Lands

Landownership Adjustments: the Eastern Sierra Landownership Adjustment Project

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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

 

 

Land Sales, the Shifting Language in the Senate Bill, and the TWS Map

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This is what TWS thinks
“Map and analysis by The Wilderness Society using source data from BLM, USFS, USGS, NPS, and SENR reconciliation bill text as of June 16th 2025.”Check out your own area and compare with bill text. You can see the communities on my area on the map and compare them to the green (“potentially for sale”).

I was hoping not to write about this, at least until the language in the bill was settled, but there is so much lack of clarity around it right now, I thought I’d take a stab at it. I am generally against selling federal land (trades are better IMHO), and at least BLM has the authority to dispose of land anyway under FLPMA, but the House didn’t pass the sales section, so to me, it passing both houses still seems unlikely.

Let’s look past the more apocalyptic framings and start from a rational wonkish basis.

What is the problem as stated by proponents? Are there alternative ways to solve the problem?

Some towns and cities are surrounded by federal land and are growing in population.  So the federal land could be used potentially for housing, especially for building lower cost housing.  Now I’m sure that there is a think-tank somewhere that has analyzed leasing versus selling.  I suppose leasing would run into ongoing administrative costs, plus maybe legal liability?  But if you can permit a resort or a camp, why not housing?

Like I said about the Public Lands Rule, if you plan to change laws or rules to do things the agencies can already do, it would be helpful to have a rationale.  Sadly, political actors don’t seem to need rationales.  Maybe in a backroom somewhere a Senate legislative staff person is asking these questions and getting answers, but we aren’t (similar to the Public Lands Rule, again).

But what happens when this occurs (they already have tools to do this) is that people lose trust in that actually being the rationale and wonder if it’s really something else.  It could be that Senator Lee simply has a bug in his bonnet about federal lands due to the long history of his state and this is the current bug-effluence? Or is there something deeper.. millions of acres will be sold for other purposes and somehow when the other purposes are revealed there won’t be litigation?

Anyway, if they were policy folks and not pols, there would be problem framing and various options with pros and cons to solve the identified problem.

So here we are.  I think the Wilderness Society maps and numbers are questionable based on a need for housing because… I’m not sure the acres are crosswalked with proximity to communities which seems to be a requirement. Check out your own area. I can safely say there are no communities in proximity to many of the acres shown green in the area I know best.

Here’s the current language:

the extent to which the development of the tract of Bureau of Land Management land or National Forest System
” land would address local housing needs including housing supply and affordability)  or any associated infrastructure to support
local housing needs.”

and priorities:

(A) are nominated by States or units of  local governments;
(B) are adjacent to existing developed  areas;
(C) have access to existing infrastructure;
(D) are suitable for residential housing

Here’s what I like about it:

1. If sales are going to happen, which they do,  have an open process to nominate parcels (not smoke-filled rooms), everyone gets a chance

It’s a bit of a social justice issue for me. For example, it appeared that powerful political figures (Senator Harry Reid) may have existed in Nevada who designed not only sales but exactly where the money would go and got it passed in Congress (and why did money from the sales go to Lake Tahoe, which doesn’t seem close to Las Vegas?).  Is that fair to communities without powerful politicians?

2. Local governments and States do the nominating (no extra work for feds)

What I don’t like about it:

1.Targets (why?) (the agencies have enough to do, with fewer employees and smaller budgets)

2.Understanding why selling is better than leasing or permitting, or why this bill is needed instead of other ways of tweaking existing authorities.

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There’s an interesting article in the Cowboy State Daily about the validity of the Wilderness Society map (caution, I think the checkerboard idea is gone from the current text, linked above, at least I searched on the word and couldn’t find it).

For example, the map shows nearly all of the Bridger-Teton National Forest could potentially be sold, as well as a huge chunk of the Bighorn Mountain Range in northern Wyoming.

In my experience, there are many acres in both areas that do not fit the bill’s requirement of “addressing local housing needs.” I think it would be much more difficult to map.  First you’d have to identify communities by some density or other cut-off (maybe the existence of a post office?). Then figure out if they have an affordability problem.  Then say take some amount say 50 acres? for each of these, if there happened to be NFS or BLM land “adjacent to developed areas.” We’d have to figure out how to define “developed areas” and maybe “adjacent” although that seems pretty clear. That’s how I’d do it, anyway.

