Senate Bill No. 683
(By Senators Bailey, Barnes, Fanning and Love)
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[Introduced February 19, 2007; referred to the Committee on
Natural Resources; then to the Committee on the Judiciary; and
then to the Committee on Finance.]
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A BILL to amend and reenact §20-1-7 of the Code of West Virginia,
1931, as amended; to amend and reenact §20-1A-6 of said code;
and to amend and reenact §20-5-2 of said code, all relating to
permitting the extraction of minerals underlying state parks
by private owners directly from the surface of parks.
Be it enacted by the Legislature of West Virginia:
That §20-1-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §20-1A-6 of said code be amended and
reenacted; and that §20-5-2 of said code be amended and reenacted,
all to read as follows:
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-7. Additional powers, duties and services of director.
In addition to all other powers, duties and responsibilities
granted and assigned to the director in this chapter and elsewhere by law, the director is hereby authorized and empowered to:
(1) With the advice of the commission, prepare and administer,
through the various divisions created by this chapter, a long-range
comprehensive program for the conservation of the natural resources
of the state which best effectuates the purpose of this chapter and
which makes adequate provisions for the natural resources laws of
the state;
(2) Sign and execute in the name of the state by the "Division
of Natural Resources" any contract or agreement with the federal
government or its departments or agencies, subdivisions of the
state, corporations, associations, partnerships or individuals;
(3) Conduct research in improved conservation methods and
disseminate information matters to the residents of the state;
(4) Conduct a continuous study and investigation of the habits
of wildlife, and for purposes of control and protection, to
classify by regulation the various species into such categories as
may be established as necessary;
(5) Prescribe the locality in which the manner and method by
which the various species of wildlife may be taken, or chased,
unless otherwise specified by this chapter;
(6) Hold at least six meetings each year at such time and at
such points within the state, as in the discretion of the Natural
Resources Commission may appear to be necessary and proper for the
purpose of giving interested persons in the various sections of the state an opportunity to be heard concerning open season for their
respective areas, and report the results of the meetings to the
Natural Resources Commission before such season and bag limits are
fixed by it;
(7) Suspend open hunting season upon any or all wildlife in
any or all counties of the state with the prior approval of the
Governor in case of an emergency such as a drought, forest fire
hazard or epizootic disease among wildlife. The suspension shall
continue during the existence of the emergency and until rescinded
by the director. Suspension, or reopening after such suspension,
of open seasons may be made upon twenty-four hours' notice by
delivery of a copy of the order of suspension or reopening to the
wire press agencies at the State Capitol;
(8) Supervise the fiscal affairs and responsibilities of the
division;
(9) Designate such localities as he or she shall determine to
be necessary and desirable for the perpetuation of any species of
wildlife;
(10) Enter private lands to make surveys or inspections for
conservation purposes, to investigate for violations of provisions
of this chapter, to serve and execute warrants and processes, to
make arrests and to otherwise effectively enforce the provisions of
this chapter;
(11) Acquire for the state in the name of the "Division of Natural Resources" by purchase, condemnation, lease or agreement,
or accept or reject for the state, in the name of the Division of
Natural Resources, gifts, donations, contributions, bequests or
devises of money, security or property, both real and personal, and
any interest in such property, including lands and waters, which he
or she deems suitable for the following purposes:
(a) For state forests for the purpose of growing timber,
demonstrating forestry, furnishing or protecting watersheds or
providing public recreation;
(b) For state parks or recreation areas for the purpose of
preserving scenic, aesthetic, scientific, cultural, archaeological
or historical values or natural wonders, or providing public
recreation;
(c) For public hunting, trapping or fishing grounds or waters
for the purpose of providing areas in which the public may hunt,
trap or fish, as permitted by the provisions of this chapter, and
the rules issued hereunder;
(d) For fish hatcheries, game farms, wildlife research areas
and feeding stations;
(e) For the extension and consolidation of lands or waters
suitable for the above purposes by exchange of other lands or
waters under his or her supervision;
(f) For such other purposes as may be necessary to carry out
