II 114th CONGRESS 2d Session S. 3316 IN THE SENATE OF THE UNITED STATES September 13, 2016 Mr. Heinrich (for himself and Mr. Flake ) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To maximize land management efficiencies, promote land conservation, generate education funding, and for other purposes.

1. Short title This Act may be cited as the Advancing Conservation and Education Act of 2016 . 2. Findings Congress finds that— (1) at statehood, Congress granted each of the western States land to be held in trust by the States and used for the support of public schools and other public institutions; (2) since the statehood land grants, Congress and the executive branch have created multiple Federal conservation areas on Federal land within the western States, including National Parks, National Monuments, national conservation areas, national grassland, components of the National Wilderness Preservation System, wilderness study areas, and national wildlife refuges; (3) since statehood land grant land owned by the western States are typically scattered across the public land, creation of Federal conservation areas often include State land grant parcels with substantially different management mandates, making land and resource management more difficult, expensive, and controversial for both Federal land managers and the western States; and (4) allowing the western States to relinquish State trust land within Federal conservation areas and to select replacement land from the public land within the respective western States, would— (A) enhance management of Federal conservation areas by allowing unified management of those areas; and (B) increase revenue from the statehood land grants for the support of public schools and other worthy public purposes. 3. Definitions In this Act: (1) Application The term application means an application for State relinquishment and selection of land made under this Act in accordance with section 5. (2) Eligible area The term eligible area means land within the outer boundary of— (A) a unit of the National Park System; (B) a component of the National Wilderness Preservation System; (C) a unit of the National Wildlife Refuge System; (D) a unit of the National Landscape Conservation System; (E) an area identified by the Bureau of Land Management as having wilderness characteristics in a land use plan finalized under FLPMA; (F) National Forest System land and public land administered by the Bureau of Land Management that has been designated as a national monument, national volcanic monument, national recreation area, national scenic area, inventoried roadless area, unit of the Wild and Scenic Rivers System, wilderness study area, or Land Use Designation II (as described by section 508 of the Alaska National Interest Lands Conservation Act ( Public Law 101–626 ; 104 Stat. 4428)); or (G) a sentinel landscape designated by the Secretary of Agriculture, the Secretary of Defense, and the Secretary of the Interior. (3) FLPMA The term FLPMA means the Federal Land Policy and Management Act of 1976 ( 43 U.S.C. 1701 et seq. ). (4) Priority area The term priority area means land within the outer boundary of any— (A) National Monument; (B) national conservation area managed by the Bureau of Land Management; (C) component of the National Wilderness Preservation System; or (D) unit of the National Park System. (5) Public land (A) In general The term public land has the meaning given the term public lands in section 103 of FLPMA ( 43 U.S.C. 1702 ). (B) Exclusions The term public land does not include Federal land that— (i) is within an eligible area; (ii) is within an area of critical environmental concern established pursuant to section 202(c)(3) of FLPMA ( 43 U.S.C. 1712(c)(3) ); (iii) is within an area withdrawn or reserved by an Act of Congress, the President, or public land order for a particular public purpose or program, including for the conservation of natural resources; (iv) has been acquired using funds from the Land and Water Conservation Fund established under section 200302 of title 54, United States Code; or (v) is within the boundary of an Indian reservation, pueblo, or rancheria. (6) Secretary The term Secretary means the Secretary of the Interior. (7) State land grant parcel The term State land grant parcel means— (A) any land granted to a western State by Congress through a statehood or territorial land grant for the support of public education or other public institutions, or subsequently acquired by the western State for that purpose; or (B) land granted to the State of Alaska under subsections (a), (b), and (k) of section 6 of the Act of July 7, 1958 (commonly known as the Alaska Statehood Act ) (48 U.S.C. note prec. 21; Public Law 85–508 ). (8) Traditional cultural property The term traditional cultural property has the meaning given the term— (A) historic property in section 800.16 of title 36, Code of Federal Regulations (as in effect on the date of enactment of this Act); or (B) sacred site in section 1(b) of Executive Order 13007 ( 42 U.S.C. 1996 note; relating to Indian sacred sites). (9) Water right The term water right means any right in or to groundwater, surface water, or effluent under Federal, State, or other law. (10) Western State The term western State means any of the States of Alaska, Arizona, California, Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. 