Many groups have come out against what’s in the bill, or the general idea, including hunting groups, I think based on the generic idea of sales.  Hopefully people aren’t hunting “adjacent to existing developed areas.” I went down a side trail on this and found that 500 feet from homes is a general shooting rule. But across the country these distances vary greatly.

So it appears that a) the House rejected this. 2) The Senate is still working on language, 3) TWS posted a map which doesn’t IMHO address the language in any substantive way, 4) people react strongly to the map.

Like I said, I am not a fan of the current bill for my wonk-ish reasons. But I also think there’s something weird about how people believe.. maps.. perhaps more than words. I also get the “camel’s nose under the tent” view. But given that, could we still go back to “what is the problem?” and “what are potential solutions?”

For Sale – half million acres of federal lands

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La Citta Vita, Flickr

The ball is rolling on selling federal lands for housing with the creation of a task force that would identify federal land that would be suitable for housing.  The task force would be run by the Departments of the Interior and Housing and Urban Development.

“The aim of Trump’s new task force is to identify the land parcels suitable for building. It will then transfer or lease them out to public-housing authorities, nonprofits or local governments to develop homes.  The land might occasionally be sold to private developers, according to a HUD representative.  The federal agencies would determine that on a “case-by-case basis” in coordination with the local government.”

Really?  One might suspect this money-grubbing Administration would sell the most valuable land and to the highest bidder.  Especially if this is going to be used to finance its sovereign wealth fund.

No mention here of whether the Forest Service or national forest lands would be involved – it could be limited to lands not otherwise “designated,” including national forests.  The other interesting thing is this:

“Developing even 512,000 acres of the Bureau of Land Management’s lots could yield between three million and four million new homes across western states such as Nevada, Utah, California and Arizona, according to a preliminary analysis by the American Enterprise Institute, a Washington, D.C., center-right think tank.”

It’s hard to picture where those acres would not be, given that …

“Only a small portion of U.S. government-owned land is near cities with housing shortages. About 47 million acres, or 7.3% of all federal land, falls within metropolitan areas that need more homes, according to a Wall Street Journal analysis of government land maps and housing-shortage data from the National Association of Realtors.

In a few cases, local housing shortages overlap with an abundance of federal land in the area, such as Salt Lake City and Las Vegas.  This policy could make a big difference for those housing markets.”

But what about Seattle, Portland, Spokane and … Missoula.  The prices in many northwestern national forest-adjacent cities (and towns) indicate a housing shortage in these places.  This article says the Secretaries want “affordable” housing, but it’s hard to imagine what kind of constraints that would put on the process – anywhere that has a housing shortage has an affordable housing shortage, and I can’t imagine this federal government adding requirements to local real estate deals to ensure housing affordability.  Given the lack of guardrails being recognized by this Administration, I can  imagine that any community that is interested could be coming into some new real estate.

“HUD will pinpoint where housing needs are most pressing,” and Interior “will identify locations that can support homes while carefully considering environmental impact and land-use restrictions,” the agencies’ secretaries wrote in the Journal’s opinion piece.

So they say.  Will they consider the effects on national forest management of expanding the WUI?  Land management plans should have identified lands suitable for disposal (or maybe a process for doing that) – would this matter?  (Maybe someone with a WSJ subscription can pry out some more details about what these Secretaries have in mind.)

New to national forests – carbon sequestration

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The world’s largest carbon direct air capture facility has started construction in Iceland

From the news release:

The U.S. Department of Agriculture’s Forest Service today announced a Notice of Proposed Rulemaking (NPRM) that would allow the agency to consider proposals for potential carbon capture and sequestration projects on national forests and grasslands. This proposal would harmonize the framework between the federal government’s two largest land managers by aligning with regulatory structures already established for the U.S. Department of Interior’s Bureau of Land Management.

If this amendment is finalized, applications for carbon sequestration on national forests or grasslands would be considered for permanent use. The proposed regulation changes the initial screening criteria to allow the Forest Service to consider proposals for carbon capture and sequestration projects and does not allow for any other permanent uses on national forests and grasslands.

