Hells Canyon National Recreation AreaPrivate Lands; Final Rule DEPARTMENT OF AGRICULTURE

SUMMARY: This final rule implements section 10(a) of the Hells Canyon

National Recreation Area Act of 1975. The Act directs the Secretary of

Agriculture to promulgate rules and regulations deemed necessary to

guide the use and development of private lands within the Hells Canyon

National Recreation Area. This rule establishes the baseline standards

of private land use and development that are compatible with the

purposes of the Act and that, if not met, could result in the

Secretary's use of the private land acquisition authority provided by

the Act. The intended effect is to ensure that the values of the HCNRA

will be protected and preserved, and as envisioned by the Act, that

traditional ranching, grazing, farming, timber harvesting, and other

uses can be perpetuated.

EFFECTIVE DATE: This rule is effective June 13, 1994.

FOR FURTHER INFORMATION CONTACT:

Tom Lennon, Branch Chief, Special Designations, Recreation, Heritage,

and Wilderness Resources Staff, Forest Service, (202) 205-1423 or Ed

Cole, Area Ranger, (503) 426-4978.

SUPPLEMENTARY INFORMATION:

Background

Congress established the Hells Canyon National Recreation Area

(HCNRA) by the Act of December 31, 1975 (the Act) in order to assure

that the natural beauty, and historical and archaeological values of

the Hells Canyon area are preserved for this and future generations,

and that the recreational and ecologic values and public enjoyment of

the area are thereby enhanced. Public Law 94-199, 89 Stat. 1117 at Sec.

1 (codified at 16 U.S.C. 460gg et seq.).

Section 10 of the Act directs the Secretary to promulgate such

rules and regulations as are deemed necessary to accomplish the

purposes of the Act, including standards for the use and development of

privately owned property within the HCNRA. Section 10 further provides

that the Secretary may use the land acquisition authority in section 9

of the Act to implement the rules and regulations promulgated pursuant

to section 10. As for the Snake, Rapid, and Imnaha Wild and Scenic

Rivers, the governing authority for land acquisition is found in

section 6 of the Wild and Scenic Rivers Act. Both section 9 of the Act

and section 6 of the Wild and Scenic Rivers Act restrict the

Secretary's condemnation authority; i.e. acquiring land without the

consent of the landowner.

On December 14, 1993, the Forest Service published a proposed rule

that would establish the standards for the use and development of

private lands in the HCNRA (56 FR 65300). The purpose of the proposed

regulations was to make clear those circumstances which would trigger

possible use of the Secretary's condemnation authority. The proposed

rule established categories of private land and standards for the use

and development of private land within a given category. Compliance

with the standards would generally be deemed consistent with the

purposes for which the HCNRA was established. Violation of the

standards would generally be deemed inconsistent with the purposes for

which the HCNRA was established, and, thus the lands could become the

subject of federal acquisition. Thus, the proposed rule sought to make

clear to affected landowners those uses that could continue or be

undertaken without risk of federal acquisition.

Throughout its efforts to devise regulations applicable to private

lands within the HCNRA, the Forest Service has sought to avoid direct

regulation of private lands and their uses. Instead, the agency has

sought to define those uses of private lands that are consistent with

the purposes for which the HCNRA was established, to encourage

retention of traditional and valid private land uses as established by

the Act, and, thereby, to avoid having to exercise the condemnation

authority granted the Secretary by the Act. Under the proposed rule,

the Forest Service would not seek to regulate per se or enjoin proposed

uses or developments on private land. Rather, the agency chose to set

forth in the proposed rule standards for private land use and

development, which establish the basis for using the secretary's land

acquisition authority in the HCNRA. The proposed rule also established

a mechanism by which a landowner could petition for a change in land

category assignment and a mechanism by which a landowner could

determine whether an existing or proposed land use or development was

in compliance with the standards of the rule. The Forest Service may

also initiate a noncompliance determination on its own without having

first received a landowner request.

Under the proposed rule, the Secretary would not acquire the

subject land or interests therein unless it was with the consent of the

landowner in those cases where a landowner was in compliance with the

applicable standards. If, however, the landowner was not in compliance,

the Secretary could acquire a fee simple or lesser interest in the

subject land without the landowner's consent. The proposed rule also

provided landowners and other interested parties an opportunity to

appeal a compliance or noncompliance determination.

Eight letters expressing a variety of viewpoints were received

during the 60-day comment period on the proposed rule. These letters

contained the views of a power company, a powerboat association, a

preservation group, a local county government, another agency of the

federal government, an ad hoc citizens river committee, a state

agricultural organization, and a local chapter of the same

organization. The comments contained in these letters have been

carefully considered in the adoption of this final rule. The Department

appreciates the time and energy the reviewers invested in preparing

these letters and articulating their concerns on the proposed rule.

All comments received are available for review in the Office of the

Director, Recreation, Heritage, and Wilderness Resources Staff,

Auditors Building, 4th Floor, 201 14th Street SW at Independence Avenue

SW., Washington, DC, during regular business hours (8 a.m. to 4:30

p.m.) Monday through Friday.

Analysis of Public Comment

Comments on the proposed rule dealt both with general issues, such

as the scope and extent of the Secretary's authority under this rule,

as well as discrete issues relating to specific provisions enumerated

in the proposed rule. In addition, there were several comments urging

that language in the Supplementary Information section of the proposed

rule be corrected and/or clarified. A summary of the comments and the

Department's response follows.

General Comments

1. Scope and Extent of the Secretary's Authority Under This Rule

Two reviewers raised a number of concerns regarding the use of the

Secretary's land acquisition authority to effectuate the standards set

out in the rule for private land use and development. The comments

reflected the divergent views of the reviewers and, to some degree, a

misunderstanding of the system as envisioned in the proposed rule. The

comments received on this issue and the Department's response follow.

