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160 SETTING PRIORITIES FOR LAND CONSERVATION concern himself only with geKing the landowner to sign his name to the agree- ment. Yet it was the federal enforcing agents who were to receive full blame when Farmer Jones found out that he couldn't clear another forty. It was ex- tremely difficult to explain to him that he had sold a bundle of rights in his properq to the federal government when he still held the deed and used the land {daily as he had for years previously. Problems were compounded when a second generation of owners came along the sons who had not signed any agreement and did not feel bound by it, even if they Mew of it. Meanwhile the costs of patrol for easement enforcement had increased substantially, while violations of the agreement became more frequent. Perhaps most crucial were the decisions of local and U.S. District courts in the area, which consistently refused to grant the full injunctive relief requested by the federal government. In the face of all these hostile factors, the NPfS stopped the purchase of further easements and converted to a fee purchase program on bath parkways (Matu- szeki, 19661. 'These fend other experiences show the mixed motivations and results that tug and pull at the popularity of the conservation easement. The device can be attractive for land-acquisition agencies, because it avoids condemnation and allows leveraging of scarce dollars. Easements often originate from philanthropic motives of landowners (Ward and Benfield, 1989), which might aid enforcement, at least in the short term. Among the problems resulting in ineffective or failed conservation easements are · Complexity of initial drafting and excessive ambiguity; · Rigidity of easement provisions that fad! to tailor easement to prop- erty characteristics and account for reasonable retained uses; · Failure to monitor easement regularly and thoroughly; failure to plan for costs of monitoring; · Failure to establish ongoing relationships wig owners of encum- bered properly, including new owners; · Inappropriate use of easements (e.g., when significant public access and management is desirable3; · Failure to enforce terms of easements that can reinforce patterns of paucity, · Viewing the landowner-agency relationship as adversarial. Because of these and over difficulties wig easements, Reitze (1974) suggests Mat conservation easements are "most users} when passive uses not involving physical occupation by the public are contemplated."
162 SE'-llNG PR70RI~ES FOR LAND CONSERVATION Use of TDRs avoids challenges that might be made to more straight- forward zoning or regulatory restrictions. But it does so partly by mak- ing concessions. To use TDRs effectively, state or local governments must have meaningful land-use controls; otherwise the development right has no economic value. Successful TDR programs (including pollution rights) depend on many variables, including creating evasion-proof trading schemes, establishing rights that have economic value, and al- lowing transfers with minimal transaction costs Ripe and Dudek, 1989~. Under Hose criteria, emissions trading plans designed to reduce air pollution in Los Angeles and a pollution rights trading scheme to reduce pollution in the Fox River, Wisconsin, are failures. On Me over hand, the New Jersey Pinelands TDR program is a success. That program imposes conservation easements on properties in preservation and agricultural production areas and pays off the owners with TDRs that can be sold to developers, who use Rem to increase permitted density in building areas. Located in southeastern New ler- sey, the New Jersey Pinelands is a national reserve Cat contains approx- imately ~ million acres of forests, wetlands, creeks, and rivers. Tripp and Dudek (1989) describe the TDR program as the "most ambitious, innovative, and geographically extensive one" in the country. The success of the program can be attributed to a variety, of factors, ~nclud- ing the competence of the commission staff Hat manages He program, ensured economic value for development rights, and the evasion-proof nature of the trading scheme. Tripp and Dudek also underscore the importance of specifying clearly the resource-protection objectives. DEDICATION Dedication is "~e placement of a natural area into a legally estab- lished system of nature preserves, whose member properties are pro- tected by strong statutory language against condemnation or conversion to a different use. The preserve system is administered and usually managed by a state agency" (Hoose, 1981~. Twelve states, mostly in He midwest, have laws for dedication arrangements. Landowners usually can dedicate specific interests or fil11-fee title in property. Hoose uses He example of an owner dedicating the rights to cut the trees in an old- growth stand while maintaining tile rights to live on or transfer He property.
