197 

Missing the Forest and the Trees:  

Lost Opportunities for Federal Land 

Exchanges 

Scott K. Miller* 

Introduction ........................................................................................... 198 
I. Prologue:  The Black River Land Exchange ................................... 200 
II.  The Fragmentation of the Federal Lands ........................................ 207 

A.  Disposal of the Federal Lands ................................................... 207 
B.   “The Closing of the Public Domain” ........................................ 209 
C.   BLM and Forest Service Landownership Today ....................... 211 

III.  The Land Exchange:  An Important Tool for a More 

Challenging Future .......................................................................... 213 
A.  A Potent Tool for Use and Abuse ............................................... 214 

1.   The Use ................................................................................... 215 
2. The Abuse ............................................................................... 217 

B. Deeds, Patents, Covenants, and the Like .................................... 220 
IV.  The Federal Land Policy and Management Act ............................ 222 

A.  The Public Land Law Review Commission .............................. 222 
B.    The Administration’s Approach ................................................ 224 
C.    The 94

th
 Congress’s Approach ................................................... 225 

D.  The Agencies’ Implementation .................................................. 226 
V.  Judicial Review ............................................................................... 230 

A.  Evaluating the Impacts of Disposal ............................................. 231 
B.  National Forest Preservation Group v. Butz ............................... 234 
C.  Muckleshoot Indian Tribe v. U.S. Forest Service ........................ 236 

VI.  Using Restrictions to Navigate the Land Exchange Process, 

Administrative Review, and the Courts .......................................... 238 
A.  Successfully Complying with NEPA and Related Laws ............ 239 

1.  Indirect Effects ........................................................................ 239 

 

 * Visiting Assistant Professor, University of Colorado Law School (2012–2013); Senior Counsel, 

U.S. Senate Committee on Energy and Natural Resources (2003–2012); J.D., University of Colorado 

Law School (1998).  I extend my sincere thanks to Charles Wilkinson, John Leshy, Jim Snow, and 

Rich Johnson, along with Andrew Meyer, Andrew Kirchner, Clint Cohen, and Elliot Harvey 

Schatmeier of the Journal staff, who provided helpful comments on drafts of this Article.   



 

198 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

2. Mitigation ................................................................................ 241 
3.  Range of Alternatives .............................................................. 243 
4. Cumulative Impact .................................................................. 246 
5.  Categorical Exclusions ............................................................ 247 

B.  Successfully Appraising Federal Land for its “Highest and 

Best Use”…………………………………………………. ....... 249 
C.   Ensuring that the Public Interest Will be Well Served ............... 251 

VII.  Forest Service and BLM Objections to Using Restrictions .......... 254 
A.   Effect on Value ........................................................................... 255 
B.  Monitoring and Enforcement ...................................................... 258 
C.  Responsibility of State and Local Government .......................... 260 

1.  Zoning and Regulation of Private Land Are Not 

Exclusively the Responsibility of State and Local 

Governments ........................................................................... 261 
2.   Local Authorities Are Not in the Only Position to Best 

Determine Appropriate Uses of Private Land ......................... 261 
3. The Agencies Have Both the Legal Authority and 

Responsibility to Use Restrictions .......................................... 262 
4.    Local Governments Often Support Use Restrictions and 

Do Not Hold Veto Authority When They Do Not .................. 264 
D.   Deterrent Effect on Non-Federal Parties .................................... 265 

VIII.  Recommendations ....................................................................... 266 
A.  Guiding Principles:  Congressional Intent .................................. 266 
B. Consideration:  Early and Often ................................................. 268 
C.   Evaluation:  On a Case-by-Case Basis ....................................... 269 
D. Key Issues:  Impacts on Federal Lands and Resources of      

National or Regional Significance .............................................. 269 
E.  Costs:  Fiscal Cost Reduction ..................................................... 273 
F.   Adaptive Management:  Modifications to Use Restrictions ....... 273 
G. Land Management Planning:  Incorporation of Use       

Restrictions into the Process ....................................................... 274 
H. Budget:  Reexamine Landownership Management Budgets ...... 275 
I. Executive Orders:  An Effective and Consistent Approach ........... 276 

IX.  Conclusion ..................................................................................... 277 
 

INTRODUCTION 

The mounting challenges associated with climate change, shrinking 

budgets, and growing populations increasingly call for a more effective 

and efficient federal landownership adjustment program.  Private 



 

2013] Missing the Forest and the Trees 199 

inholdings and isolated tracts of federal land can pose significant natural 

resources and management challenges for federal land managers, and 

changing habitats and communities will require more robust and 

forward-looking land adjustment responses.  Land exchanges have long 

been the primary landownership adjustment tool for the federal land 

management agencies, but the Bureau of Land Management and Forest 

Service’s land exchange programs have withered due to budget cuts and 

increased scrutiny. 

For any land exchange carried out by the Forest Service or the Bureau 

of Land Management (“Agencies”), federal law generally requires the 

Agencies to ensure that “the public interest will be well served by 

making that exchange.”
1
  To do so, the Agencies must consider the fate 

of the land they convey and how that is likely to affect the public 

interest.  To help control the fate of the land they convey and the adverse 

impacts it may have on the public interest, the Agencies’ regulations 

mandate that they “reserve such rights or retain such interests as are 

needed to protect the public interest.”
2
  Nevertheless, the Agencies’ 

internal policies all but prohibit their employees from carrying out that 

mandate. 

As a result, the Agencies are missing opportunities to better serve both 

the public’s interests and their own.  By including covenants, easements, 

or other restrictions on the lands they convey, the Agencies can more 

accurately and confidently determine the future use of the land.  Doing 

so can have substantial benefits not only for the public interest, but also 

for the efficiency and defensibility of the Agencies’ land exchange 

processes.  A new policy is necessary, and its lessons will have broader 

applicability to dozens of federal agencies and the billions of dollars of 

real property transactions in which they engage. 

This Article begins with a short case study that starkly illustrates the 

Agencies’ practices and their significant shortcomings.  Following the 

case study, the Prologue continues with a more thorough introduction to 

the subject and the thesis that is explored.  Parts II and III describe the 

prominent features of the physical and historic landscape within which 

the Agencies’ land exchange programs operate—including the Agencies’ 

land management imperatives and their public interest lapses—while 

Parts IV and V explore the statutory, regulatory, and judicial landscape.  

The discussion demonstrates the significant responsibilities the Agencies 

 

1. 43 U.S.C. § 1716(a) (2012). 

2. 36 C.F.R. § 254.3(h) (2013); 43 C.F.R. § 2200.0-6(i) (2013). 



 

200 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

have to guide the future use of the land they convey when necessary to 

serve the public interest. 

Part VI explores the substantial transactional and opportunity benefits 

the Agencies miss by failing to consider and strategically employ 

restrictions on the lands they convey, and Part VII critiques the 

Agencies’ arguments that have led to these missed opportunities.  

Finally, this Article suggests a framework for developing new policies 

that will better serve the Agencies and the public. 

I. PROLOGUE:  THE BLACK RIVER LAND EXCHANGE 

Historically, the United States Department of Agriculture’s Forest 

Service managed the National Forest System with a focus on timber, 

grazing, and recreation, and, more recently, ecosystem restoration and 

other multiple uses.  Wildfire suppression has always been a basic and 

significant part of its management, but in recent decades wildfire 

management has begun to eclipse other important parts of the Service’s 

mission. 

In 1991, 13% of the Forest Service’s budget was dedicated to wildfire 

management.
3
  Today, nearly 50% of its budget—almost $2.3 billion 

taxpayer dollars—is dedicated to wildfire management.
4
  As a result, the 

Agency’s other programs—from recreation to research and forest 

restoration to facilities maintenance—have been squeezed into sharing an 

ever-diminishing slice of the budget pie.
5
 

In the meantime, the Forest Service conveyed hundreds of parcels of 

land to private developers through land exchanges,
6
 enabling some of the 

 

3. See FOREST SERV., U.S. DEP’T OF AGRIC., FISCAL YEAR 2008 PRESIDENT’S BUDGET 3 (2007) 

[hereinafter FY 2008 BUDGET], available at http://www.fs.fed.us/publications/budget-2008/fy2008-

forest-service-budget-justification.pdf. 

4. See FOREST SERV., U.S. DEP’T OF AGRIC., FISCAL YEAR 2014 BUDGET OVERVIEW A-1 

(2013), available at http://www.fs.fed.us/aboutus/budget/2014/Overview%20(COMPLETE).pdf 

(reporting a wildfire management budget—including large wildfire suppression funds in the FLAME 

account—of approximately $2.3 billion out of the Agency’s total discretionary budget of 

approximately $4.9 billion in fiscal year 2013).  Even that amount proved insufficient to cover the 

Forest Service’s wildfire management costs, however, and the Agency was forced to borrow 

additional funds from its other programs to cover the unbudgeted costs.  Darryl Fears, Federal 

Budget to Fight Wildfires Runs Dry, WASH. POST, Aug. 23, 2013, at A3. 

5. See, e.g., FY 2008 BUDGET, supra note 3, at 3; see also Fears, supra note 4. 

6. A federal land exchange is a transaction whereby a federal land management agency conveys 

land or interests in land under the agency’s jurisdiction to a non-federal party in return for non-

federal land or interests in land.  The Forest Service conducted an average of 115 exchanges per year 

for fiscal years 1989–99, and the BLM conducted an average of 238 exchange transactions per year 

(each exchange involving 2 or more “exchange transactions”) over the same period.  See 

INTERAGENCY LAND ACQUISITION CONFERENCE, UNIFORM APPRAISAL STANDARDS FOR FEDERAL 



 

2013] Missing the Forest and the Trees 201 

dramatic growth on the fringes of the nation’s wildfire-prone forests.  

Protecting development in this wildland-urban interface (“WUI”) is 

estimated to account for 50 to 95% of the Agency’s large wildfire 

suppression costs.
7
  Economists also estimate that the Forest Service’s 

costs for reducing the natural fuels that feed wildfires can range from 34 

to 139% higher for each acre treated in the WUI.
8
 

One of the key problems—as the Forest Service long has known—is 

that local governments often do not have adequate zoning, building 

codes, and defensible space ordinances to address wildfire risk in the 

WUI, and developers and homeowners in the WUI often shirk their 

responsibilities to build only in appropriate places, with appropriate 

construction, and with appropriate defensible space practices.
9
 

Nevertheless, when the Forest Service exchanged 338 acres of the 

Apache National Forest to a landowner on the outskirts of Greer, AZ, it 

rejected calls to include deed restrictions to limit the development of that 

land.
10

  It wasn’t that the Forest Service lacked the authority to impose 

 

LAND ACQUISITIONS 84-85 (2000) [hereinafter UNIFORM APPRAISAL STANDARDS], available at 

http://www.justice.gov/enrd/ENRD_Assets/Uniform-Appraisal-Standards.pdf. 

7. See OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF AGRIC., AUDIT REP. NO. 08601-44-SF, 

FOREST SERVICE LARGE FIRE SUPPRESSION COSTS 7 (2006), available at http://www.usda.gov/oig/ 

webdocs/08601-44-SF.pdf (“If these estimates are presumed to be accurate for the FS’ suppression 

efforts nationwide, the cost of protecting privately-owned properties in the WUI would total about 

$547 million to $1 billion in 2003 and 2004.”). 

8. See Alison H. Berry et al., Prescribed Burning Costs and the WUI:  Economic Effects in the 

Pacific Northwest, 21 W. J. APPLIED FORESTRY 72, 75, 77 (2006) (stating that “results show that 

when prescribed fire is used in the WUI, all things equal, costs increase 139%” and that “the results 

of this analysis clearly indicate that per acre costs of fuel treatments increase in the WUI”); David 

Calkin & Krista Gebert, Modeling Fuel Treatment Costs on Forest Service Lands in the Western 

United States, 21 W.J. APPLIED FORESTRY 217, 220 (2006) (estimating that prescribed burning costs 

34% more in the WUI and that mechanical treatment costs 62% more). 

9. See generally HEADWATERS ECON., SOLUTIONS TO THE RISING COSTS OF FIGHTING FIRES IN 

THE WILDLAND-URBAN INTERFACE (2009), available at http://headwaterseconomics.org/wphw/wp-

content/uploads/HeadwatersFireCosts.pdf; U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-877, 

WILDLAND FIRE MANAGEMENT:  FEDERAL AGENCIES HAVE TAKEN IMPORTANT STEPS FORWARD, 

BUT ADDITIONAL, STRATEGIC ACTION IS NEEDED TO CAPITALIZE ON THOSE STEPS 11–14 (2009), 

available at http://www.gao.gov/new.items/d09877.pdf.  It was for this reason that the Forest 

Service considered amending 900 miles of private road easements across National Forest System 

lands in Montana to ensure that any development of the private lands served by those roads would 

meet minimum standards for wildfire protection.  See U.S. GOV’T ACCOUNTABILITY OFFICE, B-

317292, PROPOSED EASEMENT AMENDMENT AGREEMENT BETWEEN THE DEPARTMENT OF 

AGRICULTURE AND PLUM CREEK TIMBER CO. 2, 4 (Oct. 10, 2008), available at http://www.gao.gov/ 

decisions/other/317292.pdf (“[T]he easement for each subsequent owner would be conditional on the 

owner taking certain fire protection measures specified in the easement, under the Firewise 

Communities program.”). 

10. The purchaser indicated to the Forest Service that he had no plans to develop the land, but the 

Forest Service recognized that residential development of the land was reasonably foreseeable.  See 



 

202 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

such restrictions (it has it);
11

 it wasn’t that Greer or its county had 

appropriate WUI ordinances in place (it did not);
12

 and it wasn’t that the 

Agency had carefully considered and evaluated whether to use such 

restrictions (it had not).
13

  The Forest Service simply rejected the calls for 

restrictions out of hand. 

The Forest Service’s decision was challenged with nine administrative 

appeals, which collectively argued that the decision violated the National 

Environmental Policy Act (“NEPA”)
14

 and the Federal Land Policy and 

Management Act (“FLPMA”).
15

  The Agency’s decision was reversed 

and remanded to consider the environmental impacts of future 

development of the federal land and to consider including deed 

restrictions to address those impacts.
16

  On remand, the Agency again 

declined to use deed restrictions, explaining that “[t]he Forest Service 

has long taken the position that zoning and regulation of uses on private 

land are within the responsibility of state and local governments. . . .  

‘Except as authorized by law, order, or regulation, Forest Service 

 

SW. REGION, U.S. DEP’T OF AGRIC., ENVIRONMENTAL ASSESSMENT FOR PROPOSED BLACK RIVER 

LAND EXCHANGE:  APACHE-SITGREAVES NATIONAL FORESTS—SPRINGERVILLE RANGER DISTRICT 

6, 55 (2005) [hereinafter ENVIRONMENTAL ASSESSMENT], available at http://a123.g.akamai.net/7/1 

23/11558/abc123/forestservic.download.akamai.com/11558/www/nepa/4895_FSPLT2_029027.pdf.  

See generally SPRINGERVILLE RANGER DIST, FOREST SERV., DECISION NOTICE AND FINDING OF NO 

SIGNIFICANT IMPACT:  BLACK RIVER LAND EXCHANGE 7–8 (2005) [hereinafter DECISION NOTICE], 

available at http://a123.g.akamai.net/7/123/11558/abc123/forestservic.download.akamai.com/11558/ 

www/nepa/4895_FSPLT2_029026.pdf.  The public concerns were focused on the potential impacts 

of future development of the property, especially water use, but also “adequacy of the transportation 

system for evacuation, cumulative impacts, fire safety, increased fire hazard, increased fire hazard to 

forest land, [and] degradation of the forest environment.”  APACHE-SITGREAVES NAT’L FORESTS, 

DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR PROPOSED BLACK RIVER LAND EXCHANGE 1–7 

(2008), available at http://a123.g.akamai.net/7/123/11558/abc123/forestservic.download.akamai.co 

m/11558/www/nepa/42711_FSPLT2_028948.pdf. 

11. See discussion infra Part IV.C–D; John W. Ragsdale, Jr., National Forest Land Exchanges 

and the Growth of Vail and Other Gateway Communities, 31 URB. LAW. 1, 12, 14 (1999). 

12. Neither Greer nor Apache County imposed building codes or defensible space requirements 

designed to minimize the risk from wildfire.  Greer did, however, have a Firewise program, which 

encourages homeowners to take measures to reduce the risk from wildfires.  See APACHE-

SITGREAVES NAT’L FORESTS, FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE BLACK RIVER 

EXCHANGE 42 (2009) [hereinafter FEIS], available at http://a123.g.akamai.net/7/123/11558/abc123/ 

forestservic.download.akamai.com/11558/www/nepa/42711_FSPLT2_029071.pdf. 

13. See DECISION NOTICE, supra note 10, at 7 (“An alternative that included a deed restriction 

was not fully developed or analyzed, except as the ‘No Action’ alternative.”). 

14. Pub. L. No. 91-190, 83 Stat. 853 (1970) (codified as amended at 42 U.S.C. §§ 4321–4347 

(2012)). 

15. Pub. L. No. 94-579, 90 Stat. 2743 (1976) (codified as amended at 43 U.S.C. §§ 1701–1782 

(2012)). 

16. See ENVIRONMENTAL ASSESSMENT, supra note 10, at 8 (describing the decision by the 

Appeal Deciding Officer for the Chief of the Forest Service). 



 

2013] Missing the Forest and the Trees 203 

policies, practices, and procedures shall avoid regulating private property 

use.’”
17

 

It was then on to federal court, where the Forest Service’s second 

decision was reversed and remanded with direction to analyze the 

potential effects of future development and the potential need for deed 

restrictions.
18

  The Agency again rejected use restrictions,
19

 but when it 

arrived back in court, the Agency’s analysis was upheld.
20

  After all, 

“NEPA merely prohibits uninformed—rather than unwise—agency 

action.”
21

 

A few months later, the town of Greer was evacuated as the massive 

Wallow Fire approached the town.  The fire burned twenty-one homes in 

Greer, and the Forest Service spent some $80 million fighting it and 

trying to protect Greer and eight other WUI communities from the 

blaze.
22

  Firefighters were able to stop the fire adjacent to the 338 newly 

privatized acres.
23

  Though homes had not yet been constructed on that 

land, they will be, and how that land is developed will affect the adjacent 

national forest, the cost of managing that national forest, and the cost of 

fighting the next fire that burns through it. 

This story of the Black River Land Exchange is not unique.  Land 

exchanges have been an important ingredient in the efforts to grow 

communities in the WUI surrounding our national forests for decades.
24

  

 

17. Id. at 11 (citing Forest Service Manual 5403.3). 

18. See Greer Coal., Inc. v. U.S. Forest Serv., No. CV 06-0368-PHX-MHM, 2007 WL 675954, 

at *4–5 (D. Ariz. Mar. 1, 2007). 

19. See FEIS, supra note 12, at 14, 41–43.  In the end, the Forest Service continued to rely on its 

general policy against incorporating deed restrictions.  See id. at 14. 

20. See Greer Coal., Inc.  v. U.S. Forest Serv., No. CV 09-8239-PCT-DGC, 2011 WL 671750, at 

*21 (D. Ariz. Feb. 16, 2011), aff’d 470 F. App’x 630 (9th Cir. 2012). 

21. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).  In their second 

trip to federal court, the plaintiffs’ argument that the exchange violated FLPMA’s public interest 

standard was found to be barred by res judicata.  See Greer Coal., 2011 WL 671750, at *5. 

22. See J.J. Hensley, Wallow Fire Nets Jail Term of 2 Days, ARIZ. REPUBLIC, Aug. 23, 2012, at 

B1; Arizona Wallow Fire:  56% Contained, Grows to 520,000 Acres and May Trigger Flooding, 

INTERNAT’L BUS. TIMES NEWS, June 21, 2011; cf. Dennis Wagner, Fire’s Fallout, ARIZ. REPUBLIC, 

Oct. 16, 2011, at A1 (“The government . . . poured $109 million into fighting the blaze[ and] is 

spending an additional $34 million on the emergency rehab effort.”). 

23. Cf. Crews Put Dent in Raging Inferno, ARIZ. REPUB., June 10, 2011, at A1.  Firefighters 

were able to minimize the damage in Greer as a result of significant Forest Service investments in 

fuel treatments on adjacent national forest land.  See generally PAM BOSTWICK ET AL., U.S. FOREST 

SERV., HOW FUEL TREATMENTS SAVED HOMES FROM THE 2011 WALLOW FIRE (n.d.), available at 

http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5358240.pdf. 

24. See, e.g., 1 DANIEL, MANN, JOHNSON, & MENDENHALL, PUB. LAND LAW REVIEW COMM’N, 

STUDY OF FEDERAL PUBLIC LAND LAWS AND POLICIES RELATING TO USE AND OCCUPANCY XI-21 

to XI-26 (1969) [hereinafter USE AND OCCUPANCY] (reporting on Forest Service efforts to provide 

land for the City of Flagstaff, AZ, (and others) to grow, including thirty-four land exchanges 



 

204 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

Similar stories could be told about other land exchanges and WUI fires,
25

 

as well as land exchanges carried out by the Forest Service’s sister 

agency, the Bureau of Land Management (“BLM”), in the Department of 

the Interior.  There are analogous stories, too, about some of the 

thousands of land exchanges that the BLM and Forest Service have 

completed in the last few decades
26

—land exchanges that, while 

producing important benefits associated with federal acquisition of land, 

also resulted in adverse effects associated with the disposal of federal 

land.  These adverse effects—such as the destruction of wildlife habitat, 

the siltation of streams, and the introduction and spread of invasive 

species—impact not only the public interest, but also the Agencies’ 

interests in the land they continue to manage. 

The problem is that the BLM and Forest Service have missed many 

opportunities to guide the use of the land they convey to serve the 

public’s—and their own—interests.  The Agencies’ land exchange 

regulations are strong and specific: “In any exchange, the authorized 

officer shall reserve such rights or retain such interests as are needed to 

protect the public interest or shall otherwise restrict the use of Federal 

lands to be exchanged, as appropriate.”
27

  But an investigation of their 

handbooks and internal memos reveals more potent instructions that all 

but prohibit agency officials from meeting their regulations’ charge.  

Ironically, those same informal policies discourage the Agencies from 

protecting their own interests—not only the interests exemplified by the 

Black River Land Exchange, but also the BLM and Forest Service’s 

interests in improving the efficiency and reducing the vulnerability of 

their administrative processes for developing land exchanges. 

This Article dissects, diagnoses, and recommends a remedy for this 

problem.  In short, the Agencies must ensure that “the public interest will 

be well served” by each exchange.
28

  The Agencies have the authority to 
 

providing more than 2800 acres for subdevelopment, commercial development, and other uses in the 

City during the 1950s and 60s). 

25. In fact, the Forest Service had conveyed about 147 acres near Greer just a few years before 

the Black River Land Exchange.  See Greer Coal., Inc. v. U.S. Forest Serv., No. CV 06-0368-PHX-

MHM, 2007 WL 675954 at *12 (D. Ariz. Mar. 1, 2007). 

26. During the 1990s, the Agencies were completing over 200 exchanges each year.  See 

UNIFORM APPRAISAL STANDARDS, supra note 6, at 84–85.  That rate has slowed considerably in 

recent years.  See U.S.  GOV’T ACCOUNTABILITY OFFICE, GAO-09-611, FEDERAL LAND 

MANAGEMENT:  BLM AND THE FOREST SERVICE HAVE IMPROVED OVERSIGHT OF THE LAND 

EXCHANGE PROCESS, BUT ADDITIONAL ACTIONS ARE NEEDED 14 (2009) [hereinafter GAO 2009] 

(reporting that only 147 exchanges were completed by the Agencies between Oct. 1, 2004, and June 

30, 2008). 

27. 36 C.F.R. § 254.3(h) (2013); 43 C.F.R. § 2200.0-6(i) (2013). 

28. See 43 U.S.C. § 1716(a) (2012). 



 

2013] Missing the Forest and the Trees 205 

help fulfill that responsibility by including covenants, easements, or 

other land use restrictions in the deeds they convey or through other 

terms and conditions in exchange agreements with the purchasers.  By 

doing so, the Agencies can reduce administrative costs and 

vulnerabilities associated with developing, evaluating, and defending 

land exchanges. 

Restricting the future use of land conveyed by federal agencies in 

exchanges is not appropriate for all—perhaps even most—federal land 

exchanges.  Use restrictions can be expensive, inefficient, complex, and 

otherwise unnecessary or even counterproductive.
29

  They cannot alone 

come close to solving the problems of wildfire management in the WUI, 

for example, nor should they given the primary responsibilities of 

individuals and local governments.  But there are cases where use 

restrictions would be expedient and, indeed, required by the Agencies’ 

own regulations.  Yet such restrictions often are never considered or are 

rejected without adequate explanation.  It is these missed opportunities 

that are the focus of this Article. 

The stakes for the long-term viability of our public lands are 

significant.  A more effective and efficient land exchange program is 

critical for creating more effective and efficient landownership patterns 

to cope with climate change,
30

 shrinking agency budgets, and growing 

populations in and around federal lands.  A more effective and efficient 

 

29. Professor Echeverria has recognized that the policy questions surrounding whether to protect 

natural resource values on private land through governmental regulation or through voluntary market 

processes “rank among the most fundamental and pressing questions in U.S. land use policy.”  John 

D. Echeverria, Regulating Versus Paying Land Owners to Protect the Environment, 26 J. LAND 

RESOURCES & ENVTL. L. 1, 1 (2005).  Professor Echeverria explores the benefits and drawbacks of 

each approach and, ultimately, “draws a cautionary conclusion about the long-term utility of the 

voluntary, publicly-financed approach to land protection, especially the use of conservation 

easements.”  Id. at 2; see also John M. Vandlik, Waiting for Uncle Sam to Buy The Farm . . . Forest, 

or Wetland?  A Call for New Emphasis on State and Local Land Use Controls in Natural Resource 

Protection, 8 FORDHAM ENVTL. LAW J. 691 (1997).  Professor Korngold makes the contrary case, 

focusing on the unique benefits of governmentally-held conservation easements.  See generally 

Gerald Korngold, Government Conservation Easements:  A Means to Advance Efficiency, Freedom 

from Coercion, Flexibility, and Democracy, 78 BROOK. L. REV. 467 (2013); see also U.S. GEN. 

ACCOUNTING OFFICE, CED-80-14, THE FEDERAL DRIVE TO ACQUIRE PRIVATE LANDS SHOULD BE 

REASSESSED 22-25 (1979) [hereinafter GAO ACQUISITION REPORT], available at http://www.gao.go 

v/assets/130/128531.pdf.  These analyses are quite useful in considering larger policy issues in the 

context of this Article.  When doing so, however, the unique context of federal land exchanges, 

which broadly represent a type of hybrid approach that can include significant aspects of both 

regulatory and voluntary market dynamics, should be taken into account. 

30. See, e.g., John D. Leshy, Federal Lands in the Twenty-First Century, 50 NAT. RESOURCES J. 

111, 129 (2010) (“[J]ust as species will migrate in the face of climate change, our federal lands will 

have to do some migration as well . . . .  A successful adaptation program will need to reconfigure or 

realign the pattern of federal landholdings with emerging needs.”). 



 

206 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

land exchange program must in turn recognize that the interactions 

between the management and adjustment of federal lands and adjacent 

non-federal lands are now more significant and demanding than ever, 

and the lines that traditionally have separated public and private 

landownership will increasingly fade as a result.
31

 

Although the analyses and principles discussed here largely are 

applicable to all federal land disposals,
32

 this Article concentrates on 

federal land exchanges, which are the primary tool for the land 

management agencies’ landownership adjustment programs today.
33

  

While other federal agencies conduct some land exchanges, this Article 

also concentrates on the BLM and Forest Service because they manage 

69% of the federal lands,
34

 contend with most of the fragmented 

landholdings of the federal land management agencies,
35

 and conduct the 

vast majority of land exchanges.
36

 

 

31. See id. at 132–33; SALLY K. FAIRFAX ET AL., BUYING NATURE:  THE LIMITS OF LAND 

ACQUISITION AS A CONSERVATION STRATEGY, 1780–2004, at 13 (2005) [hereinafter BUYING 

NATURE]; NAT’L RESEARCH COUNCIL, SETTING PRIORITIES FOR LAND CONSERVATION 49 (1993) 

(“The committee’s study concluded that public and private values cannot be conveniently separated.  

The vigorous pursuit of public values no longer takes place only on public lands or out-of-the-way 

preserves and set-asides.”). 

32. The problem is much broader than land exchanges, and much of the discussion here equally 

applies in the larger context.  There are more than thirty federal agencies that control hundreds of 

thousands of real property assets worth hundreds of billions of dollars.  See, e.g., U.S. GEN. 

ACCOUNTING OFFICE, GAO-03-122, HIGH RISK SERIES:  FEDERAL REAL PROPERTY 2 (2003), 

available at http://www.gao.gov/assets/240/236999.pdf. 