Comment: The Secretary is impermissibly engaged in the zoning of

private lands in the HCNRA. One reviewer suggested that the process set

forth in the proposed rule which establishes land use categories and

allowable uses within those categories is ``zoning.'' Further, this

same reviewer noted that the acquisition of lands without the

landowner's consent is ``zoning.'' Finally, this reviewer noted that

using condemnation to ensure compliance is an extreme measure and that

the Forest Service should attempt to ``work in harmony'' with the

private landowners in the HCNRA to ensure compliance.

Response. The proposed rule does not vest the Secretary with zoning

authority. Zoning is defined as the division of a community into areas

in each of which only certain designated uses of land are permitted, so

that a community may develop in an orderly manner.

While the end result may be the same in terms of protecting an area

against potentially incompatible land uses, there is an important

distinction between the exercise of a local government's zoning

authority and the federal government's eminent domain authority. Zoning

laws are rooted in the exercise of a state's police power (usually

delegated to a subdivision of the state) to prevent persons under its

jurisdiction from using their property to the detriment of the general

welfare. The power of eminent domain, on the other hand, is the power

to acquire, or to authorize the acquisition of, private property for a

public use or purpose without the owner's consent, conditioned upon the

payment of just compensation. Because, zoning laws ordinarily do not

constitute a taking of property for public use for which compensation

must be paid, they differ substantially from the government's right to

determine the use of real estate under the power of eminent domain,

which requires just compensation.

In the preamble to the proposed rule, the agency went to great

length to explain that the mechanism by which the Secretary would

protect the HCNRA from incompatible private land use and development

was through acquisition (condemnation) rather than regulation

(injunction). In the conclusion to the preamble of the proposed rule

[58 FR 65304, Col. 2], the agency expressly stated that: ``The proposed

regulations have been carefully drafted to avoid any conflict with

local zoning authority and any appearance that the Forest Service

desires to regulate private land uses.'' Relying on acquisition

authority to enforce zoning ordinances is entirely consistent with

sections 9 and 10 of the Act. Moreover, this approach is the least

intrusive to the private landowners in the HCNRA, and it will not

duplicate the role nor supplant the authority of the local governmental

units in the HCNRA.

Finally, the Department agrees with the reviewer's observation that

condemnation is an extreme measure to enforce compliance with the

standards set out in this rule. As was stated in the conclusion to the

preamble to the proposed rule [59 FR 65304, Col. 2], ``The agency views

the use of condemnation authority as a last resort to protect the

HCNRA,'' to be instituted only where other, more harmonious measures

and attempts to cooperate with the landowners do not succeed.

Comment: The Secretary should more actively regulate private lands

in the HCNRA. Ironically, while one reviewer asserted that the Forest

Service had virtually usurped local zoning authority over the private

lands in the HCNRA, another reviewer stated that the Forest Service was

obligated to assert a more vigorous regulatory role over these same

lands. In particular, this reviewer asserted that relying on the

condemnation authority delegated to the Secretary in section 9 of the

Act will not adequately protect the HCNRA and that the Forest Service

must exercise its ``inherent regulatory authority'' over private lands

that are adjacent to federal lands.

Response: In order to properly respond to this comment, the

following two questions must be addressed--(1) Does the Secretary have

an ``inherent regulatory authority'' vis-a-vis private lands in the

HCNRA? and (2) If so, is its exercise necessary to comply with the

HCNRA Act?

The Department does not dispute the proposition that, pursuant to

the Property Clause of the Constitution, Congress has delegated to it

the authority to regulate and administer National Forest System lands

under the Organic Act; the Multiple-Use, Sustained-Yield Act; the

National Forest Management Act; the Forest and Rangeland Renewable

Resources Planning Act; the Wilderness Act; the Wild and Scenic Rivers

Act; and the HCNRA Act, to name just a few. In furtherance of those

enactments, regulations throughout title 36 of the Code of Federal

Regulations vest broad authority in the Forest Service to manage

National Forest System lands and many of the activities that occur

thereon.

However, these authorities are confined to National Forest System

lands and do not apply to private lands. The options regarding

regulation on private lands are considerably more limited. To begin

with, the Forest Service cannot ``zone'' private lands as that term is

commonly understood. ``Zoning'' is an authority that is reserved to the

States and their subdivisions under the Constitution. Congress examined

this issue prior to the establishment of the Cape Cod National Seashore

many years ago. Their analysis then is instructive today.

The Federal Government does not have authority to directly enact

zoning laws applicable to private property in any of the States. If

it had such authority, the task of preserving an area such as lower

Cape Cod in such a way as to safeguard the interests of private

landowners might be somewhat simplified, for Congress could simply

enact a zoning law for the area. However, in the division of powers

between the States and the Federal Government, it is wisely left to

States to adopt zoning laws * * *

For this reason, [the Act] requires the Secretary of the

Interior to issue regulations as soon as possible after the

enactment of the bill setting forth the standards which must be met

by town zoning bylaws for purposes of suspending his power of

eminent domain.

The only regulatory authority that the Forest Service possesses

relative to private lands is its authority as a landowner to enjoin

activities on adjacent or nearby lands which threaten the National

Forest land.

It is the considered judgment of the Department that the

acquisition of lands or interests therein, in conjunction with locally

established zoning measures, remains the most efficient and viable

system to legally control potentially incompatible land use and

development in the HCNRA. This is the thrust of this rule. Its success

depends on the best efforts of the Forest Service, State and local

governments, and landowners in the HCNRA.

However, this rule should not be construed to foreclose the

Agency's right to enjoin certain activities which threaten to

compromise the values for which the HCNRA was established. Whether such

action is warranted would need to be decided on a case-by-case basis.

In the event that a nuisance-like activity should arise in the future

which threatens the HCNRA, the Forest Service would be fully authorized

to exercise its prerogative as a landowner to seek to get the activity

terminated or modified so as to eliminate the deleterious effects on

National Forest System lands.

Comment: Snake River water rights. One reviewer suggested that the

rule should address withdrawals and diversions of water from the Snake

River that are used for irrigating traditional farming and ranching

activities in and around the HCNRA. This reviewer urged that the rule

prescribe: how much water can be diverted, the time and purpose of

diversion, and whether the diversion should be phased out so water may

be retained in the Snake River.

