We’ve discussed this bill before, and I think it’s great news for a variety of reasons. Congress worked together through all the Congressy give-and-take to get something important to the country passed. The effort was co-led by Senators Manchin of West Virginia and Senator Gardner of Colorado. Any bill is complicated, and I’m not sure I got all the relevant pieces, but I did pick out this part of potential interest. I wonder how they arrived at the percentages for each agency…was it based on their deferred maintenance calculations or ????
“Use Of Funds.—
“(1) IN GENERAL.—Amounts deposited in the Fund for each fiscal year shall be used for priority deferred maintenance projects in the System, in the National Wildlife Refuge System, on public land administered by the Bureau of Land Management, for the Bureau of Indian Education schools, and in the National Forest System, as follows:
“(A) 70 percent of the amounts deposited in the Fund for each fiscal year shall be allocated to the Service.
“(B) 15 percent of the amounts deposited in the Fund for each fiscal year shall be allocated to the Forest Service.
“(C) 5 percent of the amounts deposited in the Fund for each fiscal year shall be allocated to the United States Fish and Wildlife Service.
“(D) 5 percent of the amounts deposited in the Fund for each fiscal year shall be allocated to the Bureau of Land Management.
“(E) 5 percent of the amounts deposited in the Fund for each fiscal year shall be allocated to the Bureau of Indian Education.
“(2) LIMITATIONS.—
“(A) NON-TRANSPORTATION PROJECTS.—Over the term of the Fund, within each covered agency, not less than 65 percent of amounts from the Fund shall be allocated for non-transportation projects.
“(B) TRANSPORTATION PROJECTS.—The amounts remaining in the Fund after the allocations required under subparagraph (A) may be allocated for transportation projects of the covered agencies, including paved and unpaved roads, bridges, tunnels, and paved parking areas.
“(C) PLAN.—Any priority deferred maintenance project funded under this section shall be consistent with an applicable transportation, deferred maintenance, or capital improvement plan developed by the applicable covered agency.
“(f) Prohibited Use Of Funds.—No amounts in the Fund shall be used—
“(1) for land acquisition;
“(2) to supplant discretionary funding made available for annually recurring facility operations, maintenance, and construction needs; or“(3) for bonuses for employees of the Federal Government that are carrying out thissection.”
We’ve discussed the use of land exchanges that would facilitate the growth of urban areas by giving them more private land in logical growth areas using the example of Las Vegas. At a different scale, the town of Tusayan appears to be an inholding in the Kaibab National Forest, which limits its growth opportunities. They have been looking at a proposal to develop a nearby separate inholding (which the town owns a part of). It would require a special use permit to for roads and utilities to cross national forest lands. It has been controversial (attracting unwanted attention according to the town; the 2nd Twitter link works), and the town has just approved a revised proposal, which will be submitted to the Forest Service. The Kaibab National Forest rejected the last proposal in 2016 as inconsistent with the requirements for a special use permit. Here is a part of the rationale that relates to the forest plan:
CFR 251.54(e)(l)(ii) requires that the proposed use must be consistent, or can be made consistent, with the Kaibab Forest Plan. The Forest Plan envisions management at a landscape scale by taking an “all-lands approach,” and specifies strategies to achieve the desired conditions and objectives in the Plan, including working closely with partners and across administrative boundaries to meet common objectives. The development that would be enabled by authorization of the proposed use of NFS lands could substantially and adversely affect Tribal lands and the Grand Canyon National Park.
36 CFR 251.54(e)(l)(v) provides that the proposed use must not unreasonably interfere with the use of adjacent non-National Forest System lands. The FS received written comments from the National Park Service (NPS) through the Principal Deputy Assistant Secretary of the Interior for Fish Wildlife and Parks which pointed out that potential impacts to the Outstanding Universal Value of the Grand Canyon National Park (GCNP), either from the roads that would be authorized by easement or the reasonably foreseeable development on the two private properties that would be enabled by the roads and other facilities, are of concern. The GCNP also raised concerns in a meeting regarding impacts on infrastructure that they share with the Town of Tusayan. The NPS was concerned that any activity that would result in significant increases in visitation or occupation near the Park would affect the Park’s capacity to absorb the additional use.
