;OVERNMENT

Storage -

AUTHORIZING SALE OF CERTAIN LANDS

HEARING

BEFORE THE _

SUBCOMMITTEE ON PUBLIC LANDS

OF THE

COMMITTEE ON

INTERIOR AND INSULAR AFFAIRS

N

UNITED STATES SENATE .0

onj EIGHTY-NINTH CONGRESS 

FIRST SESSION

ON

-13

rgra S. 625

A BILL TO AUTHORIZE THE SALE OF ISOLATED

OR DISCONNECTED TRACTS OF LAND

JULY 9, 1965

Printed for the use of the

Committee on Interior and Insular Affairs

U.S. GOVERNMENT PRINTING OFFICE

53-535 WASHINGTON: 1905
COMMITTEE ON INTERIOR AND INSULAR AFFAIRS

HENRY M. JACKSON, Washington, Chairman

CLINTON P. ANDERSON, New Mexico THOMAS H. KUCHEL, California

ALAN BIBLE, Nevada

FRANK CHURCH, Idaho

ERNEST GRUENING, Alaska

FRANK E. MOSS, Utah

QUENTIN N. BURDICK, North Dakota

CARL HAYDEN, Arizona

GEORGE McGOVERN, South Dakota

GAYLORD NELSON, Wisconsin

LEE METCALF, Montana

GORDON ALLOTT, Colorado

LEN B. JORDAN, Idaho

MILWARD L. SIMPSON, Wyoming

PAUL J. FANNIN, Arizona

JERRY T. VERKLER, Staff Director

STEWART FRENCH, Chief Counsel

PORTER WARD, Professional Staff Member

SUBCOMMITTEE ON PUBLIC LANDS

FRANK CHURCH, Idaho, Chairman

HENRY M. JACKSON, Washington

ALAN BIBLE, Nevada

ERNEST GRUENING, Alaska

CARL HAYDEN, Arizona

LEE METCALF, Montana

GORDON ALLOTT, Colorado

LEN B. JORDAN, Idaho

PAUL J. FANNIN, Arizona
4

CONTENTS

Page

S.625 

Departmental reports:

Bureau of the Budget 2

Interior 2

STATEMENTS

O'Callaghan, Jerry A., Chief, Office of Legislation and Cooperative Relations, Bureau of Land Management; accompanied by Michael Harvey__ 6

Simpson, Hon. Milward L., a U.S. Senator from the State of Wyoming__ 3

COMMUNICATIONS

Budd, Joe L., Rock Springs, Wyo.: Telegram to Hon. Milward L. Simpson, U.S. Senate, dated July 8, 1965 5

Harmer, Sherman D. executive secretary, Utah Cattlemen's Association:

Telegram to Hon. Ailward L. Simpson, U.S. Senate dated July 8, 1965... 4

McMillan, C. W., executive vice president, National Cattlemen's Association: Telegram to Hon. Milward L. Simpson, U.S. Senate, dated

July 9, 1965 4

Prosser, Dean T., xecutive secretary, Wyoming Stock Growers:

Telegram to Hon. Jr.,klward L. Simpson, U.S. Senate, dated July 8,

1965 4

III

4

AUTHORIZING SALE OF CERTAIN LANDS

FRIDAY, jIILY 9, 1965

U.S. SENATE,

SUBCOMMITTEE ON PUBLIC LANDS OF THE

COMMITTEE ON INTERIOR AND INSULAR AFFAIRS,

Washington, D.C.

The subcommittee met, pursuant to call, at 11:10 a.m., in room

3110, New Senate office Building, Senator Frank Church (chairman

of the subcommittee) presiding.

Present: Senators Frank Church (Idaho), Ernest Gruening (Alaska),

Frank E. Moss (Utah), Gordon Allott (Colorado), Paul Fannin

(Arizona), and Milward L. Simpson (Wyoming).

Also present: Jerry T. Verkler, staff director; Porter Ward, professional staff member; Richard H. Little, minority counsel, and Crocker

Price, assistant minority counsel.

Senator CHURCH. We will move now to the bill S. 625, introduced

by Senator Simpson, to authorize sale of isolated or disconnected

tracts of lands.

We will include the full text of the bill and the departmental

reports concerning it in the record at this point.

(The documents referred to follow:)

[S. 625, 89th Cong., 1st sem.]

