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The Citizens’ Guide

to

Federal Land Exchanges


A Manual for Public Lands Advocates

Peter Kuper

By Janine Blaeloch
April 2001
The WWester
ester
esternn Land Exchange Project • Seattle, Washington
God bless America.
Let’s save some of it.
—Ed Abbey,
1927-1989
Never trade a place you
know for one you don’t.
—David Brower,
1912-2000
The Citizens’ Guide to
Federal Land Exchanges
© Copyright 2001
By Janine Blaeloch

The WWester
ester
esternn Land Exchange Project
Design and layout by Sheila Hoffman, www.NewslettersandMore.net
Cover graphic by Peter Kuper, www.PeterKuper.com

Board of Directors
Rachael Paschal Osborn, Spokane, WA
Sandy Lonsdale, Bend, OR
Marianne Dugan, Eugene, OR
Chuck Pezeshki, Moscow, ID
Martin Rand, Bellevue, WA
Betsy Gaines, Bozeman, MT
Rebecca Rundquist, New Haven, CT

Staff
Janine Blaeloch, Director
Stefanie Sekich, Program Coordinator
Erik R yberg, Policy Analyst

We wish to thank the following people for


reviewing and contributing to The Citizens’ Guide:
George Draffan, Public Information Network, Seattle, WA
David Orr, Glen Canyon Action Network, Moab, UT
Brian Segee, The Center for Biological Diversity, Tucson, AZ
Andy Ryan, Northwest Passages Inc., Kenmore, WA
Judith Brawer, American Wildlands, Bozeman, MT
Deborah Kmon, American Wildlands, Bozeman, MT

We also owe thanks for the inspiring work of the following, who—
by trade or by fate—have taken the hard road to protect public lands:
Beth Rogers, Iron River, MI Deb Patla, Driggs, ID
Francis Eatherington, Roseburg, OR Larry McLaud, Moscow, ID
Jeff Juel, Missoula, MT Vernon Bates, Nashville, TN
Lois Eagleton, Umpqua, OR Cathy Lucas, Catawba, VA
Roy Keene, Eugene, OR John Jolley, Mills, WY
Del Sonneson, Enumclaw, WA Jim Olson, Emmett, ID
Sam Francis, Livingston, MT Charles Hancock, Reno, NV
Charles Hancock, Reno, NV Jack MacDonald, Salt Lake City, UT
Asante Riverwind, Fossil, OR

Printed on recycled paper.


The Western Land Exchange Project
The Western Land Exchange Project was founded in 1996. Our mission is to
conduct research, outreach, and advocacy toward reform in federal land
exchange policy.

Our goal is to ensure that the consequences of land exchanges are disclosed
and understood; that land trades advance the public interest, as required by
law; and that alternatives to land exchanges be given serious consideration.

As a clearinghouse for information on this issue, the Project:

◆ Disseminates information about ongoing and planned exchanges.


◆ Provides legal and environmental analysis of land swap proposals.
◆ Works with environmental organizations and communities affected
by these proposals.
◆ Assists with or submits administrative appeals, where appropriate.
◆ Consults with agencies planning exchanges.
◆ Advocates for reform of land exchange policies and regulations.
The most important factor in ensuring that land exchanges serve the public
interest is informed and persistent scrutiny by the public.

Toward that end, we hope the Citizens’ Guide to Federal Land Exchanges
offers both motivation and helpful information.

For those interested in more in-depth analysis of the land exchange issue,
the Western Land Exchange Project has also published a 104-page report
entitled “Commons or Commodity? The Dilemma of Federal Land Ex-
changes,” co-written with historian George Draffan. The report can be ob-
tained by sending $15.00 to the address below.

Janine Blaeloch, Director,


Western Land Exchange Project
blaeloch@westlx.org
Box 95545
Seattle, WA 98145
April 2001
Contents
1.0 The land exchange phenomenon 9
1.1 Why does the government trade public lands?......................................................... 9
1.2 The cooperative spirit ................................................................................................ 13
Acquisition without appropriation .............................................................................. 14
Buying land with land ................................................................................................. 15
1.4 Expanding uses for land exchanges .......................................................................... 15
Mining ........................................................................................................................ 15
Urban expansion and ski developments ...................................................................... 16
Timber ........................................................................................................................ 17
Consolidating endangered species habitat .................................................................. 18
Forestalling road access .............................................................................................. 20
Resolving trespasses ................................................................................................... 20
1.5 Third-party facilitators ................................................................................................ 20
1.6 A process gone awry .................................................................................................. 22
Public participation and input ...................................................................................... 22
Failure to consider alternatives .................................................................................... 23
Hidden appraisals and questionable valuations ........................................................... 23
Agency incentives to enact exchanges ....................................................................... 24
Fast-tracking ............................................................................................................... 24
1.7 Alternatives to flawed policies .................................................................................. 24
Land and Water Conservation Fund ............................................................................. 24
Deed restrictions ......................................................................................................... 25
1.8 Only the public can protect the public interest ........................................................ 25

2.0 The underpinnings: laws and regulations ..................................................................................................26


2.1 Statutes applicable to federal land trades ................................................................. 26
Weeks Law (16 USC 485) ........................................................................................... 26
General Exchange Act (16 USC 485) ........................................................................... 26
Federal Land Policy and Management Act (43 USC 1701) .......................................... 27
National Environmental Policy Act (42 USC 4321) ...................................................... 28
National Forest Management Act (16 USC 1600) ........................................................ 29
Endangered Species Act (16 USC 1531 et seq.) ......................................................... 30
Habitat conservation plans under the ESA .................................................................. 31
Alaska Nat. Interest Lands Conservation Act (16 USC 3101) ....................................... 32
Freedom of Information Act (5 USC 552) .................................................................... 32
2.2 Regulations and authority .......................................................................................... 33
Forest Service ............................................................................................................. 33
Agreement to initiate ................................................................................................. 33
Discretionary action .................................................................................................... 34
Public interest ............................................................................................................. 34
Equal value ................................................................................................................. 34
The Land Exchange Process (chart) ............................................................................. 35
Other provisions ......................................................................................................... 36
Bureau of Land Management ...................................................................................... 38
Fish and Wildlife Service, National Park Service, Bureau of Reclamation ...................... 38
Agency contacts and authorities ................................................................................. 38
National oversight teams ............................................................................................ 39
BLM National Land Exchange Evaluation & Assistance Team ...................................... 39
Forest Service National Landownership Adjustment Team .......................................... 39
3.0 Getting Involved ..................................................................................................................................... 41
3.1 Staying informed .......................................................................................................... 41
The project list ............................................................................................................ 41
3.2 Notices and documents: identifying the issues ......................................................... 42
Notice of exchange proposal (NOEP) .......................................................................... 42
Categorical Exclusion (CE) ........................................................................................... 42
Decision Notice (DN) and Record of Decision (ROD) ................................................... 46
Environmental Assessment (EA) ................................................................................. 46
Finding of No Significant Impact (FONSI) .................................................................... 46
Scoping ...................................................................................................................... 46
Scoping Comments ..................................................................................................... 47
Environmental Impact Statement (EIS) ........................................................................ 48

4.0 The NEPA process ...................................................................................................................................49


4.1 Purpose and contents ................................................................................................. 49
The NEPA Process (chart) ............................................................................................ 50
4.2 CEQ requirements for an EIS ...................................................................................... 51
Sec. 1502.13 Purpose and need ................................................................................. 51
Sec. 1502.14 Alternatives including the proposed action ........................................... 51
Sec. 1502.15 Affected environment ........................................................................... 51
Sec. 1502.16 Environmental consequences. ............................................................... 52
4.3 Regulations for other federal agencies ...................................................................... 53

5.0 Evaluating the exchange ........................................................................................................................ 55


5.1 Purpose and need for action ...................................................................................... 55
5.2 Alternatives ................................................................................................................. 56
5.3 Affected Environment and Environmental Consequences ........................................ 58
Lands .......................................................................................................................... 58
Minerals ...................................................................................................................... 59
Soils ............................................................................................................................ 59
Wetlands and Floodplains ........................................................................................... 60
Watersheds ................................................................................................................. 60
Water Quality .............................................................................................................. 60
Water Quantity ........................................................................................................... 60
Timber and Vegetation ................................................................................................ 61
Wildlife and Endangered Species ................................................................................ 61
Cultural Resources ...................................................................................................... 62
Social and Economic Impacts ...................................................................................... 62
Cumulative Impacts .................................................................................................... 62
Irreversible Commitments of Resources ...................................................................... 62

6.0 Beyond review: advocacy, appeals, litigation & lobbying ............................................................................ 63


6.1 Rough roadway ahead .............................................................................................. 63
6.2 Communicate............................................................................................................. 64
6.3 Gather information .................................................................................................... 64
6.4 Know your bottom line ............................................................................................. 66
6.5 Put it in writing .......................................................................................................... 67
6.6 Advocate .................................................................................................................... 67
6.7 Appeal ....................................................................................................................... 69
6.8 Keep moving, but follow the rules ........................................................................... 70
6.9 Litigate ....................................................................................................................... 72
6.10 Lobby ......................................................................................................................... 73
6.11 Citizen action is the key ............................................................................................ 81

Appendix A..................................................................................................................................................84
In North America there is a lot
that is in public domain, which
has its problems, but at least
they are problems we are all
enfranchised to work on.
—Gary Snyder,
The Practice of the Wild

8
1.0 The land exchange phenomenon
1.1 Why does the government trade public lands?
The public lands consist of vast tracts in the United States that still belong to
the American citizenry. Never homesteaded, sold, or granted by the govern-
ment to other parties, these lands remain the property of all citizens and are
managed in trust for them by federal agencies such as the U.S. Forest Service
and the Bureau of Land Management.

Soon after the American Revolution, the federal government began imple-
menting a policy of transferring much of the land claimed by the United
States into private ownership. In the West, the majority of the public domain
was acquired by the government from Native American nations through war,
treaty, and purchase, from various
European powers, and from Mexico.

Public lands include public domain


lands, as well as lands the government
has purchased or otherwise acquired
from private owners. In the eastern
U.S., federal lands for national forests
and national parks were obtained
mainly through purchase after that part
of the country was settled and the
public domain had largely been turned
over to private entities.

The original purpose of the public lands


disposal policy was to distribute lands
to individuals and facilitate develop- Jeff Johnson
ment across the nation.

Examples of the laws and actions that led to the privatization and settlement
of public lands include the following:

♦ The Land Act of 1796 authorized public auctions of federal land at a mini-
mum price of $2 per acre.
♦ The General Land Office (GLO) was created in 1812 to administer the
disposal of public lands.1

1 The GLO was absorbed into the Bureau of Land Management in 1946.

9
♦ By 1820, Congress had passed 24 acts granting the right of preemption
to settlers (usually squatters) to buy their claims without competitive
bidding.2
♦ The 1841 General Preemption Act authorized settlers to claim 160 acres.
♦ A series of railroad land grants between 1850 and 1870 authorized sev-
eral dozen railroads to sell public lands in order to raise capital to build
the nation’s transcontinental railroad and telegraph systems.
♦ The 1862 Homestead Act authorized settlers to claim 160 acres of any
land subject to preemption,3 and later to any unsurveyed land as well.
The homestead was free for a filing fee, but title was not transferred until
the land had been occupied and cultivated for five years.
♦ The General Mining Law was enacted in 1872, allowing any person to file
a mineral claim on public lands, and with minimal working of the claim to
receive a patent at nominal cost.
♦ The Desert Lands Act of 1877 allowed entry of 640 acres for 25 cents per
acre; title was transferred upon proof of irrigation.
♦ The Timber Culture Act of 1872 gave settlers 40-acre tracts if they would
plant trees.
♦ The Timber and Stone Act of 1878 allowed claims of land “chiefly valu-
able for timber or stone” at a price of $2.50 per acre.
♦ The Timber Cutting Act of 1878 authorized timber cutting on unentered
mining lands.

