Hastings Environmental Law JournalVolume 9Number 1 Fall 2002 Article 6

1-1-2002

SNPLMA, FLTFA, and the Future of Public LandExchangesMelanie Tang

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Recommended CitationMelanie Tang, SNPLMA, FLTFA, and the Future of Public Land Exchanges, 9 Hastings West Northwest J. of Envtl. L. & Pol'y 55 (2003)Available at: https://repository.uchastings.edu/hastings_environmental_law_journal/vol9/iss1/6

SNPLMA, FLTFA, and the Future ofPublic Land Exchanges

By Melanie Tang&

In 2000, Congress passed the FederalLand Transaction Facilitation Act (FLTFA),'authorizing the Bureau of Land Management(BLM) to use revenue from sales of federalpublic lands to purchase inholdings andlands adjacent to federal public lands. FLTFAwas based upon a bill passed two years prior,the Southern Nevada Public Land Manage-ment Act (SNPLMA),2 which provides for theauction of approximately 27,000 acres of fed-erally owned land in the Las Vegas Valley. Al-though the federal government has a longhistory of acquiring private lands from theprivate sector either in exchange or bypurchase, SNPLMA and FLTFA employ a newapproach to the disposal and acquisition offederal public lands. An editorial in the LasVegas Review-journal described SNPLMA as "im-portant legislation, marking a fundamentalchange in BLM philosophy."3 Under SNPLMAand FLTFA, revolving funds for the sale andpurchase of federal public lands are created.The funds are financed by the sale of publiclands, and the money raised by the sale isused by the government to purchase non-fed-erally held land which is environmentally sen-sitive, surrounded by public lands, orotherwise desirable. While land has beenboth acquired and sold under SNPLMA, noland has yet been acquired under FLTFA as ofFebruary 2003. Rather, at the current time,the BLM is working on a Memorandum of Un-derstanding between itself and the land ac-quisition agencies - the United States ForestService, the National Park Service, and theFish and Wildlife Service. 4

&Associate, Allen, Matkins, Leck, Gamble & Mallory,LLP, San Francisco, California. JD, University of California,Hastings College of the Law, 2002. M,T,S, Harvard DivinitySchool, 1999. B.A. and B.S., Boston University, 1993.Thanks to Professor John Leshy, William Pickel, and all whocontributed to this article.

1. 43 U.S.C. §§ 2301-2306 (2000).

2. P.L. 105-263 122 Stat. 2343 (1998).

3. Historic Land Deal, LAs VEGAs REVIEW-JOURNAL, Oct. 6,1998, at 6B.

4. Telephone interview with Jeffrey Holdren, B.L.M.,B.L.M. Lands and Realty Deputy Group Manager, January29, 2003.

Volume 9, Number 1

This paper will first discuss the history offederal public land sales and exchangesunder the Federal Lands Policy and Manage-ment Act (FLPMA) and some of the problemswith those methods of disposal and acquisi-tion. Next, this paper will discuss the imple-mentation of SNPLMA thus far, and potentialissues with any future implementation ofFLTFA, as well as the ways in which these newstatutes may address some of the problemsassociated with the old system of land ex-changes. Finally, this paper will discusssome of the public policy and legal issuesraised by, or left unaddressed by, the newprocedures prescribed by SNPLMA andFLTFA.

I. American Public Lands.

American public land history may betraced to the Paris Peace Treaty with Englandin 1783, after which the original states surren-dered their western land holdings to the fed-eral government.5 The eastern states cededthese claims in order to provide the new fed-eral government with both money and power,and in return, Congress promised to disposeof all ceded lands for the general benefit ofall the persons of the United States.6 TheNorthwest Ordinance of 1787 provided thatCongress could form out of the western terri-tories new western states, and that thosestates would be entered into the Union "onan equal footing with the original States, inall respects whatsoever."7 However, the Ordi-

5. PAUL W. GATES, HISTORY OF PUBLIC LAND LAW DEVELOP-

MENT 35 (1968).

6. Id.

7. Northwest Ordinance of 1787, 1. Stat. 51. art. V.

8. Id., Art. IV.

9. E.g., the Louisiana Purchase (1803), the OregonCompromise (1846), the Gadsden Purchase (1853), and theAlaska Purchase (1867). Ryan M. Beaudoin, Federal Ownershipand Management of America's Public Lands Through Land Ex-changes, 4 GREAT PLAINS NAT. RESOURCES J. 229, 232 (2000).

10. Susan lane M. Brown, David and Goliath: Reformingthe Definition of "The Public interest" and the Future of Land SwapsAfter the Interstate 90 Land Exchange, 15 1. ENVTL. L. & LITIG. 235,241 (2000).

11. See Timber Culture Act of 1873, Ch. 277, 17 Stat.605 (1873) (giving land to settlers who planted and culti-vated timber on 41acres); Desert Land Act of 1877, 43

nance also made it clear that the federal gov-ernment would retain control over thesepublic lands, even as they lay within the bor-ders of newly created western states: "Thelegislatures of those districts or new States,shall never interfere with the primary disposalof the soil by the United States in Congressassembled, nor with any regulations Con-gress may find necessary for securing the titlein such soil to the bona fide purchasers."8

Over the next 86 years, from 1781 to 1867, thenew federal government amassed 1.84 billionacres of land and water through various trea-ties and acquisitions from foreign countries.9

By the mid-nineteenth century, the fed-eral government had implemented a publiclands policy of decentralization and privatiza-tion. This era has come to be known as theDisposition Era, or the Great Barbecue Pe-riod. 10 Statutes allowed for the transfer ofland from government to private ownership ofland upon proof of tree cultivation, irrigation,mineral exploration, or timber cutting." Atthis time, the federal government was alsoencouraging railroad development in thewestern United States.' 2 As an inducementto construct a transcontinental railroad, rail-road companies were given "a right-of-way ofup to 400 feet on either side of the rail line,'together with their choice of 20-odd num-bered sections within a 40-mile belt for everymile built.' "'

3 The ostensible goal was toboth encourage settlement in the West and torepay the railroads for assuming the expenseof constructing rail lines across the country.

U.S.C. §§ 321-339 (1998) (giving land to settlers if theyshowed proof of irrigation); Timber and Stone Act of 1878,Ch. 150 § 3, 20 Stat. 98 (1878) (granting land chiefly valua-ble for timber or stone or prospectors for $2.50 an acre);General Mining Law of 1872, 30 U.S.C. §§ 21-42 (1970)(granting federal patents to prospectors who located anypotential mineral "vein, lode or ledge" on public lands);Reclamation Act of 1902, 43 U.SC. §§ 641-648 (1994)(granting land to states on the condition that the state re-claim the land); Stock-Raising Homestead Act of 1916, Ch.9, § I, 39 Stat. 862-64 (1916) (granting land "chiefly valua-ble for grazing" to ranchers).

12. RICHARD WHITE, IT'S YOUR MISFORTUNE AND NONE OF

MY OWN, 247 (1991).

13. Brown, supra note 10, at 241 (quoting GEORGE

CAMERON COGGINS ET AL., FEDERAL PUBLIC LAND AND RE-

SOURCES LAW at 97 (1993)).

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Fall 2002 SNPLMA, FITFA, and the Future of Public Land Exchanges

The railroad land grants effectively created a"checkerboard" of public and private landownership that still exists over much of theWest. In addition, despite the federal govern-ment's attempts to convey much of its publiclands into private and state ownership, theUnited States still retained title to a signifi-cant amount of land throughout the west,with these "leftover" public lands often inter-spersed amongst private land holdings.

Today, approximately one third of theUnited States is still owned by the federalgovernment. 14 Despite the fact that theselands lie within the borders of various states,the federal government retains nearly totalcontrol over these parcels of land. The key tothe federal government's authority over vari-ous public lands holdings is the PropertyClause of the Constitution, which states that"The Congress shall have Power to dispose ofand make all needful Rules and Regulationsrespecting the Territory or other property be-longing to the United States."'15 Because thefederal government is in the role of both reg-ulator and landowner, it is afforded an ex-traordinarily broad, plenary constitutionalauthority over public lands.16

!1. Statutes Governing Disposal and

Acquisition of Public Lands.

1. FLPMA

As discussed above, the Great BarbecuePeriod was characterized by a public lands

14. Maria E. Mansfield, A Primer of Public Land Law, 68WASH. L. REv. 801 (1993).

15. U.S. Const., art. IV, § 3, cl.2.

16. This extraordinarily broad authority was affirmedin two early public lands cases, Camfield v. United States, 167U.S. 518 (1897), and Light v. United States, 220 U.S. 523(1911). Using a hybrid nuisance theory and sovereignpower doctrine, the Camfield Court held that the UnitedStates had the authority to remove a fence erected on pri-vate property which impeded access to public lands. TheLight Court found that the United States could create a Na-tional Forest without the consent of the state in which itwas located, and impose a permit requirement for thosewho wished to use the National Forest land for grazing, de-spite the existence of a state grazing law to the contrary.

In 1976, the Court again affirmed expansive federalcongressional authority over public lands in Kleppe v. NewMexico, 426 U.S. 529 (1976), holding that Congress' author-ity over federal public land is without limits and that where

policy to promote privatization and disposalof public lands at a breakneck pace. How-ever, the Great Barbecue Period did not lastforever, and was followed by what has beencalled the Reservation Era. During this pe-riod, federal land policy was characterized notby sheer disposition and decentralization, butby a policy of utilitarian retention of publiclyowned lands. A federal policy of multiple useof public lands was recognized during this pe-riod, and the resources on public lands werepreserved for both recreational (Yellowstone)and economic (protecting national timberreserves) reasons. In 1872, Yellowstone wasestablished as the first national park, andover the next 104 years, Congress passedthousands of public land laws, many of themnarrowly tailored to address particular cir-cumstances. 17 Among these was the WeeksLaw, passed in 1911, which allowed the Sec-retary of Agriculture to acquire lands to pro-tect watersheds, produce timber, andexchange federal lands.' 8 The General Ex-change Act of 1922 broadened the powers ofthe Secretary to make federal land exchangesunder the Weeks Act.' 9 In 1964, the PublicLand Law Commission was created by Presi-dent Johnson to "study the existing publicland laws and make recommendations re-garding their modification." 20 In 1970, theCommission's report, One Third of the Nation'sLand, was submitted to the President andCongress.2 1 As a result of the Commission'sreport, the Federal Land Policy and Manage-

state and federal laws conflict, federal laws preempt thestate laws.

17. Beaudoin, supra note 9, at 233. See Forest Reserva-tion Act of 1891 (limiting access to federal lands for timbercutting, and giving the President authority to protect na-tional reserves). Amy Stengel notes that the Taylor GrazingAct of 1934, 43 U.S.C. § 315, "eliminated the widespreadpractice of selling land to individuals" by establishing pub-lic grazing districts. Amy Stengel, "Insider's Game" or ValuableLand Management Tool? Current Issues in the Federal Land Ex-change Program, 14 TUL. ENVTL L. 1. 567, 572 (2001).

18. 16 U.S.C. § 515 (1994).19. Id. § 485.