Response. The use of water from the Snake River is an integral

component of many of the traditional farming and ranching operations

occurring in the HCNRA. While the reviewer's concern may be legitimate

and this rule would present an appropriate vehicle to address these

concerns, Section 6 of the Act expressly prohibits the incorporation of

these suggestions into this rule as follows: No provision of this Act,

nor any regulations issued hereunder, shall in any way limit, restrict,

or conflict with present and future uses of the waters of the Snake

River and its tributaries upstream from the boundaries of the [HCNRA]

created hereby, for beneficial uses, whether consumptive or

nonconsumptive, now or hereafter existing, including, but not limited

to, domestic, municipal, stockwater, irrigation, mining, power, or

industrial uses.

Comments: Access to private land. One reviewer stated that access

is an integral part of the traditional uses recognized under the HCNRA

Act and should not be arbitrarily limited since such limitations would

reduce property value and restrict traditional uses.

Response. While the reviewer did not make clear how the proposed

rule would limit access to private lands, nor did the reviewer offer

suggestions for addressing the access issue, the Department notes that

the proposed rule was silent on the issue of access and nowhere can it

be inferred that the rule would permit the Forest Service to

arbitrarily limit such access. The Department does not believe that

this rule needs to address access, since section 1323 of the Alaska

National Interest Lands Conservation Act (ANILCA) requires that access

be granted to nonfederally owned lands located within the National

Forest System. Agency rules at 36 CFR part 254, subpart E implement

section 1323 and already apply to private lands within the HCNRA which

are subject to the terms and conditions for reasonable ingress and

egress that may be imposed by the Forest Service.

Comment: Monitoring. One reviewer noted that the proposed rule

failed to establish a system whereby the use and development of private

land in the HCNRA could be monitored by the Forest Service to detect

violations. According to this reviewer, the rule is ``grossly

deficient, and contrary to law in this respect.''

Response. While there was no provision for monitoring in the

proposed rule, this rule is not somehow legally insufficient as a

result. Monitoring by the Forest Service can occur in a number of ways

and need not be expressly provided for or authorized in this rule. For

instance, monitoring can occur by reviewing the actions of the local

government regarding private land use and development issues. The

Forest Service also can and does monitor private land use and

development through routine aerial photographs for fire prevention and

control, forest pest management, and landscape planning and management

and on-the-ground observations from adjacent National Forest land.

Additionally, where the Forest Service receives permission from the

landowner, monitoring could also be accomplished via an on-site

investigation.

In the proposed rule, monitoring also would be accomplished through

the compliance determination process which is optional on the part of

the landowner. Although the Department believes that monitoring was

never eliminated from the Forest Service's responsibilities by the

proposed rule, it also believes that monitoring is so important that it

would like to make clear that the Forest Service may monitor the uses

and developments on private lands at any time it believes it has good

reason to be concerned about the protection of the values for which the

HCNRA was established. To emphasize this point, the final rule adds a

new standard in Sec. 292.24, paragraph (b)(2) which states that the

Forest Service may initiate the compliance process on its own without

having first received a landowner request. This standard clearly shows

that the Forest Service may initiate the determination of compliance

process, where the agency has reason to believe, based on monitoring or

other information, that the landowner may be violating the standards

for private land use and development established by this rule.

Specific Comments on Proposed Subpart E of 36 CFR Part 292

The following is a discussion of comments that were received

pertaining to specific sections of the proposed rule and the changes,

if any, resulting from the comments. No comments were received on

Sec. 292.20, Purpose and Scope, or on Sec. 292.25, Information

Requirements, and no substantive modifications have been made to the

text of these sections, although editing for improved readability and

word choice was made. Accordingly, neither section is set out for

further discussion.

Section 292.21 Definitions

This section listed and defined special terms used in this subpart.

Comment: ``Farm/forest/grazing lands.'' Two reviewers suggested

that the definition of ``farm/forest/grazing lands'' be modified to

eliminate references to watershed protection, fish & wildlife habitat

maintenance and recreational activities as purposes for which farm/

forest/grazing lands may be used. These reviewers felt that these

additional non-farming uses could pose burdensome and expensive

requirements on the management of farming or grazing operations.

Response. The reviewers' concern that this definition would result

in the imposition of additional requirements on their operations is

unfounded. The subject definition is set out in the disjunctive. In

other words, farm/forest/grazing lands may be used for farm/forest/

grazing purposes or for watershed purposes, or for fish & wildlife

purposes, or for recreational purposes, or for a combination of the

above. The inclusion of these terms in this definition does not imply

that new requirements would be incorporated into ongoing farming and

ranching operations in the HCNRA. Of course, these farming and ranching

operations are still subject to applicable federal, state, and local

laws and ordinances. Therefore, the definition is adopted without

change from the proposed rule. However, on consideration of the

comments on the term ``farm/forest/grazing lands,'' the Department has

determined that the definition of ``farm/forest/grazing uses'' should

be modified so that it more closely parallels the definition of ``farm/

forest/grazing lands.'' To that end, a new second sentence has been

included in the ``farm/forest/grazing use'' definition which recognizes

that uses related to watershed protection, fish and wildlife habitat

maintenance, and recreational activities may also be undertaken on

these lands. Again, because these activities may be undertaken does not

signify that they must be undertaken. The definition of ``farm/forest/

grazing use'' also has been rearranged for ease of reading and

comprehension.

Comment: ``Land modification.'' One reviewer noted that the

definition of ``land modification'' in the proposed rule included road

construction as an example but that the circumstances under which road

construction would be accommodated in conjunction with access needs for

the purpose of maintaining and constructing utility facilities were

unclear.

Response. The Department agrees that the potential applicability of

the definition of ``land modification'' to utility maintenance

activities is unclear. Indeed, while ``land modification'' was included

in Sec. 292.21 of the proposed rule, it was not used elsewhere;

therefore, it has been deleted from the final rule. Absent this term,

the Department construes the standard at Sec. 292.23(a)(4) of the final

rule as accommodating reasonable road access to utility facilities

provided that such access is associated with the routine and necessary

maintenance of these facilities.