The first rationale is an interesting “all-lands” interpretation of its forest plan to encompass the objectives of the National Park Service and tribal lands. The second rationale stands on its own, but it also explains what those interests are. It’s not obvious that the recent modifications in the proposal are going to address these concerns, so I expect we’ll be seeing more about this. (Here is the CBD take on the original proposal.)
WEG worked to retire a permit for 50 cows on the 8,454-acre Alamocita allotment.
This is a thoughtful piece by Shawn Reagan of PERC in Bozeman, Montana about some of the same NGO’s we see litigating on federal lands trying approaches of buying and retiring leases to stop activities they don’t like, say grazing or oil and gas. As he says, in many places environmental groups feel that they can’t just buy land (as the example yesterday) because the land of interest is owned by the feds or state. He has examples from grazing, oil and gas and timber, so it’s too long for me to excerpt meaningfully. I’d recommend reading the whole thing. He also has a more in-depth journal article with a co-author, Bryan Leonard of Arizona State University in the Natural Resources Journal.
Disputes between environmental activists and developers often have a predictable result: litigation. Environmental activists have perfected a zero-sum game of suing, suing, and then suing some more to halt development projects or other land-use activities they don’t like. An alphabet soup of environmental laws—from the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) to the Federal Land Policy and Management Act (FLPMA) and the Equal Access to Justice Act (EAJA)—gives groups ample opportunities to stall projects with legal challenges or to thwart them entirely.
But increasingly, environmentalists are testing the strategy of bidding for the rights to natural resources instead. In recent years, activists have attempted to acquire oil and gas rights in Utah, buy out ranchers’ public grazing permits in New Mexico, purchase hunting tags in Wyoming to stop grizzly bears from being killed, and bid against logging companies in Montana to keep trees standing.
“It’s a market-based approach,” says Judi Brawer of WildEarth Guardians, an environmental group that has negotiated several grazing permit buyouts from ranchers in the Gila National Forest in New Mexico. “And it’s way more effective at the end of the day.”
Environmentalists paying to protect landscapes isn’t itself new. Nonprofit organizations such as the Nature Conservancy do it all the time, raising millions of dollars in donations to buy land or easements to protect important landscapes from development. But the extent of these voluntary market-based exchanges is often limited to private lands. On federal and state property—which makes up most of the land in the American West—such deals are much more complicated, if not outright prohibited.
I’ll share some of my own perspectives on the topic:
1) The oil and gas industry hires working-class (as well as other) people and pays them good wages, which leads to other purchases and taxes and so on, plus federal money goes to states which they use for education, etc. So for the people, the county and the state, it’s not just the cost of the lease itself. Example from this article: “The check, for $486,000,000, represents the portion the state receives from federal oil and gas lease sales. In total, the New Mexico has received revenues exceeding $1 billion in 2018 from BLM’s mandated quarterly lease sales.” On the other hand, environmental groups might not pick the leases most likely to be developed, because of the cost.
2) This is a bit philosophical, but as Shawn points out, the original laws regarding federal land were to promote use of the land. Are we that rich a country that we don’t need to use our own natural resources anymore? Would we feel the same way about buying out a ski area lease, or a wind or solar farm lease? It is a good thing to depend on international trade and the good will of other countries to provide energy and shelter? If we use things and don’t produce them ourselves, are we in effect exporting environmental damage to other countries, and is that the right thing to do? Do we trust those other countries or are there national security implications of not producing them here? Perhaps importing wood from Canada yes, perhaps oil from OPEC, no.
3) We could change from however flawed (as we at The Smokey Wire are very aware) planning decisions made by federal employees, with the input of the public, to planning decisions made by boards of some not-for-profit. Some not-for-profits are sometimes funded by rich people from elsewhere (though again, not always). Nevertheless, it’s clearly less transparent and less open to public opinion than the flawed federal decision-making process. Of course, they may be the same groups who tend to “get their way” via litigation, as in Shawn’s piece.