From the Federal Register:

The United States Department of Agriculture, Forest Service (Forest Service or Agency), is proposing to amend its special use regulations, which prohibit authorizing exclusive and perpetual use and occupancy of National Forest System lands, to provide an exemption for carbon capture and storage.

Carbon dioxide injected in pore spaces may remain for over 1,000 years after injection and would be tantamount to an exclusive and perpetual use and occupancy if authorized on NFS lands.

The proposed rule would not authorize carbon capture and storage on NFS lands. Rather, the proposed rule would exempt proposals for carbon capture and storage from the initial screening criterion prohibiting authorization of exclusive use and occupancy of NFS lands, thereby allowing the Forest Service to review proposals and applications for carbon capture and storage and to authorize proposed carbon capture and storage on NFS lands if, where, and as deemed appropriate by the Agency.

Proposals for underground storage of carbon dioxide would have to meet all other screening criteria, including but not limited to consistency with the applicable land management plan, potential risks to public health or safety, conflicts or interference with authorized uses of NFS lands or use of adjacent non-NFS lands.

Of course it would have to be consistent with forest plans, but would a forest plan that authorizes “exclusive and perpetual use and occupancy” of national forest lands be consistent with the Multiple-Use Sustained-Yield Act?  (Is the BLM different in this regard?)  I assume that’s why the existing special use regulations are written to prohibit permanent uses.  Maybe this should be viewed as a question of divesting ownership rather than a permitted special use.

 

Bill to Use Federal Land for Affordable Housing: HOUSES Act of 2022

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This isn’t about employees, but is of interest.

U.S. Sen. Cynthia Lummis has co-sponsored legislation that would allow federal land to be used for public housing.

The Helping Open Underutilized Space to Ensure Shelter Act (HOUSES) would open up parcels of federally owned land for states or local governments to buy for the purpose of increasing the availability of housing.

“The purpose of the bill is to make state and local governments able to buy local land for home development,” Lummis told Cowboy State Daily on Wednesday afternoon.

The legislation would amend the Federal Land Policy and Management Act and also proposes that state or local entities would be allowed to buy federal public land at a discounted rate “well below market value,” ratioed by a Payment in Lieu of Taxes price.

The HOUSES Act was first introduced in 2022 and was recently reintroduced by Lummis, bill sponsor Sens. Mike Lee, R-Utah, John Barrasso, R-Wyoming, and Dan Sullivan, R-Alaska. Lack of affordable housing has become not only an issue in Wyoming in recent years, but also throughout the entire West.

“Housing affordability is a nationwide problem. Rent is high and mortgages are even higher thanks to Bidenomics,” Barrasso said in a statement. “The HOUSES Act will provide new options to state and local governments by allowing them to buy certain lands from the federal government for residential purposes. As more people move to Wyoming, growing communities need options to expand housing.”

What It Does?
Lummis said the legislation could have a particular benefit for a number of Wyoming communities like Jackson, Sheridan and Cody that border federal land, which makes up nearly 50% of Wyoming’s total acreage.

“Affordable housing is becoming less and less capable in Wyoming,” she said.

The Joint Economic Committee of Congress estimates the bill would lead to the construction of 2.7 million more homes in the U.S. and alleviate Wyoming’s entire housing shortage.

Under the bill, development would be limited to federal lands directly adjacent to where existing sewer infrastructure could be developed and would also exclude particularly sensitive tracts of land such as wilderness areas and national monuments. This would leave out most federal land aside from BLM and Bureau of Reclamation property.

I don’t think that’s true.. it sounds like FS would be included.

It would ensure that lands are primarily used for housing with a mandate that at least 85% be dedicated for residential purposes and the community’s related needs. It also includes density requirements, ensuring a minimum of four homes per acre and prohibits the development of luxury second homes on these parcels.

“It allows the carve-out of small parcels and is especially for the purpose of adding affordable housing,” Lummis said.

A local entity would be allowed to use the land for low-income housing, condominiums, single-family homes or even mixed-use developments.

The local government would submit requests for conveyance to the Secretary of the Interior, who would then need to approve the sale along with a state’s governor.