A BILL To authorize the sale of isolated or disconnected tracts of lands

Be it enacted by the Senate and House of Representatives of the United States of

America in Congress assembled, That the second proviso of section 2455 of the

Revised Statutes, as amended (43 U.S.C. sec. 1171), is amended by adding after

the words "which is mountainous or too rough for cultivation," the words "or

which contains some land that can be put to cultivation but it is insufficient

because of climatic, topographic, ecologic, soil or other factors to justify a classification as proper for disposal under the homestead or desert land laws," which

will make the proviso read: "Provided further, That any legal subdivisions of the

public land, not exceeding seven hundred and sixty acres, the greater part of which

is mountainous or too rough for cultivation, or which contains some land that can

be put to cultivation but it is insufficient because of climatic, topographic, ecologic,

soil or other factors to justify a classification as proper for disposal under the homestead or desert land laws, may, in the discretion of the said Secretary, be ordered

into the market and sold pursuant to this section upon the application of any

person who owns land or holds a valid entry of lands adjoining such tract, regardless of the fact that such tract may not be isolated or disconnected within the

meaning of this section."

SEC. 2. If the person who has been using the isolated or disconnected tracts

of land purchases said land, all trespasses will be forgiven and waived.

1
2 AUTHORIZING SALE OF CERTAIN LANDS

HOD. HENRY M. JACKSON,

Chairman, Committee on Interior and Insular Affairs, U.S. Senate, New Senate

Office Building, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request for the views of

the Bureau of the Budget on S. 625, a bill to authorize the sale of isolated or disconnected tracts of lands.

The purpose of the bill is to permit preference sale to adjacent owners or entrymen under the 1958 Public Sale Law (Rev. Stat. 2455, as amended, 43 U.S.C.

1171) of public domain in tracts of 760 acres or less which contain some land

suitable for cultivation, but which for various reasons cannot be classified for

disposal under the desert land or homestead laws. The bill would also waive

prior trespass on lands purchased by such parties.

The report which the Secretary of the Interior is submitting on S. 625 recommends that the bill be enacted if the waiver of trespass provision is omitted.

We concur in this recommendation. If so amended, the Bureau of the Budget

would have no objection to enactment of the bill.

Sincerely yours,

EXECUTIVE OFFICE OF THE PRESIDENT,

BUREAU OF THE BUDGET,

Washington, D.C., July 9, 1965.

PHILLIP S. HUGHES,

Assistant Director for Legislative Reference.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY,

Washington, D.C., July 8, 1965.

Hon. HENRY M. JACKSON,

Chairman, Committee on Interior and Insular Affairs,

U.S. Senate, Washington, D.C.

DEAR SENATOR JACKSON: This responds to your request for OUT views on S. 625,

a bill to authorize the sale of isolated or disconnected tracts of lands.

We recommend that the bill be enacted if amended as set forth below.

S. 625 amends the Public Sale Law, Revised Statutes 2455, as amended, 43

U.S.C. 1171 (1958), to provide that legal subdivisions of the public land, not

exceeding 760 acres, which contain some land which can be put to cultivation but

is insufficient because of climatic, topographic, economic, soil or other factors to

justify a classification as proper for disposal under the homestead or desert land

laws, may be sold by the Secretary of the Interior upon the application of an adjoining landowner or a person who holds a valid entry of lands adjoining such

tract. Section 2 of the bill provides that if the land which is sold under the

public sale law has been utilized by the purchaser, his trespass against the United

States will be forgiven and waived.

The public sale law now authorizes the Secretary to sell at public sale any

isolated or disconnected tract of public land not exceeding 1,520 acres. It also

authorizes the sale of legal subdivisions of the public land not exceeding 760 acres,

the greater part of which is mountainous or too rough for cultivation, upon the

application of an adjoining landowner or a person who holds a valid entry of land

adjoining such tract. In both situations, the law provides that for a period of

not less than 30 days after the highest bid has been received, any owner or owners

of such contiguous land have a preference right to buy the offered land at the

highest bid price, but in no case is the adjacent landowner requir ;d to pay more

than three times the appraised price of the land.

Isolated or disconnected tracts encompass parcels of land which are either

completely surrounded on all sides by lands in private ownership or lands in

permanent withdrawals, or a combination of both. The limitation as to the

character of nonisolated lands that may be disposed of under the statute, has

been construed by the Department to require that each subdivision of such land

must be mountainous or too rough for cultivation in order to be subject to sale

under the law. Moreover, the fact that land may be unsuitable for cultivation

by reason of its salinity, poor soil, lack of water, alkalinity, etc., does not afford

a sufficient basis for disposing of the land under the law.

The Public Land Sale Act, 78 Stat. 988 (1964), 43 U.S.C. 1421-1427 (supp.