33. See, e.g., Sale of FS Lands, U.S. FOREST SERV., http://www.fs.fed.us/land/staff/disposal.shtm 

l (last visited June 20, 2013) (“The Forest Service has very limited authority to sell National Forest 

System lands. . . .  The tool used most often for conveyance of lands within National Forest 

boundaries is land exchange.”); Federick R. Anderson, Public Land Exchanges, Sales, and 

Purchases Under the Federal Land Policy and Management Act of 1976, 1979 UTAH L. REV. 657, 

666 (1979) (“exchange historically has been the most widely used land-transaction power [by the 

BLM], and most likely will continue to be so under FLPMA”); NAT’L RESEARCH COUNCIL, supra 

note 31, at 166–67.  The BLM patents an average of approximately 17,000 acres per year by 

exchange under Section 206 of FLPMA (43 U.S.C. § 1716 (2012)) and 3000 acres per year by sale 

under Section 203 of FLPMA (43 U.S.C. § 1713).  Data compiled from Table 3-1 in BUREAU OF 

LAND MGMT., U.S. DEP’T OF THE INTERIOR, PUBLIC LAND STATISTICS for data years 2006 through 

2011 (the data do not include lands sold or exchanged pursuant to legislation applicable to specific 

land conveyances). 

34. Of the approximately 643 million acres of land managed by the federal government in the 

United States, the BLM manages approximately 248 million acres (along with an additional 700 

million acres of subsurface estate).  BUREAU OF LAND MGMT., U.S. DEP’T OF THE INTERIOR, PUBLIC 

LAND STATISTICS 2012 at 7, 8 (2012), available at http://www.blm.gov/public_land_statistics/pls12 

/pls2012.pdf.  The Forest Service manages approximately 193 million acres.  FOREST SERV., U.S. 

DEP’T OF AGRIC., LAND AREAS OF THE NATIONAL FOREST SYSTEM 1 (2012), available at 

http://www.fs.fed.us/land/staff/lar/LAR2012/LAR_Book_FY2012_A4.pdf.   

35. Cf. George Cameron Coggins & Margaret Lindberg-Johnson, The Law of Public Rangeland 

Management II:  The Commons and the Taylor Act, 13 ENVT. L. 1, 80 (1982) (“While inholdings are 



 

2013] Missing the Forest and the Trees 207 

II.  THE FRAGMENTATION OF THE FEDERAL LANDS 

It has long been recognized that “[l]and exchanges provide a highly 

rational solution to an irrational land management situation.”
37

  To 

understand the importance of effective federal land exchange practices, it 

is necessary to appreciate the landownership management challenges the 

Agencies and their neighbors face.  This Part explains the breadth and 

depth of the fragmentation of the federal lands, which are rooted in the 

public land policies established in the eighteenth and nineteenth 

centuries. 

A. Disposal of the Federal Lands 

Beginning in the 1780s with the cession of western land claims by 

some of the colonies and ending with the purchase of Alaska in 1867, the 

federal government secured title to some 1.8 billion acres, which 
 

problems in all federal land systems, the BLM lands are far more fragmented than the others, making 

for less private security of tenure, as well as inefficient administration.” (footnote omitted)). 

36. The BLM and Forest Service account for about 90% of the land acquired by the four federal 

land management agencies through exchange during the modern era.  U.S. GEN. ACCOUNTING 

OFFICE, GAO/T-RCED-96-73, FEDERAL LANDS:  INFORMATION ON LAND OWNED AND ACQUIRED 5 

(1996), available at http://www.gao.gov/assets/110/106338.pdf (reporting that the Forest Service 

acquired approximately 2,180,000 acres (67% of total) and the BLM acquired approximately 

724,400 acres (22% of total) through exchange during the period 1964-1994).  The Forest Service 

alone has acquired more than 11 million acres by exchange.  See U.S. DEP’T OF THE INTERIOR & 

U.S. DEP’T OF AGRIC., NATIONAL LAND ACQUISITION PLAN 10 (2005) [hereinafter LAND 

ACQUISITION PLAN], available at http://www.fs.fed.us/land/staff/LWCF/Final%20DOIUSDA%20L 

and%20Acquisition%20Report%20to%20Congress.pdf. 

 For the BLM, the reliance on exchange as the primary tool for land ownership adjustment may 

change under the Federal Land Transaction Facilitation Act (“FLTFA”), which authorized the BLM 

to sell lands and deposit most of the proceeds in a special fund that supports land acquisition efforts 

for the public lands, National Forests, National Parks, and National Wildlife Refuges.  See Federal 

Land Transaction Facilitation Act, Pub. L. No. 106-248, tit. II, 114 Stat. 613 (2000); see also U.S. 

GOV’T ACCOUNTABILITY OFFICE, GAO-08-196, FEDERAL LAND MANAGEMENT:  FEDERAL LAND 

TRANSACTION FACILITATION ACT RESTRICTIONS AND MANAGEMENT WEAKNESSES LIMIT FUTURE 

SALES AND ACQUISITIONS 14 (2008) [hereinafter GAO FLTFA REPORT], available at 

http://www.gao.gov/assets/110/106338.pdf (“Since FLTFA was enacted in 2000, BLM has raised 

$95.7 million in revenue, mostly by selling 16,659 acres.”).  The BLM land sales under FLTFA 

generally are carried out in accordance with other applicable law, including provisions requiring the 

BLM to insert in any patent “such terms, covenants, conditions, and reservations as [it] deems 

necessary to insure proper land use and protection of the public interest.”  43 U.S.C. § 1718 (2012); 

see also 43 U.S.C. § 2304(b) (2012).  FLTFA expired in July of 2011 and currently is under 

consideration for reauthorization by Congress.  See, e.g., S. 368, 113th Cong. (2013); S. REP. NO. 

112-69 (2011) (reporting S. 714, the “Federal Land Transaction Facilitation Act Reauthorization of 

2011”).   

37. RALEIGH BARLOWE ET AL., LAND DISPOSAL TECHNIQUES AND PROCEDURES:  A STUDY 

PREPARED FOR THE PUBLIC LAND LAW REVIEW COMMISSION 141 (1970); see also Coggins & 

Lindberg-Johnson, supra note 35, at 10. 



 

208 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

accounts for nearly 80% of the landmass of the current United States.
38

  

But even at the outset, the seemingly unbroken expanse of federal land 

was subject to some 34 million acres of preexisting private land claims 

that ultimately were recognized,
39

 not to mention the aboriginal title of 

Indian Tribes and Alaska Natives.
40

 

Before the federal government had even begun to acquire the land, it 

already had established policy to dispose of it in an effort to encourage 

settlement and raise revenue.
41

  The government ultimately conveyed 

nearly 1.3 billion acres to settlers, states, ranchers, railroads, miners, 

schools, lumbermen, enlistees, veterans, towns, and others to provide for 

homesteads, highways, reservoirs, prisons, hospitals, canals, stone 

quarries, salt springs, inducements to military service, townsites, 

asylums, public revenues, tree cultivation, wagon roads, public buildings, 

timber cutting, mineral production, seminaries, the construction of 

levees, the reclamation of arid lands and swamps, and a broad range of 

other purposes.
42

 

The variety of disposal programs created an assortment of inefficient 

landownership patterns.  Individual conveyances ranged from just a few 

acres to tens of millions of acres.  On one extreme, patented mining lode 

claims formed a dizzying array of privately-owned parcels that chase 

mineral veins throughout much of the West.
43

  Over 65,000 patents for 

more than 3.2 million acres scattered across the federal lands have been 

 

38. BUREAU OF LAND MGMT., supra note 34, at 1; MARION CLAWSON, THE FEDERAL LANDS 

REVISITED 185–86 (1983). 

39. BUREAU OF LAND MGMT., supra note 34, at 5–6; see also PAUL W. GATES, HISTORY OF 

PUBLIC LAND LAW DEVELOPMENT 86, 119 (1968).  See generally BENJAMIN HORACE HIBBARD, A 

HISTORY OF PUBLIC LAND POLICIES (1965). 

40. See generally Felix S. Cohen, Original Indian Title, 32 MINN. L. REV. 28 (1947). 

41. In 1780, anticipating future cessions of western territory from some of the colonies, the 

Continental Congress passed a resolution providing that “the unappropriated lands that may be ceded 

or relinquished to the United States . . . shall be disposed of for the common benefit of the United 

States.”  GOV’T PRINTING OFFICE, 18 JOURNALS OF THE CONTINENTAL CONGRESS 915 (Tuesday, 

Oct. 10, 1780); see also GATES, supra note 39, at 51 (describing the policy of disposal adopted by 

the Continental Congress in anticipation of future acquisition and control by the federal 

government).  See generally HIBBARD, supra note 39. 

42. See BUREAU OF LAND MGMT., supra note 34, at 5 (Table 1-2); BARLOWE, supra note 37, at 

9–14.  See generally MATTHIAS NORDBERG ORFIELD, FEDERAL LAND GRANTS TO THE STATES:  

WITH SPECIAL REFERENCE TO MINNESOTA (1915); HIBBARD, supra note 39. 

43. Under the 1872 Mining Law, a lode claim may not exceed 1500 feet along a mineral vein and 

300 feet on each side of the vein.  See 30 U.S.C. § 23 (2012).  In addition, the regulations provide 

that, under certain circumstances, each claim may be accompanied by multiple 5-acre mill sites that 

are not contiguous to the claim.  See 43 C.F.R. §§ 3832.31, 3832.32, 3832.34 (2013). 



 

2013] Missing the Forest and the Trees 209 

conveyed under the 1872 Mining Law.
44

  At the more systematic 

extreme, railroads were granted over 130 million acres of alternating 

square-mile sections of land extending up to 120 miles wide along their 

tracks,
45

 creating a neat (though very difficult to manage) checkerboard 

of federal and private land that snakes across significant parts of the 

country.  Western states were also systematically granted over 70 million 

acres of specified sections of townships that often ended up “crazily 

intermingled with federal and private lands.”
46

 

It “was a lusty affair—a headlong, even precipitous process,”
47

 and by 

1893, the superintendent of the census officially observed:  “the unsettled 

area has been so broken into by isolated bodies of settlement that there 

can hardly be said to be a frontier line.”
48

  At the turn of the century, the 

federal government had disposed of over half of the original public 

domain.
49

  Little or no thought had been given to the future management 

of forests, rangelands, growing communities, and the environment.
50

 

B. “The Closing of the Public Domain”
51

 

In the last quarter of the nineteenth century, as widespread abuse of the 

disposal laws and the land itself accumulated,
52

 the longstanding policies 

of disposal and unregulated use of the federal lands began to fade.  In 

1891 Congress authorized the President to withdraw forests from entry 

and disposal.
53

  Within weeks, President William Henry Harrison used 

the authority to expand the protections for Yellowstone, and within two 

 

44. U.S. GEN. ACCOUNTING OFFICE, GAO/RCED-89-72, FEDERAL LAND MANAGEMENT:  THE 

MINING LAW OF 1872 NEEDS REVISION 2, 10 (1989), available at http://archive.gao.gov/d15t6/1381 

59.pdf. 

45. See GATES, supra note 39, at 384–85.  The checkerboarded federal lands also were created as 

a result of grants for canals and wagon roads, for example.  See id. at 345–56. 

46. Coggins & Lindberg-Johnson, supra note 35, at 6, 8.  Typically, the States were entitled to 

two or four sections (often including sections sixteen and thirty-six) of each thirty-six-section-square 

township.  Id. at 7, 11. 

47. CLAWSON, supra note 38, at 25. 

48. See GEORGE CAMERON COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 118 

(6th ed., 2007).  

49. E. LOUISE PEFFER, THE CLOSING OF THE PUBLIC DOMAIN:  DISPOSAL AND RESERVATION 

POLICIES 1900-50 at 346–47 (1951). 

50. See BARLOWE, supra note 37, at 14. 

51. See PEFFER, supra note 49. 

52. See generally S.A.D. PUTER IN COLLABORATION WITH HORACE STEVENS, LOOTERS OF THE 

PUBLIC DOMAIN:  EMBRACING A COMPLETE EXPOSURE OF THE FRAUDULENT SYSTEMS OF 

ACQUIRING TITLES TO THE PUBLIC LANDS OF THE UNITED STATES (1908) (recounting the abuses of 

the federal government’s land disposal programs); PEFFER, supra note 49, at 220 (describing 

deteriorated range conditions). 

53. Act of Mar. 3, 1891, ch. 561, 26 Stat. 1095 (1891) (repealed 1976).  



 

210 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

years, he reserved an additional fourteen forests totaling some 13 million 

acres.
54

  By the turn of the century, disposition of federal lands continued 

at a rapid pace, but more than 46 million acres already had been reserved 

as national forests.
55

  And by the end of Theodore Roosevelt’s 

presidency in 1909, that number had grown to nearly 200 million acres.
56

 

However, even in the states where the federal government had at one 

time owned virtually all of the land, settlers and miners already had laid 

claim to considerable parts of the lands within the national forests.
57

  In 

most of the East, the federal government either never owned or had 

already disposed of the land that was in critical need of forest and 

watershed protection and restoration.
58

  For example, when the Alabama 

National Forest was reserved from the public domain in 1918, only 55% 

of the land within its boundaries was still owned by the federal 

government.
59

 

The Weeks Act of 1911 authorized the President to buy land for 

national forests, and Presidents used that authority to cobble together 

enough land to establish nine national forests across the Eastern United 

States by 1920.
60

  But even after spending years buying the land for the 

eastern national forests, many were established with less than 25% of the 

land administered by the Forest Service.
61

  And as Congress quickly 

 

54. See SAMUEL TRASK DANA & SALLY K. FAIRFAX, FOREST AND RANGE POLICY:  ITS 

DEVELOPMENT IN THE UNITED STATES 58 (2d ed. 1980). 

55. See PEFFER, supra note 49, at 354–55 (during the first decade of the twentieth century, an 

annual average of 19.7 million acres were entered under the homestead and other entry laws).  The 

initial “forest reserves” formally became “national forests” in 1907, two years after the Forest 

Service was created within the Department of Agriculture.  See Act of Mar. 4, 1907, Pub. L. No. 59-

242, ch. 2907, 34 Stat. 1256, 1269 (providing funding for the “forest reserves, which shall be known 

hereafter as national forests”); Act of Mar. 3, 1905, Pub. L. No. 58-138, ch. 1405, 33 Stat. 861, 872–

73 (establishing the Forest Service within the Department of Agriculture). 

56. HIBBARD, supra note 39, at 530–31. 

57. See GATES, supra note 39, at 580 (stating that within the more than 46 million acres of 

national forests established by 1901, “a considerable part was privately held”). 

58. See WILLIAM E. SHANDS & ROBERT G. HEALY, THE LANDS NOBODY WANTED 13–15 

(1977).  Like in the West, by the turn of the twentieth century large swaths of the eastern forests had 

been denuded by timber companies, and the destruction and accompanying disastrous floods 

prompted federal action.  Id. 

59. RICHARD C. DAVIS, ENCYCLOPEDIA OF AMERICAN FOREST AND CONSERVATION HISTORY 

744 (1983). 

60. Act of Mar. 1, 1911, Pub. L. No. 61-435, ch. 186, 36 Stat. 961 (codified as amended in 

scattered sections of 16 U.S.C.); SHANDS & HEALY, supra note 58, at 15.  By 1925, the federal 

government had acquired approximately 2.35 million acres under the Weeks Act.  See EXCHANGE 

OF FOREST LANDS ACQUIRED UNDER THE WEEKS ACT, H.R. REP. NO. 68-1301, at 2 (1925). 

61. For example, the Allegheny National Forest in Pennsylvania was established in 1923 with 

only 9.8% of its land under Forest Service control, the Green Mountain (VT) in 1932 with 1.8%, the 

Holly Springs (MS) in 1936 with 10.1%, the Jefferson (VA, WV, and KY) in 1936 with 5.6%, the 



 

2013] Missing the Forest and the Trees 211 

recognized, “[b]y reason of their peculiar surveys, going back in some 

instances to colonial times, the lands acquired by the Government are 

very irregular in shape” and mixed amongst private lands.
62

 

C.  BLM and Forest Service Landownership Today 

Today, our federal lands look like paint splatters on a map of the 

United States—“general cartographic chaos.”
63

  Moreover, many of the 

apparently contiguous parcels are a mirage:  zoom in and you often will 

find complex outer boundaries with sometimes scattered and sometimes 

scrambled inholdings of private land.
64

 

The BLM administers approximately 248 million surface acres,
65

 

much of it so scattered that unit boundaries barely exist.  In some areas, 

the BLM administers large blocks of land sprinkled with private 

inholdings, but often it is the BLM that finds itself with parcels 

surrounded by other state, private, and federal lands.
66

 

 

 

 

 

 

 

 

 

 

 

 

Manistee (MI) in 1938 with 19%, and the Monongahela (WV) in 1920 with 7.9% of the land.  See 

DAVIS, supra note 59, at 745, 759–60, 762, 766, 768. 

62. See EXCHANGE OF FOREST LANDS ACQUIRED UNDER THE WEEKS ACT, H.R. REP. NO. 68-

1301, at 2–3 (1925).  In 1922, it was estimated that there were more than 25 million acres of non-

federal land within the national forests countrywide.  H.R. REP. NO. 67-748, at 4 (1922). 

63. George Cameron Coggins, Overcoming the Unfortunate Legacies of Western Public Land 

Law, 29 LAND & WATER L. REV. 381, 382 (1993). 

64. One can explore the Forest Service’s fragmented holdings across the country.  My Map, 

ARCGIS, http://www.arcgis.com/home/webmap/viewer.html?useExisting=1 (last visited June 19, 

2013) (click on ‘add’ link, type ‘US Forest Service Surface Ownership’ into the find box and click 

the ‘go’ link, click the ‘add’ link in the results found, and zoom in on the relevant portion of the 

map). 

65. BUREAU OF LAND MGMT., supra note 34, at 1. 

66. Sally K. Fairfax, Beyond the Sagebrush Rebellion:  The BLM as Neighbor and Manager in 

the Western States, in WESTERN PUBLIC LANDS:  THE MANAGEMENT OF NATURAL RESOURCES IN A 

TIME OF DECLINING FEDERALISM 79, 88 (John G. Francis & Richard Ganzel eds., 1984). 



 

212 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

Figure 1:  Public Land Under BLM Management
67

 

 

 

The boundaries of the National Forest System cover approximately 

233 million acres of land in the United States, but nearly 40 million acres 

of it are not federally owned or administered by the Forest Service.
68

  In 

the West, where more than 75% of the Forest Service’s land is located, 

the Forest Service administers 90% of the land within the System’s 

boundaries, but it still contends with more than 15 million acres of non-

federal lands within the national forests there.
69

  Within the national 

forests in the Eastern United States, the federal government owns just 

over half of the land.
70

 

 

 

 

 

67. Public Lands Managed by the Bureau of Land Management (BLM), BUREAU OF LAND 

MGMT., http://www.blm.gov/or/about/images/landsmap-large.gif (last visited June 20, 2013). 

68. See FOREST SERV., supra note 34, at 1 (listing as located within the 232,895,585 acres of 

National Forest System boundaries 39,918,949 acres that are not federally owned or administered by 

the Forest Service). 

69. See id. (not including Alaska, the western regions of the National Forest System include 

145,534,164 acres of Forest Service land).  

70. See id.  Some eastern national forests are still composed of less than 30% federal land.  See 

id. at 12–13.  “These data for acreages of private land within boundaries of federal land units 

substantially understate the seriousness of the problem” because, in some cases, the land is “spread 

widely in relatively small tracts throughout the federal area” and, in others, because of “the 

separation of the titles to surface and subsurface resources.”  CLAWSON, supra note 38, at 233. 



 

2013] Missing the Forest and the Trees 213 

 

 

 

Figure 2:  Public Land Under Forest Service Management
71

 
 

 

III. THE LAND EXCHANGE:  AN IMPORTANT TOOL FOR A MORE 

CHALLENGING FUTURE 

The current federal landownership configuration is often perplexing 

and exasperating for federal land managers and users, adjacent 

landowners, and communities alike.
72

  The Agencies are burdened by the 

perpetual need to provide for and regulate both access across the federal 

lands for non-federal inholders and their own access across non-federal 

 

71. Guide to National Forests and Grasslands, FOREST SERV., http://www.fs.fed.us/maps/produ 

cts/guide-national-forests09.pdf (last visited June 20, 2013). 

72. See CLAWSON, supra note 38, at 230–36; Coggins & Lindberg-Johnson, supra note 35, at 3 

(in areas of checkerboarded lands, “it is next to impossible to manage the public lands successfully, 

for rangeland management cannot operate on a section-by-section basis”); Richard J. Fink, The 

National Wildlife Refuges:  Theory, Practice, and Prospect, 18 HARV. ENVTL. L. REV. 1, 77–82 

(1994).  See generally WILLIAM E. SHANDS, THE CONSERVATION FOUND., FEDERAL RESOURCE 

LANDS AND THEIR NEIGHBORS (1979); JOHN FREEMUTH, ISLANDS UNDER SIEGE:   NATIONAL PARKS 

AND THE POLITICS OF EXTERNAL THREATS (1991); OUR COMMON LANDS:  DEFENDING THE 

NATIONAL PARKS (David J. Simon ed., 1988). 



 

214 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

lands.
73

  The road and trail construction and use for such access is 

expensive and causes erosion, spreads invasive species, and adversely 

affects wildlife and their habitat, for example.
74

 

Development adjacent to federal lands impacts scenery, recreation, 

wildlife, noise levels, water and air quality, wildfire risk and costs, and 

other public values.
75

  Before they can cut a tree, trail, or fence-line near 

non-federal land, agency officials often have to commission an expensive 

survey to determine the exact boundaries of the non-federal land—an 

especially daunting task in country crisscrossed with mining claims.
76

  

The costs to the public of inholdings and convoluted landownership 

patterns is extensive, and the impacts are not borne by the Agencies 

alone, for the non-federal landowners often face many of the same 

challenges.
77

 

A.  A Potent Tool for Use and Abuse 

To reduce these many costs and impacts, the Agencies long have 

sought to acquire some of the most important inholdings and adjacent 

lands.  But acquisitions can be expensive amid increasingly tight 

budgets,
78

 and they sometimes raise concerns with local governments 

concerned about their tax base and with politicians and others concerned 

about the size and cost of managing the federal estate.
79

  At the same 

time, the Agencies administer some land that would make more sense in 

 

73. See generally, e.g., Leo Sheep Co. v. United States, 440 U.S. 668 (1979) (considering access 

across private land to public land); Mont. Wilderness Ass’n v. U.S. Forest Serv., 655 F.2d 951 (9th 

Cir. 1981) (holding that railroad corporation has legal right of access across Forest Service land to 

access its inholdings for logging, even across congressionally-protected wilderness study area); see 

also Bill Paul, Statutory Land Exchanges that Reflect “Appropriate” Value and “Well Serve” the 

Public Interest, 7 PUB. LAND & RESOURCES L. REV. 107, 111–12  (2006); Ragsdale, supra note 11, 

at 35–36. 

74. See Robert B. Keiter, Biodiversity Conservation and the Intermixed Ownership Problem:  

From Nature Reserves to Collaborative Processes, 38 IDAHO L. REV. 301, 304 (2002); George 

Cameron Coggins, Protecting the Wildlife Resources of National Parks from External Threats, 22 

LAND & WATER L. REV. 1, 7 (1987). 

75. See, e.g., SHANDS, supra note 72, at 14–29; Joseph L. Sax, Helpless Giants:  The National 

Parks and the Regulation of Private Lands, 75 MICH. L. REV. 239, 240, 267 (1976); Dennis L. 

Lynch & Stephen Larrabee, Private Lands Within National Forests:  Origins, Problems, and 

Opportunities, in THE ORIGINS OF THE NATIONAL FORESTS:  A CENTENNIAL SYMPOSIUM, 189, 210–

12 (Harold K. Steen ed., 1992). 

76. The BLM spent $12 million in fiscal year 2011 on cadastral surveys to support various 

projects.  BUREAU OF LAND MGMT., supra note 34, at 37. 

77. See, e.g., SHANDS, supra note 72, at 30–41. 

78. See GAO FLTFA REPORT, supra note 36, at 10–11 (discussing the declines in land 

acquisition funding for the Agencies). 

79. See, e.g., id. at 42. 



 

2013] Missing the Forest and the Trees 215 

non-federal ownership, including many parcels of federal land that are 

now isolated amid lands that were dispensed to homesteaders, miners, 

railroads, communities, and others.  Accordingly, with very limited 

funding to acquire land outright, “[e]xchanges have been the most 

commonly used approach to land acquisition by both the BLM and 

FS.”
80

 

Federal land exchanges can be relatively straightforward and 

noncontroversial transactions involving small amounts of land.  They 

also can be high-stakes, complex, and controversial transactions.
81

  At 

stake are billions of dollars of federal land eyed by private companies, 

individuals, and cities for subdivisions, mines, logging, vacation 

residences, local public uses, and more.
82

 

1.   The Use 

The Agencies characterize land exchanges as “discretionary, voluntary 

real estate transactions between the Federal and non-Federal parties.”
83

  

By its estimate, the Forest Service has some 100 different exchange 

authorities,
84

 but the basic statutory rules for both Forest Service and 

BLM land exchanges are found in Section 206 of FLPMA.
85

  From the 

federal perspective, the touchstone for any land exchange is whether “the 

 

80. See LAND ACQUISITION PLAN, supra note 36, at 36; see also H.R. REP. 99-743, pt. 1 (1986) 

(discussing the importance of land exchanges). 

81. Cf. GAO 2009, supra note 26, at 8 (“Completion times for land exchanges within this period 

[October 1, 2004, through June 30, 2008] varied widely, from about 2 months to more than 12 

years.”). 

82. See U.S. GEN. ACCOUNTING OFFICE, GAO/RCED-00-73, BLM AND THE FOREST SERVICE:  

LAND EXCHANGES NEED TO REFLECT APPROPRIATE VALUE AND SERVE THE PUBLIC INTEREST 11 

(2000) [hereinafter GAO 2000], available at http://www.gao.gov/assets/240/230398.pdf (the Forest 

Service completed 1265 exchanges valued at about $1.066 billion during fiscal years 1989 through 

1999). 

83. 36 C.F.R. § 254.3(a) (2013); 43 C.F.R. § 2200.0-6(a) (2013).  Congress can—and has—

limited the agencies’ discretion to carry out specific land exchanges.  See, e.g., GAO 2009, supra 

note 26, at 22–25.  The result is that, as the final evaluations and terms of the exchange are 

developed, the non-federal party retains complete discretion to reject the exchange if it is not in its 

interest, but the Agency—and the public thereby—does not. 

84. See Letter from Peter C. Myers, Deputy Sec’y, U.S. Dep’t of Agric., to Hon. J. Bennett 

Johnston, Chairman, Senate Comm. on Energy and Natural Res. (Mar. 24, 1988) in S. REP. NO. 100-

375, at 35, 37 (1988). 

85. With regard to the Forest Service, Section 206 technically provides supplementary authority 

and requirements that apply to the Forest Service’s other exchange authorities.  See 43 U.S.C. § 

1716(a) (2012) (“a tract of land or interests therein within the National Forest System may be 

disposed of by exchange by the Secretary of Agriculture under applicable law . . . .”); accord 

FOREST SERV., U.S. DEP’T OF AGRIC., FOREST SERVICE MANUAL 5470.11b (2003) (“[FLPMA] 

amends all exchange authorities by authorizing the Secretary to dispose of a tract of land or interests 

therein where the Secretary determines that such disposal would serve the public interest.”). 



 

216 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

public interest would be well served by making that exchange.”
86

  The 

market values of the federal land and non-federal land to be exchanged 

must also generally be equal.
87

 

To achieve these two foundational principles, however, land exchanges 

often must navigate a maze of analyses, reviews, and decisions.
88

  The 

process includes dozens of major steps, from preliminary screening, to 

detailed resource and environmental analyses, to conducting appraisals, 

to exchanging deeds
89

—though many exchange proposals never get that 

far in a process that can take many years to complete.
90

 

Despite their importance, the Agencies’ land exchange programs have 

all but ground to a halt in recent years.  The BLM’s exchange transaction 

rate was more than twenty times higher in the 1990s than during the 

period 2004 through 2008, and the Forest Service completed four times 

as many land exchanges annually during the 1990s.
91

  The Agencies cite 

the expense and complication as two of the primary disadvantages of the 

exchange process.
92

  During a three year period beginning in 2001, the 

 

86. 43 U.S.C. § 1716(a) (2012); see also 16 U.S.C. § 485 (2012) (Forest Service General 

Exchange Act authorizes the conveyance of national forest land reserved from the public domain in 

exchange for “an equal value” of non-federal land “[w]hen the public interests will be benefited 

thereby”); 16 U.S.C. § 516 (2012) (Weeks Act authorizes the exchange of national forest land for 

“not to exceed an equal value” of non-federal land “[w]hen the public interests will be benefited 

thereby”); cf. 16 U.S.C. § 3192(h)(1) (2012) (ANILCA authorizes the Secretaries to acquire certain 

land in Alaska through exchange “on the basis of equal value” or, if “the Secretary determines it is in 

the public interest, such exchanges may be made for other than equal value”). 