Not Just Houses …
According to the bill text, construction of community amenities like assembly halls, firefighting facilities, grocery stores, health clinics, hospitals, libraries, churches, police stations, recreational facilities and schools would also be allowed.

It would also require the construction of water, sewer, electricity, communications infrastructure and some connection to public transit.

Creating industrial areas would also be allowed if they include “manufacturing, assembling, processing, extracting or otherwise treating raw materials.”

The Federal Land Transaction Facilitation Act already allows for the exchange of specific, low-value, isolated parcels of public land where it is necessary, seen most prominently on the far edge of Las Vegas.

“Instead of doing these on a case-by-case basis, this will establish an act of Congress to allow it,” Lummis said.

Some conservatives have criticized proposals like these as the government meddling in the private market. Lummis doesn’t buy that argument because the land being discussed isn’t available to the private market anyway.

“The private market is already cut out now because it’s federal land,” she said.

Lummis added that she finds it nearly impossible these days for the private sector to make money off building affordable housing.

The HOUSES Act also has been derided by a handful of environmental groups like Backcountry Hunters and Anglers as anti-public lands.

“The availability and affordability of housing is a real concern that impacts everyday Americans; however, the HOUSES Act does not present a meaningful attempt to solve this issue,” the group said in a Monday press release. “Rather, it would facilitate the removal of multiple-use lands from the public estate.”

I have some questions..probably someone has been following this..

  1. Why Nevada and nowhere else?
  2. To environmental groups, is this more OK if done piece by piece, or not acceptable at all?
  3.  Does the land have to be transferred, or could it be traded or leased?

Improving public access to public lands

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We have discussed “corner crossings” and other barriers to public land access resulting from land ownership patterns.  Overlaying this is another barrier – availability of information about the extent of public access that does exist.  It turns out there is a lot more existing public access than meets the eye, and some technology and legislation is making more information about it available to public land users.

… the Theodore Roosevelt Conservation Partnership teamed up with onX to quantify the scope of the landlocked public lands problem and offer solutions that would open access to these acres. Since 2018, the team has found a staggering 16.43 million acres of inaccessible public land across 22 states. …  With $27 million from the Land and Water Conservation Fund dedicated to increasing public land access each year, there is an incredible opportunity to address the landlocked public lands problem through strategic land acquisitions and access easements.

We soon learned that the Bureau of Land Management and U.S. Forest Service held roughly 90,000 such access easements—where permanent access to public land has already been secured—but 50,000 were only recorded on paper, stored away in the dusty filing cabinets of local agency offices.  Neither the agencies, nor the public, have ever had a complete digital picture of where there is legal access to our public land. Seeing a clear need for a solution, TRCP experts began talking with lawmakers, which led to introduction of federal legislation called the Modernizing Access to Our Public Land Act.

The MAPLand Act requires federal land management agencies to digitize their paper easements, information about roads and trails and vehicle type on federal land, and the boundaries of areas with federal rules concerning weapon type and shooting. The ultimate goal is to make all of this information readily available to the public.  In April 2022, the MAPLand Act was signed into law.  This means that complete and consistent mapping data about road, trail, and shooting access will be digitally available to hunters and anglers wanting to use their public lands.

Of course funding this in a deficit-reducing environment may not happen as fast as we’d like.

Should ANILCA Access Provisions Apply Outside Alaska? New Case by Wilderness Workshop and Rocky Mountain Wild

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The White River National Forest has approved year-round access and paving of Forest Service Road 780, a summer-only route above Edwards, to provide access to the proposed 19-home Berlaimont Estates project. (Jason Blevins, The Colorado Sun)
This is usually Jon territory, but since it’s in Colorado…
Interesting story by Jason Blevins at the Colorado Sun. Basically the plaintiffs are charging that ANILCA shouldn’t apply outside Alaska. Calling its use by Supervisor Fitzwilliams an “artful dodge” (plaintiffian hyperbole) is kind of silly in my view. TSW veterans of the great Village at Wolf Creek controversy (or as I called it “reasonable access for unreasonable people”) and other access issues across the country will know that Scott didn’t just dream it up.. after all, as the article says, the FS has been using the legal precedent since the 9th Circuit called it in 1981, and is certainly what FS folks are told by their lawyers.

has been deployed many times in the West and in Colorado to force the Forest Service to provide roads across public land to access islands of private property.

