Commons or Commodity Preview

8/7/2019 Commons or Commodity Preview

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by George Draffan & Janine BlaelochJanuary 2000

Western Land Exchange Project Seattle, Washington

Commons or Commodity?Commons or Commodity?Commons or Commodity?Commons or Commodity?Commons or Commodity?The Dilemma of Federal Land Exchanges


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There is no hunger like land hunger, and no objectfor which men are more ready to use unfair anddesperate means than the acquisition of land.

Gifford Pinchot, Chief of the U.S. Forest Service, 1898-19101

You chaps who are in favor of this conservationprogram are all wrong. In my opinion, the propercourse to take with regard to [the public domain] isto divide it up among the big corporations and thepeople who know how to make money out of it...

Richard A. Ballinger, Secretary of the Interior, 1909-19112

The most frightening part of my job is land exchanges.

Pat Shea, Director of the U.S. BLM, 1997-19983


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AcknowledgmentsWe wish to pay tribute to William Andrew Jackson Sparks, Commissioner of the U.S.General Land Office (1885-1888), whose integrity and determination saved millions ofacres of the public domainand cost him his job. His story will someday be told. Andthanks to all those in public service who have had the courage to work for better gov-ernment and who have thereby put their careers and sometimes their safety on the line.Thanks to Vernon Bates, professional biologist and chairman of the Ouachita WatchLeague, whose work has revealed the extent and depth of corruption and opportunismin public service. David Orr supplied a steady stream of news on land swaps around thenation. Phil Knight of the Native Forest Network in Montana provided photos andreviewed the case study on the Gallatin. Dave Atcheson of the Pacific Crest BiodiversityProject provided photos of the places and events of the I-90 Land Exchange and pre-pared them for publication. For photos and graphics we also thank Peter Kuper, JeffJohnson, Del Sonneson, Sanford Lewis, Colby Chester, and Chuck Carter.

And thanks to allthe grassroots activists working to ensure that land exchanges are inthe public interest. Future generations will enjoy a larger and healthier public domainbecause of their dedication.

We wish to extend our profound thanks to the following foundations, who providedcritical support for the Western Land Exchange Project and made this report possible:Henry P. Kendall, True North, Wilburforce, Deer Creek, New-Land, Muckleshoot IndianTribe Charity Fund, Bullitt, and Kongsgaard-Goldman.

Cover illustration: Map of Huckleberry Ridge and the Green River in south-centralWashington State, scene of the Huckleberry and I-90 land exchanges between the U.S.Forest Service (green) and Weyerhaeuser (yellow) and Plum Creek Timber (purple). Thecheckerboard pattern of ownership is the result of 19th century railroad land grantsfrom the public domain.

The Western Land Exchange 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; and Advocates for reform of land exchange policies and regulations.

2000 by the Western Land Exchange Project

All Rights ReservedPO Box 95545, Seattle WA 98145-2545http://www.westlx.org

Draffan, George, 1954 -Commons or commodity ?: the dilemma of federal land exchanges / by George Draffan and JanineBlaeloch.1. Public landsUnited States. 2. Land useGovernment policyUnited States. 3. LandtenureUnited States. 4. Right of propertyUnited States. I. Blaeloch, Janine. II. Western LandExchange Project. III. Title.


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Table of ContentsForward ............................................................................................................................................6

Introduction ...................................................................................................................................... 7

Chapter 1. Overview of Land Exchange History And Recent Trends..............................................................8Disposing of the Public Domain ............................................................................................... 8The Purposes of Land Exchanges ...........................................................................................10

The Law ................................................................................................................................12Recent Trends ........................................................................................................................ 13More and Bigger Land Deals ..................................................................................................13

Chapter 2.Rationale, Rhetoric, and Reality............................................................................................ 17The Rationale for Land Exchanges ..........................................................................................17Rhetoric versus Reality ...........................................................................................................17Conflicts of Interest: Buying Trades ........................................................................................20Leveraged Exchanges .............................................................................................................22Legislated Exchanges .............................................................................................................24Paying Politicians ...................................................................................................................26Conflicted Environmentalists ..................................................................................................27Third-Party Facilitators ............................................................................................................29

Equal Value .........................................................................................................................32Fundamental Flaws .................................................................................................................33

Chapter 3. Seven Case Studies ............................................................................................................. 35Breaking All the Rules: The Arkansas-Oklahoma Land Exchange .............................................35Checkerboard Empires: The Huckleberry and the Interstate 90 Land Exchanges ......................39Developers Oasis: The Las Vegas and Humboldt-Toiyabe Land Exchanges .............................47Digging in Against Reform: Southwest Mining Land Exchanges ...............................................52Rearranging Idaho: The Idaho Assembled Exchange ...............................................................56Big Sky Scam: The Gallatin Land Exchanges ............................................................................58The Tortoise and the Speculators: The St. George Land Exchanges .........................................63

Chapter 4. Reforming the Land Exchange Programs .............................................................................. 65Recent Legislative Proposals ..................................................................................................65Other Recent Developments and Opportunities for Reform....................................................66Reforms at the Bureau of Land Management .........................................................................66Reforms at the Forest Service .................................................................................................67Recommendations of the Inspectors General .........................................................................68Recommendations of the Western Land Exchange Project .....................................................70

AppendicesA. Acquisition and Disposal of the Public Domain ..................................................................77B. Applicable Laws ................................................................................................................78C. Recommendations of the Public Land Law Review Commission .........................................81D. U.S. Forest Service Land Exchanges Exceeding $2 Million in Value, 1994-1999 ..............................83E. For More Information and To Get Involved .......................................................................... 84

Notes & References Cited ................................................................................................................... 85

TablesTable 1. Land Acquired for Public Ownership, 1964-1994 .....................................................11Table 2. Largest Public-Private Land Exchanges .....................................................................14Table 3. U.S. Forest Service Land Exchanges, 1987-1998 ......................................................14Table 4. BLM Land Exchanges, 1990-1997 ...........................................................................15Table 5. Land Exchanges Exceeding $10 Million in Value ........................................................15Table 6. Major Public Lands Acquisitions ...............................................................................77Table 7. Public Lands Disposals, 1781-1996 .........................................................................77Table 8. U.S. Forest Service Land Exchanges Exceeding $2 Million in Value, 1994-1999 ...........83


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Forewordby Janine Blaeloch, Western Land Exchange Project

Every year, the two biggest public land agencies in the United States, the U.S. Bureau of LandManagement (BLM) and the U.S. Forest Service (FS), complete some 300 land exchanges withprivate entities that include timber companies, developers, and mining conglomerates. Whilethe agencies are authorized to make land trades only where they serve the public interest, most

projects are initiated by private parties, not the agencies. The largest land trades occur in theWest, where a single project can involve the transfer of tens of thousands of acres.