87. 43 U.S.C. § 1716 (b) (2012) (“The values of the lands exchanged . . . shall be equal, or if 

they are not equal, the values shall be equalized.”); see also supra note 86. 

88. See LAND ACQUISITION PLAN, supra note 36, at 12 (“Land exchanges by their very nature 

are complex transactions.”).  See generally Mark J. Blando, Note, Land Exchanges under the 

Federal Land Exchange Facilitation Act Department of Agriculture Forest Service, 1 ENVTL. LAW. 

327 (1994). 

89. See GAO 2009, supra note 26, at 7–8.  

90. See id. at 9 (noting that land exchange proposals were terminated “for various reasons, 

according to agency officials, including withdrawal of either party, changes in land values, legal 

action, and public opposition”); also id. at 14 (describing the length of time it took to complete 

various land exchanges); Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 

1058, 1075 (9th Cir. 2007) (reviewing land exchange proposed in 1989), cert. denied, 131 S. Ct. 

1783 (2011); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 803 (9th Cir. 1999) 

(reviewing land exchange initially negotiated in 1988); Lodge Tower Condo. Ass’n v. Lodge Props., 

Inc., 880 F. Supp. 1370, 1374 (D. Colo. 1995), aff’d, 85 F.3d 476 (10th Cir. 1996) (reviewing land 

exchange first proposed in 1983). 

91. See GAO 2009, supra note 26, at 16–17.  A substantial list of scandals during the 1990s also 

affected both the complexity of the land exchange process and, apparently, the Agencies’ interest in 

pursuing land exchanges.  See, e.g., GAO 2000, supra note 82, at 16–27; see also discussion infra 

Part III.A.2. 

92. See LAND ACQUISITION PLAN, supra note 36, at 27.  The administrative costs of exchanges 

“are typically approximately twice as much to accomplish as a normal purchase of a conservation 



 

2013] Missing the Forest and the Trees 217 

BLM spent nearly $33.5 million merely to process exchanges to acquire 

300,113 acres.
93

 

At the same time, the Agencies are presented with many more 

exchange proposals than they have resources to pursue.
94

  In part looking 

for the greatest return on their investment in the complex process, the 

Agencies now often dedicate their efforts to large, complex 

exchanges
95

—the ones that usually generate the most controversy and 

present the greatest procedural challenges.  It is an unfortunate irony that 

despite the need for heightened fiscal efficiency occasioned by tightening 

budgets, the Agencies cannot afford to pursue the very land exchanges 

that would provide those desperately needed efficiencies.  The problem 

is compounded by the growing need to confront the challenges 

associated with a changing climate, increasing use of our public lands, 

and increasing settlement in and around them, in part through more 

robust, effective, and efficient land exchange programs.
96

 

2. The Abuse 

In many cases, federal land exchanges have served the public interest 

well.  But the successful land exchanges rarely garner widespread public 

attention.  It is the many controversial land exchanges—and some 

scandalous ones—that often drive perception and, to a significant degree, 

policy. 

Unlike the historic land sale practices of the disposal era, the land 

exchange process requires not merely the acquiescence but the 

affirmative partnership of public officials charged with the public’s trust.  

One might reasonably expect, then, that the stronger agency role would 

 

easement or a fee title acquisition since both the disposal of lands and the acquisition of lands 

require review, analysis, and clearances to complete the transactions.”  Id. at 36; see also W. Land 

Exch. Project v. Dombeck, 47 F. Supp. 2d 1196, 1197 (D. Or. 1999) (reviewing Forest Service 

exchange that was initially suspended for lack of agency resources to conduct required analyses). 

93. See LAND ACQUISITION PLAN, supra note 36, at 14 (the cost does include some cash 

equalization payments, but does not include the value of the acquired lands). 

94. See, e.g., GAO 2009, supra note 26, at 17–18; A Guide to Land Exchanges on National 

Forest Lands, FOREST SERV., DEP’T OF AGRIC., http://www.fs.usda.gov/Internet/FSE_DOCUMENT 

S/fsbdev3_034082.pdf (last visited June 20, 2013) (“The National Forests receive many more land 

exchange proposals than it [sic] has the resources to accomplish.”); cf. Federal Land Exchange 

Facilitation Act of 1988, Pub. L. No. 100-409, § 4, 102 Stat. 1090 (1988) (authorizing additional 

appropriations “to ensure that there are increased funds and personnel available to the Secretaries of 

the Interior and Agriculture to consider, process, and consummate land exchanges pursuant to the 

Federal Land Policy and Management Act of 1976 and other applicable law”). 

95. See GEORGE DRAFFAN & JANINE BLAELOCH, COMMONS OR COMMODITY?  THE DILEMMA 

OF FEDERAL LAND EXCHANGES 13, 16 (2000). 

96. See, e.g., supra notes 9, 30 and accompanying text. 



 

218 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

insulate federal land exchanges from the abuses that were so prevalent 

during the land sale era.
97

  Unfortunately, the Agencies’ land exchange 

programs also have been afflicted by scandal.
98

  The dozens of 

investigations by the Government Accountability Office (“GAO”),
99

 the 

Inspectors General of the Interior and Agriculture Departments, and 

others have revealed an array of past land exchange practices that were 

illegal, maladroit, or unprincipled, including appraisals that fleeced 

taxpayers out of tens of millions of dollars and exchanges of federal land 

rich with natural and social resources in exchange for land that provided 

little or no public benefits.
100

 

The scandals are too numerous to recount here, but a few examples 

provide some context.  In one exchange, the non-federal party acquired 

seventy acres of federal land valued at $763,000 and sold it the same day 

for $4.6 million.
101

  In a series of three land exchanges in Nevada, the 

BLM failed to base its appraisals on credible evidence and conveyed 

public land for $8.8 million less than it was worth.
102

 

Some of the abuse has been directly related to the Agencies’ refusal to 

reserve interests in the land they conveyed.
103

  For example, a 1960 GAO 

 

97. See generally, e.g., PUTER, supra note 52 (recounting the abuses of the federal government’s 

land disposal programs). 

98. See BUYING NATURE, supra note 31, at 211–14; see also JANINE BLAELOCH, CARVING UP 

THE COMMONS:  CONGRESS & OUR PUBLIC LANDS (2009) (providing a perspective that Congress 

has abused the public interest in directing land exchanges).  

99. The name of the General Accounting Office was changed to the Government Accountability 

Office in 2004.  GAO Human Capital Reform Act of 2004, Pub. L. No. 108-271, 118 Stat. 811 

(2004). 

100. See GAO 2009, supra note 26, app. II at 74–75 (providing a partial list of recent reviews 

and audits of the BLM and Forest Service land exchange programs); see also Nicholas G. Vaskov, 

Continued Cartographic Chaos, Or A New Paradigm in Public Land Reconfiguration? The Effect of 

New Laws Authorizing Limited Sales of Public Land, 20 UCLA J. ENVTL. L. & POL’Y 79, 87–91 

(2001). 

101. See GAO 2000, supra note 82, at 19. 

102. See id. at 17. 

103. The opposite also is true, as the Agencies in some cases have conveyed land that was 

unnecessarily devalued by use restrictions.  See OFFICE OF INSPECTOR GEN., U.S. DEP’T OF THE 

INTERIOR, REP. NO. 96-I-1025, FINAL AUDIT REPORT ON NEVADA LAND EXCHANGE ACTIVITIES, 

BUREAU OF LAND MANAGEMENT 4–5 (1996), available at http://www.gpo.gov/fdsys/pkg/GPO-

DOI-IGREPORTS-96-i-1025/pdf/GPO-DOI-IGREPORTS-96-i-1025.pdf (reporting that the BLM 

conveyed land subject to an unused easement that resulted in a $3.8 million windfall to the 

purchaser); GAO 2000, supra note 82, at 21 (reporting that the Forest Service retained development 

rights at a cost of $29,000 on a portion of property with private recreation residences at the request 

of the private parties).  In another case illustrating the affect of locally-imposed use restrictions, the 

GAO found that the City of Phoenix went to great lengths to use its zoning authority to devalue 

significantly the very federal lands it was seeking to acquire by the exchange.  See U.S. GEN. 

ACCOUNTING OFFICE, GAO/GGD-92-42, LAND EXCHANGE:  PHOENIX AND COLLIER REACH 

AGREEMENT ON INDIAN SCHOOL PROPERTY 5, 12–13 (1992), available at http://www.gao.gov/asset 



 

2013] Missing the Forest and the Trees 219 

investigation found that a BLM land exchange shorted the government 

by about $120,000 because the BLM failed—despite warnings—to 

reserve an interest in the valuable federal mineral rights.
104

  A 1991 GAO 

audit of five land exchanges concluded:  “With regard to land transferred 

out of federal ownership, we found that only some of the land is 

currently being used and developed either as specified in the acts [of 

Congress] or as contemplated by the parties involved in the transfers.”
105

 

The scandals accumulated to the point that the GAO called on 

Congress “to consider directing both agencies to discontinue their land 

exchange programs.”
106

  While Congress did not act on the advice, the 

controversy nevertheless has put a spotlight on virtually every land 

exchange proposal that either Agency pursues.  In addition to the 

government auditors, there are also non-profit watchdog organizations 

that scrutinize every land exchange, often with the support of local 

interests that could be adversely affected. 

Land exchange proponents have also joined the fray.  Exchange 

proponents now often hire any of a number of law and consulting firms 

that specialize in obtaining desired federal land through the exchange 

process.
107

  They have brought many of the most controversial proposals 

to Congress in an effort to avoid the environmental analyses and public 

participation that otherwise would be required.
108

  One of the unfortunate 

results of the practice is that the associated controversy makes it more 

difficult for Congress to attend to less controversial—but not necessarily 

less important—public land business.
109

 

 

s/220/215562.pdf. 

104. See U.S. GEN. ACCOUNTING OFFICE, B-141343 (1960), available at http://www.gao.gov/pr 

oducts/B-141343#mt=e-report. 

105. See U.S. GEN. ACCOUNTING OFFICE, GAO/RCED-92-70BR, FEDERAL LANDS:  STATUS OF 

LAND TRANSACTIONS UNDER FOUR FEDERAL ACTS 2 (1991), available at http://www.gao.gov/ass 

ets/80/78273.pdf. 

106. GAO 2000, supra note 82, at 34. 

107. See, e.g., Lynne Bama, Wheeling and Dealing, HIGH COUNTRY NEWS, Mar. 29, 1999, at 1. 

108. See United States v. Renzi, 651 F.3d 1012, 1018 (9th Cir. 2011) (rejecting former 

Congressman Rick Renzi’s speech and debate clause defense against “48 criminal counts related to 

his land exchange ‘negotiations’ [while in Congress,] including public corruption charges of 

extortion, mail fraud, wire fraud, money laundering, and conspiracy.”), cert. denied, 132 S. Ct. 1097 

(2012); see also Jeremy Eyre, The San Rafael Swell and the Difficulties in State-Federal Land 

Exchanges, 23 J. LAND RESOURCES & ENVTL. L. 269 (2003); Amy Stengel, “Insider’s Game” or 

Valuable Land Management Tool?  Current Issues in the Federal Land Exchange Program, 14 TUL. 

ENVTL. L.J. 567, 593–95 (2001).  See generally BLAELOCH, supra note 98, at 12–21. 

109. See, e.g., Phil Taylor, In Final Hours, McCain Objected to Reid Package, Ski Area Bill, 

E&E DAILY (Dec. 23, 2010), http://www.eenews.net/public/EEDaily/2010/12/23/1. 



 

220 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

The courts are also increasingly involved.
110

  The maze of analyses, 

reviews, and decisions that the Agencies must navigate provides land 

exchange opponents ample opportunity to find shortcomings and take 

their objections to court.  Courts are aware of the scandals and have 

substantially increased their scrutiny of exchange cases.
111

 

B. Deeds, Patents, Covenants, and the Like 

As briefly discussed earlier, and as will be discussed in more detail 

later in this Article, restricting the future use of federal land conveyed by 

exchange can be an important tool not only to protect and promote the 

public interest, but also to provide the Agencies with efficiencies in the 

expensive, cumbersome, and perilous process of developing, evaluating, 

and defending land exchange proposals.
112

  The legal theory for doing so 

generally is a simple one:  a landowner—including the United States—

either can convey all of its rights to its land or it can retain some of its 

rights and convey others, thereby restricting or obliging future use of the 

land by the purchaser and subsequent owners. 

Under the Property Clause, the power of the United States to guide the 

future use of the lands it conveys is “without limitation,” as the Supreme 

Court explained in United States v. City and County of San Francisco: 

 

Article 4, Section 3, Cl. 2 of the Constitution provides that “The Congress 
shall have Power to dispose of and make all needful Rules and Regulations 
respecting the Territory or other Property belonging to the United States.”  
The power over the public land thus entrusted to Congress is without 
limitations.  “And it is not for the courts to say how that trust shall be 
administered.  That is for Congress to determine.”  Thus, Congress may 
constitutionally limit the disposition of the public domain to a manner 
consistent with its views of public policy . . . .

113
 

 

110. See GEORGE CAMERON COGGINS & ROBERT L. GLICKSMAN, 2 PUBLIC NATURAL 

RESOURCES LAW § 13:24 (2nd ed. 2012). 

111. See discussion infra Parts V–VI; see also Joseph L. Sax, The Public Trust Doctrine in 

Natural Resource Law:  Effective Judicial Intervention, 68 MICH. L. REV. 471, 521 (1970) 

(describing the public trust doctrine as “a name courts give to their concerns about the 

insufficiencies of the democratic process” when the transfer of public lands and resources are at 

stake).  See generally Charles F. Wilkinson, The Public Trust Doctrine in Public Land Law, 14 U.C. 

DAVIS L. REV. 269 (1980) (exploring the application of the public trust doctrine to federal public 

land management). 

112. See discussion infra Part VI. 

113. United States v. City & Cnty. of S.F., 310 U.S. 16, 29–30 (1940) (footnotes omitted) 

(quoting Light v. United States, 220 U.S. 523, 537 (1911)).  In City and County of San Francisco, 

Congress had granted San Francisco land and rights-of-way from Yosemite National Park and the 

Stanislaus National Forest for water supply and associated hydroelectric purposes.  The legislation 



 

2013] Missing the Forest and the Trees 221 

The legal framework generally does not require a precise 

understanding, but a brief explanation of a few terms is instructive.  First, 

the BLM and Forest Service convey federal land either by “patent” or 

“deed” (terms which are used synonymously herein).
114

  An “interest in 

land” is a right in land,
115

 and a landowner can “reserve” an interest in 

land in the deed when the owner conveys it to another party, thereby 

providing the prior owner an ongoing right to that land. 

Ongoing rights to conveyed land may take many forms.  Covenants 

can be used to ensure that the party to whom the land is conveyed will do 

or not do a particular act, and they can be formulated to apply to the 

particular purchaser or to all future owners of the parcel of land.
116

  For 

example, a “restrictive covenant” can be included in a deed to limit the 

amount of future development of the land to only one single-family 

dwelling, and an “affirmative covenant” can be included to require the 

new owner to actively mitigate some environmental impacts (for 

example, create defensible space from wildfires within 200 feet of the 

home). 

Easements, which allow one landowner to use another’s property,
117

 

may be reserved to allow the public to continue to use a trail that crosses 

property conveyed by the federal government, among other purposes.  A 

“conservation easement” (which also is sometimes generally referred to 

as a “conservation covenant” or a “conservation restriction”) can be 

reserved in a deed to limit development or otherwise protect the 

environmental and aesthetic values of the land.
118

 

 

provided that the hydroelectric power be publicly distributed and that if San Francisco ever 

attempted to “sell, assign, transfer, or convey, this grant shall revert to the Government of the United 

States.”  Raker Act, § 6, ch. 4, 38 Stat. 242.  The Court rejected the claim that the conditions 

unconstitutionally infringed on state powers:  “The statutory requirement that Hetch-Hetchy power 

be publicly distributed does not represent an exercise of a general control over public policy in a 

State but instead only an exercise of the complete power which Congress has over particular public 

property entrusted to it.”  City & Cnty. of S.F., 310 U.S. at 30; see also Hutchings v. Low (The 

Yosemite Valley Case), 82 U.S. (1 Wall.) 77 (1872) (invalidating California legislation conveying 

portions of the grant to settlers). 

114. Patents generally are used by the United States to convey land from the public domain, 

while deeds generally are used to convey land that the federal government has acquired from an 

entity other than a foreign sovereign.  Cf. FOREST SERV., DEP’T OF AGRIC., FOREST SERVICE 

HANDBOOK 5409.13 § 37.42 (2004) [hereinafter “FOREST SERVICE HANDBOOK”]. 

115. JOHN M. CARTWRIGHT, GLOSSARY OF REAL ESTATE LAW 490 (1972). 

116. A “covenant” is a formal agreement or promise that can be included in a deed.  See POWELL 

ON REAL PROPERTY § 60.01(2) (Michael Allan Wolf ed., 2013). 

117. See, e.g., RESTATEMENT (FIRST) OF PROPERTY § 450 (1944). 

118. The Uniform Conservation Easement Act defines “conservation easement” as “a 

nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the 

purposes of which include retaining or protecting natural, scenic, or open-space values of real 



 

222 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

This Article generally will use the term “use restriction” to broadly 

refer to these and other legal tools that the Agencies can use to guide the 

future use of the federal land they convey by exchange. 

IV.  THE FEDERAL LAND POLICY AND MANAGEMENT ACT 

From the affirmative settlement requirements that settlers had to meet 

to prevent reversion of their homestead to the federal government, to the 

explicit authority to reserve easements and other rights to land in early 

land exchange statutes, Congress has long sought to guide the future use 

of the lands it has conveyed to promote particular settlement and 

development policies.
119

  Traditionally, use restrictions took the form of 

rights-of-way and reservations of minerals and timber.
120

 

As new legal tools evolved to guide the use of private land, and as 

populations around federal lands boomed during the mid-twentieth 

century, interest in the appropriate role of the federal government in 

guiding the development of non-federal lands grew.  At the same time, 

growing communities throughout the West were anxious to secure 

federal land for development.  Congress responded in 1964 by chartering 

a commission to make recommendations regarding the federal policies 

relating to the retention, management, and disposition of federal lands.
121

  

In this dynamic environment, the Public Land Law Review Commission 

laid the groundwork for the passage of FLPMA and its provisions that 

govern the use of restrictions in federal land exchanges. 

A. The Public Land Law Review Commission 

The Public Land Law Review Commission (“Commission”) submitted 

its report to Congress in 1970.  The report—entitled “One Third of the 

Nation’s Land”—endorsed the general principle that state and local 

governments should regulate uses of privately owned land.
122

  But it also 

recognized that many local authorities had not adopted—and likely 

 

property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting 

natural resources, maintaining or enhancing air or water quality, or preserving the historical, 

architectural, archaeological, or cultural aspects of real property.”  NAT’L CONF. OF COMM’RS. OF 

UNIFORM ST. LAWS, UNIFORM CONSERVATION EASEMENT ACT § 1(1) (1981). 

119. See BRUCE BABBITT, CITIES IN THE WILDERNESS:  A NEW VISION OF LAND USE IN 

AMERICA 5 (2005). 

120. See, e.g., General Exchange Act, Pub. L. No. 67-173, ch. 105, 42 Stat. 465 (1922) 

(authorizing the Forest Service to “make reservations of timber, minerals, or easements”). 

121. Act of Sept. 19, 1964, Pub. L. No. 88-606, 78 Stat. 982 (1964). 

122. PUB. LAND LAW REVIEW COMM’N, ONE THIRD OF THE NATION’S LAND 61 (1970). 



 

2013] Missing the Forest and the Trees 223 

would not adopt—adequate land use planning regulations.
123

  

Accordingly, it recommended that if federal lands were to be disposed of 

in areas that lacked such appropriate controls, “the agencies should be 

directed to include covenants in the patent, designed to service the same 

protective function of the site and nearby land as state or local 

zoning.”
124

  Where federal land values were implicated, the Commission 

recommended an even stronger federal role: 

 

[W]e recommend the use of such covenants to protect important values on 
public lands in the vicinity of such disposals. . . .  Thus, if disposals are 
made in . . . an area which has been retained and set aside for another 
important public value (i.e., watershed protection or scenic preservation), 
the patents should contain restrictions on use, designed to protect such 
values.  This practice should be employed without regard to whether state 
or local zoning regulations are in force.

125
 

 

It also recommended that use restrictions be implemented as 

reversionary interests whenever federal land was sold for less than fair 

market value.
126

 

The report—including in particular its broad view of the Agencies’ 

role in using restrictions and guiding the future use of conveyed federal 

land—became the explicit foundation for the efforts of the 

Administration and Congress to expand the Agencies’ land exchange 

authority in FLPMA.
127

 

 

123. See id. at 61, 266. 

124. Id. at 266.  Noting that permanent restrictions could be problematic in such circumstances, 

it encouraged such restrictions to be “only for a reasonable length of time” to minimize enforcement 

obligations and to provide an opportunity for state and local governments to adopt land use 

regulations better suited to changing circumstances.  Id. 

125. Id. at 266–67. 

126. Id. at 266.  The expansiveness of the Commission’s recommendations in these regards is 

remarkable given that the Commission misread the growing public interest in retaining public lands 

and protecting the environment.  See HAROLD K. STEEN, THE U.S. FOREST SERVICE:  A HISTORY 

320 (Centennial ed. 2004); DANA & FAIRFAX, supra note 54, at 233.  The conservation community 

was broadly critical of the report as taking a narrow view of the public interest.  See, e.g., NATURAL 

RES. COUNCIL, WHAT’S AHEAD FOR OUR PUBLIC LANDS?  A SUMMARY REVIEW OF THE ACTIVITIES 

AND FINAL REPORT OF THE PUBLIC LAND LAW REVIEW COMMISSION 103 (1970). 

127. See S. COMM. ON ENERGY AND NATURAL RES., WORKSHOP ON PUBLIC LAND ACQUISITION 

AND ALTERNATIVES, S. PUB. NO. 97-34, at 301 (Comm. Print 1981) (statement of D. Michael 

Harvey, Chief Counsel for the Minority, Senate Comm. on Energy and Natural Res.) (“Let me just 

say that going back through the history of the revision of the exchange laws, it really started with the 

report of the Public Land Law Review Commission.”). 



 

224 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

B.   The Administration’s Approach 

During the Commission’s deliberations, “[a] strong movement 

emerged espousing direct federal control of private lands.”
128

  

Responding to that movement in August of 1970, President Nixon 

delivered a message to Congress calling for a “National Land Use 

Policy”: 

 

The time has come when we must accept the idea that none of us has the 
right to abuse the land, and that on the contrary society as a whole has a 
legitimate interest in proper land use.  There is a national interest in 
effective land use planning all across the nation.

129
 

 

The following year, the White House issued a report expounding on 

the Administration’s views: 

 

The traditional local zoning system is ill suited to protect broader regional, 
State, and national values.  Local governments have a limited perspective 
on and little incentive to protect scenic or ecologically vital areas located 
partially or even entirely within their borders.  Economic pressures often 
spur development to the detriment of the environment because of local 
government dependence on property taxes. 

 

Local land use regulation alone, therefore, cannot deal effectively with 
many of today’s environmental problems . . . .

130
 

 

The Administration thereafter developed a legislative proposal, 

including strong language requiring the Secretary of the Interior to 

impose restrictions on the future use of federal land conveyed by 

exchange or otherwise, and President Nixon took the unusual step of 

formally urging its passage by Congress.
131

 

 

128. DANA & FAIRFAX, supra note 54, at 266. 

129. President Richard Nixon, Message to the Congress Transmitting the First Annual Report of 

the Council on Environmental Quality, in GOV’T PRINTING OFFICE, ENVIRONMENTAL QUALITY:  

THE FIRST ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY, TOGETHER WITH THE 

PRESIDENT’S MESSAGE TO CONGRESS xii–xiii (1970), available at http://www.presidency.ucsb.edu/ 

ws/?pid=2618. 

130. GOV’T PRINTING OFFICE, ENVIRONMENTAL QUALITY:  THE SECOND ANNUAL REPORT OF 

THE COUNCIL ON ENVIRONMENTAL QUALITY 61 (1971). 

131. The Administration’s proposal (entitled the National Resources Land Management Act of 

1971) was introduced by Senator Jackson on August 3, 1971, by request.  See S. 2401, 92nd Cong. 

(1971); S. REP. NO. 92-1163, at 14 (1972) (by request).  Section 9(b) of the bill provided:  “The 

Secretary shall insert in any patent or other documents of conveyance he issues under this Act such 



 

2013] Missing the Forest and the Trees 225 

C.   The 94
th
 Congress’s Approach 

Senator Henry “Scoop” Jackson, then Chairman of the Senate 

Committee on Energy and Natural Resources and a member of the 

Commission, introduced a bill based on the Commission’s and 

Administration’s recommendations.
132

  The Committee explained the 

bill’s sale and exchange section: 

 

This section implements three PLLRC recommendations: Recommendation 
No. 24 states that “Federal land administering agencies should be 
authorized to protect the public land environment by (1) imposing 
protective covenants in disposal of public lands, and (2) acquiring 
easements on nonfederal land adjacent to public lands”.  Recommendation 
No 117 proposes that “. . . covenants in Federal deeds should be used to 
protect public values”, and recommendation No. 118 adds that “protective 
covenants should be included in Federal deeds to preserve important 
environmental values on public lands in certain situations, even where State 
or local zoning is in effect”.

133
 

 

The Senate passed the bill on a vote of seventy-eight to eleven.
134

 

The House bill, which was introduced subsequent to the Senate’s 

passage of Senator Jackson’s bill, also looked to the Commission’s 

report and included many similar provisions.
135

  In conference, the text of 

the earlier bills’ exchange provisions ended up jumbled in three sections, 

with the primary exchange authority in Section 206.
136

  That Section 

authorized both the BLM and the Forest Service to enter into an 
 

terms, covenants, and conditions as he deems necessary to insure proper land use, environmental 

integrity, and protection of the public interest.” 

132. S. REP. NO. 94-583, at 36 (1975).  The bill and subsequent versions of it included the 

Administration’s language regarding terms, covenants, and conditions, and the Committee on 

Interior and Insular Affairs emphasized the mandatory nature of the provision:  “In issuing 

conveyances under this Act, the Secretary must include those conditions . . . .”  S. REP. NO. 92-1163, 

at 17 (1972) (emphasis added).  The Committee explained that the provision was intended “to insure 

proper land use and to protect the public interest.  Such provisions could include, inter alia, 

covenants running with the land, conditions precedent or subsequent, reverters and reversions.”  S. 

REP. NO. 94-583, at 49 (1975). 

133. S. REP. No. 94-583, at 50. 

134. 122 CONG. REC. 4423 (1976).  

135. H.R. 13777, 94th Cong. (1976).  Congressman Aspinall actively promoted reform 

legislation shortly after the Commission issued its report.  Unlike Senator Jackson, he initially 

developed a bill that looked more to the broad principles of intergovernmental relations advocated 

by the Commission than the text of the Administration’s proposal.  See H.R. 7211, 92nd Cong. 

(1971); H.R. REP. NO. 92-1306, at 19–20 (1972) (explaining that H.R. 7211 was an effort to translate 

some of the Commission’s recommendations into law).  The Administration opposed Aspinall’s bill.  

See H.R. REP. NO. 92-1306, at 69. 

136. See 43 U.S.C. § 1716 (2012); see also id. §§ 1715, 1718. 



 

226 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

exchange of “land or interests therein” if they found that the “public 

interest would be well served by making that exchange.”
137

 

While the effort to enact a national land use planning law was 

unsuccessful, it strongly influenced the development of FLPMA, starting 

with the Commission’s report and carrying through enactment.  Indeed, 

some early observers feared that FLPMA’s federal land use planning 

provisions would result in “a de facto national land use planning and 

zoning process in the West.”
138

  Noting that “[f]ederal agencies have long 

yielded to the temptation to use whatever devices are at their disposal 

when their views run contrary to private or local government plans,” one 

contemporaneous article predicted that the BLM’s “greater presence in 

[state and local] land use planning and development would discourage 

frequent use of the BLM’s power to sell or exchange,” as such methods 

might no longer be necessary to achieve the Agency’s concerns 

regarding the use of nearby private lands.
139

 

D. The Agencies’ Implementation 

The Forest Service first published implementing regulations for 

FLPMA’s land exchange authority in 1978,
140

 clearly stating that the 

Agency “will reserve rights or retain interests that are needed for the 

public interest” when conveying land by exchange.
141

  When the BLM 

proposed its regulations in 1980, they also explicitly called for “any 

reservations, terms, covenants and conditions necessary to insure proper 

land use and protection of the public interest” to be identified as part of 

the determination to exchange lands.
142

  When the Agencies later revised 

their exchange regulations, they confirmed that “[c]ovenants and 

restrictions may be developed to protect any number of public 

 

137. 43 U.S.C. § 1716(a).   

