“… a shady world of back-room deals, special interests and cronyism.”
— Erica Rosenberg, Western Lands Project
The future of federal public lands lies in the hands of the U.S. Congress as empowered by the American public. Whatever winds of influence and ideology blow through Washington also stir across vast acreages of American lands in the public domain of the commons.
In Aspen, Pitkin County and the greater Roaring Fork Valley, land giveaways have been many, although nothing near the scale of the decades preceding Aspen’s founding when, throughout the American West, land grants were excessive and often rife with fraud and scandal. By the time Aspen was settled in the 1880s, the outrages of earlier land grants had received pushback by a concerned public and were acted upon by congressional oversight that ended the most egregious giveaways.
Still, plenty of public land was doled out regionally to mining interests, homesteaders, railroads, schools, churches and others for what today seem like absurdly low valuations. An Aspen Journalism analysis conducted by Data Editor Laurine Lassalle of records available through the Bureau of Land Management (BLM), General Land Office and Pitkin County turned up 1,175 patents issued in Pitkin County between 1880 and 1900. Information below is based on a further review of 97 of those patents.
For example, Roaring Fork Valley rancher Fred Light (1856-1931) filed for 160 acres of public lands in 1883 and, in 1886, paid $200 when the patent was approved. Light bought the land under a federal provision that invited homesteaders to file for patent under the 1820 Sale Cash Entry Act. The price was $1.25 per acre, about $40 per acre in today’s dollars.
Light’s “Box L Ranch,” in the Capitol Creek Valley, grew by additional acquisitions, including Light’s purchase of his wife’s family’s nearby ranch. A tribute written about Light as a civic leader recounted the profitability and size of his holdings. “Owning and operating with skill and success one of the finest ranches in Pitkin County, which is of ample size, comprising nine hundred and forty acres, and sufficiently fertile and productive to yield abundantly of cereals and hay and liberally support large numbers of cattle and horses. Frederick Light, of near Snow Mass, is so situated that he may laugh adversity to scorn and feel secure of an expanding and substantial prosperity during the remainder of his days.”
Light’s former homestead has, of course, escalated in value since his ownership. Today, the average value per acre in the Capitol Creek Valley is $69,000 for agricultural properties and $171,500 for agricultural/residential, according to an analysis of Pitkin County Assessor’s Office records.
Under a different federal land grant program, mining claims were granted to anyone who could prove that a property was economically viable, a stipulation of the Mining Law of 1872. Under this law, which is still on the books and widely considered antiquated, miners paid $5 per acre for both surface and mineral rights. Filers would often accrue multiple claims, as did a number of local partnerships from the early 1880s in Aspen’s first acquired mineral patents.
In 1884, a partnership of 10 individuals — including Josiah Deane, Aspen’s first lawyer and later patriarch of the T-Lazy-7 Ranch on Maroon Creek — was issued a patent on 4.49 acres for a mineral lode called “Mountain Ranger,” located near Little Annie Basin on the backside of Aspen Mountain. They paid $22.45 on the location claim first filed in 1881, the year the city of Aspen was incorporated with Deane’s legal guidance.
In 1884, a six-way partnership filed for a patent on a 5.85-acre mineral patent claim named “Grand Prize,” for which they paid $29.25. The partnership included David R.C. Brown and Henry “Grandpap” Cowenhoven, two of Aspen’s founding fathers who had arrived here in the summer of 1880 by wagons over Taylor Pass — the first wagons to enter the Roaring Fork Valley.
Brown is recorded in another partnership filed in 1887 with three others for the “Monongahila,” a mineral lode of 8.31 acres for which they paid $41.55. Brown and Cowenhoven partnered again in 1889 with four others on a claim called “Idlewild” of 13.04 acres for which they paid $65.20. Brown and Cowenhoven (sometimes in the name of Cowenhoven’s wife, Margaret, and Brown’s wife, Catherine, the daughter of the Cowenhovens’) appear in numerous entries, attributing to sound investments that made them Aspen’s first self-made millionaires.
