In an interesting land deal near Livingston, Montana, the Forest Service has considered trading a small “sliver of public land” for a much larger area of private land it believes better fits with the character of the nearby Custer Gallatin National Forest.[34] The small parcel of public land — only 0.8 acres — had been partially developed and includes a historic hay barn that was mistakenly built on public lands by a previous landowner.[35]
The owner of the larger private area, Ed Bazinet, wants the smaller piece because he “fell in love with [the barn] for nostalgic reasons” and because the narrow strips of land cut through the middle of his 320-acre ranch.[36] Strips of land like the one running through Bazinet’s ranch were originally reserved by the federal government to ensure public access to public lands that bordered private property. These “cattle driveways,” as they were called, can be a source of controversy for private landowners, public land managers and people seeking to access public lands.[37] But in this case, Bazinet is willing to donate 60 acres of adjacent pasture, plus more than 440 acres of nearby land, to the Forest Service in exchange for ownership of the sliver that contains the historic barn.[38]
Trading over 500 acres for a 0.8-acre strip of land running through the middle of a private ranch would seem to be an excellent deal for the government and the public. The Forest Service and local environmental interests support the trade, calling the land to be donated a “kind of wetland wonderland.”[39]
But one thing may yet stand in the way of completing the deal: The Forest Service is requiring a further $9,000 payment in addition to Bazinet’s donation of more than 500 acres. The agency is effectively suggesting that Bazinet’s donation would merely give him the opportunity to purchase the sliver of public land running through the middle of his property. One federal land manager said that federal law requires the agency to receive cash for the sale of public lands. Bazinet argues that the offer “doesn’t make sense,” as the area he is offering has a far greater market value than the area he is seeking to own. For their part, Forest Service officials are seeking donations from local environmental and wildlife conservation groups to cover the $9,000 price of the land.[40]
Despite the one hold up in the example above, there is potential to use land swaps like this to address contentious boundary disputes, encroachments or similar property issues. In the past, other federal programs have facilitated transfers, swaps or trades of lands from national forests or federal wilderness areas to private owners, states or municipalities. Those transfers typically are agreed to only with the assurance of payment and/or an exchange of lands of equal value and better suited to public use.
A few of the programs and laws that facilitate land transfers are discussed below.
The Federal Land Policy and Management Act has helped authorities manage land transfers in western states on BLM lands. It can also help the agency manage forest lands. Sections 205 and 206 give the Secretary of Agriculture authority to “acquire … [public lands] by purchase, exchange, donation, or eminent domain,” and to dispose of public lands within the National Forest System by exchange “where the Secretary concerned determines that the public interest will be well served by making that exchange.”[41] If Congress were to amend the act to allow its application outside of western states, it may offer a way to resolve property disputes in Michigan’s national forests.
The Recreation Residence Program, known informally as the “Cabin in the Woods” program, was established by Congress in 1915 to encourage family recreation within the National Forest System.[42] Under the program, the Forest Service established quarter-acre lots or tracts on which private improvements — cabins — were authorized as a “special use” of the area, with permits given to allow their construction.[43] These permits allowed the owners of the cabins a renewable, 20-year special use permit with specific restrictions.[44]
Traditionally, the permit does not give cabin owners property rights, as with a lease. They have occupancy rights, but “security and privacy” rights exist “only within the walls of their cabin, not on the grounds.”[45] The permit may be revoked by the Forest Service at any time, and the Cabin Fee Act of 2014 requires permittees to pay a tiered annual license fee from $650 to $5,650, with tiers based on the location and appraised value of the lot on which the cabin is located.[46] The cabin cannot be used as a rental property, and owners may not use the cabins as their primary or permanent residence. There are also restrictions on structure size, use of exterior paint and fencing. Outbuildings and gardens are prohibited, with the latter prohibition intended to avoid invasive species infestations.[47]
Discussions with Forest Service officials indicate their belief that the residency program has served its purpose.[48] Consequently, it is no longer being actively promoted. At its peak, the program allowed almost 20,000 cabins nationwide, but it now has less than 15,000.[49] Almost 5,000 cabins have been “taken out of public land ownership through land exchanges or lost to natural disasters.”[50]
Expanding or renewing this program could allow for additional areas and cabins in Michigan’s national forests — such as the cabins in the Ottawa National Forest — to be added to it. That could help encourage public access, especially in distant, backcountry areas.
The Small Tracts Act of 1983 gave the federal government additional powers to sell or trade National Forest System lands that were not transferable under the authority of the Secretary of Agriculture. However, this act was limited to lots smaller than 40 acres and valued below $150,000.[51] One purpose of Small Tracts Act was to remove from Forest Service oversight lands that might be contentious or troublesome for the department to manage, including lands that abut private property, are encroached on by development, are reserved for road rights-of-way or are improperly surveyed.[52]
Congress has attempted to amend this legislation to increase the value of lands that could be sold and to make other changes, with the express purpose of the reducing costs for the Forest Service and allowing for “more efficient management by eliminating isolated parcels of federal land.”[53]
The Townsite Act is limited to the 11 contiguous western states and Alaska.[*] It allows for the sale, at fair market value, of up to 640 acres of National Forest System lands “adjacent to or contiguous to an established community.” The lands sold must be used for purposes that outweigh the public benefits of retaining the lands, such as housing, economic development, public schools, public health facilities or recreation.[54]
[*] Those 11 states are Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.