138. Anderson, supra note 33, at 695 (internal quotation marks omitted). 

139. Id. at 696–97. 

140. Implementation of Procedures, 43 Fed. Reg. 24,830 (June 8, 1978). 

141. Id. at 24,831. The regulations also provided for other “terms and conditions which each 

party agrees to perform” as part of an exchange.  See id. at 24,832.  In 1981, the Forest Service 

explained before the Senate Committee on Energy and Natural Resources that “one aspect of 

FLPMA . . . is that you can exchange lands or interests in lands, and we have considered the 

exchange of title to property surrounded by ranches for an easement on that ranch and retain an 

easement in the property that is exchanged . . . .  [I]t is a means of acquiring that control where you 

do not need fee simple title.”  S. COMM. ON ENERGY AND NATURAL RES., supra note 127, at 409 

(statement of Vernon L. Lindholm, Assistant Dir. of Lands, Forest Serv., Dep’t of Agric.). 

142. Public Lands; Exchanges; Proposed Procedures, 45 Fed. Reg. 41,860, 41,864 (June 20, 

1980) (proposed 43 C.F.R. § 2200.1(c)(4)). 



 

2013] Missing the Forest and the Trees 227 

interests.”
143

  The Agencies also recognized that “[a]lthough reservations 

or restrictions may place burdens on the Federal and non-Federal parties, 

the effect of reservations or restrictions will be considered by each party 

prior to a decision to proceed.”
144

 

The Agencies’ current regulations mandate: 

 

In any exchange, the authorized officer shall reserve such rights or retain 
such interests as are needed to protect the public interest or shall otherwise 
restrict the use of Federal lands to be exchanged, as appropriate.  The use or 
development of lands conveyed out of Federal ownership are subject to any 
restrictions imposed by the conveyance documents and all laws, 
regulations, and zoning authorities of State and local governing bodies.

145
 

 

However, contrary to early expectations of, and more recent calls for, 

expansive implementation of the Agencies’ use restriction authority,
146

 

the Agencies’ internal policy directives increasingly have disfavored use 

restrictions, and agency decision makers use restrictions very sparingly 

as a result.
147

  The BLM’s handbook directs that “[p]atent and deed use 

restrictions, covenants, and reservations should be kept to the absolute 

 

143. Exchanges—General Procedures, 58 Fed. Reg. 60,904, 60,908 (Nov. 18, 1993); see also 

Land Exchanges, 59 Fed. Reg. 10,854, 10,858 (Mar. 8, 1994) (“Covenants and restrictions may be 

developed to protect any Federal interests, including cultural resources . . . .”). 

144. Exchanges—General Procedures, 58 Fed. Reg. 60,904, 60,907 (Nov. 18, 1993).  A nearly 

identical statement was made by the Forest Service.  Land Exchanges, 59 Fed. Reg. 10,854, 10,858 

(Mar. 8, 1994). 

145. 36 C.F.R. § 254.3(h) (2013); 43 C.F.R. § 2200.0-6(i) (2013). 

146. See supra notes 138-39 and accompanying text; GAO ACQUISITION REPORT, supra note 29, 

at v (“In summary, alternatives to full-title acquisition, such as easements, zoning, and other Federal 

regulatory controls, are feasible and could be used by Federal agencies where appropriate.”); 

SHANDS & HEALY, supra note 58, at 184; Anderson, supra note 33, at 695–97; Ragsdale, supra note 

11 (arguing that the Forest Service’s public interest obligations and use restriction authority call for 

the Agency to take an active role in private land use and community development through the land 

exchange process); cf. BABBITT, supra note 119, at 6 (“[T]here is . . . a considerable body of law that 

can and, in my view, should be used toward enhanced federal leadership in land use planning and 

preservation.”); NAT’L RESEARCH COUNCIL, supra note 31, at 10, 211 (recommending that the land 

management agencies should increase their efforts to promote conservation on private land through 

easements and related mechanisms). 

147. The dichotomy between the Agencies’ formal interpretations of their authorities and their 

reluctance to use the authority in practice was identified in a lengthy investigation of the Agencies’ 

land acquisition practices by the Comptroller General in 1970.  The resulting report found that, 

despite formal policies encouraging the use of alternatives to land acquisition (such as zoning and 

easements), “land managers at the project level are very reluctant to use alternatives.”  GAO 

ACQUISITION REPORT, supra note 29, at 22; see also id. at 13, 23, 33, 42 n.1, 48, 156; accord 

SHANDS & HEALY, supra note 58, at 216. 



 

228 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

minimum and used only where needed to protect the public interest.”
148

  

The handbook’s mandatory direction to line officers
149

 goes on to state 

that, “[i]n general, mitigation in the form of deed restrictions on Federal 

land conveyed into non-Federal ownership should only be used where 

required by law or executive order, clearly supported by the 

environmental documentation and closely coordinated with the Field or 

Regional Solicitor.”
150

  The effect is to all but prohibit use restrictions in 

most cases other than where the federal land is contaminated by 

hazardous waste or where necessary to limit development of wetlands or 

floodplains.
151

 

Similarly, the Forest Service manual establishes that the Agency’s 

overarching policy with regard to restrictions is to “dispose of land with 

as few reservations and outstanding rights as possible.”
152

  While the 

manual does recognize that restrictions may be necessary to comply with 

applicable law, to provide for access to federal lands, and in a number of 

 

148. BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, H-2200-1, LAND EXCHANGE 

HANDBOOK ch. I.G.2.d. (2005) [hereinafter BLM HANDBOOK], available at http://www.blm.gov/pgd 

ata/etc/medialib/blm/wo/Information_Resources_Management/policy/blm_handbook.Par.72089.File

.dat/h2200-1.pdf; accord id. at ch. II.E.2.c. 

149. The “instructions provided in this handbook are mandatory unless otherwise indicated.”  

Manual Transmittal Sheet from Thomas Lonnie, Assistant Dir., Minerals, Realty & Resource Prot. 

(Dec. 16, 2005), available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resourc 

es_Management/policy/blm_handbook.Par.72089.File.dat/h2200-1.pdf. 

150. BLM HANDBOOK, supra note 148, at ch. 6.E.  The handbook correctly recognizes the fact 

that “[t]he regulations under 43 CFR 2200.0-6(i) provide that the public interest may be protected 

through the use of reserved rights or interests in the Federal land” and that “[e]nvironmental 

mitigation in the form of reserved Federal rights or interests should be evaluated for appropriateness 

as part of analysis of alternatives in the environmental documentation,” but the statements do 

nothing but state legal facts and do not qualify the earlier direction in the manual.  Id.  

151. Executive Order 11,988 requires the Agencies, in disposing of federal land through 

exchange or otherwise, to “design or modify its action in order to minimize potential harm to or 

within the floodplain” and “attach other appropriate restrictions to the uses of properties by the 

grantee or purchaser and any successors, except where prohibited by law.”  Exec. Order No. 11,988, 

§§ 2(a)(2)(i), 3(d)(2), 3 C.F.R. 117 (1978), reprinted as amended in 42 U.S.C. § 4321 app. at 5232, 

5332–33 (2012).  The Department of the Interior’s Field Solicitor has interpreted the requirement as 

permitting disposal when “[t]he patent contains restrictions and conditions that ensure the patentee 

can maintain, restore, and protect the wetlands on a continuous basis.”  See Mendiboure Ranches, 

Inc., 90 IBLA 360, 367 (1986).  Executive Order 11,990 provides for the protection of wetlands in 

the disposition of federal land.  See Exec. Order No. 11,990, § 1(a), 3 C.F.R. 121 (1978), reprinted 

as amended in 42 U.S.C. § 4321 app. at 5233 (2012).  “When Federally-owned wetlands or portions 

of wetlands are proposed for lease, easement, right-of-way or disposal to non-Federal public or 

private parties, the Federal agency shall . . . (b) attach other appropriate restrictions to the uses of 

properties by the grantee or purchaser and any successor, except where prohibited by law . . . .”  Id. § 

4.  Agency compliance with Executive Orders 11,988 and 11,990 is subject to judicial review.  See, 

e.g., City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1166–67 (9th Cir. 2005). 

152. FOREST SERV., U.S. DEP’T OF AGRIC., FOREST SERVICE MANUAL 5470.3 (2003). 



 

2013] Missing the Forest and the Trees 229 

other circumstances,
153

 an internal memorandum to line officers flatly 

states:  “Do not propose or agree to restrictive covenants on the Federal 

lands unless they are required to comply with legal, regulatory 

requirements, executive orders (i.e. wetlands or floodplains, cultural) or 

to meet Land and Resource Management Plan objectives.”
154

  Line 

officers have read the direction as precluding use restrictions except in 

the rare case that it is “necessary to protect critical Federal interests” and 

that the Agency “has neither the legal authority nor responsibility to 

substitute deed restrictions for local zoning controls.”
155

  Based on this 

direction and the culture it has established, most line officers involved 

with land exchanges state that they simply “can’t” or “won’t” include use 

restrictions in carrying out an exchange.
156

 

The ongoing disconnect between congressional intent and agency 

authority, on the one hand, and agency policy and practice, on the other, 

is apparent in more recent legislation as well.  For example, in 2005, 

Congress authorized the Forest Service to convey administrative sites by 

sale or exchange and to use the proceeds of such conveyances for other 

facilities.
157

  The 2005 law provided that, “[i]n conveying an 

administrative site under this title, the Secretary may reserve such right, 

title, and interest in and to the administrative site as the Secretary 

determines to be necessary.”
158

 

However, concern over the Forest Service’s constrained 

implementation of the reservation authority led Congress to amend the 

law in 2009 to mandate that such conveyances “shall be subject to such 

 

153. The manual provides that “[i]n all disposals of National Forest System land or interests in 

land, it is essential to reserve those interests and rights-of-way necessary to comply with laws and 

regulations, to permit removal of reserved resources, to protect interests reserved in such documents 

as conservation easements, and to provide access to National Forest System lands” and that, “in 

addition to reservations, it may be necessary to apply specific limiting conditions to manage 

effectively or to protect National Forest System lands and resources.”  Id. at 5473. 

154. Memorandum from James R. Furnish, Deputy Chief, Forest Serv., to Regional Directors 

with Lands Program Responsibilities (Oct. 14, 1999) [hereinafter Furnish Memorandum] (on file 

with author) (quoted in Davis Land Exchange; White River National Forest; Colorado, 65 Fed. Reg. 

42,982, 42,983–84 (July 12, 2000) [hereinafter Keys Decision]). 

155. Keys Decision, 65 Fed. Reg. at 42,982.  Similar statements can be found in numerous other 

Forest Service documents.  See, e.g., Furnish Memorandum, supra note 154, at 2; Memorandum 

from David A. Anderson, Appeal Reviewing Officer, U.S.D.A. Forest Serv., to Appeal Deciding 

Officer (Dec. 3, 1999) (“Forest Service direction indicates that deed restrictions are to be imposed in 

rare occasions when necessary to protect critical Federal interests.”), available at 

http://www.fs.fed.us/r2/projects/nepa/appeal-decisions/2000/psicc/big_union_01.html. 

156. Paraphrasing numerous personal conversations with the author. 

157. Forest Service Facility Realignment and Enhancement Act of 2005, Pub. L. No. 109-54, tit. 

V, 119 Stat. 559. 

158. Id. § 504(a)(3). 



 

230 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

terms, conditions, and reservations as the Secretary determines to be 

necessary to protect the public interest.”
159

  The amendment also directed 

the Agency to specifically evaluate whether to include terms, conditions, 

and reservations in the environmental analyses for proposed 

conveyances.
160

 

V.  JUDICIAL REVIEW 

Given the myriad unique factors and ever-changing circumstances that 

must be considered in developing and approving a land exchange, 

Congress has delegated broad authority to the Forest Service and BLM to 

develop and approve land exchanges when they determine “that the 

public interest will be well served.”
161

  Land exchanges inherently 

require a balancing of the costs and benefits associated with the land to 

be conveyed by the Agencies and those associated with the land to be 

acquired.
162

  While there have been some land exchange proposals that 

collapsed primarily because the land to be acquired by the federal 

government would provide little benefit to the public,
163

 it is the disposal 

of the federal land that more frequently causes trouble, usually as a result 

of a perception of unacceptably high or uncertain costs to the public 

interest.
164

 

Accordingly, it is critical for the Agencies to have an understanding of 

how the land they convey is likely to be used in the future.  Without such 

an understanding, the Agencies may not be able to reasonably evaluate or 

mitigate the impacts of the exchange on the environment and on historic 

 

159. See Omnibus Appropriations Act of 2009, Pub. L. No. 111-8, div. E, tit. IV, § 422(2), 123 

Stat. 748 (emphasis added). 

160. See id. 

161. 43 U.S.C. § 1716(a) (2012). 

162. See id. (authorizing exchanges where “the Secretary concerned finds that the values and the 

objectives which Federal lands or interests to be conveyed may serve if retained in Federal 

ownership are not more than the values of the non-Federal lands or interests and the public 

objectives they could serve if acquired”). 

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

(remanding land exchange for failure to adequately consider the impacts of disposal, noting that the 

lands acquired by the Forest Service “were, for the most part, heavily logged and roaded”); GAO 

2000, supra note 82, at 20 (questioning the benefits of some land exchange acquisitions).  A land 

exchange also could collapse primarily because of the high costs associated with the land to be 

acquired by the Agencies (e.g. hazardous waste), but the Agencies have a strong institutional 

incentive to avoid such exchanges. 

164. The public interest benefits of conveying federal land are not irrelevant.  For example, the 

Agencies’ high costs of administering isolated tracts of federal land can be eliminated through 

exchanges and future uses of the disposed federal land may provide economic or social benefits for 

affected communities. 



 

2013] Missing the Forest and the Trees 231 

and cultural resources; they may struggle to determine the value of the 

federal land; and, ultimately, they may struggle to determine whether 

“the public interest will be well-served by making that exchange.”
165

  But 

by including restrictions, the Agencies can more accurately and 

confidently determine the future use of the land they convey, and doing 

so can have substantial benefits not only for the public interest, but also 

for the efficiency of the Agencies’ processes and their ability to defend 

them in court. 

A.  Evaluating the Impacts of Disposal 

Agencies generally are required to evaluate and mitigate the impact of 

a proposed land exchange on a wide range of public interests, including 

the environment, historic and cultural resources, and threatened and 

endangered species.  NEPA provides a procedural foundation for 

conducting such evaluations, and it has been a primary source of the 

challenges—legal, financial, and temporal—that the Agencies face in 

pursuing and successfully completing land exchanges.
166

 

The key provision of NEPA that applies to land exchanges is Section 

102, which directs the Agencies to analyze the environmental impacts of 

all “major Federal actions significantly affecting the quality of the human 

environment.”
167

  Specifically, for such actions, the Agencies must 

prepare a “detailed statement . . . on—(i) the environmental impact of the 

proposed action, (ii) any adverse environmental effects which cannot be 

avoided should the proposal be implemented, [and] (iii) alternatives to 

the proposed action.”
168

  In carrying out their responsibilities under 

NEPA, the Agencies are obliged to “[u]se the NEPA process to identify 

and assess the reasonable alternatives to proposed actions that will avoid 

or minimize adverse effects of these actions upon the quality of the 

human environment” and “[u]se all practicable means . . . . [to] avoid or 

minimize any possible adverse effects of their actions upon the quality of 

 

165. 43 U.S.C. § 1716(a) . 

166. Cf. Denise M. Keele et al., Forest Service Land Management Litigation:  1989–2002, 104 J. 

FORESTRY 196, 200 (2006) (reporting that 68.6% of all land management litigation against the 

Forest Service is premised on NEPA). 

167. 42 U.S.C. § 4332(2)(C) (2012).  The NEPA regulations define “affecting” as “will or may 

have an effect on.”  40 C.F.R. § 1508.3 (2013). 

168. 42 U.S.C. § 4332(2)(C).  The Agencies can evaluate the potential environmental effects of a 

land exchange by preparing a “concise” document called an “environmental assessment” (“EA”).  40 

C.F.R. § 1508.9.  If the EA reveals that the exchange is not likely to result in a significant 

environmental impact, the NEPA evaluation is complete.  If, on the other hand, it reveals that the 

exchange may result in significant environmental impacts, a more thorough evaluation must be 

conducted in the form of an “environmental impact statement.”  See id. §§ 1501.3, 1501.4. 



 

232 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

the human environment.”
169

  Accordingly, the analysis must consider 

effects on threatened and endangered species and their habitats, 

wetlands, and scientific, historic and cultural resources, among others.
170

 

The purpose of the analysis is not only to ensure that the Agencies take 

a “hard look” at the environmental consequences of their actions, but 

also to provide relevant information and analyses to stakeholders that 

may play a role in the decision-making or implementation process.
171

  

“[I]t is now well settled that NEPA itself does not mandate particular 

results, but simply prescribes the necessary process.”
172

 

The Agencies generally view NEPA compliance in the context of land 

exchanges as burdensome and fraught with uncertainty and risk, which is 

understandable given the fiscal and legal challenges that NEPA poses.
173

  

The Forest Service spends about $250 million per year conducting 

environmental analyses for its various land management decisions,
174

 and 

each environmental impact statement (“EIS”) takes the Agency an 

average of 2.7 years to complete.
175

  Furthermore, an inadequate 

environmental assessment (“EA”) or EIS can cost significantly more as a 

result of administrative appeals, litigation, and required supplemental 

analyses.  Partly as a result, agency officials often do not have the 

resources to even consider pursuing some potentially beneficial 

exchanges.
176

 

 

169. 40 C.F.R. § 1500.2; see also id. § 1502.14(f) (agency shall “rigorously explore and 

objectively evaluate all reasonable alternatives,” including “appropriate mitigation measures”); id. § 

1502.16(h) (agency discussion of environmental consequences shall discuss means to mitigate any 

adverse environmental impacts); id. § 1508.25(b) (agency shall consider alternative(s) which include 

mitigation measures in defining the scope of analysis); id. § 1508.20 (defining “mitigation”). 

170. See 40 C.F.R. § 1508.27(b). 

171. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349–50 (1989); see also 

Shoshone-Bannock Tribes of the Fort Hall Reservation v. U.S. Dep’t of the Interior, No. 4:10-CV-

004, 2011 WL 1743656, at *11 (D. Idaho May 3, 2011) (emphasizing the importance of NEPA to 

public participation and rejecting the BLM’s argument that arrangements to evaluate the impacts of a 

land exchange outside of the NEPA process are sufficient). 

172. Robertson, 490 U.S. at 350. 

173. See generally U.S.D.A. FOREST SERV., THE PROCESS PREDICAMENT:  HOW STATUTORY, 

REGULATORY, AND ADMINISTRATIVE FACTORS AFFECT NATIONAL FOREST MANAGEMENT (2002), 

available at http://www.fs.fed.us/projects/documents/Process-Predicament.pdf. 

174. U.S. GEN. ACCOUNTING OFFICE, GAO/RCED-97-71, FOREST SERVICE DECISION-MAKING:  

A FRAMEWORK FOR IMPROVING PERFORMANCE 28 (1997), available at http://www.gao.gov/assets/ 

160/155845.pdf. 

175. Piet deWitt & Carole A. deWitt,  How Long Does It Take to Prepare an Environmental 

Impact Statement?, 10 ENVTL. PRAC. 164, 168 (2008). 

176. GAO 2009, supra note 26, at 17–18. 



 

2013] Missing the Forest and the Trees 233 

The National Historic Preservation Act (“NHPA”),
177

 the Endangered 

Species Act (“ESA”),
178

 the Archaeological Resources Protection Act,
179

 

and other laws impose complementary requirements to evaluate and 

mitigate the impacts of a proposed exchange on historic, cultural, and 

natural resources.  For example, the NHPA mandates that the Agencies 

“take into account the effect” of a land exchange on significant historic 

and cultural resources.
180

  In doing so, they have an affirmative 

responsibility to try to identify those resources and to avoid, minimize, or 

mitigate any adverse effects on them.
181

  The NHPA regulations 

specifically state that the “[t]ransfer, lease, or sale of property out of 

Federal ownership or control without adequate and legally enforceable 

restrictions or conditions to ensure long-term preservation of the 

property’s historic significance” qualify as an adverse effect.
182

 

The acquisition of land by the Agencies rarely will have a significant 

adverse impact on the environment or historic resources.
183

  However, 

the impacts of conveying federal land to a non-federal party who may 

undertake a new use clearly may, and evaluating those impacts is no 

doubt one of the most complicated—and important—requirements of 

complying with NEPA and related laws in the context of land exchanges. 

While the Agencies initially hoped they could consummate exchanges 

without examining the environmental consequences associated with the 

future use of conveyed federal land, courts routinely have required them 

to do so.
184

  NEPA requires the Agencies to evaluate not only the 

potential “direct effects” of a proposed “Federal action,” but also the 

reasonably foreseeable “indirect effects”
185

 and “cumulative impact”
186

 

 

177. 16 U.S.C. §§ 470–470t (2012). 

178. Id. §§ 1531–1544. 

179. Id. §§ 469–469c. 

180. Id. § 470(f) (NHPA Section 106); see also id. § 470(a)(1)(A) (NHPA Section 101). 

181. See 36 C.F.R. §§ 800.4–800.6 (2013). 

182. Id. § 800.5(a)(2)(iv). 

183. Indeed, the Forest Service has determined that acquisition of land or interests in land does 

not have a significant effect on the environment and therefore generally may be categorically 

excluded from NEPA analysis.  See 36 C.F.R. § 220.6(d)(6) (“Examples include but are not limited 

to:  (i) Accepting the donation of lands or interests in land to the NFS, and (ii) Purchasing fee, 

conservation easement, reserved interest deed, or other interests in lands.”); accord Sabine River 

Auth. v. U.S. Dep’t of the Interior, 951 F.2d 669, 680 (5th Cir. 1992).  The acquisition of land can, 

however, play a critical role in mitigating any environmental effects of the disposal. 

184. See, e.g., Nat’l Forest Pres. Grp. v. Butz, 485 F.2d 408, 411 (9th Cir. 1973) 

(“Defendants . . . ‘doubt’ whether any [environmental impact] statement was required at all . . . .”); 

discussion infra Parts V.B–C, VI.A. 

185. 42 U.S.C. § 4332(2)(C) (2012); 40 C.F.R. §§ 1502.16, 1508.8(b) (2013) (defining the term 

“effects” as including both “direct effects” and “indirect effects, which are caused by the action and 

are later in time . . . , but are still reasonably foreseeable”). 



 

234 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

of the federal action—including those resulting from the future use of the 

federal land.
187

 

B.   National Forest Preservation Group v. Butz 

The seminal case on this matter is National Forest Preservation Group 

v. Butz, which rejected the notion that “the mere shuffling of titles could 

have no significant impact on the environment”:  “While the federal 

defendants are not themselves planning to take action ‘significantly 

affecting the quality of the human environment,’ 42 U.S.C. § 

4332[(2)](C), the private defendants plan such action, and the exchange 

is an act without which such action could not be taken.”
188

 

Looking to the Public Land Law Review Commission’s conclusion 

that the public has important interests in the “proper use of land sold by 

the Federal Government” and its recommendation that the Agencies 

include deed restrictions on future uses of the land if necessary to protect 

those interests,
189

 the court went further: 

 

Nor would compliance with NEPA be excused by the ignorance of the 
federal authorities prior to the exchange of the plans the private party may 
have for the land he will receive.  The short answer is that Congress has 
imposed an affirmative duty on the federal party to the exchange to receive 
assurances of the plans of the private developer prior to the exchange.

190
 

 

186. See 40 C.F.R. § 1508.7 (2013) (“Cumulative impact is the impact on the environment which 

results from the incremental impact of the action when added to other past, present, and reasonably 

foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes 

such other actions.”). 

187. The requirement to evaluate the impacts of a land conveyance attaches even where—unlike 

the case of the Forest Service and BLM—an agency is statutorily barred from restricting the future 

use of the land.  See Conservation Law Found. v. Gen. Servs. Admin., 707 F.2d 626, 633 (1st Cir. 

1983) (holding that the General Services Administration must evaluate site-specific development 

plans—even if speculative—in determining if a federal land conveyance would have a significant 

adverse effect on the environment and is in the public interest, even though it lacks authority to 

impose restrictions on future use of that land). 

188. Butz, 485 F.2d at 411; see also Kleppe v. Sierra Club, 427 U.S. 390, 400 (1976) 

(recognizing that BLM and Forest Service actions that allow private actions to occur at some point 

must be analyzed).  The NEPA regulations (which were issued more than five years after the Butz 

decision) are in accord, stating that the term “[m]ajor Federal action includes actions . . . which are 

potentially subject to Federal control and responsibility.”  40 C.F.R. § 1508.18; accord National 

Environmental Policy Act—Regulations, 43 Fed. Reg. 55,978, 56,004 (Nov. 28, 1978).  The impacts 

of issuing title to federal land are “potentially subject to Federal control and responsibility” not only 

because the Agencies can refuse to consummate an exchange, but also because they can control the 

non-federal purchaser’s use of the federal parcel through restrictions. 

189. See Butz, 485 F.2d at 412; see also discussion supra Part IV.A (discussing the relevant 

recommendations and conclusions of the Public Land Law Review Commission). 

190. Butz, 485 F.2d at 412.   



 

2013] Missing the Forest and the Trees 235 

 

Other courts have put some outside limits on the Agencies’ duty to 

determine and evaluate the non-federal party’s future plans for the land 

they receive in an exchange.  For example, the Agencies need not 

consider the impacts from subsequent purchasers’ activities that were not 

foreseeable at the time of the analysis.
191

  The Agencies are not required 

to evaluate a “worst-case” development scenario,
192

 although doing so 

may overcome uncertainty regarding the environmental impacts of future 

development.
193

  The Agencies can also properly rely on state and local 

regulations and likely zoning in forecasting future development,
194

 but 

they must “take the requisite ‘hard look’ at well-recognized scenarios 

that would potentially deviate from” the standard state or local regulation 

and zoning forecast.
195

 

Fundamentally, the touchstone is whether the future use of the federal 

land is “reasonably foreseeable,” rather than “highly speculative.”
196

  

When information regarding future development is incomplete or 

unavailable, yet “essential to a reasoned choice among alternatives and 

the overall costs of obtaining it are not exorbitant,” the Agency has a 

responsibility to obtain and evaluate the information for an EIS.
197

  If it 

cannot, it must use “theoretical approaches or research methods” to 

evaluate impacts.
198

  As one might imagine, evaluating indirect effects 

and the cumulative impact of an exchange is difficult and complex.  This 

 

191. See Lockhart v. Kenops, 927 F.2d 1028, 1035 (8th Cir. 1991) (stating that when conducting 

an exchange, the Forest Service “need not consider the possible impact of use by hypothetical 

subsequent purchasers. Once the land passes into private hands, later sales are no longer subject to 

NEPA”). 

192. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354–56 (1989). 

193. See, e.g., Lodge Tower Condo. Ass’n v. Lodge Props., Inc., 880 F. Supp. 1370, 1384 (D. 

Colo. 1995) (finding that the Forest Service’s NEPA analysis was sufficient where it assumed a 

more intensive use of the conveyed federal land than was likely to actually occur), aff’d, 85 F.3d 476 

(10th Cir. 1996). 

194. See id. 

195. See, e.g., City of Williams v. Dombeck, 151 F. Supp. 2d 9, 21 (D.D.C. 2001) (zoning 

ordinance prohibiting groundwater use during construction on exchanged federal land did not excuse 

the Forest Service from taking a hard look at the possible impacts from surface water use during 

construction or from surface and groundwater use after construction); Greer Coal., Inc. v. U.S. 

Forest Serv., No. CV 06-0368-PHX-MHM, 2007 WL 675954, at *4 (D. Ariz. Mar. 1, 2007); see 

also id. at *6 (“the Forest Service must not only look at the development scenario it believes most 

applicable, but also other reasonably foreseeable scenarios with potentially differing environmental 

impacts”). 

196. 40 C.F.R. § 1508.8(b) (2013); Robertson, 490 U.S. at 356. 

197. 40 C.F.R. § 1502.22(a); see Shoshone-Bannock Tribes of the Fort Hall Reservation v. U.S. 

Dep’t of the Interior, No. 4:10-CV-004, 2011 WL 1743656, at *9–10 (D. Idaho May 3, 2011). 

198. 40 C.F.R. § 1502.22(b)(4). 



 

236 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

complexity makes the analyses ripe for legal challenges.  But the 

Agencies possess the tools to limit—even eliminate—the uncertainty, 

complexity, and vulnerability of such analyses by limiting the potential 

future uses of the land they convey. 