TECHNIQUES AND mOLI 163 Public trusts are We common-law version of statutory dedication. The public trust doctrine holds generally that some types of natural resources (such as navigable waters and wetlands) should be held In trust for the benefit of the public (Sax, 1970; Rodgers, 1986~. Those re- sources are protected by trust against unfair dealing and dissipation, suggesting the need for procedural correctness and care if reallocation is considered. Private properly rights acquired as part of trust resources are subject to prior dedications or overriding trusts Mat protect over uses. For example, Me rights of Los Angeles to withdraw water from Mono Lake in northern California are subject to a pre-existing obligation to allow sufficient flows to Me lake to maintain its populations of migrat- ~ng birds (Nat'! Audubon Society v. Superior Court of Alpine County, IS9 Cal. Rptr. 346, 658 F.2d 709 (1983~. REGULATION Direct regulation is an obvious technique that can obviate the need for acquisitions. An interesting example is that of the Endangered Species Act (ES A), which envisages designations of critical habitat for endan- gered or Greatened species. Critical habitat is defined in terms of Me geographic areas occupied by the species. Landowners restricted by critical habitat definitions obviously will view them as Me functional equivalent of an easement, dedication, trust, or other restriction. To elaborate upon a prominent illustration, the original critical habitat proposals for the northern spotted owl included il,639,195 acres in California, Oregon, and Washington, of which 3,020,529 were owned privately (FWS, 1992~. Conservatively estimated, the costs of acquiring the privately owned timberland would exceed $3 billion, well in excess of Me annual operating budget of Me U.S. Forest Service (USFS). If critical habitat restrictions were to be imposed, millions of acres would be brought under land-use restraints, because the administrative defini- tion of hann forbids a variety of activities that degrade the protected habitat. Concern for Me vast territory covered by the critical habitat for the northern spotted owl shows that future management obligations might obviate classical distinctions between private and public ownership arid that full-fee acquisition by Me government of all interests necessary to achieve conservation goals is implausible.
164 SEl-llNG PRIORIES FOR LAND CONSERVATION Another example of a pervasive, if indeterminate, regulatory presence that can affect expectations and use of broad expanses of land is found in Section 302(b) of the Federal Land Policy and Management Act (FATIMA). That statute declares that, in managing the public lands, the relevant secretary "shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of Me lands." Although "legislative servitudes" of this sort leave much to the imagina- tion and to Me engines of future policy choice, they have the potential to redefine traditional public and private property domains. The Bureau of Land Management (BEM). for example. faces choices of this sort: --C7 ~ ~ ~ The FLPMA command to prevent unnecessary or undue degradation of the public lands perhaps could be stretched into a declaration that a private property interest never includes the right to interfere with important public land values. Under this interpretation, the government would hold a servitude on behalf of the public lands. This servitude would define the rights of private owners of property adjacent to the public lands and justify the imposition of restraints on the use of such private property, so long as those restraints were reasonably related to preserving collective values. Because the private party would never have "owned the right to degrade the public lands, regulations designed to Prevent degradation would not talce any property (Mansfield, 1991~. rat A_ Two other illustrations of incentive-changing statutory intrusions upon land-management choices are the Conservation Reserve Program (CRP) established by Me 1985 Farm Bill and the Forest Legacy Program prescribed in the 1990 Farm Bill. Like the soil bank program of ache 19SOs, the aim of CRP was to reduce erosion-an obvious conservation purpose. It authorizes federal payments to farmers who remove erodible cropland from tilIage and plant the land wig cover crops or trees. The goal In 1985 was to remove 40 million acres (a maximum of 45 million acres) from tilIage. Forestry Interests hoped Cat one-eighth of this would be planted with trees. About 2.3 million acres, or 6.6 % of the total, have been planted with trees since 1985, wig the remainder plant- ed with grass and other cover. Lar~downers who plant trees or cover crops on erodible cropland under CRP agree Cat the land will remain in Mat cover for at least 10 years. Landowners receive annual rental payments, and the federal government also pays for 50% of costs for some practices, such as tree planting. If Me landowner returns to planting crops, all fiends received
