Carving Up the Commons

Congress & Our Public Lands

3 Janine Blaeloch 4
 Book Design by Hoffman Graphics
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© 2009 by the Western Lands Project

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

Blaeloch, Janine Claire, 1957-

Carving up the commons : Congress and our public lands / by Janine Blaeloch.
Includes bibliographic references.
1.Public lands—United States. 2. Environmental policy—West (U.S.)
3. Land use—Law and legislation—United States—Congresses.
4. Land tenure—Government policy—United States.
I. Blaeloch, Janine Claire, 1957- II. Western Lands Project. III. Title.
 3 Table of Contents 4
Acknowledgements . .......................................................................................... v
Foreword .............................................................................................................vi
Introduction ......................................................................................................vii

3 Chapter 1: The Past

The Origins of Our Public Lands.................................................................................................1
The Prototype: Railroads, Timber Barons, and the Public Lands.........................................2
The First Exchange, 1899: Rock and Ice for Timber ...............................................................3
The Second Exchange, 1982: Rock and Ash for Timber.........................................................6
The Third Exchange, 1997: Minerals, Cash and Credit...........................................................7
Pattern of Abuse..............................................................................................................................8

3 Chapter 2: The Process and its Pitfalls

Authority and Rationale for Land Exchanges and Conveyances..........................................9
The Agency Approach................................................................................................................ 10
The Congressional Approach.................................................................................................... 12
The Glide-Path through Congress............................................................................................ 12
Custom-Designed Bills............................................................................................................... 13
Obscure Provisions and Larger Implications......................................................................... 14
Helping Locals and Friends....................................................................................................... 16
Appropriations Bills.................................................................................................................... 18
Omnibus Bills............................................................................................................................... 20
No Harm Done............................................................................................................................. 21

3 Chapter 3: People
Land Deal Hall-of-Famers.......................................................................................................... 24
Jim Hansen: Bringing it Home for Utah.................................................................................. 24
Do it for the Kids— The Utah Schools Exchanges................................................................ 26
Funny Numbers............................................................................................................................ 28
Toxic Trade: The West Desert Land Exchange...................................................................... 29
Hansen’s Swan Song: Martin’s Cove......................................................................................... 33
Stretching Las Vegas................................................................................................................... 40
Compromised Protections......................................................................................................... 41
County-by-County Privatization.............................................................................................. 42
Sacred Cash Cow......................................................................................................................... 46
3 Chapter 4: Projects
Mount Wilson Observatory Preservation and Enhancement Act..................................... 48
Eastern Band of Cherokee Indians Land Exchange Act of 2003 . ..................................... 49
No Legal Authority...................................................................................................................... 51
Steens Mountain Land Exchange and Adjustments Act of 2002....................................... 54
The Apex Project, Nevada Land Transfer and Authorization Act of 1989 ..................... 56
The Federal-Utah State Trust Lands Consolidation Act of 2002....................................... 59
The White Paper.......................................................................................................................... 61
Do Over......................................................................................................................................... 63
95-Second Debate........................................................................................................................ 63
A Multilateral Scandal................................................................................................................ 64

3 Chapter 5: Pure Politics

“Consensus” Wilderness . .......................................................................................................... 67
Incentives to Compromise......................................................................................................... 68
Environmental Centrism............................................................................................................ 69
Steens Mountain Cooperative Management and Protection Act of 2000 ...................... 70
Clark Co. Conservation of Public Land & Natural Resources Act of 2002...................... 73
Central Idaho Economic Development and Recreation Act............................................... 73
Washington County Growth and Conservation Act, S. 2834............................................. 75
Owyhee Initiative /Owyhee Public Land Management Act of 2008 ............................... 78
Buying Wilderness....................................................................................................................... 82
The end of quid pro quo? The 2009 Omnibus........................................................................ 85

3 Appendices
Appendix A: A Hill Staffer’s Perspective on Legislated Land Deals.......................87

Appendix B: Anatomy of a Land Bill ..........................................................................93

Appendix C: Taking Action ...................................................................................... 101

Appendix D: Laws Applicable to Agencies ............................................................. 104

 3 Chapter 1: The Past 4
The Origins of Our Public Lands
Most of the public domain was acquired by the United States in the nineteenth
century through war, treaty, and purchase from Native Americans, various
European powers, and Mexico. Soon after the American Revolution, the federal
government began transferring much of this domain into private ownership.1

The original purpose of public lands disposal was to distribute land to individuals
and facilitate the development of the nation.

Major events in the transfer of public lands to private hands included 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 was created in 1812 to administer the disposal of pub-
lic lands.

• By 1820, Congress had passed 24 acts granting to settler-squatters the right of

preemption, allowing them to buy land without competitive bidding.2

• A series of railroad land grants between 1850 and 1870 allowed several dozen
railroads to sell public lands in order to raise capital to build the nation’s rail-
road and telegraph systems.

• The 1862 Homestead Act authorized settlers to claim 160 acres of any land sub-
ject to preemption, and later to any unsurveyed land. The homestead was free
for a filing fee, but title was not transferred until the land had been settled and
cultivated for five years.

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

• The Desert Lands Act, Timber Culture Act, and Timber and Stone Act of the
1870s made more land available to settlers.

By the early twentieth century, the federal government had granted or sold more than a
billion acres, or 70 percent of the continental U.S. Of that 70 percent:

52 percent had been sold in homestead or cash sales.

1 Some information in this chapter is excerpted or adapted from “Commons or Commodity? the
Dilemma of Federal Land Exchanges,” by George Draffan and Janine Blaeloch, published by the Western
Land Exchange Project in 2000 and available for no charge from Western Lands Project.
2 Coggins, George Cameron and Charles F. Wilkinson, Federal Public Land and Resources Law
(Foundation Press, Westbury, NY, 1991), p. 88.

314
 24 percent had been granted to the states for de-
veloping education and transportation systems.
Research Division of the Oklahoma Historical Society

12 percent had been conditionally granted to

railroads, slated eventually to be sold at public
auction.

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 Ver-

non Parrington, the era of public land disposal
was marked by rampant fraud, resulting in the
transfer of large portions of the public domain to
corporate rather than private hands.3 By the end
Prospective settlers of the nineteenth century, widespread abuse of the public lands laws, the end of the fron-
literally raced to tier, and the depletion of timber and grazing lands led to the withdrawal of some federal
claim land as areas lands to be reserved for the public domain.
were opened to
homesteading. In one Withdrawals of public land into forest reserves began in 1891, followed by the creation
account, “the horses of the Forest Service within the Department of Agriculture, and the establishment of the
and wagons and men National Forest System in 1905.
were tearing across
the open country like In 1946, the Grazing Service and the General Land Office were combined to become the
fiends.” Bureau of Land Management (BLM) in the Department of the Interior. The BLM was put
— Howard, William in charge of the public domain, implementing land disposal and administering livestock
Willard. The rush to grazing and mining on public lands.
Oklahoma. Harper’s
Weekly, May 18, The Prototype: Railroads, Timber Barons, and the Public Lands
1889. A series of land deals involving Washington’s Mount Rainier and Mount St. Helens could
be seen as the prototypical manifestation of public land politics, stretching from the
early days of white settlement to the late 1990s. At the heart of these deals were a huge
land grant for railroad construction, the arrival of the timber industry in the Northwest,
and decades of what essentially amounts to collusion between these corporate powers to
cash in on public land and forests.

