The Bureau of Land Management (BLM) conducts land exchanges with other land owners to acquire and dispose of land. The agency is authorized to conduct land exchanges under the Federal Land Policy and Management Act (FLPMA) of 1976. Additionally, Congress sometimes enacts legislation authorizing and governing specific land exchanges.
FLPMA governs how administrative exchanges are to occur. For instance, land exchanges must be in the public interest, and the federal and nonfederal lands in the exchange are to be in the same state. Further, the values of the lands exchanged are to be equal, although payments to equalize value may be made under specified terms. Typically, BLM and the other parties share equally in the administrative costs. While some exchanges involve single parcels, assembled land exchanges consist of a consolidation of multiple parcels for one or more exchanges over time. Lands acquired by BLM by exchange become public lands managed under existing authorities.
The land exchange process generally has five phases: development of an exchange proposal, feasibility evaluation, processing and documentation, decision analysis and approval, and title transfer. Each phase typically involves multiple actions. For example, processing and documentation includes title review; public notice and comment; identification and resolution of environmental issues; assessments of mineral, cultural, and other resources; Native American consultations; threatened and endangered species consultations; and preparation of land appraisals. The appraisal and environmental analysis often are the most challenging and time-consuming parts of the process. Legislated exchanges generally follow this process as well, unless otherwise directed by Congress.
Some BLM land exchanges have been controversial. Concerns earlier in the decade centered on the benefits to the public, determinations of market value, and contradictions in policies and procedures. In response, BLM implemented changes to the appraisal and exchange processes. More recent government reports (in 2009) have focused on delays in appraisals and various aspects of the exchange process. First, the Government Accountability Office (GAO) examined the effectiveness of agency actions to improve exchanges and made recommendations for further improvement. Second, appropriators expressed concerns with appraisals and exchanges and directed the agencies to take certain actions and to report back to Congress on progress in making reforms. Third, the Office of Inspector General (OIG) of the Department of the Interior (DOI) evaluated the services of DOI's consolidated appraisal office and issued recommendations.
In 2010, DOI and BLM implemented changes in response to the GAO, congressional, and OIG recommendations. In March, DOI sent a reform plan to congressional appropriators to improve appraisals. In May 2010, the Secretary of the Interior changed the organization and operation of the appraisal services function. Also in May 2010, BLM issued a series of instruction memoranda on land exchanges containing additional policies and guidance. Other reforms are ongoing.
A key issue for Congress is the extent to which the reforms to the exchange process and appraisal function will address perceived problems and improve land transactions. Another issue for Congress is whether to discontinue BLM's administrative exchanges on the grounds that they have been problematic and inherently difficult, and in some cases have been superseded by newer BLM authorities to sell or exchange land. Supporters continue to view administrative exchanges as useful to change the "checkerboard" pattern of land ownership in the West, and to increase the efficiency of land management while decreasing management costs.
A land exchange, popularly viewed as a swap or a trade, is a real estate transaction where the disposal (sale) and acquisition (purchase) of land are combined. The Bureau of Land Management (BLM), in the Department of the Interior (DOI), is authorized to exchange land or interests1 in land under the Federal Land Policy and Management Act of 1976 (FLPMA), as amended by the Federal Land Exchange Facilitation Act of 1988 (FLEFA), as well as under other authorities.2 Exchanges under FLPMA often are referred to as discretionary exchanges, because FLPMA does not require the agency and nonfederal parties to exchange lands. BLM implementing regulations are contained in 43 C.F.R. §2200. Additional information is contained in BLM's Land Exchange Handbook3 and various agency instruction memoranda. Selected provisions of these sources are summarized below in the section entitled "Basic Rules for Exchanges."
Additionally, Congress sometimes enacts legislation authorizing and governing specific land exchanges. Legislated land exchanges generally follow the process and procedures outlined in this report, unless the statute provides otherwise. Legislated exchanges are discussed below under "Legislated Land Exchanges."
BLM conducted far fewer legislated exchanges than administrative ones in recent years, according to a 2009 report of the Government Accountability Office (GAO). Specifically, of the 76 exchanges processed4 by BLM from October 2004 through June 2008, nine were specifically legislated by Congress.5 Legislated land exchanges also have been enacted for other agencies, including the Forest Service, Fish and Wildlife Service, and National Park Service.
The total number of land exchanges completed by BLM varies from year to year. In general, there has been a decline in the number of exchanges over the past decade. The decline has been attributed to a variety of reasons, such as reductions in experienced realty staff and in funding for exchanges, changing priorities, and preferences for land sales under other authorities.6
Specifically, from FY2003-FY2009, BLM issued 396 deeds or patents for exchanged lands,7 totaling 176,828 acres with an appraised value of $137.7 million. Over the seven-year period, an annual average of 57 deeds or patents were issued covering 25,261 acres, with an average annual value of $19.7 million. In the most recent fiscal year, FY2009, the number of deeds/patents issued and their associated acreage was the lowest over the seven-year period, although the dollar value was proportionately higher than other years. Specifically, 11 deeds or patents were issued for exchanged lands, encompassing 5,845 acres with a value of $15.5 million.