20. Elizabeth Kitchens Jones, Acquiring Federal and StateLand Through Land Exchanges, 9 UTAH B.I. 19 (1996).

21. Id., Public Land Law Commission: One Third ofthe Nation's Land: A Report to the President and to theCongress (1970).

Fall 2002 SNPLMA, FLTFA, and the Future of Public Land Exchanges

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ment Act of 1976 (FLPMA) was enacted in anattempt to establish a more clearly definedpolicy toward federally owned lands. 22

FLPMA repealed virtually all of the existingpublic land disposal laws, and governs theactions of the two agencies that manageAmerican public lands: the Bureau of LandManagement, which is part of the Depart-ment of the Interior and the United StatesForest Service, which is part of the Depart-ment of Agriculture. 2 3

As a comprehensive land-use statutecovering a wide variety of public land terrain,ranging from mountains to deserts andrangeland, FLPMA declares a policy that all"public lands be retained in federal owner-ship."24 However, FLPMA also makes explicita multiple use-sustained yield mandate, re-quiring that

public lands be managed so as toprotect the quality of scientific,scenic, historical, ecological, environ-mental, air and atmospheric, water re-source and archaeological values;land] where appropriate . . .preserveand protect certain lands in their nat-ural condition; that will provide foodand habitat for fish and wildlife anddomestic animals; and that will pro-vide for outdoor recreation andhuman occupancy and use. 25

Public lands are to be inventoried, withtheir "present and future use . . .projectedthrough a land use planning process coordi-nated with other Federal and State planningefforts." 26 Based on these inventories, com-

22. 43 U.S.C. §§ 1701-1785.

23. Jones, supra note 20, at 19.

24. 43 U.S.C. § 1701(a)(1).

25. Id. at § 1701(a)(7) and (a)(8). Section 1702(c) de-fines multiple use as including "a combination of balancedand diverse resource uses that takes into account the long-term needs of future generations for renewable and nonre-newable resources, including, but not limited to, recrea-tion, range, timber, minerals, watershed, wildlife and fish,and natural scenic, scientific and historical values; and har-monious and coordinated management of the various re-sources without permanent impairment of the productivityof the land and the quality of the environmental with con-sideration being given to the relative values of the re-sources and not necessarily to the combination of usesthat will give the greatest economic return or the greatest

prehensive land use plans are to be devel-oped to both protect areas of "criticalenvironmental concern," and recognize "theNation's need for domestic sources of miner-als, food, timber, and fiber from the publiclands." 2 7 In addition, FLPMA requires the es-tablishment of uniform statutory proceduresfor disposals of public land, acquisition ofnon-federal lands, and exchanges of land,while reserving to Congress the authority toreview disposals in excess of a specified acre-age.

28

2. Acquisition and Sale of Public Lands

The acquisition, sale or exchange of pub-lic lands is also governed by FLPMA. All ofthese actions must be consistent with the re-gional land use plan. Acquisitions may be bypurchase, exchange, donation or eminent do-main, and must be "consistent with the mis-sion of the department involved and theapplicable departmental land-use plans."29

Sales of public lands must comport with cri-teria derived from the applicable land useplan. FLPMA imposes specific statutory re-quirements before authorizing the sale ofBLM lands, and the USFS is not allowed toengage in land sales. 30 In order to sell a par-ticular federal parcel, the Secretary of the In-terior must determine that the tract, "becauseof its location or other characteristics is diffi-cult and uneconomic to manage as part ofthe public lands and is not suitable for man-agement by another Federal department oragency;"31 or that the tract was "acquired for aspecific purpose and ... is no longer required

unit output." Sustained yield is defined as "the achievementand maintenance in perpetuity of a high-level annual orregular periodic output of the various renewable resourcesof the public land consistent with multiple use." Id.§ 1702(h).

26. Id. § 1701(a)(2), see generally § 1712.

27. Id. § 1701(a)(11) and (12).

28. Id. § 1701(a)(10).

29. Id. § 1715 (a) and (b).

30. United States General Accounting Office, BLMAND THE FOREST SERVICE. LAND EXCHANGES NEED TO REFLECT

APPROPRIATE VALUE AND SERVE THE PUBLIC INTEREST 10 GAO/RCED 00-73, June 2000.

31. 43 U.S.C § 1713(a)(1).

Melanie Tang

Fall 2002

for that or any other Federal purpose;;" 32 orthat disposal of the tract "will serve importantpublic objectives, including but not limitedto, expansion of communities and economicdevelopment, which cannot be achieved pru-dently or feasibly on land other than publicland which outweigh other public objectivesand values, including, but not limited to, rec-reation and scenic values, which would beserved by maintaining such tract in Federalownership."33 Congressional approval proce-dures apply to tracts over 2,500 acres,34 andsales must be made at fair market value.35 Inaddition, the land usually must be offered forsale under competitive bidding procedures. 36

However, money that is raised from publicland sales goes to the Treasury, not to theBLM, with the exception of a 5 percent set-aside for educational and other purposes.37

Consequently, the BLM is not able to directlyuse proceeds raised by the sale of publiclands to acquire other lands. Instead, theBLM, the USFS, as well as the National ParkService (NPS) and the Fish and Wildlife Ser-vice (FWS) are dependent upon Congres-sional appropriations for land acquisitionfunds.

3. Land Exchanges

Land exchanges are "voluntary real es-tate transactions between federal and non-federal parties" which allow the federal gov-ernment to exchange lands it owns for pri-vately held or state-owned land. 38 They maybe initiated by the federal agency, bynonfederal parties who wish to trade theirland, or by third party facilitators who workwith agencies and the non-federal parties toput together exchanges. 39 Exchanges may be

32. Id.

35 Id. § 1713(a)(3).

34. Id. § 1713(c).35. Id. § 1713 (d).

36. Id. § 1713(c).

37. 43 U.S.C. § 391. Both the terms "public lands"and "public domain" refer to "government land that areopen to public sale or other disposition . .. and that arenot held back or reserved for a governmental or public pur-pose." Beaudoin, supra note 9, at 234.

38. 43 C.F.R. §§ 2200.0-6(a).

SNPLMA, FLTFA, and the Future of Public Land Exchanges

zfor full fee simple title, or for partial interests 0

such as conservation easements. 40 "Assem-bled" land exchanges, in which multiple par-cels of land are consolidated into a singleexchange, are also permissible. 4 1 Given themixture of public and private land ownershipthroughout the west, the ownership of a sin-gle watershed or wilderness area may be frag-mented between the federal government andpublic or private interests, making the landdifficult for any single party to manage. Inaddition, the federal government may ownlands that are located on the outskirts ofgrowing metropolitan areas and consideredhighly desirable by developers or state agen-cies, but are currently serving no nationalpublic purpose. Increasingly since 1981, boththe BLM and the USFS have "used exchangesto dispose of fragmented parcels of land toconsolidate land ownership patterns to pro-mote more efficient management of land andresources.'"42 Because of the less restrictiveterms and immediate title transfers, land ex-changes are the preferred method of acquir-ing federally owned lands as opposed topurchasing lands with money appropriatedfrom Congress. The use of exchanges hasrisen in part due to the lack of funds availableto agencies to buy lands outright; for exam-ple, the BLM's current policy "is that land ex-changes should be used whenever feasible inland acquisitions." 43 In recent years, the fed-eral government has engaged in over 300 ex-changes annually with both states and privatelandowners. 4 4 These exchanges serve to"consolidate federal land holdings, acquireenvironmentally-sensitive lands, and ensurepublic access to wilderness areas.' '45 Be-tween 1989 and 1999, the United States ac-quired approximately 1,500 square miles of

39. Land Exchanges Need to Reflect Appropriate Value, supra

note 30, at 11.

40. Id.

41. Id.

42. Land Exchanges Need to Reflect Appropriate Value, supranote 30, at 7.

43. Id.

44. Beaudoin, supra note 9, at 230.

45. Kenneth Amaditz, Note, Executive Authority to Per-form Interstate Land Exchanges, 15 1. L. & POL. 195, 199(1999).

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land through land exchanges. 46 The Bureauof Land Management (BLM) completed about2,600 exchanges to acquire approximately 550square miles, and the United States ForestService (USFS) acquired about 950 squaremiles by way of approximately 1,265 ex-changes. 47 Three basic requirements apply toland exchanges: (1) they must conform to theestablished general land use policies andplans; (2) they are permissible only if the"public interest will be well served by makingthat exchange"; and (3) the lands exchangedmust be of equal value.48 In determiningwhether the public interest will be served, theSecretary of the Interior (for a BLM exchange)or the Secretary of Agriculture (for a USFS ex-change) must consider federal, state, and lo-cal needs, including "needs of lands for theeconomy, community expansion, recreationareas, food, fiber, minerals, and fish and wild-life."49 The Secretary must find that "the val-ues and the objectives which Federal lands orinterests to be conveyed may serve if retainedin Federal ownership are not more than thevalues of the non-Federal lands or interestsand the public objectives they could serve ifacquired."5 0 FLPMA also requires that thevalues of the lands exchanged be equal. Incase of a disparity in value, FLPMA containsprovisions for a cash payment (which eithergoes into the Treasury, or is paid out of ap-propriated funds, depending on the situation)of up to 25 percent of the value of the landsexchanged to cure the inequity.51 However, a"cash equalization waiver" allows the Secre-tary and the other exchanging party to mutu-ally agree to waive the requirement of cashpayments to equalize values "where the Sec-retary concerned determines that the ex-change will be expedited thereby and that the

46. Land Exchanges Need to Reflect Appropriate Value, supra

note 30, at 4.

47. Id.48. Id., 43 U.S.C. § 1716(a).

49. 43 U.S.C. § 1716(a).

50. Id.

51. Id. § 1716(b).

52. Id.53. Id. § 1716(h)(l)(A).

54. Id. § 1716(h)(1)(B).

public interest will be better served by such awaiver."52 Another provision allows for expe-diting exchanges of lands "which are [of] ap-proximately equal value" when the combinedvalue of lands transferred out of federal own-ership does not exceed $150,000, 5 3 and theSecretary determines that "a determination ofapproximately equal value can be made with-out formal appraisals" and uses a more lim-ited assessment, an appraiser's statement ofvalue. 54 Lands exchanged under FLPMAmust be in the same state, titles are to betransferred simultaneously, and land ac-quired with boundaries of the national forest,national park, other land system establishedby Congress becomes, "upon acceptance oftitle by the United States ... a part of the unitor area within which they are located, withoutfurther action by the Secretary, and shallthereafter be managed in accordance with alllaws, rules, and regulations applicable tosuch unit or area. '" 55

FLPMA's exchange provisions wereamended by the Federal Land Exchange Fa-cilitation Act (FLEFA) of 1988.56 FLEFA wasenacted to "streamline and facilitate land ex-change procedures and expedite exchanges '" 57

by providing uniform rules and regulationsregarding land appraisals and establishingprocedures and guidelines for resolving ap-praisal disputes. 58

After an exchange is proposed by theBLM, a person, state, or local government,the parties to the proposed exchange mustidentify the non-federal and federal lands tobe exchanged. 59 The BLM is then required toprepare a Feasibility Report, which "repre-sents the BLM's preliminary determinationthat the land exchange proposal is worka-

55. Id. § 1716(c).

56. 100 Pub. L. 409 [H.R. 18601, 100th Cong. 102 Stat.1086 (1988). In 1999, the BLM compiled an exchangehandbook based upon FLPMA and FLEFA. See BUREAU OF

LAND MANAGEMENT MANUAL AND HANDBOOK (1999).

57. 100 Pub. L. 409 [H.R. 18601, 100th Cong. 102 Stat.1086, § 2(a)(4) (1988).