Perhaps the most vexing aspect of the federal land exchange program is that few citizens haveany idea it exists. But most Americans understand that anythingthat involves landespecially inthe Westis fertile ground for manipulation and malfeasance. The land exchange program is noexception.

In fact, the obscurity and complexity of land exchanges have made it possible for the agenciesto keep the public at a distance and enact these deals with little fanfare or controversy. Untilrecently, environmental activists showed but tepid interest in challenging land swaps; someenvironmental groups have endorsed or even engineered exchanges, contributing to theperception that these projects are always benign or beneficial.

Ostensibly created to serve the public and protect public lands, land exchanges have become acorporate welfare program, doling out prime lands and resources to powerful interests andyielding dubious benefits to the public. A whole new industry of land swap facilitators hasemerged to take advantage of this phenomenon. In too many cases, to paraphrase a country-western song, thecorporationsget the gold mine and the public gets the shaft.

Across the West, the Forest Service is trading away irreplaceable native forest to timber compa-nies, often getting clearcuts, rocks and ice and low-quality habitat in return. In the Southwest,the BLM is using land trades to help companies like ASARCO and Phelps Dodge expand theiralready mammoth open-pit mining operations. Rampant urban expansion throughout the aridWest is being facilitated through huge land exchanges with developers. Land swaps are partiallyresponsible for the transformation of native deserts into golf courses and retirement

communities.

Far from being the benevolent, win-win deals the proponents would have us believe they are,land exchanges are divesting us of some of the most ecologically valuable lands we have left. Toheap insult on injury, taxpayers are losing millions of dollars each year through the under-appraisal of public lands and the overvaluing of private land.

Fortunately, things are changing for the better as more citizens become aware of the implica-tions of land trades and their own rightful place in the decision making process.

As historian George Draffan shows us in this report, the dilemma of federal land exchanges isdeeply rooted in Euro-American history. From that history has evolved a shockingly cavalierattitude toward the very thing that has provided our economic, cultural, and spiritual suste-

nancethe land.Underlying the issues associated with land exchanges are fundamental questions regarding thevery purposeof public lands and how we want to or should relate to them. Are they our com-monwealth, or are they a mere commodity, a resource? Is it right to use public lands and theremaining fragments of our native ecosystems as currency? Are they a permanent legacy toprotect and expand upon, or an asset to be liquidated, bartered, disposed of? These arequestions that belong at the very center of our political dialogue.

We hope that this report will expand public knowledge of the federal land exchange programand encourage citizens to become involved in this important issue. Moreover, we hope thatmore Americans will begin to speak out about the importance of protecting our commons, thepublic lands.


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IntroductionThe federal government is annually trading away an average of 150,00 acres ofpublic land valued at $130 million. In recent years, public-private land exchangeshave become gigantic, with some deals exceeding 50,000 acres and $100 million.4

The federal and state governments conduct land swaps which add open space,greenbelts, or rare old-growth forest to the public domain. Other land exchangestake ancient forest outof the public domain and give it to timber corporations, inexchange for lands those corporations have already clearcut.

Sometimes small inholdings (pockets of private land) within the national forestsare eliminated by trading them for less valuable parcels of public lands else-where. The biggest inholdings in the national forests are the checkerboards stillheld by the corporate heirs of nineteenth-century land grant railroads. Onelegacy of the land grant policy is todays largest land exchangesand hugelosses to the public treasury and the public domain. Other land exchangesinvolve developers trading parcels of real estate in order to acquire public lands

on the edge of a town, where prime development potential will bring the devel-opers huge profits at public expense.

What is at stake in these land trades is no less than the public treasury, theirreplaceable public domain, increasingly rare wild habitats and their dependentspecies, water in arid places, the scope and pace and kind of development ofrural areas, and the integrity of the political system.

The law governing land trades states that public-private land exchanges mustbe of equal value, but all too often the appraisal process is manipulated andhidden from public scrutiny. The law states that it is the policy of the federalgovernment to retain the public lands unless the disposal of specific lands is

consistent with the agencys land use plans. Yet as a nation, we (and conse-quently our public lands agencies) have no comprehensive program for theexchange, acquisition, and disposal of public lands. The result is that privateproponents and third-party facilitators with much to gain are running the show.

This report will discuss the history and law of land exchanges. It will present anoverview of recent trends and detail several case studies which illustrate theproblems created by land exchanges. The report will conclude with recommen-dations for the reform of public lands policies, and point toward some practicaltools that can be used by public lands activists and concerned citizens.

It is hoped that readers of this report will gain a greater understanding of somecritical elements of public lands history and policy, come to appreciate some ofthe complex issues at stake, and gain the desire and confidence to participatein land use actions that are affecting communities across the nation.


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Overview of Land Exchange History And Recent Trends

Disposing of the Public Domain

The public domainis a generic term for the vast areas of land in the UnitedStates that still belong to the public as a whole. Public land policies were domi-nated by acquisitionthrough the mid-nineteenth century, by disposalthrough

the early twentieth century, and have reflected conflicting mandates to bothexploit and protect the land and its resources. In the modern era, this conflictcontinues in the simultaneous acquisition and disposal of public lands.

Most of the public domain was acquired by the United States in the nineteenthcentury through war, treaty, and purchase from Native Americans, variousEuropean powers, and Mexico. Soon after the American Revolution, the federalgovernment began transferring much of this domain into private ownership.The original purpose of public lands disposal was to distribute lands to indi-viduals and to facilitate the development of the nation.