As a result of these acts and others, settlement of the United States, particu-
larly in the West, did not occur in a logical way, but instead has created a
patchwork of land ownership that causes problems for both public and pri-
vate landholders.

Land exchanges between the federal government and private parties have
been enacted for decades, usually in the interest of consolidating owner-
ships, both private and public, into larger contiguous areas.

This guide focuses on land exchanges conducted by the two main federal
land management agencies, the U.S. Forest Service (USFS) in the Department

2 Coggins, George Cameron, Wilkinson, Charles F., and John D. Leshy. 1993. Federal Public Land and Resources Law. 3rd
edition. Foundation Press.
3 Preemption is “the preferential right of settlers-squatters to buy their claims at modest prices without competitive
bidding.” (Coggins and Wilkinson, 2nd ed., p. 80).

10
of Agriculture and the Bureau of Land
Management (BLM) in the Depart-
ment of the Interior.

Between them, the two agencies


manage 455 million acres of public
land—about one-quarter the total
land area of the United States.

The Forest Service, www.fs.fed.us/


intro/meetfs.shtml, manages 191
million acres in 155 national forests
and 20 national grasslands.
Green River watershed, Mt. Baker-Snoqualmie National Forest,
The BLM, www.blm.gov/nhp/what/ Washington. Photo credit: Del Sonneson
index.htm, manages 264 million acres. The Green River is
plagued with
alternating public
Many lands managed by the BLM in the West are interspersed with railroad and private
“checkerboard”
“checkerboards,” private inholdings resulting from homesteading, and trust ownership, and
lands given by the federal government to the states. The BLM also manages on both public
and private lands
large contiguous areas of public land coveted by developers, ranchers, and within the basin,
miners. clearcutting and
roadbuilding have
done extensive
Under management of the U.S. Forest Service many national forests contain damage. Yet the
Forest Service
small, private inholdings—pockets of private land that were already claimed traded thousands
when the federal government created the national forests over largely un- of acres it
managed on the
settled areas. In many parts of the West, the national forests were also super- Green River to
imposed upon an already-existing “checkerboard” land ownership pattern. Weyerhaeuser and
Plum Creek timber
The checkerboards were created by the railroad land grants of the 19th cen- companies in the
tury, wherein the railroad corporations were given alternating square miles Huckleberry and
I-90 land ex-
(640-acre sections) of land extending from 40 to 120 miles out from the changes. The
right-of-way. result will be
larger areas
consolidated into
The fragmented pattern of public ownership creates conflicts across the private ownership
and subsequently
landscape. Some Forest Service lands are managed to protect public values clear-cut.
such as wildlife habitat and watershed stability, but the exploitative activities
of adjacent landowners (i.e., timber companies) are often at odds with the
agency’s goals. In recent years, the Forest Service has at least nominally
attempted to incorporate the concept of “ecosystem management” into its
planning. The checkerboard ownership pattern makes it extremely difficult to
control forest practices across the wider landscape.

11
The BLM, too, must manage its lands to conform with laws such as the En-
dangered Species Act and evolving public values ranging from recreation to
ecological protection.

The government has pursued a policy to consolidate its ownership over


wider areas by acquiring inholdings in the midst of public lands and dispos-
ing of smaller public holdings. Put simply, the concept is that the govern-
ment will block up its holdings by trading less “desirable” lands or lands that
are isolated and difficult for the agency to manage.

Outright purchase or condemnation4 has sometimes been used to acquire


inholdings and other lands that are desirable for public ownership. But these
methods have faded in popularity. As discussed later in this guide, Congress
is reluctant to appropriate funds for federal land acquisition, and condemna-
tion of land for public purposes is highly controversial. As a result, the gov-
ernment has turned with increasing frequency to land trades as the preferred
method of obtaining public land.

Federal land managers complete over 300 land exchanges every year. Ex-
changes can take years to finalize, so at any given time hundreds of swaps
are pending. In 1998, the Forest Service completed 101 exchanges and the
BLM over 200.5

The BLM regularly implements exchanges involving thousands, even tens of


thousands of acres of federal land. In the past, such large transactions have
been rare in the Forest Service, but the acreages traded by that agency have
increased significantly in the past several years.6

In the past few years, there have been discernible changes in the types of
exchanges proposed. In addition to the traditional uses to which they have
been applied, such as land ownership consolidation, land swaps are being
used for a variety of purposes. The stated purpose is usually to serve a clear
public good, such as consolidating endangered species habitat, acquiring
environmentally sensitive areas, or preventing undesirable development. The
results are often less obvious in terms of their public benefit.

4 The Right of Eminent Domain (40 U.S.C. 257) states that the government may condemn land needed for public
purposes. This act does not itself grant condemnation authority; nstead, condemnation can occur only where the
acquisition is otherwise authorized by statute, e.g., the Weeks Act, which authorizes acquisition in watersheds for the
“regulation of water flow” or the production of timber. Property owners whose land is condemned for public purposes
are entitled to receive fair market value for their property.
5 This number is from the national offices. The BLM figure may not account for all of that agency’s exchanges, as the only
dependable counts are kept at the individual patent offices in each state. Bob Barbour, BLM Lands and Realty Group,
personal communication with Janine Blaeloch, 1997.
6 Between 1987 and 1996, the largest trade of national forest lands in a single exchange was 17,000 acres traded to the
City of Seattle in its Cedar River watershed. Since then, larger Forest Service exchange acreages have been included in
the following trades:
♦ Crown Pacific Land Exchange, Deschutes, Winema, Fremont national forests, OR: 33,000 acres.
♦ Gallatin Land Exchange, Gallatin National Forest, MT: 24,000 acres plus 50 million board feet of timber.
12 ♦ Arkansas-Oklahoma Land Exchange, Ouachita National Forest, AR: 48,000 acres.
♦ Checkerboard Land Exchange, Kootenai, Lolo, Flathead national forests, MT: 27,000 acres.
Now, the majority of exchanges are initiated by
private landowners rather than the agencies, and
facilitated by a growing number of real estate
companies specializing in land swaps. More and
more often, projects are proposed that seem to
benefit private rather than public interests.

Yet, in the eyes of many land managers and


private traders, there seems to be no end to the
utility of these deals. Congress and recent ad-
ministrations have shown strong support for
trades as a way to address a variety of land Photo credit: Mica Mountain Community Association
ownership issues. The Forest
Service proposes
to trade part of
1.2 The cooperative spirit this mountain-
side in the
One factor contributing to the popularity of land exchanges in recent years Clearwater
National Forest
was the accommodating attitude demonstrated by the Clinton Administra- to the State of
tion toward corporations. Underlying this cooperative approach is the idea Idaho in the Pits
Land Exchange.
that environmental laws and land management policies should be made Oddly, another
more friendly to private interests.7 land trade would
bring a 160-acre
parcel on this
When landowners threaten development that would harm public resources, mountain into
public owner-
land swaps are seen as an easy mechanism to forestall this harm. The corpo- ship, yet it
ration-friendly philosophy often comes into play where lawsuits are involved. would be
surrounded on
Perhaps the best-known recent example of this is the New World Mine case, three sides by
where the Clinton Administration persuaded environmental groups to drop land being
exchanged out
lawsuits against a mining company poised to dig for gold near Yellowstone of public hands.
National Park. In return, the Administration proposed that the mine site be The logic of the
agencies’ land
acquired through a land exchange.8 consolidation
efforts is
sometimes
Another example is the Interstate 90 Land Exchange between Plum Creek difficult to
Timber Company and the Forest Service in Washington State. Plum Creek discern.
agreed to trade to the public some of its checkerboard lands near the popu-
lar Alpine Lakes Wilderness in the central Cascades. The company’s
clearcutting in the area had caused increasing controversy and provoked
frequent lawsuits by environmental groups. Plum Creek, the Forest Service,
and recreationists formulated a proposal to put these lands in public owner-
ship and in return give Plum Creek tracts in three national forests across the
state.
7 This is not meant to imply that Republican administrations did not work closely with corporations. But the Clinton
Administration often tried to portray itself as environmentally progressive, and its “partnership” approach to corpora-
tions inspired cynicism among many environmentalists.
8 The mine was eventually purchased through Land and Water Conservation Fund monies, as the process of locating
exchange lands became too contentious.

13
But the company did not want to endure the 3- to 4-year process that would
be necessary to complete the exchange, nor risk the likelihood of litigation
by environmental organizations, which might delay or stop the exchange.
The company therefore called on the Secretary of Agriculture (overseer of
the Forest Service) to make a deal. Plum Creek would defer clearcutting on a
few thousand acres of the land it intended to trade to the public if the gov-
ernment would adhere to a strict schedule to complete the exchange by
December 31, 1998, or within about two years. The Secretary agreed.9

Acquisition without appropriation


Land exchanges are also favored because they are seen as a relatively inex-
pensive and expeditious way to acquire land. Over the last twenty years,
Congress has spent comparatively little money on land protection or acquisi-
tion. The clearest indicator of this stinginess is Congress’ refusal to appropri-
ate land acquisition money from the Land and Water Conservation Fund
(LWCF), created in 1964 expressly for this purpose.

The LWCF comprises about $900 million generated annually through fees on
offshore oil and gas leases. The logic behind creating the fund was that harm
to the offshore environment might be mitigated somewhat through onshore
land acquisition for open space, parks, and wildlife habitat.

But LWCF funds must be appropriated annually, and for most of the fund’s
history, Congress has failed to make the full fund available for land acquisi-
tion. Fiscal conservatives see spending the fund for its intended purpose as a
luxury they cannot support. Legislators end up siphoning the money toward
other uses.

Between 1987 and 1997, yearly LWCF appropriations averaged $233 mil-
lion. In 1997, environmentalists and open-space advocates felt some hope
when legislators appropriated $699 million for fiscal year 1998, the highest
amount since 1978. Yet, as of this writing, Congress has refused to spend the
money on the projects for which it was earmarked.10

9 The result of that agreement was increased controversy and delay. As the company saw its deadline looming, it
approached Washington Sen. Slade Gorton to enact legislation for the trade that would cut short the ongoing public
review process. The exchange was authorized through an amendment to the Omnibus Appropriations Act of 1998. But
in the summer of 1999, marbled murrelets, a federally-listed threatened species, were discovered on land slated to be
traded to the company.
A coalition was formed of forest activists and citizens of Randle, Washington, who opposed the trade of public lands
near their town.
Through a long, complex series of events—including Plum Creek’s filing suit against opponents—a settlement was
reached that resulted in new legislation that removed key areas of controversy from the exchange. The size of the
trade was reduced to about 31,000 acres of Plum Creek land and about 12,000 acres of public land. Deeds were
transferred on December 29, 1999, one year minus two days from the company’s original deadline. The I-90 Exchange
is discussed in detail in our report Commons or Commodity? The Dilemma of Federal Land Exchanges.
10 Of the total amount appropriated, $65 million was for purchase of the New World Mine and $280 million to purchase
the Headwaters forest in Northern California. Both of these areas—a gold mine site threatening Yellowstone National
Park and a portion of the last large privately-owned tract of old-growth redwood forest—had originally been proposed
for acquisition via land exchange. The exchange proposals were so intensely controversial that the Clinton Administra-

14 tion switched to outright purchase instead.