4. Relinquishment of State land grant parcels and selection of replacement land (a) Authority To select In accordance with this Act and in order to facilitate the fulfillment of the mandates of State land grant parcels and Federal land described in subparagraphs (A) through (G) of section 3(2), on approval by the Secretary of an application under section 5, a western State may relinquish to the United States State land grant parcels wholly or primarily within eligible areas and select in exchange public land within the western State. (b) Valid existing rights Land conveyed under this Act shall be subject to valid existing rights. (c) Management after relinquishment Any portion of a State land grant parcel acquired by the United States under this Act that is located within an eligible area shall— (1) be incorporated in, and be managed as part of, the applicable unit described in subparagraphs (A) through (G) of section 3(2) in which the land is located without further action by the Secretary with jurisdiction over the unit; and (2) if located within the National Forest System, be administered by the Secretary of Agriculture in accordance with— (A) the Act of March 1, 1911 (commonly known as the Weeks Law ) ( 16 U.S.C. 552 et seq. ); and (B) any laws (including regulations) applicable to the National Forest System and the unit of the National Forest System in which the land is located. (d) Limitation (1) In general Except as provided in paragraphs (2) and (3), until a western State has relinquished and conveyed to the United States substantially all of the State land grant parcels located in priority areas in the western State, the western State may not apply to relinquish State land grant parcels in other eligible areas in the western State. (2) Exception The Secretary may waive the limitation in paragraph (1) on a determination that the relinquishment and conveyance to the United States of substantially all State land grant parcels located in priority areas in the western State is impractical or infeasible. (3) Other State land grant parcels The Secretary may accept an application from a western State to relinquish State land grant parcels within an eligible area in the western State if— (A) the application is limited to relinquishing one or more State land grant parcels within a single eligible area; (B) the western State submitting the application is, as determined by the Secretary, making substantial progress in relinquishing State land grant parcels within priority areas in the western State; and (C) the Secretary has not accepted any other applications from the western State under this paragraph during the 5-year period ending on the date of the application. 5. Process (a) Process for application (1) In general Not later than 540 days after the date of the enactment of this Act and in accordance with this section, the Secretary shall promulgate regulations establishing a process by which the western States may request the relinquishment of State land grant parcels wholly or partially within eligible areas and select public land in exchange for the State land grant parcels. (2) Timing Except as provided in section 8(c), the process established by the Secretary under this section shall ensure that the relinquishment of State land grant parcels and the conveyance of public land is concurrent. (b) Public notice Prior to accepting or conveying any land under this Act, the Secretary shall provide public notice and an opportunity to comment on the proposed conveyances between the western State and the United States. (c) Environmental analysis (1) In general Except as otherwise provided in this subsection, the Secretary shall acquire State land grant parcels and convey public land under this Act in accordance with— (A) the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ); and (B) other applicable laws. (2) Environmental assessment or environmental impact statement In preparing an environmental assessment or environmental impact statement pursuant to section 102(2) of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4332(2) ) for the acquisition of State land grant parcels and the conveyance of public land under this Act, if the western State has indicated an unwillingness to consider State land grant parcels for relinquishment or public land for acquisition (other than the State land grant parcels and public land described in the proposed agency action), the Secretary is not required to study, develop, and describe more than— (A) the proposed agency action; and (B) the alternative of no action. (d) Agreements with States (1) In general The Secretary is authorized to enter into agreements with any of the western States to facilitate