58. Id. § 2(b)(I)(A) and (B).

59. Jones, supra note 20, at 20.

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Foil 2002

ble. '" 60 After the BLM State Director approvesthe Feasibility Report, the parties to the ex-change execute a non-binding Agreement toInitiate an Exchange. 61 This Agreement,which includes a NEPA environmental analy-sis, "sets forth the responsibilities of the BLMand the Inonfederal partyl to prepare variousreports on which the BLM will base its deter-mination of whether or not to approve the ex-change," including information about water,hard rock minerals, or other potentially valua-ble resources attached to the lands to be ex-changed. 62 In accordance with NEPA, anenvironmental assessment (EA) or environ-mental impact statement must be prepared,analyzing "all reasonable foreseeable impactsof completing the exchange, considering theresource values to be lost and gained," in-cluding cultural resources, historic resources,and habitat.6 3 In addition, after the Agree-ment is signed, a Notice of Exchange Propo-sal must be published in a local paper once aweek for several weeks and distributed tostate and local governmental entities, thestate's congressional delegation, and any au-thorized users of the federal lands.64 Com-ments may be submitted for 45 days after theinitial published newspaper notice. 65

An appraisal determining the value ofthe offered and selected lands is required byFLPMA. The appraisal must be paid for bythe non-federal party, and must be preparedby a "BLM-approved appraiser and conformto the Department of Justice's Uniform Ap-praisal Standards for Federal Land Acquisi-tions."66 The appraisal will determine themarket value of the respective parcels of landbased upon the "'highest and best use' of the

60. Id. The Report is to include: "(i) a brief descriptionof the offered and selected lands; (ii) the major resourcevalues involved; (iii) a determination of whether the propo-sal conforms to the BLM's existing land managementplans; (iv) the future use of the lands to be acquired by thefederal government; and (v) a discussion of conflicts orproblems, such as anticipated public support or oppositionand local government's position regarding the proposedexchange. An estimate of the processing costs of the ex-change, which the Inonfederal party] is expected to bear, isalso included in the Report."

61. Id.

62. Id.

63. Id. at 21.

property. 'Highest and best use' is defined as'the most probable use' of the property,based on market evidence as of the date ofvaluation.."67 However, the appraisal notwith-standing, the BLM must ensure that the ex-change will serve the public interest: "thedecision-maker must balance whether the re-source values and public objectives are betterserved through ownership and managementof non-federal lands versus the resourcevalue and public objectives that are served bymaintaining control of the lofferedl federallands."

68

The Field Manager's decision to author-ize an exchange takes place after the NEPAprocess is completed. 69 Written protests maybe submitted for 45 days after notice of thedecision is published in the local paper anddistributed to interested parties. 70 Duringthis period, the EA or EIS may be reviewed bythe public and federal agencies that wereconsulted during the NEPA process. 7 ' TheState Director then decides whether to acceptor reject a protest to an exchange, and thatdecision is appealable to the Interior Boardof Land Appeals. 72 Acceptance of a protestmay cause a proposed exchange "to be signif-icantly delayed or possibly dropped alto-gether."

7 3

The process for land exchanges for theUSFS is very similar to the process governingthe BLM land exchanges described above,with FLPMA being the primary statute gov-erning USFS land exchanges. However, be-cause the USFS is also subject to theNational Forest Management Act (NFMA) andthe Multiple Use Sustained Yield Act, its land

64. Id. at 20-21.

65. Id. at 21.

66. Id.

67. Id.

68. Beaudoin, supra note 9, at 238.

69. Jones, supra note 20, at 21.

70. Id.

71. Id.

72. Id.

73. Id.

SNPLMA, FLTFA, and the Future of Public Land Exchanges

Melanie Tang Volume 9, Number 1

exchanges must conform to the policies in allthree statutes.7

4

Ill. Critiques of the Current LandExchange System.

Despite the widespread use of land ex-changes, the practice has been criticizedwidely by environmental groups, journalists,private business owners, politicians, and gov-ernmental agencies alleging that FLPMA's"public interest" provision governing land ex-changes, 43 U.S.C. § 1716(a), has been ig-nored or violated.75 Even as land exchangesmay be the preferred way for the BLM and theUSFS to acquire land, exchanges remain en-tirely discretionary actions entered into bythe agencies on a purely voluntary basis. 76 Inaddition, exchanges often mean that govern-ment agencies are engaged in extensive ne-gotiations with private corporate interests.Third-party facilitators who are often key inputting together and promoting the ex-changes have been described as "a new fieldof entrepreneurial intermediaries, some innonprofit land trusts and others who are real-estate speculators," sometimes dealing "incash so the Government can avoid payingcash for land."77 Exchanges are a long andslow process, often taking two or three

74. See NFMA, 16 U.S.C. §§ 1600-14 and MUSYA, 16u.s.c. § 528-31.

75. For a succinct summary of some of the major criti-ques of the current system, see Western Land ExchangeProject, The Issue: An Overview. Are Federal Land Exchanges Serv-ing the Public Interest?, available at www.westlx.org/html/the-issue.html (last visited March 3, 2003).

76. Jones, supra note 20, at 19.

77. John H. Cushman Jr., U.S. Using Swaps to ProtectLand, NEw YORK TIMES, September 30, 1996 at Al.

78. Jones, supra note 20, at 20. In 1998, the SeattleTimes reported that timber companies were lobbying Con-gress to speed up the land exchange process eliminatingthe requirement that "large land tracts be studied for envi-ronmental consequences," and requiring federal agenciesto "complete trades within a year." I. Simon, E. Nalder, D.Westneat, D. Nelson, Can Anything Be Done to Resolve Problemswith Land Exchanges, Here are Possible Solutions, THE SEATTLE

TIMES, October 2, 1998 at A15.

79. Stengel, supra note 17, at 582. In one case, in aproposed controversial exchange between the BLM andmining company Phelps Dodge Corporation, it was re-vealed that BLM officials involved were being paid, in part,by Phelps Dodge. D. Nelson, J. Simon, E. Nalder, D.

years.78 The process is also expensive andthe non-federal parties bear the cost of theadministrative expenses, such as appraisalsand NEPA reports. Thus, the agencies areoften motivated to make the exchanges as at-tractive as possible for the nonfederal par-ties.79 In addition, the agencies may beinvolved in lengthy negotiations with privateparties, who are often large timber or loggingcorporations, long before any type of publicnotice or environmental analysis requirementis implicated. 80

Critics have also charged that land ex-changes are. completed without sufficient op-portunities for public scrutiny and input; thatappraisals often overvalue private land whileundervaluing federal land; that the exchangeprocess is a game of insider trading betweenfederal agencies and the corporations withwhich they have close ties; that the NEPA en-vironmental analyses are often flawed and in-adequate; that lands received by the BLM orUSFS are often logged, degraded, or of other-wise of low quality, while the lands conveyedaway from the agencies are often prime orhigh-quality forest lands; and that the pro-cess provides the agencies with far too muchdiscretion and not enough accountability tothe public.8 I Recently, two Ninth Circuitopinions and a Government Accounting Of-

Westneat, Copper-Mining Company has Close Ties With Govern-ment in Proposed Land Exchange, THE SEATTLE TIMES, Septem-ber 27, 1998, at A16. Reportedly, the BLM defended thearrangement "as saving the taxpayers money." Id.

80. "Private parties often propose the deals, selectand pay the people who analyze them, then quietly negoti-ate the details with low-level bureaucrats vested with theauthority to literally move mountains from public to pri-vate ownership. By law, the public is to have plenty of op-portunity for input. But in practice, deals are often struckbefore questions can be raised. The formal request forpublic comment becomes little more than a minister's callfor objections at a wedding." id.

81. See, e.g., James Gerstenzang, 2 GOP Leaders QuestionCost of Land Swap, Los ANGELES TIMES, Jan. 24, 1997 at A3; D.Nelson, J. Simon, E. Nalder, and D. Westneat, Trading Awaythe West. How the Public is Losing Trees, Land and Money, THESEATrLE TIMES, Sep. 27, 1998 at Al; D. Nelson, J. Simon, E.Nalder, D. Westneat, Copper-Mining Company Has Close Tieswith Government in Proposed Land Exchange, THE SEATTLE TiMES,Sep. 27, 1998 at A16; Janine Blaeloch, Are Federal Land Ex-changes Serving the Public Interest, 10 THE 1. or THE AMERICANWILDLANDS I (1999), available at http://wildlands.org/wildside/sum99.landx.html (last visited Oct. 22, 2002); MichaelWeissenstein, Land's Destiny Targets Habitat, THE LAs VEGAS

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FaIl 2002 SNPLMA, FLIFA, and the Future of Public Land ~xchanges

fice report have highlighted some of the sys-temic problems and controversiessurrounding the current land exchange sys-tem.

1. Muckleshoot Indian Tribe v. U.S. ForestService

In 1997, the Ninth Circuit Court of Ap-peals ordered the Weyerhaeuser Company tocease logging and road building on lands inWashington it had received that year in an ex-change with the USFS.8 2 Under the terms ofthe Huckleberry Mountain Exchange Agree-ment between Weyerhaeuser and the USFS,Weyerhaeuser received 4,362 acres of land onHuckleberry Mountain in exchange for con-veying 30,253 acres of Weyerhaeuser-ownedlands to the United States.8 3 The Court foundthat the exchange had been made in violationof the National Historic Preservation Act be-cause the USFS did not minimize the adverseeffect of transferring portions of an ancestraltribal transportation route.84 The court alsofound two major violations of NEPA.

First, the cumulative impact statementsin the environmental impact statement (EIS)for the exchange were "far too general andone-sided."8 5 Second, the USFS failed to con-sider an adequate range of alternatives in itsEIS. While the USFS initially considered fiveaction alternatives and a no action alternativefor the project, three alternatives were elimi-nated from detailed study, and analyses wereperformed only upon the remaining two pro-posals and the no action plan.86 The court

REV.-I., Aug. 8, 2000, at IA; Jim Carlton, Big Land Exchange inUtah Draws Fire, THE WALL STREET JOURNAL, June 13, 2000 at A2;Land Exchanges Need to Reflect Appropriate Value and Serve the

Public Interest, supra note 30.

82. According to Ryan Beaudoin, the parties to theHuckleberry Land Exchange began "seriously talking abouta possible land exchange" in 1987. The Statement of Intentwas signed in 199!, and the Record of Decision was issuedin 1996. Beaudoin, supra note 9, at 253-54.

83. Muckleshoot Indian Tribe v. U.S. Forest Service,177 F.3d 800, 804 (9th Cir. 1999).

84. Id. at 805. See 16 U.S.C. § § 470-470w.

85. Muckleshoot Indian Tribe, 177 F.3d at 811. Thecourt commented, "The statement notably contains noevaluation whatsoever of the impact on natural resourcesof timber harvesting on the lands transferred to Weyer-haeuser, nor does it assess the possible impact that such

was particularly critical of the USFS's decisionto eliminate from detailed study the possibil-ity of placing deed restrictions on the landtransferred to Weyerhaeuser on the groundsthat it would "decrease Weyerhaeuser's incen-tive to trade."8 7 The court also criticized theUSFS's decision to not even consider the pos-sibility of an outright purchase of the landsfrom Weyerhaeuser, ostensibly "because thepurpose of the transaction was to carry out an'exchange' and not a purchase."88 In its order,the appellate court enjoined "any further ac-tivities on the land such as would be under-taken pursuant to" the exchange, ordering theUSFS to first comply with its obligationsunder NHPA and NEPA.89

2. GAO Report

In June 2000, the Government Account-ing Office (GAO) released a report examiningfifty-one land exchanges that took place be-tween 1989 and 1999.90 The GAO reported"numerous problems" with specific exchanges

and reported that generally, the USFS and theBLM "did not ensure that the land being ex-changed was appropriately valued or that theexchange served the public interest or metcertain other exchange requirements." 9' Thereport identified three major problems withthe current system.

First, the GAO found that the federalagencies generally gave "more than fair mar-ket value for nonfederal land acquired and ac-cepted less than fair marketplace value offederal land they conveyed because the ap-

harvesting could have upon surrounding areas. The state-ment focuses solely on the beneficial impact the exchangewill have on lands received by the Forest Service. All ofthose described benefits are contingent upon appropriateForest Service action and funds to promote the recovery ofthe harvested lands that it will acquire. This lopsided anal-ysis is repeated in virtually every cumulative impact state-ment throughout the EIS." Id.