Also from FY2003-FY2009, BLM received 103 deeds for exchanged land,8 totaling 146,930 acres with a value of $129.4 million. Over the seven-year period, an annual average of 15 deeds were received covering 20,990 acres, with an average value of $18.5 million. In FY2009, BLM received six deeds for exchanged lands, the lowest number (also in FY2007) over the seven-year period. However, the number of acres received in FY2009, 19,789, was close to the seven-year average, and the value of the lands, $33.6 million, was the second-highest during the period.9
Exchanges can be used to change the "checkerboard" pattern of federal, state, and privately owned lands in the West that resulted from early land grants. Land consolidation can increase the efficiency of land management and decrease management costs. Exchanges allow for land transactions on a large scale; they can be used to consolidate hundreds of scattered, isolated tracts that likely would have no chance of sale to one owner. Also, exchanges may be valuable for facilitating transactions with private landowners who want land instead of cash, and for reconfiguring state lands.
BLM land exchanges have sometimes been controversial. Federal audits performed over the past decade criticized some exchanges for short-changing the public. For instance, they concluded that in some cases BLM did not demonstrate that the public value of the lands acquired at least matched the public value of the land disposed of, and that in other cases there were political pressures to change or ignore determinations of market value to facilitate the exchange. Audits were performed by GAO, the DOI Office of Inspector General (OIG), and The Appraisal Foundation (TAF).10 These audits received significant attention from Congress, DOI, the media, and interest groups. In response, BLM and DOI implemented changes, perhaps most notably the consolidation of appraisal functions in a new office in 2003 and the subsequent reorganization of that office in 2010 (discussed below).
This section provides a brief summary of the rules and process for conducting administrative land exchanges.11 As noted, legislated land exchanges generally follow the process and procedures outlined below, unless Congress provides otherwise. Additional information on legislated exchanges follows this section under the heading "Legislated Land Exchanges."
FLPMA requires that the federal and nonfederal lands in an exchange must be located within the same state.
Land exchanges must be in the public interest. Public land may be exchanged if the Secretary of the Interior determines that the public interest will be "well served" (43 U.S.C. §1716(a)). FLPMA requires that when determining the public interest, the Secretary must consider a number of factors. They include better federal land management, and the needs of state and local people for economic, community, and recreation purposes. BLM often trades land to achieve better federal land management, for instance, by consolidating ownership and disposing of land that is isolated or difficult to manage. Under BLM regulations, considerations include protection of fish and wildlife habitat, cultural resources, watersheds, wilderness, and aesthetic values; enhancement of recreational opportunities and public access; consolidation of lands to improve development; and expansion of communities. Also, the Secretary must find that the resource values and public benefits of the federal lands to be conveyed are not more than those of the nonfederal lands being acquired. Further, the intended use of the conveyed federal lands should not conflict significantly with management of adjacent federal and Indian trust lands (43 C.F.R. §2200.0-6(b)). In making an exchange, BLM must reserve any rights or interests that are needed to protect the public interest, and may impose restrictions on the use of lands conveyed.
Under FLPMA, the values of the lands exchanged are to be equal, or if they are not equal, they are to be equalized by the payment of money up to 25% of the value of the federal lands conveyed in the exchange. The parties in the exchange may agree to waive this payment, within limitations, including if it involves not more than 3% of the value of the federal lands or $15,000. Another way of equalizing value is for either party to add or remove lands. Further, the Secretary of the Interior may exchange lands that are of "approximately" equal value under certain conditions, including if the value of the federal lands does not exceed $150,000 (43 C.F.R. §2201.6 and §2201.5). The appraisal might be performed by DOI appraisers or by appraisers contracted by the department. Often the same person conducts the appraisal of both the federal and nonfederal parcels in an exchange, although this is not required.
Typically, the BLM and other parties share equally in the administrative costs of an exchange, for instance, the cost of the appraisal of lands, mineral examinations, cultural resource surveys, and addressing deficiencies preventing highest and best use of the land. However, the parties can agree that one party may bear costs and responsibilities typically assumed by the other, subject to certain terms.
BLM regulations define an assembled land exchange as consolidation of multiple parcels of federal or nonfederal land for the purpose of one or more exchange transactions over a period of time (43 C.F.R. §2200.0-5(f)). An assembled land exchange may be used to facilitate exchanges and reduce costs, for instance, by consolidating many federal parcels of limited value. In other cases, third parties secure lands that BLM wants to acquire from multiple owners to facilitate negotiations. Both for-profit and nonprofit organizations have facilitated assembled land exchanges, typically functioning as brokers/agents for the exchange.
