The Citizens’ Guide

to

Federal Land Exchanges
A Manual for Public Lands Advocates

By Janine Blaeloch
April 2001

Wester estern The Western Land Exchange Project • Seattle, Washington

Peter Kuper

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 Western Land Exchange Project Wester estern
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 Francis Eatherington, Roseburg, OR Jeff Juel, Missoula, MT Lois Eagleton, Umpqua, OR Roy Keene, Eugene, OR Del Sonneson, Enumclaw, WA Sam Francis, Livingston, MT Charles Hancock, Reno, NV Asante Riverwind, Fossil, OR Deb Patla, Driggs, ID Larry McLaud, Moscow, ID Vernon Bates, Nashville, TN Cathy Lucas, Catawba, VA John Jolley, Mills, WY Jim Olson, Emmett, ID Charles Hancock, Reno, NV Jack MacDonald, Salt Lake City, UT

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 Exchanges,” co-written with historian George Draffan. The report can be obtained 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 ................................................................. Weeks Law (16 USC 485) ........................................................................................... General Exchange Act (16 USC 485) ........................................................................... Federal Land Policy and Management Act (43 USC 1701) .......................................... National Environmental Policy Act (42 USC 4321) ...................................................... National Forest Management Act (16 USC 1600) ........................................................ Endangered Species Act (16 USC 1531 et seq.) ......................................................... Habitat conservation plans under the ESA .................................................................. Alaska Nat. Interest Lands Conservation Act (16 USC 3101) ....................................... Freedom of Information Act (5 USC 552) .................................................................... 2.2 Regulations and authority .......................................................................................... Forest Service ............................................................................................................. Agreement to initiate ................................................................................................. Discretionary action .................................................................................................... Public interest ............................................................................................................. Equal value ................................................................................................................. The Land Exchange Process (chart) ............................................................................. Other provisions ......................................................................................................... Bureau of Land Management ...................................................................................... Fish and Wildlife Service, National Park Service, Bureau of Reclamation ...................... Agency contacts and authorities ................................................................................. National oversight teams ............................................................................................ BLM National Land Exchange Evaluation & Assistance Team ...................................... Forest Service National Landownership Adjustment Team .......................................... 26 26 26 27 28 29 30 31 32 32 33 33 33 34 34 34 35 36 38 38 38 39 39 39

3.0 Getting Involved ..................................................................................................................................... 41
3.1 Staying informed .......................................................................................................... The project list ............................................................................................................ 3.2 Notices and documents: identifying the issues ......................................................... Notice of exchange proposal (NOEP) .......................................................................... Categorical Exclusion (CE) ........................................................................................... Decision Notice (DN) and Record of Decision (ROD) ................................................... Environmental Assessment (EA) ................................................................................. Finding of No Significant Impact (FONSI) .................................................................... Scoping ...................................................................................................................... Scoping Comments ..................................................................................................... Environmental Impact Statement (EIS) ........................................................................ 41 41 42 42 42 46 46 46 46 47 48

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

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

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

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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 government 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 implementing 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 development 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 minimum 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.

Jeff Johnson

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♦ 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 several 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 valuable 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, particularly 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 private landholders. Land exchanges between the federal government and private parties have been enacted for decades, usually in the interest of consolidating ownerships, 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).

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of Agriculture and the Bureau of Land Management (BLM) in the Department 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. The BLM, www.blm.gov/nhp/what/ index.htm, manages 264 million acres.
Green River watershed, Mt. Baker-Snoqualmie National Forest, Washington. Photo credit: Del Sonneson

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, clearcutting and miners. 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 result will be right-of-way. larger areas consolidated into private ownership The fragmented pattern of public ownership creates conflicts across the 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.