86. Id. at 813.

87. Id.

88. Id. at 814.

89. Id. at 815.

90. Land Exchanges Need to Reflect Appropriate Value andServe the Public Interest, supra note 30.

91. Id. at 4.

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praisers used to estimate the lands' valuesdid not always meet federal standards.."9 2

However, the GAO did acknowledge the diffi-culty of the appraisal process: "it is increas-ingly difficult to make such a comparisonwhen the property being exchanged is uniqueand when the market is rapidly developingand / or is speculative.."93 As an example ofappraisal miscalculations, the report citedfindings by the Department of Agriculture In-spector General that three parcels of land ac-quired by the USFS in Nevada had beenovervalued by a total of $8.8 million. 94 Thereport also described another land exchangein which a nonfederal party on one occasionacquired 70 acres of federal land valued at$763,000 and sold it the same day for $4.6million, and on another occasion acquiredland valued at $504,000 and sold it the sameday for $1 million. 95

Second, the GAO found that the agen-cies did not "follow their requirements thathelp show that the public benefits of acquir-ing the nonfederal land in an exchangematched or exceeded the public benefits ofretaining the federal land, raising doubtsabout whether these exchanges served thepublic interest." The agencies sometimes ne-glected to even include a discussion of thepublic interest in the required analyses andreports.96

Finally, the report criticized a BLM prac-tice of selling federal land, depositing salesproceeds into interest bearing escrow ac-counts and using the funds to buy nonfederallands, often with the help of third party pri-vate facilitators, which is not authorizedunder the law. 97 However, the GAO also ac-knowledged that this practice provided theBLM with "more flexibility" because it was"more based upon market-based transac-

92. Id.

93. Id. at 30.

94. Id. at 17.

tions."98 The report concluded that "in mostcircumstances, cash-based transactionswould be simpler and less costly,"99 and thatland exchanges were an "inherently difficultway to convey and acquire land."'0 0 The re-port ultimately suggested that land ex-changes should perhaps be discontinued.' 0

3. Desert Citizens v. Bisson

In Desert Citizens, multiple ImperialCounty, California citizen groups challengedthe BLM's decision to enter into a land ex-change with a private party in order to createa landfill. The Ninth Circuit Court of Appealsfound that the BLM's appraisal of the federallands violated FLPMA's requirement that an"appraisal must determine the 'market value'of the affected lands, based on the 'highestand best use' of the appraised property."' 0 2

Specifically, the appraisal failed to acknowl-edge that the land was most likely going tobe used as a landfill and, as such, would bevery valuable. The Ninth Circuit found thatsince both the EIS and the Record of Decisionmade it clear that the land was most likelygoing to be used as a landfill and that bothparties were aware that this was the non-fed-eral party's intended use of the land, that alandfill was a sufficiently "reasonably proba-ble" use which was required to be part of theappraisal's "highest and best use" determina-tion. The appellate court rejected the districtcourt's finding that the BLM was not requiredto consider the landfill option in its appraisalbecause it was a high-risk venture and depen-dent upon other contingencies. 0 3 One com-mentator has described Desert Citizen'sdiscussion of "highest and best use" as high-lighting "the need to consider potential usesof the federal lands as well as changing mar-ket conditions when assigning a value to

99. id. at 5.

100. Id. at 30.

95. Id. 101. Id. at 31.

102. Desert Citizens v. Bisson, 231 F.3d at 1181 (9th Cir2000).

103. Id. at 1184.

96. Id. at 4.

97. Id.

98. Id. at 32.

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Fall 2002

those lands."104 Specifically, "stringent appli-cation of the 'highest and best use' standardis imperative in light of the fact that both theBLM and the Forest Service consistently un-dervalue federal lands at the expense of thetaxpayer."1

0 5

IV. SNPLMA and FLTFA.

While SNPLMA and FLTFA both makesignificant changes to the basic land ex-change process under FLPMA, they do not re-place any of FLPMA's public land sale andexchange provisions. However, bothSNPLMA and FLTFA address some of theproblems identified by critics of land ex-changes by creating a new system of land dis-posal and acquisition.

A. SNPLMA

SNPLMA was passed in October 1998 to"provide for the orderly disposal of certainfederal lands in Clark County, Nevada, and toprovide for the acquisition of environmentallysensitive lands in the State of Nevada."10 6

SNPLMA is aimed at the Las Vegas Valley,where nearly 27,000 acres 0 7 of federal landholdings are "interspersed with or adjacent toprivate land." 08 The disposal area boundarywas set by SNPLMA.' 09 The largest parcelsavailable for disposal are located in NorthLas Vegas (7,500 acres), Henderson (6,000acres) and Northwest Las Vegas (1,800acres). 1 0 SNPLMA gives the Director of theBLM authority to dispose of these federallands in Clark County, Nevada.'"

Disposal of the identified lands may beeither by sale or exchange. 1 2 After the publiclands are disposed of, SNPLMA requires pro-

104. Amy Stengel, "Insider's Game" or Valuable Land Man-agement Tool? Current Issues in the Federal Land Exchange Pro-gram, 14 TUL. ENVTL. L. J. 567, 590 (2001).

105. Id. at 590-91.

106. 105 P.L. 263 (H.R. 449, Oct. 19, 1998).

107. American Political Network, Nevada Land AuctionMarks New Era for BLM, 7 GREENWIRE, October 26, 1998. Onfile with author.

108. 105 P.L. 263 (H.R. 449, Oct 19, 1998), §2(a)(l).

109. Bureau of Land Management, Southern NevadaPublic Land Management Act Annual Report, at http://www.nv.

SNPLMA, FLTFA, and the Future of Public Land Exchanges

ceeds to be divided in the following manner:5 percent is paid to the state of Nevada "foruse in the general education program of theState;" 10 percent is paid to the Southern Ne-vada Water Authority "for water treatmentand transmission facility infrastructure inClark County;" and the remainder is depos-ited in a Special Account, which "shall beavailable to the ISecretary of the Interior]without further appropriation and shall re-main available until expended."" 3 If a landexchange takes place, both the state and theSouthern Nevada Water Authority are entitledto "direct payments based upon the fair mar-ket value of the Federal lands to be conveyedin the exchange" of the same amounts." 14

Money in the Special Account generated bysales of public lands may be used for fivemain purposes:

(i) the acquisition of environmentally sen-sitive land in the State of Nevada ...with priority given to lands located inClark County;

(ii) capital improvements at the Lake MeadNational Recreation Area, the DesertNational Wildlife Refuge, the Red RockCanyon National Conservation Area,and other areas administered by theBureau of Land Management in ClarkCounty, and the Spring Mountains Na-tional Recreation Area;

(iii) development of a multispecies habitatconservation plan in Clark County, Ne-vada;

(iv) development of parks, trails, and natu-ral areas in Clark County, Nevada, pur-suant to a cooperative agreement with aunit of local government; and

(v) reimbursement of costs incurred by thelocal offices of the Bureau of Land Man-

blm.gov/snplma/siteindex.asp under "Annual Report," 3(last visited January 27, 2003).

110. Id.

111. 105 P.L. 263 (H.R. 449, Oct 19, 1998), § 4(a).

112. ld. § 4(d)(1).

113. ld. § 4(e)(1).

114. Id. § (4)(e)(2)(A).

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agement in arranging sales or ex-changes under this Act. 1 5

The amount of money that may be used forcapital improvements under subsection (ii) islimited to 25 percent of the money depositedinto the Special Account.'' 6 Throughout theprocess of selection, disposal and acquisi-tion, SNPLMA requires that the state and lo-cal government be informed and involved.The Secretary and the applicable unit of localgovernment are "to jointly select lands to beoffered for sale or exchange."''117 In addition,disposal activities are to be coordinated withthe local unit of government in whose juris-diction such lands are located. 118 Further-more, "Illand disposal activities of theSecretary shall be consistent with local landuse planning and zoning requirements andrecommendations."' "9 The Initiation and Re-view process involves the nomination of theparticular lands within the disposal area fordisposal, review by the local governmentalagencies (county and municipality), as well asa review by affected state and federal agen-cies.' 20 The Approval process involves selec-tion of lands by the local government,opportunity for public input, regional reviewby inter-governmental bodies and the FederalLand Disposal Sub-committee, and notice tothe BLM. 12

115. Id. § 4(d)(3)(A)(i)-(v). SNPLMA defines "environ-mentally sensitive land" as land or an interest in land, theacquisition of which by the United States would in thejudgment of the Secretary or the Secretary of Agriculture -(A) promote the preservation of natural, scientific, aes-thetic, historical, cultural, watershed, wildlife, and othervalues contributing to public enjoyment and biological di-versity; (B) enhance recreational opportunities and publicaccess; (C) provide the opportunity to achieve better man-agement of public land through consolidation of Federalownership; or (D) otherwise serve the public interest." Id.§ 5(a)(1)(A)-(D).

116. Id. § 4 (e)(3)(C).

117. Id. §4(d)(1).

118. Id.

119. Id. § 4(d)(1).

120. Nevada Bureau of Land Management, joint Selec-tion Process, at http://www.nv.blm.gov/SNPLMA/images/jointselection.gif (last visited April 23, 2002).

121. Id.

122. 105-263 122 Stat. 2343 § 4(b)(). The Recreationand Public Purposes Act, 43 U.S.C. 869 to 869-4, allows the

Thirty days before lands are offered fordisposal, the state or local government mayelect to "obtain any such lands for local pub-lic purposes pursuant to the provisions of theRecreation and Public Purposes Act."'122

Under SNPLMA, public lands in the DisposalArea must be "available first to local govern-ments for public purposes (such as parks,school sites, libraries, fire and police sta-tions, etc.) and second for privatization."'' 23

The Secretary is required to convey the landsidentified as available for disposal underSNPLMA to the State of Nevada or such unitof the local government if the local govern-ment elects to acquire land under theRPPA.' 24 Generally, lands obtained by localgovernment under this provision of SNPLMAare leased for $2 per acre or sold for $10 peracre, with land proposed for public recrea-tion-related purposes being conveyed at nocost, and private non-profit agencies usuallypaying half of fair market value. 25 As ofMarch 6, 2001, leases had been issued for1,247 acres for such public purposes, repre-senting 32 applications. 26

The Secretary is required to "coordinatethe use of the special account with the Secre-tary of Agriculture, the State of Nevada, localgovernments, and other interested persons,to ensure accountability and demonstrated

Secretary of the Interior to sell land to a State, Territory,county, or other State, Territorial, or other Federal instru-mentality or political subdivision in which the lands aresituated, or to a nearby municipal corporation in the sameState or Territory." Id. § 869-1(a). If the conveyance is for"historic-monument or recreational purposes," the convey-ance is to be made "without monetary consideration;" if theland is to be conveyed for another use, the Secretary of theInterior may set the price "after taking into considerationthe purpose for which the lands are to be used." Id. TheSecretary of the Interior may also lease such lands to mu-nicipalities or states for a "reasonable annual rental," or, ifthe purpose is recreational, "without monetary considera-tion, for a period for up to twenty-five years." Id. § 869-1(b).Finally, the RPPA also allows the Secretary of the Interior tosell such lands to nonprofit corporations or nonprofit as-sociations. Id. § 869-1(d).