Major events in the transfer of public

lands to private hands included thefollowing:

The Land Act of 1796 autho-rized public auctions of federalland at a minimum price of $2per acre.

The General Land Office wascreated in 1812 to administerthe disposal of public lands.5

By 1820, Congress hadpassed 24 acts granting to set-

tler-squatters the right of preemption, allowing them to buy land withoutcompetitive bidding.6

The 1841 General Preemption Act authorized settlers to claim 160 acres.

A series of railroad land grants between 1850 and 1870 allowed severaldozen railroads to sell public lands in order to raise capital to build thenations railroad and telegraph systems.

U.S. President Pierce withdrew 31 million acres from entry in 1853.

The 1854 Graduation Act lowered the price of unclaimed lands.

The 1862 Homestead Act authorized settlers to claim 160 acres of any landsubject to preemption, and later to any unsurveyed land. The homesteadwas free for a filing fee, but title was not transferred until the land had beensettled and cultivated for five years.

The General Mining Law of 1872 allowed anyone to file a mineral claim onpublic lands and receive a patent to the land for $5 per acre or less. Underthis law more than three million acres of federal land have been patented.

Chapter 1

Guthrie, Oklahoma

land office in April

1889, preparing to

record the claims of

100,000 white

settlers rushing to

acquire land in Indian

Territory. Credit:

University of Okla-

homa Library.


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The Desert Lands Act of 1877 allowed entry of 640 acres for 25cents per acre; title was transferred upon proof of irrigation.

The Timber Culture Act of 1872 gave settlers 40 acre tracts ifthey would plant trees.

The Timber and Stone Act of 1878 allowed claims of landchiefly valuable for timber or stone for $2.50 per acre.

The Timber Cutting Act of 1878 authorized timber cutting onunentered mining lands.

During President Clevelands administration, more than 81million acres were (at least temporarily) restored to thepublic domain. The land had been seized, as General LandOffice Commissioner William Sparks put it, by illegal usurpa-tion, improvident grants, and fraudulent claims and entries.7

By the early twentieth century, the federal government had granted or soldmore than a billion acres, or 70 percent of the continental U.S. (Details are in

Appendix A).

52 percent had been sold in homestead or cash sales. 24 percent had been granted to the states for developing education and

transportation systems. 12 percent had been conditionally granted to railroads, slated eventually to

be sold at public auction. Other lands had been transferred through private land or war bounties, or

granted or sold under natural resource and reclamation laws.

The public lands laws succeeded in rapidly giving away the bulk of public lands,although not always to the public. Dubbed The Great Barbecue by historian

Vernon Parrington, much of the disposal of public lands was fraudulent, andresulted in the transfer of large portions of the public domain to corporaterather than private hands.8 By the end of the nineteenth century, widespreadabuse of the public lands laws, the end of the frontier, and the depletion oftimber and grazing lands led to the withdrawal of some federal lands to bereserved for the public domain. The land laws were being revised or repealed,notably with the General Revision Act of 1891.9

But it was not until almost a century later, with the passage of the 1976 FederalLand Policy and Management Act (FLPMA) that Congress officially closed thefrontier, declaring that it is the policy of the United States that the public landsbe retained in federal ownership, unless as a result of the land use planning

procedure provided for in this Act, it is determined that disposal of a particularparcel will serve the national interest.10

Land exchanges are but one facet of the ongoing conflict between public andprivate land ownership and management.11 Alexander Hamilton first proposedselling the public domain to generate public revenue.12 Evident from the be-ginning [of the countrys development] was the conflict between those whosought the Jeffersonian ideal of an agrarian society dominated by small, inde-pendent farmers having a natural right to uncultivated lands in the publicdomain, and those to whom land was a commodity to be developed to thehighest [most profitable] use as fast as possible for the benefit of the entrepre-neur [or speculator].13

In the nineteenth

century, state

immigration burea

used advertising to

attract potential

residents to the We

Credit: New York

Historical Society.


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To these two conflicting visions may be added a thirda commonwealth ofpublic lands protected for the long-term usufruct of all, even if it necessitatedpublic regulation of the use of private lands as well.

Public land, whether delivered by grant or by sale, came with explicit and im-plicit conditions. Railroads were required to sell their grant lands at publicauction. Parties filing mining claims on public lands are supposed to conductbona fide mining operations. Homesteaders had to reside on and farm the landthey claimed from the federal government. Even after land becomes private,ownership still entails certain duties and responsibilities.

Propertyrefers to rights and interests, not simply to material objects but tothe relations between individuals and society that govern access to materialobjects.14 So property is not a thingbut a socially-defined and evolvingbundle of rights, responsibilities, and values that can never be neatly defined ormade permanent. The interplay of public and private land has been a part ofour history and politics from the beginning, and will continue.15

The Purposes of Land Exchanges

Land exchanges have traditionally been undertaken to eliminate privateinholdings by returning them to the public domain, to protect watersheds orother sensitive lands, and to serve other genuine public interest purposes. In aspeech in 1998, the director of the U.S. Bureau of Land Management providedan explanation:

[L]and exchanges enable the BLM to change the checkerboard pat-tern of federal, state and privately owned lands in the West into consoli-dated areas that are more easily managed. This decreases the costs ofmanaging the lands and increases the efficiency with which they aremanaged... [They] allow the BLM to acquire the kind of land that is

suited to public ownership: land with high conservation values as habitatfor wildlife including threatened or endangered species; land that offersrecreational opportunities for the public; or land containing sensitiveriparian areas that are critical to the health of streams, rivers and entirewatersheds. In turn, states, counties or private developers can obtainland that is better suited for local management or that will serve thedevelopment or expansion needs of growing communities16

Eliminating Inholdings

Inholdings affect public lands in several ways. Conflicts between inholders and

public agencies are common, particularly where the private owners managetheir inholdings in ways that are incompatible with management on adjacentpublic lands. For instance, clearcutting or mining on private lands may affectwater quality or soil stability on neighboring public lands.

The exact acreage of inholdings within the public lands is unknown, but privatelands interspersed with public lands are recognized as a significant problem.