Another Aspen namesake, Henry Tourtelotte, also appears in a number of entries, establishing patents on claims named “Tanner,” “Buckhorn,” “Castle” and “Silver Bell.” Many of these claim names are familiar today as mountain peaks, ski runs and campgrounds. Another local mining scion, Horace Augustus Warner (HAW) Tabor, shows up in many records associated with Montezuma Basin and the Montezuma claim, a mine he owned that remains visible today at a nosebleed altitude high above Castle Creek. Tabor, known as “The Silver King of Leadville,” brought his entrepreneurial reputation to Aspen along with an opera singer named Baby Doe with whom he had a notorious love affair.
Prominent founding Aspenites David Hyman and Jerome B. Wheeler are also listed in numerous patent entries as among the earliest investors in Aspen mining claims such as “Mose,” “Little Maggie,” “Dolly Dot,” “Morning Star,” “Little Nell,” “Alaska,” “Siberia” and “Durant.” Hyman and Wheeler represented Eastern capital, which was essential to Aspen’s development and which enabled the nascent city to sustain ore production years before the city’s two railroads ran tracks to Aspen and gave it economic viability. Hyman was a prominent lawyer from Cincinnati and was Aspen’s first major mining investor. Wheeler, for whom the Hotel Jerome and the Wheeler Opera House are named, was married into the Macy family wealth, owners of New York City’s first department store.
The Smuggler Mining Co., whose name still marks the mountain and open space playground bounding Aspen to the east, shows patents that provided access and ownership to one of Aspen’s richest silver mines. It was from the Smuggler Mine in 1893 that the largest-ever nugget of almost-pure silver, weighing more than 1,800 pounds, was broken into three pieces so it could be extracted and paraded on a horse-drawn wagon through the thriving city at the verge of the Silver Crash of 1893 when silver was demonetized and the U.S. currency shifted to the gold standard, abruptly and dramatically curtailing Aspen’s thriving mining industry.
Today, historic patented mining claims hold far-different valuations, not for industrial mining potential, but as real estate valued as high-end properties in Aspen’s resort economy. For what the records show as “mines” in Aspen, the valuation goes from an historic low of $4.50 per acre to $500,000 per acre today.
The Denver & Rio Grande Western (D&RGW) and the Colorado Midland built their tracks to Aspen from Leadville, surmounting the Continental Divide on trestles, through tunnels and around winding switchbacks, the construction of which required monumental physical labor. Those rights-of-way remain public thoroughfares today as the Rio Grande Trail (D&RGW) and Highway 82 (Colorado Midland).
The railroads were granted swaths of public lands as an incentive to build tracks and open the West to resource development. Roaring Fork commerce served silver mining and agriculture for which two competing railroads laid tracks over and through the mountains. Unlike earlier railroad ventures in the U.S. that brought commerce and trade to the nation and received vast land grants, Aspen’s two local railroads were granted only their rights-of-way, which still added up to considerable acreage, albeit linear and confined to specific corridors.
Cashing out the commons
As generous and readily available as local land grants were, the Roaring Fork Valley was small potatoes compared with enormous public land grants that mark vast Western landscapes today and could foreshadow a similar trend if the political powers that be in Washington take on the directives and intentions of the current Trump administration.
In a comprehensive 2009 report published by the Western Lands Project, “Carving Up the Commons: Congress & Our Public Lands,” its author, Janine Blaeloch, lays out the history of public land divestitures and describes the many ways public lands can become privatized, something the Trump administration has been applying as a means of capitalizing on extractive national assets. This is not the first time a Republican administration has attempted to commoditize the commons.
“Ronald Reagan’s Interior Secretary, James Watt, famously proposed during Reagan’s presidency (1981-1989) that public lands be sold to pay down the federal deficit,” Blaeloch wrote. “The Bush administration’s (2001-2009) budget for 2007 called for the sale of $800 million worth of U.S. Forest Service lands over five years and $182 million in public lands managed by the Bureau of Land Management (BLM) in the same time period.
“These periodic high-profile, sweeping, ideologically driven land disposal schemes gain the public’s attention because they are so over the top. What the public is largely not aware of is the fact that smaller scale disposal schemes are being enacted every day — often by the same politicians who declaim their love for the environment and public land.”