In addition, further review of the definition section disclosed

that the terms, ``Comprehensive management plan,'' ``seasonal

feedlots,'' and ``zoning'', were not used in the proposed rule;

accordingly, those terms have not been retained in the final rule. All

other terms and their definitions are retained without change in the

final rule.

Section 292.22 Land Category Assignments

The proposed rule established four categories to which private

lands in the HCNRA would be assigned and would require that maps

showing private lands and the categories to which they have been

assigned be on file and available for public inspection at the Ranger's

office.

Comment. One reviewer complained that the map identifying the

private lands in the HCNRA and the land use category to which they had

been assigned was not available for review during the comment period on

the proposed rule.

Response. The Department regrets that the map was unavailable,

since this could have been of some assistance to the parties in the

preparation of their comments on the rule. The Department has modified

this section in the final rule to require the map (or maps) to be

prepared and available for review not later than 60 days after the

effective date of this regulation and also to require the Ranger to

give notice of the availability of the maps in the local newspapers of

record. If any parties are concerned about a specific land category

assignment, they can make their concerns known to the Forest Service at

that time, and the Forest Service will consider these concerns prior to

the adoption of a final map. No other changes were made to this

section.

Section 292.23 Standards of Compatible Land Use and Development

The proposed rule would establish standards of private land use and

development that reflect traditional and valid uses of private lands in

existence as of December 31, 1975 for four categories of land use.

These categories were farm/forest/grazing, mining, residential, and

commercial land. The standards for these land categories were intended

to guide the Ranger in determining whether uses of a private parcel are

compatible with the purposes for which the HCNRA was established. Some

standards applied to all categories of private lands, while others were

specific only to a particular land category. Standards were prescribed

to allow conformity of private land uses and developments with the laws

of various jurisdictions. Among other things, the proposed rule set

standards for the screening and blending of new and replacement

structures, banned solid waste and hazardous substance disposal sites,

required utility lines to be buried, disallowed new or replacement

structures in wilderness, and provided for the protection of historic

and archaeological sites.

Comment: Expense of underground utility installation. One reviewer

noted that the standard in Sec. 292.23(a)(4) regarding the placement of

new or replacement of existing utility lines underground could be

prohibitively expensive and environmentally damaging.

Response. While this standard clearly establishes a preference for

underground utility installation wherever feasible, the Department is

well aware of the rugged and varied terrain in the HCNRA and the

difficulty, if not impossibility, of installing utility lines

underground in certain areas. It is for that reason that the standard

in the proposed rule regarding underground utility installation

included the caveat ``where ground conditions and topography permit.''

Therefore, a change in the final rule was necessary. It is recognized

that, by necessity, the evaluation of the location of utility lines

must be made on a case-by-case basis.

Comment: Wilderness structures. One reviewer opposed the standard

in Sec. 292.23(a)(5) which provided that no new structures could be

developed on private lands within the boundaries of the Hells Canyon

Wilderness in the HCNRA. This reviewer stated that this standard

oversteps the professed bounds of the law. This reviewer further

contended that such a restriction should apply only if the structure

would be visible from the wilderness, since otherwise there would be no

negative effect on anyone's wilderness experience. The reviewer also

stated that nothing in the Wilderness Act permitted wilderness visitors

to trespass on private lands.

Response. The intent of the rule is, where deemed necessary, to

apply the same standards for private land uses and developments to

lands within the designated wilderness boundaries, as would be applied

outside of wilderness. Under the proposed rule, those lots within

wilderness would be classified as farm/forest/grazing lands. Most of

the private land parcels within wilderness are less than 160 acres, and

so, even without the wilderness lands restriction, the proposed rule

would not consider the development of any new residences appropriate.

In developing the proposed rule, the Department determined that the

protection of the wilderness resource is paramount. Congress designates

wilderness to protect and preserve a variety of natural resource and

other values; scenic value is only one of many attributes. Uses and

developments on private lands have the potential to impact a full range

of wilderness values, including scientific, cultural, historical, and

water quality values. One of the most important aspects of the

recreational experience within wilderness is the opportunity for

solitude and to experience an area where man is only a temporary

visitor. A standard which would allow development of new structures so

long as they are not visible from the wilderness simply ignores the

fact that other, non-visual impacts may result from the construction of

new structures. Furthermore, the Forest Service is unaware of any

location from which a new structure could be developed within the

wilderness and also not be visible because of the area's topography. As

noted in the proposed rule, the repair and maintenance of existing

structures that may be located on private land within a wilderness is

not affected by this standard. Therefore, after considering this

comment, no change was made in the final rule regarding the

construction of new or replacement structures in wilderness.

Comment: Lack of standards for livestock grazing, timber

harvesting, pesticide application, water quality, and ground disturbing

activities. One reviewer objected to the lack of standards in the

proposed rule for livestock grazing, timber harvesting, pesticide use,

water quality protection, and ground disturbing activities on private

lands.

Response. This concern is fully addressed by the proposed rule. In

determining what approach it should take to the regulation of private

lands, the Forest Service determined that if other federal, state, and

local laws and ordinances are enforced, then the HCNRA Act's purposes

would be accomplished. Accordingly, in developing the proposed rule,

the agency assessed existing ordinances and laws for their capability

to protect on private lands the values for which the HCNRA was

established. In many instances, the proposed rule expressed these local

ordinances as standards.

However, the proposed rule made it very clear that other laws would

be enforced; if not by the promulgating government, then, if necessary,

by the Forest Service through acquisition (condemnation) action. In

Sec. 292.23 paragraph (a)(1), the final rule retains the language of

the proposed rule, with minor editing, to make clear that land uses are

compatible if they conform to applicable local, state, and federal

laws. This provision is intended to cover such matters as those

referred to by the reviewer. Examples of the types of ordinances and

laws that this clause refers to include the following: Oregon Forest

Practices Act; Idaho Forest Practices Act; Idaho Water Quality

Standards and Wastewater Treatment Requirements; Oregon Water Quality

Standards; and the Idaho Agricultural Pollution Abatement Plan. The

Department is not aware of any situation which merits standards

different from those currently imposed by other laws. The proposed rule

addressed the concerns raised by this reviewer by providing for

compliance with environmental and other laws and ordinances. Therefore,

no modification has been made in the final rule as a result of this

comment.