To me it says reasonable access and reasonable is in the eye of the beholder. Should this be changed to “not required to provide any kind of access?” Seems to me that that question should go back to Congress. Many of us could help with stories on the difficulties of interpreting “reasonable,” and ideas for useful clarifications. That’s one reason I prefer not to let courts handle these things..they can say what’s wrong, but can’t tell us what’s right, or what could work better.

Extra points to Jason for explaining this complex stuff accurately (or at least as far as I can tell) and attaching the complaint and a link to the precedent case Montana Wilderness Association v. US Forest Service. And Bob Zybach and others will appreciate that he spelled out how to pronounce FLPMA and ANILCA. If you appreciate his work, please consider sending him a note. Remember that old management idea “catch people doing something right”?

You don’t hear much about FLPMA and the Forest Service, since FLPMA is generally regarded as a BLM statute, based on the definition of public lands in it. See here.

This Complaint involves Forest Service decisions regarding National Forest System lands in Western Colorado. Defendants applied the mandatory access provisions of the Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. §§ 3101 et seq. (“ANILCA”) instead of the discretionary access provisions in the Federal Land and Policy Management Act of 1976 (“FLPMA”) that apply to federal public lands outside of Alaska, including National Forests. 43 U.S.C. § 1740 of 1976 (“Secretary of Agriculture, with respect to lands within the National Forest System, shall promulgate rules and regulations to carry out the purposes of [FLPMA]” when considering access requests.). The National Forest Management Act of 1976, 16 U.S.C. § 1600 et seq., (“NFMA”) also applies to the National Forests, but because access issues were inadvertently omitted from NFMA, the access provisions involving National Forests were included in FLPMA. Applying ANILCA’s Alaska-specific provisions to an access request
involving the National Forest in the Lower 48 States is contrary to the plain language of ANILCA and FLPMA.

It sounds like the FS was supposed to promulgate rules in NFMA.. did they? Lands people out there?

Check out the judges’ decision in that case, which goes back to mind-curdling details of the legislative history. And it returns to Colorado.

The appellees, however, have uncovered subsequent legislative history that, given the closeness of the issue, is decisive. Three weeks after Congress passed the Alaska Lands Act, a House-Senate Conference Committee considering the Colorado Wilderness Act interpreted § 1323 of the Alaska Lands Act as applying nation-wide:

Section 7 of the Senate amendment contains a provision pertaining to access to non-Federally owned lands within national forest wilderness areas in Colorado. The House bill has no such provision.
The conferees agreed to delete the section because similar language has already passed Congress in Section 1323 of the Alaska National Interest Lands Conservation Act.

Should be an interesting case..

The specific White River case seems to be about a summer only unpaved road being changed to an all-season paved road. We discussed it here, but it seemed like that story was used to take a swipe at Trump-era NEPA regs. And yet, here we still are…

Conservation groups should be able to lease land to protect it

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(I figured this from High Country News originally came from the Property and Environment Research Center, “the home of free market environmentalism,” and I wanted to make that clear.)

In much of the rural West, environmental groups have a reputation for suing to stop natural resource development. But some, like the Wyoming group, are attempting a new strategy: purchasing what they want to protect. The approach, sometimes called conservation leasing, could bolster “30 by 30,” the Biden administration’s ambitious conservation plan to conserve 30% of the nation’s lands and waters by 2030, without ending the leasing revenue that state governments have long derived from resource extraction.

The only problem: It’s often illegal.

These century-old “use it or lose it” requirements were designed to deter speculation and encourage white settlement. But today, they can bias resource management in favor of extraction.

We may have discussed this before, but not in the context of “American the Beautiful.”  (Note: they seem to assume that not all federal lands would automatically qualify, and that at least those committed to energy or grazing would not.)  Why not change the rules to allow non-consumptive/preservation interests to pay to prevent development (for a contractual time period that would count towards 30 x 30) on publicly owned lands?  I suppose a couple of answers are that 1) they shouldn’t have to pay, and 2) that money could be better used for something else.  But would just removing the legal barriers to allow that option to be considered in lieu of energy or grazing for areas where environmental protection is more valuable be that bad of a thing?

