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16 U.S. Code § 545b - Opal Creek Wilderness and Scenic Recreation Area

(a) DefinitionsIn this section:

(1) Bull of the Woods Wilderness

The term “Bull of the Woods Wilderness” means the land designated as wilderness by section 3(4) of the Oregon Wilderness Act of 1984 (Public Law 98–328; 16 U.S.C. 1132 note).

(2) Opal Creek Wilderness

The term “Opal Creek Wilderness” means certain land in the Willamette National Forest in the State of Oregon comprising approximately 12,800 acres, as generally depicted on the map entitled “Proposed Opal Creek Wilderness and Scenic Recreation Area”, dated July 1996.

(3) Scenic Recreation Area

The term “Scenic Recreation Area” means the Opal Creek Scenic Recreation Area, comprising approximately 13,000 acres, as generally depicted on the map entitled “Proposed Opal Creek Wilderness and Scenic Recreation Area”, dated July 1996 and established under subsection (c)(1)(C).

(4) Secretary

The term “Secretary” means the Secretary of Agriculture.

(b) PurposesThe purposes of this section are—

(1)

to establish a wilderness and scenic recreation area to protect and provide for the enhancement of the natural, scenic, recreational, historic and cultural resources of the area in the vicinity of Opal Creek;

(2)

to protect and support the economy of the communities of the Santiam Canyon; and

(3)

to provide increased protection for an important drinking water source for communities served by the North Santiam River.

(1) EstablishmentOn a determination by the Secretary under paragraph (2)—

(A)

the Opal Creek Wilderness, as depicted on the map described in subsection (a)(2), is hereby designated as wilderness, subject to the provisions of the Wilderness Act [16 U.S.C. 1131 et seq.], shall become a component of the National Wilderness System, and shall be known as the Opal Creek Wilderness;

(B)

the part of the Bull of the Woods Wilderness that is located in the Willamette National Forest shall be incorporated into the Opal Creek Wilderness; and

(C)

the Secretary shall establish the Opal Creek Scenic Recreation Area in the Willamette National Forest in the State of Oregon, comprising approximately 13,000 acres, as generally depicted on the map described in subsection (a)(3).

(2) ConditionsThe designations in paragraph (1) shall not take effect unless the Secretary makes a determination, not later than 2 years after November 12, 1996, that the following conditions have been met:

(A) the following have been donated to the United States in an acceptable condition and without encumbrances:

(i) all right, title, and interest in the following patented parcels of land—

(I)

Santiam Number 1, mineral survey number 992, as described in patent number 39–92–0002, dated December 11, 1991;

(II)

Ruth Quartz Mine Number 2, mineral survey number 994, as described in patent number 39–91–0012, dated February 12, 1991;

(III)

Morning Star Lode, mineral survey number 993, as described in patent number 36–91–0011, dated February 12, 1991;

(ii)

all right, title, and interest held by any entity other than the Times Mirror Land and Timber Company, its successors and assigns, in and to lands located in section 18, township 8 south, range 5 east, Marion County, Oregon, Eureka numbers 6, 7, 8, and 13 mining claims; and

(iii)

an easement across the Hewitt, Starvation, and Poor Boy Mill Sites, mineral survey number 990, as described in patent number 36–91–0017, dated May 9, 1991. In the sole discretion of the Secretary, such easement may be limited to administrative use if an alternative access route, adequate and appropriate for public use, is provided.

(B) a binding agreement has been executed by the Secretary and the owners of record as of March 29, 1996, of the following interests, specifying the terms and conditions for the disposition of such interests to the United States Government—

(i)

The lode mining claims known as Princess Lode, Black Prince Lode, and King Number 4 Lode, embracing portions of sections 29 and 32, township 8 south, range 5 east, Willamette Meridian, Marion County, Oregon, the claims being more particularly described in the field notes and depicted on the plat of mineral survey number 887, Oregon; and

(ii)

Ruth Quartz Mine Number 1, mineral survey number 994, as described in patent number 39–91–0012, dated February 12, 1991.

(3) Additions to the wilderness and scenic recreation areas

(A)

Lands or interests in lands conveyed to the United States under this subsection shall be included in and become part of, as appropriate, Opal Creek Wilderness or the Opal Creek Scenic Recreation Area.

(B)

On acquiring all or substantially all of the land located in section 36, township 8 south, range 4 east, of the Willamette Meridian, Marion County, Oregon, commonly known as the Rosboro section by exchange, purchase from a willing seller, or by donation, the Secretary shall expand the boundary of the Scenic Recreation Area to include such land.

