Private rights vs. public lands: Thousands of inholdingscreate conflicts inside federal lands
by Stephen Stuebner
Here in Arizona's Arrastra Mountain Wilderness, a spectacular five-mile-long canyon called Peeples is home to a surprisingly moist world. Three hundred and fifty feet below the rim a spring emerges, and in the parched heart of the desert, 100 miles northwest of Phoenix, the water that weaves under and around rocks is a lifeblood for eagles and other wildlife.
This is a serene and peaceful place, shaded by sycamore and willow. When the wilderness was created in 1990 from Bureau of Land Management holdings, the agency called Peeples Canyon one of the rarest and most productive places for wildlife in Arizona. As a designated wilderness it was protected forever.
Or was it?
Two miles down the canyon another spring emerges, and it and 40 acres are privately owned by Erik and Tina Barnes, whose 1,000-acre ranch and permitted BLM land stretch out above the canyon rim.
The couple say their cattle need the water from the spring, and to store the water in an existing tank, spring water must be pumped up.
To make everything work, they say, they need to bulldoze and improve an old road that snakes its way up the canyon walls. It is this demand that has created a fight between the Barneses, who are supported by local BLM officials, and conservationists. Critics say improving an "abandoned jeep road" by bulldozing the canyon would harm a unique area that hasn't been visited by a motor vehicle since 1979.
Barnes, who has owned the ranch for eight years, agrees that Peeples Canyon is a jewel. But he says running the ranch without developing the spring he owns is a handicap.
"If you look at the ranch like a car, it's a Cadillac," says Barnes, who works as a commercial fisherman in Alaska during the summer. "But what if you took off the front wheel of the Cadillac and you couldn't replace it. What's it worth to you then?" The real issue, he adds, is property rights and "our right to use the water and the right to manage our own ranch."
For Arizona attorney Joe Feller, who has appealed the BLM's decision allowing the road-building to the Interior Department's Board of Land Appeals, Peeples Canyon is a classic conflict between the public's interest in wilderness, as defined by Congress, and the rights of a private inholder that are embedded in the Fifth Amendment to the U.S. Constitution.
Far from unique
The fight over Peeples Canyon is far from unique; nowadays there are thousands of prickly land disputes in the West that started with a patch of private land in the core of a national forest, national park, wildlife refuge, wilderness area or wild and scenic river.
Conflicts arise when the private landowner, the inholder, wants to do something with his or her land - whether it's blocking public access to a backcountry trail or road, building a subdivision, logging, mining, siphoning water from a stream or some other development - that conflicts with the management of surrounding public lands. Many of these disputes are finding their way to court.
"The proper allocation of rights to private landowners and federal land conservation interests has become one of the most contentious and emotional issues in public land law," say Steven Quarles and Thomas Lundquist in Land and Water Law Review.
Inholder conflicts are particularly acute today because:
* Congress and every president since Ronald Reagan have been routinely raiding the nation's sole source for buying inholdings, the Land and Water Conservation Fund, to lower the federal deficit. Buying land is often the best - or the only - solution to resolving inholder disputes. But instead of spending about $900 million a year from the Land and Water Fund to buy and protect valuable lands, Congress and the Reagan, Bush and Clinton administrations have been taking at least $550 million per year from the trust fund for deficit "reduction."
* The scarcity and popularity of prime recreation property in the West have sent property values - including those of inholdings - into the stratosphere.
"If we're going to preserve these lands, we need to do it now before they get too expensive," says Bill Shaddox, realty chief for the National Park Service.
* Real estate developers are speculating on inholdings to make a fast buck, while inholders often hold out for a high price for prime wilderness or park property. Some threaten the worst kind of development to force slow-moving bureaucrats into action (see story page 10).
"People are trying to milk these things. We call it environmental extortion," says Sue Gunn, director of budget and appropriations for The Wilderness Society in Washington, D.C.
The scale of the inholdings problem is immense. Peter Landres, a research ecologist with the USFS Aldo Leopold Wilderness Research Institute in Missoula, Mont., says, "We don't even know the scale of the problem at a national level because the inholding data from the National Wilderness Preservation System are not reported consistently among the four agencies with wilderness responsibility."