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There are currently more than 50 million acres of privately-owned landinside U.S. national parks and forests.17

In 1987, the Forest Service estimated that 39 million acres within nationalforests17 percent of the totalwere private inholdings.Nearly half of theland within Eastern National Forests were within non-federal ownership.18

In 1989, ten percent of the public land within the national forests lackedaccess due to private inholdings. The U.S. Bureau of Land Management(BLM) had 25 million acres without public access, including 60 percent ofits land in Montana.19

Designated Wilderness Areas are not free of inholdings. There are 400,000acres of inholdings within designated Wilderness areas within the NationalForests.20

Of the 418 units of designated Wilderness in the West, 111 have inholdings.Ninety of those are managed by the Forest Service, 11 by the Park Service,and 10 by the BLM.21

The 84 million acres in the National Park system include six million acres ofprivate inholdings. In the past decade, as the park system has grown,inholdings have increased by more than a million and a half acres.22

As inevitable conflicts arise between public lands and inholdings, land ex-changes are undertaken as a means of eliminating these conflicts.

Protecting Sensitive Lands

As discussed earlier, by the end of the nineteenth century, the federal govern-ment was actively withdrawing or recovering land for the permanent public

domain. Withdrawals included forest reserves, which became the nationalforest system, national parks, and wildlife refuges. The bulk of this land waswithdrawn by the early twentieth century, but federal land acquisition contin-ues, as shown in this table covering the last three decades:

Table 1. Land Acquired for Public Ownership, 1964-199423

FS BLM F&WS NPS TotalsPurchase 1,479,300 297,100 1,998,200 1,303,300 5,077,900Exchange 2,179,600 724,400 256,600 90,700 3,251,300Donation 522,300 14,600 586,400 631,700 1,755,000

Condemed 105,100 35,800 35,000 358,800 534,700Other - - - 242,500 242,500Total 4,286,300 1,071,900 2,876,200 2,627,000 10,861,400

Increasingly, state and local governments are also acquiring private lands topreserve them as open space and to protect public resources.


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The Law

Laws governing land exchanges have evolved from the interplay of public landpolicies regarding acquisition and disposal. Land exchanges are arranged inorder to exploit and protect public and private land resources and values. Landswaps are constrained by the requirements of property law, environmental law,administrative procedure, the laws providing for public participation, and thelaws governing freedom of information and privacy. In addition, ad hoc policieshave been created to deal with specific issues arising from land trades.

The public laws affecting land exchanges range from the General Exchange Act,which gives the Department of Agriculture the authority to make land trades, todetailed administrative procedures and appraisal guidelines in agency hand-books, to broader laws such as the National Environmental Policy Act and theEndangered Species Act, with which exchanges must comply. These laws andregulations are detailed in Appendix B.

There has never been a comprehensive examination of land exchange policy.The closest thing to such a review was the general review of public land lawundertaken by the Public Land Law Review Commission (PLLRC) in the 1960s.

The PLLRC was created as part of the compromise required to pass the 1964Wilderness Act. Its mandate was to review the nations public lands laws and torecommend policies for future land disposition and management.

Numerous reports resulted, including Paul Gates and Robert Swensons Historyof Public Land Law Development. In 1970, the PLLRC released its final report,One Third of the Nations Land: A Report to the President and to the Congressby the Public Land Law Review Commission. There were several recommenda-tions that would affect land exchange policy and processes, including thegeneral recommendation that land acquisition and exchange procedures bemade more uniform. Eventually, this and other recommendations were codifiedin the FLPMA and the land exchange regulations promulgated by the Depart-

ments of the Interior and Agriculture (see Appendix C).

American public lands policy has always alternated between protection andexploitation, acquisition and disposal, and the Commissions recommendationsreflected the ambivalence of these conflicting mandates.24 Some of theserecommendations were implemented through the FLPMA and the Federal LandExchange Facilitation Act (FLEFA), but not all of the PLLRCs recommendationscould be implemented.25

The Federal Land Exchange Facilitation Act (FLEFA)

In keeping with Americas ideal that the land and its resources can be all things to allpeople, FLEFA declared that land exchanges were an important tool for consolidatingfederal, state and private holdings of land and of mineral and timber holdings for morelogical and efficient management, for protecting fish and wildlife habitat and aestheticvalues, for enhancing recreation opportunities, for expanding communities, and forpromoting multiple-use values.

The purpose of the Act was to facilitate and expedite land exchanges by providingmore uniform rules and regulations, and by establishing procedures and guidelinesfor the resolution of appraisal disputes through arbitration and bargaining. The Actalso appropriated up to $4,000,000 per year for the ten years 1989-1998 for theconsideration, processing, and consummation of land exchanges.26

American public

lands policy has

always alter-

nated betweenprotection and

exploitation,

acquisition and

disposal.


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Despite widespread support for land exchange reform, FLEFA sparked debate.27

Some feared it would result in the overuse of land trades as a tool for landacquisition. The Chairman of the U.S. House Public Lands Subcommittee, JohnSeiberling (D-OH), noted that the bill is not premised on any idea that ex-changes can be considered an adequate substitute for federal land purchasesfor conservation.

Representative Ron Marlenee (R-MT) argued that the bill intended to bypassCongressional budget and appropriations processes by using federal land topay for the administrative costs of exchanges, in effect, giving away or sellingoff federal lands to a vested few, those who are involved in the exchange,rather than identifying land and opening it up to sale to the general public.28

Representative Manuel Luhan (R-NM) (who would soon be appointed Secretaryof the Interior by George Bush) supported the FLEFA legislation and saw landexchanges as a way to resolve problems with federal ownership. Lujan criti-cized Congress, which he claimed has complicated the [land exchange] pro-cess by requiring the agencies to follow several environmental and public no-tice and comment procedures.29

Recent Trends

In recent years, new purposes have been invented for land exchanges, includ-ing consolidating endangered species habitat, facilitating urban expansion,expansion of mining or grazing concerns, checkerboard consolidation, acquisi-tion of environmentally sensitive areas, and prevention of development. Manyexchanges are being initiated by private parties rather than by agencies. Theyoften involve numerous private and public parties trading dozens of parcelsover many years. Such complexity has inspired the use of outside facilitators inthe form of real estate companies and non-profit land trusts.