Lands acquired by BLM by exchange become public lands and are to be managed under existing law, regulations, and land use plans. Acquired lands that are within the boundaries of an area having an administrative or congressional designation, such as a natural conservation area, become part of that unit or area and are managed accordingly.
Exchanges may be proposed by BLM, private citizens, or state or local government officials, among others. However, BLM is to consider only proposals that conform with land use plans. Additionally, the Secretary of the Interior may restrict, for up to five years, application of the mining laws and other public land laws to federal lands under consideration for exchange. The exchange process typically occurs in five phases: (1) development of a land exchange proposal, (2) feasibility evaluation, (3) processing and documentation, (4) decision analysis and approval, and (5) title transfer. BLM field offices take the lead in negotiating and processing exchanges, but BLM headquarters must ultimately concur.
The length of time generally required to complete land exchanges depends on the circumstances. The BLM Handbook advises that many exchanges take between 18 and 24 months, but the time depends on the complexities. The GAO review of BLM and Forest Service (FS) land exchanges from October 2004 through June 2008 revealed completion times for the agencies ranging from two months to 12 years. The average time to complete BLM's exchanges was about four years.12
During the first phase, development of a land exchange proposal, the federal and nonfederal parties have preliminary discussions to share information about goals and constraints and to screen proposals. BLM checks the title of the nonfederal land to ensure its acceptability for acquisition and the survey and land status of the federal land to ensure its availability for disposal. The parties develop a written exchange proposal that includes a legal description of the lands to be conveyed and their responsibilities.
During the second phase, the feasibility evaluation, BLM prepares a feasibility report. This report documents the preliminary information on all aspects of the exchange, including the public benefits, consistency with BLM's land use plan, projection of costs, cost and processing responsibilities, anticipated land uses, analysis of value, schedule for completion, and alternatives. All exchanges require review and concurrence of the documentation at the feasibility stage. This review includes analysis of the adequacy of the feasibility report, a draft Agreement to Initiate (ATI) an exchange, and a draft Notice of Exchange Proposal (NOEP). Review and concurrence is required at several levels: the DOI Office of the Solicitor; the state director of the state where the lands would be exchanged; BLM's National Land Exchange Team; the BLM assistant director, Minerals and Realty Management; and ultimately, the director of BLM. If the parties agree to proceed, they sign a nonbinding ATI that serves as a framework, with roles, responsibilities, and time frames. The agreement should address 17 items identified in BLM regulations (43 C.F.R. §2201.1(c)-(g)), and, for exchanges involving third party facilitators, must include a full disclosure provision. At this stage, the BLM and nonfederal parties might consider developing a binding exchange agreement, which would be executed at a later stage of the exchange process. (See "Phase 5: Title Transfer," below.)
BLM is prevented, through Appropriations Committee direction, from completing exchanges involving federal lands valued at greater than $1 million until the House and Senate Committees on Appropriations have had 30 days to review the exchange. Further, BLM is required to provide advance notice to the House and Senate Appropriations Committees of exchanges involving federal lands valued at between $500,000 and $1 million.13
The third phase, exchange processing and documentation, centers on the evaluation and documentation of the properties and their values. It includes title review; public notice and comment; identification and resolution of environmental issues under NEPA;14 assessments of mineral, cultural, and other resources; Native American consultations; threatened and endangered species consultations; and preparation and review of appraisals. During title review, BLM seeks to confirm that it can acquire clear title to the nonfederal land. BLM is to issue an NOEP and publish it in local newspapers to give public notice of the exchange and to notify authorized land users, state and local governments, tribal governments, and the congressional delegation. The notice must invite the public to comment on the exchange. BLM also must give public notice of its decision to approve or disapprove an exchange.
The environmental analysis under NEPA and the appraisal often are the most challenging and time-consuming activities. The environmental analysis documents the impact of the exchange on the environment, taking into account the likely future uses of the lands. It includes evaluations of resources on the federal and nonfederal lands. Ordinarily, the mineral potential of the lands is evaluated; wildlife and vegetation species are identified; water sources, locations, and rights are detailed; forestry resources are assessed; cultural and historic resources are catalogued; recreational and other land uses are listed; and contaminants are inventoried and the responsibilities of the parties may be addressed.
With regard to the appraisal, BLM regulations state that an exchange of lands shall be based on the market value of the federal and nonfederal lands as determined by the Secretary through appraisals, bargaining based on appraisals, or arbitration. In estimating market value, the appraiser must determine the highest and best use of the property—the highest and most profitable use for which the property is physically adaptable and needed.15 Factors include historic, wildlife, recreation, wilderness, scenic, cultural, or other resource values or amenities that are reflected in prices paid for comparable properties in the open market. Interests in land—such as minerals or water rights—also are considered to the extent consistent with highest and best use, according to BLM regulations. In the absence of current market information, the parties may use other methods to estimate market value. FLEFA provides that disputes over the appraised values of lands can be resolved by arbitration, bargaining, or other methods.