Between 1850 and 1870, the federal government granted 131 million acres of public land
to railroad corporations. The railroad land grants comprised one of the largest categories
of public land disposal, after cash sales and homestead grants to individuals and other
grants to the states for education and other purposes.4

The Northern Pacific Railroad, which was to construct its line from St. Paul, Minnesota
to Tacoma, Washington, was granted 38.9 million acres, including 9.6 million in Wash-
ington State. Several other land grants were added to what would more than a century

3 Parrington, Vernon L. Beginnings of Critical Realism in America: 1860-1920, (1958), pp. 23-26.
4 The railroads were conditionally granted 94 million acres directly from the federal government, plus
another 37 million acres via federal land grants to the states. For the various categories of public lands
disposal, see the U.S. Bureau of Land Management’s annual Public Lands Statistics, available at blm.gov.

324
later be named the Burlington Northern-Santa Fe Railroad, for a
total of more than 47 million acres.

The railroad land grants were typically given in alternate square-

miles extending out from the railroad lines, forming a “checker-
board” land ownership pattern of alternating public and private
land still visible on many maps of the Northwest. The rationale
was that as the railroads were built, the land along them would
become desirable, and the railroads and federal government
would each sell their alternating parcels to the public. In fact, the
railroads kept much of their grant land, and the federal govern-
ment designated many of its checkerboards as National Forest.

Library of Congress; rbpe 13401300

Nearly all of the railroad land “grants” were in fact temporary
transfers of public land that the railroads were supposed to sell in
turn to “actual settlers” to raise money for railroad construction.
Some railroad companies failed to build, and some transferred
the public land or the wealth it generated to various cronies, in-
cluding elected officials. By 1870, the public had grown disgusted
with the scandal and waste flowing from the railroad land grants,
and this particular brand of public land giveaway ceased.
A railroad land sale
By this time, too, the public was increasingly concerned about having reached the limits promotional poster.
of free land and resources, and there was great controversy around the rapid liquidation
of the country’s forests. The debate between forest preservation and utilitarian “conser-
vation” was at full pitch, with the former represented by Sierra Club founder John Muir
and the latter by Gifford Pinchot (the country’s first Forest Service Chief ) and the timber
industry. Not surprisingly, conservation won out over preservation.

The First Exchange, 1899: Rock and Ice for Timber

In 1896, Rep. William Dolittle (R-WA), the sole member of the House for Washington
State, introduced a bill to establish a National Park surrounding Mount Rainier. In 1897,
President Cleveland issued a proclamation protecting more than 21 million acres of pub-
lic forest in the Pacific Forest Reserves, which included a 2.5 million-acre Mount Rainier
Forest Reserve. 5 Federal land that had been granted to the Northern Pacific Railroad
(NP) covered nearly half of the Mount Rainier Reserve.

The Organic Act of 1897, which created the national forests, opened the forest reserves
to mining and timber, while the Forest Lieu Exchange Act of the same year allowed the
railroads to exchange their inholdings in the new National Forests for lands elsewhere.6

5 The Pacific Forest Reserves contained the Washington Reserve (running from Mt. Baker to Lake
Chelan) and the Mount Rainier Forest Reserve. The Washington Forest Reserve eventually became the
Washington and the Chelan National Forests. The Washington National Forest was itself subsequently
divided into the Washington (later renamed Mt. Baker) and the Snoqualmie National Forest, and the
Baker and Snoqualmie National Forests ultimately merged in 1973. See Cascadia Wild: Protecting an
International Ecosystem, edited by Mitch Friedman and Paul Lindholdt (Greater Ecosystem Alliance,
Bellingham WA, 1993), p. 39ff.
6 Coggins, George Cameron and Charles F. Wilkinson. op. cit. and U.S. Bureau of Corporations, The
Lumber Industry (US Government Printing Office, 1913-14), Part 1, p. 19.
334
 Here sat NP with alternating ownership on the mountain. Achiev-
ing National Park status for Mount Rainier would be of enormous
strategic advantage to the Northern Pacific. As the Park’s own
website history explains:

National park historian Alfred Runte has described the “pragmatic

alliance” which the western railroads formed with the national park
movement. Railroad company officials saw a potential for increased
passenger revenue as the federal government began to establish
national parks in the West. Railroad companies lobbied for na-
Gustav Krollmann, from Western Lands Project collection.

tional park bills, financed and operated national park hotels, and
promoted tourism to the parks. In return, national parks attracted
tourists from the eastern United States who might otherwise spend
their leisure time in Europe. The association of national parks and
railroads also improved the railroad companies’ public relations.

The Northern Pacific was the first railroad company to cultivate

The covert alliance
with the national
parks movement
was lucrative for
the railroads.
this partnership…. It campaigned for the park through surrogates,
and it later lobbied the Congress for an amendment to the park bill
through discrete channels. Its role can be inferred but not directly
documented. The company’s surreptitious approach is easily ex-
plained. The Northern Pacific had received an immense land grant
in Washington, which included the area of Mount Rainier. It had
managed to retain the land grant in spite of many delays in the con-
struction of the railroad and dubious modifications of its charter. The people of
Washington deeply resented this and suspected that the company had used cor-
rupt means to hold onto the land. Whatever genuine interest the Northern Pacific
might have in scenic preservation, therefore, local people would inevitably see its
support of a national park as nothing more than a greedy ploy to exchange worth-
less property in the Cascade Mountains for valuable timber land elsewhere.7

President Cleveland had vetoed a Mount Rainier National Park bill that would have al-
lowed NP to trade its land in the Park for land in the forest reserves. But in 1899, Senator
John L. Wilson (R-WA) and Rep. James H. Lewis (D-WA) introduced bills that allowed
the railroad to do just that. With the help of a fraudulent report to Congress put to-
gether by Lewis, claiming that the railroad’s land inside the Park was heavily timbered,
the bill allowed NP to trade land within the Park boundaries on an acre-for-acre basis.
This made it possible for the railroad to trade high-elevation rocks and ice for phenom-
enally valuable forested land. Another in-lieu selection law passed that year allowed NP
to exchange land in the new Park and in the Pacific Forest Reserve for lands in any state
through which the railroad line ran.8

In 1899, the Mount Rainier Park Act and amendments created Mount Rainier National Park
and Rainier National Forest from what had been the Pacific Forest Reserve. In exchange for
about 450,000 acres it relinquished in the National Park and National Forest, NP acquired
some 444,000 acres in Oregon, Washington, Idaho, Montana, and Minnesota.9

7 http://www.nps.gov/archive/mora/adhi/adhi3.htm, accessed February 16, 2009.

8 30 Stat. 993, March 2, 1899.
9 Lien, Carsten. Olympic Battleground: The Power Politics of Timber Preservation (San Francisco: Sierra
Club Books, 1991), p. 14; and U.S. Bureau of Corporations, The Lumber Industry (US Government
344 Printing Office, 1913-14), Part 1, pp. 236-239.
Fifteen years later, the U.S. Bureau of Corporations investigation of the
timber industry noted that “a large amount of comparatively worthless
land was returned to the Government by the Northern Pacific Railway
Company, which obtained in exchange an equal amount of excellent
timbered land.”10 An Illinois congressman observed that “mountain
peaks, barren hillsides, lava beds, swamp lands and other valueless
holdings... were released and the most valuable timber, coal and oil
lands within the public lands were taken in exchange.... The bars were
let down for wholesale fraud….”11 Of the nearly 450,000 acres of public
lands that were acquired by the railroad in the exchange, most was soon

Library of Congress; LC-B2-1071-15

sold to Weyerhaeuser and associated companies.12

The relationship between NP and Weyerhaeuser was close.