123. Southern Nevada Public Land Management Act AnnualReport, supra note 109, at 3. (this was unavailable)

124. Id.

125. Id. at 4.

126. Id.

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FaIl 2002 SNPIMA, FLTFA, and the Future of Public Land Exchanges

results."'127 Before any land may be acquired,the Secretary or the Secretary of Agriculture isrequired to "consult with the State of Nevadawith local government within whose jurisdic-tion the lands are located, including appro-priate planning and regulatory agencies, andwith other interested persons, concerning thenecessity of making the acquisition, the po-tential impacts on State and local govern-ment, and other appropriate aspects of theacquisition."' 28 The formal process involves acall for nominations, an acceptance andscreening of those nominations, an initialpublic comment period, preliminary recom-mendations, a subsequent public commentand consultation period, final recommenda-tions, and approval by the Secretary of the In-terior. 129

In addition, under SNPLMA, the State ofNevada retains right-of-way grants on federallands, free of charge and valid in perpetuity,for "impoundment, storage, treatment, trans-portation, or distribution" of water or waste-water; or flood control management. 30

Under SNPLMA, the BLM also conveyed titleto 5,140 acres in the McCarran Airport Coop-erative Management Area in Las Vegas toClark County, with the proviso that whenthose lands are sold, leased or otherwise con-veyed, the United States is entitled to 85 per-cent of the proceeds. 13 As of December 31,2002, over $40 million has been generatedfrom leases and sales of McCarran AirportCooperative Management Area lands. 132 Fi-nally, SNPLMA also allows the Department ofHousing and Urban Development to makefederal lands in Nevada available "at lessthan fair market value and under such itemsand conditions as he may determine for af-

127. 105 P.L. 263 (H.R. 449, Oct 19, 1998), § 4(e)(3)(B).

128. Id. § 5(a)(3).

129. Southern Nevada Public Land Management Act AnnualReport, supra note 109, at 6.

130. 105 P.L. 263 (H.R. 49, October 19, 1998),§ 4(b)(2)(A)(i) - (ii).

131. Id. § 4(g)(1); Southern Nevada Public Land Manage-ment Act Annual Report, supra note 109, at 6.

132. Nevada Bureau of Land Management, Quick Facts,Southern Nevada Public Land Management Act, December 3 31,2002, at http://www.nv.blm.gov/snplma/Sale/salequick.asp(last visited January 27, 2003).

fordable housing purposes.' 33 Currently, theBLM is developing a regulation in order toaddress key issues, including establishing cri-teria for approving or disapproving applica-tions for the sale of land for affordablehousing; determining the appropriate "dis-count" to apply to the fair market price ofland; and developing controls to ensure thatproperty is actually developed for affordablehousing. 134 Two scoping meetings were heldin 2001 in Las Vegas and Reno, and a draftregulation is "currently working its waythrough the rule-making process."' 3 5 TheDraft Regulation, which "was incorporatedinto a re-write of the existing regulation gov-erning land sales conducted under the au-thority of FLPMA," is available online, as isthe Preamble (which explains what is con-tained in the new regulation) and a copy ofthe Draft Affordable Housing ImplementationPolicy.

As of December 31, 2002, the BLM hadconducted twelve land auctions (seven live,and five over the internet) under SNPLMA,raising a total of $333,387,611.136 Out of 236parcels (representing 3951.16 acres) offered,225 parcels (representing 3897.41 acres) wereactually sold.' 37 The individual parcelsranged in size from 1.25 acres to 1,905.5acres, and the price per acre of parcels soldranged from $18,667 to $426,531.61.138 While32 percent of the parcels sold at appraisedvalue, 68 percent sold for greater than ap-praised value. 139 The parcels selling abovethe appraisal value averaged a price 123 per-cent above the appraisal value.' 40 Accordingto the 2001 Annual Report, the BLM has alsoconducted three direct sales since the enact-ment of SNPLMA to the cities of Las Vegas

133. 105 P.L. 263 (H.R. 449, Oct 19, 1998), § 7(b).

134. Nevada Bureau of Land Management, AffordableHousing, http://www.nv.blm.gov/snplma/Sale/housedefault.asp (last visited January 27, 2003).

135. Id.

136. Quick Facts, Southern Nevada Public Land ManagementAct December 31, 2002, supra note 132.

137. Id.

138. Id.

139. Id.

140. Id.

Fall 2002 SNPLMA, FLTFA, and the Future of Public Land Exchanges

Volume 9, Number 1

and Henderson, and to one non-profit organi-zation under the RPPA, raising over $2.4 mil-lion.' 4 1 Also, the 2001 Annual Report statesthat since the passage of SNPLMA, the BLMhas not initiated any new land exchanges, buthas obtained lands through three exchangesinitiated before the passage of SNPLMA. 142

The next auction is scheduled for June 5,2003.

As for federal expenditures and alloca-tions, as of December 31, 2002, the State ofNevada General Education Fund has received$12.3 million; the Southern Nevada Water Au-thority has received $20.6 million; the ClarkCounty Department of Aviation has received$4.0 million; and over $33 million has beenallocated to the Lake Tahoe Basin Land Ac-quisition Fund.' 43 As of December 31, 2002,three rounds, as well as a "supplemental"round of nominations and approvals for landacquisitions and projects under SNPLMAhave been completed.14 4 In 2000, the BLMapproved $24 million for the acquisition of8,191 acres of land to be managed by theBLM, the USFS, the Bureau of Reclamation,the National Park Service, and the Fish andWildlife Service;' 45 and $9.2 million was ap-proved for projects. 46 The projects included$5 million for capital improvements such asvisitor center upgrades, sanitation, trail main-tenance for federally managed recreation ar-eas, and $4.2 million for the restoration of awetlands park in Clark County. 147 In 2001,$27.6 million was approved for the acquisi-

141. Southern Nevada Public Land Management Act Annual

Report, supra note 109, at 4.

142. Id. at 5.

143. Quick Facts, Southern Nevada Public Land ManagementAct December 31, 2002, supra note 132.

144. Id., see also Bureau of Land Management, "Round3 Supplemental Nominations for Land Acquisitions inClark County," at http://www.nv.blm.gov.snplma/round3sup.asp (last visited January 27, 2003).

145. Id. at 6.

146. Id. at 8.

147. Id.

148. Id. at 7.

149. Id.

150. Id. at 9-12.

tion of 6,133 acres to be managed by theBLM, the USFS, and the National Park Ser-vice; 148 and $17.86 million for projects. 149

The projects included $5.256 million for capi-tal improvements to federal recreational ar-eas, $8 million for projects involving state-owned parks, trails and natural areas, and$4.6 million for projects relating to the devel-opment of a Multi-Species, Habitat Conserva-tion Plan for Clark County. 150 Finally, as ofNovember 13, 2002, Secretary of the InteriorGale Norton had conditionally approved $109million for expenditures funded by SNPLMAauctions.' 5 The conditional approval wouldprovide $45 million for the acquisition of en-vironmentally sensitive lands, $24 million forcapital improvements at federally managedoutdoor recreation destinations, and nearly$40 million for the development of parks,trails, and natural areas in the Las Vegasarea. 1 52 In addition, a Supplemental LandAcquisition process reserved for lands inClark County is underway, with the publiccomment period having ended on January 20,2003.153 The final combined recommenda-tion for acquisition of this last round of landacquisitions is expected to be presented tothe Secretary in the spring of 2003.154 In themeantime, nominations for the next round ofland acquisitions, expected to be ready forpresentation to the Secretary in the summerof 2003, were accepted until January 10,2003.155

151. U.S. Department of the Interior, "Secretary Nor-ton Approves $109 Million in Southern Nevada Projects," athttp://www.nv.blm.gov/snplma/landdefault.asp, under"Click here to see the Press Release for Round 3" (last vis-ited January 27, 2003).

152. Id.

153. Bureau of Land Management, "Round 3 Supple-mental Nominations for Land Acquisitions in ClarkCounty," at http://www.nv.blm.gov.snplma/round3sup.asp(last visited January 27, 2003).

154. BLM News, "Land Acquisitions Sought," at http://www.nv.blm.gov/snplma/round4.asp, under "Round 4 Callfor Nominations Press Release" (last visited January 27,2003).

155. Id. See generally, http://www.nv.blm.gov/snplma/round4.asp (last visited January 27, 2003).

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B. FLTFA

The Federal Land Transaction Facilita-tion Act was modeled upon SNPLMA, and af-firmed the basic idea that disposing ofcertain federal lands by sale or exchange, andacquiring certain nonfederal lands, allows for"the reconfiguration of land ownership pat-terns to better facilitate resource manage-ment;" increased "administrative efficiencywithin Federal land management units;" and"increased effectiveness of the allocation offiscal and human resources within Federalland management agencies."1 56 Accordingly,FLTFA acknowledges that "a more expeditiousprocess for disposal and acquisition of land,established to facilitate a more effective con-figuration of land ownership patterns, wouldbenefit the public interest."'157 FLTFA appliesto lands in Alaska and the eleven contiguousWestern States. 158 Under FLTFA, lands thathave been "identified for disposal under ap-proved land use plans (effective July 25,2000)" are eligible for sale via competitivebidding.1 59 The gross proceeds of any salesunder FLTFA are placed into a "Federal LandDisposal Account," a separate Treasury ac-count not dependent upon appropriations byCongress, for use in purchasing nonfederallands. 160 These funds are to be used for ac-quiring "inholdings" and lands "adjacent tofederally designated areas [which] contain ex-ceptional resources."'61 Under FLTFA, an "ex-ceptional resource" is defined as "a resourceof scientific, natural, historical, cultural, orrecreational value that has been documentedby a Federal, State, or local government au-thority, and for which there is a compellingneed for conservation and protection underthe jurisdiction of a Federal agency to main-tain the resource for the benefit of the pub-lic."1

6 2

156. 43 U.S.C. § 2301(5)(A)-(C).

157. Id. § 2301(6).

158. Id. § 2302(2).

159. Id. § 2304(a).

160. Id. § 2305(a).

161. Id. § 2305(c)(2)(A).

162. Id. § 2302(1).

163. Id. § 2305(c)(2)(3)(C) and (D).

SNPLMA, FLTFA, and the Future of Public Land Exchanges

While up to 20 percent of the total de-posited funds may be used for administrativeexpenses, at least 80 percent of the remainingtotal funds "shall be expended within theState in which the funds were generated."'' 63

In addition, "not less than 80 percent of thefunds allocated for the purchase of landwithin each State" must be used to acquireinholdings. 164 The Secretary of the Interiorand the Secretary of Agriculture are to de-velop a procedure for prioritizing the acquisi-tion of inholdings and nonfederal lands withexceptional resources, taking into accountthe date the inholding was established andthe facilitation of management efficiency. 165

At the time FLTFA was enacted, the BLMestimated that more than 3.3 million acreswere potentially available for sale or disposal,and anticipated setting a goal of selling be-tween 30,000 to 50,000 acres annually.1 6

This figure is a significant increase over thehistoric annual land acreage sold by the BLM,which has ranged from between 4,000 to5,000 acres per year.' 6 7

1. SNPLMA and FLTFA: Models for theFuture?

As noted above, SNPLMA and FLTFA donot replace FLPMA's land exchange and saleprovisions, but instead create a third optionfor the acquisition and disposal of publiclands. The creation of special accounts bySNLPMA and FLTFA may be seen as a hybridof the former land sale and exchange systemsinsofar as they allow the proceeds of sales ofBLM land to be kept "off the books," whilestill restricting where and how that money isused. While land exchanges will probablycontinue to be used by the agencies, 16 8

SNLPMA and FLTFA will most likely resolvesome of the more publicized valuation and

164. Id. § 2305(c)(2)(B).

165. Id. § 2305(3)(A) - (C).

166. Questions and Answers, Federal Land Transac-tion Facilitation Act, July 25, 2000, at http:www.blm.gov/nhp/news/releases/pages/2000/vallesOsAs.htm (last vis-ited April 2, 2002).