processing of applications and conveyance of selected land. (2) Agreement On completion of a pre­ap­pli­ca­tion process that includes identification of land to be conveyed, the Secretary and the western State may enter into a nonbinding agreement that includes— (A) a time schedule for completing the conveyances; (B) an assignment of responsibility for performance of required functions and for costs associated with processing the conveyances; and (C) a statement specifying whether assumption of costs will be allowed pursuant to section 8(d). (e) Approval or rejection The Secretary— (1) shall issue a final determination on an application not later than 3 years after the date a western State submits that application to the Secretary; (2) may approve an application in whole or in part, or as modified by the Secretary as necessary to balance the equities of the States and interest of the public; (3) shall not accept an application under this Act for selection of any parcel of public land that in the judgment of the Secretary— (A) is not reasonably compact and consolidated; (B) will create significant management conflicts with respect to the management of adjacent Federal land; (C) will significantly adversely affect public use of a recreation site or recreation area eligible for the collection of recreation fees under the Federal Lands Recreation Enhancement Act ( 16 U.S.C. 6801 et seq. ) or other authority; or (D) is not in the public interest; (4) shall not accept any State land grant parcels that, in the judgment of the Secretary, are not suitable for inclusion in the applicable unit described in subparagraphs (A) through (G) of section 3(2) in which the land is located; (5) shall, prior to approving an application, consult with the head of any Federal agency with jurisdiction over Federal land— (A) within which a western State proposes to relinquish a State land grant parcel; or (B) that is adjacent to public land proposed for conveyance to a western State; (6) shall, prior to approving an application— (A) consult, in accordance with Federal law, with any Indian tribe affected by the subject of the application, including any Indian tribe that notifies the Secretary that there is traditional cultural property located within the public land proposed for conveyance to the western State; and (B) if the Secretary determines that traditional cultural property is located within the public land proposed for conveyance to the western State, consider the extent to which protection would be available for the traditional cultural property after conveyance of the public land to the western State, including terms or conditions that the Secretary, with the agreement of the western State, may impose on the conveyance of the public land to the western State; (7) may reject an application in whole or in part if the Secretary, after consideration of available protection for traditional cultural property located within the public land proposed for conveyance to the western State pursuant to paragraph (6)(B), determines that insufficient protection would be available for the traditional cultural property after conveyance of the public land to the western State; (8) shall, for applications by a western State for the conveyance of a parcel of public land that will result in significantly diminished public access to adjacent Federal land— (A) reject that portion of the application; or (B) reserve a right-of-way through the public land to be conveyed ensuring continued public access to adjacent Federal land; and (9) shall convey any public land approved for selection not later than 1 year after entering into a final agreement between the Secretary and the western State on the land to be conveyed, subject to such other terms and conditions as may be appropriate. (f) Costs (1) In general All costs of conveyances under this Act, including appraisals, surveys, and related costs, shall be paid equally by the Secretary and the western State. (2) Allocation The Federal agency that receives State land in a conveyance under this Act shall assume the Federal share of administrative costs, including appraisals, surveys, and related costs, unless otherwise agreed to by the heads of the respective agencies. (g) Conveyance by western State (1) In general The conveyance of any State land grant parcel under this Act shall— (A) be by patent or deed acceptable to the Secretary; and (B) not be considered an exchange or acquisition for purposes of sections 205 and 206 of FLPMA ( 43 U.S.C. 1715 , 1716). (2) Concurrence The Secretary of Agriculture shall concur in any determination to accept the conveyance of a State land grant parcel within the boundaries of any unit of the National Forest System. (h) Conveyance by United States The conveyance of public land by the United States shall— (1) not be considered a sale, exchange, or conveyance under section 203, 206, or 209 of FLPMA ( 43 U.S.C. 1713 , 1716, and 1719); and (2) include such terms or conditions as the Secretary may require. 