Data from the BLM suggest that of 418 units of designated wilderness in the 13 Western states, 111, or 27 percent, have inholdings. Ninety are within Forest Service land, 11 within Park Service land, and 10 within BLM land.
The total acres of Western wilderness in all agencies is 41,362,931. The total acres of inholdings within all those areas is 187,927 - or 0.5 percent.
Those figures, notes Jeff Jarvis at the BLM office in Washington, D.C., represent a large problem. "But the numbers relating to inholdings within all federal land nationally are of a different size of hopelessness."
Nationally, there are more than 45 million acres of inholdings (not including BLM lands) in our nation's parks, forests, desert canyons, wildlife refuges and wild and scenic river corridors - an area larger than the state of Washington, the 20th largest state in the union.
There is some progress. Over the last 30 years, the Land and Water Conservation Fund has purchased more than 5 million acres of inholdings; in addition, nonprofit organizations such as the Wilderness Land Trust, The Nature Conservancy and The Trust for Public Land have been waging aggressive land-acquisition campaigns across the nation. And in Washington, D.C., a new coalition of 130 local and national groups is urging Congress to spend some $200 million from the Land and Water Conservation Fund for everything from ballfields to the purchase of inholdings. The coalition is called Americans for Our Heritage and Recreation.
"We've been short-changed for years," Gunn says. "Congress will steal this money if there's no constituency for it, so we decided that we'd better build a strong organization." The group came together, combining their demands, Gunn says, after local parks officials and environmental groups decided to quit "fighting over the crumbs' (see story on page 11).
The West is a patchwork
Inholdings are like scattered islands in a sea of public lands. Someone walking in a wilderness area might be shocked to come across an A-frame chalet cordoned off by a fence smothered with "No Trespassing" signs and a private airstrip in a nearby meadow. "Who owns this place?" a hiker or hunter might wonder. "How did it get here?"
The short answer is that the inholding was there first, secured in the 1800s or early 1900s - long before the area around it was designated wilderness by Congress.
Inholdings today are remnants of the West's rush to mine ore and settle land. Nineteenth-century mining and homestead laws encouraged Americans to move West and settle the public domain.
In national parks, patented mining claims and homestead withdrawals are the majority of inholdings.
In some areas of the West, alternating one-mile-square sections of land were deeded to transcontinental railroads such as Burlington Northern and Union Pacific, creating checkerboard ownership patterns. National forests, which contain the lion's share of inholdings across the country, were also heavily mined and homesteaded.
On BLM lands, federal law spurred the creation of small base ranches, usually located by water and productive flood-plain land, tied to grazing privileges on surrounding federal lands. That led to thousands of isolated, scattered inholdings within large BLM tracts.
It's impossible to know how many inholdings were secured through the Homestead Act because no one has kept track. But Department of Interior records show that about 3.2 million acres of federal land have been patented by miners nationwide since 1872, most of it purchased for $2.50 to $5 per acre. Once it is patented, this land may be turned into a vacation spot with a creek or river flowing outside the cabin door.
Policy scholars say many inholdings were acquired for next to nothing. "A lot of that stuff was acquired illegally, but no one ever did anything about it," notes John Freemuth, a public-lands expert and political scientist at Boise State University.
Pro-settlement policies have left an unfortunate legacy for federal land managers, adds George C. Coggins, professor of law at the University of Kansas. "The land ownership maps of the Western states resemble general cartographic chaos," Coggins said in a speech in Laramie, Wyo. And, he notes, national forest and BLM district boundaries were "created by mapmakers in Washington, D.C., with no regard for watersheds, ecosystems or other defensible dividing lines."
Only "a lawyer badly in need of business' would consciously design the patchwork land-ownership system that exists today, he says.
In the late 1960s, with the dawning of the environmental movement, federal policies began to swing toward conservation, with landmark laws such as the Wilderness Act, the creation of the Land and Water Conservation Fund and the Wild and Scenic Rivers Act.
As Congress created national parks, monuments, wilderness areas, wildlife refuges and wild and scenic rivers, it authorized federal managers to begin the tedious process of identifying private lands for acquisition. Officials in Washington, D.C., then put together priority lists for public purchase.
Owners have a hammer
Today, it doesn't matter how the land was acquired or how much the buyers paid for it, Freemuth says. Inholders have legitimate property rights like anyone else. "These guys know they've got a hammer; they've got a private right," he said.