C.  Muckleshoot Indian Tribe v. U.S. Forest Service 

Muckleshoot Indian Tribe v. U.S. Forest Service illustrates the value of 

use restrictions and the potential consequences of ignoring them.
199

  The 

case involved a large land exchange with the Weyerhaeuser Corporation 

to consolidate checkerboarded land in Washington’s Mt. Baker-

Snoqualmie National Forest.
200

  Negotiations began in the mid-1980s, 

and the Forest Service issued an EIS for the exchange in 1996 that 

included a no action alternative and two exchange alternatives.
201

 

The Forest Service ultimately settled on a modified alternative that, 

among other things, removed an important tribal site from the 

conveyance to Weyerhaeuser.
202

  In 1998, the Forest Service conveyed 

4362 acres comprised mostly of old growth forest—including portions of 

the National-Register-eligible Huckleberry Divide trail and other sites 

that were historically and culturally important to the Muckleshoot Indian 

Tribe
203

—subject to a reservation of a portion of any future royalties 

Weyerhaeuser might receive from mineral development.
204

  In exchange, 

Weyerhaeuser conveyed 30,253 acres “that were, for the most part, 

heavily logged and roaded,” and donated nearly 2000 acres to the Forest 

Service.
205

 
 

199. 177 F.3d 800 (9th Cir. 1999). 

200. Id. at 803; see also discussion supra Part II.A, C (describing the railroad land grants and the 

land management problems created by the resulting checkerboard of landownership). 

201. Muckleshoot, 177 F.3d at 803.  One alternative proposed transferring 6273 acres comprised 

primarily of old growth forest in exchange for 32,010 acres of mostly cut-over Weyerhaeuser land.  

In the second exchange alternative, Weyerhaeuser would retain the mineral rights to the land 

transferred to the Forest Service, but would donate approximately 2000 acres of its land to the Forest 

Service.  See id. at 804 n.1.   

202. See id. at 804.  The final decision removed approximately 1600 acres from the conveyance 

to Weyerhaeuser and made a few other modifications to the second exchange alternative.  See id. at 

804 n.2.  Included in the 1600 acres was land around Mule Springs, a sacred site for the 

Muckleshoot.  See id.; see also Randel Hanson & Giancarlo Panagia, Acts of Bureaucratic 

Dispossession:  The Huckleberry Land Exchange, the Muckleshoot Indian Tribe, and Rational(ized) 

Forms of Contemporary Appropriation, 7 GREAT PLAINS NAT. RESOURCES J. 169, 183, 185–86 

(2002). 

203. The trail is “an important tribal ancestral transportation route.”  Muckleshoot, 177 F.3d at 

807; see also Hanson & Panagia, supra note 202, at 185–90 (describing the cultural and religious 

importance of the sites). 

204. See Muckleshoot, 177 F.3d at 804. 

205. Id. 



 

2013] Missing the Forest and the Trees 237 

The court rejected the adequacy of the EIS on multiple grounds, in 

significant part focusing on the fact that the Forest Service did not 

adequately consider using deed restrictions to avoid the adverse impacts 

of the exchange on natural and cultural resources.  The court held that the 

Forest Service failed to meet its obligations under the NHPA to minimize 

the effects of the exchange on the historically and culturally important 

features of the Huckleberry Divide Trail.
206

  The court faulted the Forest 

Service for rejecting an easement or covenant to address the adverse 

effects that Weyerhaeuser’s foreseeable logging operations would have 

on the trail, noting that the NHPA regulations “suggest that when federal 

land with historic properties is sold or transferred, this ‘adverse effect’ 

becomes ‘not adverse’ if adequate restrictions or conditions are included 

to preserve the property’s significant historic features.”
207

 

The court also rejected the Forest Service’s EIS because it failed to 

evaluate a reasonable range of alternatives, pointing out that the Agency 

refused to fully consider an alternative that “would have placed deed 

restrictions on the land traded to Weyerhaeuser, requiring that the lands 

be managed under National Forest Service standards, rather than 

allowing Weyerhaeuser to log the land pursuant to the less stringent 

standards of Washington state law.”
208

  Relying on the Agency’s 

regulations stating that the Forest Service “shall reserve such rights or 

retain such interests as are needed to protect the public interest or shall 

otherwise restrict the use of Federal lands to be exchanged, as 

appropriate,”
209

 the court held that “[a] detailed consideration of a trade 

involving deed restrictions or other modifications to the acreage involved 

is in the public interest and should have been considered.”
210

  Lastly, the 

court held that the Forest Service failed to adequately analyze the 

foreseeable environmental impacts of Weyerhaeuser’s future logging 

operations on the watershed and other natural resources in the area.
211

 

On remand, the Agency had to start again with exchange negotiations, 

scoping, public comment, and drafting a supplemental and then final 

 

206. Id. at 808.  The Forest Service instead had proposed to map and photograph the trail.  Id. 

207. See id. at 813 n.6 (citing 36 C.F.R. § 800.9(c)(3)); see also id. at 808–809.  The Forest 

Service argued that it would be “too expensive and impractical to monitor Weyerhaeuser’s land 

practices,” and while the court specifically did not decide whether those reasons were valid, it left 

the Agency with virtually no choice but to devise protections for the historic resources.  Id. at 808–

09. 

208. Id. at 813. 

209. 36 C.F.R. § 254.3(h) (1999); accord 36 C.F.R. § 254.3(h) (2013). 

210. 177 F.3d at 814. 

211. Id. at 814. 



 

238 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

supplemental EIS that fully considered the use restrictions.
212

  More than 

twenty years after the beginning of the exchange negotiations, and seven 

years after it originally issued its EIS, the Forest Service decided to buy 

back from Weyerhaeuser (for $6 million) about 750 acres of old growth 

forest and portions of the historically and culturally important trail, along 

with a 400-foot protective easement for other portions of the trail that 

were conveyed to Weyerhaeuser.
213

  The outcome was remarkably 

similar to an alternative it had rejected earlier, in part because it did not 

want to bear the cost of reserving a protective easement for the trail.
214

 

The significant financial, institutional, and political expense of the 

Huckleberry Exchange litigation and resulting reparations could have 

been avoided had the Forest Service fully considered and included use 

restrictions in the first place.  Whether Muckleshoot will come to be 

relied on as a broadly applicable precedent or distinguished as the 

product of “‘very rare’ circumstances,”
215

 the case is a striking 

illustration of how effective use restrictions could be in successfully 

implementing a land exchange.  An easement or covenant protecting the 

trail and some of the natural resources not only would have served the 

public interest and saved tax payers $6 million, but also likely would 

have satisfied the court that the Agency had mitigated any adverse 

effects, adequately considered a reasonable range of alternatives, and 

disclosed the (substantially reduced) environmental impacts. 

VI.  USING RESTRICTIONS TO NAVIGATE THE LAND EXCHANGE 

PROCESS, ADMINISTRATIVE REVIEW, AND THE COURTS 

The Butz and Muckleshoot cases illustrate the need for and potential 

power of use restrictions when evaluating and defending land exchanges.  

This Part summarizes how use restrictions can help the Agencies to more 

successfully and efficiently navigate the key elements of the land 

 

212. Hanson & Panagia, supra note 202, at 193–201 (detailing the background and response to 

the litigation). 

213. See Hanson & Panagia, supra note 202, at 195.  The final supplemental EIS stated that 

“[n]o timber harvest, road construction, or motorized use would occur within the trails easement.”  

Id. at 200. 

214. Id. at 201 n.267. 

215. City of Sausalito v. O’Neill, 386 F.3d 1186, 1208 (9th Cir. 2004) (explaining that 

Muckleshoot’s holding requiring the Forest Service to analyze an alternative that would require 

legislative action was the result of the “‘very rare’ circumstances” in that case); cf. Letter from 

Gloria Manning, Appeal Deciding Officer, U.S.D.A. Forest Serv., to Christopher J. Krupp, W. Land 

Exch. Project (Apr. 8, 2002) (distinguishing the Muckleshoot case, but nevertheless upholding an 

appeal of a land exchange calling for consideration of use restrictions), available at http://www.fs.fe 

d.us/land/staff/appeals/2002/021300_0001.htm. 



 

2013] Missing the Forest and the Trees 239 

exchange process, including evaluating impacts under NEPA and similar 

statutes, conducting appraisals, and determining the public interest. 

A.  Successfully Complying with NEPA and Related Laws 

The complexity of complying with NEPA, the ESA, the NHPA, and 

related laws when processing a land exchange will often hinge on 

identifying and evaluating the impact of the reasonably foreseeable uses 

of the land that the federal agency is considering conveying.  But as a 

result of the Agencies’ policies that strongly discourage use restrictions, 

the Agencies miss opportunities to make compliance with such laws less 

complicated, expensive, and vulnerable to legal attack.
216

  For example, 

in the context of NEPA, the strategic use of such restrictions can be 

critical tools for accomplishing the following successfully:  (1) 

identifying and evaluating the reasonably foreseeable indirect effects; (2) 

mitigating impacts on the environment, endangered species, and historic 

and cultural resources; (3) limiting and narrowing the range of 

alternatives that must be considered; (4) identifying and evaluating the 

cumulative impact; and (5) using categorical exclusions.  Although not 

described here in any length, similar analyses would demonstrate the 

value of use restrictions in complying with the ESA, the NHPA, and 

related laws. 

1.  Indirect Effects 

By restricting the future use of exchanged federal land, the Agencies 

can substantially narrow the range and intensity of the indirect effects of 

a land exchange, thereby reducing the complexity of the required 

analysis and—as the Muckleshoot case illustrates—the risk that it will be 

judged inadequate.
217

  The Lyneta Ranches land exchange in California 

provides another useful example.  The BLM proposed to convey 8322 

acres of public lands that were scattered among private lands owned by 

Lyneta Ranches in exchange for 5243 acres of private lands located 

 

216. Cf. U.S. GEN. ACCOUNTING OFFICE, supra note 174, at 4 (identifying the “inadequate 

attention that the Forest Service has given to improving the process” as a key cause of the Agency’s 

inefficiencies in complying with NEPA). 

217. Unless a use restriction forecloses any effects, the Agencies must still analyze the reduced 

effects.  See, e.g., City of Williams v. Dombeck, 151 F. Supp. 2d 9, 21 (D.D.C. 2001) (“To say the 

use of this water is ‘limited’ [by a covenant to use during emergencies] does not suffice as a ‘hard 

look’ at the amount of groundwater which is likely to be used during emergencies, nor does it 

provide an analysis of the impact of the use of that water upon the environment.”). 



 

240 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

among larger blocks of public lands.
218

  The BLM’s EA for the exchange 

only evaluated a no action alternative and the proposed exchange.
219

 

The BLM land was subject to frequent flooding, however, and a 

number of neighbors objected to the exchange because they were 

concerned that potential private development of the land would displace 

floodwaters onto their own neighboring land.
220

  The BLM responded to 

those concerns by conducting a hydrologic study, which concluded that 

floodwater displacement could be mitigated through engineered 

mitigation measures on the BLM land.
221

  The study also identified the 

potential for adverse impacts to wetlands.
222

 

Lyneta Ranches responded to these findings with a plan to implement 

a number of engineered measures to mitigate the potential for floodwater 

displacement.
223

  At the same time, the BLM decided to impose two deed 

restrictions, both of which were mandated by executive orders to protect 

floodplains and wetlands.
224

  The first deed restriction required Lyneta 

Ranches to either maintain the existing wetlands or implement specific 

measures to mitigate wetland impacts.  The second limited development 

in the floodplain to agricultural uses.  However, the BLM did not require 

Lyneta Ranches to implement any of the engineered mitigation measures 

that the hydrologic study had discussed or that Lyneta Ranches had 

volunteered to address potential floodwater displacement.
225

 

On administrative appeal, the BLM’s consideration of the impacts of 

the exchange on wetlands (which had been mitigated with a deed 

restriction) was found to be sufficient.
226

  Fortuitously, a challenge to the 

Agency’s evaluation and consideration of the likely impacts of potential 

future development on wildlife habitat was also rejected because the 

deed restriction protecting those wetlands happened to have sufficiently 

limited the potential for adverse impacts to wildlife habitat.
227

 

 

218. See Mendiboure Ranches, Inc., 90 IBLA 360, 360 (1986). 

219. See id. at 361. 

220. See id. at 361–62. 

221. See id. at 363. 

222. See id. at 367–68. 

223. See id. at 362. 

224. See id. at 363; see also supra note 151 (describing the executive orders). 

225. See Mendiboure Ranches, 90 IBLA at 360.  The restrictions, which were published in the 

Federal Register, cited both the executive orders and Section 206 of FLPMA.  Realty Action; 

Exchange of Public Lands; Lassen and Modoc Counties, CA; Correction, 49 Fed. Reg. 50,792, 

50,792 (Dec. 31, 1984). 

226. See Mendiboure Ranches, 90 IBLA at 370–71. 

227. See id. at 371 (“By providing for the maintenance of a wetlands area of at least 320 acres 

through a patent restriction, BLM has taken measures to protect wildlife within the selected lands.”); 

see also City of Williams v. Dombeck, 151 F. Supp. 2d 9, 19–21 (D.D.C. 2001) (covenant limiting 



 

2013] Missing the Forest and the Trees 241 

However, the unanimous panel found that Executive Order 11,988
228

 

required more specific protections for the floodplains and that the 

Agency had neither ensured that the floodplain values would be 

protected nor evaluated the potential benefits of the engineered measures 

that were proposed to mitigate the impacts on those values.
229

  As a 

result, the panel remanded the case “with directions to evaluate the 

effects of the proposed exchange on the floodplain . . . and to prepare an 

appropriate restriction in the deed of conveyance delineating measures 

for floodplain preservation.”
230

 

By using restrictions in the Lyneta Ranches exchange, the BLM 

successfully narrowed the potential indirect effects of the exchange to the 

point that its evaluation and mitigation of impacts on wetlands and 

wildlife was upheld.  Had the BLM also included a restriction requiring 

Lyneta Ranches to implement the engineered floodplain mitigation 

measures that already had been identified and proposed, it likely would 

have succeeded in complying with NEPA and the executive orders with a 

hydrologic study and a simple environmental assessment that included 

only one action alternative.
231

 

2. Mitigation 

Mitigating the impacts of agency actions is a key purpose of NEPA 

and a requirement of the NHPA, the ESA, and other federal laws and 

policies.
232

  The Agencies would benefit from seriously considering use 

restrictions as part of land exchanges not only as a potential requirement 

for complying with such laws, but also as an opportunity to make 

compliance less costly and uncertain. 

While NEPA technically does not impose an obligation on the 

Agencies to actually mitigate the adverse environmental impacts of an 

 

future groundwater use on exchanged land to emergencies obviated analysis of groundwater impacts 

from non-emergency use). 

228. See supra note 151. 

229. See Mendiboure Ranches, 90 IBLA at 369–70. 

230. Id. at 370. 

231. Courts understandably have been skeptical about relying on the stated intentions of 

purchasers, especially when it comes to mitigating environmental impacts.  See infra note 237. 

232. See supra notes 169–80 and accompanying text; see also discussion supra Part V.C 

(discussing the Muckleshoot case).  Section 7 of the ESA generally requires the Agencies to avoid 

and minimize the effects (direct and indirect) of “any action authorized, funded, or carried out by” 

the Agencies (together with the cumulative effects of future state and private actions) that may 

“jeopardize the continued existence of any endangered species or threatened species or result in the 

destruction or adverse modification of habitat of such species.”  See, e.g., 16 U.S.C. § 1536(b)(3)(A) 

(2012); 50 C.F.R. §§ 402.02, 402.14 (2013). 



 

242 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

exchange (their charge is merely to identify, analyze, consider, and 

explain),
233

 the case law amply demonstrates the peril of failing to take 

reasonable steps to mitigate impacts.  A land exchange is likely to be 

controversial if its impacts are ignored, and any court that is skeptical of 

the public interest merits of an exchange has ample opportunity to 

confine the Agency in the labyrinth of the NEPA process.
234

 

NEPA does impose a concrete requirement to undertake a detailed EIS 

whenever a land exchange may potentially have significant 

environmental effects.
235

  The Agencies can avoid the significant 

additional time, expense, and risks that accompany preparing an EIS if 

they commit to avoiding or mitigating those effects with use restrictions.  

By doing so, they can comply with NEPA by completing a shorter and 

less complex EA and issuing a finding of no significant impact 

(“FONSI”)—a process is known as a “mitigated FONSI.”
236

  The 

Council on Environmental Quality’s guidance emphasizes that a 

mitigated FONSI is appropriate “when the NEPA process results in 

enforceable mitigation measures” and “an agency commits to perform or 

ensure the performance of them.”
237

  Accordingly, use restrictions 

provide a solid basis for a mitigated FONSI.
238

 
 

233. See discussion supra Part V.A; see also Robertson v. Methow Valley Citizens Council, 490 

U.S. 332, 350–51 (1989); 40 C.F.R. § 1505.2(c) (“[Agencies must s]tate whether all practicable 

means to avoid or minimize environmental harm from the alternative selected have been adopted, 

and if not, why they were not.”).  But see Grindstone Butte Project v. Kleppe, 638 F.2d 100, 103 (9th 

Cir. 1981) (“[I]n exercising discretion to impose terms and conditions upon rights-of-way granted 

over federal lands, the Secretary must comply with NEPA’s mandate to protect the environment.”). 

234. See, e.g., Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999); San 

Luis Valley Ecosystem Counsel v. U.S. Forest Serv., 2007 WL 1463855, at *10 (D. Colo. May 17, 

2007). 

235. See supra note 168 (describing responsibility and citing authorities for preparing an EIS). 

236. See id.  See generally Memorandum from Nancy H. Sutley, Council on Env’tl Quality, 

Appropriate Use of Mitigation and Monitoring the Appropriate Use of Mitigated Findings of No 

Significant Impact (Jan. 14, 2011), available at http://ceq.hss.doe.gov/current_developments/docs/ 

Mitigation_and_Monitoring_Guidance_14Jan2011.pdf. 

237. Sutley, supra note 236, at 7 & n.18.  Relying on statements of intention by the non-federal 

party to an exchange, for example, is not likely to pass muster, as there remains a high degree of 

uncertainty whether the mitigation will be carried out and effective.  See, e.g., Nat’l Wildlife Fed’n, 

82 IBLA 303, 315 (1984) (rejecting proposed land exchange justified in part on stated intentions of 

the purchaser:  “The intentions of the potential owner, whoever that might be, do not ensure proper 

land use and protection of the public interest, however.  What is the remedy for the public if the land 

is conveyed and the owner or his grantee sodbusts the entire acreage?  Clearly, without some 

reservation in the deed there is none.  Assurances of the potential owner do not ensure proper land 

use and protection of the public interest.  The State Director should have studied the possibility of 

proposing conditions or covenants to guarantee protection of wildlife and recreational values in the 

land.”); Shoshone-Bannock Tribes of the Fort Hall Reservation v. U.S. Dep’t of the Interior, No. 

4:10-CV-004-BLW, 2011 WL 1743656 (D. Idaho May 3, 2011) (rejecting an EA for a land 

exchange where the state agency retained the right to approve a waste disposal plan for the 



 

2013] Missing the Forest and the Trees 243 

To illustrate, in Shasta Resources Council v. Department of the 

Interior, the BLM proposed a land exchange that would have disposed of 

property along a creek that a biological assessment determined contained 

“marginal” habitat for salmon and steelhead trout.
239

  Nevertheless, the 

California Department of Fish and Game was “concerned that future 

development [of the Federal Parcel would] mobilize and deposit 

sediment in the spawning gravel placed at the Salt Creek and Sacramento 

River confluence.”
240

  To mitigate these potential effects on the stream, 

the BLM took the uncommon step of imposing a covenant on the federal 

land that prohibited development within a certain distance from the 

stream and limited bridge construction over it.  The court upheld the 

BLM’s EA and FONSI, finding that “[a]lthough BLM acknowledged 

that development on the Federal Parcel may pose some risk to Salt Creek 

fisheries, the agency took steps to mitigate this risk through mandatory 

setback covenants and consultation with other expert agencies.”
241

 

3.  Range of Alternatives 

The “heart” of an environmental analysis is the evaluation of 

alternatives to the proposed action.
242

  The Agencies are required to 

evaluate “all reasonable alternatives,” or at least a reasonable range of 

them.
243

  An EA need only contain “brief discussions” of alternatives and 

their impacts, while an EIS must “rigorously explore” alternatives and 

 

exchanged land and the EA concluded that future effects of waste disposal were too uncertain to 

analyze in detail); Greer Coal., Inc. v. U.S. Forest Serv., No. CV 06-0368-PHX-MHM, 2007 WL 

675954 (D. Ariz. Mar. 1, 2007) (rejecting Forest Service land exchange EA where the Forest Service 

relied on local zoning and the non-federal party’s stated intention not to develop the land, in part 

because local zoning suffered from a loophole that allowed for adverse environmental effects on 

groundwater); W. Land Exch. Project v. Bureau of Land Mgmt., 315 F. Supp. 2d 1068, 1092–94 (D. 

Nev. 2004) (holding that a mitigated FONSI for land disposal was inadequate where mitigation 

measures were merely a commitment to develop a plan). 

238. See Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1121 (9th Cir. 

2000) (upholding mitigated FONSI where, even though a mitigation plan was not completely 

developed, the Army Corps included conditions in its permit requiring approval of the mitigation 

plan based on preexisting standards before any development could occur). 

239. 629 F. Supp. 2d 1045, 1064 (E.D. Cal. 2009). 

240. Id. (alteration in original). 

241. Id. at 1066; see also supra Part VI.A.1 (discussing the Lyneta Ranch Exchange, 

Mendiboure Ranches, Inc., 90 IBLA 360 (1986)). 

242. 40 C.F.R. § 1502.14 (2013); accord Forty Most Asked Questions Concerning CEQ’s 

National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026, 18,028 (Mar. 16, 1981). 

243. See, e.g., 40 C.F.R. § 1502.14; Natural Res. Def. Counsel v. Morton, 458 F.2d 827, 834–38 

(D.C. Cir. 1972); City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 

1997). 



 

244 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

their impacts.
244

  In either case, the wider the range of alternatives that 

must be considered and analyzed, the greater the potential for increased 

costs, complexity, and litigation risk associated with the Agency’s 

environmental analysis. 

The Agencies should “[u]se the NEPA process to identify and assess 

the reasonable alternatives to proposed actions that will avoid or 

minimize adverse effects of their actions upon the quality of the human 

environment.”
245

  Accordingly, whenever the reasonably foreseeable 

future use of federal land may have significant adverse impacts on the 

environment, the Agencies must evaluate one or more alternatives that 

include use restrictions to mitigate those impacts,
246

 even if they 

ultimately reject them.
247

 

However, beyond the Agencies’ black letter responsibility to evaluate 

use restriction alternatives, the Agencies can benefit from strategically 

employing them to successfully narrow the range of alternatives that 

must be considered.
248

  The range of alternatives the Agencies must 

consider narrows as the scope and intensity of the environmental impacts 

of the proposed action become less substantial.
249

  Thus, by using 

restrictions to reduce or mitigate the environmental impacts associated 

with future development of conveyed federal land (as discussed 

above),
250

 the Agencies can narrow the range of alternatives they must 

analyze. 

 

244. 40 C.F.R. §§ 1508.9(b), 1502.14(a). 

245. Id. § 1500.2(e). 

246. See Id. § 1502.14 (“agencies shall . . . (f) Include appropriate mitigation measures not 

already included in the proposed action or alternatives”); see also supra Part V.C (discussing the 

Muckleshoot case). 

247. See, e.g., Greer Coal., Inc. v. U.S. Forest Serv., No. CV 06-0368-PHX-MHM, 2007 WL 

675954, at *6 (D. Ariz. Mar. 1, 2007) (Forest Service’s consideration of range of alternatives that 

included use restrictions was adequate, even though the Agency ultimately rejected those 

alternatives); cf. Shasta Res. Council v. U.S. Dep’t of the Interior, 629 F. Supp. 2d 1045, 1053–54 

(E.D. Cal. 2009) (BLM not required to conduct detailed study of easements and deed restriction 

alternative where their use would be inconsistent with the resource management plan, would not 

demonstrably further the Agency’s policies, and would be unlikely to be implemented).  After all, 

“NEPA merely prohibits uninformed—rather than unwise—agency action.”  Robertson v. Methow 

Valley Citizens Council, 490 U.S. 332, 351 (1989).  It should be kept in mind, however, that 

“unwise” agency action still may be subject to review in the context of FLPMA’s public interest 

determination.  See discussion infra Part VI.C. 

248. Cf. U.S.D.A. FOREST SERV., supra note 173 (discussing the difficulties involved in 

determining a reasonable range of alternatives). 

249. See, e.g., Sierra Club v. Espy, 38 F.3d 792, 803 (5th Cir. 1994); Earth Island Inst. v. U.S. 

Forest Serv., 697 F.3d 1010, 1021–23 (9th Cir. 2012). 

250. See supra Part VI.A.1–2. 



 

2013] Missing the Forest and the Trees 245 

The range of alternatives in an environmental analysis also can be 

limited by narrowing the Agency’s statement of purpose and need for the 

proposed action.
251

  While the Agencies have broad discretion in defining 

the purpose and need, courts will not uphold a purpose and need 

statement that is unreasonably narrow
252

 or that does not comport with 

congressional and agency policy.
253

  For example, in National Parks and 

Conservation Association v. BLM, the Agency proposed a land exchange 

to provide land to a company that wanted to transform a mine site into a 

landfill.
254

  The BLM stated the purpose and need for the project 

primarily in terms of benefiting the company.
255

  As a result, the BLM 

analyzed five action alternatives, all of which were relatively minor 

variations of the proposed landfill development.
256

  The court held that 

“[a]s a result of this unreasonably narrow purpose and need statement, 

the BLM necessarily considered an unreasonably narrow range of 

alternatives.”
257

  While the purpose and need statement for a land 

exchange may properly consider the goals of the non-federal party, it 

must focus on the purpose and need of the agency in serving the public 

interest.
258

 

The court’s reasoning illustrates that the more substantial the public 

interest goals for the disposal of the federal land, the more likely it is that 

the Agencies will be able to successfully narrow the range of alternatives 

they must consider.  For example, if federal land is to be conveyed to a 

private party who may develop the land without any responsibility to the 

public interest, the only potentially valid public purpose in conveying the 

land is likely to be eliminating the Agency’s cost of continuing to 

manage it, and there likely would be a range of alternatives to such an 

exchange that could achieve that goal.
259

  By including use restrictions to 

 

251. See 40 C.F.R. § 1502.13 (2013). 

252. See, e.g., Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 n.7 (9th Cir. 

1999) (a statement of purpose and need that would limit the alternatives to “land-for-land 

exchanges . . . would certainly be too narrow”); see also Simmons v. U.S. Army Corps of Eng’rs, 

120 F.3d 664, 666–67 (7th Cir. 1997). 

253. See Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th 

Cir. 2010), cert. denied, 131 S.Ct. 1783 (2011). 

254. See id. at 1062–63.  Like many exchanges, the private party initially proposed the exchange 

to the BLM.  The company’s plan was “to develop the largest landfill in the United States” next to 

Joshua Tree National Park.  Id. 

255. Id. at 1071. 

256. See id. at 1063. 

257. Id. at 1072. 

258. See id. 

259. The exchange therefore would hinge almost exclusively on achieving the goals associated 

with the Agency’s acquisition, but those goals too might be achieved by a number of less desirable 



 

246 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

promote the public interest, however, a stronger agency purpose and 

need for the conveyance of federal land can be articulated and a narrower 

range of alternatives justified. 

Whether restrictions are used to narrow the range of alternatives by 

reducing the intensity of the environmental impacts or strengthening the 

Agency and public purpose, the Agencies can benefit by reducing the 

complexity and costs of their environmental analyses and their litigation 

risk. 

4. Cumulative Impact 

Analyzing the “cumulative impact” of an action can be as—or more—

challenging than evaluating indirect effects.
260

  When considering a land 

exchange, the Agencies must evaluate “[w]hether the action is related to 

other actions with individually insignificant but cumulatively significant 

impacts.”
261

  A “‘[c]umulative impact’ is the impact on the environment 

which results from the incremental impact of the action when added to 

other past, present, and reasonably foreseeable future actions regardless 

of what agency (Federal or non-Federal) or person undertakes such other 

actions.”
262

 

Given the growing land adjustment needs and ongoing management 

actions on and around much of the Agencies’ landholdings, it is 

increasingly important for the Agencies to manage the impacts of their 

land exchanges.  If the Agencies fail to control the impacts of their 

various land exchanges over time, then the accumulating impacts are 

likely to result in significant challenges.  First, those impacts may 

accumulate to the point that the cumulative impact analysis that is 

required for subsequent projects becomes very complex and onerous.  

Second, those analyses are increasingly likely to reveal significant 

cumulative impacts that demand the preparation of an EIS (rather than an 

EA).  Third, the Agencies may find it increasingly difficult to justify 

their projects in light of their public interest and other responsibilities 

under FLPMA, the ESA, and the NHPA, for example. 

 

or viable alternatives.  See, e.g., Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 & 

n.7 (9th Cir. 1999) (finding that the EIS should have evaluated purchasing the private land instead of 

conducting an exchange). 