6. Mineral land (a) Selection and conveyance (1) In general Subject to this Act, a western State may select, and the Secretary may convey, land that is mineral in character under this Act. (2) Exclusion A western State may not select, and the Secretary may not convey land that includes only— (A) a portion of a mineral lease or permit; (B) the Federal mineral estate, unless the United States does not own the associated surface estate; or (C) the Federal surface estate, unless the United States does not own the associated mineral estate. (b) Mining claims (1) Mining claims unaffected Nothing in this Act alters, diminishes, or expands the existing rights of a mining claimant under applicable law. (2) Validity exams Nothing in this Act requires the United States to carry out a mineral examination for any mining claim located on public land to be conveyed under this Act. (3) Withdrawal Public land selected by a western State for acquisition under this Act is withdrawn, subject to valid existing rights, from location, entry, and patent under the mining laws until that date on which— (A) the land is conveyed by the Federal Government to the western State; (B) the Secretary makes a final determination not accepting the selection of the land; or (C) the western State withdraws the selection of the land. 7. Construction with other laws (a) Consideration In the application of laws, regulations, and policies relating to selections made under this Act, the Secretary shall consider the equities of the western States and the interest of the public. (b) Land use plan The Secretary may approve an application submitted in accordance with this Act even if— (1) the selected public land is not otherwise identified for disposal; or (2) the land to be acquired is not identified to be acquired in the applicable land use plan. 8. Valuation (a) Equal value (1) In general The overall value of the State land grant parcels and the public land to be conveyed shall be— (A) equal; or (B) if the value is not equal— (i) equalized by the payment of funds to the western State or to the Secretary as the circumstances require; or (ii) reflected on the balance of a ledger account established under subsection (c). (2) Appraisal required Except as provided in subsection (b), the Secretary shall determine the value of a State land grant parcel and public land through an appraisal completed in accordance with— (A) the Uniform Appraisal Standards for Federal Land Acquisitions; and (B) the Uniform Standards for Professional Appraisal Practice. (3) Equalization For each transaction, an equalization payment described in paragraph (1)(B)(i) or a ledger entry described in paragraph (1)(B)(ii) may not exceed 25 percent of the total value of the land or interest transferred out of Federal ownership. (b) Low value parcels (1) Valuation The Secretary may, with the consent of a western State, use a summary appraisal or statement of value made by a qualified appraiser carried out in accordance with the Uniform Standards for Professional Appraisal Practice instead of an appraisal that complies with the Uniform Appraisal Standards for Federal Land Acquisitions if the western State and the Secretary agree that the market value of a State land grant parcel or a parcel of public land is— (A) less than $500,000; and (B) less than $500 per acre. (2) Division A State land grant parcel or a parcel of public land may not be artificially divided in order to qualify for a summary appraisal or statement of value under paragraph (1). (c) Ledger accounts (1) In general The Secretary and any western State may agree to use a ledger account to make equal the value of land relinquished by the western State and conveyed by the United States to the western State under this Act. (2) Imbalances A ledger account described in paragraph (1) shall reflect imbalances in value to be reconciled in a subsequent transaction. (3) Account balancing Each ledger account shall be— (A) balanced not later than 3 years after the date on which the ledger account is established; and (B) closed not later than 5 years after the date of the last conveyance of land under this Act. (d) Costs (1) In general The Secretary or the western State may assume costs or other responsibilities or requirements for conveying land under this Act that ordinarily are borne by the other party. (2) Adjustment If the Secretary assumes costs or other responsibilities under paragraph (1), the Secretary shall make adjustments to the value of the public land conveyed to the western State to compensate the Secretary for assuming the costs or other responsibilities. (e) Adjustment If value is attributed to any parcel of public land that has been selected by a western State because of the presence of minerals under a lease entered into under the Mineral Leasing Act ( 30 U.S.C. 181 et seq. ) that is in a producing or producible status, and the lease is to be conveyed under this Act, the value of the parcel shall be reduced by the amount that represents the likely Federal revenue sharing obligation under that Act, but the adjustment shall not be considered as reflecting a property right of the western State. 