V, 1964), in part authorizes the Secretary of the Interior to sell lands "that have

been classified for disposal in accordance with a determination that * * * (b)

the lands are chiefly valuable for * * * agricultural (exclusive of lands chiefly
AUTHORIZING SALE OF CERTAIN LANDS 3

valuable for grazing and raising forage crops) * * * development." The Public

Land Sale Act provides for the disposal of such land at public auction but contains no preference right provision for adjoining landowners. The authority

granted by S. 625 would overlap, to some degree, the Secretary's existing authority under the 1964 statute. However, many of the lands which could be sold

under S. 625 could not be considered "chiefly valuable" for agricultural use or

development within the ambit of the 1964 law.

We understand that the bill is designed to afford relief to landowners who

have fenced in with their lands tracts of Government land. Some of these situations may have arisen because the landowners encountered difficulties in determining the boundary lines of their holdings. We believe that most of the tracts

so fenced in with private holdings and utilized with the agricultural operations

on the privately owned lands are not sufficient in and of themselves to justify

classification for disposal either under the homestead or desert land laws because

they would not afford alone a sufficiently viable economic unit. We therefore

have no objection to that portion of the bill which would make such lands subject to disposal under Revised Statute 2455, as amended.

We strongly object to section 2 of the bill which would waive prior trespass on

the land by the purchaser thereof. We are unaware of any sound justification

for such action. Your committee has strongly opposed waiver of trespass charges.

Senate Report 1223, 86th Congress, 2d session, concerning H.R. 3676, culminating

in the act of April 22, 1960 (74 Stat. 80), stated that failure—

" * * * to eliminate unauthorized uses or to transform them into an authorized

status leads to the spread of unauthorized use, deprives the Treasury of current

revenues and breeds disrespect for the property rights of the Government. Each

Government employee has a duty of reporting trespass of public land, and the

officers to whom it is reported have a duty of diligent action until the case is

finally terminated.

"Anyone occupying and using without authority lands of the United States

is liable in damages for the trespass use made of the land (Utah Power & Light

Company v. United States (243 U.S. 389)). The measure of damages to the United

States in cases of trespass on public lands is the measure generally applicable under

the laws of the State in which the trespass is committed (Mason et al. v. United

States (260 U.S. 545)).

"The committee expects that prompt action will be taken by the Department of the

Interior and by the Department of Justice, if requested, to obtain the payment of

amounts owed to the United States for past use." [Emphasis supplied.]

We also believe that the title of the bill should be changed. The bill does not

authorize the sale of isolated or disconnected tracts of land—existing law already

does so in 43 U.S.C. 1171. We are suggesting an appropriate title below.

To effectuate our recommendations, the following amendments are suggested:

1. Change the title to read "To authorize the sale of certain public lands."

2. Delete on page 2 of the bill lines 13 to 15, inclusive.

We also suggest that on page 2, line 4 of the bill the word "which" should be

substituted for the word "it".

The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program.

Sincerely yours,

D. OTIS BEASLEY,

Assistant Secretary of the Interior.

Senator CHURCH. I will defer to you, Senator Simpson, for such

statement as you would like to make.

STATEMENT OF MILWARD L. SIMPSON, A U.S. SENATOR FROM

THE STATE OF WYOMING

Senator SIMPSON. Thank you very much, Mr. Chairman. Shall I

remain here?

Senator CHURCH. Please do.

Senator SIMPSON. I appreciate this. I have a very short statement,

and I have some telegrams I would like to submit for the record. I

will submit them at the conclusion of my statement.
4 AUTHORIZING SALE OF CERTAIN LANDS

Mr. Chairman, I appreciate the fact that you are holding a hearing

to consider the bill I introduced which will bring relief to some Wyoming ranchers and farmers who have found that they have been

farming lands owned by the U.S. Government. The bill that we are

'considering, S. 625, is a result of a cooperative effort made by the

landowners in Sublette County, Wyo., the Bureau of Land Management officials living in Wyoming and the Bureau of Land Management

officials here in Washington.

I might say that paragraph 2 of the bill is not in the Bureau bill.

They are opposed to that section.

This problem has developed in Wyoming because in years gone by

our pioneers and settlers had difficulty in laying out their homesteads

and in fencing irrigable land. Often the settler would fence a unit of

land which could be irrigated profitably, even though he might have

known that a portion of that fenced-in area was Government land.

More often than not the Bureau of Land Management knew of this

but, because no one's rights were being damaged by the action, did

not correct the fence lines.