(C)

On acquiring all or substantially all of the land located in section 18, township 8 south, range 5 east, Marion County, Oregon, commonly known as the Time Mirror property, by exchange, purchase from a willing seller, or by donation, such land shall be included in and become a part of the Opal Creek Wilderness.

(d) Administration

(1) In general

The Secretary shall administer the Scenic Recreation Area in accordance with this section and the laws (including regulations) applicable to the National Forest System.

(2) Opal Creek Management Plan

(A) In general

Not later than 2 years after the date of establishment of the Scenic Recreation Area, the Secretary, in consultation with the advisory committee established under subsection (e)(1), shall prepare a comprehensive Opal Creek Management Plan (Management Plan) for the Scenic Recreation Area.

(B) Incorporation in land and resource management

Upon its completion, the Opal Creek Management Plan shall become part of the land and resource management plan for the Willamette National Forest and supersede any conflicting provision in such land and resource management plan. Nothing in this paragraph shall be construed to supersede the requirements of the Endangered Species Act [16 U.S.C. 1531 et seq.] or the National Forest Management Act or regulations promulgated under those Acts, or any other law.

(i)

recreation;

(ii)

harvesting of nontraditional forest products, such as gathering mushrooms and material to make baskets; and

(iii)

educational and research opportunities.

(D) Plan amendments

The Secretary may amend the Opal Creek Management Plan as the Secretary may determine to be necessary, consistent with the procedures and purposes of this section.

(3) Cultural and historic resource inventory

(A) In general

Not later than 1 year after the date of establishment of the Scenic Recreation Area, the Secretary shall review and revise the inventory of the cultural and historic resources on the public land in the Scenic Recreation Area developed pursuant to the Oregon Wilderness Act of 1984 (Public Law 98–328).

(B) Interpretation

Interpretive activities shall be developed under the management plan in consultation with State and local historic preservation organizations and shall include a balanced and factual interpretation of the cultural, ecological, and industrial history of forestry and mining in the Scenic Recreation Area.

(4) Transportation planning

(A) [1] In generalExcept as provided in this subparagraph, motorized vehicles shall not be permitted in the Scenic Recreation Area. To maintain reasonable motorized and other access to recreation sites and facilities in existence on November 12, 1996, the Secretary shall prepare a transportation plan for the Scenic Recreation Area that—

(i)

evaluates the road network within the Scenic Recreation Area to determine which roads should be retained and which roads should be closed;

(ii)

provides guidelines for transportation and access consistent with this section;

(iii)

considers the access needs of persons with disabilities in preparing the transportation plan for the Scenic Recreation Area;

(iv)

allows forest road 2209 beyond the gate to the Scenic Recreation Area, as depicted on the map described in subsection (a)(2), to be used by motorized vehicles only for administrative purposes and for access by private inholders, subject to such terms and conditions as the Secretary may determine to be necessary; and

(v)

restricts construction or improvement of forest road 2209 beyond the gate to the Scenic Recreation Area to maintaining the character of the road as it existed upon November 12, 1996, which shall not include paving or widening.

In order to comply with subsection (f)(2), the Secretary may make improvements to forest road 2209 and its bridge structures consistent with the character of the road as it existed on November 12, 1996.

(5) Hunting and fishing

(A) In general

Subject to applicable Federal and State law, the Secretary shall permit hunting and fishing in the Scenic Recreation Area.

(B) Limitation

The Secretary may designate zones in which, and establish periods when, no hunting or fishing shall be permitted for reasons of public safety, administration, or public use and enjoyment of the Scenic Recreation Area.

Except during an emergency, as determined by the Secretary, the Secretary shall consult with the Oregon State Department of Fish and Wildlife before issuing any regulation under this subsection.

(6) Timber cutting

(A) In general

Subject to subparagraph (B), the Secretary shall prohibit the cutting and/or selling of trees in the Scenic Reservation Area.

(B) Permitted cutting

(i) In generalSubject to clause (ii), the Secretary may allow the cutting of trees in the Scenic Recreation Area only—

(I)

for public safety, such as to control the continued spread of a forest fire in the Scenic Recreation Area or on land adjacent to the Scenic Recreation Area;

(II)

for activities related to administration of the Scenic Recreation Area, consistent with the Opal Creek Management Plan; or

(III)

for removal of hazard trees along trails and roadways.

(ii) Salvage sales

The Secretary may not allow a salvage sale in the Scenic Recreation Area.

(7) Withdrawal

(A) ¹ subject [2] to valid existing rights, all lands in the Scenic Recreation Area are withdrawn from—

(i)

any form of entry, appropriation, or disposal under the public lands laws;

(ii)

location, entry, and patent under the mining laws; and

(iii)

disposition under the mineral and geothermal leasing laws.