Legislative initiatives are receiving strong encouragement from the current Trump administration to parcel and sell off, trade or otherwise divest national public lands and put them into private hands, severing existing protections, means of preservation and ultimately public access. Although such current directives may lead to a new precedent of commoditization, they are part of a long and controversial history.
On April 23, historian and blog phenomenon Heather Cox Richardson wrote in her daily “Letters From an American” a warning that the Department of Agriculture (which administers the U.S. Forest Service) and the Bureau of Land Management (which is under the Department of the Interior) have been gearing up for a wholesale liquidation of the American commons.
“Today,” wrote Cox Richardson, “the White House under President Donald J. Trump celebrated Earth Day by announcing that the White House champions ‘opening more federal lands and waters for oil, gas and critical mineral extraction.’”
Cox Richardson pointed out that, in fact, public lands already benefit the nation by generating billions of dollars a year for the United States through tourism.
“Since the 1970s,” she wrote, “the right wing has come to see the public ownership of lands as an affront to the idea that individuals should be able to use the resources they believe God has put there for them to use.
“Developers have encouraged that ideology, for privatization of America’s Western lands has always meant that they ended up in the hands of a few wealthy individuals.”
The conservative political agenda outlined in Project 2025, she noted, calls for a giveaway to oil and gas and mining interests by “opening up more of our federal land to energy development, rolling back protections on federal lands, and selling off more land to private developers.”
Interior Secretary Doug Burgum made it clear in his January confirmation hearings, Cox Richardson wrote, “that he sees selling the public lands as a source of revenue, referring to them as ‘America’s balance sheet.’”
“We’ve got $36 trillion in debt,” Burgum said, as quoted by Cox Richardson, “but we never talk about the assets, and the assets are the land and minerals. The Interior Department has got close to 500 million acres of surface, 700 million acres of subsurface, and over 2 billion acres of offshore. That’s the balance sheet of America. I believe we ought to have a deep inventory of all the assets in America. We ought to understand … what [is] our assets: $100 trillion, $200 trillion? We could be in great shape as a country.”
Bipartisan support for public lands
The Trump-era initiative to monetize public lands hit a roadblock, however, after bipartisan support for public lands overwhelmed the direction Burgum and the Trump administration had fomented both as an ongoing policy directive and as described in the GOP’s Big Beautiful Bill, which was voted in by Congress and signed into law by the president July 4.
A draft version of that bill had called for selling 0.5% to 0.75% of U.S. Forest Service and BLM lands in 11 Western states and for selling 0.25% to 0.5% of BLM lands within 5 miles of the border of a U.S. population center.
“A proposal to sell federal public lands,” Caitlyn Kim on Colorado Public Radio News reported June 29, “has officially been taken out of the Republicans’ spending and tax bill after facing strong pushback from hunters, fishermen, outdoor recreation users and, most importantly, Republicans in the U.S. Senate and House.”
U.S. Sen. Mike Lee (R-Utah), the chief elected Republican advocate for the sell-off, announced the removal of the public lands divestiture from the bill, blaming the decision on the budget reconciliation process and explaining that he could not get a safeguard to guarantee that the land would be sold only to American families.
CPR News reported that Lee “said he continues to believe the federal government ‘owns far too much land’ that he said is mismanaged and that ‘massive swaths of the West are being locked away from the people who live there.’ He indicated that he wasn’t giving up altogether, adding that he would work with President Donald Trump to ‘put underutilized federal land to work for American families.’”
However, according to the CPR report, “the decision [to delete public-land sales] also came after other Senate Republicans from the West said they opposed the idea and would offer an amendment to get it taken out of the bill. Five House Republicans also said they would vote against the GOP’s Big Beautiful Bill if it remained in.”
Colorado lawmakers celebrated the removal of public-land sales from the GOP bill as a defining endorsement for the value most Americans feel toward protecting the American commons. Rep. Joe Neguse (D-Colo.) wrote on social media: “The American people — and our public lands — have won!”
CPR News reported that Neguse and Rep. Jeff Hurd (R-Colo.) had issued a joint statement opposing public-land sales in an acknowledgment of unity for protecting a key American legacy that crosses the aisles of Congress. “Republican or Democrat — representing red, purple or blue districts — one sentiment continues to ring true: Public lands are not for sale.”