Additional Changes Adopted in the Final Rule

In the process of reviewing the comments on Sec. 292.23, the

Department recognized the need to make two other changes.

1. Residences on less than 160 acre parcels in farm/forest/grazing

lands. As drafted, the provision at Sec. 292.23(b)(1) that limits

residences on farm/forest/grazing lands to minimum lots of 160 acres

could be interpreted to mean that an existing house on a lot that is

less than 160 acres would prompt the Secretary to exercise the

acquisition authority. This is not the Department's intent. It is

recognized that some of these smaller parcels have existed with

residential developments for years and there is no reason that they

should not continue as a recognized nonconforming use. Consequently,

the final rule is modified to make clear that nonconforming lots (i.e.,

less than 160 acres) with permanently affixed residences (i.e.,

constructed on a foundation or basement), existing on the effective

date of the final rule, are in compliance with the Act.

2. Sites used for the extraction of common mineral materials. The

proposed rule, at Sec. 292.23 (a)(7), would only allowed extraction of

common materials for road construction and maintenance and would limit

sites to not exceed 5 acres. The use limitation ignored other forms of

construction that may also use smaller quantities of materials, such as

in the repair or construction of structures. It is impractical to

require a landowner to find a gravel source outside of the HCNRA

boundaries, when a source may exist already within a mile of his or her

property. Upon reconsideration, the 5 acre size limit appears to be

excessive for the foreseen uses for this resource and the esthetic

concerns for the HCNRA. Therefore, the final rule is modified to

eliminate the references to only road construction and maintenance and

to decrease the size limit to not exceed 2 acres. As written, the final

rule may be more generally applied to the extraction of common mineral

materials for construction and maintenance purposes so long as these

sites have screening and are less than 2 acres in size.

Section 292.24 Determination of Compliance and Noncompliance

Under the proposed rule, this section provided an optional

compliance determination process so that the landowner could obtain

assurance from the Ranger that existing or proposed uses of their land

are compatible with the Act and thus would not be acquired by the

Secretary without their consent. A notice of noncompliance would mean

that a proposed or actual land use does not comply with the standards

in Sec. 292.23 and thus, could potentially trigger the initiation of

the Secretary's land acquisition authority, as authorized by the Act.

This section also proposed a process for reviewing a compliance or

noncompliance decision.

Comment: Noncompliance results in condemnation. One reviewer

thought that the system to determine compliance or noncompliance was

flawed because a finding of noncompliance resulted in condemnation.

Response. Condemnation is one option that may be considered in the

event of a noncompliance determination. However, it is not the only

option. The proposed rule clearly states that if the Forest Service

makes a noncompliance determination, it will offer suggestions on how

the land use or development could be modified to avoid this result. As

noted previously, condemnation is not the tool of choice to enforce

compliance with the standards of this rule--it is the last resort. In

administering the HCNRA, the Forest Service position has been, and will

continue to be, one which favors discussion, negotiation, and

cooperation with landowners to reach mutually satisfactory objectives

wherever possible.

Comment: Written petition. Three reviewers requested that the

procedure to appeal a determination of compliance or noncompliance be

modified to exclude ``other interested parties.'' These reviewers felt

that the petition process provided by this rule should be strictly

limited to the Forest Service and the affected landowner and that the

involvement of outside parties would unnecessarily complicate and

prolong the process. Another reviewer supported the petition process as

set out in the proposed rule.

Response. The Department agrees with the reviewers that requests

for reviews of compliance and noncompliance determinations involving

``other interested parties'' could be unnecessarily cumbersome and time

consuming and that the review process should be limited to those

directly affected, i.e. the landowner whose property was the subject of

the determination. Accordingly, in the final rule, paragraph (c) of

Sec. 292.24 has been revised to limit petitions for review to affected

landowners.

Comment: Acquiescence to local zoning ordinances and

administration. One reviewer felt that the compliance/noncompliance

determination procedure should be discarded in favor of a system in

which proposals for use and development of private land in the HCNRA

would be channeled through the existing local mechanisms provided under

the Wallowa County Land Use Development Ordinance and the Wallowa

County Comprehensive Land Use Plan. In this alternative, the HCNRA

Ranger's role would be limited to that of an interested party who would

be able to testify in favor of or in opposition to a proposed use or

development. However, if the Ranger opposed the proposal, it would be

his or her burden to prove that the proposal is contrary to the County

Ordinance and Plan. According to this reviewer, it is only through this

mechanism that the standard of local citizen involvement required by

state and local law would be satisfied.

Response. This alternative is not one that the Department can

implement and remain consistent with its responsibilities under the

HCNRA Act. The federal interest must be protected and cannot be

dependent upon, or subservient to, state and local zoning decisions. In

effect, this alternative would relegate the Forest Service to the

status of an interested party whose comments would be considered by the

County in the context of a pending development or use proposal. Forest

Service comments would not be binding on the commission, nor would they

necessarily even be persuasive. It is difficult to comprehend how the

Forest Service could carry out its responsibilities under the HCNRA Act

and effectively ensure that activities on the private lands not impair

the values for which Congress established the HCNRA under this system.

It is the hope of the Department that the procedures currently in

place at the state and local level will suffice to condition, restrict,

or preclude many incompatible uses or developments in the HCNRA. The

standards adopted by the final rule are from local zoning ordinances

and applicable laws that already adequately protect the HCNRA. The

County's disposition of pending development proposals should, in most

cases, result in decisions that are compatible with the purposes of the

HCNRA Act. However, in the event uses or developments are incompatible,

or in the event that the County Ordinances and Plan are amended in such

a way as to lessen the restrictions on private lands which would

thereby increase the potential threat to the HCNRA, then the Forest

Service must have the ability to enforce the standards needed to

protect the HCNRA. The rule as proposed provides this protection.

