1600(1)(c)(i) would 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.

6. Assignments made for no consideration in money, services, or goods, to include assignments made to affiliates (e.g. wholly owned subsidiaries) of the easement grantee, and to include inter vivos or testamentary assignments made to immediate family members (parents, spouse, children, grandchildren, and full siblings) and assignments from and to business entities wholly owned by an immediate family member or members, may be exempt from the requirement to pay the difference in easement rental established under R850-40-1600(1)(c)(i).

 

R850-40-1800. Abandonment.

1. [In order to]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. The requirement to pay this administrative charge shall apply if:

(a) the easement is an existing easement in agency records as of December 31, 2017, and

(b) the easement term is perpetual, and

(c) the requirement to pay this administrative charge was effective and included as a contract term at the time the easement was granted, and

(d) the grantee is not a governmental entity. Governmental entities include but are not limited to municipal or county governments or agencies of the state or federal government.

2. The grantee shall not be required to pay this administrative charge for all easements issued or renewed on or after January 1, 2018.

[2]3. This administrative charge shall not be construed as rent.

[3]4. [In lieu of this charge, the agency may allow a grantee to pay a one-time negotiated charge.]The agency may accept payment of the administrative charge submitted by any easement grantee.

 

KEY: natural resources, management, surveys, administrative procedures

Date of Enactment or Last Substantive Amendment: [October 22, 2009]May 8, 2018

Notice of Continuation: June 27, 2017

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

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