TECHNIQUES AND TV/!_ 165 must be repaid wig interest plus 25% of ~ year's rental payment. The Agricultural Stabilization and Conservation Service programs of Me Department of Agriculture monitor for compliance. Trees planted will be of merchantable size after 20 or 30 years. The landowner at Mat time can decide whether and how Me harvesting will occur and whether the land will be reforested. Land enrolled under Me CRP is under contract to the federal gov- ernment. Under the 1985 CRP, no easement or over encumbrance is placed on the title to the land. The 1990 Fann Bill does provide for easements in some CRP cases. Under Section 1432, for example, prop- erties eligible for the program including "newly established living snow- fences, permanent wildlife habitat, windbreaks, shelter belts, or BlIter- strips devoted to trees or shnooks" are subject to an easement for their ~usefi~} life," which is defined administratively es 15 years for grass and 30 years for trees. The 1990 Farm Bill also authorizes Me Forest Legacy Program, which is designed to be a cooperative endeavor among levels of the government to identify environmentally important forest areas that are threatened by conversion to nonforest uses. The use of conservation easements to promote land protection and other conservation purposes is expected. Like Me CRP, the Forest Legacy Program faces difficult issues of defining protected areas, conservation easements, and other mechanisms; fashioning incentives; and drawing lines between private entitlement and public expectation. The Forest Legacy Program is an experiment in institutional land conservation now under way. The Fifth Amendment to Me U.S. Constitution provides expressly that private property shall not be taken for public use without just compensa- tion. That provision, along wig similar measures in state constitutions, has spawned a vast body of case law and legal writing exploring whether government intrusions upon the expectations of private property owners rise to Me level of a compensable taking. Indeed, this "takings" issue dominates Me decisionmaking of property lawyers, managers, and public officials across Me spectrum of Me U.S. public and private property systems. It specifically affects decisions as to when regulatory restric- tions on land uses are sufficient for achieving conservation goals and when over means of protection, such as land acquisition, are necessary. Whatever the dimensions of the legal doctrine of takings, it provides tile background for defining Me boundaries between public and private
166 SE1-1ING PRIORIES FOR LAND CONSERVATION expectations in lands held and acquired by He federal government. But the takings doctrine never has made every change in landowner expecta- tion and use a constitutionally questionable issue. One observer of public land law points out Hat the traditional systems of property law Hat cut land into arbitrary pieces of 160 acres and deliberate ~checker- boarding" of ownership, disclosed as a fundamental purpose He destruc- tion of "the functioning of natural resource systems (Sax, 1991~. As the law moves in He direction of restoring and protecting natural sys- tems, it will affect He structure of property ownership and operate under the guidance of the takings doctrine. Equally important, however, it will act through changes in use. As Sax (1991) points out, the public already owns the national forests: "The issues there are not proprietor- ship or compensation, but how to allocate the land between such compet- ing demands as timber production, hydrocarbon or geothermal develop- ment, and wilderness and wildlife." LAND EXCHANGE Land exchange between private parties or nonfederal public agencies and the USES or BEM is an established means of improving land owner- ship patterns and administrative efficiency and achieving federal land- management objectives. It is particularly useful in areas where historical land settlement resulting from earlier federal government policies has resulted in cumbersome, fragmented ownership patterns and where nonfederal inholdings are included within large tracts of national forest or public~omain lands. In such situations, exchange of lands between a nonfederal landowner and a federal land management agency can be a means to achieve the future land ownership and management objectives of both parties without requiring large sums of money on either side of the transaction to purchase lands outright. Land exchange is the principal means of accomplishing land owner- ship adjustments for the USFS. In He past 80 years, USFS has com- pleted approximately 8,000 separate land exchanges, acquiring almost 9.5 million acres of nonfederal land in exchange for approximately 3.5 million acres of federal land. In an average year, USFS completes 147 separate exchanges, acquiring 135,000 acres from willing nonfederal landowners in exchange for 92,000 acres of federal land, wig ex
- TECHNIQUES AND TOOLS 167 changed values of $102 million. Land exchanges frequently are used to acquire nonfederal lands in congressionally designated wilderness areas, national recreation areas, and wild and scenic rivers areas (Federal Register, Vol. 54, No. 159, 1989~. Land exchange also has been used by BEM to accomplish its land adjustment and land management objectives. An example of Me im- portance of land exchange to BEM is illustrated by the exchanges com- pleted in one state alone Arizona during fiscal years 1983-1991. In a series of land exchanges with the state and several private parties, BEM acquired 1,554, 198 acres of state and private lands and conveyed 1,073,000 acres to nonfederal parties. The lands that BEM acquired included inholdings within wilderness areas and the Grand Canyon Na- tional Park, key riparian habitats, and extensive areas of native grass- lands (BEM, 1991~. Acquisition of these areas Trough land exchange has greatly enhanced BEM's ability to fulfill its conservation mission and at the same time has improved administrative efficiency by reducing the number of small tracts that BEM was responsible for managing. One of these acquisitions, since designated by Congress as the San Pedro Riparian National Conservation Area, enabled BL~M to acquire title to a tract of river bosom land 33 miles long and 3 miles wide Mat supports 345 species of birds, 82 species of mammals, and 47 species of reptiles and amphibians, and contains two significant archeological sites (Negri, 19891. Authority for the acquisition of lands through exchange is provided to USES under the Weeks Law (Ch. i86, 36 Stat. 961, as amended; 16 U.S.C. 485), the General Exchange Act (Ch. 105, 42 Stat. 465; 16 U.S.C. 485, 486), the National Forest Management Act (P.~. 94-588, 90 Stat. 2949, as amended; 16U.S.C.516,518,52Ib), and the Federal Land Policy and Management Act pP.~. 94-579, 90 Stat. 2743, as amended; 43 U.S.C. 1701, etc.~. FATIMA and over laws also provide land exchange authority to agencies of the Department of the Interior, including BEM, USFWS, and NPS. In addition to the general exchange authority provided in the laws noted above, exchange authority for specific land exchanges sometimes is provided through amendments to other authorizing or appropriations bills. 'rhis course of action has been used by Congress in recent years to expedite the completion of land exchanges Mat otherwise would take several years to complete following the normal process. In recognition of Me importance of land exchange as a means of
