Continued cartographic chaos, or a new paradigm in public land reconfiguration? The effect of new laws authorizing limited sales of public land.

• Author: Vaskov, Nicholas G.
• Position: Land exchanges

A recent report by the United States General Accounting Office stated that the federal government's primary means of public land reconfiguration, the land exchange, was so fraught with problems that it recommended Congress discontinue all land exchange programs. (1) At least one Congressional Representative, not apt to mince his words, stated that the Bureau of Land Management and the Forest Service, the two principal land management agencies, "flat got snookered" conducting exchanges. (2) His comments reflect an all too common perception that something is fundamentally wrong with the way the federal government conducts land reconfiguration.

Partially in response to such criticism, Congress has passed several pieces of legislation aimed at reforming the land reconfiguration process in recent years. The first was the Southern Nevada Public Land Management Act of 1998. (3) More recently, the Federal Land Transaction Facilitation Act of 2000 was signed into law. (4) Both Acts authorize the sale of public land and the retention of the proceeds by the land management agencies in order to purchase private land better suited for public conservation and protection. The two Acts differ remarkably in terms of scope and authority. In many ways the sale processes authorized by these Acts appear to solve or avoid many of the problems that have plagued the traditional land exchange process. Therefore, these laws are an important step in the evolution of western land reconfiguration. In other ways, these new laws fail to meet their statutory intent.

Part I of this note will examine how the land disposition laws of the nineteenth century resulted in a fragmented pattern of western land ownership. In addition, it will detail how the land exchange process became the solution. Part II will explore some of the problems and criticisms of the land exchange process, which have lead many to claim that the federal government gets "snookered" conducting land exchanges. Part III will survey the Southern Nevada Public Lands Management Act of 1998 and the Federal Land Transaction Facilitation Act of 2000. This note will compare and contrast the scope and authority of the two laws and point out each Act's relative strengths and weakness. Finally, this note will conclude by submitting that while the two Acts are clearly aimed at encouraging better public land management and reconfiguration, only the Southern Nevada Act will ultimately be successful.

1. FRAGMENTED WESTERN LAND OWNERSHIP AND THE ROLE OF THE LAND EXCHANGE

   As of 1998, the federal government owned more then 29 percent of the United States total landmass, some 654 million acres. (5) Often called the "public domain" or the "public lands," most of this land is concentrated in 12 western states. (6) But this represents only a fraction of what the federal government once owned. Beginning in mid-nineteenth century, the official policy of the United States was to dispose of the public lands in order to promote settlement and development of the West. To further this policy Congress gave away public lands through various provisions such as the Homestead Act of 1862 and the Desert Lands Act of 1877. (7) To increase settlement, Congress encouraged the building of railroads throughout the west by passing the Act of July 1, 1862, which helped finance the Union Pacific and Central Pacific railroads. (8) The Act granted the railroads alternating one square mile sections (640 acres) of public lands along the route. (9) All told, the federal government granted over 130 million acres of public land to the railroads in this alternating pattern. (10) The railroad grants resulted in the "checkerboard problem," a pattern of ownership whereby neither a private owner nor the public can gain access to its property without encroaching on the others land. (11) Adding to this intermingled pattern of western land ownership were an array of grants made to the states in order to promote public education. (12) Western land ownership was further fragmented by the Mining Act of 1872, which allowed any qualified citizen to file a mineral claim on public lands that they selected and receive a patent giving title to the land. (13) These and other land disposal laws succeeded in rapidly transferring ownership of a large bulk of land to private citizens and corporations. (14) By the early twentieth century, the federal government had disposed of more than 70 percent of the continental U.S. through these and other haphazard and uncoordinated land disposal laws. (15)