National Forest State Park

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Sweetwater Lake, located in remote northeastern Garfield County in the Flat Tops Wilderness Area, is set to become Colorado’s first state park on federal land after it was acquired by the U.S. Forest Service in August 2021.

“Colorado’s first state park on federal land.”  This came across as an oxymoron, but why not?

This land acquisition followed a common pattern, where a non-profit conservancy (The Conservation Fund) acquired private property until the federal government had the funds (Land and Water Conservation Fund) to purchase it and add it to a national forest (White River).  (From Colorado Parks & Wildlife, linked below.)

This Land and Water Conservation Fund purchase followed the acquisition of the property in 2020 by The Conservation Fund, which was made possible by a loan from Great Outdoors Colorado and local fundraising efforts such as the “Save the Lake” Campaign organized by Eagle Valley Land Trust.

A little less common (to me any way), the Conservation Fund is also continuing to fund management, according the Eagle Valley Land Trust:

“We’re also excited to announce our Sweetwater Lake Stewardship and Equity Fund, which will assist the Eagle Valley Land Trust and our agency partners in activating the property for public use and enhancing opportunities for underserved communities to enjoy the space for years to come.”

There is an existing Forest Service campground on adjacent land.  The Forest Service had this to say in the formal announcement from Governor Polis:

“Sweetwater Lake has tremendous ecological and cultural values and outstanding opportunities for recreation.  This partnership allows the White River National Forest to incorporate the local expertise of the Eagle Valley Land Trust and the recreation management and wildlife expertise of Colorado Parks and Wildlife to best serve visitors to the area,” said Rocky Mountain Regional Forester Frank Beum.

Colorado Parks and Wildlife added:

“Colorado Parks and Wildlife is excited to modernize facilities and provide updated and sustainable recreational services through this partnership. Our main priority is to conserve the unique character of the area while improving access to this incredible property,” said Colorado Parks and Wildlife Director Dan Prenzlow.

None of this said much about the State’s authority and responsibility, but I don’t know why they couldn’t lease the site and manage it as a permittee.  I don’t know if any other states have done anything like this, but as questions continue to come up about how to manage growing outdoor recreation this might be an option in some other places.

Coverage of the Great American Outdoors Act- Giving Senator Gardner His Due (or Not)

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Yesterday I posted this asking the question, why 15% of the total backlog $ to the Forest Service? But let’s not lose track that everyone worked together to achieve this, and it made its way through an otherwise divided Congress by amassing support through the work of a coalition and politicians of various stripes doing their legislative thing. So you would think that this would be a time to celebrate! And it is.. and I think the cosponsors in the Senate, Gardner and Manchin, especially deserve to be congratulated.

My favorite story was this one from Outsider Magazine by Frederick Reimers.. I think he got both the celebration for all of us, and the responsibility of Senator Gardner right.

Earlier today the Senate passed the Great American Outdoors Act, allocating billions to support outdoor recreation in two separate ways. The first is by providing $9.5 billion over the next five years to help the National Park Service and other federal land-management agencies address their maintenance backlogs. Federal public lands are suffering from $20 billion in deferred maintenance costs, with $12 billion of that accumulated by the National Park Service. The second is to mandate that the Land and Water Conservation Fund (LWCF), widely considered the nation’s single best funding tool for outdoor recreation, be permanently financed to its maximum allotment of $900 million annually. In March the president called for such a bill to land on his desk.

It’s a remarkable breakthrough at a time when the White House has been hostile to federal conservation and land-management agencies and to the LWCF; Trump’s proposed 2021 budget slashed the Park Service budget by $587 million and allocated just $15 million to the LWCF, a mere 1.6 percent of its allotment. The bill passed by a vote of 73 to 25. Proponents, including the bill’s sponsor, Republican Cory Gardner of Colorado, tout the Great American Outdoors Act as a way to get people back to work after millions have been laid off in the wake of the COVID-19 pandemic. “Years of bipartisan work have led to this moment and this historic opportunity for conservation,” says Gardner. “Today the Senate passed not only the single greatest conservation achievement in generations but also a lifeline to mountain towns and recreation communities hit hard by the COVID-19 pandemic.”