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The BLM, too, must manage its lands to conform with laws such as the Endangered 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 disposing of smaller public holdings. Put simply, the concept is that the government 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 condemnation of land for public purposes is highly controversial. As a result, the government 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. Exchanges 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. ♦ Arkansas-Oklahoma Land Exchange, Ouachita National Forest, AR: 48,000 acres. ♦ Checkerboard Land Exchange, Kootenai, Lolo, Flathead national forests, MT: 27,000 acres.

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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 administrations have shown strong support for trades as a way to address a variety of land ownership issues.

Photo credit: Mica Mountain Community Association

1.2 The cooperative spirit
One factor contributing to the popularity of land exchanges in recent years was the accommodating attitude demonstrated by the Clinton Administration toward corporations. Underlying this cooperative approach is the idea that environmental laws and land management policies should be made more friendly to private interests.7 When landowners threaten development that would harm public resources, land swaps are seen as an easy mechanism to forestall this harm. The corporation-friendly philosophy often comes into play where lawsuits are involved. Perhaps the best-known recent example of this is the New World Mine case, where the Clinton Administration persuaded environmental groups to drop lawsuits against a mining company poised to dig for gold near Yellowstone National Park. In return, the Administration proposed that the mine site be acquired through a land exchange.8 Another example is the Interstate 90 Land Exchange between Plum Creek Timber Company and the Forest Service in Washington State. Plum Creek agreed to trade to the public some of its checkerboard lands near the popular 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 ownership 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 corporations 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.

The Forest Service proposes to trade part of this mountainside in the Clearwater National Forest to the State of Idaho in the Pits Land Exchange. Oddly, another land trade would bring a 160-acre parcel on this mountain into public ownership, yet it would be surrounded on three sides by land being exchanged out of public hands. The logic of the agencies’ land consolidation efforts is sometimes difficult to discern.

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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 government 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 inexpensive and expeditious way to acquire land. Over the last twenty years, Congress has spent comparatively little money on land protection or acquisition. The clearest indicator of this stinginess is Congress’ refusal to appropriate 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 acquisition. 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 million. 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 Administration switched to outright purchase instead.

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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 begging for money. Congress sees buying land with land as eminently practical, and generally encourages the agencies to pursue exchanges. This is particularly 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
Public land agencies normally do not disclose whether an exchange has been initiated by private parties or the government, but there is an increasing trend in proposals being brought to the agencies by private parties wishing to obtain federal lands for specific purposes. These include mining interests, developers, and timber companies. 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 exchanges 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).

There is an increasing trend in proposals being brought to the agencies by private parties wishing to obtain federal lands for specific purposes.

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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 mineral 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 (accomplished by filing an application and paying a nominal fee), their operations fall under state laws which govern operations on private lands and are generally 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 circumvent 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 percentage of federal land ownership in the country (83 percent). As the city expands 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 sensitive” lands in Nevada. The Nevada BLM’s web page provides news on the land sales at www.nv.blm.gov/plma/ 2plma.htm.

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Payson, Arizona sits within the Tonto National Forest. The town has become a popular secondhome 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 ownership of the federal land they occupy.

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 limitations. 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 contiguous 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 land swaps proposed between timber companies and the U.S. Forest Service, most notably on the Northern Pacific Railroad land grant checkerboards in Washington, Idaho, and Montana. Companies are increasingly eager to dispose of lands close to popular recreation areas or where logging would be especially controversial.

The Grand Targhee Resort, Targhee National Forest, Wyoming. Through a land exchange, privatization of this ski resort would allow for accelerated development adjacent to the Jedediah Smith Wilderness Area. Photo credit: Western Land Exchange Project

Companies are increasingly eager to dispose of lands close to popular recreation areas or where logging would be especially controversial.

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

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The “checkerboard” land exchanges are coming under increased scrutiny by forest activists in the Northwest because of the origin of the timber companies’ 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 remained 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—particularly 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, incidentally, 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 endangered 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.”

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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 option. 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 exchanges 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 restrictions 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.

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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 contained 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 necessitate 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 trespass, 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 facilitators— consultants or specialized realestate brokers— provide services to both private and public trade partners.

