U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
Washington, DC 20240
August 8, 2011
In Reply Refer To:
2740/2912 (350) P
EMS TRANSMISSION 08/09/2011
Instruction Memorandum No. 2011-162
To: All Field Offices
From: Assistant Director, Minerals and Realty Management
Subject: Third Party Uses on Recreation and Public Purposes Act Patents and Leases
Program Areas: Lands and Realty and the Recreation and Public Purposes Act.
Purpose: This Instruction Memorandum (IM) provides guidance on third party uses on Recreation and Public Purposes (R&PP) patents and leases to supplement the guidance found in Bureau of Land Management (BLM) Manual 2740-22. Third party use is defined as any facility or portion thereof (i.e., the physical improvements) which is owned or controlled by any party other than the lessee or patentee.
The main issue addressed by various Solicitor opinions is the transfer of ownership or control. It has been well established that the patentee may not transfer ownership or title to another party without the prior approval of the BLM. The transfer of title is a definitive process. However, the issue of control is a much more < area. For the purposes of this guidance, control is defined as any right granted by the patentee that makes the granted right superior to the patentee right. An example would be an easement. Most easements are a permanent encumbrance on the title and usually make the grantor’s rights subservient to the grantee’s rights. When this happens, control has passed from the patentee to the easement holder. A transfer of title or control without the prior approval of the BLM subjects the patent to the reverter process.
If a third party use is to be allowed on R&PP patented land, it has to be in a form such as a right-of-way, lease, agreement, or other type of noncontrolling document. In addition, the patentee must continue to be responsible for all uses on the R&PP land. The BLM requires that any proposed authorizing document have Solicitor review prior to BLM approval.
The third party need not be an entity that would qualify by itself for R&PP use, nor must the
proposed use be a normally accepted type of R&PP use. However, the proposed use must provide some sort of direct or indirect support or benefit to the R&PP lands or be in furtherance of a public purpose (see definition of public purpose in BLM Manual 2740, Glossary of Terms).
An example of direct support would be a water pipeline right-of-way across R&PP lands to reach a new housing subdivision, and as part of the construction, water taps were provided to the R&PP patentee for drinking fountains and a sprinkler system to enhance a city park. Another example would be a new road that crosses R&PP lands and would provide public access to a part of the patent that did not have adequate access. An example of an indirect benefit would be the placement of an antenna on a light pole that would provide cellular service to a portion of the city. If the city used cellular phones to communicate with their personnel, cell coverage now available in the R&PP area would be an indirect benefit to the city. In these examples, there is no change in the use of the R&PP land, no interference with the purpose for which the R&PP was issued, and no passing of control.
The above examples would provide a direct or indirect benefit to the R&PP lands. However, a use considered to be only an incidental or secondary public benefit is not allowed. An example would be a new tower for a radio station. Although a radio station may be considered to be a public benefit, it does not normally provide direct or even indirect support to the R&PP land. Even if the patentee received income in the form of rental from the radio station, this would be considered a secondary public benefit. However, if the radio station was part of the emergency broadcast system, it would meet the part of the public purpose definition in BLM Manual 2740 related to safety.
A recent occurrence that has taken place on some R&PP patents is the proposed construction of solar energy facilities on the lands administered by the patentee. This scenario could also occur if a patentee wishes to construct a wind energy generating facility. The BLM has determined that such uses are not in violation of the terms and conditions of the R&PP patent, as long as the power generation facilities do not become a primary purpose or use of the R&PP lands and the power generated is used only to serve the purpose of the R&PP. It is also allowable for the patentee to build credits for power generation if the power generation exceeds the power used, provided that the power credits would also only be used to support the purpose of the R&PP. However, facilities proposed for power generation are not allowable if the excess generation capacity is used to either support another private entity, other facilities, or sold on the open market.
A proposed third party use must not in any way interfere with the use for which the patent was issued. Any proposed change in use or development must be approved by the BLM. If a proposed authorization would change the use or uses for which the R&PP patent was issued, the patentee must submit a proposed change to their plan of development for BLM approval. The written determination from the BLM can vary from a letter saying the use is appropriate to a demand for a formal change in the plan of development and approval through decision. The level of approval should be commensurate with the proposed use. Approval is discretionary with the BLM authorized officer.
Any revenue collected by the patentee for a third party use must be used on the R&PP lands. This avoids the appearance of a windfall income or profit since the land was patented at a reduced cost.
The key to R&PP leases and third party uses is that the land is still under BLM management and control. Third party authorizations on R&PP leased lands are issued by the BLM as Federal Land Policy and Management Act (FLPMA) rights-of-way, leases, or permits and must not interfere with the approved activities on the R&PP lease. These are standard BLM authorizations and are issued with the concurrence of the lessee. No authorization is needed for casual use activities. The restrictions regarding a proposed solar energy or wind energy facility located on an R&PP lease are the same as those restrictions that apply to R&PP patents.
Timeframe: This IM is effective immediately.
Budget Impact: The impact on workload and budgets will be determined by the number of requests for approval of third party uses and the complexity of individual cases. However, this guidance will allow the BLM state and field offices to develop better estimates of the requirements, costs, and timeframes to process such requests.
Background: On R&PP patented lands, a proposed third party use must not interfere with the existing use or uses, the use must be a direct or indirect benefit to the patent or be in furtherance of a public purpose, the authorization must not pass title or control, any revenues generated by the use must be used on the patent or lease, and the use must have prior BLM approval. On R&PP leases, the BLM can issue another authorization, with the concurrence of the lessee, which may not meet all of the R&PP development criteria. In these instances, rentals would be payable to the BLM. Guidance to support these positions was issued in the past, and this IM serves to reinforce and extend that guidance.
Manual/Handbook Sections Affected: This IM supplements guidance in BLM Recreation and Public Purpose Handbook, H-2740-22.
Coordination: This IM was coordinated with the Division of Lands, Realty and Cadastral Survey (WO-350), realty personnel in each state office, and the Department of the Interior Office of the Solicitor.
Contact: If you have any questions concerning the content of this IM, please contact me at 202-208-4201 or your staff may contact Kim Berns, Division Chief, Lands, Realty and Cadastral Survey, at 202-912-7350 or Carolyn Spoon, Branch Chief, Lands and Realty (WO-350), at 202-912-7574, or Ray Brady, Energy Team Leader, (WO-300) at 202-912-7312
Signed by: Authenticated by:
Michael Nedd Robert M. Williams
Assistant Director Division of IRM Governance,WO-560
Minerals and Realty Management