Now, after many years of this technical trespass, the Bureau of

Land Management has been resurveying the lands and ordering the

ranchers to build their fences on the boundary lines and pay damages

for the back trespass.

For the most part, these lands are isolated or disconnected tracts of

public land which are of little, if any, value to the U.S. Government.

However, the loss of these agricultural lands to the individual ranches

involved would be severe.

It has been agreed by the Bureau of Land Management officials

and the landowners that the proper solution to the problem is for the

ranchers to be given an opportunity to buy those isolated and disconnected areas which have been privately fenced in for so many

years. Unfortunately, the Bureau of Land Management does not

now have the authority to sell the land to the ranchers.

The purpose of my bill is to authorize the sale of these lands to the

ranchers who are committing the "agricultural trespass."

It is important that Congress give early consideration and approval

to this bill so that the Bureau of Land Management and these landowners can settle any differences that they might have so that the

future plans may be made. I am grateful to this committee for considering the matter now. I am hopeful that it will be approved as

soon as possible.

Mr. Chairman, these telegram;, I think, might well be read into the

record.

Senator CHURCH. Very well.

Senator SIMPSON. I have one here from C. W. McMillan, the executive vice president of the National Cattlemen's Association, which

says "The American National Cattlemen's Association heartily endorses S. 625 and urges its passage."

Another from Sherman D. Harmer, executive secretary, Utah Cattlemen's Association, in which he says, "The Utah Cattlemen's Association endorses all the provisions of S. 625 and particularly section 2."

Then a telegram from Dean Prosser, Jr., who has been before this

committee on other occasions, executive secretary of Wyoming Stock

Growers, which, by the way, is being honored tonight by the New-
AUTHORIZING SALE OF CERTAIN LANDS 5

comen Society of America, at a banquet in Cheyenne, which I

unfortunately have to miss:

The Wyoming Stock Growers Association expresses its support of S. 625 regarding agricultural trespass. This situation has become a particular problem

to many Wyoming ranchers and is in great need of positive action to prevent

additional entangling circumstances regarding these lands, not only in Wyoming

but also in many other Western States.

By resolution at the 1965 annual convention the Wyoming Stock Growers

Association gave unanimous support of S. 625. 

convention,

urge its adoption.

Signed "Prosser."

A very interesting one from a person who is knowledgeable, a former

speaker of the lower house of our State legislature, and very prominent

cattleman and citizen of Wyoming, Joe L. Budd, and he puts this in

pretty good perspective, I believe.

DEAR SENATOR: Due to my inability to appear at the hearings in support of

S. 625 will you please present this statement in my behalf.

In the fall of 1963, the district grazier in the district notified 35 ranchers in

this area that they were in trespass on approximately 800 acres of land. They

were charged trespassing for 3 years, preceding the notice and would be allowed

to use the land by paying a high annual rent.

This is the situation caused by lack of confirmation of second lines to valley

boundaries and the time-honored custom of ranchers fencing on a straight line

to facilitate the drifting of livestock from summer to winter ranges. Most of

the land was fenced 60 to 70 years ago.

We have been advised by the BLM that there is no way they can sell this land

to us under present laws, rules, and regulations. I wish to stress particularly

the need for section 2, which provides for trespass forgiveness.

In the first place, in many instances the rancher was unaware of the trespass.

Since these are small corners protruding into the valleys. Secondly, the trespass

charges are exorbitant. This land would be sagebrush land with the carrying

capacity of approximately 10 acres for AUM if it hadn't had the benefit of the

ranchers water and care over the years.

There are already trespass charges of $20 per acre on this land which would

in itself be a fair price for land which has no water rights. In the event the land

is made available for sale this trespass charge added to the appraised price will

make the cost of this land unrealistically high.

It is to the advantage of both the Federal Government and the ranchers to

make this land available for sale. It is ridiculous to saddle the Bureau with

the responsibility of administering these small tracts ranging from 2 to 30 acres

in size.

If this land had to be fenced on quarter lines it would be an extreme financial

burden on the rancher and create corners that would upset the natural drift of

livestock and hamper proper management and grazing of Federal land.

Please express my appreciation to the members of the committee for allowing

this statement to be presented in my behalf. Passage of this bill would be of

great benefit to the Federal Government and ranchers of this area and I wish

to urge its passage as presented at the earliest possible date.

Sincerely,

JOE L. BUDD.