In the closing decades of the nineteenth century, Frederick
Weyerhaeuser and his partners dominated the timber indus-
try of the upper Mississippi, in part by acquiring large tracts
of timber that had been federal land grants to build and
maintain colleges and railroads. For example, Weyerhaeuser
had purchased 50,000 acres of timberland in Wisconsin from Frederick Weyerhaeuser, no date.
Cornell University, and 213,000 acres in Minnesota from
the Northern Pacific Railroad.13 Weyerhaeuser and James J.
Hill, the head of Northern Pacific, were neighbors in St. Paul.
Their boards of directors were interlocked through several
generations, and NP’s railroad cars carried Weyerhaeuser’s
lumber at favorable rates. Of the nearly two million acres
of Pacific Northwest timber which Weyerhaeuser acquired
at the turn of the nineteenth and twentieth centuries, more
than three-fourths was purchased from NP.14

With forests in New England depleted by the 1860s, those of the Great
Lakes by the 1880s, and the southern forests by the 1890s, the forests
of Oregon and Washington became the leading producers of lumber in
the early 1900s. Large stands of merchantable timber determined where

Library of Congress; LC-DIG-hec-00552

railroads lines and mill towns would be built.

In 1900, Weyerhaeuser purchased 900,000 acres of railroad checkerboards

spread across southwestern Washington from the Northern Pacific. In
1943, the company purchased more NP checkerboards just south of Rainier
at Mount St. Helens. Not only did Weyerhaeuser now own land that had
been intended for settlers rather than corporations, but over the next
decades, it would use its sprawling checkerboard ownership to maximum
advantage.
James J. Hill , 1911.

10 Lien, Carsten, op. cit.

11 Ibid.
12 U.S. Bureau of Corporations, op. cit., Part 1, pp. 236-240.
13 Hidy, Ralph W., Frank Ernest Hill, and Allan Nevin, Timber and Men: The
Weyerhaeuser Story (New York: Macmillan, 1963), pp. 43, 62, 105-106.
14 Lien, Carsten. op. cit. p. 14.

354
 The Second Exchange, 1982: Rock and Ash for Timber
The massive eruption of Mount St. Helens occurred on May 18, 1980. The eruption left
a 2,000-foot deep crater more than a mile across. Four billion cubic yards of debris were
scattered across 230 square miles, and measurable amounts of ash covered 22,000 square
miles. Three hundred mile-per-hour, 600-degree winds “snapped 100-year-old trees like
toothpicks and stripped them of their bark.”15

The disaster scorched 150,000 acres of timber, a little less than half of it on Weyerhaeuser
land. Weyerhaeuser was able to salvage hundreds of millions of board feet of that tim-
ber over the next two years, with 600 trucks a day hauling timber away at the peak.16 In
1982, 110,000 acres in and adjacent to Gifford Pinchot National Forest were designated
as the Mount St. Helens National Volcanic Monument.17

The Mount St. Helens National Volcanic Monument Act of 1982 called for the U.S. to
acquire all lands and interests within the boundaries of the Monument by donation,
purchase, or exchange. As the major private landowners within the monument, Weyer-
haeuser and Burlington Northern Railroad (the Northern Pacific’s successor) had already
clear-cut much of their holdings and were poised to take another round of profits out of
the devastated landscape.

As outlined in the legislation, Burlington Northern gave the federal government 16,354
acres and received 2,631 acres. Weyerhaeuser conveyed 16,777 acres to the U.S. and
received 4,756 acres. The exchange of lands specifically excluded mineral and geother-
mal interests—meaning the companies kept these. The act also stated that the U.S. could
acquire mineral and geothermal rights only by exchange.18

The split estate created by the land exchange—i.e., the companies’ retention of the min-
eral estate after the surface estate went to the public—created an ideal leveraging situa-
tion for future exchanges to make public ownership “whole.”

15 The Many Faces of Mount St. Helens, http://www.olywa.net/radu/valerie/StHelens.html visited Jan 19,
2004.
16 Dietrich, William. The Final Forest: The Battle for the Last Great Trees of the Pacific Northwest (New
York: Simon & Schuster, 1992), pp. 95, 135; Rochelle, James A., Richard L. Ford, and Thomas A. Terry,
The reforestation challenge: Weyerhaeuser’s response to the Mount St. Helens devastation, Journal
of Forestry, May 1992, pp. 20-24; and USGS/Cascades Volcano Observatory, Vancouver, Washington,
Eruption Summary: May 18, 1980 Eruption of Mount St. Helens, http://vulcan.wr.usgs.gov/Volcanoes/
MSH/May18/summary_may18_eruption.html, accessed April 14, 2004.
17 P.L. 97-243, Sec. 3.
18 P.L. 97-243, Aug. 26, 1982, 96 Stat. 301.

364
The Third Exchange, 1997: Minerals, Cash and Credit
In 1982 Congress expected the exchange of lands at Mount St. Helens to be completed
within 90 days, but recognized that the exchange of subsurface mineral and geothermal
interests on more than 10,750 acres was more complex, and directed that those be ac-
complished within a year through the agencies, rather than through Congress.

The Forest Service, Burlington Northern, and Weyerhaeuser reached agreement for the
exchange of mineral rights on an acre-for-acre basis, but the Bureau of Land Manage-
ment, which was involved because of the mineral rights, disagreed over the value of and
future impact on some of the public lands to be exchanged. A first exchange of mineral
interests was completed in 1991, but the parties remained at odds over the value of other
mineral and geothermal interests, with value estimates ranging from $250,000 to $80
million.19 (Source documents do not explain this phenomenal range of values).

A third party appraiser was brought in, and estimated the value on each side to be be-
tween $5 million and $7 million. The companies accepted the appraisal, but the govern-
ment rejected it, and would not recognize any separate value in the geothermal interests
that the companies wanted counted toward value.20

Fifteen years after the land trade, Rep. Linda Smith (R-WA) and Sen. Slade Gorton (R-
WA) stepped in and introduced the Mount St. Helens National Volcanic Monument
Completion Act “to provide for the expeditious completion of the acquisition of private
mineral interests within the Mount St. Helens National Volcanic Monument.”21

A new appraisal of $4.7 million was made, and accepted by the Forest Service and the
companies. Weyerhaeuser and Burlington Northern Railroad were each to receive half of
the value.

The federal government receives royalties for minerals that are extracted from public
lands. If federal mineral lands elsewhere were traded for the corporate mineral rights on
Mount St. Helens, the government would lose future royalties from the lands it traded
away. The solution was to give the companies monetary credits for the value of the St.
Helens mineral rights, which they could use to offset mineral royalties that they would
owe for mining on federal lands elsewhere.22

19 House Rpt.105-704.
20 House Rpt.105-704.
21 H.R. 1659 introduced May 16, 1997 and S.638 introduced April 23, 1997.
22 The U.S. government collects more than $1 billion annually in onshore mining royalties; fifty percent
is shared with the states in which the mining occurs (U.S. Mineral management Service website http://
www.mrm.mms.gov/Intro/onshore.htm and http://www.mrm.mms.gov/Intro/faqs.htm accessed Sept
18, 2004).

374
 Pattern of Abuse
Today, the land-deal legacy of railroads, timber, and
congressional accommodation is carved across the
landscape of the Northwest.