260. See COUNCIL ON ENVTL. QUALITY, CONSIDERING CUMULATIVE EFFECTS UNDER THE 

NATIONAL ENVIRONMENTAL POLICY ACT, at v (1997), available at http://ceq.hss.doe.gov/nepa/cce 

nepa/exec.pdf. 

261. 40 C.F.R. § 1508.27(b)(7) (2013); see also id. § 1508.25(a)(2). 

262. Id. § 1508.7. 



 

2013] Missing the Forest and the Trees 247 

Cumulative impact management may be especially important where a 

series of land exchanges are expected in a single area, or where the 

potential impacts associated with the development or management of 

conveyed federal land may exacerbate the impacts of future federal land 

management projects in the same area.
263

  By containing the uncertainty, 

complexity, and impacts associated with the future use of conveyed land, 

the Agencies can reduce the burdens, complexities, and limitations 

associated with the cumulative impacts of future agency actions. 

5.  Categorical Exclusions 

The Forest Service has determined that a category of land exchanges in 

which the “resulting land uses remain essentially the same” generally 

will not have a significant impact on the environment, and the Agency 

accordingly has established a “categorical exclusion” from the 

requirement to develop an EA or EIS under NEPA for such exchanges.
264

  

The Agency’s regulations illustrate a few qualifying examples, including 

conveyances to “a State agency, local government, or other non-Federal 

party (individual or organization) with similar resource management 

objectives and practices.”
265

 

This categorical exclusion authority holds considerable promise for 

substantially decreasing the time and expense of implementing 

qualifying land exchanges.
266

  Despite that promise, the authority is 

rarely used.  This is not surprising given the Agency’s policies that 

 

263. See, e.g., Hall v. Norton, 266 F.3d 969, 978 (9th Cir. 2001) (remanding for consideration of 

whether the BLM assessed the impact of future development of exchanged federal land on air 

quality not only from the proposed land exchange, but also from the potential conveyance of other 

federal land in the area that had been identified for disposal); Hall v. Norton, 93 F. App’x 105, 107 

(9th Cir. 2004) (upholding BLM’s remand analysis where it evaluated “the potential impact of all 

reasonably foreseeable public and private land development in the Las Vegas Valley, going so far as 

to assume that 25,540 acres of public lands designated as ‘likely to be disposed’ would actually be 

disposed”); see also Muckleshoot, 177 F.3d at 809–12 (faulting the Forest Service for failing to 

adequately evaluate the cumulative impact associated with a past and a future land exchange in the 

same area as the proposed land exchange). 

264. See 36 C.F.R. § 220.6(d)(7) (2013); see also 40 C.F.R. § 1508.4 (defining “categorical 

exclusion”).  The BLM has not established any categorical exclusions for land exchanges.  See GAO 

2009, supra note 26, at 7 n.12. 

265. See 36 C.F.R. § 220.6(d)(7).   

266. See generally Memorandum from Nancy H. Sutley, Council on Envtl. Quality, Establishing, 

Applying, and Revising Categorical Exclusions under the National Environmental Policy Act 3 

(Nov. 23, 2010), available at http://ceq.hss.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232 

010.pdf; see also Citizens’ Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1024 

(10th Cir. 2002) (upholding use of categorical exclusion for interchange of mineral fraction 

fragments). 



 

248 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

discourage officials from using restrictions to ensure that the resulting 

land uses would, in fact, remain essentially the same.
267

 

For example, without use restrictions, the Forest Service cannot 

categorically exclude a land exchange that likely would result in the 

development of a hotel and conference center on the federal land, even if 

the land already contained a parking lot and tennis courts and was in an 

area designated by the Forest Service for high density use and 

development:  the specific use would change.
268

  Nor can it use the 

categorical exclusion for an exchange with a timber company conveying 

land already designated by the Forest Service for timber management:  

the company’s timber management practices may differ from the Forest 

Service’s.
269

  The Forest Service also likely cannot rely on a categorical 

exclusion for a land exchange with a mining company, even if the 

mining company already has plans and rights to mine the federal land:  

federal oversight could have an effect on those plans.
270

 

By employing restrictions that objectively demonstrate to the public 

and the courts that the resulting land uses will, in fact, “remain 

essentially the same,”
271

 the Forest Service and the BLM will have more 

 

267. Courts generally will scrutinize a decision to rely on a categorical exclusion and require an 

adequate explanation of and convincing statement for relying on it.  See, e.g., Alaska Ctr. for Env’t 

v. U.S. Forest Serv., 189 F.3d 851, 857 (9th Cir. 1999).  But see Citizens’ Comm. to Save our 

Canyons, 297 F.3d at 1023 (applying a deferential standard).  Because of the extensive laws and 

policies governing Forest Service and BLM land management, those agencies have a higher burden 

to show that the land use will remain essentially the same than do some other federal agencies that 

acquire and dispose of property pursuant to more flexible legal and policy regimes.  Cf. Nat’l 

Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343–44 (9th Cir. 1995) (upholding the Farmers Home 

Administration’s decision to dispose of land it acquired by default without conducting a NEPA 

review because the use of the land would not change). 

268. See Restore:  The N. Woods v. U.S. Dep’t of Agric., 968 F. Supp. 168, 176–78 (D. Vt. 

1997). 

269. See OFFICE OF INSPECTOR GEN., U.S. DEP’T OF AGRIC., REP. NO. 08601-27-SF, W. REGION 

AUDIT REPORT:  FOREST SERV. NAT’L LANDOWNERSHIP ADJUSTMENT TEAM 5 (2002) (“the use of 

the Federal land after the exchange would not remain ‘essentially the same’ because the timber 

management practices of private companies differed from the timber management practices of the 

FS”). 

270. In Center for Biological Diversity v. U.S. Dep’t of the Interior, the court considered an EIS 

that failed to compare the environmental impacts of mining operations conducted on private land 

with the likely impacts of mining that would be conducted on the land if it were retained by the 

BLM.  623 F.3d 633, 640 (9th Cir. 2010).  Despite the fact that the mining company had detailed 

plans and rights to mine the BLM land under the Mining Law of 1872, the court rejected the BLM’s 

argument that the foreseeable mining use would remain essentially the same regardless of whether it 

remained under the management of the BLM or was conveyed into private ownership.  See id. at 

641–46.  The case provides a striking example of the level of scrutiny that courts are likely to 

impose on claims that the future use of federal land is likely to remain the same after it is conveyed 

into non-federal ownership. 

271. See 36 C.F.R. § 220.6(d)(7) (2013). 



 

2013] Missing the Forest and the Trees 249 

opportunities and success taking advantage of the significant benefits 

that the categorical exclusion offers.
272

 

B.  Successfully Appraising Federal Land for its “Highest and Best Use” 

FLPMA generally provides that the market value of the federal lands 

and non-federal lands to be exchanged either “shall be equal” or “shall be 

equalized by the payment of money.”
273

  To estimate the market value, 

the Agencies generally must “[d]etermine the highest and best use of the 

property”
274

 based on “an appraiser’s supported opinion of the most 

probable and legal use of a property.”
275

 

Determining the “most probable and legal use of a property” conveyed 

into non-federal ownership usually is no easier for an appraiser than it is 

for the Agencies, and it too is often a basis for challenge.
276

  Given the 

occasionally scandalous history of federal land exchange appraisals,
277

 

courts understandably are attuned to potential problems with appraisals 

and they have been willing to invalidate them when it appears that the 

public may not be getting fair value.
278

  There are cases where appraisals 

 

272. Where an exchange is with a non-federal party that has “similar resource management 

objectives and practices,” id., the market value of restrictions designed to ensure that the resulting 

land uses will remain essentially the same are likely to be low and any objections by the non-federal 

party relatively minimal, see supra note 237 (describing courts’ skepticism about relying on the 

stated intentions of the non-federal party regarding development or mitigation plans); infra note 352 

(discussing the low market value of restrictions on uses that already are restricted by regulation). 

273. 43 U.S.C. § 1716(b) (2012). 

274. 36 C.F.R. § 254.9(b)(1)(i); 43 C.F.R. § 2201.3-2(a)(1) (2013); see also 36 C.F.R. § 254.3(c) 

(“An exchange of lands or interests shall be based on market value as determined by the Secretary 

through appraisal(s), through bargaining based on appraisal(s), through other acceptable and 

commonly recognized methods of determining market value, or through arbitration.”); accord 43 

C.F.R. § 2200.0-6(c). 

275. See 36 C.F.R. § 254.2 (defining “[h]ighest and best use”); accord 43 C.F.R. § 2200.0-5(k).  

The Agencies’ regulations define highest and best use as the “most probable” use of land, but the 

Uniform Standards require broader consideration based on the “reasonable probability” of a given 

use.  UNIFORM APPRAISAL STANDARDS, supra note 6, at 34, 66, 82.  FLPMA specifically requires 

the Agencies’ regulations “to reflect nationally recognized appraisal standards, including, to the 

extent appropriate, the Uniform Appraisal Standards for Federal Land Acquisitions.” 43 U.S.C. § 

1716(f); accord 36 C.F.R. § 254.9; 43 C.F.R. § 2201.3. 

276. See, e.g., Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1184 (9th Cir. 2000) 

(“In general, if a proposed use is reasonable and not merely speculative or conjectural, an element of 

risk is an insufficient basis upon which to exclude that use from consideration.  The case law is 

replete with examples of highest and best uses for which various contingencies must occur prior to 

their effectuation.”). 

277. See discussion supra Part III.A.2. 

278. See, e.g., infra note 280.  But see Comm. of 100 on Fed. City v. Hodel, 777 F.2d 711, 720 

n.3 (D.C. Cir. 1985) (applying a “highly deferential” standard under the APA to the National Park 

Service’s determination that the values of lands proposed for exchange were “approximately equal”). 



 

250 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

have overestimated the value of the lands to be acquired by the federal 

Agencies.
279

  However, it is the appraisal of the federal land to be 

conveyed by the Agencies that often runs into trouble, and this trouble is 

frequently based on the difficulty of accounting for the future use of that 

land.
280

 

Agency policymakers have made their line officers keenly aware that 

use restrictions may reduce the market value of federal land.
281

  And 

there is no doubt that some use restrictions (such as some conservation 

easements) can be notoriously difficult to appraise,
282

 and their use may 

make an appraisal more vulnerable as a result.  But when the highest and 

best legal use of the federal land appears relatively certain, and the 

appraisal appears to fairly estimate the value of that use, then the 

appraisal is likely to be upheld.  Because use restrictions are a powerful 

tool for reducing the uncertainty regarding the future use of the land, 

they can produce a more defensible appraisal as a significant beneficial 

byproduct. 

It would be inappropriate for the Agencies to reduce the value of 

federal land with use restrictions merely to facilitate a defensible 

appraisal, but they should nonetheless be aware of the potential benefit.  

For example, because the Forest Service generally is precluded from 

selling western timber into the export market, it must usually rely on the 

unfamiliar appraisal methods used for timber available for export when 

conveying land to a timber company.
283

  In such a case, the Forest 

Service may decide to continue to restrict for a period of years the export 

of timber from the land it proposes to convey in order to ensure a 

 

279. See, e.g., GAO 2000, supra note 82, at 17–18. 

280. See, e.g., Desert Citizens, 231 F.3d 1172 at 1187 (“The government must not wear blinders 

when it participates in a real estate transaction, particularly if the result, as here, is the transfer of a 

flagrantly undervalued parcel of federal land to a private party.”); Nat’l Parks & Conservation Ass’n 

v. Bureau of Land Mgmt., 606 F.3d 1058, 1067–68 (9th Cir. 2010), cert. denied, 131 S. Ct. 1783 

(2011).  In both the Desert Citizens and NPCA cases, the court set aside the land exchange in part 

because the appraisal of the federal land was based on an assumed future use that was different from 

the most likely—and apparently more profitable—use of the land as a landfill.  See Desert Citizens, 

231 F.3d at 1180–87; Nat’l Parks & Conservation Ass’n, 606 F.3d at 1068–69. 

281. See infra Part VII.A.  The Uniform Appraisal Standards require appraisals to identify and 

account for zoning and other land use regulations, including deed restrictions.  See UNIFORM 

APPRAISAL STANDARDS, supra note 6, at 16–17. 

282. See, e.g., Roger Colinvaux, The Conservation Easement Tax Expenditure:  In Search of 

Conservation Value, 37 COLUM. J. ENVTL. L. 1, 11–14 (2012). 

283. See 16 U.S.C. § 620a (2012); OFFICE OF INSPECTOR GEN., supra note 269, at 6–7 (2002) 

(finding that the Forest Service inappropriately relied on its own timber appraisal methodology—

which assumes that export is prohibited—instead of relying on private industry’s methodology—

which assumes that logs could be exported—in appraising federal land for exchange). 



 

2013] Missing the Forest and the Trees 251 

continued supply of timber to local mills that the Forest Service relies on 

for its forest management programs.  A byproduct of that restriction 

might be that the Forest Service relies on its substantial expertise in 

valuing the timber in accordance with its own methodology.
284

  As a 

result, the appraisal may be more accurate and the courts may afford it 

greater deference given the agency’s level of expertise.
285

 

Similarly, the BLM may decide to limit development of a parcel of 

federal land to a single dwelling in order to mitigate potential impacts on 

wildlife habitat.  If the circumstances included uncertain application of 

zoning, or uncertain or changing market conditions for more intensive 

development, for example, the use restrictions might happen to make the 

appraiser’s job of determining “the highest and best use of the property” 

based on “the most probable and legal use of a property” much easier 

and more defensible.
286

 

C.   Ensuring that the Public Interest Will be Well Served 

It may be that “NEPA merely prohibits uninformed—rather than 

unwise—agency action,”
287

 but FLPMA imposes a substantive mandate 

that allows the BLM or Forest Service to go forward with a land 

exchange only if it “determines that the public interest will be well 

served by making that exchange.”
288

  In essence, FLPMA’s public 

interest mandate gives courts some of the very powers they lack under 

NEPA. 

As with their early arguments that land exchanges were not subject to 

NEPA, the Agencies also have argued that their public interest 

determinations are not judicially reviewable.
289

  A number of early 

decisions seemed to agree.
290

  However, at least since the passage of 

 

284. Another byproduct may be that the Forest Service would receive a lower value for its land 

(and, as a result, would receive private land of less value in exchange).  The Forest Service would 

get the benefit of its bargain, however, in the form of a more stable local milling infrastructure that 

could help to increase the quality and reduce the costs of its land management activities. 

285. Cf. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-06-1050, INTERIOR’S LAND APPRAISAL 

SERVICES:  ACTIONS NEEDED TO IMPROVE COMPLIANCE WITH APPRAISAL STANDARDS, INCREASE 

EFFICIENCY, AND BROADEN OVERSIGHT 5 (2006), available at http://www.gao.gov/assets/260/2520 

04.pdf (noting that appraisals involving minerals, timber, and water rights “require specialty 

appraisal skills”).   

286. See supra notes 269–73 and accompanying text. 

287. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). 

288. 43 U.S.C. § 1716(a) (2012). 

289. See, e.g., Lodge Tower Condo. Ass’n v. Lodge Props., Inc., 880 F. Supp. 1370, 1377 (D. 

Colo. 1995), aff’d, 85 F.3d 476 (10th Cir. 1996).  

290. See Lewis v. Hickel, 427 F.2d 673, 677 (9th Cir. 1970) (concluding in the context of the 

Agency’s rejection of a land exchange proposal “that the determination of ‘public interest’ is one ‘by 



 

252 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

FLPMA, courts have consistently held otherwise,
291

 and it appears that 

the Agencies have given up on the effort to avoid review.
292

 

The notion that deed restrictions can be useful in strengthening a 

public interest determination for a land exchange was not lost on 

Secretary of the Interior James Watt and his Deputy, William Horn, 

when they developed a land exchange in the early 1980s.
293

  The 

exchange was designed to permit oil exploration and development 

operations within a designated wilderness area inside of the Alaska 

Maritime National Wildlife Refuge.
294

  The proposal was loaded with 

largely illusory environmental restrictions on the future development of 

the various refuge lands that were to be exchanged by the parties.
295

  But 

the court in National Audubon Society v. Hodel had no trouble seeing 

through the use restrictions.
296

  The court rejected the argument that the 

Secretary’s public interest determination was not subject to judicial 

 

law committed to agency discretion’ and therefore unreviewable. Administrative Procedure Act § 

10, 5 U.S.C. § 1009 (1964)”); Sierra Club v. Hickel, 467 F.2d 1048, 1053 (6th Cir. 1962) (“[I]f a 

third person is allowed to litigate the validity of exchanges of land made by the Secretary of Interior, 

whenever he believes that the Secretary acted improperly, there will be no more exchanges and the 

action of Congress providing for them will be frustrated.”). 

291. See Lodge Tower, 880 F. Supp. at 1377–78 (ruling that a public interest determination under 

FLPMA is reviewable; distinguishing pre-FLPMA cases); Nat’l Coal Ass’n v. Hodel, 675 F. Supp. 

1231, 1242 (D. Mont. 1987), (“[T]he enumerated factors of § 206 of FLPMA do provide a 

meaningful standard upon which judicial review may rest.”), aff’d on other grounds sub nom., N. 

Plains Res. Council v. Lujan, 874 F.2d 661 (9th Cir. 1989); Nat’l Audubon Soc’y v. Hodel, 606 F. 

Supp. 825, 833–35 (D. Alaska 1984) (ruling that the Secretary’s determination under the Alaska 

National Interest Lands Conservation Act’s  bare “public interest” standard was reviewable).  See 

generally COGGINS & GLICKSMAN, supra note 110, § 13:33. 

292. Cf. Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1180 (9th Cir. 2000) 

(rejecting the BLM’s argument that because the plaintiff could have challenged an exchange on the 

basis that it violated FLPMA’s public interest requirement, the court should rule that the plaintiff 

lacked standing to challenge the land exchange appraisals).  But see Lodge Tower, 880 F. Supp. at 

1377 (“Defendants next urge that there can be no judicial review of the administrative determination 

that the exchange is in the ‘public interest,’ because the action ‘is committed to agency discretion by 

law.’”). 

293. See Nat’l Audubon, 606 F. Supp. at 827. 

294. Id. at 827–29. 

295. See id. at 829–30, 837–45.  The conveyance of the federal land was to be “for fifty years, or 

so long as commercial oil production activities occur in the Navarin Basin” in exchange for some 

non-federal interests in another refuge.  Id. at 827.  The authority for the land exchange was the 

Alaska National Interest Lands Conservation Act, which authorizes non-equal value land exchanges 

to further its purposes if “the Secretary determines it is in the public interest.”  16 U.S.C. § 3192(h) 

(2012).   

296. Nat’l Audubon, 606 F. Supp. at 837–45. 



 

2013] Missing the Forest and the Trees 253 

review and held that the Secretary’s determination “suffers from serious 

errors of judgment and misapplication of law.”
297

 

The case illustrates that courts are both equipped and willing to 

overturn an agency’s public interest determination when it appears to be 

unjustified.
298

  Courts have looked to the factors that the Secretaries are 

required to consider under Section 206(a) of FLPMA.
299

  While such a 

limited review is not required by the plain language of the statute,
300

 

sound public policy,
301

 or the Agencies’ regulations,
302

 the case law also 

demonstrates that it likely does not matter given the breadth of the 

statutory charge.
303

 

National Audubon Society v. Hodel also illustrates that there are limits 

to using the power of restrictions to sustain a public interest 

determination (especially when used disingenuously).
304

  Within those 

limits, however, use restrictions nevertheless can be used effectively in 

promoting the public interest and the Agency’s apparent concern for it.  

The logic should by now be familiar: 

 

 

297. Id. at 846; see also id. at 835 (holding that the Secretary’s public interest determination was 

reviewable under the arbitrary and capricious standard). 

298. But see Paul, supra note 73, at 121 (“The lack of objective standards when it comes to the 

Agencies’ evaluation of the public interest factors vests the Agencies with such wide latitude there 

are virtually no limitations on agency action.”). 

299. See Lodge Tower Condo. Ass’n v. Lodge Props., Inc., 880 F. Supp. 1370, 1378 (D. Colo. 

1995), aff’d, 85 F.3d 476 (10th Cir. 1996); Nat’l Coal Ass’n v. Hodel, 675 F. Supp. 1231, 1243 (D. 

Mont. 1987), aff’d on other grounds sub nom; N. Plains Res. Council v. Lujan, 874 F.2d 661 (9th 

Cir. 1989). 

300. 43 U.S.C. § 1716(a) (2012); see also LaRue v. Udall, 324 F.2d 428, 430-31 (1963) (finding 

that Congress did not intend to restrict the breadth of the term “public interest” as a requirement for 

conducting exchanges under the Taylor Grazing Act).  

301. See Paul, supra note 73, at 121, 126–27.  See generally Susan Jayne Brown, David and 

Goliath:  Reformulating the Definition of “The Public Interest” and the Future of Land Swaps After 

the Interstate 90 Land Exchange, 15 J. ENVTL. L. & LITIG. 235 (2000).  If agencies only are 

interested in promoting their own interests, they may leave a gap among their interests, the interests 

protected by local government, and the private interests of the purchaser.  Moreover, because 

agencies routinely (and appropriately) rely on a broad scope of public interests in defending land 

exchanges from challenges based on narrow interests, they may be held to an equally broad standard 

on review of their justification for an exchange.   

302. See 36 C.F.R. § 254.3(b)(1) (2013); 43 C.F.R. § 2200.0-6(b) (2013).  

303. Cf. Nat’l Coal Ass’n v. Hodel, 825 F.2d 523, 532 (D.C. Cir. 1987) (“having concluded that 

competitive concerns are at least arguably within the zone of interests of FLPMA, we need not 

decide whether in fact, § 206’s ‘public interest’ concerns require that the Secretary consider the 

competitive impact of each coal land exchange.”).  But see Nat’l Coal Ass’n, 675 F.Supp. at 1243 

(“The Secretary has discretion, of course, to consider any other factor deemed relevant. However, his 

mandated obligation ceases when the specifically enumerated factors have been considered.”). 

304. See generally 606 F.Supp. 825 (D. Alaska 1985). 



 

254 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

Without an accurate picture of the environmental consequences of the land 
exchange, the BLM cannot determine if the “public interest will be well 
served by making the exchange,” and the Secretary cannot determine if the 
“values and the objectives” which the selected lands “may serve if retained 
in Federal ownership are not more than the values” of the offered lands.

305
 

 

The Agencies’ regulations already prohibit them from proceeding with 

any land exchange if “[t]he intended use of the conveyed Federal lands” 

will  “significantly”
306

 or “substantially conflict with established 

management objectives on adjacent Federal lands and Indian trust 

lands.”
307

  The same logic holds when the adverse impacts are to other 

public interests, ranging from historic and cultural resources, to 

recreation, to fiscal prudence, for example.  Therefore, a determination 

that the public interest will be well served by a land exchange may be 

“fatally flawed” simply because the future use of the federal land 

remains uncertain.
308

  In many instances, this flaw can be remedied by 

employing use restrictions.
309

 

VII.  FOREST SERVICE AND BLM OBJECTIONS TO USING RESTRICTIONS 

Despite their regulatory mandate and the many significant benefits that 

use restrictions can provide to both the public and the Agencies 

themselves, the Forest Service and BLM often have employed a range of 

arguments to avoid using—or even considering—these tools.  The 

Agencies’ arguments against retaining partial interests in exchanged 

land
310

 echo their historical objections to acquiring such interests, as the 

GAO described in 1979: 

 

 

305. Center for Biological Diversity v. U.S. Dep’t of the Interior, 623 F.3d 633, 647 (9th Cir. 

2010) (quoting FLPMA § 206(a), 43 U.S.C. § 1716(a)). 

306. 43 C.F.R. § 2200.0-6(b). 

307. 36 C.F.R. § 254.3(b)(2)(ii).  

308. Center for Biological Diversity, 623 F.3d at 647. 

309. See discussion supra Part VII.A.1; see also Mendiboure Ranches, Inc., 90 IBLA 360, 365 

(1986) (“In determining whether the transfer of public land would serve the public interest, an 

obvious corollary thereto is whether an exchange would adversely affect the public interest.  Thus, 

BLM must assess the impact of proposed or anticipated development of the public land once it 

passes out of Federal ownership, with consideration given to the need for appropriate restrictions.”).  

But see Greer Coal., Inc. v. U.S. Forest Serv., No. CV 06-0368-PHX-MHM, 2007 WL 675954, at *6 

(D. Ariz. Mar. 1, 2007) (upholding the Forest Service’s public interest determination despite finding 

that the Agency failed to adequately appraise the federal land and evaluate the potential 

environmental impacts of future development of the federal land). 

310. See, e.g., supra note 207 and discussion infra Part VII.A–B. 



 

2013] Missing the Forest and the Trees 255 

Historically, federal land management agencies have rejected out of hand 
any strategy other than the acquisition of full title to land . . . .  They argue 
that acquiring partial interests, such as development rights or scenic 
easements, often costs nearly as much as full acquisition, and restrictions 
on the use of private land are ineffective and a heavy administrative 
burden.  However, obstacles to the use of alternatives [to fee acquisition] 
are primarily perceived, rather than demonstrated.

311
 

 

Today, the Agencies have robust and popular programs to acquire 

conservation easements to protect adjacent federal lands and other 

resources from adverse impacts of potential development—in part 

because such acquisitions often are far more economical than fee 

acquisitions.
312

  But the Agencies still argue that use restrictions in the 

context of land exchanges can reduce the value of the federal land, 

impose expensive and burdensome monitoring and enforcement 

responsibilities on the Agencies, intrude on state and local 

responsibilities, and decrease the willingness of non-federal parties to 

proceed with an exchange.
313

  All of these arguments have limited merit 

and each may provide a convincing basis for rejecting use restrictions in 

certain circumstances.  However, they neither individually nor 

cumulatively justify the Agencies’ policies that have resulted in the 

nearly categorical rejection of use restrictions.  This Part explores the 

limits of the Forest Service and BLM objections in an effort to clarify the 

breadth of potential for using restrictions. 

A.  Effect on Value 

A 1996 Inspector General investigation concluded that a BLM land 

exchange in Nevada resulted in a loss of approximately $4.2 million to 
 

311. GAO ACQUISITION REPORT, supra note 29, at 23; accord S. COMM. ON ENERGY AND 

NATURAL RES., supra note 127, at 447 (statement of Michael F. Priesnitz, Vice President, 

Goff/Priesnitz & Assoc.); SHANDS & HEALY supra note 58, at 216.  The federal government’s early 

experience with scenic easements were challenging, which may partly explain the Agencies’ 

longstanding reluctance to use such tools.  See, e.g., POWELL ON REAL PROPERTY § 34A.02(1) 

(Michael Allan Wolf ed., 2013). 

312. See, e.g., 16 U.S.C. § 2103c (2012); Sabine River Auth. v. U.S. Dep’t of the Interior, 951 

F.2d 669, 672 (5th Cir. 1992) (noting that the method is more economical “because the government 

need not buy the property and take title outright; it can accept a non-development easement . . . and 

thereby achieve the goal of protecting the environmental status quo at a fraction of the cost”); 

Korngold, supra note 29, at 475 (citing a database reporting that the federal government holds over 

23,000 conservation easements covering about 4.7 million acres).  The Forest Service also has 

seriously considered conditioning development of private lands served by road easements across 

National Forest System land with wildfire protection requirements.  See supra note 9. 

313. See, e.g., Furnish Memorandum, supra note 154, at 2; Keys Decision, supra note 154, at 

42,984; Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 812–14 (9th Cir. 1999). 



 

256 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

the federal government because the BLM land was devalued by an 

easement previously issued by the BLM to the City of Las Vegas to 

construct a flood-control detention basin.
314

  Even though the easement 

should have been limited to only the amount of land the City actually 

would use for the basin, the City never constructed the basin.
315

  A year 

and a half after the BLM conveyed the land by exchange, the City 

relinquished 86% of its easement to the private land exchange proponent 

for the sum of “$400,000 cash and other inducements,” the exchange 

proponent reaped a $3.8 million windfall from selling the newly 

unencumbered land, and the taxpayers got the short end of the stick.
316

  

As a result, the Inspector General recommended that the BLM “[d]irect 

that all easements on Federal lands proposed for disposal be reviewed to 

verify grantee needs and that actions be taken to remove any easements 

that are not needed before the Federal lands are exchanged or sold.”
317

 

This unfortunate episode illustrates the significant impact that 

easements and other use restrictions can have on the value of land.  The 

Inspector General’s recommendation was meant to ensure that agency 

officials do the obvious—not convey federal lands that are devalued with 

unnecessary easements.  The report does not even address use 

restrictions reserved for the benefit of the Agency or (as some agency 

officials have contended)
318

 support the Agencies’ policies that strongly 

discourage the use of restrictions as a whole. 

In theory, if the federal government is compensated fairly for the 

market value of use restrictions (and they would be given accurate 

appraisals), the concerns about their devaluing effect should not be 

difficult to resolve:  if the cost of the restriction is less than, or equal to, 

the benefits the agency (and the public) would obtain by acquiring other 

land or interests in land through the exchange, then the restriction should 

not be rejected on the basis of its devaluing effect.  It also should not be 

categorically rejected on the basis of cost if its public interest value is 

greater than, or equal to, its market value. 