(8) Bornite Project

(A)

Nothing in this section shall be construed to interfere with or approve any exploration, mining, or mining-related activity in the Bornite Project Area, depicted on the map described in subsection (a)(3), conducted in accordance with applicable laws.

(B)

Nothing in this section shall be construed to interfere with the ability of the Secretary to approve and issue, or deny, special use permits in connection with exploration, mining, and mining-related activities in the Bornite Project Area.

(C)

Motorized vehicles, roads, structures, and utilities (including but not limited to power lines and water lines) may be allowed inside the Scenic Recreation Area to serve the activities conducted on land within the Bornite Project.

(D)

After November 12, 1996, no patent shall be issued for any mining claim under the general mining laws located within the Bornite Project Area.

(9) Water impoundments

Notwithstanding the Federal Power Act (16 U.S.C. 791a et seq.), the Federal Energy Regulatory Commission may not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project work in the Scenic Recreation Area, except as may be necessary to comply with the provisions of paragraph (8) with regard to the Bornite Project.

(10) Recreations

(A) Recognition

Congress recognizes recreation as an appropriate use of the Scenic Recreation Area.

(B) Minimum levels

The management plan shall permit recreation activities at not less than the levels in existence on November 12, 1996.

The management plan may provide for levels of recreation use higher than the levels in existence on November 12, 1996, if such uses are consistent with the protection of the resource values of the Scenic Recreation Area.

(D) Public trail access

The management plan may include public trail access through section 28, township 8 south, range 5 east, Willamette Meridian, to Battle Ax Creek, Opal Pool and other areas in the Opal Creek Wilderness and the Opal Creek Scenic Recreation Area.

(11) ParticipationSo that the knowledge, expertise, and views of all agencies and groups may contribute affirmatively to the most sensitive present and future use of the Scenic Recreation Area and its various subareas for the benefit of the public:

(A) Advisory council

The Secretary shall consult on a periodic and regular basis with the advisory council established under subsection (e) with respect to matters relating to management of the Scenic Recreation Area.

(B) Public participation

The Secretary shall seek the views of private groups, individuals, and the public concerning the Scenic Recreation Area.

The Secretary shall seek the views and assistance of, and cooperate with, any other Federal, State, or local agency with any responsibility for the zoning, planning, or natural resources of the Scenic Recreation Area.

(D) Nonprofit agencies and organizations

The Secretary shall seek the views of any nonprofit agency or organization that may contribute information or expertise about the resources and the management of the Scenic Recreation Area.

(e) Advisory council

(1) Establishment

Not later than 90 days after the establishment of the Scenic Recreation Area, the Secretary shall establish an advisory council for the Scenic Recreation Area.

(2) MembershipThe advisory council shall consist of not more than 13 members, of whom—

(A)

1 member shall represent Marion County, Oregon, and shall be designated by the governing body of the county;

(B)

1 member shall represent the State of Oregon and shall be designated by the Governor of Oregon;

(C)

1 member shall represent the City of Salem, and shall be designated by the mayor of Salem, Oregon;

(D)

1 member from a city within a 25-mile radius of the Opal Creek Scenic Recreation Area, to be designated by the Governor of the State of Oregon from a list of candidates provided by the mayors of the cities located within a 25-mile radius of the Opal Creek Scenic Recreation Area; and

(E)

not more than 9 members shall be appointed by the Secretary from among persons who, individually or through association with a national or local organization, have an interest in the administration of the Scenic Recreation Area, including, but not limited to, representatives of the timber industry, environmental organizations, the mining industry, inholders in the Opal Creek Wilderness and Scenic Recreation Area, economic development interests and Indian tribes.

(3) Staggered terms

Members of the advisory council shall serve for staggered terms of 3 years.

(4) Chairman

The Secretary shall designate 1 member of the advisory council as chairman.

(5) Vacancies

The Secretary shall fill a vacancy on the advisory council in the same manner as the original appointment.

(6) Compensation

Members of the advisory council shall receive no compensation for their service on the advisory council.

(f) General provisions

(1) Land acquisition

(A) In general

Subject to the other provisions of this section, the Secretary may acquire any lands or interests in land in the Scenic Recreation Area or the Opal Creek Wilderness that the Secretary determines are needed to carry out this section.

(B) Public land

Any lands or interests in land owned by a State or a political subdivision of a State may be acquired only by donation or exchange.