Indeed, to own an isolated piece of private land amid the grandeur of a national forest constitutes the dream of many Americans, even if it does mean having bureaucrats for neighbors. "Once you've got your cabin in the woods, why would you want to give it up?" Freemuth asks. "This is the future of the West - people want-ing to develop their little ranchettes everywhere."
From an inholder's perspective, living in a place that's surrounded by federal land can cause grief. But access issues, such as the Barneses' proposed road and water development in Peeples Canyon, seem the chief points of contention.
Under the Clinton administration, federal-lands officials have been more strident, insists Chuck Cushman, director of the National Inholders Association in Battle Ground, Wash.
Cushman has urged inholder clients throughout the nation to fight federal-land managers over any proposal to limit access or restrict use. Often, his clients come out on the winning side, sometimes assisted by "wise use" law firms such as the Mountain States Legal Foundation.
While environmental groups lament the diversion of Land and Water Fund monies to voodoo-deficit reduction, Cushman delights in it. "The way you cut off a bureaucrat's head is, you take away his money," he says.
Making deals where they can
"Clearly, there will never be enough funds to buy all of these inholdings (inside national forest boundaries)," says Jon Mulford, director of the Wilderness Land Trust based in Carbondale, Colo. "So we focus on wilderness." So far, the trust has brought 6,189 acres into public ownership, most of them in Colorado and Arizona, in 110 land deals. A bigger gun in this effort, the Trust for Public Land, reports it has purchased 970,000 acres of private land at a cost of $1.3 billion.
Property transactions are always difficult to negotiate, especially if a landowner doesn't wish to sell. In those cases, the purchase of a scenic easement may be a preferable approach for the landowner and for the government and counties which count on property tax income from private land.
Cushman's group prefers the easement approach, both to stretch limited federal budgets farther and to keep property on the tax rolls. "You don't want to destroy the tax base of a community," he says. "A lot of these counties don't have much of a tax base to begin with because they're dominated by federal lands."
Meanwhile, in Arizona
The BLM has tried to work out a land exchange with Erik and Tina Barnes to end the conflict over the family's inholding in the 129,800-acre Arrastra Mountain Wilderness. The proposed BLM exchange offered lands worth $200,000 for the 40-acre parcel.
Barnes says the offer was too small.
"We're willing to sell it, but we're not willing to give it away, and we're not going to be driven off," he says.
As for Feller, he's furious that the BLM approved the Barnes application to improve the road and redevelop the spring after the landowner rejected what he sees as a "generous' offer.
"To my horror, the BLM is bending over backwards to help this guy, to give away the store," Feller says. "In one of the most ecologically significant areas of Arizona, we'll have a road and vehicular traffic and it'll be devastating."
BLM officials counter that the Wilderness Act specifically provides for access to private land. "Even if it is completely surrounded by wilderness," says Ken Mahoney, a wilderness specialist for the BLM State Office in Phoenix, Ariz., "this is a private inholding."
Based on a series of recent rulings in the Ninth Circuit Court of Appeals, the BLM may be correct. Justices there have consistently ruled that broad private-access language in the Alaska Lands Act should be applied to all Western lands in the United States.
Boise, Idaho, lawyer Laird Lucas likens the case-precedent that's been created to "a lurking time bomb on every access question."
But in Peeples Canyon, Feller counters, access does not necessarily mean a steep dirt track improved enough for cars. Horses can be used instead of four wheels, he says, and respect for wild places should sometimes trump our desire to develop.
The BLM itself called Peeples Canyon "a unique desert oasis," Feller says, so while it may take three years or more for his appeal to be heard, "I expect to win," he says with a grin.
Steve Stuebner writes from Boise, Idaho.
You can contact ...
* Joe Feller, 602/965-3964, at the Arizona State University Law School;
* BLM, Arizona state office, Ken Mahoney, 602/417-9238;
* Chuck Cushman, National Inholders Association, Battle Ground, Wash., 360/687-3087;
* Wilderness Land Trust, 970/963-9688;
* The Trust for Public Lands, San Francisco, Susan Ives, public affairs officer, 415/495-4014;
* Jane Danowitz, director, Americans for Our Heritage and Recreation, 202/429-2663.
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