A 2006 DOI Manual sets forth appraisal policies.16 According to the manual, appraisals are to reflect nationally recognized standards. Appraisers are guided by the Uniform Appraisal Standards for Federal Land Acquisitions and the Uniform Standards of Professional Appraisal Practice. Both federal employees and contractors may conduct appraisals. The appraiser prepares a report estimating market value that describes the work conducted and sets forth the information and analysis supporting the estimate. Each appraisal report will be reviewed by a DOI review appraiser.
At the decision analysis and approval stage, all proposed exchanges require review and concurrence at several levels, as at the feasibility stage. BLM issues a decision to approve or disapprove the land exchange. The decision document, called a decision record or record of decision, must contain certain information, such as a determination of the public interest value of the exchange; a legal description of the lands being exchanged; a statement that the lands are of equal value, and if not of any cash equalization payment; a statement of conformance with the pertinent BLM land use plan; and acknowledgement that the decision is implemented after the 45-day protest period (that begins with the publication of a Notice of Decision) and resolution of any protests.17 BLM then publishes and distributes a Notice of Decision, in accordance with specified publication and distribution requirements.
After approval of a land exchange decision, the parties might execute a binding exchange agreement, which legally commits them to conduct the exchange. A binding exchange agreement is optional except where the nonfederal lands contain hazardous substances, so that the agreement can address removal and other actions prior to the exchange.18 Other actions at this final phase, called title transfer, involve reviewing the title evidence and land status, the transfer of title to the federal and nonfederal lands, and closing the transaction.
Legislation can authorize exchanges that otherwise would not be allowed under law, such as the exchange of land in different states. Legislation also would be required to exempt agencies from mandates that otherwise apply, such as those pertaining to appraisals, analysis under the National Environmental Policy Act of 1969 (NEPA);19 and the land use planning requirements of FLPMA.20 Recent Congresses typically have considered and enacted measures providing for exchange of BLM lands.21 In its 2009 report, GAO identified provisions of legislated exchanges that affected the standard processing of exchanges, such as those directing BLM to initiate an exchange upon request of the nonfederal party, establishing a time frame for completing the exchange, and altering the appraisal requirements.22 Legislation may provide for land exchanges even where additional authority may not be needed by BLM, but where Congress wants a certain exchange to occur. Provisions of legislated land exchanges have been controversial in some cases.
BLM's Land Exchange Handbook states that because legislated exchanges have considerable variability, they must be handled on a case-by-case basis. The Handbook notes that legislated exchanges sometimes direct that they be completed relatively quickly, and that the time frame might affect the applicability of statutory and regulatory requirements. It advises BLM staff to consult with their regional solicitor as to whether typical actions (e.g., NEPA) apply in legislated exchanges. It further notes that some general requirements not typically mentioned in legislation, such as hazardous materials assessments and title standards, might still need to be addressed.23
Some BLM land exchanges have been controversial. Earlier this decade, concerns centered on the benefits to the public, determinations of market value, and contradictions in policies and procedures. For instance, a GAO report concluded that the BLM did not follow requirements to show that "the public benefits of acquiring the nonfederal land in an exchange matched or exceeded the public benefits of retaining federal land, raising doubts about whether these exchanges served the public interest."24 Audit reports also criticized BLM for valuing its land at far less than market value, or for overvaluing nonfederal land to be acquired, to make deals more attractive to nonfederal landowners. A report by The Appraisal Foundation determined that there were political pressures to change or ignore qualified market value opinions to create the appearance that exchanges were conducted at market value.25 TAF also concluded that inconsistencies among BLM's guidance and directives resulted in inconsistent development of market value opinions, improper management of appraisal efforts, and lack of compliance with laws and regulations.
In response, BLM took steps to increase oversight of exchanges; demonstrate how exchanges serve the public interest; ensure that land is properly valued; and ensure that exchanges are completed in compliance with law, regulation, and policy. In 2003, BLM formed The Appraisal and Exchange Workgroup, composed of staff from federal and state agencies, to advise the agency on changes needed to address problems with appraisals and exchanges that were raised in audits.26 BLM chose to implement many of the group's recommendations, including those to strengthen management of exchanges; build public confidence; develop new authorities; enhance training and skills; facilitate exchanges with states; strengthen the ability to reach agreement on value; define the role of facilitators; and develop guidance for processing legislated exchanges.