(C) CondemnationWithin the boundaries of the Opal Creek Wilderness or the Scenic Recreation Area, the Secretary may not acquire any privately owned land or interest in land without the consent of the owner unless the Secretary finds that—

(i)

the nature of land use has changed significantly, or the landowner has demonstrated intent to change the land use significantly, from the use that existed on November 12, 1996; and

(ii)

acquisition by the Secretary of the land or interest in land is essential to ensure use of the land or interest in land in accordance with the purposes of this title [3] or the management plan prepared under subsection (d)(2).

(D) Construction

Nothing in this section shall be construed to enhance or diminish the condemnation authority available to the Secretary outside the boundaries of the Opal Creek Wilderness or the Scenic Recreation Area.

(2) Environmental response actions and cost recovery

(A) Response actions

Nothing in this section shall limit the authority of the Secretary or a responsible party to conduct an environmental response action in the Scenic Recreation Area in connection with the release, threatened release, or cleanup of a hazardous substance, pollutant, or contaminant, including a response action conducted under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).

(B) Liability

Nothing in this section shall limit the authority of the Secretary or a responsible party to recover costs related to the release, threatened release, or cleanup of any hazardous substance or pollutant or contaminant in the Scenic Recreation Area.

(3) Maps and description

(A) In general

As soon as practicable after November 12, 1996, the Secretary shall file a map and a boundary description for the Opal Creek Wilderness and for the Scenic Recreation Area with the Committee on Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate.

(B) Force and effect

The boundary description and map shall have the same force and effect as if the description and map were included in this section, except that the Secretary may correct clerical and typographical errors in the boundary description and map.

The map and boundary description shall be on file and available for public inspection in the Office of the Chief of the Forest Service, Department of Agriculture.

(4) Savings provision

Nothing in this section shall interfere with activity for which a special use permit has been issued, has not been revoked, and has not expired, before November 12, 1996, subject to the terms of the permit.

(g) Rosboro land exchange

(1) Authorization

Notwithstanding any other law, if the Rosboro Lumber Company (referred to in this subsection as “Rosboro”) offers and conveys marketable title to the United States to the land described in paragraph (2), the Secretary of Agriculture shall convey all right, title and interest held by the United States to sufficient lands described in paragraph (3) to Rosboro, in the order in which they appear in this subsection, as necessary to satisfy the equal value requirements of paragraph (4).

(2) Land to be offered by Rosboro

The land referred to in paragraph (1) as the land to be offered by Rosboro shall comprise Section 36, Township 8 South, Range 4 East, Willamette Meridian.

(3) Land to be conveyed by the United StatesThe land referred to in paragraph (1) as the land to be conveyed by the United States shall comprise sufficient land from the following prioritized list to be equal value under paragraph (4):

(A)

Section 5, Township 17 South, Range 4 East, Lot 7 (37.63 acres);

(B)

Section 2, Township 17 South, Range 4 East, Lot 3 (29.28 acres);

(C)

Section 13, Township 17 South, Range 4 East, S½SE¼ (80 acres);

(D)

Section 2, Township 17 South, Range 4 East, SW¼SW¼ (40 acres);

(E)

Section 2, Township 17 South, Range 4 East, NW¼SE¼ (40 acres);

(F)

Section 8, Township 17 South, Range 4 East, SE¼SW¼ (40 acres);

(G)

Section 11, Township 17 South, Range 4 East, W½NW¼ (80 acres); [4]

(4) Equal value

The land and interests in land exchanged under this subsection shall be of equal market value as determined by nationally recognized appraisal standards, including, to the extent appropriate, the Uniform Standards for Federal Land Acquisition, the Uniform Standards of Professional Appraisal Practice, or shall be equalized by way of payment of cash pursuant to the provisions of section 1716(d) of title 43, and other applicable law. The appraisal shall consider access costs for the parcels involved.

(5) Timetable

(A)

The exchange directed by this subsection shall be consummated not later than 120 days after the date Rosboro offers and conveys the property described in paragraph (2) to the United States.

(B)

The authority provided by this subsection shall lapse of [5] Rosboro fails to offer the land described in paragraph (2) within 2 years after November 12, 1996.

(6) Challenge

Rosboro shall have the right to challenge in the United States District Court for the District of Oregon a determination of marketability under paragraph (1) and a determination of value for the lands described in paragraphs (2) and (3) by the Secretary of Agriculture. The court shall have the authority to order the Secretary to complete the transaction contemplated in this subsection.

(7) Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to carry out this subsection.