(Sharon’s note: Colorado is full of “mountain towns and recreation communities.”)

A bipartisan group of lawmakers introduced their version of the legislation in the House of Representatives on June 4, and passage of that version is expected in the coming weeks, clearing the way for the president to sign the bill into law.

“We are going to have to rebuild the economy, and this can be a really big part of that,” says Democratic senator Martin Heinrich of New Mexico, noting that nationally, outdoor recreation contributes $778 billion in consumer spending and supports 5.2 million jobs, yet “our trails and campgrounds aren’t in the shape that they should be, which directly impacts economic activity on public lands and in gateway communities.”

In May, more than 850 signatories representing conservation organizations, local governments, and state and regional tourism boards urged congressional leaders to support the bill. “The Great American Outdoors Act will ensure a future for nature to thrive, kids to play, and hunters and anglers to enjoy,” they wrote.

Senator Heinrich of New Mexico, in addition to Gardner and Manchin, appears to be a special hero to Forest Service fans:

Heinrich lauds Republican senators Lamar Alexander of Tennessee and Rob Portman of Ohio, in addition to Gardner and Daines, with being tireless champions of the Great American Outdoors Act, which he says was named “to appeal to the White House.”

Heinrich, who most observers credit with driving the effort to expand maintenance funding beyond the Park Service, explains that while the Bureau of Indian Education doesn’t have a recreation mission, it was included in the bill because, by “historical accident,” the agency was placed in the Department of the Interior, and therefore, he says, “time and again their funding levels get left out. Sometimes you have to deal with the history that puts us where we are.”

Disappointingly, IMHO, the Paonia, Colorado-based High Country News reprinted a piece from the HuffPost that focused on the “vulnerable” Republicans and implied that they only supported the bill because they are “vulnerable.” It was part of an effort called Climate Desk, although the link between the GAOA and climate is less than direct IMHO. I recognize that partisan politics is one lens to view the news. It shouldn’t be the only lens, though, even if it’s easier to acquire that reporting from NGO-funded news sources.

“It is a desperate attempt to convince their constituents that they aren’t working on behalf of corporations and that they care about what the American people care about,” said Jayson O’Neill, director of public lands watchdog group Western Values Project.

We discussed the Western Values Project in this post, which also has a link to Dave Skinner’s writing in the Flathead Beacon, and an E&E News story.

I hope every state has an outlet like Colorado Politics. It helps us understand who is funding whom to what end, always of interest.

Based on CoPo stories, the Sierra Club has taken a particular dislike to Senator Gardner, from this CoPo piece from November.

“The organization notes that Gardner has introduced a bill to reauthorize of the Land and Water Conservation Fund, but his heart isn’t really in it. “[H]is apparent goal is not to pass full funding for LWCF, but rather to maximize the number of positive press hits he gets talking about full funding of LWCF,” according to the Sierra Club. “He has put forth an amendment he knows will not get a vote and in reality does little to move the ball forward.”

Given the outcome with the Great American Outdoors Act, that statement seems remarkably non-prescient. Or this one from CoPo in December:

“Sen. Gardner sits in the majority in the Senate, sees himself as a leader in his party, so there is no good reason for him not to get full funding completed by the end of this year,” said Emily Gedeon, conservation program director for the Colorado Sierra Club. “He puts himself out as an ardent conservationist, but talk is not enough, and he needs to be calling on Senate leadership to get this done.”

After rolling out five critical billboards around the state — including along the main road to the incumbent Republican’s hometown, Yuma — the environmental advocacy organization announced Tuesday that it has another $150,000 in TV ads on network stations in Colorado Springs, Denver and on the Eastern Plains to run through Dec. 20.

I understand that the Sierra Club must think that a D majority in the Senate would be a good thing for the environment, but can we all just take a deep breath and celebrate something good for a few days? And consider, for a minute, that it’s conceivable that Gardner is representing our state’s and people’s interests, and the idea that it’s a political ploy may be worth a few sentences, but is certainly not the whole story.