Sen. Michael Bennet (D-Colo.) wrote on social media: “This is a huge victory for Colorado and the West. Thank you to everyone who made their voice heard and fought back against this dangerous provision. America’s public lands belong to all of us.”
“Protecting public lands is the most nonpartisan issue in the country,” Chris Wood, president and CEO of Trout Unlimited, said in a statement quoted by CPR News. “This is certainly not the first attempt to privatize or transfer our public lands, and it won’t be the last. We must stay vigilant and defend the places we love to fish, hike, hunt and explore.”
Taking a stand on the land
Despite this most recent halt of public land sales, the threat is far from over, warns Blaeloch, whose 20-year advocacy mission before the Western Lands Project ceded its role to Wild Earth Guardians in 2016 was to “scrutinize public land trades, sales, giveaways and any project that would cede public land, and their impacts on habitat and wildlife, natural resources, land use and communities. The goal of Western Lands Project is to keep public lands public.”
“We are about to return to the Golden Age of land acquisitions for private benefit,” Blaeloch said in an Aspen Journalism interview in April. In her focused role as public lands defender, Blaeloch said, “We realized that the Forest Service and BLM conduct hundreds of land deals every year, mostly without public involvement. I like clarity and transparency, and I thought it was unfair that deals were being made without the public interest.”
Erica Rosenberg, a former president of Western Lands Project, concludes in the introduction to Blaeloch’s report: “Congressional processes threaten to trade away, sell or give away our public land heritage — piece by piece — through a shady world of back-room deals, special interests and cronyism.”
So, Blaeloch, digging into her background as a career environmental planner, has pushed back with the goal of making federal land management agencies accountable by tracking land deals, educating the public at the grassroots, and also by educating Congress on what has long been a veiled aspect of American land use on the federal level.
Free land for railroad and lumber industries
Blaeloch’s report for the Western Lands Project stated that the most opportune era in U.S. history for collusion in acquiring public lands dirt cheap or at no cost at all took place from the mid-1800s up to the early 1900s through manipulative deals benefitting large railroad interests and the fast-growing lumber industry.
“Between 1850 and 1870,” writes Blaeloch, “the federal government granted 131 million acres of public land to railroad corporations as incentive for westward expansion. These railroad land grants comprised one of the largest categories of public land disposal in U.S. history, after cash sale, homestead grants to individuals, and grants to the states for education and other purposes.”
For example, Blaeloch reports, “the Northern Pacific Railroad, which was to construct its line from St. Paul, Minnesota, to Tacoma, Washington, was granted 38.9 million acres, including 9.6 million acres in Washington state. Several other land grants were added to what would more than a century later become the Burlington Northern-Santa Fe Railroad, for an additional total of more than 47 million acres.”
These generous railroad land grants were typically given in alternating square miles extending out from the railroad lines and forming a “checkerboard” land-ownership pattern of public/private land that is still visible on many maps and to anyone who chances to gaze out the window of an airplane while flying over the clear-cut forests of the Pacific Northwest.
Land giveaways to railroads were originally intended to encourage Western settlement as the American frontier expanded. It was assumed that land along the railroad lines would become desirable, enabling the railroads and federal government to capitalize by selling their alternating public/private parcels to settlers who would benefit from nearby rail service.
“In fact,” writes Blaeloch, “the railroads kept much of their grant land, and the federal government designated many of its checkerboards as national forest. Nearly all of the railroad land ‘grants’ were in fact intended to be temporary transfers of public land that the railroads were supposed to sell in turn to ‘actual settlers’ to raise money for railroad construction.”
Some railroad companies kept their land grants even though they failed to build, and some transferred former public lands and the wealth they generated to cronies, including elected officials.
“By 1870,” writes Blaeloch, “the public had grown disgusted with the scandals and waste flowing from the railroad land grants, and this particular brand of public land giveaway ceased. By this time, too, the public was increasingly concerned about having reached the limits of free land and resources, and there was great controversy around the rapid liquidation of the country’s forests.”