(h) Omitted

(i) Economic development

(1) Economic development plan

As a condition for receiving funding under paragraph (2), the State of Oregon, in consultation with Marion County, Oregon, and the Secretary of Agriculture, shall develop a plan for economic development projects for which grants under this subsection may be used in a manner consistent with this section and to benefit local communities in the vicinity of the Opal Creek area. Such plan shall be based on an economic opportunity study and other appropriate information.

(2) Funds provided to the States for grants

Upon completion of the Opal Creek Management Plan, and receipt of the plan referred to in paragraph (1), the Secretary shall provide, subject to appropriations, $15,000,000 to the State of Oregon. Such funds shall be used to make grants or loans for economic development projects that further the purposes of this section and benefit the local communities in the vicinity of the Opal Creek area.

(3) ReportThe State of Oregon shall—

(A)

prepare and provide the Secretary and Congress with an annual report on the use of the funds made available under this subsection;

(B)

make available to the Secretary and to Congress, upon request, all accounts, financial records, and other information related to grants and loans made available pursuant to this subsection; and

(C)

as loans are repaid, make additional grants and loans with the money made available for obligation by such repayments.

(Pub. L. 104–333, div. I, title X, § 1023, Nov. 12, 1996, 110 Stat. 4215; Pub. L. 106–176, title I, § 125, Mar. 10, 2000, 114 Stat. 30.)

[1]  So in original. No subpar. (B) has been enacted.

[2]  So in original. Probably should be capitalized.

[3]  So in original. Probably should be “section”.

[4]  So in original. The semicolon probably should be a period.

[5]  So in original. Probably should be “if”.

Editorial Notes

References in Text

The Wilderness Act, referred to in subsec. (c)(1)(A), is Pub. L. 88–577, Sept. 3, 1964, 78 Stat. 890, which is classified generally to chapter 23 (§ 1131 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1131 of this title and Tables.

The Endangered Species Act, referred to in subsec. (d)(2)(B), probably means the Endangered Species Act of 1973, Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified generally to chapter 35 (§ 1531 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and Tables.

The National Forest Management Act, referred to in subsec. (d)(2)(B), probably means the National Forest Management Act of 1976, Pub. L. 94–588, Oct. 22, 1976, 90 Stat. 2949, which enacted sections 472a, 521b, 1600, and 1611 to 1614 of this title, amended sections 500, 515, 516, 518, 576b, and 1601 to 1610 of this title, repealed sections 476, 513, and 514 of this title, and enacted provisions set out as notes under sections 476, 513, 528, 594–2, and 1600 of this title. For complete classification of this Act to the Code, see Short Title of 1976 Amendment note set out under section 1600 of this title and Tables.

The Oregon Wilderness Act of 1984, referred to in subsec. (d)(3)(A), is Pub. L. 98–328, June 26, 1984, 98 Stat. 272, which enacted subchapter C (§ 460oo) of chapter 1 of this title and provisions listed in a table of Wilderness Areas set out under section 1132 of this title. For complete classification of this Act to the Code, see Tables.

The Federal Power Act, referred to in subsec. (d)(9), is act June 10, 1920, ch. 285, 41 Stat. 1063, which is classified generally to chapter 12 (§ 791a et seq.) of this title. For complete classification of this Act to the Code, see section 791a of this title and Tables.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, referred to in subsec. (f)(2)(A), is Pub. L. 96–510, Dec. 11, 1980, 94 Stat. 2767, which is classified principally to chapter 103 (§ 9601 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 9601 of Title 42 and Tables.

Codification

Section is comprised of section 1023 of Pub. L. 104–333. Subsec. (c)(1)(A) of section 1023 of Pub. L. 104–333 also enacted provisions listed in a table of Wilderness Areas set out under section 1132 of this title. Subsec. (h) of section 1023 of Pub. L. 104–333 amended section 1274 of this title.

Provisions substantially identical to the text of this section were enacted by title I of div. B of Pub. L. 104–208, Sept. 30, 1996, 110 Stat. 3009–523, known as the Opal Creek Wilderness and Opal Creek Scenic Recreation Area Act of 1996.

Amendments

2000—Subsec. (c)(1)(A). Pub. L. 106–176 struck out “of 1964” after “Wilderness Act”.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

Short Title

Pub. L. 104–208, div. B, title I, § 101, Sept. 30, 1996, 110 Stat. 3009–523, provided that:

“This title [see Codification note above] may be cited as the ‘Opal Creek Wilderness and Opal Creek Scenic Recreation Area Act of 1996’.”

Termination of Advisory Councils

Advisory councils established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a council established by the President or an officer of the Federal Government, such council is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a council established by the Congress, its duration is otherwise provided by law. See sections 1001(2) and 1013 of Title 5, Government Organization and Employees.