Beginning in 2003, a significant change at DOI involved consolidating real estate appraisal functions from several DOI agencies into a new Appraisal Services Directorate (ASD). An independent appraisal office, to protect appraisers from possible political pressures, had been recommended by audit reports for decades. Under the reorganization, to separate the appraisal function from realty decisions, appraisers reported to the ASD rather than to DOI realty personnel. A 2006 GAO report found that this consolidation "vastly improved" the objectivity of appraisers, but that some problems remained. For instance, some appraisals did not appear to comply with industry standards, making their accuracy uncertain. The extent to which any such problems applied to BLM exchanges is unclear, as they were not separately identified in the analysis.27 In other changes, the ASD developed a web-based system for DOI agencies to submit and track requests for appraisals, DOI issued a consolidated handbook for appraisals, and BLM revised its Land Exchange Handbook. The ASD organization was changed in 2010, due to continued concerns with appraisal services, as outlined in the section of this report on "Recent Issues and Actions."
Issues related to land exchanges and appraisals have continued to be a congressional, administrative, and public focus. GAO's June 2009 report examined the numbers, trends, and characteristics of BLM and FS land exchanges from October 2004 through June 2008, the actions taken by the agencies to improve the exchange process, and the effectiveness of these actions. GAO concluded that the BLM and FS had taken actions to address most of the problems previously identified with their land exchange programs, but that the effectiveness of the changes was mixed and additional changes were needed. Among the GAO's conclusions were the following:
Stemming from its conclusions, GAO made 13 recommendations for BLM to improve its land exchanges. They focused on strengthening the review process; improving management of value imbalances in multiple phase exchanges; defining and applying disclosure guidelines to third party facilitators of land exchanges; issuing a national land tenure strategy; tracking the costs of individual exchanges; and training for land exchange staff.29
During consideration of the FY2010 Interior, Environment, and Related Agencies Appropriations bill, the House Appropriations Committee and the conferees noted improvements with the exchange and appraisal processes, while at the same time expressing concerns and providing related direction to DOI. In its June 23, 2009, report on the bill, the House Committee noted the GAO and DOI Office of Inspector General conclusion that the consolidation of the appraisal services into the ASD improved the objectivity and quality of appraisals. However, the committee asserted that "numerous problems exist that are an unacceptable barrier to communications, collaboration, and acquisition of lands."30 The causes of these problems, according to the committee, included a loss of realty expertise in DOI agencies, unnecessary delays in contracting for appraisals, and a reluctance to share information on the status of appraisals with landowners. The committee further observed that opportunities for agencies to make key acquisitions were missed, partnerships with nonprofit land organizations were strained, and public confidence in the government's commitment to land acquisition was weakened.
To expedite completion of appraisals, and thus land exchanges and other acquisitions, the House Appropriations Committee directed DOI to reconsider the consolidation of the appraisal services, examine alternative organizational arrangements, and streamline the appraisal process. The committee further directed DOI to report back within 90 days of enactment of the appropriations law on its progress in improving land appraisals. Similarly, in their October 28, 2009, conference report on the bill, the conferees concurred with the House Committee in directing DOI to revisit the consolidation of the appraisal services function and to address the delays in obtaining appraisals.31
The House Appropriations Committee further expressed that the BLM (and other agencies)32 needs to improve the process for land exchanges, and should seriously consider the findings and recommendations of the GAO report on land exchanges. The committee directed the Secretary of the Interior to ensure that land exchange decisions are fully documented and carefully reviewed by the national review team. BLM should clearly define third-party facilitators and apply disclosure policies to them, ensure that agency land exchange staff are adequately trained, and track the costs of processing individual exchanges, according to the committee. Further, the committee stated that BLM should address GAO's other recommendations, including to clarify the retention policy for exchange documents, improve management of ledgers to track imbalances in multiphase land exchanges, and develop a national land exchange strategy.33
A 2009 DOI Office of Inspector General evaluation of the appraisal services of the ASD concluded that the office had not been able to fulfill its mission to become a strong and independent appraisal organization that provides DOI with timely, independent appraisals. 34 Contributing factors, both internal and external, were cited. Externally, the ASD did not receive support from the National Business Center, DOI agencies, or the department. The NBC did not provide timely support and services, particularly in the key area of contracting for appraisals.35 The DOI agencies did not agree with the need for consolidated appraisal services, and made multiple attempts to regain control of this responsibility. The department did not resolve these issues or protect the independence and operational integrity of the ASD. Internally, the ASD lacked consistently strong leadership, leaving the office dependent on others to address problems with contracting and other policy and enforcement issues. The OIG attributed this leadership vacuum primarily to the placement of the ASD within the NBC.36
The OIG asserted that based on its evaluation, and the recent concerns expressed by Congress (discussed above), DOI appraisers should remain organizationally independent of agency realty offices and staff. However, while the placement of the ASD within the NBC had appeared at first to be beneficial, it turned out to be a "hindrance to the appraisal organization," according to the OIG.37 The OIG made three recommendations to address identified problems. They were: (1) to provide responsibility and resources to ensure that ASD has full control over contracting; (2) select a "strong and competent" chief appraiser for ASD to provide effective leadership and final authority on appraisals; and (3) consider making ASD an independent office within DOI's Office of Policy, Management, and Budget.38
On March 23, 2010, DOI responded to the congressional direction to consider alternatives to the current appraisal services organization and to address delays in obtaining appraisals. In a letter to congressional appropriators, the department presented conclusions and proposals resulting from a review of the appraisal function. The department "acknowledged [that] there are serious operational and organizational issues and action is required."39 Issues included delays in the appraisal process leading to delays in land transactions, with a worsening trend; problems with contracting, such as the high cost, complex funding model, length of time to contract for appraisal services, and frequent inability to find qualified local appraisers; weak communication between appraisers and the DOI agencies and poor responsiveness of appraisers to DOI agencies; and difficulties in prioritization of work, such as handling of the competing and changing appraisal priorities of the DOI agencies.