As airline passengers fly east out of Seattle, Mount

Rainier’s dramatic form rises above foothills whose
forests have been shredded by the timber compa-
nies—and where the checkerboard pattern of na-
tional forest and private clearcuts is plainly discern-
able in alternating squares of green and brown.
©Trygve Steen

Checkerboard land ownership became an ecologi-

cal and administrative nightmare for the public as
the corporate heirs to the land grant began inten-
The rail and timber sively clear-cutting “their” forest lands in the 1970s
barons’ legacy is and through the 1990s. The clear-cut squares of the timber companies not only frag-
carved into Mount mented the landscape, they compromised the ecological integrity of adjacent national
Rainier’s foothills. forest lands.

As the public cried out against the abuse and the Forest Service was forced by law to take
a larger-landscape approach to forest management, consolidation of the checkerboards
through land exchanges became a central goal on the Northwest’s national forests. In or-
der to be able to manage the national forests on an ecosystem scale, managers reasoned,
it would be necessary to consolidate large areas under public ownership by trading pub-
lic checkerboards for private ones.

Two of the land-grants heirs, Weyerhaeuser and Plum Creek Timber (a subsidiary of the
railroad), began implementing land trades large and small in Northwest national forests.
Land they traded to the public included lands privatized in the original Mount Rainier
exchange that they had stripped bare. In the name of consolidation, the Forest Service
agreed to accept the companies’ clearcuts and high-elevation rocks and ice while trading
away often intact public forest.

Thus, in addition to the scars on the land, the behavior pattern, too, was carried forward,
and the companies established a paradigm that brought them enormous profits at the
expense of the public interest, neatly disguised as “win-win” deals.

As we see in the pages ahead, it is a pattern that shows itself time and again in land deals
driven by politics, privilege, and greed.

384
 3 Chapter 2: The Process and its Pitfalls 4
The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to the
United States.
—United States Constitution, Article IV,
section 3, clause 2 (Property Clause)

Authority and Rationale for Land Exchanges and Conveyances

The national forests often overlay lands with fragmented ownership, resulting in pockets
of private ownership within larger areas of federal forest. The mostly arid public domain
lands that eventually came under the jurisdiction of the BLM are also fragmented in
some areas, with the public land generally comprised of whatever hadn’t been claimed
under a homestead law or transferred to the states.

In some areas, public land is in very large, consolidated blocks, while in areas conducive
to development or cultivation, it is in smaller parcels. Both the national forests and BLM
lands are also affected by the “checkerboard” ownership pattern that was created under
railroad land grants.

It was not until 1976, with the passage of the Federal Land Policy and Management Act
(FLPMA) that Congress officially closed the frontier, declaring that “it is the policy of the
United States that the public lands be 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 particular parcel will serve the national interest.”1 FLPMA also established proce-
dures for the BLM to identify areas that should be retained for conservation purposes.

Prior to the passage of FLPMA, the Forest Service had general authority to implement
land exchanges under the General Exchange Act of 1922, and more specific authority
under the Weeks Act of 1911. The BLM did not have such authority, and FLPMA estab-
lished that, plus general procedures that would govern both agencies.2

Land exchanges have traditionally been undertaken to eliminate inholdings and consoli-
date larger areas of public land; to protect watersheds or other sensitive lands; and to
serve other genuine public interest purposes. A good description of the policy rationale
for agency land trades was offered in a 1998 opinion column by the Director of the Bu-
reau of Land Management:

“… [L]and exchanges enable the BLM to change the checkerboard pattern of fed-
eral, state and privately owned lands in the West into consolidated areas that are
more easily managed. This decreases the costs of managing the lands and increas-
es the efficiency with which they are managed...

1 Federal Land Policy and Management Act of 1976, 43 U.S.C.A. 1701(a)(1).

2 Coggins, George Cameron and Charles F. Wilkinson, op. cit. p. 309.

394
 [They] allow the BLM to acquire the kind of land that is suited to public owner-
ship: land with high conservation values as habitat for wildlife including threat-
ened or endangered species; land that offers recreational opportunities for the
public; or land containing sensitive riparian areas that are critical to the health of
streams, rivers and entire watersheds. In turn, states, counties or private develop-
ers can obtain land that is better suited for local management or that will serve
the development or expansion needs of growing communities…” 3

Members of Congress use the same rationale for land exchanges, although for the most
part the exchanges they propose through legislation could be done by the agencies.

As for conveyances—giving away or selling public land—the land agencies are quite lim-
ited in their authority to sell land, and they are not allowed to give it away. By contrast,
members of Congress may approve sales or giveaways of any size or nature, limited only
by what they believe they can justify or, in many cases, get away with.

Congressional land deals pose problems at many levels and for many reasons. They are
subject to relatively little scrutiny and afford limited opportunities for public involve-
ment. They can be extremely complex and lead to unintended or unforeseen conse-
quences. Perhaps their most basic flaw is that most are designed to serve narrow special
interests, even where they purport to serve a greater good.

It is now well established that land exchanges and sales implemented by the public land
agencies—that is, through the administrative process— can be ill-conceived, badly
executed, and damaging to the public interest.4 Yet there are stark differences between
administrative and legislated land deals that put the public interest at much greater risk
when Congress is in charge.

The Agency Approach

When a public land agency proposes a land exchange or sale, it is governed by statutes
and regulations intended to protect the public interest. The National Environmental
Policy Act (NEPA) provides strict guidelines for environmental analysis and disclosure,
as well as opportunities for citizen input. The Federal Land Policy & Management Act
(FLPMA) dictates that land exchanges must serve the public interest and yield equal
value to both (or multiple) sides in the transaction.

3 Shea, Pat. Guest editorial. Land exchanges benefit U.S. taxpayers, Deseret News, March 12, 1998.
4 General Accounting Office, “BLM and the Forest Service: Land Exchanges Need to Reflect Appropriate
Value and Serve the Public Interest.” RCED-00-73. June 2000. This audit was perhaps the most
comprehensive. In addition to the GAO, the Inspectors General of both Agriculture (Forest Service)
and Interior (BLM, Park Service) issued audit reports highly critical of the land exchange programs.
Most were published between 1998 and 2001.

3 10 4
The administrative path to a land exchange under NEPA and FLPMA provides:

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

• Environmental analysis of the trade’s impacts, including the impact on public

lands that would be traded away;

• Analysis of a range of alternatives for the exchange including “no-action,” differ-

ent exchange configurations, outright purchase of private lands, and develop-
ment restrictions on land traded to the private party;

• Analysis of the ecological and other values on lands that would come into pub-
lic ownership;

• 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 legiti-
mate concerns into the proposal;

• A “public interest determination” compiled by the agency that outlines the rea-
sons/justification for the trade;

• The right to appeal the decision if it is not in the public interest, and/or to chal-
lenge the adequacy of the NEPA analysis;

• Public disclosure of appraisal information once the agency’s “preferred alterna-

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

This process allows citizens to understand what is involved in the land exchange; provide
substantive comments or protests regarding its impacts; propose alternatives (lands add-
ed and/or subtracted); and object if the exchange is clearly counter to the public interest
or unequal in value. The administrative route provides a clearly delineated, predictable
process.

It must be noted that the NEPA process was not created merely to generate documents,
solicit public involvement, or disclose environmental impacts to the public. One of the
central purposes of NEPA is to help the agencies make better decisions with the aid of
their own environmental analysis and citizen input.

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 to changes that improve the proposal and better serve
the public interest. The statutes and regulations that govern these actions give people the
ability, ultimately, to legally challenge a land deal if the agency does not adhere to the law.