By the end of the 19th century, the debate between forest preservation and utilitarian wise use was at full pitch. Preservation was strongly advocated by Sierra Club founder John Muir and his disciples. Utilitarian wise use was advocated by Gifford Pinchot, the country’s first Forest Service chief under President Theodore Roosevelt. Timber and mining industries actively lobbied for Pinchot’s view of the land as commodity, countering Muir’s view of the natural landscape as a necessary and valid public benefit.
Despoiling the garden
In his 1982 book, “Westward in Eden: The Public Lands and the Conservation Movement,” author William K. Wyant, a former Washington correspondent for the St. Louis Post-Dispatch, raises, as a popular conception, the idea of the land as ultimately exploitable: “The American has usually seen real estate as expendable,” he writes. “It is something of which there is assumed to be plenty more … somewhere else.”
When Ronald Reagan won the presidency in 1980, writes Wyant, the Republican mandate was to shrink government and its influences, and to cut regulations on industry. This afforded a propitious launch of the Sagebrush Rebellion, which advocated shifting federal lands in the West to the states. “The United States had at the outset an incomparable Garden of Eden to dress and keep, as the Old Testament phrases it,” wrote Wyant. “Its husbandry has been at sometimes profligate, greedy and short-sighted and at other times blessed with extraordinary vision.”
Wyant idealistically describes the continental United States as a vast and pristine wilderness, “a domain of incredible richness — virgin forests, great rivers, the prairies and high plains, the shining Rockies, the arid and sandy wastes and the golden Pacific shore. The early settlers found it majestic and unspoiled, and they plunged into it, defiant of restraints.”
But without restraints, the commons suffered immeasurable abuse and exploitation, as a statement from Pinchot made clear in the early 20th century: “Outside the tropics, American forests were the richest and most productive on Earth, and the best able to repay good management. But nobody had begun to manage any part of them with an eye to the future. On the contrary, the greatest, the swiftest, the most efficient and the most appalling wave of forest destruction in human history was then swelling to its climax in the United States; and the American people were glad of it.”
Rapacious companies such as logging giant Weyerhaeuser saw forested public lands not as cathedrals, as did Muir, but as wood lots. By 1974, cites Wyant, Weyerhaeuser owned outright more than 5.5 million acres, a holding bigger than the state of Massachusetts.
U.S. Sen. Gale McGee (1915-92) who served in Congress from 1959 to 1977 as one of the last Democrats to hail from Wyoming, in testimony in 1971, said, “Today, the once-great forests of our nation have been depleted to the point that would shame Paul
Bunyan. It is time to cease measuring the value of our public forests on the scale of board-feet of timber.”
Vast land giveaways were enabled by the 1862 Railroad Act, writes Wyant, when a number of private railroad companies were allocated $65 million in federal loans and handed a total 110 million acres of public domain. In 1864, an even more generous provision was made when the Northern Pacific Railroad, then building a 2,128-mile line from St. Paul to Tacoma received millions of acres of public lands, including about one-fourth of the state of North Dakota and 15% of Montana.
This largesse was coupled with political influence from railroad magnates who lobbied Congress for more land. Support for outrageous public behests also came from politicians who favored rail subsidies in exchange for locating lines in cities and towns that benefitted their constituents in blatant acts of patronage. Industry and business were in on the take at the expense of the commons.
“All in all,” writes Wyant, “Congress gave to the railroads an area nearly twice the size of Colorado and one-third as large as Alaska.” Another gift of the commons came to the railroads in the Forest Management Act of 1897, which allowed land-holders within newly designated and protected forest reserves to exchange, acre-for-acre, their holdings for lands that were outside the reserves.
Under this act, writes Wyant, rail barons were permitted to swap millions of acres of mountainous, desert, cutover or otherwise useless land for “in lieu” timber acreage of far greater value. The railroads then made deals with lumber companies by not only selling their holdings, but transporting for a profit the timber that was harvested from them. Loggers and railroads latched onto the mutual benefits of collusion in the exploitation of public lands, with no evident moral, ethical or ecological considerations.
After a hue and cry of protest from rising ranks of conservationists, the “in lieu” provision was repealed in 1905. However, eight years of rampant profiteering had already privatized huge chunks of the commons.
“In addition to the scars on the land,” writes Blaeloch, “the behavior pattern, too, was carried forward, and the companies established a paradigm that brought them enormous profits at the expense of the public interest, neatly disguised as ‘win-win’ deals. It is a pattern that shows itself time and again in land deals driven by politics, privilege and greed.”