167. Id.

168. For example, in its published comments to theGAO Report, the BLM noted that "the Southern Nevada

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public interest problems identified with landexchanges by the GAO report and other crit-ics. The process is a public, open auction,not a private deal between the BLM or theUSFS and one other party. The competitivebidding process alone may be enough to alle-viate concerns about undervaluation of of-fered lands and taxpayers not getting theirmoney's worth. For example, it is worth not-ing that the monetary undervaluation of of-fered lands is not a criticism typically leveledat sales of federal lands, which also utilizes acompetitive bidding process. Ultimately, it islikely that only a limited number of partieswill be in a position to actually purchase theoffered lands. Nonetheless, the auction pro-cess requires that interested individuals andlocal governmental bodies be given notice ofthe proposed transactions long before any ac-tual change in title to the land, encouragingpublic participation in the process. Addition-ally, the statutes provide for special accountmonies to be used for administrative costs,which might make agencies less reliant uponprivate parties to pay those costs, and there-fore reduce incentives to set up deals that areespecially attractive to those private parties.Finally, given that many of the would-be pur-chasers of federal lands are developers andother for-profit entities, the auction processpresumably helps to ensure that the finalcost paid takes into account the long-termdevelopment value of the land, which mayaddress critiques that land exchanges oftenundervalue the worth of the federal land con-veyed to private parties.

Similarly, the land acquisition systemsproposed by SNPLMA and FLTFA are efficientand expedient ways to protect environmen-

legislation is a positive land management tool and theBLM support extending that authority. However, it couldnever be a replacement for land exchanges." Land ExchangesNeed to Reflect Appropriate Value and Serve the Public Interest,Comments From the Bureau of Land Management, Appen-dix II, supra note 104, at 61. Similarly, BLM Director TomFry's announcement of the passage of FLTFA included acomment that "this authority will not eliminate the needfor land exchanges. Land exchanges will continue to be amajor tool for the BLM to change the checkerboard patternof land ownership in the West." Statement By BLM Direc-tor Tom Fry, Federal Land Transaction Facilitation Act, athttp://www.bim.gov/nhp/news/releases/pages/2000/pr000725_valles.htm (last visited April 2, 2002).

tally sensitive land. Under SNPLMA, nomina-tions for acquisitions have come from federalagencies, state agencies, environmentalgroups, and even private parties. An outrightpurchase of private land from a willing selleris most likely to be a faster and less contro-versial means of protecting habitat than anattempt to control certain uses through theenvironmental regulatory system. Rob Scan-land, Director of Protection of the NatureConservancy in Reno, Nevada, has describedThe Nature Conservancy's support ofSNPLMA as an opportunity to work with fed-eral land management agencies to "acquireenvironmentally sensitive lands ... targetedto accomplish sensitive species habitat pro-tection which accomplish both TNC andagency objectives," including the develop-ment of the Multiple Species Habitat Conser-vation Plan to protect Desert TortoiseHabitat. 69 Scanland described SNPLMA as"an opportunity to partner with the agenciesto protect habitat and species to accomplishour mutual goals."'170 The Nature Conser-vancy has been active in Nevada in the imple-mentation of SNPLMA, identifying andnominating parcels land for acquisition, in-cluding one parcel originally owned by theNature Conservancy and conveyed to theBLM. 17 1 Furthermore, the complexities ofland exchanges may cause a single exchangeto stretch into two or three years. By con-trast, under SNPLMA, multiple rounds of landsales and acquisitions, representing dozensof parcels and hundreds of millions of dol-lars, will be completed within four years ofthe passage of the statute. 172

Nonetheless, the implementation of

SNPLMA and FLTFA leaves some issues un-

169. E-Mail from Rob Scanland, Director of Protec-tion, The Nature Conservancy, to Melanie Tang, February11, 2002.

170. Id.

171. Bureau of Land Management, Decision Document,Expenditure of the Southern Nevada Public Land Management ActSpecial Account, May 2001, 6-7; Round 2 Approved Acquisitions athttp://www.nv.blm.gov/snplma/round2.asp under "102Ranch"; and Round 3 Approved Acquisitions at http://www.nv.blm.gov/snplma/round3.asp under "Perkins Property" and"McCarran Ranch," (last visited January 27, 2003).

172. See generally, Bureau of Land Management,Southern Nevada Public Land Management Act, at http:/!

Melanie Tang

Fall 2002

resolved and raises some new ones. Further-more, the differences between SNPLMA andFLTFA also raise different questions abouthow the statutes can effectively be put to use.

Although both statutes help ensure thatthe government receives fair market value forland it conveys away, certain questions aboutvaluation remain unanswered. The controver-sies surrounding the old system of land ex-changes may be traced at least in part toinconsistent methods of valuing land. As onecommentator noted, "lhlow can anybody tellwho's getting the better deal, when one yard-stick's measured in units of ecological aes-thetics and the other, in commercialpotential?"'173 The exchange process high-lighted these problems starkly because twoparcels were put side by side. HoweverSNPLMA and FLTFA do not solve the difficul-ties of determining the value of land to be ac-quired by the government. Divorcing the landacquisition and the land sale transactionsfrom one another is no guarantee againstland speculation. Arguably, separating thetwo processes might ultimately reduceagency accountability because it will not beclear how much land was sold in order tomake a particular purchase possible. Al-though SNPLMA and FLTFA do not use tax-payer funds appropriated from the Treasuryto purchase private lands, the fact that saleproceeds are returned to the agencies couldpotentially create an incentive to dispose oflands, even when such disposal might be illadvised. 1

74

Even where conservation purposes arethe clear goal, debate about how to achievethose purposes continues. In the case of thecontroversial Huckleberry Exchange, for ex-ample, the USFS indicated "the purpose ofthis exchange was to 'consolidate landowner-ship presently characterized by a checker-board' ownership pattern" and that land

www.nv.blm.gov/snplma/default.asp (last visited January27, 2003).

173. John Webster, Land Swaps Take Regional Spotlight,THE SPOKESMAN REVIEW May 31, 1999 at A12.

174. Email from Janine Blaeloch, Director, WesternLand Exchange Project, to Melanie Tang, February 21, 2002.

175. Beaudoin, supra note 9, at 253.

SNPLMA, FLTFA, and the Future of Public Land Exchanges

consolidation "would enable it to implementmore effective ecosystem based manage-ment."'17 5 Similarly, Everett White, head ofthe USFS negotiation team for the Huckle-berry Exchange, defended the HuckleberryExchange despite the fact that the USFS wasto receive mostly logged land in exchange:"I'm probably one of the few people in theForest Service who thinks it's better to getland than trees . . . You can grow trees - butnot land."' 76 Such statements reveal thatland acquisition for environmental purposescan take many forms, and be valued differ-ently. Arguably, the acquisition of inholdingsto "fill in" a checkerboard pattern of owner-ship places an entirely separate value on par-cels than considering the present and futureaesthetic and recreational qualities. It isdoubtful if land purchases using special ac-count funds will settle such controversies.

Also, under SNPLMA and FLTFA, the gov-ernment is to buy only from willing sellers.This could lead to what John Echeverria of theGeorgetown Environmental Law & Policy In-stitute has described as the "holdout prob-lem." That is, when a program ofconservation is implemented primarilythrough land purchases, the ultimate goal ofconservation may be confounded by one landowner who refuses to sell: "a policy to stopdevelopment along a scenic ridge willfounder if one uncooperative owner decidesto build there anyway. Likewise, an invest-ment of millions of dollars in preserving anagricultural valley would be largely wasted ifone owner insisted on subdividing a key par-cel for development."' 177 Echeverria alsospeculates that in the case of a developmentor subdivision, a private inholding might ac-tually be made more valuable by the fact ofits proximity to protected conservationlands.17 8 Even if they do decide to sell, hold-outs can exploit the system: one commenta-

176. D. Nelson, et al. Trading Away the West, supra note81, at Al.

177. Double-Dip Conservation. A Costly, Cumbersome Ap-proach to Sprawl, THE WASHINGTON POST, January 2, 2000 at B8.

178. Id.

Volume 9, Number 1

tor has observed that "private wheeler-dealers have found it profitable to buy scenicland and merely threaten to log it or build aroad on it; the screams of outrage guaranteethey'll get a spectacular trade when they fi-nally do hand it over to public ownership."' 79

Under SNPLMA and FLTFA, such an individ-ual would get a spectacular deal funded bythe sale of other public lands. UnderSNPLMA, the BLM has so far received an av-erage of approximately $127,162.34 per acrefor small parcels (less than 50 acres) it hassold at auction. 1 80 The lowest per-acre priceof a parcel sold was $18,667 per acre.' 8 '

By contrast, in the land acquisitions of2000, the BLM spent an average of $2,942 peracre. 8 2 In the 2001 acquisitions, the govern-ment spent an average of approximately$4,502 per acre. 1 83 According to the DecisionDocument, the total acreage acquired was6,133 acres, and according to the Quick Facts,$27,613,000 was approved for land acquisi-tion in 2001. While these disparities in pricereflect distinctions in quality and location ofacquired parcels, questions remain as towhat the government should pay for conser-vation land, and what it will have to pay toobtain environmentally threatened or sensi-tive land. As noted above, FLPMA requiresthat potential land sales be appraised by aBLM-approved appraiser and conform to theDepartment of Justice Uniform AppraisalStandards for Federal Land Acquisitions ("Ap-praisal Standards"). However, the AppraisalStandards appear to require the governmentto assign a financial value to conservationlands based on the development potential ofthe lands. According to the Appraisal Stan-

179. Webster, supra note 173, at A12.

180. Nevada Bureau of Land Management, Quick Facts,Southern Nevada Public Land Management Act, December 31,2002, at http://www.nv.blm.gov/snplma/Sale/salequick.asp(last visited January 27, 2003).

181. Id.

182. Round I Approved Acquisitions, :Round I Deci-sion Document," at http://www.nv blm.gov/snplma/round I.asp (last visited January 27, 2003). According to the Deci-sion Document, 8,191 acres were acquired with 24.1 mil-lion.

183. Round 2 Approved Acquisitions, "Round 2 Deci-sion Document," June 26, 2001 at http://www.nv.blm.gov/

dards, an appraiser's analysis of the highestand best use of land to be acquired - that is,"the highest and most profitable use forwhich the property is adaptable and neededor likely to be needed in the reasonably nearfuture"18 4

- cannot be based on "the purposefor which the government is acquiring theproperty (e.g. missile test range, habitat,habitat conservation, airfield, park), unlessthere is a prospect and competitive demandfor that use by others than the govern-ment." 85 Furthermore, because market valueis to be determined with reference to theproperty's highest and best use, the AppraisalStandards reject any appraisals that arebased upon a non-economic highest and bestuse: "The Department of Justice's view is thatan appraisal premised on a highest and bestuse of preservation, conservation, naturallands, and the like is not an appraisal of fairmade value and is unacceptable for both di-rect purchase and eminent domain acquisi-tions." ' 8 6 The approach described in theAppraisal Standard may be viewed as tacit ac-knowledgment that in many situations, acostly buyout is unavoidable and may be thebest or only solution for environmental con-servation. For example, where the land is aninholding in the midst of undisturbed naturalhabitat or wilderness area, regulation maynot be an efficient or realistic long-term solu-tion. However, at the same time, the fact thatthe Appraisal Standards value lands exclu-sively in terms of general real estate princi-ples may have the effect of setting initialmonetary values very high, and then forcingfederal agencies seeking to protect land intodirect competition with private developmentforces. It is true that the federal government

snplma/round2.asp (last visited January 27, 2003) and QuickFacts, Southern Nevada Public Land Management Act, December31, 2002, at http://www.nv.blm.gov/snplma/Sale/salequick.asp (last visited January 27, 2003).