3 11 4
 The Congressional Approach
Conversely, the congressional route guarantees none of the safeguards provided in stat-
utes and regulations. A member of Congress can put any kind of land deal he or she de-
sires into a piece of legislation, and none of the provisions listed above need be included.

• Public notification is not required; citizens learn about a legislated land trade by
luck, by the grace of the proponent or congressional sponsor, in the news, or by
searching the congressional website.

• Environmental analysis is occasionally required, but is often truncated and far

more often omitted altogether.

• Opportunities for public input are available through contacting members of

Congress or submitting written or oral testimony for congressional hearings.

• There is no right to appeal a land bill. Citizens cannot file an appeal against or
sue Congress. In rare cases, it is possible to sue the agency over its implemen-
tation of a legislated exchange if it does not comply with the legislation that
directed it.

• There is no requirement for the disclosure of appraisal information. A “sum-

mary” of appraisal data may be made available; otherwise, complete appraisal
information for a congressional land trade is likely available only after deeds
have changed hands—assuming appraisals were conducted in the first place.5

The Glide-Path through Congress

Land exchanges and conveyances in Congress go through the House Natural Resources
Committee6 and the Senate Energy & Natural Resources Committee. The normal process
is for a bill to first receive a hearing in a subcommittee—in the House, the Subcommit-
tee on National Parks, Forests, and Public Lands, and in the Senate, the Subcommittee
on Public Lands and Forests. The bill may subsequently be scheduled for a “mark-up” by
the full committee, usually with several other bills, where amendments may be proposed.
If the bill does not draw opposition, it will be voted (“reported”) out of committee, from
which it can, sooner or later, proceed to the Floor.7

Very often, bills are taken to the House Floor in batches, even dozens at a time, to be
voted on quickly under “suspension of the rules.” This is a process by which “non-contro-
versial” legislation is brought forward speedily, briefly described, given short supportive

5 Appraisal disclosure in legislative cases has not been tested. The agencies have been more forthcoming
with this information in response to press coverage and public suspicion after the GAO audit in 2000,
and even liberalized their policies to ensure this information is available to the public in a timely
fashion. A request for an appraisal would go through the agency rather than Congress itself, so it is
likely that, once the deal has gone through, the agencies would release appraisals upon request.
6 The House committee was named the Resources Committee under Republican leadership from 1994 to
2006.
7 The congressional website, http:// thomas.loc.gov (named for Thomas Jefferson), provides search
tools that allow a person to look at individual bills —often there are several versions—and track their
progress. The committees also have websites, reachable through Thomas, that give detailed information
on membership, actions, hearings, and current committee issues. Appendix B provides further
information.
3 12 4
and sometimes opposing speeches, and given
“yea or nay” voice votes, with no recorded votes
of individual members. The process has the ap-
proximate feel of the lightning round on a televi-
sion game show.

In instances where such purportedly non-

Library of Congress; LC-F81- 27007

controversial bills have actually gathered some
controversy, a member may step forward and call
for a recorded vote. Sponsors may feel the bill
cannot pass under those circumstances, and may
withdraw the bill.

In the Senate, a virtually identical process for

quick passage is called “unanimous consent.”
The 1923 Senate
Custom-Designed Bills Public Lands
Land exchange proponents have only one goal—to get their trade completed with as Committee
little delay or public attention as possible. The administrative route may not result in the conducted an
exchange they want, or in rare cases, may kill the deal. A large land trade can take three investigation
or four years to complete and public participation and/or challenges to the trade can of the Teapot
add even more delay. As a result, trading parties may write their proposals into legisla- Dome scandal,
tion, circumvent the hassle of complying with NEPA and other laws, and get their trades involving fraud
through much more quickly. Legislation at least ostensibly provides the “certainty” that and bribery related
land dealers crave. to the Interior
Department’s
The only cases in which legislation is actually required for a land exchange is where lands leasing of public
to be traded are in more than one state or involve different departments—e.g., a trade (Naval) oil reserves
that includes both Forest Service and BLM land— and these proposals are rare. In almost to private oil
every case, it is fair to assume that a trade has been written into a bill because it would companies.
not meet the parameters or survive the scrutiny of the more open process. Quite often,
the proponent has gone to the Forest Service or BLM with a proposal and met rejection
by the agency.

Custom-written bills can provide the proponents with special provisions and guaran-
tees they would not be able to secure through the agencies. Proponents can manipulate
the appraisal standards, bypass environmental analysis, set an absolute deadline for the
transfer of deeds, and add custom provisions that are beneficial to the private parties.

As one might suspect, federal legislation has its own esoteric language. A background
in law is helpful for understanding, but it may also require multifaceted research (if not
clairvoyance). Cryptic, often baffling phrases offer no clues as to what a bill is actually
intended to do. In the case of land deals, there may be obscure references—for example,
to past bills, maps, agreements, congressional hearings, memoranda of understanding—
that may be highly significant, but whose meaning is cloaked in ambiguity, or which may
simply go unnoticed.

Congressional land exchanges present challenges to the uninitiated, but there are some
common formulas:

3 13 4
 • 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. If the action is discretionary, it generally means that it must be
implemented under NEPA, which in turn preserves some potential for a legal
challenge. When an exchange “shall” take place, Congress is ordering that the
trade occur as described in the bill.

• The bill may overtly or covertly waive laws such as NEPA, FLPMA, or the En-
dangered Species Act. An overt waiver of the normally applicable laws is usu-
ally worded, “notwithstanding any other provision of law,” or “notwithstanding
[citation to specific law].” But land exchange proponents may also fashion subtle
provisions that sweep aside normal legal requirements without explicitly saying
so. For example, the bill may not overtly waive NEPA but may set a deadline for
completion of the trade—say, 90 days, or even “as soon as is practicable”— that
renders NEPA compliance impossible.

• A bill may waive or alter the federal appraisal standards. If a bill contains any
special provisions for the appraisals, it almost certainly provides undue benefits
for the private party or is obscuring an issue related to land value.

More examples of the significance of cryptic land bill language can be found in Appendix
B: Anatomy of a Land Bill.

Obscure Provisions and Larger Implications

Land bills may have inscrutable provisions with subtle “extras,” sweeping effects, or un-
foreseen consequences.

Indian School/Big Cypress Preserve (PL 100-696)

In 1988, Congress passed the Arizona-Florida Land Exchange Act, also known as the
Indian School land exchange. This very complex piece of legislation was part of a larger,
omnibus bill. The exchange gave part (88 acres) of the site of the Phoenix Indian School,
managed by the Bureau of Indian Affairs and located in downtown Phoenix, to Collier
Development Corporation. In turn, Collier traded its surface rights to more than 100,000
acres in the Big Cypress National Preserve, part of the Florida Everglades.

The agreement between Collier and the government, ratified in the legislation, was for
Collier to retain the subsurface rights underlying the lands it had traded to the public.
Over the years, Collier and the Interior Department had intermittent discussions regard-
ing public acquisition of the subsurface, which allegedly had some potential for oil and
gas exploration. One proposal, promoted by Clinton’s Interior Secretary Bruce Babbitt,
would have entailed the exchange to Collier of lands earmarked for disposal at Florida’s
Homestead Air Force Base.

None of the proposals came to fruition, and in 2002, Collier began threatening to drill for
oil and gas under the Preserve, sending environmentalists into a panic. President George
W. Bush (with brother Jeb, the Governor of Florida) announced his intention to buy out
Collier’s rights for $120 million.