Each year, the Forest Service, BLM, and state and local entities compete for
LWCF money to make high-priority acquisitions, and each year the list grows
longer as Congress fails to fund them.

Buying land with land


Land exchanges, on the other hand, do not require the agencies to go beg-
ging for money. Congress sees buying land with land as eminently practical,
and generally encourages the agencies to pursue exchanges. This is particu-
larly true of legislators who believe that the government’s role is to facilitate
development and corporate profit making, and that the federal government
has control over too much land.

For example, when Sen. Slade Gorton, R-Wash., introduced legislation to


implement the controversial Interstate 90 Land Exchange between Plum
Creek Timber Company and the Forest Service, environmentalists suggested
that the Plum Creek land would be better acquired by purchase rather than
exchange.

Gorton, chair of the Senate Interior Appropriations subcommittee, replied, “I


do not intend to use that fund for land we can acquire by exchange.” 11

Land exchanges fall within the jurisdiction of the Senate Energy and Natural
Resources and House Resources committees and their subcommittees. These
committees have been dominated by legislators whose states contain a large
percentage of public land. Many of them bemoan the fact that public land
ownership prevents the unfettered development of land that might bring
higher tax revenues and private profit.12

1.4 Expanding uses for land exchanges There is an


Public land agencies normally do not disclose whether an exchange has been increasing trend
in proposals
initiated by private parties or the government, but there is an increasing being brought to
trend in proposals being brought to the agencies by private parties wishing the agencies by
private parties
to obtain federal lands for specific purposes. These include mining interests, wishing to
developers, and timber companies. obtain federal
lands for specific
purposes.
Mining
In the Southwest, both the BLM and the Forest Service propose large land
exchanges with the mining companies, including Phelps Dodge and
ASARCO. The Arizona State BLM Office currently has several such ex-
changes pending.

11 Connelly, Joel. 1998. “Gorton to introduce land swap plan for central Cascades.” The Seattle Post-Intelligencer. June 5,
1998.
12 Examples: Senators Murkowski (Alaska—45 percent federal ownership), Craig (Idaho—60 percent), Smith (Oregon—51
percent), Burns, Thomas (Wyoming—48 percent) and Representatives Young (Alaska), Hansen (Utah—63 percent),
Gibbons (Nevada—83 percent).

15
In some of these trades, the companies seek to acquire public lands adjacent
to existing mines in order to expand their operations. In others, they are
returning to previously abandoned areas where mining has been made more
economically feasible by recent technological advances.

Under the antiquated mining laws, private parties may claim minerals on
federal lands through a relatively simple process of filing a claim with the
BLM or Forest Service. The right to mine vests in discovery, filing of a claim,
the payment of a modest fee, and annual filing requirements.

Unpatented mining claims are those in which the private party has the min-
eral rights to land but has not acquired a patent on the land itself. Where
companies have unpatented mining claims on federal land they must comply
with federal mining law and regulations that require plans of operation, bond
postings, and site reclamation.

On the other hand, if a party obtains the patent on a mining claim (accom-
plished by filing an application and paying a nominal fee), their operations
fall under state laws which govern operations on private lands and are gen-
erally far more lax than even the liberal federal laws.

In the early days of the Clinton Administration, Interior Secretary Bruce


Babbitt’s modest attempts at mining reform were largely quashed, but he
did accomplish a moratorium on the filing of patents, which Congress has
been renewing on a regular basis. Land exchanges allow companies to cir-
cumvent the patent moratorium and acquire land outright, thus reverting
regulation to the states and providing a hedge against any potential reforms
in federal mining law.

Urban expansion and ski developments


Expansion of communities has always been one of the purposes behind land
trades, but scores of land swaps are now proposed to accommodate urban
growth and ski resort development, including posh ski areas in sensitive
alpine terrain.

Las Vegas, Nevada is one of the fastest growing urban areas in the United
States—and also happens to be located in the state with the highest percent-
age of federal land ownership in the country (83 percent). As the city ex-
pands outward into the Las Vegas Valley, which is largely in public hands,
developers have acquired outlying public land by exchanging inholdings
they have purchased or optioned in other parts of the state. The smaller cities
of Wendover and Henderson have pursued growth by the same means.13
13 Land trades in the Las Vegas Valley have been suspended in the wake of unfavorable audits by the Inspectors General of
Interior and Agriculture. However, the Nevada congressional delegation has succeeded in gaining passage of a bill that
authorizes the BLM to sell 27,000 acres of BLM land in the Valley. The proceeds of the sales are to be dispersed to local
governments (15 percent) and to a special account (85 percent) to be used by the agency to purchase “environmentally
16 sensitive” lands in Nevada. The Nevada BLM’s web page provides news on the land sales at www.nv.blm.gov/plma/
2plma.htm.
Payson, Arizona sits within the Tonto National
Forest. The town has become a popular second-
home community for Arizonans and has grown
rapidly in the last several years. Since about
1970, developers have been exchanging land
with the Forest Service in order to continue to
expand the town. Now, 75 percent of the land
within the town limits is former national forest
land that has been privatized through land
trades.14

Ski resorts within national forests operate under


special use permits that put their operations
under Forest Service oversight. Wishing to free
themselves of the limitations this can place on
development and expansion, many owners are
proposing land trades in order to gain outright The Grand Targhee Resort, Targhee National Forest,
Wyoming. Through a land exchange, privatization of this
ownership of the federal land they occupy. ski resort would allow for accelerated development
adjacent to the Jedediah Smith Wilderness Area.
Photo credit: Western Land Exchange Project
The Grand Targhee/Squirrel Meadows Land
Exchange in the Targhee National Forest would
give Booth Creek Ski Holdings outright ownership of 120 acres of public land
where the company now operates under a special use permit. Acquisition of
the public land would allow the company to more intensively develop the
ski area (including condos) and far exceed the current federal permit limita-
tions. In exchange, the national forest would receive a 400-acre inholding in
another part of the forest.

Timber
Timber companies have long participated in land exchanges, particularly in
the checkerboard areas created by the railroad land grants. These trades
have been used to consolidate federal and private ownerships into contigu-
ous blocks, but until recently they usually involved only a few hundred acres.

Since 1996, there has been a dramatic increase in the size and number of Companies are
increasingly
land swaps proposed between timber companies and the U.S. Forest Ser- eager to dispose
vice, most notably on the Northern Pacific Railroad land grant checkerboards of lands close to
popular recre-
in Washington, Idaho, and Montana. Companies are increasingly eager to ation areas or
dispose of lands close to popular recreation areas or where logging would where logging
would be
be especially controversial. especially
controversial.

14 Kreider, Beth. “Broker’s death may slow Payson land exchange.” Payson Roundup, October 18, 1996.

17
The “checkerboard” land exchanges are coming under increased scrutiny by
forest activists in the Northwest because of the origin of the timber compa-
nies’ holdings. It was the intent of Congress that the railroads sell the grant
lands to settlers to finance railroad construction, yet much of this land re-
mained in corporate hands.

For example, the Northern Pacific Railroad retained huge holdings that were
eventually transferred to spin-off companies such as Plum Creek Timber.
Other lands were sold to Weyerhaeuser. Companies such as Boise Cascade
and Potlatch, corporate cousins to Weyerhaeuser, also ended up with large
forest holdings.

After World War II, these companies intensively logged their lands—particu-
larly from the 1970s forward—creating massive environmental damage and
scarred landscapes. Much of the land the companies have logged will not
grow a new “crop” of trees for many years, if at all.

For companies with little standing timber and extensive cut-over acreages,
land trades may be the only feasible means of acquiring logs and, inciden-
tally, jettisoning their clearcuts.

In addition to reducing the companies’ available timber, checkerboard


clearcuts have created a public relations nightmare. Land exchanges that
trade these areas to the public fit in handily with the government’s desire to
consolidate ownership. In many cases, the companies are trading cut-over,
high-elevation lands for low-elevation forested areas.

Consolidating endangered species habitat


Exchanges are increasingly being used to consolidate federal lands for en-
dangered species habitat and to relieve private landowners of restrictions on
their land.

In response to the specter of property-rights “takings” lawsuits and the


annual introduction of several anti-endangered species bills, the Clinton
Administration used land swaps as another part of its “innovative” approach
to implementing the Endangered Species Act. In these cases, government
allows private landowners to trade their lands in areas of critical endangered
species habitat for public lands—essentially compensating them for their bad
luck.15

15 The Fifth Amendment to the U.S. Constitution forbids the taking of private property for public use without just
compensation. While the Courts have so far proved them wrong, many property rights advocates complain that
restrictions associated with, for example, the Endangered Species Act are unconstitutional “takings.”

18
In a 1994 speech, Secretary Babbitt discussed various methods of resolving
impacts of private development on endangered species, concluding that

“ … If [other] methods fail, a land exchange is yet another op-


tion. The Department of the Interior controls 500 million acres of
land … from which we can, if we get into a corner where these
other tools do not work, offer a land exchange ...” 16

Near the town of St. George, Utah, for example, the BLM is conducting ex-
changes for private inholdings that will become part of the Washington County
Habitat Conservation Area (HCA). In order to set aside designated habitat for the
desert tortoise (a federally-listed threatened species), the BLM has made or
proposed numerous trades with private landowners within the HCA.

The exact number of transactions is virtually impossible to calculate, as many


of them overlap or have been implemented in phases. In late 1998, the BLM
estimated that at least 16 swaps would be completed in St. George by 2000.

One project, the Spilsbury Exchange, effected the trade of 2,200 acres of
public land for 183 private acres within the HCA. Public lands in the swap
were assigned one-twelfth the per-acre value of private land, even though
the public lands are ripe for development and thus should have very high
value. On the other hand, the private holdings to be acquired for the public
were described as steep slopes and “volcanic cinder cones.”

Many of the St. George trades involved “pooling,” a practice wherein several
exchanges are accomplished in phases that make them virtually impossible
to track and parties “owe” each other land from uneven transactions.

Normally, lands containing endangered species habitat are assigned lower value
than lands without development restriction, because appraisal standards dictate
that the valuation of land take into account any constraints on their use.

However, St. George landowners protested this long-established practice


because it lowered their land values. In 1996, at the behest of Utah Rep. Jim
Hansen, Congress passed an appropriations “rider” that allowed the restric-
tions to be ignored in the appraisals for all subsequent transactions involving
the Washington County HCA.17

16 Babbitt, Bruce. 1994. The Endangered Species Act and “takings”: a call for innovation within the terms of the act.
Environmental Law, Vol. 24:355.
17 Section 309 of the Omnibus Parks and Public Lands Management Act of 1996 (Public Law 104-333) was entitled “Sand
Hollow Exchange” and stated “... In acquiring any lands and any interests in lands in Washington County, Utah, by
purchase, exchange, donation or other transfers of interest, the Secretary of the Interior shall appraise, value, and offer
to acquire such lands and interests without regard to the presence of a species listed as threatened or endangered or
any proposed or actual designation of such property as critical habitat for a species listed as threatened or endangered
pursuant to the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)...”
BLM appraisal staff in Salt Lake City disputed the agency’s application of this rule to all Washington County exchanges,
but in late 1996 the Department of Interior’s Salt Lake City Field Solicitor issued an interpretation of the act which
upheld the application of this provision to all Washington County exchanges. 19
Forestalling road access
Several land trades, particularly in the railroad checkerboard lands, have been
prompted by the threat of road-building through public lands by private
interests. When timber companies, for example, invoke the “ANILCA road
access” provision, the Forest Service can be motivated to consider a land
trade.