Senator SIMPSON. That concludes my statement, Mr. Chairman,

save to say that a former Wyoming citizen is here, Jerry O'Callaghan,

who as you know is chief of the legislative relations of the Bureau of

Land Management, and I think we are in accord on the bill in all its

respects save section 2.

Senator CHURCH. Fine. Mr. O'Callaghan?
6 AUTHORIZING SALE OF CERTAIN LANDS

STATEMENT OF JERRY A. O'CALLAGHAN, CHIEF, OFFICE OF

LEGISLATION AND COOPERATIVE RELATIONS, BUREAU OF

LAND MANAGEMENT; ACCOMPANIED BY MICHAEL HARVEY

Mr. O'CALLAGHAN. Mr. Chairman, I am once again accompanied

by Mr. Mike Harvey. S. 625 amends section 2455 of the revised

statutes, as amended, found in section 43 U.S.C. 1171, to provide

that legal subdivisions of the public land, not exceeding 760 acres,

which contain some land which can be put to cultivation but is insufficient because of climatic, topographic, economic, soil or other

factors to justify a classification as proper for disposal under the

homestead or desert land laws, may be soid by the Secretary of the

Interior upon the application of an adjoining landowner or a person

who holds a valid entry of lands adjoining such tract. Section 2 of

the bill provides that if the land which is sold has been utilized by the

purchaser, his trespass against the United States will be forgiven and

waived.

Section 2455 now authorizes the Secretary to sell at public sale

any isolated or disconnected tract of public land not exceeding 1,520

acres. It also authorizes the sale of legal subdivisions of the public

land not exceeding 760 acres, the greater part of which is mountainous or too rough for cultivation, upon the application of an adjoining

landowner or a person who holds a valid entry of land adjoining

such tract.

In both situations, the law provides that for a period of not less

than 30 days after the highest bid has been received, any owner or

owners of such contiguous land have a preference right to buy the

offered land at the highest bid price.

The limitation as to the character of nonisolated lands that may

be disposed of under the statute has been construed by the Department to require the greater part of each subdivision of such land

must be mountainous or too rough for cultivation in order that the

subdivision be subject to sale under the law.

Moreover, the fact that land may be unsuitable for cultivation by

reason of its salinity, poor soil, lack of water, alkalinity, et cetera,

does not afford a sufficient basis for disposing of the land under the law.

The Public Land Sale Act of September 19, 1964, in part authorized

the Secretary of the Interior to sell lands—

that have been classified for disposal in accordance with a determination that

* * * the lands are chiefly valuable for agricultural (exclusive of lands chiefly

valuable for grazing and raising forage crops) * * * uses or development.

The Public Land Sale Act provides for the disposal of such land

at public auction but contains no preference right provision for

adjoining landowners.

The authority granted by S. 625 would overlap, to some degree, the

Secretary's existing authority under the 1964 statute. However,

many of the lands which could be sold under S. 625 could not be considered "chiefly valuable" for agricultural uses or development under

the 1964 act.

We understand that the bill is designed to afford relief to landowners

who have fenced in with their lands tracts of Government land. Some

of these situations may have arisen because the landowners encountered difficulties in determining the boundary lines of their

holdings.
AUTHORIZING SALE OF CERTAIN LANDS 7

We believe that most of the tracts so fenced in with private holdings

and utilized with the agricultural operations on the privately owned

lands are not sufficient in and of themselves to justify classification

for disposal either under the homestead or desertland laws because

they would not afford alone a sufficiently viable economic unit.

We therefore have no objection to that portion of the bill which

would make such lands subject to disposal under Revised Statute

2455, as amended.

We strongly object to section 2 of the bill which would waive prior

trespass on the land by the purchaser thereof. We are unaware of

any sound justification for such action. This committee itself has

strongly opposed waiver of trespass charges.

We also believe that the title of the bill should be changed. The

bill does not authorize the sale of isolated or disconnected tracts of

land—existing law already does so. We suggest the following amendments:

1. Change the title to read “To authorize the sale of certain public

lands."

2. Delete section 2 of the bill.

And then there is a grammatical substitution. On page 2, line 4

of the bill, the word "which," should be substituted, in the Department's judgment, for the work "it."

We recommend that S. 625 be enacted if amended as suggested.

That concludes my statement, Mr. Chairman.

Senator CHURCH. What reason do you have for feeling that the

Government will receive fair market value for these lands that this

bill would authorize be sold?

Mr. O'CALLAGHAN. Mr. Chairman, we have appraisers, highly

skilled appraisers. They are now stationed at our district offices.

Upon an application of a rancher one of the first things that will be

done will be for an appraiser to move out and view that land, and exercise all the practices called for by the appraisal profession.

