Federal land swaps dealt another blow


Author:  Damien M. Schiff

Federal law authorizes agencies to exchange federal lands for private lands.  These land exchanges are often very advantageous to both sides:  the feds get property that they need for environmental or other public purposes, and private industry gets land that they need for business.  Unfortunately, land swaps have been the target of the environmental community for some time, and recent judicial decisions have made it much more difficult for land exchanges to be consummated.

As my colleague Brandon Middleton pointed out on this blog a few months ago, the Ninth Circuit in the Kaiser Eagle Mountain Case overturned a land swap because the federal agency listed Kaiser's private purposes as one of the swap's official purposes in the swap's environmental impact statement (required under the National Environmental Policy Act (NEPA)).  PLF submitted an amicus brief in support of an ultimately unsuccessful petition to rehear the case before the entire Ninth Circuit.

And recently, the Ninth Circuit again denied a petition for rehearing en banc in another land swap case, Center for Biological Diversity v. United States Department of Interior.

Here, a mining company wanted to consolidate its mining lands, and so offered to exchange some of its lands for existing Bureau of Land Management parcels.  The exchange seemed to be a win-win proposal for both sides; the mining company got mining lands, and the BLM got in exchange ecologically desirable areas.  Nevertheless, the environmentalists sued to overturn the exchange under NEPA, arguing that the BLM had failed to assess the impacts of private mining on the BLM parcels that would become private land.

The problem with that argument, however, was that mining was already allowed on the BLM parcels that would be privatized; in other words, mining would happen on the parcels whether or not the land exchange happened.  But, as the environmentalists argued successfully, in order to mine the public lands, a mining company had to develop a rather substantial document known as a Mining Plan of Operations (MPO), whereas no such document would be required for mining conducted on private parcels.

PLF submitted an amicus brief in support of the mining company's petition for rehearing en banc, but the petition was denied.  The panel submitted an amended opinion and offered a sop of consolation to the mining company, stating that its decision should not be interpreted as requiring a mining company to submit a full-fledged MPO before a land exchange can be accomplished.  But anyone who knows how agencies and the environmental community operate knows that something very near that obligation will be imposed.