The Alaska National Interest Lands Conservation Act (ANILCA) of 1980 con-
tained a short provision that requires the federal government to give private
landowners “reasonable” access to their inholdings, as determined by the
agency (this applies to all public lands, not just those in Alaska).

In the checkerboard lands, this means that private owners, usually timber
companies, may be permitted to build roads across public checkerboards to
gain access to their own. Critics argue that the agencies are too lenient in
their provision of “reasonable access,” uniformly interpreting this to necessi-
tate road building rather than allowing for other means of access, such as
helicopter.

To forestall road building, then, the agencies will often accept proposals for
land exchanges to bring the private land into public ownership and give the
private parties accessible land.

Resolving trespasses
Sometimes an agency will propose an exchange to resolve an issue of tres-
pass, wherein, for example, a private party has encroached upon public land
with a building or other structure. Rather than order that the encroachment
be eliminated, the government may decide to eliminate the trespass by
trading the land to the encroacher and accepting lands elsewhere in return.

1.5 Third-party facilitators


Land exchange
Another recent trend in the way land exchanges are implemented is the use
facilitators— of third-party facilitators to shepherd the process along.
consultants or
specialized real-
estate brokers— Because land trades can be so complex, expertise is highly valued. Land
provide services exchange facilitators—consultants or specialized real-estate brokers—pro-
to both private
and public trade vide services to both private and public trade partners. Facilitators help land-
partners. owners negotiate what can be a confusing process by serving some or all of
the following functions:

♦ Identifying lands the federal agencies want to acquire.


♦ Conducting feasibility studies for potential exchanges.

20
♦ Bringing large numbers of private landowners together for complex “as-
sembled” (multiple-ownership) land exchanges.
♦ Performing functions traditionally done by real estate brokers, such as
obtaining appraisals, negotiating values, and clearing titles.
♦ Generally navigating the shoals of land exchange laws and regulations.
One such consulting organization is the Western Land Group (WLG) in Den-
ver, Colorado, which has facilitated land exchanges since 1982 and has com-
pleted dozens of trades. The company has written and lobbied on legislation
for several major land trades, including the Snowbasin Land Exchange, which
has privatized land for the 2002 Winter Olympics in Utah. The WLG is usually
a central participant whenever land exchange policy, law, or regulations
come before Congress.

The group wrote the Federal Land Exchange Facilitation Act (FLEFA), the only
major land exchange statute to be passed since the Federal Land Policy and
Management Act (FLPMA) of 1976.

Clearwater Land Exchange (CLE) of Orofino, Idaho, has facilitated many


exchanges in the Northwest, including:

♦ The Upper Priest Lake Exchange in Idaho. A grove of ancient cedars Plum
Creek Timber Company sold to a Clearwater associate for $1.5 million
was traded to the Forest Service six years later at a value of $8.7 million.
♦ The Channeled Scablands exchange in northeast Washington State. The
BLM traded 10,000 acres of scattered timber parcels (including rare old-
growth Ponderosa pine) for 40,000 acres of overgrazed private lands.
In late 1999, CLE had a bill introduced to enact two land trades in northeast
Oregon involving both BLM and national forest lands. The company had
become impatient with the administrative processes for the exchanges and
persuaded Oregon Senators Gordon Smith, a Republican, and Ron Wyden, a
Democrat, to co-sponsor the bill. The Oregon Land Exchange Act passed the
next year, trading 54,000 acres of public land for 49,000 private acres.

Federal Land Exchange (FLEX) puts together trades geared toward develop-
ment, particularly in Arizona. FLEX has been the facilitator of land exchanges
in Payson, Arizona to expand the town limits into the Tonto National Forest.

Non-profit land trusts such as the Trust for Public Land, the Nature Conser-
vancy, and American Land Conservancy also facilitate land trades. In 1992,
the Department of Interior Inspector General investigated exchanges con-
ducted by the U.S. Fish and Wildlife Service with the assistance of non-profit

21
facilitators and found that some groups were unduly profiting from these
projects by charging for unjustifiable administrative costs. A more recent
report found yet more evidence of this problem.18

American Land Conservancy (ALC) operates chiefly in Nevada and California,


arranging land trades around Lake Tahoe, Las Vegas, and other areas. In
1998, the Inspector General of the Department of Agriculture published the
results of an audit of land trades implemented by the Forest Service and BLM
in the Humboldt-Toiyabe National Forest of Nevada. In that audit, ALC’s
heavy-handed negotiations over land values were found to have resulted in
multimillion-dollar taxpayer losses.19

1.6 A process gone awry


Theoretically, land exchanges should be one of the methods by which desir-
able lands can be acquired in the interest of the public, but the policies and
laws that have guided the federal land exchange program in recent years
have been tailor-made to protect private rather than public interests. Below,
we outline some of the broad problems with the process.

Public participation and input


Most large exchanges are implemented through the National Environmental
Policy Act (NEPA) process, allowing for public participation in decision-
making that affects the environment. (NEPA and other laws are discussed at
length in later sections). But land trades carry a unique set of problems for
citizens trying to understand the tradeoffs and environmental impacts associ-
ated with them.

Environmental analyses routinely fail to explain the true condition of the


lands acquired from private interests (e.g., clearcuts, overgrazed lands, and
damaged riparian areas). Exchanges are convoluted transactions, in constant
flux as the public and private parties add and subtract lands and other re-
sources from the deals.

Legislated land exchanges, several of which occur each year, are acutely
problematic for citizen participants, because swaps enacted through Con-
gress routinely bar citizens from challenging them at the agency level or in
court.20
18 (a) OIG Audit Report No. 92-I-833, “Department of the Interior Land Acquisitions Conducted With the Assistance of
Nonprofit Organizations,” May 1992. (b) OIG Audit Report No. 99-I-162, “Land Acquisition Activities, U.S. Fish and
Wildlife Service,” December 1998.
19 OIG Audit Report No. 08003-02-SF, “Forest Service Humbolt-Toiyabe National Forest Land Adjustment Program Fiscal
Year 1990 to 1997, Sparks, Nevada,” August, 1998.
20 Normally, land exchanges occur through an administrative process implemented by the public land agencies. The
legislative process for land trades, wherein one or more exchanges are authorized through an act of Congress that
bypasses the agencies, may include special provisions or waivers of environmental laws that would not occur in the
administrative process.

22
Failure to consider alternatives
Federal agencies assessing land exchanges are loath to look at real alterna-
tives, despite the fact that there could be other actions that would serve the
true purpose behind a proposed swap.

The National Environmental Policy Act (NEPA) requires that agencies define
the “purpose and need” for a project and propose various alternatives to
achieve that. In the environmental analyses for land trades, this is usually
stated to be the land exchange that is proposed, rather than the true under-
lying purpose (e.g., acquisition of a particular parcel, improved manage-
ment, etc.).

Because the “purpose and need” determines the range of alternatives to be


considered under NEPA, this has allowed the agencies to narrow the alterna-
tives in the analyses and avoid examining options such as outright purchase
or placing restrictions on the development of lands traded to private parties.
The agencies have also allowed the other parties’ goals to limit the scope of
alternatives.

(This aspect of the discussion, including a landmark court decision regarding


alternatives, is considered at greater length in Section 5.1).

Hidden appraisals and questionable valuations


Land appraisal data—which are essential to determining whether a land
exchange is equal in value and thus legal—have historically been closed to
the public until after completion of the trade.21

Short of litigation, citizens have had very limited access to the fine print in
deals made on their behalf. Disclosure of all appraisal records is crucial,
because questionable appraisal practices are a chronic problem in land
swaps.

In land exchanges throughout the West, citizens and experts have ques-
tioned the regularity with which high values are placed on private lands with
no development potential, and low values attributed to public lands rich in
resources.

21 The Bureau of Land Management has, rather uncharacteristically, had a more liberal appraisal disclosure policy than the
Forest Service. The BLM allows citizens access to land valuation data at the time the final decision is made, giving
citizens the 45-day appeal period to scrutinize this information before deeds are exchanged. Until recently, the Forest
Service did not release appraisal data until after an exchange had been completed. Now, these data are released when
the agency issues a draft environmental analysis that identifies a preferred alternative (see Section 4.2).
Many aspects of the appraisal, such as comparable sales data used to determine land values, are still sometimes
withheld under exemptions in the Freedom of Information Act (FOIA) aimed at protecting private parties from release
of confidential business information. The Western Land Exchange Project successfully challenged the policy in court.
Moreover, the Forest Service has formulated a new policy that requires private participants in land trades to allow the
disclosure of appraisal data, thus releasing the agency from its obligation to protect their privacy.

23
Valuation has become an acute problem for the
BLM and Forest Service, and this had led to
several internal investigations by the govern-
ment. Both the Interior and USDA inspectors
general have conducted several audits of land
trades throughout the West.22 The most recent
audit report was released by the General Ac-
counting Office (GAO) in June 2000.23

Agency incentives to enact exchanges


When an agency and private party enter into an
Many land agreement to pursue an exchange, it is required
exchanges bring
corporate
that the private parties commit to paying at least half the cost of surveys,
logging roads environmental analyses, and appraisals. In the Arizona BLM’s exchange
into public
ownership.
program, the private proponents are paying the salaries of BLM staff working
Roads are an on the projects.
ecological
liability, leading
to soil erosion, The appearance of conflict of interest among agency staff is also common,
mass wasting,
and the sedi-
where staff have friendships or business connections with the private propo-
mentation of nents. These situations are not conducive to arms-length, public interest-
streams. Yet in
the appraisals
oriented decision making.
for land trades,
they actually add Fast-tracking
value, because
roaded, acces- Once the agreement to initiate an exchange is signed, a land exchange
sible land is
more valuable assumes a life of its own, gathering momentum toward completion of the
than unroaded deal that may undermine the quality of environmental analysis and agency
land. Through
this bizarre circumspection. Private traders (including Plum Creek Timber, mentioned
calculus, the earlier) often set deadlines for completion of a land swap, fast-tracking the
public pays
twice for roads analysis and putting undue pressure on the agency to complete the transaction.
acquired in land
exchanges—first
through over-
valuation, and
1.7 Alternatives to flawed policies
then through the
cost of obliterat- Land and Water Conservation Fund
ing harmful
roads. Photo Purchase of lands through the Land and Water Conservation Fund (LWCF) is
credit: The Lands an alternative to be considered in any exchange aimed at public acquisition
Council
of desirable lands. The Forest Service and BLM have developed an LWCF
“mantra” which says funding is too uncertain for purchase to be seriously
considered as an alternative to land exchange.

22 Reports from both the Interior and USDA Inspectors General are available on their web pages at www.oig.doi.gov/ and
www.usda.gov/oig/auditrpt/auditrpt_FS.html.
23 BLM and the Forest Service: Land Exchanges Need to Reflect Appropriate Value and Serve the Public Interest. GAO/
RCED-00-73. GAO audit reports can be obtained from the GAO’s website at:gao.gov/reports.htm.