Senator CHURCH. Do I understand, then, that the procedure of

sale will first, call for an appraisal, and that the land in no case will

be sold for less than the appraised value?

Mr. O'CALLAGHAN. Sir, actually, we make what we call a field

examination, and part of that field examination is an appraisal, and

the bill here very definitely states that it will be sold at the Ippraised

value.

Sen .tor CHURCH. Once that appraised value has been determined,

then, I take it, the land involved will be put up for auction.

Mr. O'CALLAGHAN. That is true, sir.

Senator SIMPSON. With the preference right?

Sen .tor CHURCH. With a preference right to L contiguous owner.

Mr. O'CALLAGHAN. Right. It will be an Auction; that is, a public

auction, and anyone can come in and bid, but no bid, of course, will be

entertained below the appraised price.

Then at the highest bid, if it is not an adjoining owner, then the

adjoining owner will have 30 days in order to meet the highest bid.

Senator CHURCH. I see.

Senator SIMPSON. Mr. Chairman, may I comment?

Senator CHURCH. Yes, sir.

Senator SIMPSON. Mr. O'Callaghan, who knows the State very well,

and who has been in every nook and cranny of it, will probably
AUTHORIZING SALE OF CERTAIN LANDS

agree with me that we have little or no grazing land in Wyoming that

exceeds an average value of about $5 to $15 an acre. Most of it

would be land incapable of irrigation, and would run $5 to $7.50 an

acre. If that matter comes up to auction, and the bids have to be

at least the minimum set by the Bureau and their appraisers on the

small tracts of land involved, we are going to get into a position where

we get the age-old fight between people who are fighting over a piece

of land, some of them contiguous, and some not, and I am hoping

that we can make a clean-cut breakaway in this.

The Bureau has offered to waive the trespass back for a 3-year

period, but if you add the 3-year trespass fees that they contemplate,

$20 an acre, we are going to be unrealistic from the standpoint of the

purchase of the Government property by the landowners. They have

both been at fault, I might point out, over the years. This is typical

of our State—yours, too, I dare say—where they have gone into

these valleys and mountains, and they have the fences to keep the

cattle either in the summer range or the winter range, so I am hopeful

that section 2 will be retained.

I think it is high time that in a case like this that the committee

feels the good sense of the proposition will strike down the prejudice

about the payment of trespass assessments provided in section 2.

I might add I am very grateful to be here before the committee

and to be heard on this, and I am hopeful that the bill will be forwarded.

out to the full committee, and that you will not append those amendments made by the department.

Senator CHURCH. Do you know, Mr. O'Callaghan, whether in

similar cases, this committee has ever approved a waiver of trespasses

before?

Mr. O'CALLAGHAN. I am not familiar with any waivers, Mr.

Chairman. The thing I am most familiar with is the quotation from

a Senate report originating in this committee which was reproduced

in this 

Senator SIMPSON. Excuse me, Jerry. Is that the excerpt contained

in the department report?

Mr. O'CALLAGHAN. Yes; it is in the department report on page 2,

at the bottom of page 2.

I might say, Mr. Chairman, that the principle the department

operates under in trespass situations is that wherever it is possible

to settle a trespass situation by putting the people in legal possession, that will be done.

Secondly, it is, of course, that as a precondition to the settlement,

the trespass damages have to be assessed and agreement made for

their payment.

Senator CHURCH. Well, now, how are these damages determined?

I take it that the Bureau of Land Management establishes its figure.

Mr. HARVEY. That is correct. We use the measure of damages

that is established by the law of the State in which we are operating,

for the particular type of unauthorized use that has been made.

Senator CHURCH. Does the law of Wyoming prescribe what the

trespass damages will be in a case of this sort?

Mr. HARVEY. Frankly, I am not sure whether it does. I don't

believe it does.

Senator SIMPSON. No.
AUTHORIZING SALE OF CERTAIN LANDS 9

Senator CHURCH. Isn't that a case for factual determination in a

court of law?

Senator SIMPSON. That is right.

Senator CHURCH. If damages were sought?

Mr. HARVEY. Well, there are many statutes, though, that establish

standards of damages. Now the values would have to be arrived at

through appraisal, undoubtedly, but the law would say that the

damages shall be the fair market value of the material taken from the

land.

Any actual dollar amounts, of course, would have to be worked out.

Senator CHURCH. I think maybe this record needs to show if there is

any kind of governing criteria involved and it ought to be cited. If

not, then the $20 an acre that is now being assessed—is that correct?

