R850.  School and Institutional Trust Lands, Administration.
R850-40.  Easements.
R850-40-100.  Authorities.
	This rule implements Sections 6, 8, 10, and 12 of the Utah Enabling Act, Articles X and XX of the Utah Constitution, and Sections 53C-1-302 and 53C-4-203 which authorize the director to establish rules for the issuance of easements on, through, and over trust land, and to establish price schedules for this use.

R850-40-150.  Planning.
	The agency shall:
	1.  Submit proposed easements for review by the Resource Development Coordinating Committee (RDCC) unless the proposal is exempt from such review; and
	2.  Evaluate and respond to comments received through the RDCC process.

R850-40-200.  Easements Issued on Trust Lands.
	1.  The agency may issue exclusive, non-exclusive, and conservation easements on trust lands if the agency determines such action would be in the best interests of the trust beneficiaries.

R850-40-250.  Determination of the Status of Temporary Easements and Rights-of-Entry.
	1.  In order to determine the existence and continuation of any temporary easements or rights-of-entry granted pursuant to Section 72-5-203 on a specific parcel of trust land (the subject property), the agency may undertake the notification process set forth in R850-40-250(2).  This evaluation does not adjudicate the status of any highway crossing the subject property that may have been established pursuant to any federal statute, such as R.S. 2477.  Highways established in accordance with the requirements of federal law, including R.S. 2477, prior to the state taking title to the subject property are recognized as valid existing rights.
	2.  In order to determine the existence of a statutory temporary easement or right-of-entry on the subject property, the agency shall give notice to responsible authorities, as defined in Subsection 72-5-202(1).  This notice is intended to provide information to any responsible authority wishing to assert a temporary easement or right-of-entry on the process used to file an application to make such temporary easement or right-of-entry permanent (the "application").  The application must contain a description of the facts which lead the applicant to believe that a statutory temporary easement or right-of-entry exists on the subject property, and other information that may be required by the agency to verify the assertion.  Notice shall be provided as follows:
	(a)  Certified notice shall be mailed by the agency to the Attorney General and the executive body of the county in which the subject property is located.  This notice shall include the legal description of the subject property and a map showing its location.  The executive body of the county shall have 30 days from the date of the notice within which to submit an application.
	(b)  Notice to other responsible authorities who may have an interest in the subject property shall be given through publication at least once a week for three consecutive weeks in one or more newspapers of general circulation in the county where the subject property is located.  In addition to the legal description of the subject property, the advertisement shall put responsible authorities on notice that the agency may take action extinguishing the temporary easement or right-of-entry.  Other responsible authorities shall have 30 days from the first date of publication within which to submit the application.
	3.  Upon the receipt of an application to convert a temporary easement or right-of-entry into an authorized easement or right-of-entry, the agency shall evaluate the request pursuant to the fiduciary responsibilities of the agency.  Prior to the agency approving or rejecting an application, if any, the agency shall review the supporting documentation submitted by the applicant.  The agency shall consider material submitted by any responsible authority pursuant to the applicant's appropriate statutory authority.  If no application is received after notice is given pursuant to R850-40-250(2), or if an application to make the temporary easement or right-of-entry permanent is not approved, any statutory temporary easement or right-of-entry on the subject property shall automatically be extinguished.  The agency will not sell trust lands for at least 14 days after a final decision to disapprove an application to make a statutory temporary easement or right-of-entry permanent.

R850-40-300.  Easement Acquisition.
	1.  Easements across trust lands may be acquired only by application and grant made in compliance with these rules and the laws applicable thereto.
	2.  Easements, or other interests in trust lands, may not be acquired by:
	(a)  prescription,
	(b)  adverse possession, or
	(c)  any other legal doctrine except as provided by statute.

R850-40-400.  Easement Charges.
	The charge for any easement granted or renewed under these rules, including those granted to municipal or county governments or agencies of the state or federal government, may be based on either the market value of the use or the market value of the land encumbered by the easement.

R850-40-600.  Minimum Charges for Easements.
	The agency may establish a minimum charge for an easement based on the cost incurred by the agency in administering the easement.

R850-40-700.  Application Procedures.
	1.  All applications shall be made on agency forms.  The filing of an application form is deemed to constitute the applicant's offer to purchase an easement under the conditions contained in the conveyance document and these rules.
	2.  Application approval by the director constitutes acceptance of the applicant's offer.
	3.  The easement shall be executed by the applicant and returned to the agency within 60 days from the date of applicant's receipt of the written easement.  Failure to execute and return the documents to the agency within the 60-day period may result in cancellation of the conveyance and the discharge of any obligation of the agency arising from the approval of the application.

R850-40-800.  Term of Easements.
	Easements granted under these rules shall normally be for no greater than a 30 year term.  Longer or shorter terms may be granted upon application if the director determines that such a grant is in the best interest of the trust beneficiaries.

R850-40-900.  Conveyance Documents.
	1.  Each easement shall contain provisions necessary to ensure responsible surface management, including, the following provisions:  the rights of the grantee, rights reserved to the grantor; the term of the easement; payment obligations; reporting of technical and financial data; reservation for mineral exploration and development and other compatible uses; operation requirements; grantee's consent to suit in any dispute arising under the terms of the easement or as a result of operations carried on under the easement; procedures of notification; transfers of easement interest by grantee; terms and conditions of easement forfeiture; and protection of the Trust Lands Administration from liability from all actions of the grantee.
	2.  In addition to the requirements of R850-40-900(1), conservation easements shall specify the resource(s) which is being protected and the conditions under which the conservation easement may be terminated.