To address these issues, DOI proposed a reprogramming40 and reforms that incorporated the OIG recommendations and went further, according to the department. DOI expressed a commitment to its reform proposals to improve the timeliness, cost effectiveness, efficiency, and agency satisfaction with appraisals. Among the proposals were that
DOI and BLM have taken actions in response to many of the recommendations and issues raised by GAO, Congress, and the OIG. For instance, with regard to appraisals, a Secretarial Order signed on May 21, 2010, made changes in the organization and operation of the appraisal services function. Specifically, the order renamed the ASD as the Office of Valuation Services (OVS) and removed it from the National Business Center. The OVS now reports directly to the Deputy Assistant Secretary for Technology, Information, and Business Services, within the Office of the Assistant Secretary for Policy, Management, and Budget.41 The OVS was given sole responsibility for contracting for appraisal services for DOI agencies.42 The office is headed by a director, with a deputy director who is DOI's chief appraiser. DOI also is beginning to implement the other appraisal reforms contained in the DOI plan submitted to congressional appropriators in March 2010.43
Further, on May 14, 2010, BLM issued a series of instruction memoranda on land exchanges that stemmed primarily from the GAO recommendations and congressional concerns.44 The first memorandum45 included guidance on the process for reviewing and approving land exchanges, documenting and resolving substantive issues raised during the exchange process, and management and retention of exchange records. A second memorandum46 contained direction on issues including the processing of assembled and multiple-phase assembled land exchanges, using ledgers to manage imbalances in federal and nonfederal lands being exchanged, securing (bonding) imbalances, and minimizing cash equalization (where appraised values are not equal and payment is made to equalize the imbalance). The third memorandum47 defined and addressed the role of facilitators in land exchanges and contained disclosure requirements for facilitated and certain non-facilitated land exchanges. The fourth memorandum48 focused on training for agency staff involved in exchanges.
These memoranda did not address two of the GAO recommendations, on which action has been temporarily deferred. For instance, they did not establish a national strategy for land transactions. BLM has deferred action in this area pending a congressional decision on whether to provide a long-term reauthorization for the Federal Land Transaction Facilitation Act.49 This law provides for the sale or exchange of land identified for disposal under BLM's land use plans. The proceeds are available to acquire certain lands containing exceptional resources. The memoranda also did not address the GAO recommendation to track costs of individual land exchanges.50
A key issue for Congress is the extent to which the recent reorganization of the appraisal function and the implementation of other appraisal and exchange reforms will address perceived problems and improve land transactions. Congress is likely to continue to oversee agency implementation of reforms and the underlying authorities and processes, through authorizing and appropriating committees. No general legislation pertaining to the BLM land exchange process or the appraisal processes is currently pending.
Congress also may consider whether to discontinue exchanges on the grounds that they have been problematic and are inherently difficult, as asserted by some critics. GAO, among others, had recommended that Congress consider ending exchanges in favor of buying and selling land for cash. GAO observed that exchanges can be complicated, because an agency must find another landowner who is willing to trade, wants to acquire what is being offered, and owns a desired parcel of about the same value. With cash sales, agencies could sell unwanted parcels and use the cash to buy parcels they prefer. Advocates believe that this approach takes the subjectivity out of estimating value through appraisal, procures the best price, and simplifies transactions because there is no requirement to equalize value or act within the same state.
Some observers assert that newer BLM authorities to sell or exchange land and keep the money in special accounts for subsequent acquisitions have superseded a need for FLPMA exchanges. Such authority is contained in the Federal Land Transaction Facilitation Act, discussed above, while the Southern Nevada Public Land Management Act (SNPLMA, P.L. 105-263) is more limited. It allows BLM to sell or exchange land around Las Vegas, with proceeds available to acquire environmentally sensitive lands in Nevada. Advocates prefer these authorities because land values can be determined through the market and agencies can purchase lands independent of annual appropriations.