3 14 4
Prompted by an anonymous whistleblower, Inte-
rior’s Inspector General launched an investiga-
tion of allegations that Collier was blackmailing
the government with worthless subsurface rights.
The Inspector General concluded that the Collier
rights were indeed of little value, and moreover
that the public had actually paid for the subsur-
face in the 1988 trade because subsurface rights

Photo: Ralph Arwood and NPS

had been included in the appraisals done for that
exchange and thus in the values that had been
traded.

Ultimately, Collier backed off from its threat to

drill, perhaps fearing that an investigation would
in fact find that the company did not own the
subsurface rights. Collier Development
threatened to drill
The Baca Bill (PL 106-248) in the Big Cypress
The “Baca bill”, passed in 2000, authorized the acquisition of the Baca Ranch, an historic National Preserve
ranch in central New Mexico comprising most of the Valles Caldera, a large lava dome unless taxpayers
and unique scenic landscape. The Valles Caldera had been the subject of a congressio- bought them out.
nally-mandated study regarding how best to preserve its scientific, historical, cultural,
ecological, and other characteristics. Purchase of the ranch, owned by a Texas oilman,
was hugely popular among both regional and national environmental groups.

In addition to authorizing the purchase of the ranch, which would become the Valles
Caldera National Preserve, the Baca bill established a board of trustees to oversee man-
agement of this public land, and mandated that the Preserve become financially self-
sustaining within 15 years of its establishment, raising funds through public and private
sources; through continued operation of a working ranch on the site; and from such
things as logging and recreation fees.

This scheme stemmed from the insistence of the bill’s sponsor, New Mexico Republican
Senator Pete Domenici, that the land not be managed by the Forest Service and that it
remain a “working ranch.” Like many Republicans, Domenici did not favor taking land
out of private ownership, so the price to be paid for the Baca Ranch protection was a
utilitarian and quasi-private management regime.

In 1999, prior to the 2000 legislation that actually authorized the purchase, legislation
appropriating the funds included the requirement that the General Accounting Office
(now called the Government Accountability Office) review the appraisal. The owner of
the ranch offered his own appraisal of $101 million, which the Forest Service’s Chief Ap-
praiser had accepted. But the GAO found that the owner’s appraisal had been too gen-
erous due to the weighting of some comparable sales used in the analysis. A legitimate
controversy was thus raised regarding the purchase price (the GAO’s analysis concluded
it was inflated by $37 million), but the purchase price nevertheless remained $101 million.8

8 General Accounting Office, “Federal Land Management: Land acquisition issues related to the Baca
Ranch appraisal.” GAO/RCED-00-76. March 2000.

3 15 4
 In years following the purchase, a new threat to the Ranch emerged. The government
had not purchased all of the subsurface rights on the Preserve, and at least one company
was threatening to develop a geothermal power plant onsite.9 In 2005, Congress passed
yet another law authorizing the purchase of remaining subsurface rights, which the Con-
gressional Budget Office estimated would cost $3 million.

In early 2009 the chief scientist at the Preserve announced that the methods by which
the preserve was supposed to gain revenues were not feasible: the area had been over-
grazed and could not increase revenues through grazing leases; the forest at the Preserve
had been over-logged in the past and had to be thinned at the Preserve’s expense; and the
area did not have a long enough recreation season to gain significant revenues through
fees.10

Also included in and passed with the Baca bill was the Federal Land Transaction Facilita-
tion Act (FLTFA), aimed at speeding the sale or exchange of public lands identified for
disposal in agency management plans. The bill, applicable to lands that had been ear-
marked for disposal by the BLM by that year, 2000, allowed the agency to keep 80 per-
cent of sale proceeds within the same state in order to use that amount for the purchase
of inholdings from willing sellers. The authority provided in the bill would expire 10
years after enactment. The Bush Interior Department later attempted unsuccessfully to
extend the authority to lands that had been identified for disposal after 2000.

Some public land advocates feared that FLTFA would bring about a surge in land sales.
In some cases, BLM management plans had not been updated for years, so lands marked
for disposal might be in need of re-evaluation, yet under FLTFA could simply be sold or
exchanged.

Fear of wholesale disposal turned out to be unwarranted, however. In February 2008, the
Government Accountability Office released a report on its review of FLTFA implementa-
tion and concluded that the law had not achieved the intended results. The study found
that 92 percent of the revenues raised from FLTFA land sales had come from land sales
in Nevada. There, because other land-sale authorities are already in place (these are dis-
cussed elsewhere in this book), BLM staff have the knowledge and experience necessary
to do the sales that staff in other states do not have. Moreover, in the Bush years (2001-
2009), realty staffers were directed to prioritize other activities, such as energy rights-of-
way and oil and gas leases.

The irony of the preponderance of FLTFA sales in Nevada is that other, non-FLTFA land
sales in that state were also generating funds for land acquisition—and with the highest
percentage of public land in the nation, Nevada has, arguably, the least urgent need to
bring more private land into public ownership.

9 Vorenberg, Sue. Company seeks rights to wells in Valles preserve. Albuquerque Tribune, April 5, 2005.
10 Associated Press. Scientist: Valles Caldera strategy needs overhaul. February 2, 2009.

3 16 4
Helping Locals and Friends
Much of the land legislation introduced by mem-
bers of Congress is a mixed bag. Even as it jet-
tisons land that should stay in public ownership,
a land exchange bill may bring land to the public
that should be protected. But some land bills or
provisions within them are simply aimed at facili-
tating the well-being of powerful constituents or
handing out public land “pork” to feed the local
economy.

Western Lands Project

Nevada
In 1998, the Southern Nevada Public Land Man-
agement Act opened up more than 20,000 acres
of federal land in Nevada for sale, setting off a
development boom and a string of subsequent land-sale bills that would facilitate yet Land bills have
more sprawl.11 Sponsored by Senator John Ensign (R-NV), the bill designated a “disposal ushered in scores of
area” around Las Vegas from within which public land could be auctioned off. No acre- subdivisions and
age or location was provided in the bill, only a reference to a map, available in the spon- golf courses in Las
sor’s Washington D.C. office, which showed the disposal boundary. Vegas—also known
as the Mojave
In a 2002 bill sponsored by the other Nevada Senator, Harry Reid, the disposal boundary Desert.
was stretched by an additional 20,000-plus acres—although there was no explicit mention
of it.12 With nothing indicating the substance of the provision, it consisted merely of a cita-
tion to the disposal area provision in the 1998 bill and a change in the date of the map.

In the same bill, a developer friend of Reid’s was to be gifted with 11,000 acres to add
to his planned development, through an innocent-sounding provision that ordered the
relocation of an unoccupied transmission corridor. The provision was removed after its
purpose was exposed in the Los Angeles Times. (This case is discussed in detail in Harry
Reid—The Name to Know, Chapter 3).

Utah
Former Utah Representative Jim Hansen slipped a special provision into a 1996 omnibus
parks and public lands bill that has had the effect of inflating the value of certain non-
federal land in one Utah county, where the federal government is acquiring land for the
threatened desert tortoise. In language enacting a single land exchange between the BLM
and the local water district, Hansen inserted the following provision:

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 endan-
gered pursuant to the Endangered Species Act of 1973.