4) I see grazing/ranching as a different situation due to the private and public land linkages (if groups bought the home ranch property and the federal permit, that would work better) , as he points out. There is also a difference in the people employed both in numbers and pay, and the fact that the US many other food sources. Still, ranchers provide financial and social capital bonuses to many struggling rural communities in a way that leaving it alone does not.
5) In the related realm of water rights NFWF (Nif-Wif) did an extensive review here.
Logs taken from the Trinchera Ranch wait to be processed at Blanca Forestry Products, a sawmill outside of Blanca, Colorado on Wednesday, Dec. 19, 2018. The mill employs some 70 people. Nathaniel Minor/CPR News[/captions] This is the mill billionaire Louis Bacon, owner of the 172,000 acre Trinchera Ranch in Colorado, built to process material from the ranch. Here’s a link to the story.
The New York Times did a story here on rich people buying up and blocking off land in the Interior West. This is not news to us, but they have some interesting perspectives. Here is the story.
Some of the new owners have been welcomed. The cable magnate, John Malone, for instance, has been praised by the Nature Conservancy for his family’s conservation efforts, and other buyers have helped to clean up trails and restore pristine acres.
The arrival of this new class of landholders comes as the region is experiencing the fastest population boom in the country, which is driving up housing prices and the cost of living and leaving many residents fearful of losing their culture and economic stability.
In Idaho, Rocky Barker, a retired columnist for The Idaho Statesman, has called the conflict a “clash between two American dreams,” pitting the nation’s respect for private property rights against the notion of a beauty-rich public estate set aside for the enjoyment of all.
The clash, he said, is part of a larger transformation of the region — from an economy rooted in extraction to one based on recreation; from a working class culture to a more moneyed one. “Big landowners,” he said, “are just another new force.”
In the intermountain West, the purchases come amid a population boom that has exacerbated local concerns about the loss of space and culture. Last year, Idaho and Nevada were the fastest growing states in the nation, followed closely by Utah, Arizona and Colorado.
These new buyers have become a symbol of a bigger problem: The gentrification of the interior West.
In 2018, more than 20,000 Californians arrived in Idaho; home prices around Boise also jumped 17 percent. This has meant not just new subdivisions and microbreweries, but also packed schools, crowded ski trails and heightened anxiety among teachers, plumbers and others, who are finding that they can no longer afford a first home.
Many landowners are engaged in conservation and have entered into easements that limit future development on their parcels, and also provide them with significant tax breaks.
But setting aside land for conservation has not always staved off criticism.
In Idaho, the Wilks brothers did more than gate a few roads. They also revoked road-use contracts that propped up the region’s multimillion-dollar snowmobile industry, shut down hunting on their land and told timber companies to pull crews from the area. About 100 people lost their jobs.
No one claimed that those actions were illegal, but they heightened fears that local residents were losing control of the region. A 2017 video of a roadside argument between an armed Wilks guard and a local ATV rider traveled quickly around the state.
What is interesting to me about this is
(1) the idea that rich people buying private land and blocking access is bad (timber, snowmobiles and ATVs), but efforts to block the same activities on public lands (e.g. a certain National Monument) are good, because it’s good for the environment and ATVers tear up the landscape and so on.
(2) Maybe “rich people ownership” is good for the environment as the property won’t be recreated upon by lots of people nor subdivided?
(3) Also, perhaps part of the reason some in San Juan County are not fans of Monumentizing Bears Ears has to do with not wanting gentrification nor a “more moneyed culture.” Here’s a link to two points of view on urban gentrification (is it saving or ruining LA). Do the arguments sound familiar?
In a discussion of “privatization,” Brian Hawthorne suggested here that, “It might be worthwhile discussing our perceived distinctions between what Utah’s HB 148 contemplates vs the “small tract sales” made pursuant to the SNPLMA.” That would require some knowledge of what both of these things are.
This summary of Utah’s H.B. 148 is from a review by an attorney from the conservative Federalist Society.
Recent legislation passed in the State of Utah has demanded that the federal government extinguish title to certain public lands that the federal government currently holds. The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State.