Therefore, no change was made to Sec. 292.24 in response to this

comment.

Finally, the heading for Sec. 292.24 was edited for clarity to

read: ``Determination of compliance and noncompliance.''

Conclusion

Having carefully considered the comments received on the proposed

rule, and explained the basis for adopting or not adopting changes

proposed by reviewers, the Department hereby adopts a final rule to

ensure that the use and development of private lands within the Hells

Canyon Recreation Area are compatible with the purposes for which

Congress established the Area and its management direction.

The standards established by the final rule are those essential to

protection of the Area. The approach adopted is not one of direct

federal regulation of private land but rather one of relying, to the

greatest extent possible, on local zoning authority. The rule gives

private landowners notice of those uses that are compatible with the

purposes of the HCNRA, provides a mechanism whereby the landowner and

the agency may determine compliance or noncompliance with the standards

of the rule and gives constructive notice to private landowners that

incompatible uses of private land may trigger the use of the

Secretary's condemnation authority. Nevertheless this rule is

predicated on the premise that the use of the Secretary's condemnation

authority is to be a last resort and that the agency shall make every

effort to work harmoniously and cooperatively with private landowners

to ensure protection of the HCNRA.

Regulatory Impact

This final rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant rule. This rule will not have

an annual effect of $100 million or more on the economy nor adversely

affect productivity, competition, jobs, the environment, public health

or safety, nor state or local governments. This rule will not interfere

with an action taken or planned by another agency nor raise new legal

or policy issues. Finally, this action will not alter the budgetary

impact of entitlements, grants, user fees, or loan programs or the

rights and obligations of recipients of such programs. Accordingly,

this final rule is not subject to OMB review under Executive Order

12866.

Moreover, this final rule has been considered in light of the

Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it has been

determined that this action will not have a significant economic impact

on a substantial number of small entities as defined by that Act. To

the extent that the rule imposes additional requirements on any small

entity, these requirements are the minimum necessary to protect the

public interest, are not administratively burdensome or costly to meet,

and are well within the capability of small entities to perform.

Takings Implication

Since this rule is premised on the formal exercise of the

Secretary's eminent domain authority, it is not an ``action'' as that

term is defined in Section 2(c)(1) of Executive Order 12630.

Nonetheless, the Office of General Counsel has reviewed this rule for

takings implications and determined that there is no risk of a taking

related to this rule or its implementation.

Executive Order 12778, Civil Justice Reform Act

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. Accordingly, (1) all state and local laws and

regulations that are in conflict with this rule or which impede its

full implementation are preempted; (2) no retroactive effect will be

given to this rule; and (3) it will not require administrative

proceedings before parties could file suit in court challenging its

provisions.

Environmental Impact

This rulemaking was discussed as a proposed rule in the final

Environmental Impact Statement and Comprehensive Management Plan for

the Hells Canyon National Recreation Area, pages 155-158. The analysis

completed for the Comprehensive Management Plan was revalidated in

April 1990 with the signing of the Wallowa-Whitman National Forest Land

and Resource Management (pages 1-2). Information pertaining to the

environmental analysis may be obtained by writing or calling the

persons or offices listed under ADDRESSES and FOR FURTHER INFORMATION

CONTACT.

Information collection requirements

As outlined in the rule at Sec. 292.24, a landowner may request an

optional compliance determination from the Forest Service. As such,

this rule contains information requirements as defined in 5 CFR Part

1320. These information requirements are assigned control number 0596-

0135 and are approved for use through March 1997.

List of Subjects in 36 CFR Part 292

Recreation and recreation uses, and National forest.

Therefore, for the reasons set forth in the preamble, part 292 of

title 36 of the Code of Federal Regulations, is amended by adding a new

subpart E to read as follows:

PART 292--NATIONAL RECREATION AREAS [AMENDED]

Subpart E--Hells Canyon National Recreation Area--Private Lands

Sec.

292.20 Purpose and scope.

292.21 Definitions.

292.22 Land category assignments.

292.23 Standards of compatible land use and development.

292.24 Determination of compliance and noncompliance.

292.25 Information requirements.

Authority: 89 Stat. 1117; 16 U.S.C. 460gg-460gg-13.

Subpart E--Hells Canyon National Recreation Area--Private Lands

Sec. 292.20 Purpose and scope.

(a) Purpose. The Act establishing the Hells Canyon National

Recreation Area (hereafter referred to as HCNRA) (16 U.S.C. 460gg-

460gg-13) encourages the retention of traditional and valid uses of

private land within the HCNRA, such as ranching, grazing, farming,

timber harvesting, and the occupation of homes and lands associated

therewith, as they existed at the time the HCNRA was established on

December 31, 1975. To this end, the Act directs the Secretary of

Agriculture to promulgate regulations establishing standards for the

use and development of private land within the HCNRA and grants the

Secretary limited condemnation authority to address situations where

the standards are not met. The purpose of this subpart is to establish

standards that would guide the Secretary's consideration of the use of

the limited condemnation authority granted by the Act.

(b) Scope. The regulations in this subpart establish standards

applicable to all private property within the boundaries of the HCNRA,

including that within the boundaries of the Rapid, Snake, and Imnaha

Wild and Scenic Rivers and the Hells Canyon Wilderness. The regulations

in this subpart do not operate to restrict the use and development of

private property; rather, they serve to inform the landowner of those

uses that are compatible with purposes for which the HCNRA was

established. Uses not compatible with these standards could result in

the Secretary acquiring land or interests therein without a landowner's

consent.

The regulations in this subpart, in and of themselves, do not

effect a taking of private property, including valid, existing water

rights, nor do the standards established in this subpart limit or

restrict a private landowner's property use that is compatible with the

purposes of the Act. The Responsible Official may use the regulations

in this subpart solely to determine whether private land uses or

developments are compatible with the purposes and direction of the Act

and, if not, to determine whether the Secretary should consider

initiating condemnation proceedings to acquire land or scenic

easements.