Another recent trend in the way land exchanges are implemented is the use of third-party facilitators to shepherd the process along. Because land trades can be so complex, expertise is highly valued. Land exchange facilitators—consultants or specialized real-estate brokers—provide services to both private and public trade partners. Facilitators help landowners 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.

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♦ Bringing large numbers of private landowners together for complex “assembled” (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 Denver, Colorado, which has facilitated land exchanges since 1982 and has completed 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 oldgrowth 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 development, 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 Conservancy, and American Land Conservancy also facilitate land trades. In 1992, the Department of Interior Inspector General investigated exchanges conducted by the U.S. Fish and Wildlife Service with the assistance of non-profit

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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 desirable 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 decisionmaking 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 associated 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 resources from the deals. Legislated land exchanges, several of which occur each year, are acutely problematic for citizen participants, because swaps enacted through Congress 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.

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Failure to consider alternatives Federal agencies assessing land exchanges are loath to look at real alternatives, 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 underlying purpose (e.g., acquisition of a particular parcel, improved management, etc.). Because the “purpose and need” determines the range of alternatives to be considered under NEPA, this has allowed the agencies to narrow the alternatives 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 questioned 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.

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Valuation has become an acute problem for the BLM and Forest Service, and this had led to several internal investigations by the government. 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 Accounting Office (GAO) in June 2000.23 Agency incentives to enact exchanges
Many land exchanges bring corporate logging roads into public ownership. Roads are an ecological liability, leading to soil erosion, mass wasting, and the sedimentation of streams. Yet in the appraisals for land trades, they actually add value, because roaded, accessible land is more valuable than unroaded land. Through this bizarre calculus, the public pays twice for roads acquired in land exchanges—first through overvaluation, and then through the cost of obliterating harmful roads. Photo credit: The Lands Council

When an agency and private party enter into an agreement to pursue an exchange, it is required that the private parties commit to paying at least half the cost of surveys, environmental analyses, and appraisals. In the Arizona BLM’s exchange program, the private proponents are paying the salaries of BLM staff working on the projects. The appearance of conflict of interest among agency staff is also common, where staff have friendships or business connections with the private proponents. These situations are not conducive to arms-length, public interestoriented decision making. Fast-tracking Once the agreement to initiate an exchange is signed, a land exchange assumes a life of its own, gathering momentum toward completion of the deal that may undermine the quality of environmental analysis and agency circumspection. Private traders (including Plum Creek Timber, mentioned earlier) often set deadlines for completion of a land swap, fast-tracking the analysis and putting undue pressure on the agency to complete the transaction.

1.7 Alternatives to flawed policies
Land and Water Conservation Fund Purchase of lands through the Land and Water Conservation Fund (LWCF) is an alternative to be considered in any exchange aimed at public acquisition 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.

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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.

Deed restrictions
Regulations state that the agencies “shall reserve such rights or retain such interests as are needed to protect the public interest or shall otherwise restrict the use of Federal lands to be exchanged, as appropriate (36 CFR 254. 3(h))[emphasis added].” The agencies seldom meet this requirement, for fear of alienating the interests of their trade partners. Where land exchanges are deemed necessary, deed restrictions should be placed on lands traded out of the public domain.25

1.8 Only the public can protect the public interest
Ultimately, land exchange policy must be re-thought and reformed to ensure that wherever federal lands are traded, the interests that we all hold in our public lands are enhanced and protected. Whether through the passage of new laws, through regulations, or by administrative direction, significant change is due. As public concern over this 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.

Santa Rita Mountains, Coronado National Forest, Arizona. The Rosemont Ranch Exchange would have transferred these peaks to the mining conglomerate ASARCO. This part of the Santa Ritas would have been transformed to “waste rock” and dumped in the valley below. Public outcry hastened the mining company’s withdrawal of this proposal. Photo credit: Western Land Exchange Project

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.

