Land Exchanges
Are federal land exchanges serving the public interest?
Land exchanges between public land managers and private interests have been enacted for decades, often resulting in the public's acquisition of desirable lands held by private owners.
In recent years, however, there have been significant increases not only in the amount of public land put up for trade, but in the number of land swaps that appear to benefit the private land owner rather than the interests of the public. Federal land exchanges now number more than 300 a year, and often involve the trade of tens of thousands of acres of land per transaction.
In more and more cases, the Forest Service and Bureau of Land Management (BLM) are trading ecologically important lands to mining, timber, grazing, and development interests in return for damaged private lands. Too often, the trades are initiated by the private party, not the agency, with the intent of seizing public resources for extraction or development.
The lands we are losing
In many exchanges, we are trading away lands we can ill afford to lose. Examples include:
- The Huckleberry and I-90 land exchanges in Washington's Mt. Baker-Snoqualmie National Forest, combined, divested the Forest Service of thousands of acres within the Green River watershed and consolidated Weyerhaeuser and Plum Creek Timber Company holdings over an area covering several square miles. The public lost native forest and took on thousands of acres of denuded corporate land.
- In Wyoming's Targhee National Forest, the Forest Service and a ski resort developer have joined forces to revive a land swap the Forest Service rejected in 1994 because it was not in the public interest. The exchange would trade public land to owners of the Grand Targhee Resort, allowing the resort to expand its facilities and develop the site to maximum build-out on a newly-created private inholding located 14 miles inside the Forest boundary and adjacent to a Wilderness Area.
- In central Arizona, the multinational mining conglomerate ASARCO is hoping to obtain about 10,000 acres of public land surrounding its Ray Mine in order to expand its operations. In exchange, the company is offering 7,300 acres of scattered inholdings throughout the state. (Click here to read about our lawsuit against this exchange).
- Throughout the Southwest, developers are proposing exchanges to acquire valuable lands outlying rapidly-expanding urban areas and even to build "leapfrog" communities far from current development and infrastructure. Exchanges are facilitating the paving-over and subdivision of endangered species habitat and putting unmanageable demands on the desert's scarce water supply.
These few examples just scratch the surface of the issue. More and more would-be land barons are finding ways to use the land exchange programs as a method of taking what they want of our public resources—and painting the deals as "win-win" projects that serve the public good.
Flaws in the system
Public access to decision making
Most large exchanges are implemented through the National Environmental Policy Act (NEPA) process, and allow for standard public participation. But land trades carry a unique set of problems for citizens trying to understand the tradeoffs and environmental impacts associated with them. The land management agencies have treated exchanges as mere real-estate transactions and have obfuscated their very real environmental consequences.
Environmental analyses routinely fail to explain the true condition of the lands acquired from corporate interests (e.g., clearcuts and damaged riparian areas) and may downplay the value of public land that would be relinquished. Exchanges are convoluted transactions, in constant flux as the public and private parties add and subtract lands and other resources from the deals.
Legislated land exchanges, several of which occur each year, are very problematic for citizen participants. These deals usually come to Congress when proponents know that they could not withstand public scrutiny. Swaps enacted through Congress routinely bar both administrative and judicial challenges by citizens. Many are swept through legislation without public knowledge or any real examination by members of Congress.
Hidden appraisals, questionable valuations
The appraisal of lands is a key part of the process, because the law requires that land trades yield equal value to the public and private parties. But in land exchanges throughout the West, citizens and experts have questioned the high values placed on private lands with no development potential and the low values given public lands rich in resources. Numerous audits by government watchdog agencies in the past several years have identified severe flaws in the valuation process. Private parties have exerted too much control over the results and walked away with multi-million dollar windfalls at the expense of taxpayers and public lands.
Until recently, land appraisal data that are essential to determining whether a land exchange is equal (and thus legal) have been closed to the public until after the completion of a trade. Thanks to our litigation—but even more to public outcry and media exposure—the agencies have had to come clean on this issue and grant citizens access to this important information.
Agency incentives to enact exchanges
When an agency and private party enter into an agreement to pursue an exchange, it is standard for the private party to commit to paying at least half the cost of surveys, environmental analyses, and appraisals. While it would not be fair for taxpayers to foot the entire bill for these projects, cost-sharing can give the private parties too much power to dictate the outcome.
In the Arizona BLM's exchange program, the private proponents are paying the salaries of AZ BLM staff working on the projects. The appearance of conflict of interest among agency staff is also common, where staff have friendships or business connections with the private proponents. These situations are not conducive to arms-length, public interest-oriented decision-making.
Fast-tracking
Once the agreement to initiate an exchange is signed, a land exchange assumes a life of its own, gathering momentum toward completion of the deal that may undermine the quality of environmental analysis and agency circumspection. Private traders often set deadlines for completion of a land swap, fast-tracking the analysis and putting undue pressure on the agency to complete the transaction.
Alternatives to flawed policies
Land exchange law and regulations require that land swaps be implemented only where they serve the public interest, but there is ample evidence that public land managers are straying from this mandate.
Under current federal land exchange policy, the public interest has been subordinated to the interests of private traders. In their fervor to make a deal, land managers are betraying our trust and making decisions that could damage the integrity of public lands for generations to come.
Fortunately, there are alternatives to these policies.
Land & Water Conservation Fund
Purchase of lands through the Land & Water Conservation Fund (LWCF) is an alternative to be considered in any exchange aimed at public acquisition of desirable lands. The Forest Service and BLM have developed an LWCF "mantra", which says that funding is too uncertain for purchase to be seriously considered as an alternative to land exchange. We believe that if the Forest Service and BLM provided citizens with the clear choice between purchase and exchange, LWCF would have a growing constituency among Americans.
Rather than treat the Fund as a lost cause, the agencies should actively promote it as an alternative to land swaps, and include an LWCF purchase alternative in all environmental analyses for land exchanges. In cases where purchase of high-priority lands is stymied by an unwilling seller, the government can also exercise the right of Eminent Domain, paying the landowner the full market value as required by law.
Deed restrictions
Regulations state that the agencies "shall reserve such rights or retain such interests as are needed to protect the public interest or shall otherwise restrict the use of Federal lands to be exchanged, as appropriate (36 CFR 254. 3(h))." The agencies seldom meet this requirement, for fear of alienating the interests of their trade partners. Where land exchanges are deemed necessary, deed restrictions must be placed on lands traded out of the public domain. Such restrictions can include conservation easements prohibiting certain types of development, stricter logging limitations, etc.
The public interest must be protected
Ultimately, land exchange policy must be re-thought and reformed to ensure that wherever federal lands are traded, the interests that we all hold in our public lands are enhanced and protected. Whether through the passage of new laws, through regulations, or by administrative direction, significant change is due. As public concern over this issue increases, land managers will realize that they have no choice but to act prudently when they make "trade stock" of our public lands. In the meantime, only the scrutiny and advocacy of citizens who care can keep public lands in public hands.
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