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Senate Bill 238 History
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ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 238
(Senators White, Green, Laird, Yost, Deem, Stollings, Chafin and D.
Facemire, original sponsors)
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[Passed March 13, 2010; in effect ninety days from passage.]
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AN ACT to amend and reenact §5A-11-3 and §5A-11-6 of the Code of
West Virginia, 1931, as amended, all relating to management of
state lands; authorizing the use of mineral rights to benefit
state agencies, institutions or departments; providing that
the royalties and payments from land sales and exchanges made
by the Adjutant General's Department be retained in the fund
managed by the Adjutant General; and providing an exemption
for providing a performance bond when an agency is entering
into a mineral lease.
Be it enacted by the Legislature of West Virginia:
That §5A-11-3 and §5A-11-6 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 11. PUBLIC LAND CORPORATION.
§5A-11-3. Public Land Corporation, powers and duties.
(a) The corporation is hereby authorized and empowered to:
(1) Acquire from any persons or the State Auditor or any
local, state or federal agency, by purchase, lease or other
agreement, any lands necessary and required for public use;
(2) Acquire by purchase, condemnation, lease or agreement,
receive by gifts and devises or exchange, rights-of-way, easements,
waters and minerals suitable for public use;
(3) Sell or exchange public lands where it is determined that
the sale or exchange of such tract meets any or all of the
following disposal criteria:
(A) The tract was acquired for a specific purpose and the
tract is no longer required for that or any other state purpose;
(B) Disposal of the tract serves important public objectives
including, but not limited to, expansion of communities and
economic development which cannot be achieved on lands other than
public lands and which clearly outweigh other public objectives and
values including, but not limited to, recreation and scenic values
which would be served by maintaining the tract in state ownership;
or
(C) The tract, because of its location or other
characteristics, is difficult and uneconomic to manage as part of
the public lands and is not suitable for management by another
state department or agency.
(4) Sell, purchase or exchange lands or stumpage for the
purpose of consolidating lands under state or federal government
administration subject to the disposal criteria specified in subdivision (3) of this subsection;
(5) Negotiate and effect loans or grants from the government
of the United States or any agency thereof for acquisition and
development of lands as may be authorized by law to be acquired for
public use;
(6) Expend the income from the use and development of public
lands for the following purposes:
(A) Liquidate obligations incurred in the acquisition,
development and administration of lands, until all obligations have
been fully discharged;
(B) Purchase, develop, restore and preserve for public use,
sites, structures, objects and documents of prehistoric,
historical, archaeological, recreational, architectural and
cultural significance to the State of West Virginia; and
(C) Obtain grants or matching moneys available from the
government of the United States or any of its instrumentalities for
prehistoric, historic, archaeological, recreational, architectural
and cultural purposes.
(7) Designate lands, to which it has title, for development
and administration for the public use including recreation,
wildlife stock grazing, agricultural rehabilitation and
homesteading or other conservation activities;
(8) Enter into leases as a lessor for the development and
extraction of minerals, including coal, oil, gas, sand or gravel
except as otherwise circumscribed herein: Provided, That leases for
the development and extraction of minerals shall be made in accordance with the provisions of sections five and six of this
article. The corporation shall reserve title and ownership to the
mineral rights in all cases;
(9) Convey, assign or allot lands to the title or custody of
proper departments or other agencies of state government for
administration and control within the functions of departments or
other agencies as provided by law;
(10) Make proper lands available for the purpose of
cooperating with the government of the United States in the relief
of unemployment and hardship or for any other public purpose.
(b) There is hereby continued in the state Treasury a special
Public Land Corporation Fund into which shall be paid all proceeds
from public land sales and exchanges and rents, royalties and other
payments from mineral leases: Provided, That all royalties and
payments derived from rivers, streams or public lands acquired or
managed by the Division of Natural Resources pursuant to section
seven, article one, chapter twenty of this code and section two,
article five, chapter twenty of this code shall be retained by the
Division of Natural Resources: Provided, however, That all
proceeds, rents, royalties and other payments from land sales,
exchanges and mineral rights leasing for public lands owned,
managed or controlled by the Adjutant General's Department will be
retained in a fund managed by the Adjutant General in accordance
with article six, chapter fifteen of the code: Provided, further,
That all free gas, sand, gravel or other natural resources derived
from a lease or contract made pursuant to this article will be used to benefit the state agencies, institutions, or departments located
on the affected public lands, or for which the corporation was
acting or to benefit any state agencies, institutions, or
departments having adjacent property. The corporation may acquire
public lands from use of the payments made to the fund, along with
any interest accruing to the fund. The corporation shall report
annually, just prior to the beginning of the regular session of the
Legislature, to the finance committees of the Legislature on the
financial condition of the special fund. The corporation shall
report annually to the Legislature on its public land holdings and
all its leases, its financial condition and its operations and
shall make such recommendations to the Legislature concerning the
acquisition, leasing, development, disposition and use of public
lands.