Land exchanges are also getting larger. Traditionally used to eliminate isolatedinholdings of a few acres, whole watersheds and landscapes are now beingtraded, and regional exchanges of a million or more acres have been proposed.Larger exchanges are redefining the land trade programs by drawing increasingpublic interest and controversy and by transforming what were once arcane realestate transactions into huge land deals of regional impact and significance.

More and Bigger Land Deals

The total number and average size of land exchanges remained relatively con-stant between 1987 and 1996. In those years, the largest transfer of national

forest lands in a single exchange was 17,000 acres traded to the City of Seattlein its Cedar River watershed.30 Since then, however, exchanges of much greatersizeand greater environmental and financial concernhave taken place. Some ofthese are listed in the following table.

Whole watershe

and landscapes

are now being

traded and

exchanges of a

million or more

acres have been

proposed.


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Table 2. Largest Public-Private Land Exchanges31

Since 1996, the value and size of land exchanges has increased dramaticallydue to several large trades. In 1997, one exchange with Weyerhaeuser, theArkansas-Oklahoma exchange, represented more than half of the acreage andalmost half of the total value of all Forest Service land exchanges that year. In1998, another Forest Service-Weyerhaeuser trade, the Huckleberry Exchange,

comprised a third of the total acreage, and, again, almost half of the total valueof all Forest Service trades for the year.

From 1986 to 1998, 918,822 acres of federal land were traded for 1,366,686acres of private land.32 The vast majority of these trades were enacted by theForest Service and the Bureau of Land Management.

Table 3. U.S. Forest Service Land Exchanges, 1987-199833

Proponent Name Year State

Acres toPublic

Acres toPrivate

TotalAcreage

Appraised Valueof Each Side

Weyerhaeuser Ouachita 1997 AR, LA 156,341 47,486 203,827 $106,000,000

Crown Pacific Crown Pacific 1999 OR 38,745 33,000 71,745 $80,000,000

Plum Creek I-90 1999 WA 31,705 11,556 43,261 $53,600,000

Big Sky Lumber Gallatin I 1993 MT 37,752 16,278 54,030 ?

Big Sky Lumber Gallatin II 1998 MT 54,000 29,000 83,000 ?

Plum Creek Checkerboard 1997 MT 22,672 27,371 50,043 $50,800,000

Natl Grasslands Ltd Medicine Bow 1997 19,068 29,468 48,536 $2,082,379

Weyerhaeuser Huckleberry 1998 WA 30,321 4,362 34,683 $45,500,000

Del Webb Del Webb 1999 CA, NV 5,380 4,756 10,136 $52,000,000

Year NumberAcreageGained

AcreageLost

TotalValue

AverageValue

AverageSize

1987 141 112,680 70,818 $179,573,370 $1,273,570 1,301

1988 142 78,767 56,330 $68,264,375 $480,735 951

1989 117 90,333 72,480 $39,793,419 $340,115 1,392

1990 122 80,484 43,292 $47,612,070 $390,263 1,015

1991 126 55,565 36,130 $60,976,021 $483,937 728

1992 99 69,329 49,235 $53,385,769 $539,250 1,198

1993 100 67,662 44,744 $29,635,985 $296,360 1,124

1994 97 39,674 37,728 $50,104,876 $516,545 798

1995 71 42,381 36,211 $36,076,423 $508,119 1,1071996 86 68,067 59,987 $80,913,168 $940,851 1,489

1997 96 242,126 133,875 $219,801,282 $2,289,597 3,917

1998 91 69,390 32,233 $97,620,702 $1,072,755 1,117

Totals 1,288 1,016,458 673,063 $963,757,460 $748,259 1,312


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The BLM annually completes 60 to 70 land exchanges involving about 150,000acres of land valued at $50 million.34

Table 4. BLM Land Exchanges, 1990-199735

The annual average value of Forest Service land exchanges in the years 1987-1995 was $537,000. In 1996 a series of giant land swaps began, raising theaverage value of a land trade in 1996 to $941,000, then to more than $2million in 1997, and more than $1 million in 1998. Public-private land ex-changes valued at more than $10 million for each side include the following.

Table 5. Land Exchanges Exceeding $10 Million in Value36

A list of all Forest Service land exchanges valued at more than $2 million isgiven in Appendix D.

State exchanges Private exchanges

Year Acres Acres Acres Acres

Acquired Conveyed Acquired Conveyed

1990 1,282 343 94,540 77,2241991 114,811 62,827 106,159 45,177

1992 - 14,186 61,570 120,434

1993 7,635 6,909 110,544 117,809

1994 2,748 4,349 97,847 21,253

1995 41 40 97,447 100,561

1996 49,614 52,314 42,947 99,992

1997 102 40 84,127 99,453

Totals 176,233 141,008 695,181 681,903

Annual averages 22,029 17,626 86,898 85,238

Proponent Name Year StateAcres toPublic

Acres toPrivate

TotalAcreage

AppraisedValue of Each Side

Weyerhaeuser Arkansas-Oklahoma

1997 AR,OK

156,341 47,486 203,827 $106,000,000

Plum Creek Checkerboard 1997 MT 22,672 27,371 50,043 $50,800,000

Weyerhaeuser Huckleberry 1998 WA 30,321 4,362 34,683 $45,500,000

Plum Creek I-90 1999 WA 50,000 15,800 65,800 $79,000,000

Crown Pacific Crown Pacific 1999 OR 38,745 33,000 71,745 $80,000,000

Big Sky Lumber Gallatin I 1993 MT 37,752 16,278 54,030 ?

Big Sky Lumber Gallatin II 1998 MT 54,000 29,000 83,000 ?

Galena R Toiyabe 1996 NV 3,864 - 3,864 $18,439,000

Goldbelt Inc. Tongass 1994 AK 1,166 2,592 3,758 $15,255,000

Sierra Pacific Industries Tahoe 1997 CA 10,861 3,210 14,071 $12,740,000

Plum Creek St Joe 1997 ID 6,943 4,496 11,439 $11,172,000


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Increasing Complexity

As recent data show, what was once the simple trading of one discrete parcelof land for another has evolved into a variety of more complex transactions.