A regional comparison is necessary to grasp the scale of land acquisitions by logging companies: The White River National Forest covers 2.3 million acres, one of the largest forests in the United States. The Emmerson family, which owns and operates Sierra Pacific Industries, a family legacy company since 1949 that logs usable lumber after forest fires and sells it to lumber retailers, owns 2.4 million acres in three Western states: California, Oregon and Washington. How did one family carve out of the American commons acreage greater than the largest national forest in Colorado? Timber.
Still, Wyant surmises, rising ranks of professional and educated conservationists have achieved national influence in the aftermath of public lands feeding frenzies. “An impressive machinery for the defense of the environment and public lands has been built,” he concludes. “Until it is more firmly in place and has the steady acceptance of the American people, we shall owe a heavy debt to the corporal’s guard of environmental lawyers and professional conservationists who man the ramparts while others sleep.”
Congress, freewheeling land deals and FLPMA
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. — U.S. Constitution, Article IV, section 3, clause 2 (Property Clause)
As environmentalists and public land activists have become aware of the chipping away of public lands through land sales and exchanges, they realized that deals were being made through Congress with questionable legitimacy.
“Congress members,” writes Blaeloch, “were free to wheel, deal, carve up and give away public lands with no rules to hinder them.”
Although some deals were negotiated with bipartisan agreement, many were split down party lines. Geography has also played a role. Blaeloch reports that in the area of protecting public lands, “Republicans favor less of it than Democrats. As a party, Democrats have a far better record on public land protection, but the more consequential split is between Western and Eastern politicians, with easterners being more protective than westerners where public lands are in far greater supply.”
“However, it is by no means just ideology or geography that inspires congressional land deals,” writes Blaeloch. “Frequently, the bottom line is the direct, pragmatic opportunity to reward friends or curry political favor through the gift of public lands.”
In reaction to the gradual expansion of a national conservation ethic, Congress in 1976 passed the Federal Land Policy and Management Act (FLPMA), which gave broad authority to the BLM and Forest Service to implement land transactions by ideally providing a more rational, consistent and transparent process.
“It was not until 1976,” writes Blaeloch, “with the passage of FLPMA, that Congress officially closed the frontier, declaring that ‘it is the policy of the United States that the public lands be retained in federal ownership, unless as a result of the land use planning procedure provided for in this Act, it is determined that disposal of a particular parcel will serve the national interest.’ FLPMA established procedures, primarily for the BLM, to identify areas that should be retained for conservation purposes.”
According to an artificial intelligence search, FLPMA “mandates a multiple-use and sustained-yield approach, balancing resource extraction and commercial activities with conservation of natural and cultural resources. The act requires the BLM to periodically inventory public lands and their resources to develop management plans that balance various uses. FLPMA also requires the BLM to coordinate with state and local governments and provide for meaningful citizen involvement in land use planning such as land exchanges that allow the BLM to trade federal land for other land of potentially greater public value. FLPMA also mandates the protection of scientific, scenic, historic, ecological, and other resources, and the management of areas like wilderness study areas and Areas of Critical Environmental Concern (ACEC).”
Such managerial responsibilities provide oversight, explains Blaeloch, making land transfers more transparent and, as a result of increased public and administrative input, more complex. Many transfers are undertaken to eliminate private inholdings within the public domain, thereby consolidating larger areas of contiguous public land for more effective management. Other benefits include protecting watersheds or other sensitive lands and to serve other genuine public interest purposes.
Regarding the giving away or selling of public lands, writes Blaeloch, federal land agencies have been limited in their authority and they are not allowed to give it away. “By contrast, members of Congress may approve sales or giveaways of any size or nature, limited only by what they believe they can justify.” She warns, however, that congressional exchanges are often subject to little scrutiny or public involvement, with vague language in the FLPMA establishing a guideline that land disposals must “serve the national interest.” Defining “national interest” is key to the future of public lands.
