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Another "Tommy Tidbit" just for good measure...

-------------------------------------------------------------------------------- Taken from "The Engineer Update", July, 2002 issue available at www.usace.army.mil under publications

S. Dakota land transfer called "monumental"

"Monumental" and "unprecedented" describe many Omaha District projects, but perhaps none quite as much as the Title VI land transfer in South Dakota. The Title VI land transfer, mandated by Water Resources Development Act 106-53 in 1999, will transfer about 91,178 acres of recreation areas and wildlife lands from federal ownership to South Dakota. Included are sites at Lake Oahe, Lake Sharpe (Big Bend), Lewis & Clark Lake (Gavins Point) and Lake Francis Case (Fort Randall).

Of the 123 recreation areas at the reservoirs, 63 transferred to the state last February. Nine were leased in perpetuity to the state this year. The remaining 51 are on reservation lands, or outside South Dakota. Reservation land will transfer to the Department of the Interior and Bureau of Indian Affairs and held in trust for the tribes in perpetuity.

Congress required the transfer be made by last Jan. 1, so the environmental impact statement (EIS) and a record of decision (ROD) had to be completed by last Dec. 31. The Corps' tasks included conducting an EIS, preparing data and documents, and the actual transfer to the South Dakota Department of Game, Fish & Parks.

Environmental impact statement

The complexities of the land transfer were intensified by the schedule. "We had a preliminary draft of the EIS in three months, which is unheard-of for a project of this complexity," said Candace Gorton, Chief of Environmental, Economics & Cultural Resources. "Usually it takes nine months to a year to have a draft."

Endangered species were one of several issues addressed in the EIS. Transferring land to a state normally means the lands would lose the protection of the Endangered Species Act, Gorton said. "That was resolved through a memorandum of agreement between the Corps and the Fish and Wildlife Service, which identified what activities the state would undertake to avoid affecting endangered species." Another issue was possible impact to cultural resources or archeological sites. "The tribes felt those lands would lose the protection of federal cultural resources laws once they transferred to the state," Groton said. "But the legislation had a provision that the three main cultural resources laws would continue to apply to the land after it transferred, so the Corps was to maintain responsibilities for compliance for those laws."

Early in the process, several tribes opposed the legislation and sought an analysis of existing treaties to determine whether the land transfer violated any treaties with the federal government. The Corps commander signed the ROD last Dec. 21.

Land transfer

Martin Timmerwilke, a recreation planner who coordinated operations for the transfer, feels that South Dakota will do a good job. "According to the legislation, they have to manage the land in perpetuity for recreation and wildlife management. It doesn't change the purpose of the land." The Corps' involvement with the lands does not, however, end when the transfer is complete because of specifications in Congress's mandate. For one, some areas by the dams will not transfer. "The federal government needs to own them for dam safety, protection, and instrumentation," Timmerwilke said. "We'll retain the land, but lease the recreation land to the state in perpetuity.

"We had to identify the recreation boundaries, the recreation areas, all leases, the boundaries for areas transferring, and boundaries for areas being leased," Timmerwilke added. "The lands in the boundaries of the Cheyenne River Sioux Tribe, and lands in the boundaries of the Lower Brule Sioux Tribe, transfer to the Department of the Interior to be held in trust for those tribes." The tribes take over the lands and management. Federal funds were set up for the state and tribe to use for the land. The land transfer to Interior for the Lower Brule Sioux Tribe was completed last summer; for the Cheyenne River Sioux Tribe before Jan. 1.

Court actions

In July 1999, the state requested that the Corps lease many of the recreation areas that would eventually transfer to it in fee title. An environmental assessment (EA) determined that this action would have no significant environmental impacts.

The recreation areas leased were reduced from the 54 to 22 and, in January 2001, three leases were executed with the state. On the day the leases were signed, the Crow Creek Sioux Tribe filed suit in district court to stop the leases and the eventual fee transfer of recreation areas and lands, arguing that the EA was not adequate.

As the arguments unfolded, the tribe's complaint turned from the EA to the EIS. They claimed that the Title VI statute set up an impossible situation. On one hand, the statute directed the Corps to transfer the recreation areas to the state last Jan. 1 but, on the other, it asserted that three cultural resource federal laws would apply to the state-owned lands.

To the tribe, this provision made the statute unconstitutional. The three federal laws are the National Historic Preservation Act, Archaeological Resource Protection Act, and Native American Graves Protection and Repatriation Act.

"A hearing was held in December 2001 on several pending motions," said Gary Henningsen, district counsel and the legal counsel to the project team. "But the judge focused everyone on the fact that the case was not so much on the lease actions, but on the transfer of the recreation areas."

The land transfer was completed Feb. 8 by handing over to the state 13 quit claim deeds covering 12,289 acres of land. In the Title VI provision, Congress said those three federal laws would be implemented after the land transfer. "But the law didn't say how that was to occur or who was to do it," Henningsen said. "We decided it would be necessary to enter into a memorandum of agreement with the state to set out how we'll accomplish this requirement. That became a major issue because the tribe said, 'You can't do that. The Corps implements the laws, but the state owns the land. Since these laws apply to only federal lands, and these lands are no longer federal, it's an impossibility.' "Congress said these laws will apply after the land is transferred to the state," he added. "I'm not aware this has been done before."

Wildlife land

Wildlife land will not transfer until a trust fund is fully capitalized in 2007, according to John Cooper with the South Dakota Department of Game, Fish & Parks. "Once it's fully capitalized at its $108 million level, the interest will be available from that trust fund to manage and operate those lands. Then those lands will transfer to the state, much like the recreational lands were just transferred."

The process that led to Title VI was started "to put together a plan to return the lands, raise the priority for recreation and wildlife management, settle the jurisdictional issues [between the state and the Sioux tribes] and provide money to do that, and that's what Title VI is," Cooper said. "I give a lot of credit to the staff in Omaha. In general, the Corps wasn't in favor of Title VI, but after the commitment was made, after Title VI passed, the relationship we developed with Omaha was excellent."

And people wonder how he keeps getting elected.