the provisions of this chapter;
(12) Capture, propagate, transport, sell or exchange any
species of wildlife as may be necessary to carry out the provisions
of this chapter;
(13) Sell timber for not less than the value thereof, as
appraised by a qualified appraiser appointed by the director, from
all lands under the jurisdiction and control of the director,
except those lands that are designated as state parks and those in
the Kanawha State Forest. The appraisal shall be made within a
reasonable time prior to any sale, reduced to writing, filed in the
office of the director and shall be available for public
inspection. The director must obtain the written permission of the
Governor to sell timber when the appraised value is more than five
thousand dollars. The director shall receive 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, and the publication area for such publication shall
be each county in which the timber is located. The timber so
advertised shall be sold at not less than the appraised value to
the highest responsible bidder, who shall give bond for the proper
performance of the sales contract as the director shall designate;
but the director shall have the right to reject any and all bids
and to readvertise for bids. If the foregoing provisions of this
section have been complied with, and no bid equal to or in excess
of the appraised value of the timber is received, the director may, at any time, during a period of six months after the opening of the
bids, sell the timber in such manner as he or she deems
appropriate, but the sale price shall not be less than the
appraised value of the timber advertised. No contract for sale of
timber made pursuant to this section shall extend for a period of
more than ten years. And all contracts heretofore entered into by
the state for the sale of timber shall not be validated by this
section if the same be otherwise invalid. The proceeds arising
from the sale of the timber so sold, shall be paid to the Treasurer
of the state of West Virginia, and shall be credited to the
division and used exclusively for the purposes of this chapter:
Provided, That nothing contained herein shall prohibit the sale of
timber which otherwise would be removed from rights-of-way
necessary for and strictly incidental to the extraction of
minerals;
(14) Sell or lease, with the approval in writing of the
Governor, coal, oil, gas, sand, gravel and any other minerals that
may be found in the lands under the jurisdiction and control of the
director, except those lands that are designated as state parks and
the oil and gas minerals are owned by the state. The director,
before making sale or lease thereof, shall receive 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, and the publication area for such publication shall be each county in which such lands are located.
The minerals so advertised shall be sold or leased to the highest
responsible bidder, who shall give bond for the proper performance
of the sales contract or lease as the director shall designate; but
the director shall have the right to reject any and all bids and to
readvertise for bids. The proceeds arising from any such sale or
lease shall be paid to the Treasurer of the state of West Virginia
and shall be credited to the division and used exclusively for the
purposes of this chapter: Provided, That, the director shall
permit the extraction of oil and gas when those minerals are owned
by an entity other than the state pursuant to subdivision (15) of
this section.
(15) The director shall permit the extraction of oil or gas
from state park or state recreation area lands when those minerals
are not owned by the state. The director, before permitting the
extraction of oil and gas from state park or state recreation area
lands, shall receive a written proposal for the extraction from the
mineral owner or the mineral owner's agent or lessee. The director
shall have the right to reject the proposal and to request
additional proposals if the proposed development unreasonably
interferes with the recreational function of the facility. The
director shall negotiate an oil and gas development proposal for
good and valuable consideration to the state and under reasonable
terms and conditions. The proposal shall make allowances for the valuation and payment for timber removed incidental to the oil and
gas extraction. The proposal shall include the opportunity for
input from the division with respect to the placement of roads and
pipelines to minimize the impact to both the natural resources on
the state lands and the recreational function of the state lands.
The proposal shall also contemplate appropriate reclamation for
disturbed lands. The proceeds payable to the state arising from
such extraction shall be paid to the Treasurer of the State of West
Virginia and shall be credited to the division and used exclusively
for the improvement and maintenance of the state parks. Nothing
herein shall effect or apply to any wells within state parks
existing prior to the effective date of this act.