11 PL 105-263, the Southern Nevada Public Lands Management Act.

12 PL 107-282, Clark County Conservation of Public Land and Natural Resources Act.

3 17 4
 Restrictions on development that result from the presence of an endangered species
generally reduce the fair market value of a piece of land, and thus this provision gave an
inflated value to non-federal tortoise habitat anywhere in the county. Years later, this
provision continues to affect the value of private land in ongoing land exchanges the
BLM is implementing there.

Washington
In 2008, Republican Congressman Doc Hastings of Washington State sponsored a bill
that mandated the sale of 622 acres of public land managed by the BLM to the Douglas
County Public Utility District. The PUD operates the Wells Hydroelectric Dam adja-
cent to the BLM land. By taking ownership of the land the PUD would be able to avoid
mitigation the BLM might request for the dam’s environmental impact. The dam was
approaching the end of its 40+-year license under the Federal Power Act and was under-
going review for re-licensing that would likely result in stricter environmental require-
ments, so the bill as introduced also waived the Federal Power Act.

The bill ended up in an omnibus in early 2009, but was first amended by the Democrats,
with a provision that preserved the Federal Power Act and retained the BLM’s authority
to obtain mitigation through the pending relicensing.

Appropriations Bills
Occasionally, as happens with virtually every category of legislation, Congress will push
forward a land deal by attaching it as a “rider” to a must-pass spending bill. This process,
which regains its notoriety with the public at every budget cycle, essentially involves
Rep. Jerry Lewis inserting language into a big budget bill as it flies by, avoiding scrutiny or, in some cases,
twice used Defense any knowledge of the provision outside the office of the sponsor.
Department
appropriations The Mojave Cross
legislation as a In 2003, buried deep within the Defense Appropriations bill, Rep. Jerry Lewis (R-CA)
vehicle to keep the placed a provision that would mandate a land exchange within the Mojave National Pre-
Mojave Cross on serve in order to privatize a piece of land in the Preserve upon which stood a Latin cross.
public land.
The original cross placed at the site in 1935 (and
since replaced many times) had been erected by
World War I veterans. The 8-foot-tall cross at
issue in Lewis’ legislation—a religious symbol
placed on public land—had been the focus of
successful litigation. The American Civil Liberties
Union was representing, among others, plaintiff
Frank Buono, former Deputy Superintendent of
Photo: Gina Ferazzi-LATimes-Newscom

the Preserve. Buono challenged the cross’s pres-

ence on public land as an improper government
endorsement of religion, a violation of the First
Amendment.

Plaintiffs won in Federal District Court in the

first round, and the Bush Administration’s Justice
Department unsuccessfully appealed the ruling

3 18 4
twice. At the same time, Congressman Lewis took up the cause. As Chair of the House
Defense Appropriations Committee, Lewis first inserted a provision in the defense ap-
propriations bill for 2003 that designated the Mojave Cross a national veterans memo-
rial. Lewis claimed that the court rulings against allowing the cross to stay on public land
endangered veterans memorials everywhere.

In spite of Lewis’ bestowal of memorial status, plaintiff ’s claims were upheld, and the
courts said that the cross had to be removed. Lewis then inserted a provision in the de-
fense bill for 2004, mandating that the Interior Department implement a land trade that
would privatize one acre surrounding the cross.

In 2007, the Ninth Circuit Court of Appeals called the congressionally mandated land
exchange a “sham” to evade the court’s earlier rulings, and that “…carving out a tiny par-
cel of property in the midst of this vast Preserve…will do nothing to minimize the imper-
missible government endorsement.”

The only recourse left to the government was to take its appeal to the Supreme Court.
The Bush Administration did file for review by the Court and in February 2009, the
Court agreed to hear the case. In March, Public Employees for Environmental Respon-
sibility and Western Lands Project called on President Obama’s Interior Department to
withdraw its appeal.

The Umpqua Boondoggle

Over a period of four years, buried in huge appropriations bills for the land management
agencies, Congress provided a total of $5.85 million dollars for the study and implemen-
tation of land exchanges in Oregon’s Umpqua watershed, an area covering 675,000 acres.

The funds were not appropriated for the BLM or the Forest Service, but rather for a non-
profit entity called the Foundation for Voluntary Land Exchanges, founded by Oregon
timber baron Aaron Jones. Most of the money came from the Land & Water Conserva-
tion Fund, a steadily shrinking pool of money derived from offshore oil and gas leases
and intended to be used for public land acquisition.

Jones had grown tired of the increased regulation of logging, and wanted to find a way to
get out of lands that carried restrictions—riparian areas, endangered species habitat—
and acquire land where his company, Seneca-Jones, could cut more trees. The purpose
of the Umpqua Land Exchange Project (ULEP) was to formulate a computer model that
would crank out configurations for large-scale land exchanges between the BLM and
timber companies and other landowners.

For nearly ten years, the ULEP published studies, attempted to set up land exchange
models, and laid out various plans for an expedited environmental analysis that was to
end in a massive re-configuration of land ownership. Skeptics who were watchdogging
the project suspected that the bottom-line parameter for the model would be to maxi-
mize the amount of timber going to industry.

The project ultimately collapsed under its own weight in 2005, after ULEP failed to meet
any of the deadlines it had established for its own work, and as a result of intense conflict
between ULEP and the BLM, which had been ordered to work with them.

3 19 4
 In a lengthy expose of the project, the Eugene Register-Guard reported:

Four times, Congress passed bills that included

money for Jones’ idea, yet few lawmakers are
demanding to know: What did the project ac-
complish? Former Sen. Slade Gorton, R-Wash.,
who originally put the funding into a Senate bill
so Jones and his allies could avoid messy and time
consuming public hearings, insists that he remem-
bers nothing of the project.

Staffers for Sen. Gordon Smith, R-Ore., who was

among those voting to give Jones the money, refer
Francis Eatherington

all questions about the project to other members

of the Oregon congressional delegation. Rep. Peter
DeFazio, D-Springfield, is reluctant to speculate
about what benefit the public got from the expen-
Umpqua National Forest diture.

“That’s a really good question,” he said. “Since I’m

not the one who authorized, inserted or otherwise
decided to spend the $6 million, and it was done
over my objections, I couldn’t tell you.”13

Omnibus Bills
Many land exchanges, sales, and conveyances gain passage through “omnibus” legislation
that combines numerous stand-alone bills into one large bill.

The 1996 Omnibus

A prime example is the Omnibus Parks and Public Lands Management Act of 1996,
a 189-page bill that included partial privatization of the Presidio in San Francisco; 20
boundary adjustments or conveyances of public land; and 9 land exchanges.

The latter ranged from a 60-acre exchange of national forest land to a Boy Scout
council, to a two-state exchange that gave 49,000 acres of Arkansas national forest to
Weyerhaeuser Company in trade for 150,000 acres of largely cut-over non-native pine
plantations in Oklahoma.

The Weyerhaeuser deal, one of the largest legislated exchanges ever implemented, went
through with virtually no public notification or involvement, no environmental analy-
sis, and no appraisals. Two years after the bill passed, a committee staffer for the House
committee that oversees exchanges admitted to the Seattle Times, “We have no idea
what we did on that deal.”14

13 Dietz, Diane. Land swap unravels: Failed bid for public-private trades cost taxpayers $6 million. The
Register-Guard, April 24, 2005.
14 Westneat, Danny, Jim Simon, Deborah Nelson, Eric Nalder “Arkansas land trade sails through
with senator’s help.” From the Seattle Times series, “Trading Away the West,” published September
27-October 2, 1998. The Arkansas and Oklahoma Land Exchange Act is covered in more detail in
“Commons or Commodity? The Dilemma of Federal Land Exchanges,” by George Draffan and Janine
Blaeloch, published by the Western Lands Project.
3 20 4
The Weyerhaeuser exchange was extremely controversial among Arkansas environmen-
talists, but they had no recourse to challenge the exchange. Similarly, land exchanges in
Wyoming, Utah, Alaska, and Montana that had garnered strong opposition were simply
fast-tracked through the same omnibus.