In pooled exchanges, an agreement is made to trade multiple parcels of publicand private land in several transactions over time. Multiple-level exchangesmake values more difficult to track. For example, the phases in a pooled ex-

change may take years to complete, during which time the values of the vari-ous parcels may change significantly. In some cases, the private party mayreceive a net gain in value in one phase, to be reconciled in future transactions.Pooling agreements are not allowed under Forest Service regulations.

Third party exchangesare those in which an organization, either for-profit ornon-profit, represents one or more private landowners in a trade with a publiclands agency. Third parties usually acquire an option to buy a private parcelwith the intent to trade the property into public ownership; occasionally theorganization purchases the land and therefore becomes the proponent in theexchange.

New Purposes Drive Exchanges

Increasingly, land exchanges are used to achieve a wide variety of public andprivate goals. They are seen as a way to expand urban areas and save endan-gered species at the same time. Land swaps have been used to prevent miningin sensitive areas.

They have been pursued to create a buffer around the areas where bombs arestored at an Air Force base, and conversely to create an area for Air Force targetpractice using uranium bullets. One federal-state land exchange occurred in

order to provide the state, at no cost, a suitable site for a new veterans homewithin the deadline imposed for receiving matching federal funds.

Land trades are also pursued for private purposes. Exchanges have been usedto enable mine owners to expand their operations. Timber corporations haveswapped cut-over land for standing timber. Exchanges have been used toestablish ski resorts within or adjacent to national forest land, or to privatizeland and expand housing and facilities at existing resorts inside public lands.

Former BLM Director Pat Shea summarized the dilemma inherent in land tradeswhen he stated that land exchanges are one of the tools with which we ad-dress that obvious paradox: how to preserve the values that people find so

appealing and yet accommodate the need for growth and development ofWestern Communities.37

In spite (or perhaps because) of such high expectations, land exchanges oftendo not achieve their goals. Failure often results from flaws in the exchangeprocess, but the fundamental problem lies in conflicting public-private goals.

Ultimately, land is finite and we cannot create more. It is tempting to see landexchanges as a way to rearrange our land uses in order to be able to do any-thing and everything, but the reliance on these transactions to delay and relo-cate our land management problems has reached a crisis.


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Recommendations of the Western Land Exchange Project

The Western Land Exchange Project has reviewed scores of land transactionsthroughout the United States, and works closely with citizens and public inter-est groups concerned with public land policies. Until such time as the publicsupport and political will exist to replace land exchange programs with outrightpurchase, the Project recommends the following reforms.

Open land value information to public scrutiny.

The ubiquitous problems with the appraisals associated with land exchangesand the enormous public skepticism around their secrecy make it essential thatland appraisal data be open to the public as early in the process as practicable.

Because the main justification for withholding these data is to protect theprivacy of the public land trader, private parties to land exchanges must volun-teer to the release of this information. This agreement should be part of theAgreement to Initiate, the first document signed by both parties when thetransaction begins. The appraisal reports should be released to the public

simultaneously with the draft NEPA documents (i.e., environmental assessmentor draft environmental impact statement).

Eliminate third-party facilitators.

Private parties or their non-profit representatives should not be the initiatorsof land exchanges. If there are public values to be obtained, they should bepursued in a systematic and open manner and initiated by the public landsagencies, not private parties.

Government audits and media investigations have shown that third-party in-

volvement tends to skew the land exchange process in favor of private partiesand facilitators. Facilitated exchanges have become a profitable business forreal estate agents and political deal-makers such as Clearwater Land Exchangeand American Land Conservancy. There is some concern that, where a facilita-tor such as CLE is set to convey lands to outside parties, legal protection of thepublic interest would be more difficult. In cases where facilitated land tradesare challenged in court, the courts may not have jurisdiction over these outsideparties, but only over government and the facilitators themselves.

Eliminate intrastate legislated land exchanges.

Explicitly or implicitly, legislation can exempt land exchanges from NEPA analy-sis, reduce agency discretion to proceed with an exchange, and suspend ormoot the rights of citizens to file administrative appeals and obtain judicialreview. Legislation is often used to implement politically-motivated exchangesthat are not in the publics interest.

There is no reason to implement an intrastate land exchange through Congress;interstate land exchanges should be analyzed and proposed through the ad-ministrative process and brought to Congress for passage only after that pro-cess is complete.


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Enact true policy reform to protect public lands.

Even as the Forest Service and BLM work to deal with procedural problems andmalfeasance in land trades, meaningful reform will not occur without substan-tial changes in policy. Procedural improvements alone will not address suchthings as the loss of old-growth forest, acquisition of corporate roads, or theconversion of desert habitat to retirement communities and golf courses.

In 1997, the Western Land Exchange Project and several other environmentalorganizations formulated a set of Land Exchange Principles intended to providea framework for more protective land trade policies.287 The Principles arereiterated below, with commentary:

Land exchanges shall not violate the public interest. The public interest in-cludes, but is not limited to, preservation of water quality and water supply;the health and abundance of fish and wildlife; biological integrity of ecosys-tems; preservation of late-successional and old-growth forests; preservationof roadless areas and critical habitat, and public safety.

No late-successional or old-growth forest shall be transferred from the public

domain.

The government has at least ostensibly recognized that matureand old-growth forests are imperiled, but has no policy forbiddingthe exchange of these lands to private interests. In fact, in theNorthwest, lands that could not be logged under the ForestServices Northwest Forest Plan can be traded to timber corpora-tions, which will of course log them.

No land comprising critical habitat shall be transferred from the public domain.

No roadless areas shall be transferred from the public domain.

Under current law, even lands that are in Inventoried RoadlessAreas and candidates for protection can be traded out of publicownership.

Land exchanges shall not create or perpetuate a split estate; acquisitions bypublic agencies shall include all surface and sub-surface rights.

Both long-standing government policy and the land exchangeregulations dictate that the government must obtain the full es-tatei.e., both surface and subsurface rightsin any exchange.The agencies often violate this policy, creating a dangerous situa-tion for public lands. For example, if a private party retains mineralrights on land it trades to the government, the private owner canexploit these rights, damaging the public lands. Alternatively, theprivate owner can threatento mine in the area and leverage aland exchange with the government.