R850-40-1000.  Bonding Provisions.
	1.  Prior to the issuance of an easement, or for good cause shown at any time during the term of the easement, upon 30 days written notice, the applicant or grantee, as the case may be, may be required to post with the agency a bond in the form and amount as may be determined by the agency to assure compliance with all terms and conditions of the easement.
	2.  All bonds posted on easements may be used for payment of all monies due to the agency for costs of reclamation and compliance with all other terms and conditions of the easement, and rules pertaining to the easement.  The bond shall be in effect even if the grantee has conveyed all or part of the easement interest to a sublessee, assignee, or subsequent operator until the grantee fully satisfies the easement obligations, or until the bond is replaced with a new bond posted by the sublessee or assignee.
	3.  Bonds may be increased in reasonable amounts, at any time as the agency may decide, provided grantor first gives grantee 30 days' written notice stating the increase and the reason(s) for the increase.
	4.  Bonds may be accepted in any of the following forms at the discretion of the agency:
	(a)  Surety bond with an approved corporate surety registered in Utah.
	(b)  Cash deposit.  However, Trust Lands Administration will not be responsible for any investment returns on cash deposits.
	(c)  Other forms of surety as may be acceptable to the agency.

R850-40-1100.  Conflict of Use.
	The agency reserves the right to issue non-exclusive easements or leases, or to dispose of the property by sale or exchange, on land encumbered by existing easements.

R850-40-1200.  Amendments.
	Any holder of an existing easement desiring to change any of the terms of, or the alignment described in the grant shall make application following the same procedure as is used to make an application for a new easement.  An amendment fee pursuant to R850-4 must accompany the amendment request.

R850-40-1300.  Renewal of Easement.
	Prior to the expiration date of any easement, an application may be submitted for a renewal of the grant upon payment of the consideration as may then be required.

R850-40-1400.  Removal of Sand and Gravel.
	The removal of ordinary sand and gravel or similar materials from the land by grantee is not permitted except when the grantee has applied for and received a materials purchase permit.

R850-40-1500.  Removal of Trees.
	Forest products shall not be cut or removed from the easement unless and until a small forest product permit or a timber contract as provided for in agency rules has been obtained.

R850-40-1600.  Easement Assignments.
	1.  An easement may be assigned to any person, firm, association, or corporation qualified under R850-3-200, provided that:
	(a)  the assignment is approved by the agency;
	(b)  if the easement term is perpetual, the easement shall be amended so that the term is 30 years beginning as of the original effective date.  However, if the remaining number of years on an easement so amended is less than 15 years, the ending date of the easement shall be set so that there will be 15 years remaining in the easement; and
	(c)  payment is made of either:
	i)  the difference in easement rental between what was originally paid for the easement and what the agency would charge for the easement at the time the application for assignment is submitted, or
	ii)  alternate consideration established by, and at the discretion of, the director.  In allowing for any alternate consideration the director may consider the following factors:
	A)  the consideration established under R850-40-1600(1)(c)(i) would create an undue financial burden upon the applicant, or
	B)  the assignment facilitates an agency objective.
	2.  An assignment shall take effect the date of the approval of the assignment.  On the effective date of any assignment, the assignee is bound by the terms of the easement to the same extent as if the assignee were the original grantee, any conditions in the assignment to the contrary notwithstanding.
	3.  An assignment must be a sufficient legal instrument, properly executed and acknowledged, and should clearly set forth the easement number, land involved, and the name and address of the assignee and, for the purpose of this rule shall include any agreement which transfers control of the easement to a third party.
	4.  An assignment shall be executed according to agency procedures.
	5.  An assignment is not effective until approval is given by the agency.  Any assignment made without such approval is void.
	6.  Assignments made for no consideration in money, services, or goods, to include assignments made to affiliates (e.g. wholly owned subsidiaries) of the easement grantee, and to include inter vivos or testamentary assignments made to immediate family members (parents, spouse, children, grandchildren, and full siblings) and assignments from and to business entities wholly owned by an immediate family member or members, may be exempt from the requirement to pay the difference in easement rental established under R850-40-1600(1)(c)(i).

R850-40-1700.  Termination of Easement.
	1.  Any easement granted by the agency may be terminated in whole or in part for failure to comply with any term or condition of the conveyance document or applicable laws or rules.
	2.  Upon determination by the director that an easement is subject to termination pursuant to the terms of the grant or applicable laws or rules, the director shall issue an appropriate instrument terminating the easement.

R850-40-1800.  Abandonment.
	1.  To facilitate the determination of an abandonment of easement, the grantee shall pay an administrative charge every three years during the term of the easement as provided in R850-4.  The requirement to pay this administrative charge shall apply if:
	(a)  the easement is an existing easement in agency records as of December 31, 2017, and
	(b)  the easement term is perpetual, and
	(c)  the requirement to pay this administrative charge was effective and included as a contract term at the time the easement was granted, and
	(d)  the grantee is not a governmental entity.  Governmental entities include but are not limited to municipal or county governments or agencies of the state or federal government.
	2.  The grantee shall not be required to pay this administrative charge for all easements issued or renewed on or after January 1, 2018.
	3.  This administrative charge shall not be construed as rent.
	4.  The agency may accept payment of the administrative charge submitted by any easement grantee.

KEY:  natural resources, management, surveys, administrative procedures
Date of Enactment or Last Substantive Amendment:  May 8, 2018
Notice of Continuation:  June 27, 2017
Authorizing, and Implemented or Interpreted Law:  53C-1-302; 53C-2-201(1)(a); 53C-4-203