24
If Congress and the land management agencies
provided citizens with the clear choice between
purchase and exchange, LWCF would have a
growing constituency among Americans.24

In cases where purchase of high-priority lands is


stymied by an unwilling seller, the government
can also exercise the right of eminent domain,
paying the landowner the full and legitimate
market value as required under the Fifth Amendment. Santa Rita
Mountains,
Coronado
Deed restrictions National Forest,
Arizona. The
Regulations state that the agencies “shall reserve such rights or retain such Rosemont Ranch
Exchange would
interests as are needed to protect the public interest or shall otherwise re- have transferred
strict the use of Federal lands to be exchanged, as appropriate (36 CFR 254. these peaks to
the mining
3(h))[emphasis added].” The agencies seldom meet this requirement, for fear conglomerate
of alienating the interests of their trade partners. Where land exchanges are ASARCO. This
part of the Santa
deemed necessary, deed restrictions should be placed on lands traded out of Ritas would have
the public domain.25 been trans-
formed to
“waste rock”
1.8 Only the public can protect the public interest and dumped in
the valley below.
Ultimately, land exchange policy must be re-thought and reformed to ensure Public outcry
hastened the
that wherever federal lands are traded, the interests that we all hold in our mining
public lands are enhanced and protected. company’s
withdrawal of
this proposal.
Whether through the passage of new laws, through regulations, or by ad- Photo credit:
Western Land
ministrative direction, significant change is due. As public concern over this Exchange Project
issue increases, land managers will realize that they have no choice but to
act prudently when they make “trade stock” of our public lands.

Toward those ends, the most effective tools for reform are public skepticism,
public scrutiny, and public involvement.

Which is, of course, where you come in.

24 Unfortunately, even outright purchase entails pitfalls when it comes to the public paying fair value for lands purchased
through the LWCF. A case in point is the purchase of the Baca Ranch in New Mexico. Long a priority for acquisition, the
ranch encompasses unique lands targeted for protection. Congress agreed to appropriate $101 million in LWCF funds
to buy it; yet an audit by the General Accounting Office, released in March 2000, revealed that the ranch may have
been over-valued by as much as $38 million. GAO report No. RCED-00-76. Land Acquisition Issues Related to Baca
Ranch Appraisal. March 2, 2000.
25 An example of a deed restriction would be one that placed a limit on the amount of logging that could be done on
public lands traded to a private timber company.
25
6.0 Beyond Review: Advocacy, Appeals, Litigation, & Lobbying
In this section, we discuss some of the mechanisms available for going be- Should you
decide to take it
yond review and actually challenging a land trade. We purposely treat this on, advocacy in
subject generally and relatively briefly, with a few recommendations and the land ex-
change arena can
resources that may help you. First, we are not qualified to give legal advice, be entertaining,
and second, the details of your approach will vary greatly, depending on fulfilling, and
very educational.
factors too numerous to address here.

While the discussions in this guide account for many of the issues that arise
again and again, each land trade involves unique issues. Many of the ques-
tions we posed in the previous section will help you determine whether a
land trade merits a serious challenge.

Some of the suggestions below will be old-hat to experienced activists. But


our work has shown us that most scrutiny of land trades comes from citizens
who have had little or no practice with the dealings of the federal govern-
ment, let alone with public land activism or land exchanges.

6.1 Rough roadway ahead


In the course of reviewing a land exchange proposal, environmental analysis,
and associated documents, you may decide that the exchange does not
conform to laws, regulations, or agency policies. You may find that there are
serious problems with the exchange, encompassing one or many of the
issues discussed in this guide.

In addition to the details of the project itself, your approach to challenging an


exchange will be informed by many factors. These may include local and
national politics; timing; changes in agency policies; what kind of support
you have; whether you belong to or work for a non-profit organization; how
much money and time you have to spare (if any), and countless others.

But for those who are sufficiently concerned about the consequences of a
land exchange, there are actions you can take, ranging from simple discus-
sions with the agency—and/or the private party—to outright administrative
or legal challenges.

Even the simplest of these options can entangle you in frustrating work, red
tape, weird politics, agency intransigence, mind-boggling complexities,
paranoia, and a fervent wish that you had never heard about the exchange in
the first place.

63
With that said, should you decide to take it on, advocacy in the land ex-
change arena can be entertaining, fulfilling, and very educational. Even if you
are a seasoned environmental activist, following a land exchange will help
you gain new insight into public lands issues. If you are a newcomer, you
may be amazed to discover the extent of your own skills and resourcefulness.

6.2 Communicate
We assume that if you have been involved in reviewing a land exchange and
are seriously considering action, you have already communicated frequently
with agency staff and even with the private proponent of the exchange. The
importance of these communications cannot be overstated. Simply reading
the documents may not give you the detailed understanding of the project
that you need, and you can learn a lot, good or bad, by staying in regular
contact with those who are planning the trade.

Your contact lets them know that there is a concerned constituency out
there, which can sometimes greatly affect the quality of the agency’s analysis
and cause staff to be more careful about following proper procedures.

In addition, it is possible that your interactions with the agency and others
can lead to substantial changes in the project that satisfy your concerns and
better serve the public.

Finally, your communication with the agency (and documentation thereof)


will bolster your legal standing to challenge an exchange if it becomes nec-
essary to do so.

6.3 Gather information


As described in Section 2.1, the Freedom of Information Act (FOIA) can be of
critical use in land exchange evaluation. Among the many documents you
may wish to obtain, important ones may be the appraisal reports, the intra-
agency correspondence and email communications, the Agreement to Ini-
tiate, and any correspondence between the public and private parties to the
exchange.

For those who wish to delve into the details of a land trade, the FOIA process
can be a very important one to understand and follow, but it can also be
overused, or used unnecessarily.

We recommend that you first attempt to get the records you want through
an informal request. Ask the agency to provide you with what you want,
and, if feasible, reduce your request to the essentials so that your chances of

64
getting information informally are in-
creased. There are two primary reasons for
avoiding the FOIA process altogether:

1. In many cases, you can get the records


you want simply by asking. Because
FOIA creates a burden for them by
setting response deadlines, the agency
staff is often anxious to avoid the pro-
cess. Tell them you “would rather get
the information without going through
FOIA.” (After you have gone through it Mike Keefe, Denver Post
a couple of times, this will be true).

2. Once you submit your request, your


It’s easy to see a
FOIA can generate a lot of headaches and frustrating work for you. The FOIA as some-
agencies are given deadlines for response to your request, but—far more thing that
creates work
often than not—they will fail to meet those deadlines, and you will have only for the
to contact them on a regular basis to track their progress. You may even agency, but in
fact it may
have to take action against an agency to get them moving. It’s easy to produce more
see a FOIA as something that creates work only for the agency, but in fact work for you
than for them.
it may produce more work for you than for them.

As detailed earlier in this guide, the information on FOIA procedures for the
Forest Service and BLM, respectively, is provided on the Internet at
www.fs.fed.us/im/foia/ and www.blm.gov/nhp/efoia/index.htm.

Citizens submitting a FOIA may request a fee waiver to avoid having to


reimburse the agency for copying costs. Normally, an agency will provide a
set number of copies free of charge, and charge you for copies beyond that
number. In some cases, obtaining records can be very expensive. There are
two ways to avoid unmanageable costs:

1. If the records reside at an office that is convenient for you to visit, ask that
the records be provided for your perusal rather than duplicated, and you
can “visit” them by appointment. This can save a lot of paper, and it can
also give you the opportunity to determine which records you really need
to have copied. Files often contain extraneous information that you will
never use.

2. Request a fee waiver for the processing and duplicating costs. To qualify
for a fee waiver, you must (a) demonstrate that your use of the records
will serve the public interest, rather than any commercial interest, and (b)

65
meet several “tests” in the agency’s rules. Fee waivers are relatively easy
to get, if you carefully address the waiver criteria, and non-profit organi-
zations’ requests are generally not challenged. However, the agencies
periodically clamp down on this aspect of FOIA, and may require you to
jump through time-consuming hoops if you don’t make your case the first
time around.

In land exchange-related FOIA submittals, appraisal documents and reports


are commonly requested. Both case law and agency policy are still develop-
ing with regard to the release of these records. Therefore, we recommend
that you submit a separate FOIA request for appraisal documents and put the
rest of your request in another letter. This way, if the agency “stonewalls”
you on the appraisal data, it will not hold up your entire request.

For help with the FOIA process, you may wish to visit the American Civil
Liberties Union at www.aclu.org/library/foia.html

An excellent source of FOIA assistance is A Guide to Citizen Access to Public


Records, written by Dave Bahr and Dan Stotter.52

6.4 Know your bottom line


What is it that you hope to achieve? For example, are you trying to prevent
the exchange of public land that is literally in your back yard? Are you an
environmental advocate who wants to prevent or alter a huge trade? Are
you absolutely opposed to the project, or do you believe that changes in the
lands traded would result in an exchange that you would not oppose?

If you have a concern about the exchange that falls short of wanting to com-
pletely stop the project, you should already have let agency staff know what
that is. For example, if you believe that the elimination of key federal lands
would result in an acceptable land exchange, you should advocate for their
removal. 53

As stated in our discussion of the Freedom of Information Act, simply asking


for something and using informal means to achieve it is the best place to
start. Administrative or legal action is available as a fallback if the agency
and/or private party refuse to change the project—which they are likely to do.

52 You can obtain the guide by sending $4.50 postage and handling to Bahr & Stotter, Attorneys at Law, 259 East Fifth
Street #200, Eugene, OR 97401. Visit their website at www.foiadvocates.com.
53 The policy of the Western Land Exchange Project is as follows: “It is not our intent to oppose all exchanges, but neither
will the Western Land Exchange Project endorse, facilitate, or proffer statements of support for any land trade.” We
include this proviso because we feel that, until substantial changes are made in the process and policies underlying the
land exchange programs, we cannot endorse any of these actions. “Buy-in” on an exchange, particularly by environ-
mental groups, legitimizes a flawed process and can also be used by the agency and private parties to sell a land trade.
We urge citizens to use every opportunity at their disposal to bring the larger issues into view and use their challenges
of land trades to push for broad reform. That said, we do not pretend to have an informed opinion on every trade.

66 Local citizens tend to know the most about lands slated for exchange. Our central goal, and the purpose of this guide,
is to encourage maximum public involvement in decisions affecting our public lands, with the full knowledge that our
goals and others’ may not be the same.
6.5 Put it in writing
For the most part, people who work for public lands agencies care about
public land. Many believe strongly in your right as a citizen to participate,
and will help you to do so more effectively. Some will be honest with you if
they think that a land exchange is not in the public interest. On the other
hand, some staff members will be uncooperative, even secretive about the
projects. A small number will mislead you or actively discourage your in-
volvement.54

In any case, it is important that you take thorough notes when you converse
with other parties—and on important issues, document your concerns
through letters to agency staff.

These documents will become part of the official record for the exchange
and can be extremely important—particularly if you decide to mount an
administrative and/or legal challenge.

Save the e-mail messages you send to and receive from the parties. Govern-
ment employees delete email messages, too, and you may be out of luck if
you hope to obtain these later through a FOIA request.

We caution you not to saturate agency contacts with daily emails, letters, or
phone calls, as haranguing them may turn them against you, or at the very
least cause them to ignore your concerns. Regular contact is good, while
harassment is harmful to your cause. Be strategic.

6.6 Advocate
The help of your colleagues, friends, and neighbors can be crucial in achiev-
ing your goals by helping you build a constituency against a bad project. Call
community meetings, make phone calls, contact and involve local environ-
mental groups, bring your compatriots to meetings with the agency and/or
private party involved, create a coalition.

Think about people and groups that would be affected by the trade of the
public land, such as fishers, hunters, off-road vehicle enthusiasts, hang-
gliders, hiking clubs. You may not agree with their views on all things, but
identifying your constituency and rallying their support enables you to build a
coalition—and the more diverse it is, the more effective it will be.