168 SElTING PRIORITIES FOR LAND CONSERVATION securing federal land management objectives and that Me "needs for land ownership adjustments and consolidation consistently outp ace available funding for land purchase by Me Federal Government," Congress in 1988 enacted the Federal Land Exchange Facilitation Act (P.~. 100~09, 102 Stat. 1086; 43 U.S.C. 1716), which directed the secretaries of Agriculture and the Interior to provide more uniform rules and regula- tions pertaining to land appraisals and establish procedures and guide- I~nes for the resolution of appraisal disputes, Including provision for use of arbitration where appropriate. Land exchange between nonfederal landowners and the federal agen- cies is an alternative to acquiring nonfederal lands wig appropriated fimds but sometimes is difficult to accomplish, as described below. Effects on USES and BUM Timber Sales l A fundamental requirement of Be laws and regulations under which Be federal agencies are authorized to exchange lands is that lands being acquired must be of equal value with the lands being removed from federal ownership; differences in value in any single exchange can be equalized wig a cash payment in an amount that does not exceed 25% of the total transaction value. In exchanges of timberland between pri- vate parties and the federal agencies, it is not uncommon for the federal agency to seek to acquire lands Cat have high recreational or nontimber values from private entities in exchange for more productive commercial forest lands that meet the objectives of the private entity. In this circumstance, the federal agency often acquires more total acres Man it relinquishes, but because it conveys average or better quali- ty timberland, usually containing some merchantable timber, to Be nonfederal party, Be net effect on a given USES or BEM district can be a long-term reduction in annual timber harvest capability. In this event, companies that depend upon a predictable level of timber sales from a specific national forest or BEM district often object to such an exchange, and if Be magnitude of the reduction in future timber sales is signifi- cant, such opposition can prevent the exchange from taking place.
TECHNIQUES AND TOOLS Effect on Local Government Revenues 169 A common requirement in any land exchange with a federal agency is the need to structure He parcels of lands being exchanged to avoid significant reduction in county or school district revenues resulting from federal timber sales or grazing fees. Because the distribution of federal receipts to loch governments is based upon the acreage of federal own- ership, a county or school district where ~ reduction in federal land ownership occurs might be subject to a permanent reduction in federal revenues, which might be offset in Me short term by an increase in property taxes paid by Be new private landowner. In cases of a signifi- cant change in historic revenues in counties or school districts where such federal revenues are an important part of the overall Ending need- ed for schools and roads, opposition by county commissioners or schoo! district officials might prevent an overwise beneficial exchange from occurring. Consequently, any sizable land exchange must be structured to balance Be change in federal and nonfederal ownership within coun- ty, and often school district, boundaries. Exchanges Involving More Than One State The difficulty inherent in accomplishing land exchanges that cross state lines was recognized by Be Public Land Law Review Commission (PLLRC) in 1970, which nevertheless recommended Mat "all federally owned lands overwise available for disposal should be subject to ex- change, regardless of agency jurisdiction and geographic limitation." The PLLRC encouraged the agencies to emphasize improved planning, public information practices, and public participation to gain support for large-scale exchange programs that cross state lines, such as was accom- plished when public lands In Nevada were exchanged to acquire lands in California for the Point Reyes National Seashore (PLLRC, 1970~. Congress must approve any exchange of federal land that crosses state lines; therefore, rarely does any single land exchange wig the federal government involve more than one state. This is particularly true if one state (and its counties) loses a significant amount of private land from Be tax base and another state gains a similar opportunity. In FY 1991,