The 2009 Omnibus

In 2009, Congress passed a 1,300-page omnibus bill containing 160 separate land-related
items. This group included 26 stand-alone exchanges or conveyances of public land and
11 exchanges that were incorporated into wilderness bills.

If legislative language often obfuscates what the legislation accomplishes, this problem
is greatly compounded in omnibus legislation, where the totality may be difficult to
comprehend. Moreover, throwing together so many bills—inevitably, a mix of good and
bad—tends to (and is often intended to) bulletproof the bad parts.

This omnibus contained numerous provisions for the designation of new Wilderness
Areas—results that environmental organizations had, in some cases, worked for years
to achieve. At the same time, a land exchange included in this omnibus would effectively
de-designate some acreage in a Wilderness Area in an Alaska Wildlife Refuge, something
many of the same organizations saw as a chilling precedent. Nevertheless, the D.C.-based
organizations supported the bill, accepting the built-in trade-offs of omnibus legislation.
The politics around this bill is further discussed in detail in Chapter 5, Pure Politics.

No Harm Done
While most congressional land deals are either unnecessary, could be accomplished ad-
ministratively, or are downright harmful, it must be noted that some are innocuous, and
in very rare instances, worthy of support.

In the first group would be a bill that transfers land in a national forest occupied by an
historic cemetery to local government or the association that maintains it. There are
numerous small cemeteries in national forests, in many cases attributable to bound-
ary errors made when a national forest was established. The Forest Service could sell or
exchange these lands under the Townsite Act or the Small Tracts Act, but if the recipient
doesn’t have the funds or land to trade, only Congress can convey the land for free. These
bills commonly include a reversionary clause that allows the government to reclaim the
land if used for a different purpose.

There is also the rare case of the land bill that actually serves the broader public interest.

Such a case was the Deafy Glade Land Exchange, introduced in 2008 by Rep. George
Miller (D-CA). Except for a few years’ hiatus in the early 2000’s, Miller has been a long-
time member of the House Natural Resources Committee and has been one of the few
Members to recognize the significance and potential pitfalls of some of the land bills that
went through the Committee.

3 21 4
 The Deafy Glade bill mandated a land exchange in which the
Mendocino National Forest would give 82 acres to Solano County,
California, and receive in return 160 acres (4 parcels) of inholdings
within the national forest, adjacent to a Wilderness Area.

The national forest land that would be privatized is the site of the Fouts
Springs Youth Facility, a correctional facility that operates under a 20-
year special use permit issued in 2000.

The project was originally proposed as an administrative (agency) land

exchange, and the Forest Service issued a feasibility analysis in 2006.
Office of Rep. George Miller

One issue between the parties was a complicated water rights issue
related to problems with transferring some of the public land (and water
right) into private ownership. As a solution, Solano County proposed
to take only the fraction of water right it required for the facility and to
dedicate the rest to instream flows, an unusually reasonable offer.

Ultimately, the Forest Service decided against doing the exchange,

Rep. George but in its public interest determination the agency did a poor job of rationalizing the
Miller (D-CA) decision. The agency’s own description of the lands indicated that ”resource” (i.e.,
favors public land undeveloped) values were much higher on the non-federal lands than on the Fouts
protection and has Springs parcel, so it was clear that the trade would be of benefit environmentally.
a long record on
issues related to One reason the Forest Service cited for retaining the Fouts Springs land in public
land disposals and ownership was for potential future off-road vehicle “staging.” It appeared that political
exchanges. pressure from off-road vehicle users, a belligerently vociferous constituency, was the
central reason for the agency’s decision not to do the exchange. Rep. Miller’s bill did
require that the exchange occur, but it did not waive NEPA or set a deadline.

In terms of both the on-the-ground results and the lack of objectionable legislative
language, Deafy Glade is a prime example of the rare land exchange worthy of legislation.

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 3 Appendix C: Taking Action 4
One of the things that keep congressional land deals feasible is lack of scrutiny. For
citizens who are interested in following these projects and speaking up, it’s not difficult—
and it can make a huge difference.

Using the Congressional Website

The Internet has made it easy to research legislation, to submit comments or questions
to your members(s) of Congress, and even to submit written testimony to congressional
committees.

The U.S. Congress has an excellent website, http:\\thomas.loc.gov. “Thomas” is named

for Jefferson, and the “loc” is the Library of Congress he founded.

You can enter bill numbers or search terms on the homepage to retrieve a current bill
or past bill or to search multiple congresses. Common search terms might include “land
exchange” or “conveyance.”

You may be presented with several versions of a bill. “Enrolled” or “engrossed” bills are
versions that have progressed further than “introduced” bills, so prioritize those if you
wanted the latest information. Once you click on the link to the bill, you’ll receive several
choices, including “bill status,” which will give you detailed information as to the bill’s
progress through committees, amendments, etc. Other choices provide you with a sum-
mary of the bill and the full text.

To find the committees that oversee public land issues, use the links to Senate or House
and go from there.

In the House, you will want to look at the Natural Resources Committee and its Subcom-
mittee on National Parks, Forests, and Public Lands.

In the Senate, see the Energy & Natural Resources Committee and its Subcommittee on
Public Lands and Forests and a second subcommittee concerning National Parks.

The committee and subcommittee websites will display the schedule for upcoming hear-
ings. The Senate committee even provides links to past hearing transcripts.

Contacting Your Members of Congress

Unless you live in the Territories or Washington, D.C., you’re represented by one mem-
ber of the House and two senators.

You can find your members of Congress by starting at the Thomas homepage and access-
ing the House and Senate websites, where you can find your representative and senators
by zip code if you do not know them; find their websites; and get information on contact-
ing them by phone or email. Since the anthrax scares of the early 2000s, postal delivery
to anyone in the Capital has slowed to a crawl, so phone and email are the recommended
modes.

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 If you want to send a letter to your members of Congress about a public land issue, it is
usually best to send it through the aide who is in charge of that issue area, “public land,”
“natural resources, “ or “environment.” Usually, both your local office and the D.C. office
will have such a person on staff. You can send via email or fax.

Your representative and senators may not be on the committees or subcommittees that
oversee public land issues, but it is important that they be made aware of your issue.

Contacting the Committees and/or Submitting Testimony

If lawmakers who represent you are on one of the public land committees, that’s great. If
they are not, after you contact them, it is probably most effective to focus on the chair of
the subcommittee of concern (named above).

The committee and subcommittee websites have contact information. It can be particu-
larly effective to talk to a staff person from the appropriate subcommittee about your
issue: if you have substantive information, it may end up in the staff report on a bill; if
you have an opinion, that can also make a difference—particularly since the staff do not
receive a lot of communication from citizens on these issues. They hear mainly from
interest groups and organizations.

Staff people can also advise you as to your most effective course of action, such as send-
ing a letter, submitting written testimony for a hearing, etc. If there is a particular Mem-
ber who needs to hear your perspective, they may direct you to his or her office.

You can send written testimony to be part of the record for a hearing; contact the sub-
committee to find the best method for doing so and to learn about any requirements. An
example of written testimony is provided on the following page.

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