54 As suggested earlier, one of the common ploys to quash public involvement is for agency staff to tell you that an
exchange is a “done deal” and it is too late to comment or have any effect. If the deeds have not changed hands, it is
not—strictly— too late. But if the appeal period for the decision has expired, or if the decision on an exchange has
been issued and you have not previously expressed any interest in the project, it probably is too late. However, we
have heard of numerous cases where an agency person tells the public that a deal is done when the process is still in
its early stages and could easily be challenged.

67
The attention of local or re-
gional media can make a
huge difference in the political
environment surrounding a
land exchange, and can po-
tentially affect the outcome.
Journalists are by nature
skeptical about government
operations, and the land
exchange issue has received
increasing attention in the last
few years.
Residents of Media relations can be dicey, but extremely important, as reporters have
Randle, Wash-
ington and resources you probably do not have. In the face of bad press, even those in
others protested power can be moved to back off or make changes. If you are really fortunate,
the Interstate-90
Land Exchange you will find a reporter who is willing to investigate, and his or her research
between the and critical analysis can help you immensely.
Forest Service
and Plum Creek
Timber Com- In addition to contacting reporters, make an appointment to speak with the
pany. Their work
eventually led to editorial board of your local or regional newspaper. Convince them to write
the retention of an editorial questioning or opposing the land exchange, or ask if they will
critical public
lands in the publish your guest editorial.55
Gifford Pinchot
National Forest.
Photo credit: Call on your representatives in Congress for help, with the understanding
Colby Chester that you will likely need to educate them on this issue. Few Members of
Congress have any clue about the importance or pervasiveness of the land
exchange program and they will need your help. A well-placed letter from
A well-placed
your congressperson to the agency can have a chilling effect on a bad ex-
letter from your change. Letters to the editor published in your local paper can substantially
congressperson
to the agency can
influence Members of Congress.
have a chilling
effect on a bad
exchange.
You can find your Member of Congress on the Internet through the following
sites:
For the House, go to www.house.gov/house/MemberWWW.html.
For the Senate, see www.senate.gov/senators/index.cfm.

If these links become outdated, you can find your congressional representa-
tive through links from: http://thomas.loc.gov/.

55 There’s no doubt media coverage can help your efforts. The Seattle Times agreed to an editorial meeting with the
Western Land Exchange Project that eventually led to the 1998 publication of a six-day, award-winning investigative
series on land trades entitled “Trading Away the West.” In response to a tip by citizens, Ken Olsen of the Spokane
Spokesman-Review wrote a series of excellent articles on Clearwater Land Exchange, a land trade facilitator; Cindy
Murphy of the Roanoke Times covered the Turner Exchange in Catawba, Virginia; Twila Van Leer, Donna Kemp, and
Jerry Spangler of the Deseret News uncovered shady land trade dealings in St. George, Utah. See “Press Room” on our
website—www.westlx.org/press.htm—for these and many other examples.

68
6.7 Appeal
If other options fair and you find that the land exchange decision issued by
the agency does not address your concerns, you may decide to take admin-
istrative action against a land trade, appealing the decision made at the
agency level. Depending on the complexity of the project, this can entail a
substantial amount of work.

If you are determined to stop an exchange as proposed, the first step is an


administrative appeal against the agency. You cannot go to court until you
have “exhausted your administrative remedies” —meaning, you have filed If your standing
to appeal is
an appeal and the appeal has been dismissed. challenged, this
is where your
fastidious
You must file an appeal within a certain time period—usually 30 or 45 days— documentation
after the ROD or Decision Notice has been issued (see Section 3.2). For appeal of concerns will
be indispens-
deadlines, refer to the land exchange regulations pertaining to your agency. able.

In order to qualify as an appellant, you must have “standing” to appeal, i.e.


you have to have a demonstrable, individualized interest in and injury from
the outcome of the project. If your standing to appeal is challenged, this is
where your fastidious documentation of concerns will be indispensable.

If you belong to an environmental organization working in all or part of the


area or issue you are challenging, you should not have a problem establish-
ing standing. Likewise, as a member of any demographic group affected by
the project (other than by the generalized harm to taxpayers of a bad gov-
ernment decision) or the owner of land adjacent to affected lands, you will
likely be free of any worries about standing to appeal.

The Forest Service website provides a list of decisions on land exchange


appeals filed with the national office at www.fs.fed.us/land/staff/appeals/.

The web page also lists appeal decisions made at the regional level on all
types of projects at www.fs.fed.us/forests/.

Depending upon whether the exchange decision was issued by the Forest
Supervisor or the Regional Forester, you will appeal either to the Region or
the Chief of the Forest Service, respectively.

Your appeal to the BLM will begin with a protest, or lower-level appeal, to
the jurisdiction above the decision-maker on the exchange. The Decision
Notice will tell you where protests should be filed. If the protest fails, your
appeal should be filed with the Interior Board of Land Appeals (IBLA), which
is under the Interior Department’s Office of Hearings and Appeals.

69
The Office has a website that provides information on recent IBLA decisions
at www.doi.gov/oha/iblaindex.htm.

You should know at the outset that in the vast majority of cases, the Forest
Service and the IBLA routinely dismiss administrative appeals filed against
agency decisions, and land exchanges are no exception. This forces citizens to
go to court if they strongly differ with a decision regarding a land exchange.

Failure to meet a
However, not all appeals are dismissed on all grounds. We know of a recent
deadline will case wherein the Forest Service agreed to do further analysis of the effects of
preclude your an exchange on certain species, even though that was not the only (or even
appeal.
the central) issue brought forth in the appeal. Decisions like this open up
opportunities for continuing a challenge within the administrative process.

6.8 Keep moving, but follow the rules


If you have gotten this far in your work on a land trade, you should not feel
intimidated or “unqualified” to challenge a decision. The regulations that
allow for appeal are not as complicated as you may think, but timing require-
ments must be carefully reviewed. Failure to meet a deadline will preclude
your appeal.

However, thoroughness is critical. Failure to document your arguments with


evidence at the appeal stage will cause you problems later if the court
doesn’t allow supplementation of the record. Failure to raise important issues
at the appeal stage also precludes your raising them in court.

If you approach the process responsibly and intelligently, you have as good
a chance as anyone to prevail.56

By the time you get to the appeal stage, you should already have read the
statutes and regulations pertaining to the land exchange (referred to in Sec-
tion 2) and determined which of these are applicable to your case.

If you have concluded that the land exchange decision violates law or regu-
lation and/or that the environmental analysis process does not meet the
requirements of the National Environmental Policy Act, the appeal must
detail these violations.

56 All-out or even partial victory is not typical, but the potential for change resulting from citizen action is exemplified by
the case of the Huckleberry Land Exchange, discussed earlier in this guide. The administrative appeal filed by environ-
mental groups was the work of a “rank” amateur. The appeal itself was dismissed by the Forest Service and the
subsequent lawsuit failed in federal district court, but the case (Muckleshoot v. U.S. Forest Service) was won on appeal
to the Ninth Circuit. The arguments on which plaintiffs eventually won had been formulated in the administrative
appeals.

70
If you get bogged down, the Western Land Exchange Project or other activ-
ists in your area may be able to help. If you know an attorney or an environ-
mental advocate with experience in the appeals process willing to help for
no charge or an affordable price, call on them. But be aware that, by this
stage, you have indispensable information about the land exchange, can/
must provide vital information, and will probably have to carry the burden of
most of the work.

To file a valid appeal, you must read the agency’s appeal regulations and
adhere to the letter of the requirements.

As provided earlier in this guide, Forest Service regulations (36 CFR 217) can
be found on the Internet by clicking the code citation at
www.access.gpo.gov/cgi-bin/cfrassemble.cgi?title=199936.
Your task is to
BLM/Interior regulations (43 CFR 1840) and IBLA appeal rules (43 CFR Part 4) make all that you
are found by entering the citation at www.access.gpo.gov/nara/cfr/cfr-table- know about
what’s wrong
search.html#page1. with the ex-
change fit within
Your task is to make all that you know about what’s wrong with the ex- the context of
existing laws
change fit within the context of existing laws and regulations. Your argu- and regulations.
ments must be substantive, not rhetorical; succinct, but detailed where nec-
essary. If you are at a loss as to how to start, it is a good idea to get a sample
of an appeal from a local environmental group.57 The Western Land Ex-
change Project can also provide you with a sample.

Some experienced activists write cursory administrative appeals to the Forest


Service and other public lands agencies—figuring their chance of winning is
so low that it’s best just to go through the motions, exhaust their administra-
tive remedies, and get on with litigation. One activist we know has been
filing actions against Forest Service timber sales for many years, and he puts
the minimal effort legally necessary into his appeals. He is convinced that the
only way to stop the agency from implementing bad decisions is by suing
them, and he has been extremely successful with this strategy. In the case of
timber sales, and given the area where he works, we don’t disagree.

But appeals are not filed against land exchanges with anywhere near the
frequency of timber sale appeals. Land trades also involve complex issues
and procedures not easily addressed in a cursory appeal—such as whether
the exchange conforms to the FLPMA “public interest” and “equal value”
provisions.
57 Our colleague Barry Carter of the Blue Mountains Native Forest Alliance in Baker City, Oregon is a great resource for
information on the appeals process and can be contacted for tips on appeal writing. His email address is
bcarter@igc.org. Barry is also quite familiar with the land exchange issue.

71
If you are extremely pressed for time, you can file an effective appeal with
relatively little effort, particularly if you have some experience. Otherwise, it
is worth putting a substantial amount of effort into your appeal. If you end up
suing, the appeal process will have taught you almost all you need to know
about the legal issues involved, and will serve as a template for your case.
And your attorney will be grateful.

6.9 Litigate
If you decide to sue, obviously you will need an attorney. Finding one, even
one with outstanding environmental or public lands experience, is not diffi-
cult if you have money to pay them. But if, like most activists, you hope to
find someone who will represent your case for a reduced fee or for free (pro
bono), you will need to do some searching.

Lawyers representing winning plaintiffs in cases against the federal govern-


ment can file for reimbursement of their fees under the Equal Access to
Justice Act (EAJA). If a lawyer senses you have a strong case, he or she may
take it on with some confidence that they will eventually be paid under
EAJA.

To find an attorney, we suggest the following:

♦ Ask a local environmental group (with whom, it is hoped, you have been
working or to whom you have made your issue known) and see if they
have an attorney, on staff or off, who might be interested.
♦ See if the law school closest to you has any law professors who specialize
in public lands, natural resource law, or other related issues. Some
schools have environmental law departments, and even associations of
environmentally-oriented law students who may be willing to do some of
the legal research for you and prepare material that would otherwise
have to be compiled by your attorney.
There are several public-interest law firms that focus on public lands and
natural resource law—including Western Environmental Law Center in Eu-
gene, Oregon and Taos, New Mexico, Earthjustice Legal Defense Fund,
Earthlaw, and Land & Water Fund of the Rockies—and will take on some
cases for expenses only. Their websites can be found at the following locations:

www.welc.org/
www.earthjustice.org/home.html
www.earthlaw.org/
www.lawfund.org/

72
You should be prepared to sell your case to an attorney. Public interest law
firms get hundreds of calls each year seeking legal help.

The best way to approach an attorney with a complex case such as a land
exchange is with a brief (one- to two-page) letter, with no attachments,
succinctly stating the following:

♦ The most salient appeal points.


♦ The timing involved.
♦ Your ability to pay for costs or fees.
♦ A description of the political issues involved, such as who is for and
against the exchange and how the media have reacted.
This will help ensure that your request gets serious consideration.