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6.0 Beyond Review: Advocacy, Appeals, Litigation, & Lobbying
In this section, we discuss some of the mechanisms available for going beyond review and actually challenging a land trade. We purposely treat this subject generally and relatively briefly, with a few recommendations and resources that may help you. First, we are not qualified to give legal advice, and second, the details of your approach will vary greatly, depending on 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 questions 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 government, let alone with public land activism or land exchanges.
Should you decide to take it on, advocacy in the land exchange arena can be entertaining, fulfilling, and very educational.

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 discussions 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.

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With that said, should you decide to take it on, advocacy in the land exchange 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 necessary 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 intraagency correspondence and email communications, the Agreement to Initiate, 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

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getting information informally are increased. 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 process. Tell them you “would rather get the information without going through FOIA.” (After you have gone through it a couple of times, this will be true).

Mike Keefe, Denver Post

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

It’s easy to see a FOIA as something that creates work only for the agency, but in fact it may produce more work for you than for them.

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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 organizations’ 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 developing 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 completely 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 environmental 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. 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.

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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 involvement.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. Government 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 achieving your goals by helping you build a constituency against a bad project. Call community meetings, make phone calls, contact and involve local environmental 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, hanggliders, 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.

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The attention of local or regional media can make a huge difference in the political environment surrounding a land exchange, and can potentially 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 Randle, Washington and others protested the Interstate-90 Land Exchange between the Forest Service and Plum Creek Timber Company. Their work eventually led to the retention of critical public lands in the Gifford Pinchot National Forest. Photo credit: Colby Chester

Media relations can be dicey, but extremely important, as reporters have resources you probably do not have. In the face of bad press, even those in power can be moved to back off or make changes. If you are really fortunate, you will find a reporter who is willing to investigate, and his or her research and critical analysis can help you immensely. In addition to contacting reporters, make an appointment to speak with the editorial board of your local or regional newspaper. Convince them to write an editorial questioning or opposing the land exchange, or ask if they will publish your guest editorial.55 Call on your representatives in Congress for help, with the understanding 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 your congressperson to the agency can have a chilling effect on a bad exchange. Letters to the editor published in your local paper can substantially influence Members of Congress. 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 representative 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.

A well-placed letter from your congressperson to the agency can have a chilling effect on a bad exchange.

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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 administrative 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 an appeal and the appeal has been dismissed. You must file an appeal within a certain time period—usually 30 or 45 days— after the ROD or Decision Notice has been issued (see Section 3.2). For appeal deadlines, refer to the land exchange regulations pertaining to your agency. 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 establishing standing. Likewise, as a member of any demographic group affected by the project (other than by the generalized harm to taxpayers of a bad government 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.

If your standing to appeal is challenged, this is where your fastidious documentation of concerns will be indispensable.

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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 deadline will preclude your appeal.

However, not all appeals are dismissed on all grounds. We know of a recent case wherein the Forest Service agreed to do further analysis of the effects of an exchange on certain species, even though that was not the only (or even 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 requirements 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 Section 2) and determined which of these are applicable to your case. If you have concluded that the land exchange decision violates law or regulation 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 environmental 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.

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If you get bogged down, the Western Land Exchange Project or other activists in your area may be able to help. If you know an attorney or an environmental 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. BLM/Interior regulations (43 CFR 1840) and IBLA appeal rules (43 CFR Part 4) are found by entering the citation at www.access.gpo.gov/nara/cfr/cfr-tablesearch.html#page1. Your task is to make all that you know about what’s wrong with the exchange fit within the context of existing laws and regulations. Your arguments must be substantive, not rhetorical; succinct, but detailed where necessary. 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 Exchange 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 administrative 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.

Your task is to make all that you know about what’s wrong with the exchange fit within the context of existing laws and regulations.