BLM, among others, supports exchanging land under FLPMA for the many uses noted above under "Pros and Cons of Land Exchanges." Exchange supporters claim that controversies over valuing properties with unique attributes or in high-growth areas are as likely to occur for land that is sold or acquired under other authorities as for land that is exchanged under FLPMA. Further, BLM contends that the majority of exchanges are not controversial. Exchange proponents also contend that BLM has had limited funding for land acquisitions over the past several years, and that BLM thus needs exchange authority to acquire additional valuable land. Finally, exchange proponents assert that past and current reforms have addressed concerns with exchanges and appraisals.
| 1. |
An interest in land is something less than full ownership, such as easements or mineral, timber, or water rights. Hereinafter, exchange is used to encompass both exchanges of land and interests in land. |
| 2. |
43 U.S.C. §§1715-1716. Provisions of these statutes apply to the Forest Service in the Department of Agriculture as well, but this report relates only to BLM. For information on acquisition and disposal authorities of BLM and other land management agencies, see CRS Report RL34273, Federal Land Ownership: Current Acquisition and Disposal Authorities, by [author name scrubbed] and [author name scrubbed]. |
| 3. |
The Handbook is available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources_Management/policy/blm_handbook.Par.72089.File.dat/h2200-1.pdf. Hereinafter cited as BLM Land Exchange Handbook. |
| 4. |
GAO used "processed" to refer to exchanges that were pending, completed, or terminated during the time period analyzed. |
| 5. |
See U.S. Government Accountability Office, Federal Land Management: BLM and the Forest Service Have Improved Oversight of the Land Exchange Process, but Additional Actions are Needed, GAO-09-611 (Washington, DC: June 2009), pp. 9 and 22. Hereinafter cited as 2009 GAO Report. |
| 6. |
2009 GAO Report, pp. 17-19. |
| 7. |
BLM records the number of land transactions, in terms of deeds/patents issued and deeds received, rather than the number of land exchanges. Each land exchange involves BLM issuing at least one deed/patent and receiving at least one deed. The number of such transactions in one exchange can be higher, if the exchange involves multiple parties or multiple parcels of land. Further, the numbers of deeds/patents issued and received in an exchange need not be, and often are not, equal, as the data in this memorandum show. |
| 8. |
See footnote 7. |
| 9. |
Information on the number, acreage, and value of exchanges is taken from the annual volumes of BLM's Public Land Statistics, on the agency's website at http://www.blm.gov/public_land_statistics/index.htm. Comparable information is not available in that source for earlier fiscal years. |
| 10. |
The Appraisal Foundation is a nonprofit educational organization dedicated to the advancement of professional valuation. It was established in 1987, and was authorized by Congress as the source of appraisal standards and appraiser qualifications. For more information, see the organization's website at http://netforum.avectra.com/eWeb/StartPage.aspx?Site=TAF&WebCode=HomePage. |
| 11. |
Complete and authoritative information is contained in the pertinent authorities, for example, FLPMA and BLM's regulations, policies, and handbook. |
| 12. |
See 2009 GAO Report, p. 14. |
| 13. |
House Committee on Appropriations, Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010, H.Rept. 111-316, p. 75, October 28, 2009. Hereinafter cited as H.Rept. 111-316. |
| 14. |
The analysis also is governed by regulations of the Council on Environmental Quality (40 C.F.R. parts 1500-1508) and DOI and BLM policies and procedures. |
| 15. |
Uniform Appraisal Standards for Federal Land Acquisitions, the Appraisal Institute, Washington, D.C., 2000, p. 34. |
| 16. |
U.S. Dept. of the Interior, Appraisal Policy Manual, October 1, 2006. |
| 17. |
Land exchange decisions are subject to a 45-day protest period under 43 CFR 2201.7-1 and a subsequent right of appeal to the Interior Board of Land Appeals under 43 CFR Part 4. Information on protests and appeals, and on an alternative process, is contained in the BLM Land Exchange Handbook, p. 9-3 – 9-7. |
| 18. |
BLM Land Exchange Handbook, p. 10-1. |
| 19. |
42 U.S.C. §4321, et seq. |
| 20. |
See section 1.7 of the DOI Departmental Manual 602 DM 1, which pertains to legislated land exchanges, available on the DOI website at http://elips.doi.gov/app_dm/act_getfiles.cfm?relnum=3798. |
| 21. |
Examples of recent laws authorizing land exchanges include P.L. 111-53, the Utah Recreational Land Exchange Act of 2009; P.L. 110-229, Sec. 201, Piedras Blancas Historic Light Station; and P.L. 109-372, the Idaho Land Enhancement Act. |
