Wampum

Fishing BRAC-ish Waters (1)

Notes from Strommer and Jacobson

BRAC 88, BRAC 91, BRAC 93 and BRAC 95, also BRIM (Base Reuse Implementation Manual (1997)

Authorizing legislation amended several times for social, economic and environmental goals, but not yet for Indian land claims.

Two levels available to tribes seeking to acquire BRAC real property: excess (federal agency) and surplus (general public). Different acquisition regulations and standards apply to each.

Tribes may retain title to BRAC real property in trust or fee simple status. Different regulations and standards apply to each.

Scope of Strommer and Jacobson: excess property transfers and trust land acquisition.
I.   overview of BRAC process
II.  overview of fee-to-trust BIA process
III. interaction of BRAC and BIA processes

Part I. Overview of Base Closure Process
The BRAC process is aimed at achieving tangible economic benefits for local communities.

A. Base Selection
The Defense Base Closure and Realignment Act of 1990 (DBRAC) established a Defense Base Closure and Realignment Commission (Commission).

The SecDef forwards recommendations to the Commission, after review the Commission forwards them to the President for approval or disaproval, summarized in a report to Congress. Congress then considers the report under very specific guidelines [ebw: specify] and decides whether to authorize the SecDef, through legislation, to carry out base closure activities at specific sites.

B. Base-Wide Reuse Planning
An on-site Base Transition Coordinator (BTC) is assigned for each selected for closure base.

A Local Redevelopment Authority (LRA) is created through consultation between the military and local government and other interested parties [ebw: specify lg and oip]. The LRA may be funded by the DOD Office of Economic Adjustment (OEA). LRA responsibilities: (primary) create a comprehensive redevelopment plan (plan) and (secondary) identify interested parties in base real property, holding public meetings and identify local needs, examin its own interest in acquiring base property, considering environmental remediation, guiding land use planning. LRA submits the plan to the DOD via Housing and Urban Development (HUD). The plan is a roadmap for the Military Department's disposal decisions. Finally, the Military Department's environmental analysis, including NEPA documentation, takes into account the LRA's plan, which in turn takes into account the environmental condition of the base.

The Military Department, the BTC, and the LRA work closely together during this phase.
Military Department responsibilities: identify and communicate to other federal agencies base property surplus to the DOD's needs, identify  base property surplus to the federal government's needs, inventory personal propertyand consult with the LRA on its reuse, creating a BRAC Cleanup Team (BCT) to conduct all environmental documentation and remediation efforts, conduct NEPA analysi (natural and cultural resource impacts), and an environmental baseline survey (EBS) to identify uncontaminated base property, provide copies of the environmental analyses to the LRA and assist the LRA.

Indian Tribes should be involved in the creation of, and seek to be a part of, the LRA (supported by DOD published policy, Department of Defense Native American Policy, 1998), for surplus property. The LRA largely guides the disposal process, but the Military Department has the ultimate authority for making all disposal decisions.

C. Excess Property Acquisition
Methods available to dispose of BRAC real property

1. federal agency excess property transfers,


2. public purpose benefit conveyances,


3. homeless assistance conveyances,


4. negotiated sales,


5. advertised public sales,


6. Economic Development Conveyances (ECDs),


7. conveyances for the cost of environmental remediation,


8. depository instutition facilities, and


9. leaseback conveyances.

The first, federal excess property transfer, is one of the first considerations of the Military Department, it occurs early in the BRAC process and on a specific timetable (32 C.F.R. sec 175.7(a)(1)(1998)) [ebw: specify].

Indian Tribes have the unique ability to step into the shoes of a federal agency and acquire BRAC real property as federal excess property, putting Tribes into a priority position vis a vis all other claims.

1. General Requirements for Tribal Acquisition of BRAC Real Property as Surplus Property

Straightforward. After the Military Department completes all disposal decisions at the excess (federal agency) level, the LRA is primary, modulo the authority of the Military Department to overrule the LRA. The Tribe must respond to the LRA's solicitation of "notices of interest" on the same basis as other parties, and presumably must pay for the property on the same basis as other parties. The LRA would then consider the Tribe's request in its (the LRA's) formulation of the comprehensive redevelopment plan. Following the completion of the plan, the Military Department completes the final EIS, resolves disputes for property and generally disposes of property in line with the LRA's plan.

2. General Requirements for Tribal Acquisition of BRAC Real Property as Excess Federal Property

The Military Department is required to notice other DOD components and federal agencies that property may be available when the Executive recommends to the Congress a base for closure or realignment. Within a week after Congress approves the closure the Military Department must issue a Notice of Availability (NOA) to other DOD components and federal agencies.

Within 30 days of the NOA, an interested federal agency must provide to the Military Department a written expression of interest in the buildings or property, including its intended use for the property and its corresponding requirements for the property. Within 60 days of the NOA, an interested federal agency must submit an application to the Military Department.

The BRIM sets out the application elements:

• GSA Form 1334 or DD Form 1354


• Statement that the request does not establish a new program (budget neutral),


• Statement that the requestor has reviewed its real property holdings and cannot satisfy its requirements with existing property,


• Statement that the requested property would provide greater long-term economic benefits than acquisition of a new facility or other property,


• Statement that the program for which the property is requested has long-term viability,


• Statement that the design, layout, geographic location, age, state of repair, and expected maintenance costs of the requested property clearly, demonstrate that the transfer will prove more economical over a sustained period of time than acquiring a new facility,


• Statement that the size and location of the property requested is consistent with the actual requirement of the requesting agency,


• Statement that the fair-market-value reimbursement fo the Military Department will be made within two years of the initial request for the property, unless this obligation is waived by the OMB and the SecDef or a statute provides for a non-reimbursable tranfer, and


• Statement that the requestor agrees to accept the care and custody costs for the property on the date the property is available for transfer.

The BRIM sets out the review elements from the Federal Property Management Regulations:

• The requirement upon which the request is based is both valid and appropriate,


• The proposed federal use is consistent with the highest and best use of the property,


• The requested transfer will not have an adverse impact on the transfer of any remaining portion of the base,


• The proposed transfer will not establish a new program of substantially increase the level of an Agency's existing programs,


• The application offers fair market value for the property unless waived (i.e., through the OMB process),


• The proposed transfer address applicable environmental responsibilities to the satisfaction of the Military Department,


• The proposed transfer is in the best interest of the Federal Government.

The Military Department must make its determinations of exess and surplus property within 100 days of the NOA and must inform the LRA of all determinations. At the LRA's request it may postpone its "determination for no more than six months after the date of approval of closure or realignment." Further, the Military Department may withdraw a surplus determination and reconsider an excess property request if it is not made in a timely fashion or if the LRA requests reconsideration. [ebw: details]

Tomorrow, more Fishing BRAC-ish Waters.

Posted by EBW at May 16, 2005 11:43 AM | TrackBack