Continued Cartographic Chaos, Or a New Paradigm in Public Land Reconfiguration? The Effect of New Laws Authorizing Limited Sales of Public Land

Abstract

A recent report by the United States General Accounting Office stated that the federal government's primary means of land reconfiguration, the land exchange, was so fraught with problems that it recommended Congress discontinue all land exchange programs. (1) At least one Congressional Representative, not apt to mince his words, stated that the Bureau of Land Management and the Forest Service, the two principal land management agencies, flat got conducting exchanges. (2) His comments reflect an all too common perception that something is fundamentally wrong with the way the federal government conducts land reconfiguration. Partially in response to such criticism, Congress has passed several pieces of legislation aimed at reforming the land reconfiguration process in recent years. The first was the Southern Nevada Public Land Management Act of 1998. (3) More recently, the Federal Land Transaction Facilitation Act of 2000 was signed into law. (4) Both Acts authorize the sale of land and the retention of the proceeds by the land management agencies in order to purchase private land better suited for conservation and protection. The two Acts differ remarkably in terms of scope and authority. In many ways the sale processes authorized by these Acts appear to solve or avoid many of the problems that have plagued the traditional land exchange process. Therefore, these laws are an important step in the evolution of western land reconfiguration. In other ways, these new laws fail to meet their statutory intent. Part I of this note will examine how the land disposition laws of the nineteenth century resulted in a fragmented pattern of western land ownership. In addition, it will detail how the land exchange process became the solution. Part II will explore some of the problems and criticisms of the land exchange process, which have lead many to claim that the federal government gets snookered conducting land exchanges. Part III will survey the Southern Nevada Public Lands Management Act of 1998 and the Federal Land Transaction Facilitation Act of 2000. This note will compare and contrast the scope and authority of the two laws and point out each Act's relative strengths and weakness. Finally, this note will conclude by submitting that while the two Acts are clearly aimed at encouraging better land management and reconfiguration, only the Southern Nevada Act will ultimately be successful. I. FRAGMENTED WESTERN LAND OWNERSHIP AND THE ROLE OF THE LAND EXCHANGE As of 1998, the federal government owned more then 29 percent of the United States total landmass, some 654 million acres. (5) Often called the public domain or the public lands, most of this land is concentrated in 12 western states. (6) But this represents only a fraction of what the federal government once owned. Beginning in mid-nineteenth century, the official policy of the United States was to dispose of the lands in order to promote settlement and development of the West. To further this policy Congress gave away lands through various provisions such as the Homestead Act of 1862 and the Desert Lands Act of 1877. (7) To increase settlement, Congress encouraged the building of railroads throughout the west by passing the Act of July 1, 1862, which helped finance the Union Pacific and Central Pacific railroads. (8) The Act granted the railroads alternating one square mile sections (640 acres) of lands along the route. (9) All told, the federal government granted over 130 million acres of land to the railroads in this alternating pattern. (10) The railroad grants resulted in the checkerboard problem, a pattern of ownership whereby neither a private owner nor the can gain access to its property without encroaching on the others land. (11) Adding to this intermingled pattern of western land ownership were an array of grants made to the states in order to promote education. …