Regarding land transfers, Blaeloch writes: “Perhaps their most basic flaw is that most are designed to serve narrow special interests, even where they purport to serve a greater good. It is now well established that land exchanges and sales implemented by the public land agencies — that is, through the administrative process — can be ill-conceived, badly executed and damaging to the public interest.”
One safeguard is the National Environmental Policy Act (NEPA), which provides strict guidelines by requiring environmental analysis and disclosure, as well as opportunities for citizen input. FLPMA dictates that land exchanges must serve the public interest and yield equal value to both or multiple sides in the transaction.
The following protections are required under NEPA and FLPMA against specious land exchanges:
• Public notification to ensure that the affected communities are aware of the proposal and its scope.
• Environmental analysis of the trade’s impacts, including the impact on public lands that would be traded away.
• Analysis of a range of alternatives for the exchange including “no action,” different exchange configurations, outright purchase of private lands, and development restrictions on land traded to the private party.
• Analysis of the ecological and other values on lands that would come into public ownership.
• Formal opportunities for the public to respond to and ask for changes in the proposal, including public hearings and comment periods. In addition, the agency is required to respond to substantive comments and incorporate legitimate concerns into the proposal.
• A “public interest determination” compiled by the agency that outlines the reasons/justification for the trade.
• The right to appeal the decision if it is not in the public interest and/or the right to challenge the adequacy of the NEPA analysis.
• Public disclosure of appraisal information once the agency’s “preferred alternative” is identified and before the land deeds are transferred.
Blaeloch cautions that the administrative route to land sales and exchanges provides a clearly delineated, predictable process. By contrast, she lists the reasons why the congressional route guarantees none of the safeguards provided in statutes and regulations:
•A member of Congress can put any kind of land deal he or she desires into a piece of legislation, and none of the provisions listed above need to be included.
• Public notification is not required; citizens learn about a legislated land trade by luck; by the grace of the proponent or congressional sponsor; in the news; or by searching the congressional website.
• Environmental analysis is occasionally required but is often truncated and far more often omitted altogether.
• Opportunities for public input are available through contacting members of Congress or submitting written or oral testimony for congressional hearings.
• There is no right to appeal a land bill. Citizens cannot file an appeal against or sue Congress. In rare cases, it is possible to sue the agency over its implementation of a legislated exchange if it does not comply with the legislation that directed it.
• There is no requirement for the disclosure of appraisal information. A “summary” of appraisal data may be made available; otherwise, complete appraisal information for a congressional land trade is probably available only after deeds have changed hands — assuming appraisals were conducted in the first place.
“Custom-written bills can provide the proponents with special provisions and guarantees they would not be able to secure through the agencies,” writes Blaeloch. “Proponents can manipulate the appraisal standards, bypass environmental analysis, set an absolute deadline for the transfer of deeds, and add custom provisions that are beneficial to the private parties. This emphasizes why it is a civic duty for American citizens to become involved in any decisions regarding public lands, whether management or transactions.”
Key events in the historic transfer of public lands to private hands (from “Carving Up the Commons,” published in 2009 by the Western Lands Project).
• The Land Act of 1796 authorized public auctions of federal land.
• The General Land Office was created in 1812 to administer the disposal of public lands.
• By 1820, Congress had passed 24 acts granting to settler-squatters the right of preemption, allowing them to buy land without competitive bidding.
• A series of railroad land grants between 1850 and 1870 allowed several dozen private railroads to acquire and sell public lands in order to raise capital to build the nation’s railroad and telegraph systems.
• The 1862 Homestead Act authorized settlers to claim 160 acres of any land subject to preemption, and later to any unsurveyed land. The homestead was granted free for a nominal filing fee, but title was not transferred until the land had been settled and cultivated for three years.
• The General Mining Law of 1872 allowed anyone to file a mineral claim on public lands and receive a patent to the land for $5 per acre or less. Under this law, more than 3 million acres of federal land have been patented. The law is still on the books.
• The Desert Lands Act, Timber Culture Act, and Timber and Stone Act — all of which were advanced in the 1870s — made more land available to settlers and industries.
• By the early 20th century, the federal government had granted or sold more than 1 billion acres, or 70% of the continental United States.
This story, and Aspen Journalism’s ongoing coverage of challenges facing local public lands, is supported by a grant from the Fund for Investigative Journalism.