170 SE1-llNG PRIORIES FOR LAND CONSERVATION however, Congress au~onzed a land exchange involving two states under which USES acquired the surface ownership of 12,274 acres of inhold~ngs in He Black Hills National Forest ~ South Dakota from the Homestake Mining Company in exchange for 868 acres of national forest land in Colorado (Coffin, 19901. Time Required to Accomplish Complex Exchanges Experience in recent years indicates that the time and expense re- quired to accomplish land exchanges with federal agencies has increased to He point where large-scale land exchanges involving more than a few hundred acres on each side are discouraged. To a large degree, this is He result of relatively recent laws Hat require federal agencies to ad- dress numerous aspects of change in federal land ownership previously not considered. Such changes include the requirements of the National Environmental Policy Act, which must be addressed in every exchange of federal land and laws requiring consultation among federal agencies regarding wildlife, archeological and historic resources, and the like. At a minimum, more time is required by an agency to complete additional requirements, including the requirement for a public notice and comment period, and sometimes, public hearings. It is not unusual for private landowners to become discouraged by He time, expense, and complexity of satisfying all of He federal requirements to accomplish an otherwise mutually beneficial exchange. Limits Imposed by National Forest Boundaries With some specific exceptions, the laws that govern national forest land exchanges generally require that nonfederal lands being acquirM by USPS be located widen He statutory boundary of a national forest. Because only Congress can change a national forest boundary, any land exchange that involves nonfederal land outside of an existing national forest boundary requires case-by-case approval from Congress. Exchanges that cross national forest or region boundaries usually are not encouraged by USES because of the perception that one forest or region would be losing land or resources for the benefit of another forest or region. Similarly, unless land adjustment is actively encouraged at
TECHNIQUES AND lt)OLS 171 the higher administrative levels of the agency, local personnel might be reluctant to identify candidate exchange tracts if their district is giving up land or resources for the benefit of another USES administrative unit. Conveyance of Mineral Rights In any transaction involving the acquisition, sale, or exchange of fee title In land, Me conveyance of the underlying mineral estate must be determined. The surface interest of a parcel often is owned by one landowner while the mineral estate is owned by another entity as a result of an earlier transaction. When owned by the federal government, the mineral estate is the responsibility of BEM. Therefore, when federal lands and minerals are disposed of to a nonfederal landowner, BEM must concur in the disposi- tion of the mineral rights, even when the surface acreage is national forest land. Although exchange of full-fee interest, including mineral rights, normally is desired by both parties to an exchange, that often is not feasible in situations where there is a large disparity in mineral values or potential for disparity between He two ownerships or when the mineral estate is owned by a third party. In such cases, partial or full mineral rights can be reserved by the federal government and the non- federal landowner to accomplish a balanced, value-for-value exchange of surface interests. Resolution of the differences in the mineral estate can add signifi- cantly to Me complexity and time requirements associated with surface exchanges in~esesituations. For example, Me Washington, D.C., office of USES encourages a policy of not separating Me mineral estate from the surface ownership, Hereby requiring that the mineral estate be acquired from the private party in most exchanges. That policy has discouraged some private landowners from initiating otherwise desirable exchanges win USES. Other Limitations on the Land Exchange Process Regulatory Delay The Federal Land Exchange Facilitation Act (43 U.S.C.A. § 1716)
172 SElTING PRIORITIES FOR LAND CONSERVATION was enacted by Congress in 1988, but final regulations remain pending. Draft regulations were published in Me Federal Register on August I8, 1989, and again on October 2, 1991 (Federal Register, Vol. 56, No. 191, 1991~. In addition, no regulations end procedures are available that facilitate and encourage three-party exchanges among nonfederal landowners and more than one federal agency. For example, a nonfed- eral party might be willing to convey land to USES and acquire lands of equal value from BLJM. Such three-party exchanges are common among private landowners, but it is very difficult to accomplish creative ~ree- party exchanges when more Man one federal agency is involved. An exception to accomplish a similar end result for a specific situation was authorized by Congress in Me 1980 Burton-Santini Act (94 Stat. 3381), where revenue from the sale of BEM lands in Clark County, Nevada, was transferred to Me Land and Water Conservation Fund to help fund USES land acquisition in the Lake Tahoe basin 03LM, 19911. Inadequate Identification of Lands Unsuitable to Agency Missions and Available for Exchange An examination of several land and resource management plans devel- oped by USES pursuant to the National Forest Management Act of 1976 03.LJ. 94-588, 90 Stat. 2949) shows substantial variation in Me degree of detail described to support individual national forest land adjustment plans. Notable exceptions are the plans for the Mark Twain National Forest in Missouri and Me Mt. Baker-Snoqualmie National Forest in Washington, for which detailed information is presented to inform the public about land exchange opportunities (USFS, 1986, 199Oa). Similar- ly, new resource management plans being prepared by the BEM districts in Oregon, pursuant to FATIMA, show some variation in Me level of detail provided to identify land exchange opportunities at the district level, as does the Judith Valley Phillips plan (see Figure 3-1). The Roseburg District plan provides a particularly detailed explanation of that district's land exchange opportunities and clearly identifies Me lands that are available to exchange as well as the lands that BLM proposes to acquire 03LM, 1991).
