===== A message from the 'lxstrategy' discussion list ===== Apologies for cross-postings: A court decision issued today has the potential to greatly affect federal land exchange policy for the better. A summary of the decision is provided below, followed by a few comments about its significance. The Ninth Circuit Court of Appeals today reversed a Federal District Court decision on the Huckleberry Land Exchange between Weyerhaeuser and the US Forest Service and has ordered Weyerhaeuser to halt its logging and roadbuilding on Huckleberry Mountain. The Huckleberry Land Exchange, completed in the spring of 1998, transferred about 4400 acres of public land to the timber corporation in trade for about 30,000 acres of company land. The public land traded to Weyerhaeuser consists of post-fire, naturally- regenerated mature forest ansd some old growth. Corporate lands coming to the public are 90% cut-over former forest, non-forest, poorly-regenerated forest, and high-elevation rocks and ice. Federal District Court Judge William Dwyer ruled in late 1997 that the exchange was in the public interest and the agency had violated no laws. The ruling was appealed by plaintiffs Pilchuck Audubon Society, the Muckleshoot Indian Tribe, and Huckleberry Mountain Protection Society. Today, a three-judge appeals court panel found that the Forest Service had in fact violated the National Environmental Policy Act and other laws, and the court has remanded the land exchange decision to the Forest Service for further environmental analysis. Among the central issues in the reversal were the following: (1) The Forest Service failed to examine a full range of alternatives. The Huckleberry EIS analyzed a no-action alternative and two virtually identical exchange options. The agency has now been ordered to consider non-exchange alternatives, including (a) outright purchase of some or all of the Weyerhaeuser lands through the Land & Water Conservation Fund, and (b) attaching deed restrictions to public land traded to the company in order to protect the public interest, as required under federal land exchange regulations. Restrictions could include the application of National Forest standards to Weyerhaeuser's logging. (2) The Forest Service failed to analyze the combined impacts of this land trade and the planned I-90 Exchange with Plum Creek Timber. Both exchanges involve the trade of public land within the same watershed--the Green River in the Mt. Baker-Snoqualmie National Forest. The I-90 Exchange was not "remote and speculative," as argued by the defendants, but of sufficient certainty to be considered in the Huckleberry analysis. (3) The Court stated that the EIS also failed to evaluate the environmental impact on lands transferred to Weyerhaeuser and effects on surrounding lands. "The [EIS] focuses solely on the beneficial impact the exchange will have on lands received by the Forest Service," said the Court. (4) The Forest Service proposed inadequate mitigation for impacts on the Huckleberry Divide Trail, an important transportation route for the ancestors of the Muckleshoot Indian Tribe. The agency proposed that the destruction of the trail (which lies on land transferred to Weyerhaeuser) would be mitigated by photographing and mapping its route prior to logging. The Court has ordered that this does not meet the legal standard, and suggests that the agency consider a covenant or easement to preserve the trail. It would be easy to overstate the significance of this decision--but not untoward to point out that a good NEPA decision is hard to find. The Ninth Circuit's decision will substantially affect the NEPA process for land exchanges, at the very least, in District Courts and federal agencies throughout the West. The requirement that non-exchange alternatives be analyzed in land swap EIS's is a significant change. It means that the public can see the comparative effect of buying land with LAND versus buying it with LWCF money. We would also be able to compare an alternative that places limits on the exploitation of land traded to private parties. The decision also means that land exchange analyses can no longer downplay the effects of moving land from federal to private ownership, but must look at the consequences on the ground. Using the Huckleberry Exchange as an example: on the lands that were traded to Weyerhaeuser, Forest Service plans would have limited the agency to a "harvest" of 264 acres per decade, whereas it is predicted the company will log all 4400 acres within 5 to 10 years. The environmental impact of this accelerated logging was not addressed in the EIS, but now must be analyzed. The combined effect of multiple land exchanges must also now be examined, and this is particularly relevant in Idaho and Montana, where multiple trades are proposed within the same forests. Land-exchange activists should take heart at this decision, and work to impose these legal standards on swaps throughout the West and the country. For too long, these land deals have treated corporations as equal partners with the public and thrown the public interest out the window. With this decision, we can force the Forest Service and BLM to uphold our interests and act with circumspection when they propose to trade public lands. That said, the implications are not ALL good. The increasing difficulty this brings to administrative land exchanges and the NEPA process will probably inspire more private traders to seek the legislative fix. Private parties (timber and mining companies and developers) may seek Congressional exchanges in order to bypass the public process, waiving NEPA and other environmental laws. But an increasingly skeptical public can be a force to deal with, and even politicians can be made to understand how strongly we feel about our public lands. We should take some satisfaction from the vindication the Ninth Circuit has provided us, and use this opportunity to reinforce our arguments against bad land trades-- in the press, among the environmental community, and among the throngs of public land owners. And it wouldn't hurt to throw a benevolent thought toward Huckleberry Mountain, which has borne a lot for us. Janine -- Janine Blaeloch, Director Western Land Exchange Project PO Box 95545 Seattle, WA 98145-2545 ph 206.325-3503 fx 206.325-3515 web: www.westlx.org