   The historical consequence of these politically and economically motivated land disposal laws has been a severely fragmented pattern of ownership. (16) In some areas the fragmentation is so extensive that the federal government owns and manages the land in name only. (17) For instance, in Pueblo County, Colorado, a total of 15,820 acres of Bureau of Land Management ("BLM") public land is divided into 84 parcels having a median size of only 40 acres. (18) The Forest Service estimates that there are nearly 460,000 acres of inholdings (pockets of private land surrounded by public land) within its wilderness areas and national forests. As one noted author put it, "[t]he land ownership maps of the western states resemble general cartographic chaos." (19)

   This checkerboard pattern of ownership makes management of the public lands difficult and inefficient. Problems often arise when public land abuts privately owned land. This arrangement makes it difficult for the general public to gain access to the public lands for uses such as recreation.(20) Often, mining and timber harvesting by owners of private lands adjacent to public land are incompatible with public uses. (21) Widely dispersed tracts of public land make management of wildlife resources difficult and limit the availability of recreational opportunities. (22) Furthermore, because the costs of land management and conservation are high, and the funds currently being allocated are low, the BLM and the Forest Service are unable to economically and efficiently manage the lands for which they are responsible. (23)

   Land exchanges have long been the preferred method of both the Forest Service and the BLM to solve the problems that result from this fragmented pattern of ownership. From 1989 to 1999, the Forest Service conducted over 1,200 land exchanges with a total value of over $1 billion. (24) In the process, the Forest Service acquired a net total of around 600,000 acres. (25) At the same time, the BLM completed nearly 1,300 exchanges and acquired a net total of around 350,000 acres. (26) In recent years, the value and size of the land exchanges has increased substantially. Since 1996, there have been more then nine exchanges valued at over $10 million with a few of those being valued at more then $50 million. (27) By some estimates, the federal government is now trading more than $130 million worth of land annually. (28) In fact, exchanges are so common now that one critic stated that "land swaps are in vogue...." (29)

   At least part of the recent increased emphasis on land exchanges can be attributed to the policies of President Clinton's Administration and former Secretary of the Interior Bruce Babbitt. (30) The Clinton Administration's emphasis on land exchanges was seen as politically advantageous. On one hand, the former President could point to this aggressive land exchange policy as an indication of his firm commitment to conservation. On the other hand, by emphasizing exchanges and not outright purchases, the Clinton Administration was able to avoid being seen as intent on running roughshod over private property interests in the name of conservation. (31) Furthermore, the Clinton Administration began to view and use land exchanges for a much wider variety of purposes. (32) Exchanges, the Administration believed, could be utilized to protect endangered species habitat, to facilitate urban expansion, or in some instances limit urban expansion, and were especially useful for protecting environmentally sensitive lands. (33)

   Exchanges became the preferred method of public land reconfiguration due, in large part, to the lack of practicable alternatives. In theory, there should be a glut of federal funds earmarked for land acquisition due to the success of the Land and Water Conservation Fund. (34) The Land and Water Conservation Fund generates upwards of $900 million annually through federal leases of offshore oil and gas rights. (35) The monies in the fund are supposed to be used to purchase inholdings and other environmentally sensitive lands. In reality however, Congress has made a habit of raiding the Fund for other appropriations. (36) As a result, typically less then $200 million is allocated for land acquisition. (37) Most of that money is quickly spent purchasing inholdings within the nation's National Park System, As a result, any solution to the fragmentation problem involving the federal government entering into an aggressive policy of land acquisition has effectively been closed. (38)

   Congressional authority for public land reconfiguration comes from the Property Clause of the United States Constitution, which states that, "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting ... Property belonging to the United States." (39) One of the first statutes authoring land management agencies to engage in land exchanges was the Weeks Law of 1911. (40) The Weeks Law authorized the Secretary of Agriculture to exchange lands on behalf of the United States in order to protect navigable streams or to further the production of timber. (41) In doing so, the law set forth many of the land exchange restrictions seen in more contemporary exchange statutes. These include limiting the exchanges to lands within the same state, and requiring "equal value" and public notice. (42) Following the Weeks Law, was the General Exchange Act of 1922, which broadened the...