184. Interagency Land Acquisition Conference, Uni-form Appraisal Standards for Federal Land Acquisitions (Washing-ton, D.C. 2000), at 34 (quoting Olson v. United States, 292 U.S.246, 255 (1934)) at http://www.usdoj.gov:80/enrd/land-ack/yb200I.pdf (last visited April 15, 2002).

185. Id. at 35.

186. Id. at 36 (internal citations and quotations omit-

Melanie Tang

Fall 2002

has always been allowed to purchase landunder FLPMA, and problems of competitionand land speculation are not anything new.Problems such as how to determine the mar-ket value of land that is, for example, desig-nated as critical habitat under theEndangered Species Act, will persist underSNPLMA and FLTFA. However, SNPLMA andFLTFA will provide agencies with additionalfunds, which could potentially encouragesellers to seek maximum profits and exacer-bate this problem.

A broader issue is whether sales and ex-changes are ultimately good for environmen-tal policy. Although the environmentalregulatory system is a vast, complex, and po-tentially powerful conservation tool that canrestrict activities upon private lands, the en-forcement of environmental statutes is oftenmet with resistance, or even lawsuits. Tak-ings lawsuits by private landowners and legalchallenges to the designation of conservationlands are not uncommon, and such lawsuitsare expensive, time-consuming, and mayhave unfavorable outcomes with broad-reach-ing implications. Conversely, purchasingland outright from willing purchasers almostentirely removes the risk of such lawsuits.Not surprisingly, then, voluntary land-acqui-sition environmental protection schemes aresupported by a wide variety of organizationsand individuals as efficient and effective waysto protect the environment. Nonetheless, thecontemplation of a market-based, landpurchase-based plan for environmental pro-tection raises the question as to whether thegovernment is effectively paying market valuefor land it could regulate for free, and sellingoff valuable lands to fund such a practice.Furthermore, the effect of focusing upon mar-ket-based solutions to environmentalproblems raises questions as to whether theultimate effect will be to undermine the ex-isting environmental regulatory system. JohnEcchevaria suggests that where land use lawsrestricting development on environmentallysensitive lands coexist with federal and state

187. E-mail from John Ecchevearia to Melanie Tang,

February 22, 2002.

188. Id.

SNPLMA, FLTFA, and the Future of Public Land Exchanges

programs to purchase a landowner's develop-ment rights, that political reality will force theland use laws to recede:

As between the two options, anymoderately self-interested owner willprefer to get paid rather than not. Isit possible to pursue both options si-multaneously? It seems exceedinglyunlikely, at least over the long term... whatever degree of political resis-

tance there might be to regulatory re-strictions in the first place, the optionthat the political process could yield abetter deal for an owner would seemto create an important political incen-tive to both resist the regulatory op-tion and to support the paymentoption."

87

Certainly, the federal government will neverraise enough money through SNPLMA andFLTFA to simply buy all of the lands that itwishes to regulate and thereby render theregulatory system obsolete.

However, the use of SNPLMA and FLTFAspecial account funds to purchase land doesraise questions of equity. One could arguethat since the government can always acquirelands through eminent domain, the govern-ment should be forced to purchase land anytime it wishes to regulate it. Echeverriaposed this as "a new and special fairnessproblem. If farmer A and B are being paid notto develop their lands, aren't farmers Cthrough Z entitled to the same deal?"' 88

As discussed above, FLPMA has a publicinterest requirement governing exchangesthat directs the agency to give "full considera-tion" to a multitude of factors, including fed-eral land management, state and local needs,as well as food, fiber, mineral, and recrea-tional needs. 18 9 In addition, an exchangecannot occur unless the BLM or USFS "findsthat values and objectives which federallands or interests to be conveyed may serve ifretained in federal ownership are not morethan the values of the non-federal lands or in-terests and the public objectives they could

189. 43 U.S.C. § 1716(a).

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serve if acquired."'190 The GAO has describedthe public interest requirement as follows:"the agency has to show that (1) it gave fullconsideration to better federal land manage-ment practices and the needs of state and lo-cal people and (2) the benefits to the publicfrom acquiring the nonfederal land will matchor exceed the benefits from retaining the fed-eral land."' 9'

From a certain perspective, the public in-terest issue is inherently taken care of bySNPLMA and FLTFA because the statutes re-quire a collaborative planning process be-tween state and federal governments inidentifying the lands to be auctioned off, andprovide for opportunities for public input.The GAO Report had specifically critiquedseveral land exchanges for failing to "showthat the public benefits of acquiring thenonfederal land in an exchange matched orexceeded the public benefits of retaining thefederal land."' 92 It is not clear exactly wherein the process of land disposal or acquisitionunder SNPLMA or FLTFA such an evaluationwould take place, and how "full considera-tion" would be documented. The BLM hasstated that SNPLMA "allows the market to setthe value of the public land being sold. Thisprotects the public interest in land that be-longs to all Americans."' 93 While selling landat fair market value may help preserve thepublic interest with respect to valuation, howthe public interest will be preserved with re-spect to the fundamental decision of whetherto sell off certain lands is unclear.

It is also unclear how to evaluate themandatory proceed-distribution provisionswritten into SNPLMA in light of FLPMA'spublic interest requirement. While FLTFA re-stricts the spending of a certain percentage ofland sale proceeds to instate uses and in-holding purchases, SNPLMA goes one stepfurther and provides for various state agen-cies to receive land, money, and federally-

190. Id.191. Land Exchanges Need to Reflect Appropriate Value and

Serve the Public interest, supra note 30, at 9.

192. Id. at 20.

193. Southern Nevada Public Land Management Act AnnualReport. supra note 109, at i.

sponsored capital improvements. In fact,under SNPLMA, the state of Nevada and theSouthern Nevada Water Authority are entitledto direct cash payments from the federal gov-ernment of, respectively, 5 percent and 10percent of the fair market value of the Federallands conveyed away in any land exchange. 194

SNPLMA provides that this cost "shall beconsidered a cost incurred by the non-Federalparty that shall be compensated by the Secre-tary if so provided by any agreement to initi-ate exchange."' 195 This latter provisionappears to do nothing except potentiallymake land exchanges under the old systemeven less of a good deal for the federal govern-ment. And, as noted above, the state of Ne-vada has received a multitude of benefitsfrom the federal government under SNPLMA,from land for parks, right-of-ways for roadsand water transportation, capital improve-ments in state parks and nature areas, andmillions of dollars in extra revenue. As of De-cember 31, 2002, the State of Nevada GeneralEducation Fund, Southern Nevada Water Au-thority, and Clark County of Aviation had re-ceived nearly $37 million dollars underSNPLMA.

196

It is not apparent how giving 15 percentof all public land sale proceeds (and 15 per-cent of exchanges worth over $70 million ini-tiated before the passage of SNPLMA) tostate agencies, not including the provisionsrelating to the sale and lease of the McCarranAirport lands, right-of-ways, and the RPPA,advances the general public interest. In part,these subsidies make up for state revenueslost due to sale of lands to the federal gov-ernment. However, these provisions are un-questionably a boon for state and localgovernments - Ron Gregory of the Depart-ment of Comprehensive Planning for ClarkCounty described SNPLMA as highly prefera-ble over the previous exchange system bothbecause local governments are involved in

194. 105 P.L. 263 (H.R. 449, Oct. 19, 1998) § 4(e)(2).

195. Id.

196. Nevada Bureau of Land Management, Ouick Facts,Southern Nevada Public Land Management Act, December 31,2002, at http://www.nv.blm.gov/snpIma/Sale/salequick.asp(last visited January 27, 2003).

Melanie Tang

Fall 2002 SNPLMA, FUFA, and the Future of Public rand Exchanges

determining which lands will be sold, and be-cause once lands are sold and the moneycomes in, local governments receive "a nicesum of money back."' 197 On the other hand,these benefits to the state have been charac-terized by Janine Blaeloch of the WesternLand Exchange Project as "subsidies to localgovernment that are just outrageous pay-offs," and as incentives to encourage the de-velopment of lands currently held by the fed-eral government.198 Blaeloch also chargesthat the airport authority is "not selling ItheMcCarran Airport lands] at maximum return,but picking and choosing the buyers and un-derselling," resulting in the familiar problemof federal government "not getting the returnthey should."'199 Clearly, these fiscal provi-sions made the state of Nevada more amena-ble to the passage and implementation ofSNPLMA. However, political expediency isnot an expenditure that is necessarily in thepublic interest, and the fact that FLTFA con-tains none of these proceed-sharing provi-sions raises the issue of whether such ascheme comports with FLPMA's public inter-est requirement.

Another question regarding considera-tion of the public interest is the cumulativeeffect of the disparate impact that SNPLMAhas had, and FLTFA will most likely have, ondifferent communities within the same state.Under SNPLMA, the BLM has sold 3,897.41acres of public land. 200 In comparison,through the 2000 and 2001 auctions, the BLMhas thus far acquired approximately 14,324acres in Nevada under SNPLMA, and if thelatest conditionally approved acquisitions areultimately approved, over 3,500 additionalacres would be added to the total acres. 20 '

197. Telephone interview with Ronald Gregory, ClarkCounty Department of comprehensive Planning, March 13,2002.

198. Email from Janine Blaeloch to Melanie Tang,February 21, 2002.

199. Id.

200. Nevada Bureau of Land Management, Quick Facts,Southern Nevada Public Land Management Act, December 31,2002, at http://www.nv.blm.gov/snplma/Sale/salequick.asp(last visited January 27, 2003).

201. Nevada Bureau of Land Management, Round 3Approved Acquisitions, at http://www.nv.blm.gov/snplma/

The 2000 and 2001 auctions have allowed thefederal government to acquire a total 3,423acres in Clark County, with an additional975.06 acres proposed for the next acquisi-tion. By contrast, 1,600 acres in DouglasCounty and 1,036 acres in Washoe Countyhave been purchased from the state and pri-vate landowners, with the latest acquisitionproposal adding, respectively, an additional4,637.50 and 20,400.32 acres from thosecounties to the BLM's holdings. This dispar-ity between lands sold and lands purchasedin Nevada is made possible in large part bythe relatively high value of land in the LasVegas Valley, as compared to the lower valueof land in other parts of rural Nevada. Notsurprisingly, some Nevada counties are con-cerned about an ultimate net increase of fed-eral ownership of land, and others are not.20 2

New Mexico Commissioner of Public LandsRay Powell has predicted that giving BLM thepower to purchase inholdings under FLTFAcould affect his capacity to negotiate land ex-changes by compromising the state's "tradingstock [of state trust landsl and our ability totrade for valuable land." 20 3 Considering thatthe state of Nevada has thus far gained lessthan 2,600 acres of land and lost over 14,000acres, with another round of land acquisi-tions currently being discussed, the fact thattension exists between the urban and ruralcounties is understandable. Under SNPLMA,some local governments have negotiatednonacquisition environmentally protectionistoptions, such as conservation easements,with the BLM. 20 4 However, depending on theeffectiveness of the federal, state and localplanning process, some communities arelikely to feel unduly burdened by federal

round3.asp (last visited January 24, 2003). The acre of eachconditionally approved property is listed in the property'sdescription, with the exception of Mule Springs.