TECHNIQUES AND TOOLS Inadequate Integration With Regulatory Approaches 173 Exchanges or partial exchanges could serve to mitigate or supplement regulatory approaches. For example, nonfederal lands designated by USFWS as critical habitat for threatened or endangered species under ESA are not subject to acquisition from willing landowners through exchange for other fed era] lands, including selected national forest, public domain, or other lands administered by BEM, on a value-for- value basis that reflects the value of the nonfederal land in its current use, regardless of the critical habitat designation. The equal value or comparable value standard for land exchanges poses questions of wheth- er the value of the land should be judged before, during, or after the imposition of regulatory restrictions. The decision to compensate for regulatory "wipeouts" of this sort is obviously a policy question that should be left to Congress. LAND ACQUISITION STRATEGIES AND TRANSACTIONS Federal Agencies: Reliance on Willing Sellers Land most often is purchased from a willing seller by an agency. Public agencies must pay He fair market value of purchased land, al- though they can accept full or partial donations of land. The OMB criteria sets the existence of a willing seller as a minimum standard, wig condemnation to be used only in rare instances. Nonetheless, many statutes presume an unwilling seller. The strategy of land-acquisition campaigns and their goals might figure in the increased reliance upon willing sellers. In the Lake Tahoe experience, for example, Fink (1991) reported that "any land acquisition program must avoid increasing tensions in an already highly charged atmosphere if it is to be accepted by He local public. Often, He public strongly resists- He inclusion of eminent domain in land use plans. Following the protracted disputes concerning over me~ods of environ- mental protection at Lake Tahoe, the regular exercise of condemnation to acquire land in the basin would likely have been perceived by many in He region as yet another unilateral exercise of raw governmental
174 SETTING PRIORITIES FOR LAND CONSERVATION power." Furthermore, land conservation or preservation campaigns often proceed at a more leisurely pace than land to be acquired for other purposes, for example, to clear a highway corridor. More time and less money can reinforce the tendency to go slowly and speak softly, dealing first with willing sellers. Moreover, land acquisition endeavors for certain conservation purpos- es, such as habitat or environmental protection, might not be as depen- dent upon complete removal of all incompatible uses, the way a highway condemnation undertaking might be. The Lake Tahoe experience is illustrative once again, because the water-quality goals were achieved by selective and partial acquisitions from willing sellers (Fink, 1991~. To the degree that parcels are fungible, seeking willing sellers is good sense. The committee recognizes that the distinction between willing and unwilling sellers can be a fine one. There are many examples of volun- tary sales of property that were subtle cave-ins to the entreaties of off~- cials. And the committee also found examples also of condemnations Mat worked to the advantage of the property holder. Those ranged from friendly condemnations Mat resolved questions of ownership or title (and deferred capital gains taxes), to arbitrated condemnations Mat settled frequent differences over price, to condemnations Mat made fair-market value available to buyers who were defrauded at the time of the original transaction. Formal condemnations are used sparingly by the NPS, BEM, USES, and USFWS. NPS uses condemnation principally to resolve differences over valuation; a small percentage of Me agency's condemnations (per- haps 10%) is used to clear title on smaller properties. USFWS will use condemnation to settle valuation differences and ownership questions; it has used condemnation as an emergency technique to interdict threats of irreparable damage to Me resources (e.g., the imminent cutting of trees) the unit was established to protect. The USES resorts to condemnation primarily to secure access to existing federal lands. BEM uses condem- nation to prevent imminent development in conservation areas. And one BEM condemnation case was necessary to exchange land wid1 Arizona, because ache state constitution does not allow exchanges with the U.S. government. The criterion of the willing seller might be one that should be ad- dressed on a project-by-project or filnction-by-function basis. Congress
TECHNIQUES AND TOOLS 175 has made Me call bow ways, and the committee could identify no reason to deem the many goals of acquisition as always or never able to be accomplished by a criterion of willing seller. Nonprofit Organizations: Entrepreneurs and Facilitators Partnerships between federal agencies and nonprofit organizations have grown out of perceived needs to overcome bottlenecks in the land- acquisition process and achieve flexibility unavailable to governmental entities. The amount of land acquired by the federal government Trough the participation of nonprofit organizations is small compared with the total land purchased; however, the parcels of land acquired often are critical. Nonprofit organizations have a greater range of options available to Hem Can federal agencies do, and consequently, they can structure projects of broad scope and use an asso~-l~ent of acquisition mechanisms not available to the federal government. The flexibility, risk-taking ability, and expertise of nonprofit organizations complement the resources of federal agencies and allow the two to ac- complish together what neither can do alone. A nonprofit organization familiar with agency procedures and regu- lations can facilitate the acquisition process even when the transaction involves a willing seller and an agency willing to purchase. If a non- profit organization is involved, tile title might be transferred directly to the government, or the nonprofit organization might hold the property until funding is available. A nonprofit organization also can assign an option to purchase directly to an agency. Although federal agencies must pay Be fair market value of land, a nonprofit organization can purchase property at auction, solicit full or partial donations of property, or o~envise obtain the property at a bar- gain rate. Nonprofit organizations also might have an advantage in dealing with landowners who are suspicious of agency appraisals, are tired of dealing with bureaucracies, or desire to use an intermediary in dealing with an agency. In addition, a nonprofit organization can offer We use of its personnel to handle the technical aspects of a transfer and thus save brokers' commissions or reduce outside brokers' commissions. Agencies can accept full or partial donations of land, but landowners r