On March 23, 2012, Governor Gary Herbert of the State of Utah signed into Utah law the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to House Bill 148 (“H.B. 148”). This legislation demands that the federal government “extinguish” its title to an estimated more than 20 million (or by some reports even more than 30 million ) acres of federal public lands in the State of Utah by December 31, 2014. It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer.
HB 148 requires, among other things, the federal government to transfer title of federal public lands in Utah to the state before January 1, 2015. These public lands include lands managed by the Bureau of Land Management, Forest Service, U.S. Fish and Wildlife Service, and National Park Service.
They include, among others, sensitive sites such as Grand Staircase-Escalante National Monument, Glen Canyon National Recreation Area, and all national wildlife refuges in the state.
This would also include the overwhelming majority of remarkable red rock lands surrounding Moab, the San Rafael Swell, and Grand Gulch.
The Legislature has indicated that some of these lands would be sold outright to the highest bidder while others would be kept in state ownership but opened to oil and gas drilling, off-road vehicle use and extractive industries.
The bill does not require the transfer of national parks, wilderness areas, or certain national monuments and national historic sites.
Here is a summary of the Southern Nevada Public Land Management Act (from this OIG Report).
Las Vegas, one of the fastest growing cities in the United States, is landlocked by federal lands. Over the past decade, the population has increased by more than 60,000 people per year. To accommodate this rapid growth and expedite the disposal of federal land, Congress enacted SNPLMA in 1998 (Public Law 105-263, 31 USC 6901). SNPLMA allows BLM to sell federal land (about 27,000 acres) primarily through public auctions, establish a special U.S. Treasury interest-bearing account, and use the resulting receipts for educational and environmental purposes and capital improvements. In addition, SNPLMA directed BLM to transfer ownership of about 5,200 acres of land in the McCarran Airport Cooperative Management Area (CMA) to Clark County to help the County enforce regulations concerning airport noise within the CMA. BLM is entitled to 85 percent of any receipts from the sale, lease, or other conveyance of CMA lands.
I’m afraid I don’t see much similarity. The justifications are at opposite ends of the scale from a localized problem to a disagreement about overall management policies. The difference in the affected area is huge. There are benefits returning to the American public from the Las Vegas land sale proceeds. Perhaps it’s a slippery slope (next Los Angeles, Salt Lake City, Missoula …?), but H.B. 148 represents the bottom of that slope.
It is a time-tested and popular model. A private landowner is willing to sell land or conservation easements to the government. A third party conservation group steps in to provide bridge funding and/or ownership until the government can fund the purchase. In this case, involving the Rocky Mountain Elk Foundation as the intermediary:
“The project, which was in its very early stages, would provide some valuable new access points in the area as well as protection from development along a stretch of Sheep Creek, a tributary of the Smith River, he said. In addition to the 4,000 acres purchased and then resold to the Forest Service, the checkerboard pattern of land ownership would mean access to an additional 7,000 acres of public land.”
While Meagher County (pronounced “mar”) doesn’t have any authority to influence the deal, it is attempting to do so by issuing a resolution opposing it, citing “potential loss of tax revenue, issues with federal land ownership and management, and the question of whether a land swap could open access without expanding federal land ownership.” The resolution says, “that the commission respects private property rights and supports tourism but continues to oppose expanded federal ownership.” (Funny that they don’t mention elk hunting/hunters, which has to be a key benefit.) Their opposition may affect how the project competes for funding, and whether RMEF wants to stay involved.
The Forest Service, to its credit, is looking out for the “greatest good” and not bowing to nimbyism or political ideology.
“We acknowledge Meagher County’s resolution and recognize their position regarding the Holmstrom Sheep Creek proposal,” said Lisa Stoeffler, acting forest supervisor. “We appreciate that our working relationship with the commission allows for open discussions, especially related to increased recreational public lands access and the improvement of crucial fish and wildlife habitat conservation areas within the county. The Forest plans to submit two project requests for LWCF funding, one of which will include Holmstrom Sheep Creek. In our request packet, we will fully disclose the Commission’s resolution regarding the project.”