(c) All state agencies, institutions, divisions and
departments shall make an inventory of the public lands of the
state as may be by law specifically allocated to and used by each
and provide to the corporation a list of such public lands and
minerals, including their current use, intended use or best use to
which lands and minerals may be put: Provided, That the Division of
Highways need not provide the inventory of public lands allocated
to and used by it, and the Division of Natural Resources need not
provide the inventory of rivers, streams and public lands acquired
or managed by it. The inventory shall identify those parcels of
land which have no present or foreseeable useful purpose to the
State of West Virginia. The inventory shall be submitted annually to the corporation by August 1. The corporation shall compile the
inventory of all public lands and minerals and report annually to
the Legislature by no later than January 1, on its public lands and
minerals and the lands and minerals of the other agencies,
institutions, divisions or departments of this state which are
required to report their holdings to the corporation as set forth
in this subsection, and its financial condition and its operations.
(d) Except as otherwise provided by law, when the corporation
exercises its powers, the
corporation will coordinate with other
state agencies, institutions, and departments in order to develop
and execute plans to utilize mineral rights which benefit their
operations or the operations of any other state agencies,
institutions, or departments.
§5A-11-6. Competitive bidding and notice requirements before the
development or extraction of minerals on certain
lands; related standards.
(a) The corporation may enter into a lease or contract for the
development of minerals, including, but not limited to, coal, gas,
oil, sand or gravel on or under lands in which the corporation
holds any right, title or interest: Provided, That no lease or
contract may be entered into for the extraction and removal of
minerals by surface mining or auger mining of coal: Provided,
however, That the corporation or the state agencies, institutions
or departments for which it is acting will not be required to post
any type of surety or performance bond with the West Virginia Department of Environmental Protection or any other state agency
when executing a lease for the development of minerals.
(b) With the exception of deep mining operations which are
already in progress and permitted as of July 5, 1989, the
extraction of coal by deep mining methods under state forests or
wildlife refuges may be permitted only if the lease or contract
provides that no entries, portals, air shafts or other incursions
upon and into the land incident to the mining operations may be
placed or constructed upon the lands or within three thousand feet
of its boundary.
(c) Any lease or contract entered into by the corporation for
the development of minerals shall reserve to the state all rights
to subjacent surface support with which the state is seized or
possessed at the time of such lease or contract.
(d) Notwithstanding any other provisions of the code to the
contrary, nothing herein may be construed to permit extraction of
minerals by any method from, on or under any state park or state
recreation area, nor the extraction of minerals by strip or auger
mining upon any state forest or wildlife refuge.
(e) The corporation may enter into a lease or contract for the
development of minerals where the lease or contract is not
prohibited by any other provisions of this code, only after
receiving sealed bids therefor, after notice by publication as a
Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code. The area for
publication shall be each county in which the minerals are located.
(f) The minerals so advertised may be leased or contracted for
development at not less than the fair market value, as determined
by an appraisal made by an independent person or firm chosen by the
corporation, to the highest responsible bidder, who shall give bond
for the proper performance of the contract or lease as the
corporation designates: Provided, That the corporation may reject
any and all bids and to readvertise for bids.
(g) If the provisions of this section have been complied with,
and no bid equal to or in excess of the fair market value is
received, the corporation may, at any time during a period of six
months after the opening of the bids, lease or contract for the
development of the minerals, but the lease or contract price may
not be less than the fair market value.
(h) Any lease or contract for the development of minerals
entered into after the effective date of this section shall be made
in accordance with the provisions of this section and section five
of this article.
(i) The corporation will consult with the office of the
Attorney General to assist the corporation in carrying out the
provisions of this section.
(j) The corporation shall consult with an independent mineral
consultant and any other competent third parties with experience
and expertise in the leasing of minerals, to assist the corporation
in carrying out the provisions of this section, including
determining fair market value and negotiating terms and conditions
of mineral leases.
(k) Once the lessee commences the production of minerals and
royalties become due and are paid to the Public Land Corporation,
the Public Land Corporation shall hire an independent auditing firm
to periodically review the lessee's books and accounts for
compliance of payment of appropriate royalties due the Public Land
Corporation for its minerals as produced under the lease agreement.