In practice, it may not be easy to objectively value either use 

restrictions or the benefits of acquiring other land, but the challenge is no 

different than the one the Agencies already manage in determining equal 

value and the public interest.  It also should not be significantly different 

 

314. See OFFICE OF THE INSPECTOR GEN., supra note 103, at 4–6. 

315. See id. at 5. 

316. See id. at 4–5. 

317. Id. at 12. 

318. See, e.g., Furnish Memorandum, supra note 154, at 2. 



 

2013] Missing the Forest and the Trees 257 

from their analyses of the costs and benefits they undertake through 

existing programs for purchasing limited interests in land. 

In addition, there are many circumstances in which the Agencies can 

reduce the cost of use restrictions.  For example, a temporary restriction 

on development may adequately protect public interests for a fraction of 

the cost of a perpetual restriction.  Non-federal parties to an exchange 

may be willing to donate land or interests in land to garner political 

support, quell objections, secure tax benefits, or simply serve the public 

interest.
319

  When purchasers propose to use or protect the federal lands 

they receive to avoid or mitigate adverse impacts to the public interest, 

they should be pressed to donate a legally enforceable interest that 

reflects their voluntary commitment. 

Nevertheless, the Forest Service’s internal policies arguably prohibit 

such donations.  In the same 1999 internal policy memorandum that 

purports to prohibit use restrictions unless they are “required” to comply 

with applicable law or management plans, the very next paragraph states 

that “[l]and donations conditioned as part of an exchange proposal are 

inappropriate since our authorities require that land exchanges are to be 

completed on equal value basis.  Land donations are voluntary 

conveyances and need to be processed as separate transactions.”
320

 

It is unclear whether the Forest Service intended its prohibition on land 

donations as part of exchanges to apply to use restrictions, but it certainly 

appears to do so since the Agency considers the term “lands” to refer to 

“any land []or interests in land.”
321

  Land exchanges are voluntary 

transactions, and the Agencies have broad authority to subject them to 

such terms and conditions as they determine are appropriate.
322

  As a 

result, agency officials could provide for a donation to their own or any 

other interested agency, organization, or individual as a “separate 

transaction” that is required as a condition of an exchange.
323

  In fact, in 

 

319. See, e.g., Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 804 (9th Cir. 1999); 

Pub. L. No. 109-377, § 5(c)(1) (2006) (providing for a donation of land to the Forest Service in the 

Pitkin County land exchange). 

320. Furnish Memorandum, supra note 154, at 2. 

321. See 36 C.F.R. § 254.2 (2013); accord 43 C.F.R. § 2200.0-5(l) (2013). 

322. See, e.g., 36 C.F.R. § 254.14(a)(1); accord 43 C.F.R. § 2201.7-2(a)(1). 

323. See, e.g., 43 U.S.C. § 1715(a) (2012) (authorizing the BLM “to acquire . . . by purchase, 

exchange, donation, or eminent domain, lands or interests therein”); 7 U.S.C. § 2269 (2012) 

(authorizing the Secretary of Agriculture to accept gifts of real property); see also U.S. DEP’T OF THE 

INTERIOR, BUREAU OF LAND MGMT., NEPA # DOI-BLM-ID-T030-2012-0008-EA, DECISION 

RECORD:  KETCHUM LAND EXCHANGE 1–2 (2012) (including a donation as part of a “single-phase 

assembled land exchange and donation” where donated land was separated from the exchange 

transaction for equalization purposes), available at https://www.blm.gov/epl-front-office/projects/ne 



 

258 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

promulgating their regulations, the Agencies explicitly contemplated 

such transactions.
324

 

The Agencies have formally recognized that there are many 

circumstances in which the public interest would be well served by 

imposing use restrictions,
325

 in some cases despite the costs and in others 

for no cost.  However, the Agencies’ policies discourage officials from 

identifying and taking advantage of those circumstances, and both their 

interests and the public interest are poorly served as a result. 

B.  Monitoring and Enforcement 

The Forest Service and the BLM have also objected to considering and 

employing use restrictions on the basis that the “[a]dministration of deed 

restrictions can be extremely complicated, time consuming, and 

expensive.”
326

  In many cases, this is certainly true.  For example, the 

Forest Service is charged with comprehensively regulating development 

and use of private property within the Sawtooth National Recreation 

Area.
327

  The applicable regulations are far more expansive than most 

local government land use regulations, and they presumably require 

significant agency resources to administer.
328

 

But in reality, this legitimate argument overstates the case.
329

  Some 

use restrictions require little or no agency monitoring or enforcement.  

 

pa/23352/40655/42755/EX35331_Ketchum_ID_Decision_Record_Final_508.pdf.  In apparent 

contradiction to its earlier direction to avoid donations as conditions of an exchange, a later 

discussion in the Furnish Memorandum encourages Agency staff to negotiate for a donation of any 

mineral patents held by the non-federal party to an exchange.  See Furnish Memorandum, supra note 

154, at 4. 

324. See Exchanges-General Procedures, 58 Fed. Reg. 60,904, 60,907 (Nov. 18, 1993) 

(responding to a suggestion that the Agency should consider “conveying partial interests to third 

parties in lieu of reservations or restrictions” by stating that “[t]he rule allows alternative methods of 

protection such as third party participation”); accord Land Exchanges, 59 Fed. Reg. 10,854, 10,858 

(Mar. 8, 1994). 

325. See discussion supra Part IV.D. 

326. Keys Decision, supra note 154, at 42,984; see also GAO ACQUISITION REPORT, supra note 

29, at 23, 71. 

327. See 16 U.S.C. § 460aa-3(a) (2012) (“The Secretary shall make and publish regulations 

setting standards for the use, subdivision, and development of privately owned property within the 

boundaries of the recreation area.”). 

328. See generally 36 C.F.R. §§ 292.14–.16 (2013); U.S. FOREST SERV. & THE SAWTOOTH 

SOC’Y, WHAT YOU SHOULD KNOW ABOUT PRIVATE LANDOWNERSHIP IN THE SAWTOOTH 

NATIONAL RECREATION AREA (2009), available at http://www.fs.usda.gov/Internet/FSE_DOCUM 

ENTS/stelprdb5211589.pdf.  The Forest Service also has some responsibilities in administering 

zoning and use of private land in the Shasta-Trinity National Recreation Area.  See 36 C.F.R. §§ 

292.11–.13. 

329. See GAO ACQUISITION REPORT, supra note 29, at 22–23, 26–27, 62–63, 156. 



 

2013] Missing the Forest and the Trees 259 

Grantees are likely to be hesitant to ignore a clear use restriction imposed 

by the United States, for they likely would find it difficult to sell their 

property for value if they did.
330

  Moreover, it often is the case that 

neighbors and other stakeholders would monitor compliance 

informally.
331

  After all, they were likely the parties lobbying for the 

restrictions in the first place.  For example, although the Forest Service 

initially refused to retain an easement to protect the historically and 

culturally significant trail in the Muckleshoot case “because it concluded 

that it was too expensive and impractical to monitor Weyerhaeuser’s land 

practices,” can it be doubted that the Muckleshoot Indian Tribe would 

have aggressively done so independently?
332

 

The Agencies also have options to formally partner with other 

agencies or organizations to monitor and enforce use restrictions.  Both 

agencies have broad authority to enter into cooperative agreements with 

third parties that could support monitoring and enforcement of use 

restrictions,
333

 and they have a variety of successful programs designed 

to acquire, monitor, and enforce conservation easements through 

partners.
334

  In some cases, creative agency officials have successfully 

used their authorities to partner with third parties to monitor and enforce 
 

330. For example, the Agencies have issued countless deeds with restrictions that are mandated 

by federal laws such as the Recreation and Public Purposes Act and the Sisk Act, including many for 

intense and sensitive uses such as landfills and water treatment facilities.  While grantees will 

sometimes come to Congress to lift such restrictions, it appears that there have been no reports of 

systematic noncompliance despite a lack of agency oversight and monitoring.  Cf. Peterson v. U.S. 

Dep’t of the Interior, 899 F.2d 799, 803–06 (9th Cir. 1990) (recounting the complex and troubled 

history of acreage limitations imposed by federal reclamation law); U.S. GOV’T ACCOUNTABILITY 

OFFICE, GAO-07-1092, U.S. FISH AND WILDLIFE SERVICE:  ADDITIONAL FLEXIBILITY NEEDED TO 

DEAL WITH FARMLANDS RECEIVED FROM THE DEPARTMENT OF AGRICULTURE 21–25 (2007), 

available at http://www.gao.gov/assets/270/266901.pdf (describing lack of monitoring, compliance, 

and enforcement of conservation easements held by the U.S. Fish and Wildlife Service); Land Trust 

Exchange, Report on 1985 National Survey of Government and Non-Profit Easement Programs, 4 J. 

LAND TR. EXCHANGE 1, 9, 13 (1985) [hereinafter “National Survey”] (“The U.S. Fish and Wildlife 

Service reports an average of 93 violations per year among its 21,000 easements” covering 1.2 

million acres of non-federal land). 

331. Cf. Korngold, supra note 29, at 481 (“[N]eighbors whose property values are benefited by 

the governmental easement may view the easement as an entitlement.  This will cause them to seek 

its enforcement and resist any compromise.” (footnote omitted)). 

332. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 808 (9th Cir. 1999).  See 

generally Hanson & Panagia, supra note 202. 

333. See, e.g., 43 U.S.C. § 1733 (2012) (cooperative enforcement); id. § 1737 (cooperative 

investigations and protection); id. § 1738 (contracts for resource protection). 

334. For example, the Forest Service’s Forest Legacy Program acquires conservation easements 

with federal funding, but the easements are held, monitored, and enforced through state initiatives.  

The Department of the Interior also has a variety of relevant cooperative conservation programs, 

such as the Landowner Incentive Program, the Cooperative Endangered Species Conservation Fund, 

and the Partners for Fish and Wildlife Program. 



 

260 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

use restrictions for exchanged land.  For example, in one of the rare cases 

in which the agencies sought to strategically employ use restrictions in 

an exchange, the Forest Service developed covenants that could be 

administered, monitored, and enforced by the Forest Service, Park 

Service, a local tribe, and certain community organizations to ensure that 

a developer would “utilize water recycling, efficient construction, solar 

power, reduced energy consumption, and other sustainable development 

principles” on the conveyed federal land.
335

  However, the Agencies have 

no formal policies or programs directed at facilitating such partnerships. 

The cost and administrative burden of agency monitoring and 

enforcement is an important concern that must be balanced against the 

public interest values that use restrictions can provide.
336

  However, the 

Agencies too frequently have dismissed restrictions on the basis of cost 

without any consideration or analysis at all.
337

  Instead, agency officials 

should evaluate the monitoring and enforcement costs of potential use 

restrictions, as well as available alternatives for reducing such costs, on a 

case-by-case basis.
338

 

C.  Responsibility of State and Local Government 

The Forest Service and the BLM also have objected to use restrictions 

on the basis that regulating private land use is not their responsibility.  

For example, the Deputy Under Secretary of Agriculture issued the 

following list of rationales: 

 

[(1)] The Forest Service has long taken the position that zoning and 
regulation of uses on private land are within the responsibility of state and 

 

335. Sierra Club v. Dombeck, 161 F. Supp. 2d 1052, 1061, 1069 & n.5 (D. Ariz. 2001), appeal 

dismissed 55 Fed.Appx. 411 (9th Cir. 2002).  Despite “limited deficiencies” in the Forest Service’s 

NEPA compliance, the Forest Service ultimately abandoned the exchange in the face of 

“insurmountable obstacles.”  See City of Williams v. Dombeck, 151 F. Supp. 2d 9, 27 (D.D.C. 

2001).  In Mesa County Land Conservancy v. Allen, the land conservancy successfully enforced the 

terms of a conservation easement on private land that the United States (through the Farmers Home 

Administration) had executed and then donated to the land trust.  Id., No. 11CA1416, 2012 WL 

2044781 (Colo. Ct. App. June 7, 2012).  Other creative tools also are available for reducing 

monitoring and enforcement costs, such as requiring the landowner to periodically self-certify 

compliance with the use restrictions or by including permanent markings on the property (such as 

plaques on historic properties). 

336. See Sutley, supra note 236, at 3 (“Agencies should not commit to mitigation, however, 

unless they . . . expect there will be necessary resources available to perform or ensure the 

performance of mitigation.”); see also Echeverria, supra note 29, at 19–20; National Survey, supra 

note 330, at 13, 20. 

337. See, e.g., Muckleshoot, 177 F.3d at 812–14. 

338. See infra Part VIII.C. 



 

2013] Missing the Forest and the Trees 261 

local governments[; (2) l]ocal authorities are in the best position to 
determine appropriate uses of private land[; (3) t]he Forest Service has 
neither the legal authority nor the responsibility to substitute deed 
restrictions for local zoning controls[; and (4) l]ocal governments have 
traditionally agreed and insisted that such decisions be left to them.

339
 

 

Each of the four unqualified arguments is unpersuasive in justifying a 

broad rejection of use restrictions.  The following sections address each 

argument in turn. 

1. Zoning and Regulation of Private Land Are Not Exclusively the 

Responsibility of State and Local Governments 

The fact that the Forest Service has long taken the position that zoning 

and regulation of uses on private land are within the responsibility of 

state and local governments is either faulty logic or an unfortunate 

reflection of historic agency policy.  There is no doubt that regulation of 

private land is primarily a responsibility of state and local governments.  

However, that by no means relieves the Agencies of their responsibilities 

to include use restrictions in federal land exchanges when state and local 

government regulation is inadequate to protect public interests.
340

  

Moreover, as components of property transactions between two 

landowners, federal use restrictions are not regulations that necessarily 

interfere with local powers.  If agency tradition is to the contrary, it 

should be abandoned. 

2.  Local Authorities Are Not in the Only Position to Best Determine 

Appropriate Uses of Private Land 

It is true that local authorities often are in a better position than federal 

agencies to determine appropriate uses of private land.  Some 

communities have excellent zoning and other land use regulations that 

capably protect private interests and promote both the interests of the 

local community and those of the general public and federal government.  

Many private owners also voluntarily use their land in ways that protect 

 

339. Keys Decision, supra note 154, at 42,984.  The Keys Decision was formally issued as a 

decision notice by Anne Keys, Deputy Under Secretary for Natural Resources and Environment, 

U.S. Dep’t of Agriculture on June 15, 2000, and was submitted to the Federal Register by Sally 

Collins, Associate Deputy Chief of the Forest Service, on June 26, 2000.  Id. at 42,982. 

340. See discussion supra Parts IV–V; see also note 348, infra. 



 

262 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

those interests.
341

  In such cases, use restrictions that otherwise might be 

necessary, may not be appropriate. 

Unfortunately, that is not always the case.
342

  Some individuals and 

local communities do disregard the broader public interest in protecting 

wetlands, wildlife habitat, air quality, and water quality, which is why 

the federal government has responded with laws aiming to protect those 

and other national and regional interests in local and private land use.
343

  

Some disregard the impacts that local land use can have on adjacent 

federal land, and some state and local governments simply do not have 

the authority or the capacity to regulate local land use adequately.
344

  

Even where state and local governments have the desire and adequate 

authority, they are hampered by the uncertainty of federal land 

management and disposal decisions.
345

 

In such cases, the Agencies should not simply abdicate responsibility.  

Rather they should follow through on that responsibility to protect the 

public interest by exercising their authority to employ use restrictions 

when necessary. 

3. The Agencies Have Both the Legal Authority and Responsibility to 

Use Restrictions 

The Forest Service has argued it “has neither the legal authority nor 

responsibility to substitute deed restrictions for local zoning controls.”
346

  

But there simply is no question that the Forest Service and the BLM do, 

in fact, have broad use restriction authority.
347

  Moreover, in comparison 

to methods such as condemnation or unilateral regulation,
348

 land 

 

341. See Barton H. Thompson, Jr., Conservation Options:  Toward a Greater Private Role, 21 

VA. ENVTL. L.J. 245, 254–55 (2001). 

342. See BABBITT, supra note 119, at 5 (“Why demonize land developers when the real problem 

is the pervasive failure of state and local governments to control sprawl through meaningful land use 

regulations? . . . Local governments generally have neither the political will nor the expertise nor the 

financial resources to stand up to well-financed developers . . . .”); GAO ACQUISITION REPORT, 

supra note 29, at 30 (“In some cases, State and local governments are willing to establish and 

enforce effective land use controls.  In other cases, a major Federal role may be necessary to assure 

the protection and preservation of nationally significant areas.”).   

343. See generally, e.g., United States v. North Dakota, 460 U.S. 300, 309–10 (1983). 

344. See, e.g., Coggins, supra note 74, at 19; Sax, supra note 75, at 240, 267; GOV’T 

ACCOUNTABILITY OFFICE, supra note 9, at 3 (explaining how large landowners in Montana can veto 

local zoning changes that would affect the use of their land).  

345. See SHANDS, supra note 72, at 49–52, 60. 

346. Keys Decision, supra note 154, at 42,984. 

347. See discussion supra Part IV (reviewing FLPMA authority).   

348. Land exchange use restrictions are part of a consensual property transaction and therefore 

raise no significant questions regarding the scope of federal power to unilaterally regulate private 



 

2013] Missing the Forest and the Trees 263 

exchange use restrictions can provide a more flexible and easily 

defensible method for protecting the public interest.
349

 

As for the Agencies’ responsibility to impose use restrictions that may 

substitute for local zoning controls, in such cases they should consider 

whether the local regulations are sufficiently durable to protect the public 

interest.
350

  It often is the case, however, that the application of local 

regulation to a parcel of federal land that is to be conveyed is unclear.  

Because local government authority to impose regulations on federal 

land is limited,
351

 they often do not bother to determine how that land 

would be regulated if it were conveyed. 

FLPMA calls for intergovernmental cooperation to produce an 

efficient and effective approach to regulation of exchanged federal 

land.
352

  But FLPMA’s land exchange provisions also were specifically 

 

land use.  See supra note 113 and accompanying text; see also Mark S. Squillace, Common Law 

Protection for our National Parks, in OUR COMMON LANDS:  DEFENDING THE NATIONAL PARKS 87 

(David J. Simon ed., 1988); Coggins, supra note 74, at 15–19; Ragsdale, supra note 11, at 36–43; 

Sax, supra note 75, at 250–55.  Furthermore, the United States’ power to regulate the use of private 

lands is significant under the Property and Commerce Clauses.  See, e.g., Camfield v. United States, 

167 U.S. 518, 526 (1897) (ruling that, under the Property Clause, Congress has “the power of 

legislating for the protection of the public lands, though it may thereby involve the exercise of what 

is ordinarily known as the police power, so long as such power is directed solely to its own 

protection”), cited with approval in Kleppe v. New Mexico, 426 U.S. 529, 546 (1976); United States 

v. Alford, 274 U.S. 264, 267 (1927) (“Congress may prohibit the doing of acts upon privately owned 

lands that imperil the publicly owned forests.”); Nat’l Ass’n Home of Builders v. Babbitt, 130 F.3d 

1041, 1046 (D.C. Cir. 1997) (ruling that regulation under the ESA of activities on non-federal land 

that could harm the Delhi Sands Flower-Loving Fly and its habitat was permissible under the 

Commerce Clause). 

349. See Ragsdale, supra note 11, at 19 (“The use of the land exchange mechanism could permit 

the federal government to exercise similar influence over the nature, quality, extent, and pace of land 

development, without the costs and disruptions of eminent domain, and without the serious 

constitutional questions surrounding downzoning in the face of developmental pressures.”); cf. 

Echeverria, supra note 29, at 20-22 (exploring the costs and benefits of the “cooperative 

conservation” aspects of conservation easements).  See generally Korngold, supra note 29. 

350. Cf. Lockhart v. Kenops, 927 F.2d 1028, 1033 (8th Cir. 1991) (“After reviewing the zoning 

regulations, which require that sewer systems comply with detailed design and specification 

requirements and be approved by the city engineer, we find that the Forest Service’s conclusion that 

the zoning regulations will prevent any significant impact on the environment was not arbitrary and 

capricious.”).  

351. See, e.g., Cal. Coastal Comm’n v. Granite Rock, 480 U.S. 572, 593 (1987) (“Federal land 

use statutes and regulations, while arguably expressing an intent to pre-empt state land use planning, 

distinguish environmental regulation from land use planning.”). 

352. To the extent that the application of local zoning can be anticipated, imposing a potentially 

duplicative restriction likely will result in little or no cost to the Agencies, since the appraised value 

of the federal land already would take into account the likely land use regulation and local 

government generally would satisfy any monitoring and enforcement responsibilities.  In such cases, 

rather than simply rejecting restrictions as unnecessary, the Agencies and local governments should 



 

264 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

built on the premise that state and local zoning would not always 

adequately protect the public interest.
353

  Its charge to ensure that “the 

public interest will be well served” by each land exchange does not admit 

of exceptions.
354

 

4.   Local Governments Often Support Use Restrictions and Do Not 

Hold Veto Authority When They Do Not 

The argument that use restrictions should be rejected because local 

governments have traditionally opposed them similarly is unpersuasive.  

This argument simply misstates the facts.  While state and local 

governments have traditionally opposed federal efforts to impose broad 

regulations on local land uses, in many cases they have been strongly 

supportive of incorporating use restrictions into land exchange 

conveyances.
355

  As much as the Agencies might wish otherwise, state 

and local governments generally do not want the burden or expense of 

mitigating the adverse environmental, social, or economic impacts that a 

land exchange can impose on a local community.
356

 

To the extent local governments oppose the imposition of use 

restrictions, their views should be seriously considered, but they should 

not be determinative.
357

  Complete deference to state and local 

 

consider that they already effectively have secured a belt and they might want to get the free (or at 

least cheap) pair of suspenders with it. 

353. See discussion supra Part IV.A-C. 

354. 43 U.S.C. § 1716(a) (2012). 

355. See, e.g., Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 809 (9th Cir. 1999) 

(State Historic Preservation Officer suggesting an easement or covenant to protect historic 

resources); Nat’l Wildlife Fed’n, 82 IBLA 303, 314 n.7 (1984) (relating that the Governor 

recommended that BLM include protection for habitat on federal land to be exchanged).  State and 

local government concerns traditionally have been with federal programs that are far more intrusive 

on their land use regulation authority than a restriction on land use mutually agreed to by two 

landowners exchanging deeds.  Cf. United States v. North Dakota, 460 U.S. 300, 304–08 (1983) 

(describing the history of cooperation and conflict between the Fish and Wildlife Service and the 

State over federal conservation easements). 

356. See Lodge Tower Condo. Ass’n v. Lodge Props., Inc., 880 F. Supp. 1370, 1384 (D. Colo. 

1995), aff’d, 85 F.3d 476 (10th Cir. 1996) (expressing doubt that the “federal agencies would be able 

to impose on local entities the burden or expense of mitigating any significant environmental 

impact” resulting from an exchange); City of Williams v. Dombeck, 151 F. Supp. 2d 9, 9, 11 

(D.D.C. 2001) (suit by two nearby cities and a regional council of governments seeking to enjoin a 

land exchange based on the impacts of future development on water availability). 

357. See, e.g., Cal. Coastal Comm’n v. Granite Rock, 480 U.S. 572, 596 (1987) (Powell, J., 

concurring in part and dissenting in part) (“Significantly, the FLPMA only requires the Secretary to 

listen to the States, not obey them.”); Nat’l Wildlife Fed’n, 82 IBLA 303, 314 n.7 (1984) (noting that 

while FLPMA requires the Agencies to notify state governments of a proposed exchange, “[n]either 

the statute nor the regulation . . . contains any mandate that BLM conform its proposal to the 

preference of the State government”).  Section 208 of FLPMA prohibits the BLM from making 



 

2013] Missing the Forest and the Trees 265 

governments is only appropriate when, and to the extent that, state and 

local governments effectively provide for not only the interests of the 

local community (including private landowners), but also those of the 

federal government (including its policies to promote the interests of the 

broader public). 

D.  Deterrent Effect on Non-Federal Parties 

The Agencies have also argued that use restrictions can diminish a 

non-federal party’s willingness to proceed with an exchange.
358

  

Although sometimes true, this is a woefully inadequate argument for the 

nearly wholesale rejection of the use restriction tool.  Fundamentally, the 

Agencies are obligated to either impose a use restriction or abandon an 

exchange if the non-federal party will not accept a restriction that is 

necessary to ensure that “the public interest will be well served by 

making that exchange.”
359

 

Again, the problem is that the Agencies too often dismiss the use 

restriction option out-of-hand.  For example, in the Muckleshoot case, the 

Forest Service rejected an alternative that included a deed restriction on 

the future logging practices of the timber company “on the grounds that 

it would decrease Weyerhaeuser’s incentive to trade.”
360

  The court 

pointed out, however, that nothing in the record indicated that the Forest 

Service ever attempted to negotiate the matter
361

 and the company 

“conceded at oral argument that the imposition of deed restrictions was a 

viable alternative” to the exchange agreement that the Forest Service 

negotiated.
362

 

Moreover, an exchange proponent’s simple preference for a clean 

patent should not excuse the Agencies from their obligations to the 

public interest.  Especially when exchange proponents informally 

indicate that they intend to use or protect their acquired federal lands to 

 

“conveyances of public lands containing terms and conditions which would, at the time of 

conveyance, constitute a violation of any law or regulation pursuant to State and local land use plans, 

or programs.”  43 U.S.C. § 1718. 

358. See, e.g., Muckleshoot, 177 F.3d at 812–14. 

359. 43 U.S.C. § 1716(a) (2012); see also Nat’l Wildlife Fed’n, 87 IBLA 271, 281 (1985) (“The 

analysis must begin with identification of the values of the land in question.  Do they need 

protection?  Is a restriction in the deed the only way to protect them?  BLM’s decision on whether to 

impose the easement cannot be dictated by the landowner.”). 

360. Muckleshoot, 177 F.3d at 813. 

361. See id. 

362. Id. at 814; see also id. at 813; cf. Plum Creek Timber Co. v. Lyng, 1989 WL 46737, at *1–2 

(9th Cir. 1989) (reviewing a land exchange in which the Forest Service reserved the right to cut 

timber for the period covered by outstanding timber sale contracts on the land it conveyed). 



 

266 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

avoid or mitigate adverse impacts to the public interest, if they object to a 

use restriction that would ensure they follow through with their stated 

intentions, then either their objection or their intentions should be 

disregarded when evaluating the exchange.
363

  If pressed and a proponent 

still refuses to agree to a restriction, then the Agencies must evaluate 

other options, including whether to abandon the exchange. 

VIII.  RECOMMENDATIONS 

This Article has endeavored to demonstrate:  (1) that the Forest 

Service and BLM have both the authority and responsibility to include 

use restrictions when necessary to ensure that “the public interest will be 

well served” by land exchanges; (2) that the Agencies can use such 

restrictions to their strategic advantage in navigating the land exchange 

process; and (3) that current policies discouraging such restrictions are 

misguided. 

If the Agencies are to reconsider those policies, they must also 

consider replacement policies.
364

  Good policy would balance the 

standardization that helps to ensure legal compliance and protect from 

abuse with the flexibility that provides efficiency and effectiveness.  This 

Part discusses ideas for considering the new policies that would guide 

agency staff in their consideration and use of restrictions. 

A.  Guiding Principles:  Congressional Intent 

Beyond requiring that “the public interest will be well served” by 

exchanges and referencing a number of considerations for doing so, 

Section 206 of FLPMA does not directly provide specific guidance on 

when the Agencies should use restrictions.
365

  However, there are other 

guides to congressional intent in FLPMA, its legislative history, and 

other relevant enactments.  Those sources indicate that Congress has 

followed a policy of balancing the importance of cooperation with state 

and local governments with the independent federal authority to restrict 

the future use of conveyed federal land.  Both Forest Service regulations 

 

363. See, e.g., supra Part VI.A.1 (discussing the Lyneta Ranch Exchange, Mendiboure Ranches, 

Inc., 90 IBLA 360 (1986)). 

364. In doing so, officials should consider some of the broad advantages and disadvantages of 

using restrictions instead of regulation—at least where regulation may be a viable alternative.  See 

supra note 29. 

365. See 43 U.S.C. § 1716(a) (2012). 



 

2013] Missing the Forest and the Trees 267 

and BLM regulations broadly reflect that balance,
366

 but their internal 

guidance and practices generally do not. 