Even if you do find an attorney who can affordably represent you, you won’t
be able to simply hand them the case. You should expect to answer calls at
all hours and do much of the legwork for which they would otherwise have
to charge you.

6.10 Lobby
Administrative vs. legislative exchanges
As mentioned earlier in this guide, many land
trades bypass the agency regulations and pro-
cedures we have outlined and instead go to
Congress. Legislated land trades are extremely
problematic for citizens, because they eliminate
the relatively predictable and transparent
agency processes.

Land exchange proponents have only one


goal—to get their trade completed with as little
delay or fanfare as possible. The agency route
may not result in the exchange they want, or in
rare cases, may kill the deal. A large land trade Members of Citizens for Public Review (CPR) in
Arizona's Verde Valley are fighting to keep the Yavapai
can take 3 or 4 years to complete, and public Ranch Land Exchange from going through Congress.
Citizens want a full administrative/NEPA process for the
exchange. Photo credit: Western Land Exchange Project

73
participation and/or challenges to the trade can add even more delay. As a
result, trading parties may write their proposals into legislation, circumvent
the hassle of complying with NEPA and other laws, and get their trades
through much more quickly.
(To find examples of land exchange legislation, go to http://thomas.loc.gov
and enter the search term “exchange.” If it’s not early in the congressional
session, you will probably find several land exchange bills).

The only case in which legislation is required for a land exchange is where
lands to be traded are in more than one state, and these proposals are in-
creasingly rare.

The ins and outs of land trade legislation are complex and not easy to gener-
alize. Suffice it to say, however, that these bills can provide the proponents
with special provisions and guarantees they would not be able to secure
through the agencies. While administrative exchanges are fraught with prob-
lems, they pale in comparison to the problems with land trade legislation.
Proponents can tinker with the appraisal standards, bypass environmental
analysis, set an absolute deadline for the transfer of deeds, and add special
provisions that are beneficial to the private parties.

Most important, they provide little opportunity for the public to understand
or have an effect on the proposal. If fighting an agency trade is hard, oppos-
ing a land exchange bill can be doubly so.

Initially, the best argument you have for challenging a legislated trade is the
vast difference between the legislative and administrative processes. The
proponents and supporters of the land exchange will argue that the adminis-
trative route is too cumbersome and long, that legislation provides for equal,
if not more, public input, and that action by Congress guarantees that the
public interest will be protected. As outlined below, this simply is not the case.

Safeguards in the agency process


When a public land agency proposes a land exchange, it is governed by
statutes and regulations intended to protect the public interest.

As discussed in earlier sections of this guide, FLPMA dictates that land ex-
changes must serve the public interest and yield equal value to both (or
multiple) sides in the transaction. NEPA provides strict guidelines for envi-
ronmental analysis and disclosure, as well as opportunities for citizen input.

Here is what the administrative course provides under FLPMA and NEPA:

74
1) Public notification to ensure that the affected communities are aware of
the proposal and its scope;

2) environmental analysis of the trade’s impacts, including the impact on


public lands that would be traded away;

3) analysis of a range of alternatives for the exchange including “no-action,”


different exchange configurations, outright purchase of private lands, and
development restrictions on land traded to the private party;

4) analysis of the ecological and other values on lands that would come into
public ownership;

5) formal opportunities for the public to respond to and ask for changes in
the proposal, including public hearings and comment periods. In addi-
tion, the agency is required to respond to substantive comments and
incorporate legitimate concerns into the proposal;

6) a public interest determination compiled by the agency that outlines the


reasons/justification for the trade;

7) the right to appeal the decision if it is not in the public interest, and/or to
challenge the adequacy of the NEPA analysis.

8) public disclosure of appraisal information once the agency’s “preferred


alternative” is identified, and before the land deeds are transferred.

As we have seen in earlier sections, this process allows citizens to under-


stand what is involved in the land exchange; provide substantive comments
or objections regarding its impacts; propose alternatives (lands added and/
or subtracted); and object if the exchange is clearly counter to the public
interest or unequal in value. Moreover, the administrative route provides a
clear, predictable process.

The NEPA process was not created merely to generate paper, solicit public
involvement, or disclose environmental impacts to the public. One of its
central purposes is to help the agencies make better decisions, with the aid
of their own environmental analysis and citizen concerns. To protect the
public interest when disposing of public land, the agency is also tied to the
requirements of FLPMA.

Even when there is strong opposition to a land exchange, or some parts of it,
the vast majority of these projects reach completion in some form. But environ-
mental analysis and citizen participation can lead (and in many cases, have led)
to changes that improve the proposal and better serve the public interest.
75
Congress offers no safeguards
Conversely, the legislative process guarantees none of the safeguards pro-
vided in statues and regulations. To put it bluntly, a member of Congress can
put any language he or she wants into a bill (provided it is not unconstitu-
tional), and none of the safeguards listed above need be included. Here is a
direct comparison:

1) Public notification: not required; citizens learn about a legislated land


trade by luck, by the grace of the proponent or congressional sponsor, or
by searching the congressional website.

2) environmental analysis: very seldom required, or if required, short-cut.

3) analysis of a range of alternatives: never required. If a bill is controversial,


amendments may be introduced, but these seldom make substantial
changes in the proposal.

4) analysis of the ecological and other values on lands that would come into
public ownership: very seldom required.

5) formal opportunities for the public to respond to and ask for changes in
the proposal: only through letter-writing and congressional hearings, see
below.

6) a formal public interest determination: not required; proponents argue


that anything passed by Congress is, by definition, in the public interest.

7) the right to appeal the decision: never, citizens cannot file an appeal
against or sue Congress. (In rare cases, it is possible to sue the agency
over its implementation of a legislated exchange, see below).

8) public disclosure of appraisal information: a “summary” of appraisal data


may be made available; otherwise, complete appraisal information for a
congressional land trade is extremely difficult to get, even after deeds
have changed hands.

Scrutinizing a land trade bill


Under the best scenario, you will know about a land exchange bill before it is
introduced, and can work to discourage members of Congress from intro-
ducing or co-sponsoring the bill. You must obtain a draft of the bill as soon as
you can from the bill’s congressional sponsor, the private exchange party, or
the private party’s lobbyist.

76
It is essential to understand and convey the differences between the admin-
istrative and congressional routes, because those differences provide some
of your most compelling arguments against the bill. On the other hand,
members of Congress don’t like to admit that legislation shuts out citizens or
may not adequately protect the public interest, so you must tread this line
with caution.

Obviously, you must carefully scrutinize the bill language. Here are some
suggestions about what to look for:

♦ The bill will say the Secretary of either Agriculture or Interior (or both), as
agents(s) in the process, either “ may” or “shall” convey the public lands
and accept the private lands at issue in the bill. Whether the secretary
may (is authorized to) or shall (is mandated to) implement the trade is a
critical part of the bill language. If the former is the case, the agency
retains some discretion in the exchange, while in the latter case Congress
is ordering that the trade occur as described in the bill. 58

♦ Another important factor is whether the bill sets a deadline for the trans-
fer of deeds. If the bill creates no detailed requirements for implementa-
tion of the trade (e.g., special analyses, completion of pending apprais-
als), it may set a short deadline for completion of the trade, e.g., within
90 days after the bill becomes law.

♦ Does the bill either overtly or covertly waive any laws, such as NEPA,
FLPMA, or the Endangered Species Act? Land exchange proponents are
getting more crafty at writing language that does not appear to circum-
vent any existing laws but nevertheless does so. For example, the bill
may not overtly waive NEPA but may set a deadline for completion of
the trade that renders NEPA compliance impossible.

♦ Look for special language pertaining to the appraisals. Does the bill
waive the federal appraisal standards (UASFLA) or cite only the less-
restrictive industry standards (USPAP)? If the bill contains any special
provisions for the appraisals, it may provide undue benefits for the pri-
vate party.

If you find the bill language enigmatic or confusing, don’t worry—legislative


language can be hard to decipher, even for the experienced. You can get
help interpreting the bill from an attorney or from congressional staff of the
committee overseeing the bill.
58 Land exchange case law is still developing, particularly concerning legislated trades. However, in a case brought
against a congressional land trade in Vermont (RESTORE: The North Woods v. USDA, 968 F.Supp 168 (D.Vt.1997)), the
court found that the Forest Service could opt out of or alter the terms of the Sugarbush Land Exchange if any of the
private lands to be conveyed to the public were found to be “unacceptable.” In addition, the court found that the
Sugarbush Land Exchange Act did not free the agency from NEPA requirements, because (1) the bill did not expressly

77
prohibit NEPA analysis, and (2) there were no requirements in the bill that rendered NEPA analysis impossible.
Gathering opposition
Assuming the exchange is in your state, you must get as many of your rep-
resentatives and senators on your side as possible. Unless the exchange
legislation is outrageously bad, it may be difficult to convince members from
other states to oppose it if your state delegation unanimously supports the bill.

One of the most effective ways to build support against an exchange bill is
through the media. As discussed earlier in this guide, media coverage can
have a huge influence on the fate of legislation, and editorials (written by
editorial boards and/or you as a guest columnist) can also have an impact.

As mentioned in the discussion of appeals and advocacy, if you hope to stop


the bill either from being introduced or passing, you must build a large and
diverse coalition of citizens and organizations. Letters and phone calls are the
best vehicles for getting your message across to members of Congress and
their aides. Email is not effective. Form letters should never be used. Post-
cards and petitions should be used only if you have hundreds of them to
submit all at once or over a very short time.

Lobbying & hearings


Despite what citizens may hope, the congressional process is rarely delibera-
tive and very seldom “open” to the public. Land trades affect all citizens,
because they affect public lands that are managed in trust for all of us. Nev-
ertheless, a land exchange bill is considered a parochial and inconsequential
matter and will receive the attention of only a small number of congressional
members.

Land exchange bills are notorious for receiving essentially no scrutiny by


members outside the affected state, except in cases where citizens have
energetically and relentlessly faxed and mailed letters and made phone calls.

Once a land trade bill is introduced, members of the House Resources Com-
mittee and the Senate Energy and Natural Resources Committee (and their
subcommittees) are supposed to conduct substantial review, but they usually
have neither the time nor interest to do so.

(Members, schedules, bills, and hearing associated with congressional com-


mittees can be searched from http://thomas.loc.gov).

By the time the bill is introduced, the proponents and their lobbyists will
already have done a great deal of work to get up-front support. Citizens are

78
often at a huge disadvantage at this stage, because they may not know the
exact content of the bill. Even if a draft of the bill is available, it may be sub-
ject to change at any time.

As mentioned above, there is no formal notification process, so citizens must


count on help from members of Congress or their staff.

In addition to lobbying individual members of the committee and Congress


at large, the “official” means of providing input on a bill is through submit-
ting in-person and/or written testimony for the hearing(s).

In addition to providing a far more limited opportunity for citizen involve-


ment, the congressional process can be strewn with obstacles.

(1) When a bill proponent knows a bill is controversial, he or she may get
the committee chairs to schedule hearings in the Senate and House with
very little advance notice, e.g., two weeks. For citizens, this means book-
ing a flight to Washington, D.C. with little notice, as well as having to
“lobby” the committee to be allowed to testify.

Sometimes, a person cannot find out whether their in-person testimony


will be allowed until days before the hearing(s), but he or she will already
have to have submitted 75 or 100 copies of their testimony plus several
other pieces of paperwork.

(2) In the meantime, a citizen must set up meetings with congressional aides
to the Committee members and the affected state delegation even with-
out knowing whether he or she will be allowed to testify at the hearing.

