Information and Consent Considerations When a Qualified Exchange Proponent Selects Federal Coal in a Split Estate Tract for Exchange

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240-0036
http://www.blm.gov

January 19, 2017

In Reply Refer To:
3436, 2200 (320) P

EMS TRANSMISSION 01/19/2017

Instruction Memorandum No. 2017-034

Expires:  09/30/2020

To:                               All Washington Office and Field Office Officials

From:                          Assistant Director, Energy, Minerals, and Realty Management

Subject:                       Information and Consent Considerations When a Qualified Exchange Proponent Selects  Federal Coal in a Split Estate Tract for Exchange

Program Area:  Coal Management.

Purpose:  This Instruction Memorandum (IM) provides the Bureau of Land Management (BLM) Authorized Officer (AO) with guidance for identifying Federal coal tracts in split estate lands that are suitable for consideration for disposition through exchange for privately owned coal deposits.  Specifically, this IM provides the BLM AO with guidance about how best to take into consideration the information and consent from a private surface owner that the qualified exchange proponent [1] may provide to the BLM when the BLM is determining if the Federal coal estate in a split estate [2] tract is appropriate for exchange.   

Policy/Action:  The BLM has discretion in identifying which Federal coal lands will be made available in exchange for qualified privately owned coal deposits.  Lands offered for exchange must be in the public interest pursuant to 43 CFR 3436.0-2(b).  To ensure that this public interest requirement is met, before identifying a split estate tract with Federal coal deposits to exchange for privately owned coal deposits, the BLM AO will request that the proponent provide the BLM AO with additional information about any private surface owners.  The BLM will use this information to determine if the surface owner would likely meet the criteria for a “qualified surface owner” pursuant to 43 CFR 3400.0-5(gg).  If the BLM AO determines that the surface owner would likely meet the criteria for a “qualified surface owner,” before execution of the exchange agreement, the BLM AO will request that the exchange proponent provide the BLM AO with evidence that it obtained written consent from that surface owner for the coal to be surface mined or information that the surface owner has refused to provide written consent. [3]

Accordingly, in cases where the BLM is considering exchanging Federal coal deposits in a split estate tract for qualified private coal deposits, the AO will act in accordance with one of these four options:

1. Acknowledge the surface owner’s written consent provided by the exchange proponent and process the exchange in accordance with the requirements of 43 CFR 2200 and 3436;
2. Process the exchange without written consent after documenting in the decision why surface owner’s written consent is not necessary (e.g., surface owner is not determined to be a qualified surface owner; the coal will be mined by underground mining techniques);
3. Direct the proponent to consider or recommend an alternative Federal coal tract for disposal that either does not involve Federal coal deposits in a split estate tract or where surface owner consent may be obtained; or
4. Recommend to the proponent an alternative Federal coal tract that is equal in value to the qualified private lands, and determined by the BLM AO to be acceptable for disposition by exchange.  

Timeframe:  Effective immediately.

Budget Impact:  Minimal.

Background:  In March 2015, Secretary Sally Jewell called for an “open and honest conversation about modernizing the Federal coal program,” launching a series of listening sessions across the country.  As a direct result of these public listening sessions – as well as concerns raised by the Government Accountability Office, the Department’s Office of Inspector General, and Members of Congress, Secretary Jewell announced, among other things, that the Interior Department would undertake a series of good government reforms to ensure a fair return to the public and improve the administration of the Federal coal program.  This IM is in response to one of the good government reforms specifically noted by Secretary Jewell, and it provides guidance on the information and consent considerations that the BLM should identify and acknowledge when a qualified exchange proponent identifies Federal coal in split estate tracts for disposition through exchange to ensure that the tract is appropriate for exchange.       

The BLM may dispose of lands, including Federal coal deposits, by exchange pursuant to section 206(a) of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1716(a) (2006), where it determines that the public interest will be well served by making the exchange. 

Manual/Handbook Sections Affected:  H-2200-1 Land Exchange Handbook (Release 2-294) will be revised to include this policy as determined necessary.

Coordination:  State Office coal and realty specialists, Washington Office Solid Minerals Division, and Washington Office Lands, Realty and Cadastral Survey staff coordinated the development of this supplemental policy on Federal coal deposits subject to disposal by exchange.

Contact:  If you have any questions concerning the content of this IM, please contact me at 202-208-4201, or your staff may contact Mitchell Leverette, Division Chief Solid Minerals (WO-320) at 202-912-7113 or mleveret@blm.gov; or John A. Lewis, at 202-912-7117 or j35lewis@blm.gov.

Signed by:                                                                    Authenticated by:

Michael D. Nedd                                                          Robert M. Williams

Assistant Director                                                         Division of IT Policy and Planning,WO-870

Energy, Minerals, and Realty Management

[1] An exchange proponent may be found to be qualified for a fee coal exchange if it meets the requirements found in 43 CFR 3436.2-1.