202. Telephone interview with Ronald Gregory, ClarkCounty Department of Comprehensive Planning, March 13,2002.

203. Robyn Morrison, Baca Ranch Buy-Out has StringsAttached, HIGH COUNTRY NEws, May 8, 2000.

204. Telephone interview with Ronald Gregory, ClarkCounty Department of Comprehensive Planning, March 13,2002.

Fall 2002 SNPLMA, FLTFA, and the Future of Public Land Exchanges

Volume 9, Number 1

lands that generate no tax revenues for themin order to facilitate rapid suburbanizationand development in other counties. And, asdiscussed above, while SNPLMA has revenue-sharing provisions written into the statute tohelp assuage such concerns, FLTFA containsno such requirements and thus has evengreater potential to create tensions in thestates where it is implemented.

Although FLTFA is based on SNPLMA,the two statutes differ in several significantways. SNPLMA was drafted to address theunique situation of a rapidly growing metro-politan area "landlocked" by federal lands in astate where the majority of the land is feder-ally owned, whereas FLTFA is a law of generalapplication for the western United States.While any discussion of the implementationof FLTFA is speculative at this point, severalbasic issues come to mind when comparingthe two statutes. The BLM itself has con-trasted the lands it has available for disposalin Nevada to those outside of Nevada:

The BLM manages rural lands in 11Western states and conducts the bulk of itsland exchanges in real estate markets that arenot all comparable to the competitive andspeculative nature of the Las Vegas market• . . The BLM's disposal land base consists ofsmall fragmented parcels of Federal land sur-rounded by private lands without public ac-cess. In most cases the Federal land is underpermit of use by those surrounding landown-ers, many of which have been authorized forgenerations.-"

20 5

Differences in geography, land use pat-terns, and real estate markets will necessarilymake the implementation of FLTFA very dif-ferent, and in many ways more complicated,than the implementation of SNPLMA. Fur-thermore, the sale of public lands outside ofNevada is likely to be a more controversialmatter, given that there is less likely to be aconsensus as to which lands should be soldto the federal government and which landsshould be purchased from the government.

One potential problem may be theBLM's willingness and motivation to fund theacquisition of lands to be managed by otherfederal agencies exclusively through the saleof BLM lands. In the first two rounds of ac-quisitions under SNPLMA, the federal gov-ernment has acquired 9,661 acres to bemanaged by the BLM, 3,221 acres to be man-aged by the USFS, 972 acres to be managedby the Fish and Wildlife Service, and 470acres to be managed by the National ParkService. All of these acquisitions were fundedby sale of BLM lands. Both SNPLMA andFLTFA state specific criteria as to what typesof lands should be acquired using special ac-count funds. Under SNPLMA, environmen-tally sensitive lands are to be acquired; underFLTFA, inholdings and lands adjacent to fed-erally designated areas containing excep-tional resources are to be acquired. However,SNPLMA requires agencies to give first prior-ity to the acquisition of environmentally sen-sitive lands within Clark County. Thisadditional criteria may be characterized asproviding the land disposal and acquisitionprocess with an overall conceptual frameworkof achieving a particular goal in a particularmetropolitan area. By comparison, FLTFAlacks any type of particular geographical fo-cus, and the BLM is not statutorily requiredto prioritize lands lying in any particular lo-cality. Consequently, it is not hard to imag-ine that the BLM will be highly motivated touse money it generates from the sale of its[ands to acquire more lands for itself, and willbe more reluctant to spend Special Accountmoney acquiring lands for other agencies tomanage. One effect of this could be thatagencies such as the USFS, FWS and the NPSmay see far fewer benefits from FLTFA thananticipated, and remain largely dependentupon Congressional appropriations for landacquisitions.

A second problem concerns local landcontrols on land the federal governmentwishes to sell, potentially resulting in con-flicts with state and local governments.

205. Land Exchanges Need to Reflect Appropriate Value andServe the Public Interest, Comments From the Bureau of LandManagement, Appendix I1, supra note 30, at 61.

Melanie Tang

Fall 2002

Under SNPLMA, all the land in the disposalarea was zoned for residential-related devel-opment because of its proximity to the urbancenter of Las Vegas. Given the speculativenature of the real estate market in the LasVegas area, this zoning made the land veryvaluable, and, as discussed above, the federalgovernment has generally received more thanthe appraised value of parcels at auction. De-spite this, some minor conflicts between lo-cal land use regulations and the federalgovernment's appraisal and disposal processof these locally zoned lands have arisen inthe Las Vegas area.

In one conflict, the city of North LasVegas wanted the 7,500 acres identifiedwithin its borders as available for sale sold asa single parcel for use as a master-plannedcommunity. 206 The mayor of North Las Vegasclaimed that if the large parcel were brokenup into smaller parcels, approximately 2,000acres would be rendered valueless, resultingin infrastructure and land use coordinationproblems. 207 On the other hand, BLM offi-cials were concerned about severely limitingthe number of potential bidders, and raisingless money than if the property was sold offin several smaller sections. 208 The May 2001auction, resulted in the sale of a 1,905 parcelin North Las Vegas for over $66 million dol-lars.209 The remainder of the acreage is to beauctioned off in 600-800 acre parcels. 210

In the second incident, land near the cityof Henderson was designated by Clark Countyfor rural neighborhood preservation, permit-ting only low-density residential developmentof no greater than two dwelling units peracre. However, the BLM appraised certainparcels in the disposal area, based upon theirproximity to an interstate and arterial streets,as if they were zoned for commercial use, de-

206. Hubble Smith, NLV Officials, BLM Split on LandParcel, THE LAS VEGAS REVIEW-JOURNAL, January 22, 1999, ID.

207. Id.

208. Id.

209. Quick Facts, supra note 196, and e-mail from Ron-ald Gregory to Melanie Tang, February 21, 2003.

210. Telephone Interview with Ronald Gregory, ClarkCounty Department of Comprehensive Planning, March 13,2002.

SNPLMA, FLTFA, and the Future of Public Land Exchanges

spite the low-density residential zoning des-ignation. 21' This disparity notwithstanding,the land ultimately sold for more than the ap-praised price. 2 12

These two relatively minor conflicts inthe implementation of SNPLMA illustrate thefact that real estate in metropolitan LasVegas is extraordinarily valuable, despite thesize of the parcel or how it is zoned. How-ever, it is not clear that all the land that couldpotentially be disposed of under FLTFA issimilarly situated. In fact, lands might not bevaluable at all if not located in a speculative,or at least tight, real estate market. Further-more, unlike Clark County officials, state ormunicipal officials in other states might seekto keep federal lands available for disposalunder FLTFA undeveloped, depending onwhere the lands are located and what pur-pose they are currently serving. Local zoningof federal lands as open space or parklandcould dramatically reduce the potential finan-cial return for the federal government: for ex-ample, a parcel of federal land, which couldbe very valuable if appraised as medium orhigh-density residential development, wouldbe far less valuable if local zoning limited itspotential uses to open space or low-densitydevelopment. It is unclear how such a con-flict would be resolved under FLTFA. In addi-tion, the fact that FLTFA does not contain anyRPPA provisions allowing municipalities "firstdibs" on federal lands for recreational pur-poses may increase the possibility of conflictswith local land use planning authorities dur-ing the disposal process. While the history ofpublic land law would seem to virtually guar-antee the federal government preemptionover local laws and regulations, exercisingsuch authority would also seem to contra-

211. Telephone Interview with Ronald Gregory, ClarkCounty Department of Comprehensive Planning, March 13,2002. See also City of Henderson, "Rural NeighborhoodPreservation Areas," at http://www.ci.henderson.nv.us/plan-ning/Rural.html (last visited March 24, 2002), e-mail fromRonald Gregory to Melanie Tang, February 21, 2003.

212. Id.

Volume 9, Number 1

vene the state-federal partnership spirit ofSNPLMA and FLTFA.

Finally, a related issue is how a NEPAanalysis will be carried out on the individuallands identified for disposal under FLTFA.Under SNPLMA, a programmatic EIS wasdone for the entire disposal area, which ad-dressed the impact of disposing the land forhousing and residential-related development.Supplemental reports have followed after thegovernment received specific proposals.213However, under FLTFA, the ultimate use ofthe lands to be sold may be less clear, asfragmented inholdings will probably not lendthemselves easily to broad general categori-zations for NEPA purposes. Although localzoning ordinances will most likely providesome indication of the range of uses, howthis will coordinate with NEPA analyses inthe context of a competitive auction remainsto be seen. In Conservation Law Foundation ofNew England v. General Services Administration,the First Circuit of Appeals considered whattype of NEPA analysis was required when theGeneral Services Administration auctionedoff of several former naval properties. 214 Thecourt found that NEPA required a "hard look"as to whether the parcels should be disposedof at all, and that subsequent site-specificsupplemental analyses were mandated, butthat "no exhaustive detail was required. '" 21 5

With respect to individual development plansproposed by bidders in the course of the auc-tion process, however, the appellate court af-firmed the district court's holding that theGSA was not required to "analyze specificproposals for land use from prospective buy-ers ...such analysis lis] unwarranted givenGSA's inability to restrict future land use."21 6

Extending this logic, the appellate court wenton to hold that "we are nonetheless not con-vinced that requiring GSA to supplement itsEIS in the light of a high bidder's develop-ment plans before accepting that bid canpass muster under a rule of reason."217 Thecourt based its decision on the fact that the

213. Id.

214. 707 F.2d 626 (1st Cir. 1983).

215. Id. at 632-634.

GSA would ultimately have no control overhow the land would be used after it was sold:

Indeed, a bidder may intend to buythe land for the very purpose of spec-ulation and resale. Even assumingthat the good faith of the prospectivebuyer could be assured and that hisdevelopment plans would not be sub-mitted cynically with one eye on the1Final Environmental Impact State-mentl, we find it unreasonable to re-quire EIS revision beforeconsummation of the sale when GSAhas no power to assure that the scru-tinized development plans are everimplemented.

218

Conservation Law Foundation suggests that lackof federal agency control over land disposalcreates a lack of accountability, which couldbe problematic for states and municipalitiesdealing with lands disposed under FLTFA.First, given the relatively limited nature of theNEPA analysis, the land may be disposed ofwithout a clear picture or full understandingof what the environmental impacts will be.This could be a particular problem where thefederal lands are zoned for a wide range ofpurposes with a variety of environmental im-pacts. Second, Conservation Law Foundationmay encourage the BLM to sell lands to bid-ders proposing the most intensive uses, asthey may often be the most lucrative. Third,there is the potential for agreement on theuse for a particular parcel between the pur-chaser and the BLM for the purposes of es-tablishing the price of the parcel. However,this agreed-upon use might be one the stateor municipality in which the land is located isopposed to, or would like studied further, andpurchaser and municipality may find them-selves forced into numerous administrativehearings and lawsuits to resolve their differ-ences.

V. Conclusion.

Tens of thousands of acres of land in theUnited States may be disposed of and ac-

216. Id. at 634.

217. id. at 635.

218. Id.

Melanie Tang

Fall 2002 SNPLMA, FLTFA, and the Future of Public Land Exchanges

zquired under SNPLMA and FLTFA. The two 0

statutes provide federal agencies with new zflexibility and autonomy in the process of :

land purchase, sale, and management, andhelp protect the public's interest in gettingfair market value for lands it conveys to pri-vate parties. And, undoubtedly, SNPLMA andFLTFA may address some of the most egre-gious and blatant problems of the old landexchanges system. However, SNPLMA andFLTFA also create new incentives, concernsand problems for public land agencies. Fur-thermore, the expansion of a market-basedacquisition strategy for environmental protec-tion purposes may have long-term effectsupon environmental regulation and createsignificant changes in the approach to man-aging public lands. How SNPLMA and FLTFAultimately fit into the existing systems of saleand exchange of public lands establishedunder FLPMA remains to be seen.