Sec. 292.21 Definitions.

For the purposes of this subpart, the following terms are defined:

Act refers to the act of December 31, 1975, which established the

Hells Canyon National Recreation Area (89 Stat. 1117; 16 U.S.C. 460gg-

460gg-13).

Archaeological sites are those sites containing relics, artifacts,

and other evidence of past human cultures including historic properties

as defined by the National Historic Preservation Act.

Commercial land is land within the HCNRA developed for commercial

purposes as of June 13, 1994 and which is assigned to the commercial

land category (Sec. 292.22).

Condemnation is the acquisition of lands or interests therein by

the Secretary without the consent of the owner. In the case of the Act,

condemnation is a limited authority that may be exercised by the

Secretary only in the event that a standard or standards set forth

herein are violated for all private land categories except mining

lands. Where mining lands are involved, the Secretary may exercise his

or her condemnation authority notwithstanding the fact that the mining

land owner has complied with the relevant standards of this section.

Conservation easement or Scenic easement as defined in Section 9(d)

of the Act ``means the right to control the use of land in order to

protect aesthetic values for the purposes of this Act, but shall not be

acquired without the consent of the owner to preclude the continuation

of any farming or pastoral use exercised by the owner as of the date of

enactment of this Act.''

Dude ranching is a business oriented primarily towards furnishing

small groups with an outdoor recreational and educational experience

associated with ranching activities and perpetuates the purposes for

which the HCNRA was established. Dude ranching is subservient to the

primarily recognized ranching operation.

Existing uses are those uses of or developments to private land as

of the date of enactment of the Act on December 31, 1975.

Farm/Forest/Grazing lands are those lands used for farm, forest,

and grazing purposes, for maintaining watersheds as fish and wildlife

habitat, or for providing outdoor recreational activities. All such

lands are assigned to the Farm/Forest/Grazing land category in

Sec. 292.22.

Farm/Forest/Grazing Use is any traditional agricultural,

silvicultural, or livestock management use or combination thereof on

farm/forest/grazing lands within the HCNRA. This includes, but is not

limited to, truck farming, growing and harvesting of timber, grazing of

livestock, horticultural use, animal husbandry use, horse, cattle, and

sheep ranching, and preparation and storage of the products raised on

farm/forest/grazing land for on-site use or for disposal by marketing

or otherwise. Farm/forest/grazing uses may also consist of uses related

to and in furtherance of the protection of watersheds, maintenance of

fish and wildlife habitat, and the pursuit of recreational activities.

Hazardous substance includes any material so classified under the

Comprehensive Environmental Response, Compensation and Liability Act of

1980, as amended (42 U.S.C. 9601 et seq.).

Mining lands are lands primarily used for mining purposes as of

June 13, 1994 and which are assigned to the mining land category in

Sec. 292.22.

Outdoor recreational activities are activities such as camping,

picnicking, rafting, boating, hiking, rock climbing, fishing, hunting,

horseback riding, and the viewing of wildlife or scenery.

Parcel as used in this subpart refers to contiguous tax lots under

one ownership. For the purposes of this subpart, rights-of-way do not

divide parcels into smaller units.

Partition is the division of land into lots, and which, under

county planning ordinances, is identified by a map, drawing, or writing

which contains the descriptions, locations, specifications, and

dedications for roads, utilities, etc. and which has been properly

filed with the County recorder.

Private land is land not in federal, state, or local government

ownership.

Proposed uses are those uses of or development to a private land

parcel within the HCNRA initiated after June 13, 1994.

Ranger is the HCNRA Area Ranger, Wallowa-Whitman National Forest,

with offices located in Enterprise, Oregon, Riggins, Idaho, and

Clarkston, Washington, except for the Rapid Wild and Scenic River where

the term refers to the Salmon River District Ranger, Nez Perce National

Forest, located in Whitebird, Idaho.

Recreational facilities are facilities associated with or required

for outdoor recreational activities and include, but are not limited

to, parks, campgrounds, hunting and fishing lodges, and interpretive

displays.

Residential lands are lands within the HCNRA developed for

residential purposes as of June 13, 1994 and which are assigned to the

Residential land category in Sec. 292.22.

Scenic Easement. See Conservation Easement.

Screening is the reduction or elimination of the visual impact of

any structure or land modification as seen from any public travel route

within the HCNRA.

Solid waste is discarded solid materials resulting from mining,

industrial, commercial, agricultural, silvicultural, and community

activities. This term does not include domestic sewage or pollutants

such as silt or dissolved materials in irrigation return flows.

Structure is any permanent building or facility, or part thereof

such as barns, outhouses, residences and storage sheds. This includes

electric transmission line systems, substations, commercial radio

transmitters, relays or repeater stations, antennas, and other

electronic sites and associated structures.

Traditional uses are ranching, grazing, farming, timber harvesting

and the occupation of homes and land associated therewith within the

HCNRA, or other activities including outdoor recreational activities

and facilities, which existed on or before December 31, 1975.

Travel route is a route, such as a county or National Forest system

road or river or trail, that is open for use by members of the general

public.

Sec. 292.22 Land category assignments.

(a) Land categories. (1) All privately owned lands within the HCNRA

are to be assigned to one of the following four land categories:

(i) Farm/forest/grazing land.

(ii) Mining land.

(iii) Residential land.

(iv) Commercial land.

(2) Not later than August 12, 1994, a map or maps displaying the

privately owned lands within the HCNRA and the land categories to which

they have been assigned must be on file and available for public

inspection at the Ranger's office. The Ranger shall give notice of the

availability of this map or maps in the local newspapers of record.

(b) Changes in land category assignment. Lands assigned to the

Commercial, Residential, or Mining category may be reclassified as

farm/forest/grazing land so long as the intended use or development is

consistent with the standards in Sec. 292.23 and the Ranger has given

public notice of the proposed change in the local newspaper of record

and has notified adjacent landowners and the affected county government

at least 30 days prior to any decision on the proposed change.