176 SETTING PRIORITIES FOR LAND CONSERVATION historically have not been motivated to donate property. A federal agent can inform a landowner Hat a bargain sale is a charitable donation, but a nonprofit organization can help structure a transaction and analyze alternatives so that a landowner obtains the maximum deduction possible while meeting financial needs. Nonprofit organizations also can hold land for sale to an agency in increments over several years as funds become available; federal agen- cies cannot enter into installment purchases unless the funding has been appropriated first. Agencies can purchase options to buy property for a maximum of ~ year and $l, but nonprofit organizations can purchase options at a price that will interest a seller. At the same time, nonprofit organizations can be assembling a group of parcels or locating a willing agency to purchase the land. That is a particularly useful role: Large tracts cart present opportunities to maintain an area of biological diversi- ty or an ecosystem, but the amount of land available and deserving of protection might not fit Be criteria, management objectives, and budget of a single agency. Three conspicuous features of contemporary land-acquisition trans- actions are Heir complexity, the management challenges they present, and ache necessity for cooperation win local residents. Transactions involving nonprofit organizations are complex in many ways they take account of multiple parties (federal, state, local, and privates, numerous sources of funding (private contributions, EWCF monies, local bonds, and tax revenues), extended negotiations (measured in years and even decades), and myriad legal forms and transactions (management agree- ments, exchanges, full- and less-than-fee purchases, trades, grants, and others). The management difficulties associated with complex land assemblag- es are evident. Numerous owners have legal rights and entitlements Intertwined in various ways. Decisions of one owner are linked to the others, and the choices of one manager can set a course Hat might be influential for all. In a variety of formal and informal ways, multiple owners are brought together in a web of common understandings, mutu- al expectations, and legal duty. Transactions inevitably come equipped with demands land managers must handle more co-owners, more con- straints on operations, more considerations (including extraterritorial ones) to account for, and more approaches to weigh. Transactions negotiated by nonprofit organizations often must accom- modate the residents and users already on land designated for protected
TECHNIQUES AND TOOLS 177 status. Degrees of conflict differ, and inholders tolerated under one use regime might not be acceptable under another. But many land conserva- tion schemes depend on the initial generosity and continued cooperation of resident landowners who assume some burdens under cooperative agreements or partial-fee dispositions. Hope Valley The Hope Valley project in He Sierra Nevada Mountains of Califor- nia illustrates He value of involvement by a nonprofit organization. The project encouraged multiple agency cooperation in the acquisition and management of large land holdings encompassing a variety of resources. USES wanted to acquire portions of land in the Hope Valley area to improve recreational opportunities within the Toiyabe National Forest, improve habitat for several endangered species, and facilitate manage- ment. The California State Department of Fish and Game was anxious to manage He riparian corridors to re-establish fish populations, and He California State Park System wanted to consolidate and improve man- agement of existing state parks in the same area. Portions of the land were owned by six major and several lesser landowners. Through a long series of negotiations and option purchas- es, He Trust for Public Land (GIRL) coordinated the purchase of He land desired. In addition, TPL~ helped negotiate a memorandum of under- standing between the various federal, state, and local agencies involved to ensure Hat Heir management protocols were compatible. The Hope Valley undertaking was complicated by the reluctance of Alpine County to lose land from its property tax rolls. To secure the county's support, TPL purchased and donated to the county for devel- opment a parcel of land Hat permitted access to county services, donated funds for investment to offset a portion of He lost tax base, and ar- ranged for USES to exchange some publicly held lands in areas where services were available for more remote properties in private hands. Primerica An acquisition can be split between agency and private use. TPL use this technique in acquiring and disposing of 80,000 acres of hold
178 SEINING PRIORITIES FOR LAND CONSERVATION sings In Wisconsin. As is often the case, the owner, Primerica (formerly American Can Company), would sell only its entire holding. The acre- age was In numerous parcels scattered over eight counties. Over tune, a critical 10,000 acre parcel of old-growth forest was conveyed to four groups: USES, Wisconsin, The Nature Conservancy (TNC) for an addition to one of its preserves, and a local Indian tribe. The remaining 70,000 acres were resold to small private woodlot holders. Carrizo Plain . Efforts to establish an I80,000-acre "macro-preserve" as a wildlife sanctuary in Me Cargo Plain of California's Central Valley brought together an alliance of conservation groups, of! companies, ranchers, and a variety of government agencies (Itolina, 1989~. The Carrizo Plain offers prime habitat for most of the endangered species in Me San loa- quin Valley (the southern portion of Me Central Valley), including sand- hill cranes, the San loaquin kit fox, the blunt-nosed leopard lizard, the San loaquin antelope squirrel, and the giant kangaroo rat. Monies to support the project came from congressional appropriations, "mitigation" fees assessed in connection wig oil development on neighboring BEM lands, funds of the California Wildlife Conservation Board, and TNC, which put $2 million of its own funds to purchase 82,000 cares of ranchland owned by Oppenheimer Industries, an absentee landlord based in Kansas City, which secured the core area of the preserve Carolina, 1989). CoachelIa Valley Yet another example of the role of a nonprofit organization was the recent saving of Me habitat of Be fringe-toed lizard in Me Coachella Valley near Palm Springs, California. The California chapter of TNC wanted to establish a preserve of more than 12,000 acres for the lizard. The region was under tremendous development pressure, and TNC had to act quickly, but it had only $2 million of Be $25 million required to purchase the necessary land (Martin, 1986~. The desired land was owned by several people.