9. Miscellaneous (a) Hazardous materials (1) In general The Secretary and the western States shall make available for review and inspection any record relating to hazardous materials on land to be conveyed under this Act. (2) Certification The Secretary and the western State shall each complete an inspection and a hazardous materials certification of land to be conveyed under this Act before the completion of the conveyance. (b) Water rights (1) State-held appurtenant water rights Any conveyance of a State land grant parcel under this Act may include the conveyance of State-held water rights appurtenant to the land conveyed. (2) Federally held appurtenant water rights Any conveyance of public land under this Act may include the conveyance of federally held water rights appurtenant to the land conveyed. (3) Effect Nothing in this Act— (A) creates an implied or expressed Federal reserved water right; (B) affects a valid existing water right; or (C) affects the use of water conveyance infrastructure associated with a water right described in subparagraph (B). (c) Grazing permits (1) In general If land conveyed under this Act is subject to a lease, permit, or contract for the grazing of domestic livestock in effect on the date of the conveyance, the Secretary (or the Secretary of Agriculture for land located within the National Forest System) and the western State shall allow the grazing to continue for the remainder of the term of the lease, permit, or contract, subject to the related terms and conditions of user agreements, including permitted stocking rates, grazing fee levels, access, and ownership and use of range improvements. (2) Renewal On expiration of any grazing lease, permit, or contract described in paragraph (1), the party that has jurisdiction over the land on the date of expiration may elect to renew the lease, permit, or contract if permitted under applicable law. (3) Cancellation (A) In general Nothing in this Act prevents the Secretary (or the Secretary of Agriculture for land located within the National Forest System) or the western State from canceling or modifying a grazing permit, lease, or contract if the land subject to the permit, lease, or contract is sold, conveyed, transferred, or leased for nongrazing purposes. (B) Limitation Except to the extent reasonably necessary to accommodate surface operations in support of mineral development, the Secretary (or the Secretary of Agriculture for land located within the National Forest System) or the western State shall not cancel or modify a grazing permit, lease, or contract for land conveyed pursuant to this Act because the land subject to the permit, lease, or contract has been leased for mineral development. (4) Base properties If land conveyed by the western State under this Act is used by a grazing permittee or lessee to meet the base property requirements for a Federal grazing permit or lease, the land shall continue to qualify as a base property for the remaining term of the lease or permit and the term of any renewal or extension of the lease or permit. (5) Range improvements Nothing in this Act prohibits a holder of a grazing lease, permit, or contract from being compensated for range improvements pursuant to the terms of the the lease, permit, or contract under existing Federal or State laws. (d) Protection of Indian rights (1) Treaty rights Nothing in this Act alters or diminishes the treaty rights of any Indian tribe. (2) Land held in trust Nothing in this Act affects— (A) land held in trust by the Secretary for any Indian tribe; or (B) any individual Indian allotment. (3) Effect Nothing in this Act alters, diminishes, or enlarges the application of— (A) division A of subtitle III of title 54, United States Code (formerly known as the National Historic Preservation Act ( 16 U.S.C. 470 et seq. )); (B) the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq. ); (C) Public Law 95–341 (commonly known as the American Indian Religious Freedom Act ) ( 42 U.S.C. 1996 ); (D) chapter 3125 of title 54, United States Code; or (E) the Archaeological Resources Protection Act of 1979 ( 16 U.S.C. 470aa et seq. ). 10. Administration Nothing in this Act repeals or limits, expressly or by implication, any authority in existence on the date of enactment of this Act for the selection or exchange of land. 11. Termination of authority (a) In general Subject to subsection (b), the provisions of this Act shall cease to be effective with regard to any State land grant parcel located within an eligible area for which an application has not been filed by the date that is 20 years after the date of the enactment of this Act. (b) New eligible areas If the application described in subsection (a) is for a State land grant parcel that is located within an eligible area established after the date of enactment of this Act, the provisions of this Act shall remain effective for 20 years after the date on which the new eligible area is established.