New guidance should require agency officials to not just “notify” 

relevant state, local, and tribal officials during the exchange process,
367

 

but also to actively investigate and consider applicable land use 

regulations and to seek to coordinate any use restrictions with those 

governments and their regulations.
368

 

Accordingly, the Agencies should consider new guidance providing 

that, for each land exchange proposal, agency staff should:  (1) include in 

any land exchange deed, patent, or agreement, such terms, covenants, 

conditions, and reservations as are necessary to protect the public 

interest;
369

 (2) in determining whether to include use restrictions, 

 

366. For example, at the same time the regulations require the imposition of use restrictions 

when necessary to protect the public interest, they provide that conveyances shall be subject to “all 

laws, regulations, and zoning authorities of State and local governing bodies” (36 C.F.R. § 254.3(h) 

(2013); 43 C.F.R. § 2200.0-6(i) (2013)); that agency officials “shall give full consideration to the 

opportunity . . . to meet the needs of State and local residents and their economies” (36 C.F.R. § 

254.3(b)(1); 43 C.F.R. § 2200.0-6(b)); and that agency officials shall notify relevant state and local 

governments during the exchange process (36 C.F.R. §§ 254.8(a), 254.13(a)(2); 43 C.F.R. §§ 

2200.0-6(m), 2201.2(a), 2201.7-1(a)(2), 2201.9(c)). 

367. See 43 U.S.C. § 1720. 

368. While agency officials generally do coordinate with interested state, local, and tribal 

officials when conducting land exchanges, their regulations for doing so—especially in the context 

of use restrictions—do not adequately reflect applicable law or their best practices.  For example, the 

BLM’s exchange regulations include a subsection entitled “Coordination with State and Local 

Governments,” but it only requires the Agency to “notify” them prior to completing an exchange.  43 

C.F.R. § 2200.0-6(m).  But see 43 U.S.C. § 1712(c)(9) (providing that the BLM shall, “to the extent 

consistent with the laws governing the administration of the public lands, coordinate” both planning 

and “management activities” with state, local, and tribal governments and “shall provide for 

meaningful public involvement of State and local government officials . . . in . . . land use decisions 

for public lands”); 43 C.F.R. § 46.155 (providing that the BLM “must whenever possible consult, 

coordinate, and cooperate with relevant State, local, and tribal governments and other bureaus and 

Federal agencies concerning the environmental effects of any Federal action within the jurisdictions 

or related to the interests of these entities.”); Exec. Order No. 13,352, 3 C.F.R. 210 (“Facilitation of 

Cooperative Conservation”).  The Forest Service’s exchange regulations do not mention 

“coordination” or “cooperation.”  See 36 C.F.R. pt. 254.A.  But cf. 16 U.S.C. § 1604(a) (requiring 

Forest Service’s land management planning process to be “coordinated with the land and resource 

management planning processes of State and local governments”); 36 C.F.R. § 219.4(b).  Neither 

Section 206 of FLPMA nor the Agencies’ exchange regulations specifically address notification or 

coordination with tribal governments, although other applicable laws, regulations, and policies do.  

While exchanges with tribal governments are uncommon and may raise unique issues, tribal 

governments may have significant interests in land exchanges to which they are not a party and must 

be notified and consulted in such cases.  See, e.g., 43 U.S.C. § 1712(b), (c)(9); 36 C.F.R. § 

219.4(b)(3); 40 C.F.R. § 1501.7. 

369. See, e.g., supra Part V.A–C; cf. 43 U.S.C. § 1718.  Some land exchange watchdogs have 

advocated going further, recommending a blanket mandate where the “[f]ederal agencies shall 

impose federal management standards on public lands exchanged to any entity.”  DRAFFAN & 



 

268 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

coordinate with state, local, and tribal governments and consider the 

scope, flexibility, and durability of their land use regulations; and (3) 

seek to complement state, local, and tribal land use regulations, 

consistent with the public interest.
370

 

B. Consideration:  Early and Often 

Agency officials should consider use restrictions early in the land 

exchange development process and should reevaluate them as the 

process proceeds.  In the past, agency officials typically have considered 

such restrictions—if at all—only when objections are raised and often 

late in the process.  When courts or reviewing officials require a 

reevaluation of use restriction options late in the process, agency officials 

are faced with potentially significant costs of renegotiation, reevaluation, 

and reappraisal.  Such costs provide a significant disincentive for agency 

officials to fairly evaluate whether use restrictions would best serve the 

public interest. 

By considering use restrictions early, the Agencies can maximize the 

benefits that use restrictions provide in complying with NEPA and other 

applicable laws.  Early consideration also can improve public 

participation and understanding of a proposed exchange and will help to 

avoid misunderstandings of federal responsibilities by the non-federal 

and other interested parties.  Periodic reconsideration will encourage 

officials to adjust their evaluation of use restrictions as more information 

becomes available during the development of the exchange.
371

 

Accordingly, the Agencies should consider new guidance providing 

that, for each land exchange proposal, agency staff should:  (1) consider 

including use restrictions early in the development of the proposal; (2) 

 

BLAELOCH, supra note 95, at 73.  A more flexible approach that maintains appropriate discretion is 

necessary to maximize the important benefits that can be achieved through land exchanges. 

370. The BLM has directed that each land exchange “decision must include a land use plan(s) 

conformance determination supporting the disposal of the Federal land and acquisition of the non-

Federal land.  It is often appropriate to also summarize from the environmental documentation how 

the decision interfaces with state and local land use plans.”  BLM HANDBOOK, supra note 148, at ch. 

9.B.4.  Both Agencies rejected a comment proposing to add to their regulations a requirement for a 

consistency review by state government.  See 58 Fed. Reg. 60,904, 60,908 (Nov. 18, 1993); 59 Fed. 

Reg. 10,854, 10,859 (Mar. 8, 1994).  

371. In promulgating its current regulations, the BLM specifically rejected a suggestion “that the 

regulations should permit only those reservations to be placed on the Federal land that were 

specified in the agreement to initiate,” stating that “[t]he agreement to initiate is the point to 

recognize known title issues.  However, after an agreement to initiate is entered, additional rights 

and reservations may be identified and, therefore, should be recognized.”  58 Fed. Reg. 60,904, 

60,916 (Nov. 18, 1993). 



 

2013] Missing the Forest and the Trees 269 

discuss the potential use of restrictions with the non-federal party, state 

and local governments, and potential third party facilitators early in the 

development of the proposal; (3) discuss the potential use of restrictions 

with the interested public in the scoping process; and (4) reevaluate the 

need for use restrictions as more information becomes available. 

C.   Evaluation:  On a Case-by-Case Basis 

Unfortunately, there is no simple formula to determine what kind of 

use restrictions, if any, should be included in a conveyance.  Their costs 

and benefits to the public interest must be fairly evaluated depending on 

the specific circumstances of each land exchange.
372

 

Accordingly, the Agencies should consider new guidance providing 

that, for each land exchange proposal, agency staff should:  (1) evaluate 

on a case-by-case basis what form of use restrictions are appropriate to 

include, if any; and (2) balance the various costs and benefits of such 

restrictions, including market and non-market costs and benefits to the 

public interest and considering the factors discussed immediately below 

in Part VIII.D. 

D. Key Issues:  Impacts on Federal Lands and Resources of  National or 

Regional Significance 

Agency officials have a broad mandate to protect the public interest.  

While use restrictions are appropriate in some circumstances to ensure 

that local community interests are served, the Agencies’ responsibilities 

are particularly significant when the conveyance could adversely impact 

other federal lands (their own and those of other federal agencies).
373

  

The BLM’s regulations, mandate that “the authorized officer must find 

that . . . [t]he intended use of the conveyed Federal lands will not . . . 

 

372. Cf. Real Estate—Acquisition—Encumbrance Determination by Secretary of Agriculture, 15 

Comp. Gen. 910, 911 (1936) (holding that a statute authorizing the Secretary of Agriculture to 

acquire lands subject to rights-of-way, easements, and reservations that would not interfere with the 

use of the land “contemplates that such determination shall be made in each particular case and that 

there shall be stated the facts upon which the conclusion is based”). 

373. See, e.g., D. Michael Harvey, The Federal Land Policy and Management Act:  The Bureau 

of Land Management’s Role in Park Protection, in OUR COMMON LANDS:  DEFENDING THE 

NATIONAL PARKS 127, 127 (David J. Simon ed., 1988) (“[M]any potential park threats arise from 

development activities on adjacent BLM lands . . . through private acquisition of those lands by sale 

or exchange.”).  Even landowners who do not have a duty to manage their land in the public interest 

would be considered short-sighted for conveying a portion of their land without carefully 

considering the impact of the conveyance on the remainder of their land.  The Agencies 

responsibilities are similarly significant in the context of their trust responsibility concerning Indian 

lands. 



 

270 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

significantly conflict with established management objectives on 

adjacent Federal lands and Indian trust lands” before proceeding with 

any land exchange.
374

  The Forest Service’s regulations similarly prohibit 

exchanges that will “substantially conflict” with existing management 

objectives.
375

 

However, guidance would be helpful to encourage agency officials to 

consider the broad range of management objectives for adjacent federal 

land.
376

  It should also address adverse effects that may not immediately 

result in a substantial conflict with federal land management objectives, 

but nevertheless could develop into a conflict in the near or distant 

future.
377

  Guidance also would be useful to encourage agency officials to 

look beyond a land exchange proponent’s stated intentions of use and to 

consider other potential private uses that might be made of the federal 

land after it is conveyed. 

For example, the Agencies (especially the Forest Service) should 

determine whether local land use regulations adequately address wildfire 

risk by regulating development in the WUI.  As has been discussed 

 

374. 43 C.F.R. § 2200.0-6(b) (2013). 

375. 36 C.F.R. § 254.3(b)(2) (2013). 

376. See SHANDS, supra note 72, at 62 (“Field-level managers are not provided with adequate 

direction relating to their responsibilities in protecting the federal resources in their charge from 

adjacent-lands activities.”).  Guidance also would be helpful to clarify the geographic breadth of the 

Agencies’ responsibilities.  For example, in 1999, the Interior Board of Land Appeals considered an 

exchange that would have paved the way for the country’s largest landfill.  The proposed landfill 

would have been tucked near the boundary of Joshua Tree National Park (“JTNP”), with the BLM 

land identified for conveyance within a quarter section of the park boundary and the actual landfill 

about 1.5 miles from—and surrounded on three sides by—JTNP.  See Donna Charpied, 150 IBLA 

314, 316–17 (1999), see also Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 

1058, 1070 (9th Cir. 2010), cert. denied, 131 S.Ct. 1783 (2011).  Although the BLM and National 

Park Service went to considerable lengths to mitigate the impacts of the exchange on JTNP, the 

Board stated that the “BLM is not required by regulation to find that the intended use of the selected 

public lands as a landfill does not significantly conflict with established management objectives on 

JTNP” because the thin strip of land between the park and the BLM land identified for conveyance.  

Donna Charpied, 150 IBLA at 336, rev’d on other grounds 606 F.3d 1058.  The Board’s statement 

apparently is based on a misunderstanding of the meaning of the word “adjacent,” which, unlike the 

word “adjoining,” means “[l]ying near or close to, but not necessarily touching.”  BLACK’S LAW 

DICTIONARY 46 (9th ed. 2009); see, e.g., United States v. St. Anthony R.R., 192 U.S. 524, 539 

(1904) (finding in context that “land within 2 miles, we assume all would agree, are so adjacent,” 

while lands twenty miles away would not qualify as “adjacent”). 

377. In promulgating their current regulations, the Agencies indicated that they require 

consideration of only those management objectives that already are “established” at the time of 

considering an exchange.  See 58 Fed. Reg. 60,904, 60,905 (Nov. 18, 1993); 59 Fed. Reg. 10,854, 

10,856 (Mar. 8, 1994).  Their regulations reflect that intent by referring to “established management 

objectives,” but the regulations do not prohibit consideration of potential future directions in land 

management.  See 36 C.F.R. § 254.3(b)(2); 43 C.F.R. § 2200.0-6(b). 



 

2013] Missing the Forest and the Trees 271 

above,
378

 uncontrolled development of the WUI has an enormous 

budgetary impact on all of the programs carried out by the Agencies and 

has a significant adverse impact on their ability to achieve their missions.  

Where local land use regulations are inadequate, the Agencies may need 

to fill the void.
379

  Moreover, in such cases of strong federal interests, the 

Agencies should consider a layering strategy that reinforces local 

regulations.
380

  After all, local land use regulation can change, as can 

enforcement capacity and policy.
381

 

Accordingly, the Agencies should consider new guidance providing 

that, for each land exchange proposal, agency staff should:  (1) evaluate 

whether use restrictions would reduce impacts on adjacent federal or 

Indian lands, including through consultation with other federal agencies 

and Indian tribes that could be adversely affected by future uses of 

exchanged federal land; (2) evaluate whether use restrictions could 

reduce impacts on adjacent federal or Indian lands from both intended 

and other reasonably foreseeable uses of the exchanged federal land; and 

(3) specifically evaluate the use of restrictions to reduce potential adverse 

impacts on federal or Indian lands from increased wildfire suppression 

and forest restoration costs,
382

 the spread of invasive species,
383

 the loss 
 

378. See discussion supra Part I. 

379. In 2009, Congress directed the Forest Service to pursue a number of land exchanges in the 

Mount Hood National Forest in Oregon.  In addition to requiring that the exchanges be subject to 

any Forest Service terms and conditions and a specific conservation and other easements, the law 

required the Forest Service to include deed restrictions to ensure that any development conformed 

with “nationally recognized codes for development in the wildland-urban interface and wildfire 

hazard mitigation.”  Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11, subtit. C, 

§ 106(d), 123 Stat. 991, 1022 (2009). 

380. See, e.g., Memorandum of Office of the Under Sec’y of Defense, Policy on Land Use 

Controls Associated with Environmental Restoration Activities 3–4 (Jan. 17, 2001), 

http://www.denix.osd.mil/references/upload/DoD-LUC_policyguidance.pdf (“The most effective 

method for implementing LUCs [i.e. land use controls to prevent or reduce risks to human health and 

the environment from real property being transferred out of federal control] is through a layering 

strategy or system of mutually reinforcing LUCs.”); see also supra note 352 and accompanying text 

(noting that such layered use restrictions likely will not result in significant costs to the Agencies). 

381. For example, the Town of Breckenridge, Colorado, is nestled within the White River 

National Forest, surrounded by a beetle-killed forest ecosystem that is naturally subject to infrequent 

but severe stand-replacing wildfires.  “The Town adopted a mandatory Defensible Space Ordinance 

in June of 2009. A group of citizens submitted a petition for referendum to repeal that ordinance.  

Rather than put the ordinance to a vote by the people, the Council decided to repeal the ordinance.  

A voluntary Defensible Space Ordinance was adopted shortly afterwards in August of 2009.”  Forest 

Management and Forest Health—Defensible Space, TOWN OF BRECKENRIDGE COLORADO, http://w 

ww.townofbreckenridge.com/index.aspx?page=738 (last visited June 20, 2013).   

382. Where local governments do not regulate development in the WUI through the use of a 

WUI code or similar building codes, access planning, defensible space, and development limitations 

to reduce the risks from wildfires, the Agencies should consider use restrictions designed to avoid 

future federal wildfire suppression costs and increased costs for federal hazardous fuel reduction and 



 

272 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

of open space,
384

 the restriction or expansion of access to federal lands,
385

 

watershed degradation, and climate change. 

The Agencies’ responsibilities also are heightened when other 

resources of national or regional significance may be adversely affected, 

as those resources are more likely to not be adequately protected by state 

and local governments and may benefit from a consistent federal 

approach.
386

  For example, executive orders currently require the 

Agencies to evaluate and, if necessary, include restrictions to protect 

wetlands and floodplains.
387

 

Accordingly, the Agencies should consider new guidance providing 

that, for each land exchange proposal, agency staff should evaluate 

whether use restrictions would reduce adverse impacts on resources or 

undertakings of national or regional importance, including:  (1) wildlife 

habitat; (2) endangered, threatened, and sensitive species;
388

 (3) 

 

restoration treatments in the area.  See, e.g., HEADWATERS ECONOMICS, supra note 9, at 8; cf. Four 

Threats—Quick Facts:  Wildland Urban Interface, U.S. FOREST SERV., http://www.fs.fed.us/projects 

/four-threats/facts/fire-fuels.shtml (last visited June 20, 2013) (“Homes and businesses found in 

WUIs are the most vulnerable to wildfires.  Residents in the WUI are advised to take steps to prevent 

fires from engulfing their properties.”). 

383. “The Chief of the USDA Forest Service has identified invasive species as one of the four 

critical threats to our Nation’s ecosystems.  In response to this national threat, we have evaluated the 

role of the Forest Service . . . .  We are aware of our significant role in addressing invasive species 

threats at the local, state, and national levels, as well as internationally.”  Invasive Species Program, 

U.S. FOREST SERV., http://www.fs.fed.us/invasivespecies/index.shtml (last visited June 20, 2013). 

384. “‘The loss of open space is an urgent and important problem, and the Forest Service clearly 

has a role in helping balance growth and development with open space conservation.’ . . . 

Development of open space affects the Forest Service’s ability to manage the National Forests and 

Grasslands, as well as our ability to help private landowners and communities manage their land for 

public and private benefits.”  Four Threats:  Loss of Open Space, U.S. FOREST SERV., http://www.fs 

.fed.us/projects/four-threats/index.shtml (last visited June 20, 2013) (quoting Abigail R. Kimbell, 

Chief, U.S. Forest Serv.).  Maintaining and improving open space by acquiring non-federal land is 

already an important goal of many land exchanges.  The Agencies should ensure that they consider 

the impacts of disposal on their overall open space strategies and goals. 

385. The Agencies already actively consider the need to maintain access to federal lands when 

exchanging land.  See, e.g., supra note 153 and accompanying text.  They also should consider the 

potential of such easements to exacerbate—and of use restrictions to reduce—the problems of 

unmanaged recreation.  “Decreasing availability of open space outside of public land along with the 

surge in the use of OHVs is likely to increase the demand for OHV use on NFS lands.”  Four 

Threats—Quick Facts, U.S. FOREST SERV., http://www.fs.fed.us/projects/four-threats/facts/unmanag 

ed-recreation.shtml (last visited June 20, 2013) (describing how public and private lands will be 

affected by the increasing use of off-highway vehicles). 

386. See supra text accompanying notes 125, 130; see also 43 U.S.C. § 1701(a)(1) (2012) 

(declaring congressional policy that “the public lands be retained in Federal ownership, unless . . . it 

is determined that disposal of a particular parcel will serve the national interest”). 

387. See supra note 151. 

388. See generally Keiter, supra note 74.  



 

2013] Missing the Forest and the Trees 273 

landscape-scale restoration plans and goals;
389

 (4) climate change 

adaptation and mitigation efforts; (5) air quality; and (6) water quality 

and quantity. 

E.  Costs:  Fiscal Cost Reduction 

The Agencies should seek to reduce the cost of incorporating, 

monitoring, and enforcing restrictions, consistent with best serving the 

public interest.  They must use restrictions efficiently.  There are a 

number of tried-and-true methods for doing so.  For example, restricting 

a use for a period of years (instead of perpetually) often will reduce the 

market cost of the restriction significantly, can reduce monitoring, 

enforcement, and modification costs, may address concerns of the non-

federal party to an exchange, and may provide adequate time for 

mitigation or local regulation.  Third party partnerships also can help to 

avoid or reduce monitoring and enforcement costs.
390

  Additional 

legislative authority to monitor and enforce use restrictions may be 

helpful.
391

 

Accordingly, the Agencies should consider new guidance providing 

that agency staff should (1) evaluate means to reduce the cost of use 

restrictions while still ensuring that the public interest is well served for 

each land exchange proposal; and (2) consider whether additional 

legislative authority would improve the effectiveness and efficiency of 

monitoring and enforcing use restrictions. 

F.   Adaptive Management:  Modifications to Use Restrictions 

The Agencies should develop guidance for modifying use restrictions 

that are not efficiently promoting the public interest and for revoking 

restrictions that are not and will not be useful.
392

  An active and well-

governed program for modifying and revoking restrictions is an 

important complement to a more active and flexible approach to using 

them.  Such a program need not always provide for significant 

 

389. See NAT’L RESEARCH COUNCIL, supra note 31, at 203–04; U.S. DEP’T OF AGRIC., FOREST 

SERV., FISCAL YEAR 2014 BUDGET JUSTIFICATION 5–54 (2013) [hereinafter “2014 BUDGET 

JUSTIFICATION”] (stating that the land exchange program “supports landscape scale management by 

consolidating ownership patterns, creating more contiguous habitat and managing benefits to the 

public and wildlife”); cf. Echeverria, supra note 29, at 16–17 (discussing why voluntary approaches 

are less effective than regulatory approaches in the context of landscape-scale conservation). 

390. See supra Part VII.B. 

391. For example, expanded authority to convey use restrictions to third parties or to secure 

funding for federal monitoring may be useful. 

392. See Korngold, supra note 29, at 486–87. 



 

274 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

monitoring responsibilities, as the owners of the conveyed federal land 

can be expected to initiate the effort when it is in their interest. 

Accordingly, the Agencies should establish a system for and provide 

guidance on modifying and revoking use restrictions.  Preliminarily, the 

BLM and Forest Service each need a database to record and track 

activity regarding the use restrictions they hold on land they have 

conveyed.  Guidance should provide for the periodic monitoring and 

review of such use restrictions to improve their efficiency and 

effectiveness, and such activity should be recorded in the database.  As 

with the initial decision to impose a use restriction, agency officials 

should determine that the public interest will be well served by making 

any modification.  When such opportunities are identified, agency 

officials should seek to recoup the fair value for any modification that 

would reduce the value of the restriction.
393

 

G. Land Management Planning:  Incorporation of Use Restrictions into 

the Process 

The Agencies generally identify lands that are suitable for disposal 

through their land management planning processes.
394

  However, they do 

not adequately consider the potential effect of use restrictions when 

identifying those lands.  In fact, the BLM reportedly has a policy “that if 

a tract of land is found to have public benefits which would require the 

imposition of some type of deed restriction, such tracts would not be 

disposed of, except in very limited circumstances.”
395

  However, a more 

active approach to including use restrictions may provide additional 

opportunities to convey federal land that has marginal value to the 

Agencies’ missions, and an expanded pool of land that is appropriate for 

disposal by exchange will expand the opportunities to acquire important 

land in return. 

Accordingly, the Agencies should consider new guidance providing 

that agency staff should consider the potential for use restrictions when 

 

393. Particularly in the case of the Forest Service, which has very limited authority to convey 

federal interests in land other than by exchange, securing additional authority to modify or revoke 

restrictions may be useful. 

394. See 36 C.F.R. § 254.3(f) (2013); 43 C.F.R. § 2200.0-6(g) (2013); see also U.S. DEP’T OF 

THE INTERIOR, BUREAU OF LAND MGMT., H-1601-1, LAND USE PLANNING HANDBOOK app. C at 20 

(Mar. 11, 2005), available at http://www.blm.gov/pgdata/etc/medialib/blm/ak/aktest/planning/plan 

ning_general.Par.65225.File.dat/blm_lup_handbook.pdf; FOREST SERVICE HANDBOOK, supra note 

114, at 1909.12 § 13.13g (Jan. 31, 2006).  The Forest Service also develops specific landownership 

adjustment plans or strategies in some circumstances. 

395. Nat’l Wildlife Fed’n, 87 IBLA 271, 282 n.10 (1985). 



 

2013] Missing the Forest and the Trees 275 

identifying land that is suitable for disposal by exchange during the 

development of land management plans.  For example, an isolated tract 

of BLM land that is difficult and inefficient for the Agency to manage 

should not be entirely eliminated from consideration for disposal by 

exchange merely because it includes historic resources of significant 

public interest.  If a use restriction would protect those resources and 

secure the public benefit, including that tract in the pool of potential land 

that could be exchanged may best serve the public interest. 

The basic analysis of the public interest in disposition during the land 

management planning process would essentially be the same as when the 

Agencies are presented with a proposal from a non-federal land exchange 

proponent who has identified a desirable federal parcel not identified in 

the relevant land management plan.  However, in the context of 

developing a comprehensive land management plan, the analysis would 

be driven more strongly by the Agencies and the public, and it may more 

broadly consider the public interest in managing the federal estate as a 

result. 

Given the historical abuses of the public interest that have sometimes 

infected federal land disposal decisions, such an approach may raise 

concerns about expanding the pool of federal land identified for disposal.  

As a result, a limited initial approach—such as for the exchange of 

disconnected tracts only—may be prudent.  In any approach, it would be 

important to specifically identify at the outset the public interests that 

might have to be protected through use restrictions when identifying such 

lands for disposal by exchange. 

H. Budget:  Reexamine Landownership Management Budgets 

The Agencies landownership management budgets are not adequate to 

support their land exchange needs.  For example, despite its expanding 

needs, the Forest Service’s land exchange budget has been cut by nearly 

one-third over the last decade.
396

  It is no wonder that Congress and land 

 

396. Compare U.S. DEP’T OF AGRIC., FOREST SERV., FY 2005 FOREST SERVICE BUDGET 

JUSTIFICATION 8-56 (2004) (stating that over $18 million was appropriated in fiscal year 2003 for 

the “Adjust Land Ownership” activity, which funds land exchange activities), with U.S. DEP’T OF 

AGRIC., FOREST SERV., FISCAL YEAR 2013 PRESIDENT’S BUDGET:  BUDGET JUSTIFICATION 5-42 

(2012) (stating that under $13 million was appropriated to fund land exchange activities in fiscal 

year 2012).  This substantially understates the magnitude of the effective budget decrease, as the 

figures are not adjusted for uncontrollable cost increases.  Relevant data from the Forest Service’s 

budget justifications is available for only six of the ten relevant years, but the uncontrollable cost 

increases average more than $257,000 per year, resulting in an estimated effective cut of nearly 50%.  



 

276 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 38:2 

exchange proponents have grown increasingly frustrated with the 

Agencies’ difficulties considering and processing land exchanges. 

Land exchanges are critical to achieving the missions of the Forest 

Service and BLM, especially with the increasing costs of wildfire 

suppression, the loss of open space, the impacts of climate change, the 

focus on landscape-scale restoration, and shrinking budgets.  A more 

active and flexible approach to use restrictions can help make land 

exchanges more efficient and effective, and may help to reinvigorate a 

program that has in many ways been abandoned.  But to realize the 

potential of use restrictions and land exchanges, the budget must be 

adequate to get their programs back up and running.  Accordingly, the 

Agencies, the Office of Management and Budget, and Congress should 

reevaluate the level of funding for carrying out land exchange programs. 

I. Executive Orders:  An Effective and Consistent Approach 

While congressional authorization and encouragement has not resulted 

in effective use of restrictions by the BLM and the Forest Service, 

executive orders have.  As a result, the Agencies routinely analyze the 

impacts of exchanges on floodplains and wetlands, and they include use 

restrictions to minimize any adverse impacts on those resources because 

they are required to do so by executive orders.
397

  The executive orders 

not only provide consistent and relatively clear direction to the Agencies, 

but they also establish consistent and clear expectations for non-federal 

proponents of land exchanges who might otherwise balk at use 

restrictions that appear to be less firmly grounded in policy. 

Many of the public interests that should be considered and promoted 

through use restrictions in land exchanges are not a subject of federal 

concern and regulation to the same extent as wetlands and floodplains.  

As a result, establishing overarching federal policy by executive order 

for use restrictions in land exchanges (or federal land disposals 

generally) is not likely to be either necessary or effective.  It may, 

however, be a necessary and effective approach for setting policy with 

regard to those public interests that require a strong federal protective 

role that can be clearly delineated through the use of restrictions, such as 

some of those described above in Part VIII.D. 

The President, considering the evaluation of the Agencies and the 

Council for Environmental Quality, should consider issuing one or more 

 

The President’s fiscal year 2014 budget proposes to cut the fiscal year 2013 level by more than 17%.  

See 2014 BUDGET JUSTIFICATION, supra note 389, at 5-51. 

397. See supra note 151. 



 

2013] Missing the Forest and the Trees 277 

executive orders to establish clear policies for minimizing the adverse 

impacts to public interests that are directly or indirectly caused by the 

disposal of federal land by exchange.  The existing executive orders that 

protect wetlands and floodplains provide a useful guide.
398

 

IX.  CONCLUSION 

Use restrictions can be a powerful tool to promote the interests of the 

public and the Agencies themselves, but they can also be a burden if they 

are not employed strategically.  Their indiscriminant use would be as 

detrimental as their indiscriminant rejection.  But their potential is too 

significant for the Agencies to ignore any longer. 

In 2013, federal land managers face a new reality of unprecedented 

threats to the natural resources they manage.  The blunt approaches 

developed for customary considerations are not up to the challenges of 

climate change, increasing uses of the public lands, and the growth of the 

WUI, for example.  Furthermore, after decades of land exchange 

scandals, the Agencies no longer can afford to ignore the tools they have 

to promote the public interest.  And with increasingly tight budgets, they 

must use those tools to promote efficiency. 

Thus far, the Agencies’ statutory and regulatory directives have failed 

to overcome their reluctance to broadly consider the public interest in 

including use restrictions when they convey public lands.  Judicial 

enforcement has attracted their attention, but not their interest.  With so 

much for the Agencies themselves to gain, however, there is hope that 

twenty years from now fewer entries will have been added to the 

volumes of lost opportunities for federal land exchanges. 

 

 

398. Id.