(3) For those testifying, each is allowed 5 minutes of spoken testimony.


Opponents of a bill are usually scheduled to testify last, to maximize the
chances that any media and most of the committee members will have
left by the time they speak. They may be sandwiched between people
testifying on other bills, since many hearings cover more than one bill
and the order is at the whim of the members whose bills are being
heard.

Depending on what the interest is among committee members, there can be


as few as one or two members at the hearing. Among those who are there,
some may be reading their newspapers or attending to other work while the
hearing proceeds, and most will not have read the bill. Often, all members
present are called to the floor to vote on other bills.

79
While it can be a real honor to testify before a congressional committee, it
can also be a daunting lesson in the limits of democracy.

After the hearing, any number of things can happen to the bill. The move-
ment of a bill through Congress can be an unpredictable and perplexing
process.

♦ The bill may be voted out of committee as-is and go to a floor vote
within a few days.

♦ Enough controversy may have been raised to keep the bill from ever
being voted out of the committee to go to the floor. It stalls or dies.
The Yavapai
Ranch Land ♦ There is some controversy that leads to minor amendments, then the bill
Exchange
legislation would goes to the floor. Citizens will only know about amendments if they have
trade public land a contact on the subcommittee or in a member’s office that knows about
near several
northern Arizona it and will give them that information.
towns to a
developer. This
land near Camp ♦ In whatever form, the bill may go to the floor, but the rules may be sus-
Verde would be pended (no deliberation or recorded votes) and it passes or fails on a
subdivided and
developed. It voice vote (yeah or nay).
would double
the size of a
town that ♦ If the bill is not successful, it may languish for a while, and then be tacked
already faces on as a “rider” to a must-pass spending bill at the end of the budget year.
water supply
problems and is
struggling keep Even the most cogent arguments against a land exchange bill can be ne-
its growth within
sustainable gated if the bill is used as a bargaining chip between members (“I’ll vote yes
limits. Photo for yours if you stop holding up mine”).
credit: Western
Land Exchange
Project A sound proposal merits the administrative process
All in all, the process for public input on land ex-
change legislation is more expensive, far less
structured and predictable, and less democratic or
inclusive than what is provided under the agency
process. The trade proponent and his or her lobby-
ists usually have copious opportunities to talk face-
to-face with Members of Congress, while citizens
have none to few.

You have far less time to work with than you would
in the administrative process, and often must
respond to overnight developments and unfore-
seen events. You may not always understand what
Congress is doing.

80
Once a land trade bill is introduced, very few minds are engaged in deter-
mining its effect or significance, and its fate is in the hands of only two or
three people. Such is the congressional process for deciding how and when
public land is traded. However, the small circle of parties interested in the bill
makes your input that much more crucial and potentially powerful.

The phenomenon of legislated land exchanges begs the question: if a land


exchange proposal truly serves the public interest, what is to be lost in tak-
ing it through a process that allows affected citizens to have an equal voice
with the trade proponents?

If the proposal is a good one—or even if it is only one-quarter or seven-


eighths good—it should be analyzed and evaluated in the light of day so that
citizens and the agency can make the right choice. The statutes that govern
land trades were passed specifically for those purposes, so that the agencies
implementing them gather, disclose, and have at their own disposal the
information necessary to make the right decision.

When it comes to land deals, Congress will not protect the public interest. Citi-
zens must be ready to vigorously oppose any legislated trade and vociferously
defend the rights and protections provided by the administrative process.

6.11 Citizen action is the key


Fighting a government action can be hard, often discouraging work. But it
can also be very empowering, particularly for those who have never taken on
a larger cause. It can also sometimes result in better decisions by the government.

As is true in other areas of government activity, regulations and laws that


allow you to challenge a land trade are intended to act as checks on bad
decision-making, and all too often it is citizen, not government action, that
protects the public interest. This had been particularly true of the land ex-
change program.

Continuity in government policy is very rare, especially in connection with


issues affecting the environment and public lands. It is only through constant
pressure and watchfulness by a concerned public that real, lasting reform can
be attained.

When you decide to make it your cause to understand and possibly chal-
lenge a land exchange on your home ground—however large a landscape
that may be—you join a growing constituency of public land defenders.

Until there is the political will to replace acquisition through exchange with
acquisition through outright purchase, citizen action is the strongest bulwark
against harmful land exchanges. Get to it.
81
About the author
Janine Blaeloch worked as an environmental planner for several years in both
the private and public sectors and has been a forest activist since 1985. In
1996, she conducted an analysis of the Huckleberry Land Exchange for
Pilchuck Audubon Society and the Huckleberry Mountain Protection Society
and later appealed the exchange. Her volunteer work on that project led her
to develop the Western Land Exchange Project.

Janine is a member of the board of directors for the Railroads & Clearcuts
Campaign; GreenLaw, an organization at the University of Washington
School of Law that connects environmentally oriented students with non-
profit environmental groups; and the Public Information Network, which
provides critical research services to environmental and social justice activ-
ists. She received a B.A. in environmental studies from the University of
Washington with a specialization in public land policy. She is a native and
resident of Seattle.
We have incurred the violent hostility
of the individuals and corporations
seeking by fraud and sometimes by
violence to acquire and monopolize
great tracts of the public domain …
—Teddy Roosevelt, 1906
Appendix A
Applicable Laws
Weeks Law, 16 U.S.C. 485 (1911)
Authorizes the Department of Agriculture to purchase land for watershed
pro-tection or for the production of timber. Requires 30-day period for con-
gressional oversight. The Weeks Law is often cited as authority for an ex-
change because the lands acquired under the Law have a different status
than other public lands, having been purchased rather than derived from the
public do-main. Most of the national forest system east of the Great Basin
was acquired through the Weeks Act.

General Exchange Act, 16 U.S.C. 485 (1922)


Authorizes the Department of Agriculture to make administrative land ex-
changes. Previously, USDA exchanges had to be legislated, whereas the
Interior Department had administrative authority.

Bankhead-Jones Farm Tenant Act, 7 U.S.C. 1010 (1937)


Authorizes exchanges of public land as part of land conservation and utiliza-
tion projects. Must comply with FLPMA requirements.

Forest Service Omnibus Act, 16 U.S.C. 555a (1962)


Authorizes the exchange of lands that are being administered “under laws
which contain no provision for their exchange.”

Land and Water Conservation Fund (LWCF) Act, 16 U.S.C.A. 460 (1964)
Taxes offshore oil revenues in order to fund federal land acquisition by public
lands agencies.

Freedom of Information Act (FOIA), 5 U.S.C. 552 (1966)


Allows citizen access to government records, subject to certain exemptions,
including commercial proprietary data. Land exchange valuation data are
claimed to be exempt under the FOIA as well as the Trade Secrets and Pri-
vacy Acts.

Exchange for Schools Act or Sisk Act, 16 U.S.C. 484a (1967)


Authorizes exchange or sale of up to 80 acres of national forest land with a
state or local government or public school authority.
National Environmental Policy Act (NEPA), 42 U.S.C.A. 4321 (1969)
Requires governmental analysis and disclosure of the potential environmen-
tal and socioeconomic impacts of major federal actions, and public participa-
tion in the decision-making process. Provides for citizen appeal.

Endangered Species Act, 16 U.S.C.A. 1531 (1973)


Authorizes the U.S. Fish & Wildlife Service to compile and update an official
list of rare, threatened, and endangered species for which critical habitat is to
be protected under federal law. Many land trades are prompted by the need
to bring endangered species habitat into public ownership.

Federal Land Policy and Management Act (FLPMA), 43 U.S.C.A. 1701


(1976)
Closed the frontier by declaring that the policy of the U.S. is to retain all
public lands except for particular parcels where determined by land use
planning procedures (1701(a)(1)). Requires uniform procedures and regula-
tions for the acquisition and exchange of non-federal land (1701(a)(10)).

Provides for disposal of “tract[s] because of [their] location or other character-


istics [are] difficult and uneconomic to manage as part of the public lands” or
when “disposal of such tract[s] will serve important public objectives, includ-
ing but not limited to, expansion of communities and economic develop-
ment, which cannot be achieved on land other than public land and which
outweigh other public objectives and values, including but not limited to,
recreation and scenic values, which would be served by maintaining such
tract in federal ownership” (1713(a)(1 and 3)). Under FLPMA, land exchanges
may be made when the Secretaries of Interior or Agriculture “determine that
the public interest will be well served” provided that the Secretary “shall
give full consideration to better federal land manage-ment and the needs of
state and local people, including needs for lands for the economy, commu-
nity expansion, recreation areas, food, fiber, minerals, and fish and wildlife”
(1716(a)). Values shall be equal but cash equalization can occur if it does not
exceed 25 percent of the total value of land transferred out of federal owner-
ship. The 25 percent limit can be waived if the cash is less than 3 percent or
$15,000 (1716(b)). Value of both federal and non-federal lands shall be as-
sessed according to the Uniform Appraisal Standards for Federal Land Acqui-
sitions (1716(5)(f)(2)(A)). FLPMA requires BLM to identify public lands suit-
able for sale, exchange, or transfer.

National Forest Management Act (NFMA), 16 U.S.C. 1600 (1976)


Requires periodic land management plans, which may include plans for land
acquisition. Land exchanges inconsistent with forest plan objectives may
require a forest plan amendment.
Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C.A.
1101 (1980)
Requires the federal government to give private landowners “reasonable”
access to their inholdings, as determined by the authorizing officer (36 C.F.R.
251.114). Commonly used to build roads across public lands to gain access
to private lands.

Forest Service Land Exchange Regulations, 36 C.F.R. 254 (1976, 1994)


Promulgated under FLPMA in 1976 and revised in 1994 according to Federal
Land Exchange Facilitation Act. The FS regulations outline public interest
criteria, criteria for what kinds of lands to dispose of and to acquire, and the
appraisal process.

Forest Service Handbook


5410 Appraisals. Provides detailed procedural guidance for all agency ac-
tions, including land trades. Exchange discussions are provided in:

♦ 5420 Purchase & Donations


♦ 5430 Land Exchanges
♦ 5480 Condemnation

Federal Land Exchange Facilitation Act (FLEFA), 43 U.S.C. 1701 (1988)


Amended land exchange regulations to set up bargaining and negotiation
process where valuations cannot be agreed upon. Grants agencies limited
authority to approve adjustments in the values of lands exchanged as a
means of compensating a party for incurring costs such as those for land
surveys, mineral examinations, and title searches which would ordinarily be
borne by the other party.

Uniform Appraisal Standards for Federal Land Acquisitions (1992)


Issued by the Interagency Land Acquisition Conference. Requires review by
qualified review appraiser and written documentation indicating the scope of
the review and actions recommended by the reviewer. Appraisals should
rely on the comparable sales method to value federal property when ad-
equate sales information is available.

Bureau of Land Management Handbook H-2200, 43 C.F.R. 2200 (1998)


Outlines all policies and procedures for BLM appraisals, including prepara-
tion of appraisal reports.
Santini-Burton Act, P.L. 96-586 (1980)
Authorizes the Department of Interior to sell federal land in and around Las
Vegas in order to finance the acquisition of environmentally sensitive land in
the Lake Tahoe Basin of Nevada and California.

Southern Nevada Public Lands Management Act, P.L. 105-263 (1998)


Authorized the sale of 27,000 acres of BLM land in the Las Vegas Valley to
developers. Mandates fifteen percent of the sale proceeds to local govern-
ment to fund water supply infrastructure and schools and 85 percent to the
BLM to fund acquisition of environmentally sensitive lands within the state.