Landownership Adjustments: the Eastern Sierra Landownership Adjustment Project

As I said before, I didn’t think that Senator Lee had made his case that land exchanges and sales of federal land couldn’t be done through existing methods; and that new legislation was needed.  While those provisions are now gone, as I predicted, it made me curious as to what existing methods were out there.   What I heard from BLM folks was that “we can already do those things,” much like what I’d heard about the Public Lands Rule.  In terms of examples of exchanges and sales, Bill Dunkelberger (retired Forest Supervisor of the H-T) sent me the example of the Eastern Sierra Landownership Adjustment Project.  The way it’s structured made me think of ways that communities, agencies and Tribes may work together to do PODs and evacuation routes and other wildfire-related planning.  Anyway, here’s a link to the report.  It would be interesting to get an update from any of you working in the area.

Here’s what they set out to do:

Surrounded by an array of public land holdings, the communities in the Eastern Sierra are uniquely protected from over development even as they are sometimes constrained from logical and sustainable growth. With almost 97% of Inyo County and 94% of Mono County owned by public agencies, the Eastern Sierra lacks private land within and adjacent to existing communities. Administering these vast acreages of public land is a task that is sometimes complicated by isolated private parcels. The goal of the Eastern Sierra Landownership Adjustment Project (LAP) is to examine landownership patterns and exchange opportunities to maximize local resource management efficiency, community planning and expansion potential.

LAP Vision Statement

Federal and state agencies, Inyo and Mono counties, local tribes, interested citizens, organizations, and private landowners will collaborate to explore and develop options to create a landownership pattern in the Eastern Sierra that better complements collaborative regional goals while preserving private property rights F focusing on opportunities to concentrate development around existing communities and infrastructure; provide workforce housing; maintain agricultural opportunities; protect water and other natural resources and open space; and consolidate agency lands.

The Sierra Nevada Conservancy funded the LAP in 2008 and an Advisory Committee consisting of representatives from the BLM, USFS, Mono and Inyo Counties, individual citizens, and the Sierra Business Council worked collaboratively to guide the project to completion of its stated goals:

• Conduct an inventory of all potential agency lands available for disposal and identified for acquisition, and create a GIS
• Disseminate information pertaining to land disposal policies, constraints, and opportunities, and make the GIS land inventory accessible to the
• Conduct public workshops to identify community needs that could be addressed through the project, and identify potential landownership
• Based on the land inventory and community input, work collaboratively to facilitate mutually beneficial landownership adjustments and institutionalize policies to guide future

Now my BLM friends said it was fairly easy to do all this under FLPMA, but weren’t sure about the FS. I’m just going to copy these authorities, and hope that currently knowledgeable people will let us know whether they are still accurate.  There were specifics about the Inyo and HT forest plans, but perhaps they have been revised since then.  But forest plans were important pieces of the puzzle. Apologies for any formatting errors.

2.1.1          U.S. Forest Service

Standards and Guidelines

These  Federal level  policies  and  standards  govern  all  National  Forests.  For  Forest@level  policies  and standards  that provide  more  specific  guidance, see  the  individual sections  for the  Humboldt-Toiyabe and  Inyo  National Forests.

• Land exchanges are a discretionary and voluntary transaction between the Federal government and a non-Federal party (36 CFR 254.3.a).
• A determination must be made that the public interest will be well served (36 CFR §254.3.b), which may include:
  • The opportunity to achieve better management of Federal lands and resources;
  • To meet the needs of State and local residents and their economies; and
  • To secure important objectives, including but not limited to: protection of fish and wildlife habitats, cultural resources, watersheds, and wilderness and aesthetic values; enhancement of recreation opportunities and public access; consolidation of lands and/or interests in lands, such as mineral and timber interests, for more local and efficient management and development; consolidation of split estates; expansion of communities; accommodation   of existing    or    planned    land    use    authorizations;    promotion    of    multiple use    values; implementation of applicable  Forest  Land  and  Resource  Management  Plans; and  fulfillment of  public needs.