Land exchanges shall not promote the conversion of natural ecosystems.

As the amount of land comprising native ecosystems dwindles, it iscritical not to trade these lands away to be developed or exploited.


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Land exchanges shall recognize the special public interest that inheres inlands derived from the railroad land grants. Where this special interest hasnot been extinguished, it shall operate to limit private activity on these lands.In addition, it shall limit the value of the land for land exchange purposes.

Many believe that the corporate retention of railroad grant landsamounts to outright theft. The Western Land Exchange Project hascalled land exchanges involving the land grant heirs the SecondGreat Land Grab, and suggests that the government revest topublic ownership land grant lands that are wrongfully held, andcease exchanging public lands for the railroad checkerboards.

One area in which the land grant statutes were violated is withinthe Washington, Idaho, and Montana holdings derived from theNorthern Pacific Land Grant and now held by Weyerhaeuser, PlumCreek Timber, and other resource corporations. The Project hassuggested that if land exchanges for these checkerboard lands areto continue, the value of the private lands should be limited to$2.50 and acrethe amount for which the railroad was orderedto sell the land to settlers.

Land exchanges shall respect the rights and interests of Indian tribes:

Exchanges shall never violate treaty rights. Tribal interests shall be fully analyzed in environmental analyses and

planning documents. Where land exchanges affect tribal property or rights, the affected

tribe must be treated as an equal party to the exchange. No irreplaceable cultural resources shall be transferred out of the

public domain.

Tribal and treaty rights are regularly violated in land trades, andcultural resources are often traded to private parties that will not

protect them. The Ninth Circuit Court found in its Huckleberryland exchange decision (Muckleshoot Indian Tribe v. U.S. ForestService) that the Forest Service had to attach real protections toculturally important lands it planned to trade to Weyerhaeuser.

Land exchanges shall involve equal value. This requires that:

Valuation methodology shall be fully disclosed in planning documents. Public costs of restoration from past damage on corporate lands

exchanged to the public shall be included in the valuation. Public costs associated with future damage on lands exchanged to

corporations shall be included in the valuation.

Corporate subsidies in the form of tax breaks shall be included in thevaluation.

The Western Land Exchange Project has since proposed that landvalues be released to the public early in the decision process toallow for public scrutiny.


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Federal agencies shall impose federal management standards on public landsexchanged to any entity.

These standards may be imposed via deed restrictions that limitthe exploitation allowed on lands traded out of public ownership.

Non-exchange alternatives such as purchase or regulation shall be consid-ered and included in the planning documents.

This Principle has been upheld by the Ninth Circuit Court inMuckleshoot Indian Tribe v. U.S. Forest Service.

Programmatic analysis shall be conducted of the cumulative effects of mul-tiple land exchanges on all impacted ecosystems.

Replace exchanges with purchase.

In the past 35 years, more than five million acres have been purchased for thepublic, compared to three million acres acquired by exchange. The problemsinherent in the exchange process are a clear indication that purchase is the

most appropriate and least risky way to bring lands into public ownership.

The purchase of lands for the public domain is authorized by FLPMA, but themajor law facilitating the purchase of lands is the Land and Water ConservationFund Act of 1964.

Amended in 1968 to receive additional monies from Outer Continental Shelf oiland gas receipts, the Land and Water Conservation Fund is an underutilizedtool to acquire and protect public lands.

Between 1987 and 1997, yearly LWCF appropriations averaged $233million. 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 [1999], Congress has refusedto spend the money on the projects for which it was earmarked.288

In recent years, more than half of the $900 million generated each year wasused not for land acquisition but for Congressional pet projects and deficitreduction.

A disproportionate amount of the LWCF money goes to high-profile crisesand to the powerful corporations which help create those crises. Of $700million in LWCF funds appropriated for 1998, almost half went to two corpora-tionsMaxxams Pacific Lumber Company, to save the redwoods of the Head-waters forest, and Crown Butte Mines, to stop the company from using cya-nide to mine for gold next to Yellowstone National Park.

The public lands agencies often justify controversial land trades by citing theunlikelihood of being able to get LWCF money to purchase lands, yet this atti-tude has turned into a self-fulfilling prophecy that only makes land trades moreinevitable. It also belies the fact that more land is acquired through purchasethan through exchange (see Table 1).


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An MSNBC report on the issue stated the following:

Congress has been slow to approve purchases even though it has morethan $5 billion available through a Land and Water Conservation Fund.The 1965 fund allows some $900 million a year to go towards acquisi-tions. Still, Congress has been reluctant to come up with money for landpurchases [I]n 1998 only $23 million was provided for national parkland acquisition, a tenth of what the National Park Service had sought.This summer the House and Senate approved about half of the $295million the Interior Department had sought for its land legacy pur-chases, including funds earmarked to buy private land in and adjacent tofederal parks.289

Purchase of public lands is opposed by ostensible fiscal conservatives whoare unwilling to spend money for land protection but apparently more thanwilling to tolerate multi-million dollar taxpayer losses through faulty land ex-change appraisals and corporate manipulation of the land swap process. Inmany cases these conservatives do not want to see any net gain in publiclands, or even protection of the existing commonwealth.

The 1998 LWCF appropriations were approved with the proviso that eachpurchase had to be approved by the chairmen of the Interior Appropriationscommittees, Senator Slade Gorton of Washington and Representative RalphRegula of Ohio.290

Gorton and others continued the political jockeying in 1999. House ResourcesCommittee Chairman Don Young (R-AK) tried to negotiate a bill which heclaimed would prevent unwarranted federal land acquisition by requiringCongressional approval of all federal land purchases, and would offer incen-tives for additional off-shore oil drilling.

Representative George Millers (D-CA) Resources 2000 bill countered with full

permanent funding for the LWCF without the environmentally damaging provi-sions. An amendment was offered by Representative John Doolittle (R-CA)which would require an annual inventory of federal lands for which there is nodemonstrated compelling need which might then be used for trade or sale tooffset new federal land acquisitions.291 As of this writing (early January 1999),no resolution had yet been reached on LWCF appropriations for FY 2000.