Senator SIMPSON. I understand that is the figure. It is in Mr.

Budd's testimony.

Mr. HARVEY. I understand that in Wyoming, our people have told

me that what they are doing is judging this on the basis of the forage

value that has been taken, where it is a grazing use made of the land,

and there they have established the value per annum over unit

month as $2.

Senator SIMPSON. I might point out to the chairman there in

answer to that this land wouldn't have been worth a lead nickel had

it not been for the fact that these farmers, who were good conservationists up in that area, cultivated this land and made it valuable if

there is any value attached to it. There wasn't any damage to the

department.

They cultivated the lands and utilized them in a way that has

increased the value, if there is any value to it, but the fact still remains that the Government did nothing with the land. They

acquiesced in the fencing and they acquiesed in the agricultural

development.

The statute of limitations would run on a lot of it, of course, if it

were anyone but the Government who has an interest.

But I am hopeful that the Department may recede from its position

of resisting that section 2, because this is a rather special case, and

a rather special instance, and would resolve it permanently, once and

for all.

We are having some difficulty north of there in the Jackson Hole

country where the Bureau of Land Management has come in to

determine the land which belongs to them with respect to the Snake

River, which has been a very badly flooded area, and which has

changed the lines, the property lines.

Senator CHURCH. Well, I think that the Senator makes a very good

argument. At the same time, I am somewhat concerned at the

precedent we might establish if we were to pass the bill in this particular form, and thus give notice to others that no trespass will necessarily

lie in the use of Federal lands.

Senator SIMPSON. The only thing there, Mr. Chairman, I might

point out, is that we are asking in this section that where it is sold to

the contiguous owner, who has had it all these years, that the matter

would not be in to any outsider, not to a third party. When you get

into this auction, some of the wealthy people from the west coast have,

come into that area, and money is no particular object.
10 AUTHORIZING SALE OF CERTAIN LANDS

They use that operation, and charge it off to taxes. But I am talking

about the fellows like Joe Budd and those other chaps, who have

been on the land for over a century, or those who buy the land which is

contiguous to their own property, and that is what this bill will

enable them to do

Senator CHURCH. Well, of course, as you point out, if the other

party to this matter had not been the Government, these ranchers

would have long ago acquired the title by adverse possession, without

the necessity of paying anything for it.

Senator SIMPSON. That is right.

Senator CHURCH. So in that sense, I think the Senator, makes a

very good argument.

What is the reason for the 3-year cutoff? Why couldn't it as easily

be 1 year as 3?

Mr. O'CALLAGHAN. I am not certain about that, Mr. Chairman.

I think that it is just a judgment that it would be ridiculous, say,

to go back to 1934, the date of the enactment of the Taylor Act, for

instance. The 3 preceding years is a reasonable time.

If you go back much further than that, you are touching on the

problem that you brought out here, the Government as a landowner

has an exemption from the statute of limitations that other landowners

don't have.

So I think it is a subjective judgment that 3 years is a reasonable

period to assess a trespass action.

Senator CHURCH. In assessing these damages, based upon the

grazing value of the land involved, is it true that this grazing value

is in turn the result of cultivation and the custodianship of this land

that has actually been exercised by the ranchers involved?

Mr. O'CALLAGHAN. As I understand it, sir, most of these lands

are corners of meadows that were fenced in by the fence running

possibly along section lines instead of the quarter section lines.

So water has been placed on the land by the efforts of the ranchers,

and they have had the care that hay meadows receive, along with

the patented hay meadowlands.

Senator SIMPSON. I might point out, Mr. Chairman, that I think

the statement of Mr. O'Callaghan is right. They fence them in, then

irrigate them, as I pointed out. Even to the taxes. They have been

paying taxes on them for all these years.

Senator CHURCH. How did the question come up?

Senator SIMPSON. The question came up, I think, by virtue of

Pearson's statements in respect to the Jackson Hole Valley along the

Snake River, where they thought to exchange the land and divide the

property right between the property owners and the Government,

and this is just a continuation of that effort as I understand.

Most of our dealings have been with Pearson, the State director

of the Bureau of Land Management.

Mr. O'CALLAGHAN. I am not certain of the exact circumstances in

Wyoming, Mr. Chairman. I can say that the Bureau in the last 4 or

5 years has attempted to identify and then put in motion the steps

necessary to remedy all the various kinds of trespass that were found

on the public lands.

This is one particular kind, I might say, and so it is part of that

effort at identifying trespass.