(15) (16) Exercise the powers granted by this chapter for the
protection of forests, and regulate fires and smoking in the woods
or in their proximity at such times and in such localities as may
be necessary to reduce the danger of forest fires;
(16) (17) Cooperate with departments and agencies of state,
local and federal governments in the conservation of natural
resources and the beautification of the state;
(17) (18) Report to the Governor each year all information
relative to the operation and functions of the division and the
director shall make such other reports and recommendations as may
be required by the Governor, including an annual financial report
covering all receipts and disbursements of the division for each fiscal year, and he or she shall deliver such report to the
Governor on or before the first day of December next after the end
of the fiscal year so covered. A copy of such report shall be
delivered to each house of the Legislature when convened in January
next following;
(18) (19) Keep a complete and accurate record of all
proceedings, record and file all bonds and contracts taken or
entered into, and assume responsibility for the custody and
preservation of all papers and documents pertaining to his or her
office, except as otherwise provided by law;
(19) (20) Offer and pay, in his or her discretion, rewards for
information respecting the violation, or for the apprehension and
conviction of any violators, of any of the provisions of this
chapter;
(20) (21) Require such reports as he or she may deem to be
necessary from any person issued a license or permit under the
provisions of this chapter, but no person shall be required to
disclose secret processes or confidential data of competitive
significance;
(21) (22) Purchase as provided by law all equipment necessary
for the conduct of the division;
(22) (23) Conduct and encourage research designed to further
new and more extensive uses of the natural resources of this state
and to publicize the findings of such research;
(23) (24) Encourage and cooperate with other public and
private organizations or groups in their efforts to publicize the
attractions of the state;
(24) (25) Accept and expend, without the necessity of
appropriation by the Legislature, any gift or grant of money made
to the division for any and all purposes specified in this chapter,
and he or she shall account for and report on all such receipts and
expenditures to the Governor;
(25) (26) Cooperate with the state historian and other
appropriate state agencies in conducting research with reference to
the establishment of state parks and monuments of historic, scenic
and recreational value, and to take such steps as may be necessary
in establishing such monuments or parks as he or she deems
advisable;
(26) (27) Maintain in his or her office at all times, properly
indexed by subject matter, and also, in chronological sequence, all
rules made or issued under the authority of this chapter. Such
records shall be available for public inspection on all business
days during the business hours of working days;
(27) (28) Delegate the powers and duties of his or her office,
except the power to execute contracts, to appointees and employees
of the division, who shall act under the direction and supervision
of the director and for whose acts he or she shall be responsible;
(28) (29) Conduct schools, institutions and other educational programs, apart from or in cooperation with other governmental
agencies, for instruction and training in all phases of the natural
resources programs of the state;
(29) (30) Authorize the payment of all or any part of the
reasonable expenses incurred by an employee of the division in
moving his or her household furniture and effects as a result of a
reassignment of the employee: Provided, That no part of the moving
expenses of any one such employee shall be paid more frequently
than once in twelve months; and
(30) (31) Promulgate rules, in accordance with the provisions
of chapter twenty-nine-a of this code, to implement and make
effective the powers and duties vested in him or her by the
provisions of this chapter and take such other steps as may be
necessary in his or her discretion for the proper and effective
enforcement of the provisions of this chapter.
ARTICLE 1A. REAL ESTATE MANAGEMENT AND PROCEDURES.
§20-1A-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.
(b) With the exception of deep mining operations which are
already in progress and permitted as of the fifth day of July, one
thousand nine hundred eighty-nine, 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 Except as provided in section seven, article one of this
chapter, 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.
ARTICLE 5. PARKS AND RECREATION.
§20-5-2. Powers of the director with respect to the section of
parks and recreation.
(a) The Director of the Division of Natural Resources is
responsible for the execution and administration of the provisions
in this article as an integral part of the parks and recreation
program of the state and shall organize and staff the section of
parks and recreation for the orderly, efficient and economical
accomplishment of these ends. The authority granted in the year
one thousand nine hundred ninety-four to the Director of the
Division of Natural Resources to employ up to six additional
unclassified personnel to carry out the parks' functions of the
Division of Natural Resources is continued.