If fully appropriated, the LWCF could more than accommodate land acquisi-tions that are now being accomplished through exchange. For example, $97million from the Fund could have replaced every Forest Service exchange madein 1998and kept in public ownership about 27,000 acres traded to privateinterests. Land values in the Las Vegas Valley have likely driven up the BLMs

yearly total in the last several years. Nevertheless, fully appropriated LWCFfunds could also easily replace that agencys exchange program, as well.292

Land and Water

ConservationFund money

could easily

replace the land

exchange pro-

grams.


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Use eminent domain to condemn lands deliberately threatened.

Many land trades are prompted by the threat of development on inholdingswithin public lands or on checkerboard lands interspersed with public hold-ings. The government is agreeing to do land exchanges with private parties whodeclare themselves unwilling sellersin other words, unwilling to sell land tothe government but determined to make a trade.

The Right of Eminent Domain (40 U.S.C. 257) states that the government maycondemn land needed for public purposes. This act does not itself confercondemnation authority instead, condemnation can occur only where theacquisition is otherwiseauthorized by statute, e.g., the Weeks Act, which au-thorizes acquisition in watersheds for the regulation of water flow or theproduction of timber. Property owners whose land is condemned for publicpurposes are entitled to receive fair market value for their property.

FLPMA gives the Departments of the Interior and Agriculture authority to pur-sue acquisition of non-federal land by purchase, exchange, donation, or emi-nent domain, but by eminent domain only if necessary to secure access topublic lands, and then only if the lands so acquired are confined to as narrow a

corridor as is necessary to serve such purpose.293

The Fifth Amendment places three conditions on the use of eminent domain.There must be due process of law, a show of public use or necessity, and justcompensation.294

But due process and other protections for property owners were never in-tended to facilitate the fleecing of the public treasury. As U.S. Supreme CourtJustice Hugo Black wrote in 1960, the takings clause of the Fifth Amendmentwas designed to bar Government from forcing some people alone to bearpublic burdens which, in all fairness and justice, should be borne by the publicas a whole.295 An individual should not be rewarded for acquiring inholdings or

other property and threatening development under cover of his constitutionalprotections. Instead, the property should be condemned and the owner com-pensated at fair market value.

In 1992, the Department of Justice formulated the Uniform Appraisal Standardsfor Federal Land Acquisition. The government created these standards partly todeal with the possibility that citizens would sue the government for takings incases where land is condemned under the right of eminent domain. The stan-dards are meant to ensure that citizens whose land is acquired by the govern-ment are paid fair market value as required under the Fifth Amendment.

Table 1 shows that of the nearly eleven million acres of private lands acquired

by federal agencies between 1964 and 1994, 47 percent was purchased, 30percent was acquired by exchange, 16 percent was acquired by donation, andonly five percent was acquired by condemnation. Of the land obtained throughcondemnation, two-thirds was acquired by the Park Service.


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There is a history of the government acquiring partial interests in a propertywithout having to pay the price of the entire property. One example of a less-than fee-title acquisition is along the Mississippi River, where Wisconsin prop-erty owners were compensated for the value of scenic easements, rather thanthe full value of their property, which they can still use for other purposes.296

Private owners adjacent to public lands could be forbidden to develop proper-ties in ways which would adversely affect certain public lands values withouthaving to be bought or traded out altogether.

Issue a moratorium on land exchangesuntil a national programmatic re-view of land exchange law and policy can be performed.

In September 1998, the Western Land Exchange Project (WLXP) requested thatForest Service Chief Mike Dombeck issue a moratorium on land exchangeswithin his agency. The FS rejected that request, stating we believe a moreappropriate action would be strengthening land exchange policies and proce-dures to improve our use of this tool, and noting that the FS and BLM wereforming national land exchange review teams to monitor and recommendimprovements.297

Nevertheless, WLXP and other groups have called for a moratorium on landexchanges pending reforms that include improved public notification and in-volvement; release of all appraisal data to the public; a ban on the trade of allold-growth forests; and a prohibition on any net increase to the public in log-ging road miles. The WLXP has also requested that the government conduct aprogrammatic review of land exchange policy, which it has so far declined to do.


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For More Information & To Get InvolvedWestern Land Exchange Project

PO Box 95545, Seattle WA 98145-2545http://www.westlx.org

The Western Land Exchange Project (WLXP) provides research, outreach, and

advocacy for federal land exchange reform. Join the WLXP for $25 and receivethe Land Exchange Updatefor news and opportunities for involvement.

The WLXP CitizensGuide to Federal Land Exchangeshas extensive informa-tion on the opportunities for participating in the public processes involvedin land exchanges. The Guide is posted on the WLXP website atwww.westlx.org

For reprints ofTrading Away the West, a special report on land exchangespublished by the Seattle Times, mail a request with $2 for postage andhandling to the Seattle Times, PO Box 70, Seattle WA 98111-0070. Theseries is also posted on the Seattle Timeswebsite at http://

www.seattletimes.com/special/landswap/

Get on the mailing list for your nearest National Forest or BLM district toreceive notice of upcoming land exchanges.

Get involved in the NEPA process, from scoping of issues to comments onenvironmental impact statements to appeals of decisions.

For information on existing and proposed laws, the Congressional Record,Senate and House Committees, and other information on federal legisla-tion, see THOMAS: Legislative Information on the Internet http://thomas.loc.gov/

Congressional Committees and Other Oversight Agencies

U.S. House Committee on Resources.Don Young (R-AK), Chairman. http://www.house.gov/resources/

U.S. House Committee on Resources, Subcommittee on Forests & ForestHealth. Helen Chenoweth-Hage (R-ID), Chairman. http://www.house.gov/resources/106cong/assign99.htm#forestsmem

U.S. House Committee on Appropriations, Subcommittee on Interior.Ralph Regula (R-OH), Chairman. Controls Land and Water ConservationFund. http://www.house.gov/appropriations/

U.S. Senate Committee on Energy And Natural Resources.Frank Murkowski (R-AK), Chairman. http://www.senate.gov/~energy/

U.S. Dept. of Agriculture Inspector General reports http://www.usda.gov/oig/

U.S. Dept. of Interior Inspector General reports http://www/oig.doi.gov/

Appendix E

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