| 22. |
2009 GAO Report, pp. 23-24. |
| 23. |
BLM Land Exchange Handbook, pp. 12-1 and 12-2. |
| 24. |
U.S. General Accounting Office, BLM and the Forest Service: Land Exchanges Need to Reflect Appropriate Value and Serve the Public Interest, GAO/RCED-00-73 (Washington, DC: June 2000), p. 4. |
| 25. |
The Appraisal Foundation, Evaluation of the Appraisal Organization of the Department of Interior Bureau of Land Management (Washington, DC: Oct. 9, 2002), p. 9-10. |
| 26. |
Appraisal and Exchange Workgroup Final Report, presented to the Bureau of Land Management, U.S. Dept. of the Interior, May 2003. |
| 27. |
U.S. Government Accountability Office, Interior's Land Appraisal Services: Actions Needed to Improve Compliance with Appraisal Standards, Increase Efficiency, and Broaden Oversight, GAO-06-1050 (Washington, DC: Sept. 2006), p.13 and p. 15. |
| 28. |
2009 GAO Report, Summary. |
| 29. |
The specific recommendations, and agency actions thereon, are tracked on GAO's website at http://www.gao.gov/products/GAO-09-611#recommendations. As of November 10, 2010, the site does not identify whether the recommendations have been implemented. However, see the Implementation of Reforms section of this report which addresses DOI actions to address the GAO recommendations. |
| 30. |
This quote, and the information in this section on the House Appropriations Committee's actions, is taken from House Committee on Appropriations, Department of the Interior, Environment, and Related Agencies Appropriations Bill, 2010, H.Rept. 111-180, June 23, 2009, pp. 9-10. Hereinafter cited as H.Rept. 111-180. |
| 31. |
H.Rept. 111-316, p. 78. |
| 32. |
The committee's expressions on land exchanges applied to the federal land management agencies generally, and particularly to the BLM and FS, according to H.Rept. 111-180, p.10. The discussion here focuses on the committee's statements in the context of the BLM. |
| 33. |
H.Rept. 111-180, p. 10. |
| 34. |
U.S. Dept. of the Interior, Office of Inspector General, Evaluation Report on the Department of the Interior's Appraisal Operations, Report No. WR-EV-OSS-0012-2009, December 2009, available on the office's website at http://www.doioig.gov/images/stories/reports/pdf/WR-EV-OSS-0012-2009.pdf. Hereinafter cited as 2009 OIG Report. |
| 35. |
Due to the perceived problems with contracting by the NBC, in 2009 the agencies regained responsibility for contracting. Problems with contracting for appraisals continued with this arrangement, according to the OIG. See the 2009 OIG Report, pp. 7-8. |
| 36. |
2009 OIG Report, p. 3. |
| 37. |
2009 OIG Report, p. 9. |
| 38. |
2009 OIG Report, p. 10. |
| 39. |
U.S. Dept. of the Interior, Secretary of the Interior, letter to Chairman James Moran, House Appropriations Subcommittee on Interior, Environment, and Related Agencies, March 23, 2010, p. 1. |
| 40. |
DOI noted that the reprogramming was being submitted in accordance with established appropriations guidance, which generally allows proposals to be considered approved 30 days after their submission to appropriators unless the committees object. |
| 41. |
See DOI Secretarial Order No. 3300, Establishment of the Office of Valuation Services, May 21, 2010, available on the DOI website at http://elips.doi.gov/app_so/act_getfiles.cfm?order_number=3300. |
| 42. |
In addition to BLM, these agencies are the Bureau of Reclamation, Fish and Wildlife Service, and National Park Service. |
| 43. |
This statement on the implementation of other reforms is based on a personal communication between CRS and the Interim Director of the DOI Office of Valuation Services, on November 2, 2010. |
| 44. |
These instruction memoranda are IM No. 2010-121, Review of Land Exchange Proposals and Records Management; IM No. 2010-122, Processing of Land Exchanges and Management of Value Imbalances in Land Exchanges; IM No. 2010-123, Clarification of Facilitator Involvement and the Full Disclosure Requirement in Land Tenure Adjustments; and IM No. 2010-124, Training Requirements for Processing Land Exchange Proposals. In each of the memoranda, BLM cites the specific GAO recommendations that the guidance is addressing. |
| 45. |
IM No. 2010-121. |
| 46. |
IM No. 2010-122. |
| 47. |
IM No. 2010-123. |
| 48. |
IM No. 2010-124. |
| 49. |
43 U.S.C. §2301. For information on the law, including on related legislation, see the section on BLM Land Sales in CRS Report R40237, Federal Lands Managed by the Bureau of Land Management (BLM) and the Forest Service (FS): Issues in the 111th Congress, coordinated by [author name scrubbed] and [author name scrubbed]. |
| 50. |
Information in this paragraph was obtained through a personal communication between CRS and BLM realty staff on November 3, 2010. |