These have normally been seen as “white hat” projects in the past, but under this Administration, the Forest Service may find out that white is the new black.
Lone Rock Timber Management Company has asked the Douglas County Sheriff’s Office for additional patrols in response to a threat made against the company by conservationists, according to the sheriff’s call logs.
The call, made just before 6 p.m. Thursday, said a group of conservationists are upset that Lone Rock is logging in the Susan Creek area, land managed by the Bureau of Land Management, and are threatening to burn Lone Rock “to the ground.”
Posted on Facebook on May 7, 2018 by Francis Eatherington:
“Yesterday we hiked into the BLM forest that Lone Rock Timber had threatened to cut down for a new road, and we found it just cut down. Very sad. All the big trees were horizontal on the ground. We counted the rings on some stumps and found them to be 400 years old. On the hike in we went past LRT’s 19-acre plantation they had just cut and yarded, and we could see about an acre of tiny trees they had left to cut at the top of their unit. Even though it was clearcut 40-years ago, this time LRT insisted they had to cut this 70’-wide road through BLM land to get a mechanical harvester into that little acre they had left. They couldn’t cut it manually like they did before. This is an obvious scam by Lone Rock – they will get far more timber from our public old growth forest then they will access from their land. Not only are the old-growth trees gone, a new road bulldozed across this ancient forest will be a horrible scar, spreading it’s edge-effect far into the remaining old growth forest.”
Posted on Facebook on May 7, 2018 by Doug Heiken:
“The reason that Lone Rock Timber gave for needing access through this stand of ancient trees, was they needed to get a mechanical harvester (tree killing robot) into the area so they could log a stand of small trees on their own land. However, before the road even got built Lone Rock was able to log all but about 1 acre of their land. Which means these ancient trees fell just so they could bring their robot in to fell an acre of second growth. This is SO wrong! I smell a scam. The timber industry is to blame and BLM is complicit.”
[ADDITIONAL INFORMATION BELOW, POSTED BY SF]
Here seens a fair-minded piece that looks at (and talks to) both sides (and explains the O&C rights of way). But be careful, as there are a couple of interesting stories and you only get five free ones.
In this case they claim that BLM has embarked on a ‘back-room deal with Lone Rock Timber to log ancient forests,’ when the truth of the matter is that Lone Rock Timber has the legal right under our reciprocal right-of-way agreement with the BLM to construct the road to gain access to our property,” Luther said, adding some of the trees in the posted photos are outside of the proposed logging area.
If I lived in the area, I would be tempted to go see for myself (and share the photos here).
Thanks to Andy Stahl posted something that I did not want to get overlooked because it was a comment in this previous post. It’s the existence of a not-for-profit in Montana, the Public Land Water Access Association with the mission:
“to maintain, restore, and perpetuate public access to the boundaries of all Montana public land and waters.” This presumably includes county, state and federal.
Check out the kind of work they’re doing.. it’s pretty impressive. Does anyone know of similar groups in other states? Seems like they have a good format and approach already figured out that could be copied.
Yes, it looks like Forest Service employees should be concerned about how Trump might affect their careers. Here’s an example about offending private landowners who block access to national forests. (And, without any facts beyond earlier stories, I’ll suggest that you not think of these as long-term rural residents, but more likely some recent, possibly seasonal transplants, with money and political connections.)
Such cooperation, however, changed under the Obama administration as the Forest Service took a more strident approach in asserting claims to “traditional public access” routes. The dramatic change is reflected in a posting by Yellowstone District Ranger Alex Sienkiewicz who publicly advocated “NEVER ask permission to access the National Forest Service through a traditional route shown on our maps EVEN if that route crosses private land. NEVER ASK PERMISSION; NEVER SIGN IN. … By asking permission, one undermines public access rights and plays into their lawyers’ trap of establishing a history of permissive access.”