TECHNIQUES AND TOOLS 179 The initial purchase alone required $12 million and consisted of a single large parcel that Me owner desired to sell only as a unit. That parcel was resold over 4 years (S. McCo~'ick, pers. comm., CNC, 1991~. TNC put together a coalition involving BEM, USFWS, and He California State Department of Fish and Game to purchase that land and adjacent parcels. Congress already had allocated USFWS fiends for that agency's por- tion of acquisition, because the lizard was a threatened species. BEM exchanged surplus federal land for needed land Mat TNC was holding. TNC then resold the surplus to replace Me funds spent on Me desirable land (S. McCormick, pars. comm., CNC, 1991~. TNC Men convinced local developers and communities to assess a development mitigation fee on each acre developed as a source of ongoing funds to support tile pre- serve (Martin, 1986). None of the critical projects described above would have occurred without He participation of nonprofit organizations. The Hope Valley project, which Involved assembling many different parcels, would not have been possible without the ability to purchase options on parcels in the hope Hat the remainder could be acquired. It also required a neutral party to mediate the management agreement between He various state and federal agencies involved. The Primerica example reflects He opposite problem. The agencies only wanted 10,000 acres; the landowner would sell only 80,000. Even if the funds were available, it would have been administratively difficult for a federal agency to purchase 80,000 acres and Hen sell 70,000. The CoachelIa Valley example presents five complicating factors, any one of which would have barred its completion if not for participation by a nonprofit: a large parcel requiring immediate purchase, an install- ment sale, involvement of multiple federal and state agencies, the assem- bly of a preserve from multiple parcels, and private sector involvement. CONCLUSION In many aspects, He work of nonprofit organizations has been the most significant development in recent federal land acquisition practices. Those groups do extraordinary and useful work as entrepreneurs, inno
180 SEINING PRIORITIES FOR LAND CONSERVATION vators, and deal makers. They act as intermediaries between sellers and government buyers. They exercise quick discovery and response capa- bilities Mat government agencies may lack. They have the skills, experi- ence, and reputations to forge multiparce! assemblages and arrange complex transactions that cross agency boundaries and overcome public and private property distinctions. The relationship between such organi- zations and agencies should be structured to continue to take full advan- tage of the demonstrated ability of the nonprofit organizations to act swiftly to carry out priority acquisitions, while ensuring Tat federal acquisition priorities effectively guide the overall process. Critics of the nonprofit organizations claim Hat the lands bought on behalf of the government reflect private priorities rather Pan public priorities, and that Be transactions are lobbied Trough Congress. It is also said that acquisition intermediaries can buy lands at a discount and Bus earn undeserved profits when Hey sell the land at fair market value to public entities. Some critics object to He ability of nonprofit organi- zations to avoid procedural constraints that apply to public agencies that are involved in land acquisition (Brookes, 1991~. Neither Congress nor the agencies are under obligation to buy specific parcels from nonprofit organizations. New issues and imaginative ap- proaches not promoted by the land-management agencies frequently are raised in Congress through the efforts of nonprofit intermediaries, which often assume significant financial risks in helping the federal agencies with land transactions. Nonprofit organizations dedicated to the preservation of land and other natural resources cannot fill the gap created by the lack of a com- prehensive national priority system. They can and do, however, greatly enhance the land-acquisition capability of the federal agencies in a vari- ety of ways, without cost to the taxpayer and often to the benefit of numerous federal and state agencies. Many transactions facilitated by nonprofit organizations illustrate complexity, management coordination, and cooperation challenges in- volved in land acquisition efforts. Management must be coordinated among the various entities at an ecosystemic and regionwide level if any individual agency is to protect biological diversity of He resources under its jurisdiction. Some conservation schemes depend on cooperation of resident landowners. Objectives of conservation often are compatible wig activities of resident populations, and local residents can benefit
TECHNIQUES AND TOOLS 18 from protection of the renewable resource base. Nonprofit organizations might have a role in monitoring conservation easements and management agreements as well as providing training in land acquisition techniques. Finally, the partnerships between nonprofit organizations and govern- ment entities are important for protecting areas large enough to meet the requirements of wildlife species.