Senator CHURCH. I must say, I am a little undecided on the point,

the trespass point. I can see where the Government would be fully
AUTHORIZING SALE OF CERTAIN LANDS 11

entitled to .reclaim its right to the lands that belong to the Government, and then to charge whatever trespass it might seek for the

unlawful use of the lands, but here is a situation where the Government in effect concedes that the land ought to go to the ranchers who

have cultivated it and placed it under irrigation, who fenced it in with

Government acquiescence.

The landowners are prepared to pay the fair market value for the

land, which otherwise would have come to them by adverse possession,

but for the Government's claim.

And then on top of that, the Government seeks to extract damages

for the trespass, and furthermore, to base those damages upon the

grazing values of the irrigated land.

I think that the equities here are, to say the least, not entirely

on the Government's side.

Mr. O'CALLAGHAN. Well, these trespass situations are always

unfortunate, and the Government, because of the long continuance

of them, is not possibly in the best posture in the world. That's why

we try to be reasonable about the collection of trespass damages.

Mr. Harvey has a comment.

Mr. HARVEY. I might add one thing. I think in a lot of these

situations, we find ourselves sort of between the devil and the deep

blue sea, with the ranchers, in these cases, understandably concerned

that they will be charged for values that they themselves created,

really, by increasing the yield on that land, where at the same time,

the General Accounting Office is coming back to us, when we show

collection, saying, "Well, you didn't collect the full value out here,"

if they detect that we didn't take into consideration the actual value

of the land today. There have been instances where we have—not

in this type of case, but in exchanges, for example—in effect legalized

a trespass by transferring title to a piece of land that was occupied

in trespass in exchange for some other land that the trespasser owned.

I can think of one in Nevada where we didn't take into consideration

on the value of our land the buildings that the trespasser had put

on the land, and the General Accounting Office came back to us and

said, "You have made a terrible mistake." In fact, the House Committee on Government Operations also criticized us strongly and

said when these buildings were put on Federal land they became the

property of the Federal Government.

Senator CHURCH. All right, now in this case, certain improvements

take place in the sense that the land has been cared for, cultivated,

andirrigated.

Now when the fair market value which the Government will

receive under this bill is determined, will that fair market value take

into account the enhanced value that has come to the land by virtue

of the irrigation and the cultivation and the custodianship of the

ranchers?

Mr. HARVEY. I would say, Mr. Chairman, unless it was written

into the legislation, that it would not; that we would have to do it

that way. It would be the actual value of the land, as it stands on

the ground the day it was sold.

Now this, I grant you, would seem to be in a sense unfair to the

purchaser, because he is the one responsible for adding value.
12 AUTHORIZING SALE OF CERTAEN LANDS

Senator CHURCH. What I am saying is, you are going to get, as a

part of your appraisal, the benefit of what the rancher has done to

this land, and the water he has brought to it, are you not?

MT. HARVEY. That is true.

Senator CHURCH. All right, and then on top of that, you are asking

that trespass damages be assessed, based upon the enhanced value of

the land that the rancher has himself brought about.

Mr. O'CALLAGHAN. Well, in that regard, Mr. Chairman, I think

th t the values there that we would be seeking in the trespass damages

would be the landowners' share of the production of that land.

Senator SIMPSON. Actually, Mr. Chairman, there is no trespass.

I join in the word, but there has never been a trespass, because they

have done it with the acquiescence of the Department. I think the

chairman has done much better than I in pointing out the equities in

this matter, and I certainly appreciate the statement made. I think

we have a problem here that is a matter of equity, and I think the

Government wants to be on the side of equity.

Senator CHURCH. It seems to me that the Department of the

Interior wants to be on the side of the Bureau of the Budget.

Mr. O'CALLAGHAN. I don't know that the cases are completely

analagous, but there are certain features that are analagous in connection with the mining claims occupancy. The features that are

analagous are that people sometimes to one and two generations,

maybe even three generations, were occupying mining claims which

may have been valid at one time and the Congress in the ChurchJohnson Act gave us the tools for settling that, and one of the provisions in that was that the trespass had to be settled before the sales

could be made.

Now it is not totally analagous to this situation in this regard:

the mining claimants had to be there under this title of a mining

claim. And there are no claims here that the people are using this

land by any color of title.

Senator CHURCH. Do you have further questions, Senator Simpson?

Senator SIMPSON. I have none.

Senator. CHURCH. I want to thank you very much, gentlemen.

(Whereupon, at 11:55 a.m., the subcommittee recessed, subject

to call of the chair.)

0

p.