The authorized officer must also find that (36 CFR §254.3.b.2.):

• The resource values and the public objectives served by the non@Federal lands or interests to be acquired must equal or exceed the resource values and the public objectives served by the Federal lands to be conveyed,  and
• The intended use of the conveyed Federal land will not substantially conflict with established management objectives on adjacent Federal lands, including Indian Trust
  • Exchanges must be consistent with Forest land and resource management plans (36 CFR
  • 254.3.f, the Land Exchange Handbook [FSH 5409.13 Chapter 30]).
  • The non@Federal party must be the owner of the non@Federal land to be exchanged, or be in a position to acquire and convey it prior to initiating the land exchange process (the Land Exchange Handbook  [FSH  13  Chapter 30]).
  • Properties must be equal in value, or either party may make them equal by cash payment not to exceed 25% of the Federal value. Payment may be waived to the non@Federal party up to 3% or $15,000, whichever is less. (36 CFR    254.12)
  • Unless otherwise  provided  by  statute,  the  Federal  and  non@Federal  lands  involved  in  an exchange must be located within the same state (36 CFR §254.3.d, Federal Land Policy and Management  Act  of  1976 [FLPMA]).
  • Exchanges must be conducted with United States citizens (FLPMA).
  • Marketing considerations: The authorized officer has the responsibility to design land exchange transactions that consider the best marketing configuration. See the Land Exchange Handbook (FSH 13 Chapter 30), for examples.
  • Reservations or restrictions on the Federal lands shall be required only when needed to protect the public interest or to satisfy a requirement of law, such as those concerning wetlands, floodplains, heritage sites, and so forth (36 CFR §254.3.h., the Land Exchange Handbook [FSH 5409.13 Chapter 30]).
  • The use or development of lands conveyed out of Federal ownership are subject to any restrictions imposed by the conveyance documents and all laws, regulations, and zoning authorities of State and local governing bodies (36 CFR 3.h.).
  • Lands must be properly described on the basis of a standard survey or as allowable by law (36 CFR 3.j.).
  • See 36 CFR §254.3.i for hazard substance
• Federal regulations and policy provides for cost sharing and the assumption of costs, and allows for individual Forests to determine the assignment of costs and responsibilities (36 CFR 254.7, the Land Exchange Handbook [FSH 5409.13 Chapter 30]).
• The authorized officer shall undertake an environmental analysis (36 CFR §254.3.g). See the Land Exchange Handbook (FSH 5409.13 Chapter 30) for a listing of environmental analysis and protection
• Various exchange configurations can be considered (the Land Exchange Handbook [FSH 13 Chapter 30]) including assembled land exchanges, phased closing, multiple transactions, multiple conveyances (direct deeding), and dual authority exchange.
• Appraisal requirements are set forth in 36 CFR §254.9. An appraisal is based on fair market value of the highest and best use of the land as set forth in 36 CFR 254.9(b).

General Exchange Act

• The non-Federal land must be valuable chiefly for National Forest purposes.
• The National Forest land must be non-mineral in character, or the minerals must be reserved and their value considered in the exchange (with  BLM  approval).
• Requires that lands acquired be within proclaimed National Forest Service

Federal Land Policy and Management Act (FLPMA)

• Authorizes acquisition  of  land  for  access  across  non-Federal  lands  to  units  of  the  National Forest
• Requires the Secretary of Agriculture to give full consideration to State and local needs as well as Federal
• Requires lands exchanged to be of equal value, within 25%.

Exchange for Schools Act (Sisk Act)

• Allows for the exchange of not more than 80 acres of National Forest System land to a State,  county, municipal government, or public school authority without limitation to the amount of cash equalization payment made by the non-Federal part
• Lands may be conveyed to a State, county or municipal government only if the entity was using the land on January 12, 1983, and for the same use

Tools

• Exchanges (the Land Exchange Handbook [FSH 13 Chapter 30]):
  • Land for Land, including  partial  interests  such  as  severed  mineral  estates,  rights-of-way easements, leasehold interests, and long-term or perpetual easements.
  • Legislated Exchanges: Passed by an Act of Congress, and may override the requirements of USFS regulation and
• Land for Timber: acquisition  of  non@Federal  land,  or  interest  in  land,  in  exchange  for National Forest timber or the value  generated  from  the  timber  harvested  in  accordance  with a National Forest timber
• Competitive Land Exchange: when the Federal land is unique and similar private party transactions are  limited  or  non@existent  or  there  is  a  known  competitive  interest  in  the Federal
• Exchange with States and Federally Recognized
• Exchange through the Bureau of Land
• Administrative Site Exchange: may facilitate acquisition of new administrative sites, conveyance of sites that are no longer needed to accomplish the Forest Service mission, or both. Resource lands may not be conveyed for a new administrative
• Limited sale ability to schools via the Sisk Act
• National Forest Townsites: up to 640 acres of National Forest System lands adjacent to or contiguous to an established community in California may be sold for fair market value if those lands would serve indigenous community objectives that outweigh the public objectives and values of retaining the lands in Federal See 36 CFR Section 254, Subpart B.
• Small Tracts Act: provides for the resolution of land disputes and management problems by conveying through sale, exchange, or interchange three categories of land: parcels encroached on, road rights-of-way, and mineral survey fractions. See 36 CFR Section 254, Subpart