According to Sienkiewicz and access advocates, traditional public access is sufficient to establish a legal right, known as a prescriptive easement, to cross private property. Centuries of legal practice, however, have required that individuals or agencies wanting to establish prescriptive easements must prove that access was continuous, open, notorious, and hostile to the owner. In other words, the access must be without expressed permission by the landowner, a burden of proof that has been difficult, to say the least.
This doesn’t sound like the complete story. The federal government does try to protect its existing legal interests, and that includes historic access that may not have been formalized, which it tries to negotiate. I doubt if it often pursues litigation, but does sometimes end up in court to defend public access, as in this case involving access to the Lee Metcalf Wilderness on the Indian Creek trail, cited by the author of the op-ed above as a good example of negotiation (at least until it apparently went bad). The Forest Service met its “difficult” burden of proof in this case. There is a risk that asking permission now could undo the historic rights that already exist, but I don’t think it’s large, and I am a little skeptical that the Forest Service would “post” statements like that above except in cases where a particular landowner had made it clear that they were declaring war on public access, such as in this example.
Recently, the U.S. Forest Service removed District Ranger Alex Sienkiewicz from his position in the Yellowstone Ranger District pending an internal investigation into his efforts to defend historical Forest Service trails and easements along the Crazy Mountains.
When legal access to public land does exist, I believe Montanans fully expect the Forest Service to defend and maintain that access for Montanans. As with so many of these issues involving political pressure on public agencies, a look behind the curtain reveals a very troubling story. According to media reports, U.S. Sen. Steve Daines, and Congressman Pete Sessions from Houston, Texas, both contacted Agricultural Secretary Sonny Perdue regarding Sienkiewicz’s efforts to protect legal, established accesses to landlocked public lands. According to Mary Erickson, forest supervisor, “the reassignment was made after allegations from an assortment of landowners in the Big Timber area were raised to the level of the Secretary of Agriculture, Sonny Perdue, and Sen. Steve Daines.“
Blocking and posting no trespassing signs at the head of Trail 115/136 prompted Yellowstone District ranger Alex Sienkiewicz to organize a trail clearing and marking trip this past summer. Prior to that the agency traded letters with the Langhuses’ Livingston attorney, Joe Swindlehurst, who has denied there is an old forest trail at that location.
It’s not a stretch to see this as politicians ordering a personnel move to keep public lands from public hands. Dangerous on both counts.
The Superior National Forest has received a notice of intent to sue over a land exchange that would allow development of a mine on the former national forest lands. The notice involves federally listed wolves and lynx. My question was whether the exchange is consistent with the forest plan as required by NFMA.
The Superior National Forest Plan contains very useful direction for land exchanges. It includes priorities for acquiring land (one of which is “Land needed for habitat for federally listed endangered, threatened, proposed, or candidate species or for Regional Forester Sensitive Species,” but that was not invoked by the ROD for this exchange). The plan also includes criteria for conveying land out of federal ownership, and it determines whether lands in each forest plan management area are suitable for conveyance.
The Record of Decision for this exchange first finds that a mine in this location would be inconsistent with the forest plan direction for the area. It then addresses the criteria for acquisition and conveyance (which are guidelines in the forest plan) and finds that the exchange would be consistent with the forest plan. The lands in the federal parcel to be conveyed are in the “General Forest and General Forest-Longer Rotation Management Areas” where conveyance is allowed. They also contain a lake, and there is a forest plan guideline to retain ownership of lakes. However the guideline is defined to allow deviation as long as the purpose of the guideline is met, and the exchange would produce a net gain in national forest water frontage. The ROD also considers the mining project and land exchange in relation to Forest Plan direction related to larger areas on the landscape, including lynx analysis units. (The ROD mistakenly cites the 2012 Planning Rule consistency provisions, which do not apply to plans developed under prior planning regulations, but the result should be the same.)
The plan components in the Superior Plan seem to have provided for a relatively smooth project planning process. Other forest plans I’ve seen provide much less guidance for land adjustments. It is important for a forest plan to recognize areas that provide important values by including plan components to retain and acquire such areas (which may then be supported by more detailed land adjustment planning). This may be especially important in planning for wildlife habitat connectivity in mixed ownerships.