(b) The Director of the Division of Natural Resources shall:
(1) Establish, manage and maintain the state's parks and
recreation system for the benefit of the people of this state and
do all things necessary and incidental to the development and
administration of the state's parks and recreation system;
(2) Acquire property for the state in the name of the Division
of Natural Resources by purchase, lease or agreement; retain,
employ and contract with legal advisors and consultants; or accept
or reject for the state, in the name of the division, gifts,
donations, contributions, bequests or devises of money, security or
property, both real and personal, and any interest in the property,
including lands and waters, for state park or recreational areas
for the purpose of providing public recreation: Provided, That the
provisions of section twenty, article one of this chapter are
specifically made applicable to any acquisitions of land:
Provided, however, That any sale, exchange or transfer of property
for the purposes of completing land acquisitions or providing
improved recreational opportunities to the citizens of the state is
subject to the procedures of article one-a of this chapter:
Provided further, That no sale of any park or recreational area
property, including lands and waters, used for purposes of
providing public recreation on the effective date of this article
and no privatization of any park may occur without statutory
authority;
(3) Approve and direct the use of all revenue derived from the operation of the state parks and public recreation system for the
operation, maintenance and improvement of the system, individual
projects of the system or for the retirement of park development
revenue bonds: Provided, That all revenues derived from the
operation of the state parks and public recreation system shall be
invested by the Treasurer and all proceeds from investment earnings
shall accrue for the exclusive use for the operation, maintenance,
and improvement of the system, individual projects of the system or
for the retirement of park development revenue bonds;
(4) Effectively promote and market the state's parks, state
forests, state recreation areas and wildlife recreational resources
by approving the use of no less than twenty percent of the:
(A) Funds appropriated for purposes of advertising and
marketing expenses related to the promotion and development of
tourism, pursuant to subsection (j), section eighteen, article
twenty-two, chapter twenty-nine of this code; and
(B) Funds authorized for expenditure from the Tourism
Promotion Fund for purposes of direct advertising, pursuant to
section twelve, article two, chapter five-b of this code and
section ten, article twenty-two-a, chapter twenty-nine of this
code;
(5) Issue park development revenue bonds as provided in this
article;
(6) Provide for the construction and operation of cabins, lodges, resorts, restaurants and other developed recreational
service facilities, subject to the provisions of section fifteen of
this article and section twenty, article one of this chapter;
(7) The director may sell timber that has been severed in a
state park incidental to the construction of park facilities or
related infrastructure where the construction is authorized by the
Legislature in accordance with section twenty, article one of this
chapter, and the sale of the timber is otherwise in the best
interest of park development, without regard to proceeds derived
from the sale of timber. The gross proceeds derived from the sale
of timber shall be deposited into the operating budget of the park
from which the timber was harvested;
(8) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this code
to control the uses of parks: Provided, That the director may not
permit public hunting, except as otherwise provided in this
section, the exploitation of minerals, except as otherwise provided
in section seven, article one of this chapter, or the harvesting of
timber for commercial purposes in any state park;
(9) Exempt designated state parks from the requirement that
all payments must be deposited in a bank within twenty-four hours
for amounts less than five hundred dollars notwithstanding any
other provision of this code to the contrary: Provided, That such
designated parks shall make a deposit in any amount no less than every seven working days;
(10) Waive the use fee normally charged to an individual or
group for one day's use of a picnic shelter or one week's use of a
cabin in a state recreation area when the individual or group
donates the materials and labor for the construction of the picnic
shelter or cabin: Provided, That the individual or group was
authorized by the director to construct the picnic shelter or cabin
and that it was constructed in accordance with the authorization
granted and the standards and requirements of the division
pertaining to the construction. The individual or group to whom
the waiver is granted may use the picnic shelter for one reserved
day or the cabin for one reserved week during each calendar year
until the amount of the donation equals the amount of the loss of
revenue from the waiver or until the individual dies or the group
ceases to exist, whichever first occurs. The waiver is not
transferable. The director shall permit free use of picnic
shelters or cabins to individuals or groups who have contributed
materials and labor for construction of picnic shelters or cabins
prior to the effective date of this section. The director shall
propose a legislative rule for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code
governing the free use of picnic shelters or cabins provided in
this section, the eligibility for free use, the determination of
the value of the donations of labor and materials, the appropriate definitions of a group and the maximum time limit for the use;
(11) Provide within the parks a market for West Virginia arts,
crafts and products, which shall permit gift shops within the parks
to offer for sale items purchased on the open market from local
artists, artisans, craftsmen and suppliers and local or regional
crafts cooperatives;
(12) Provide that reservations for reservable campsites may be
made, upon two days' advance notice, for any date for which space
is available within a state park or recreational area managed by
the parks and recreation section;
(13) Provide that reservations for all state parks and
recreational areas managed by the parks and recreation section of
the division may be made by use of a valid credit card;
(14) Develop a plan to establish a centralized computer
reservation system for all state parks and recreational areas
managed by the parks and recreation section and to implement the
plan as funds become available; and
(15) Notwithstanding the provisions of section fifty-eight,
article two of this chapter, the Natural Resources Commission is
authorized to promulgate rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code to permit and
regulate the hunting of white-tail deer in any state park as deemed
appropriate by the director to protect the ecological integrity of
the area.
NOTE: The purpose of this bill is to permit the extraction of
minerals underlying state parks by private owners directly from the
surface of parks.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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