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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 difficult 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 government 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 Eugene, 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/

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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 procedures 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 can take 3 or 4 years to complete, and public

Members of Citizens for Public Review (CPR) in Arizona's Verde Valley are fighting to keep the Yavapai Ranch Land Exchange from going through Congress. Citizens want a full administrative/NEPA process for the exchange. Photo credit: Western Land Exchange Project

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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 increasingly rare. The ins and outs of land trade legislation are complex and not easy to generalize. 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 problems, 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, opposing 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 administrative 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 exchanges must serve the public interest and yield equal value to both (or multiple) sides in the transaction. NEPA provides strict guidelines for environmental analysis and disclosure, as well as opportunities for citizen input. Here is what the administrative course provides under FLPMA and NEPA:

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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 addition, 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 understand 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 environmental analysis and citizen participation can lead (and in many cases, have led) to changes that improve the proposal and better serve the public interest.

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Congress offers no safeguards Conversely, the legislative process guarantees none of the safeguards provided 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 unconstitutional), 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). 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.

8)

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 introducing 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.

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It is essential to understand and convey the differences between the administrative 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 transfer of deeds. If the bill creates no detailed requirements for implementation of the trade (e.g., special analyses, completion of pending appraisals), 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 circumvent 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 lessrestrictive industry standards (USPAP)? If the bill contains any special provisions for the appraisals, it may provide undue benefits for the private 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 prohibit NEPA analysis, and (2) there were no requirements in the bill that rendered NEPA analysis impossible.

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Gathering opposition Assuming the exchange is in your state, you must get as many of your representatives 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. Postcards 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 deliberative 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. Nevertheless, 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 Committee 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 committees 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

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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 subject 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 submitting in-person and/or written testimony for the hearing(s). In addition to providing a far more limited opportunity for citizen involvement, 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 booking 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 without 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.

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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 movement 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 Exchange legislation would trade public land near several northern Arizona towns to a developer. This land near Camp Verde would be subdivided and developed. It would double the size of a town that already faces water supply problems and is struggling keep its growth within sustainable limits. Photo credit: Western Land Exchange Project

♦ There is some controversy that leads to minor amendments, then the bill goes to the floor. Citizens will only know about amendments if they have a contact on the subcommittee or in a member’s office that knows about it and will give them that information. ♦ In whatever form, the bill may go to the floor, but the rules may be suspended (no deliberation or recorded votes) and it passes or fails on a voice vote (yeah or nay). ♦ If the bill is not successful, it may languish for a while, and then be tacked on as a “rider” to a must-pass spending bill at the end of the budget year. Even the most cogent arguments against a land exchange bill can be negated if the bill is used as a bargaining chip between members (“I’ll vote yes for yours if you stop holding up mine”). A sound proposal merits the administrative process All in all, the process for public input on land exchange 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 lobbyists usually have copious opportunities to talk faceto-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 unforeseen events. You may not always understand what Congress is doing.

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Once a land trade bill is introduced, very few minds are engaged in determining 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 taking 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 seveneighths 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. Citizens 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 exchange 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 challenge 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.

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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 nonprofit environmental groups; and the Public Information Network, which provides critical research services to environmental and social justice activists. 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 congressional oversight. The Weeks Law is often cited as authority for an exchange 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 exchanges. 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 utilization 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 Privacy 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 environmental and socioeconomic impacts of major federal actions, and public participation 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 regulations for the acquisition and exchange of non-federal land (1701(a)(10)). Provides for disposal of “tract[s] because of [their] location or other characteristics [are] difficult and uneconomic to manage as part of the public lands” or when “disposal of such tract[s] will serve important public objectives, including but not limited to, expansion of communities and economic development, 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, community 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 ownership. 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 assessed according to the Uniform Appraisal Standards for Federal Land Acquisitions (1716(5)(f)(2)(A)). FLPMA requires BLM to identify public lands suitable 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 actions, 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 adequate 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 preparation 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 government to fund water supply infrastructure and schools and 85 percent to the BLM to fund acquisition of environmentally sensitive lands within the state.

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