Sec. 292.23 Standards of compatible land use and development.

Private land use that conforms to the standards of this section is

deemed to be compatible with the purpose for which the HCNRA was

established.

(a) Standards applicable to all private lands. As of June 13, 1994,

the use and development of private lands in all land categories within

the HCNRA is deemed compatible with the purposes for which the HCNRA

was established, if the use and development of such lands meets the

following standards:

(1) Use and development conforms to applicable local, state, and

federal environmental, natural resource, cultural resource, and land

use development law.

(2) All new or replacement structures are screened and/or

constructed of materials that blend with the natural environment,

except where structures typify the architectural style and materials of

a significant historic era such as pre-World War II. Screening is not

required, however, for new or replacement structures that are

associated with an existing unscreened structure or structures that

were not screened at the time this rule became effective.

(3) No public or commercial solid waste disposal sites or hazardous

substance disposal sites are located on private lands within the HCNRA.

(4) All new or replacement utility lines are placed underground

where ground conditions and topography permit. This standard does not

prevent or impair routine maintenance of utility lines or related

structures in existence prior to June 13, 1994.

(5) No new or replacement structures are developed within the

boundaries of the Hells Canyon Wilderness, provided that existing

structures may be repaired and/or maintained.

(6) Significant historic, archaeologic, or paleontologic sites are

protected.

(7) Sites used for the extraction of common mineral materials, such

as gravel, for construction and maintenance purposes on all except

designated mining lands, are screened where possible, and are not in

excess of 2 acres in size.

(8) New recreational facilities enhance and are compatible with the

purpose of the Act.

(b) Farm/forest/grazing lands standards. The following additional

standards are applicable to farm/forest/grazing lands:

(1) Except as otherwise provided in this paragraph, the minimum lot

size for residential development is 160 acres. Only residences

associated with farm/forest/grazing uses may be developed. Partitions

of less than 160 acres may be made to provide for the continuation of

existing commercial agriculture, but such partitions may not be

developed for residential use. Lots of less than 160 acres existing on

June 13, 1994, with residences permanently affixed to a foundation or

basement, are considered to be in compliance.

(2) Structures are limited to those necessary to conduct farm/

forest/grazing use.

(3) Dude ranching is permitted provided it is compatible with the

purpose and direction of the Act and is part of a recognized ranching

operation.

(4) New or replacement structures for farm/forest/grazing use are

not closer than 25 feet from a property line or 55 feet from the center

line of a travel route.

(c) Mining Lands. (1) The following standards are applicable to

mining lands:

(i) The owner of mining lands must consult with the Ranger

concerning proposed mineral development activities prior to submitting

a plan of operations to the relevant state or federal agencies.

(ii) Operations comply with Federal and State mining, air quality,

water quality, hazardous waste, water disposal and reclamation

standards.

(iii) The type and number of structures, including but not limited

to residences associated with the mining activity, are limited to the

minimum necessary for the use and development of the mining lands.

(iv) No new structures are located closer than 25 feet from a

property line or 55 feet from the center line of a travel route.

(v) Mining lands are not partitioned.

(2) Notwithstanding compliance with the standards of paragraph

(c)(1) of this section, the Secretary may acquire mineral interests in

the HCNRA without the consent of the owner, if the Secretary deems this

necessary to meet the purposes for which the HCNRA was established.

Sec. 292.24 Determination of compliance and noncompliance.

(a) Compliance. Landowners may request a determination by the

Forest Service as to whether an existing or a proposed use or

development complies with the relevant standards set out in this

subpart.

(1) Requests for a determination of compliance must be made in

writing to the Ranger and include the following information:

(i) The current land category to which the land is assigned

(Sec. 292.23);

(ii) The use of development that exists or that is proposed for the

property;

(iii) A statement as to whether a change in the land category

assignment will be necessary to accommodate the proposed use or

development;

(iv) The timeframe for implementing the proposed use or

development; and

(v) A statement as to how the proposed use or development satisfies

the relevant standards of Sec. 292.23 of this subpart.

(2) The Ranger shall review the request and notify the landowner in

writing within 45 days whether the existing or proposed use or

development is in compliance with Sec. 292.23 of this subpart. The

Ranger may extend the time for making a compliance determination by 30

days if additional information is needed.

(b) Noncompliance. (1) In the event that the Forest Service

determines that an existing or proposed use of development is not in

compliance with the standards of Sec. 292.23 of this subpart, the

Ranger shall give the landowner written notice of the manner and nature

of noncompliance. To the extent practicable, the notice will include

suggestions for achieving compliance. The notice also must include a

statement that the violation of a standard or standards and the failure

to cure such violation may result in the initiation of condemnation

proceedings by the Secretary.

(2) The Forest Service may initiate a noncompliance determination

on its own without having first received a landowner request.

(c) Written petition. The landowner may file a written petition

with the Forest Supervisor for a review of a decision of compliance or

noncompliance. The Forest Supervisor shall render a decision within 30

days of the receipt of the petition. A decision by the Forest

Supervisor constitutes the final administrative determination by the

Department of Agriculture. Petitions of decisions on lands within the

Rapid River Wild and Scenic River Corridor should be addressed to the

Forest Supervisor, Nez Perce National Forest, Route 2, P.O. Box 475,

Grangeville, Idaho 83450. All other petitions should be addressed to

the Forest Supervisor, Wallowa-Whitman National Forest, P.O. Box 907,

Baker City, Oregon 97814.

Sec. 292.25 Information requirements.

The information required by Sec. 292.24 of this subpart in order

for a landowner to obtain a determination of compliance constitutes an

information requirement as defined in the Paperwork Reduction Act (44

U.S.C. 3507) and has been approved for use by the Office of Management

and Budget and assigned control number 0596-0135.

Dated: June 6, 1994.

James R. Lyons,

Assistant Secretary, Natural Resources and Environment.

[FR Doc. 94-14305 Filed 6-10-94; 8:45 am]

BILLING CODE 3410-11-M