What to Do with Stranded State Trust Lands in Federal Conservation Areas?

I’m generally not a fan of Representative Chris Stewart (R-UT-3rd), who has a lifetime record of voting right on conservation issues just 3 percent of the time, according to the League of Conservation Voters. Now, though, he’s introduced a bill in the House that has merit. Stewart’s proposed Advancing Conservation and Education Act (aka ACE Act, H.R.244; 116th Congress) had a hearing in the Subcommittee on National Parks, Forests, and Public Lands of the House Committee on Natural Resources on June 18, 2020.

Figure 1. Representative Chris Stewart (R-UT-3rd). Source: Wikipedia.

The stated purpose of the bill is to “maximize land management efficiencies, promote land conservation, generate education funding, and for other purposes.” Who could be against the purposes expressed? But while the intent is excellent, the execution needs improvement.

The Problem Addressed by the Bill

The problem addressed by the bill is well explained in the findings section. Following is a list of the findings, with my commentary on each.

Congress finds that—

(1) at statehood, Congress granted each of the western States land to be held in trust by the States and used for the support of public schools and other public institutions;

A future Public Lands Blog post will examine state trust lands in detail, but for now suffice it to say that states carved out of the public domain were granted significant amounts of land upon achieving statehood. The granted lands were a varying number of 1-square-mile sections in each 36-square-mile (6-by-6-mile square) township. The amounts increased so that the most recent states received the most land (save for Hawai’i).

(2) since the statehood land grants, Congress and the executive branch have created multiple Federal conservation areas on Federal land within the western States, including National Parks, National Monuments, national conservation areas, national grassland, components of the National Wilderness Preservation System, wilderness study areas, and national wildlife refuges. 

Any executive branch actions were done under authority expressly granted by Congress. I wouldn’t consider a national grassland to be a federal conservation area, but whatever.

(3) since statehood land grant land owned by the western States are [sic] typically scattered across the public land, creation of Federal conservation areas often include [sic] State land grant parcels with substantially different management mandates, making land and resource management more difficult, expensive, and controversial for both Federal land managers and the western States;

Yep.

(4) allowing the western States to relinquish State trust land within Federal conservation areas and to select replacement land from the public land within the respective western States, would—

(A) enhance management of Federal conservation areas by allowing unified management of those areas; and

(B) increase revenue from the statehood land grants for the support of public schools and other worthy public purposes.

Amen on (A), but (B) can be achieved in a better way. The states should be given money, not federal public land, for their stranded assets within federal conservation areas.

Figure 2. A good—but not yet great—bill. Source: Congress.gov.

The Solution to the Problem

Land exchanges are the wrong approach because land exchanges are almost always controversial (all federal public lands have their constituencies). Rather than trade the stranded state lands for federal public lands elsewhere, the federal government should buy the lands over the next several years. If the states are given money for their lands, they can choose to invest the money in more land, or they can invest in another instrument that might offer a higher rate of return—resulting in more money for education.

How much money are we talking about to buy the stranded lands? The National Association of State Trust Lands (NASTL, formerly the Western State Land Commissioners Association) estimates that “there are nearly two million acres of trust lands and minerals trapped” in federal conservation areas.

Ryan Brunner, the South Dakota Commissioner of Schools and Public Lands and NASTL president, tells me that the problem is most acute in Arizona (~267,000 surface and subsurface acres and ~239 subsurface mineral acres), Wyoming (~240,000 acres), and Utah (~250,000 acres). He says that there are large amounts of stranded state lands within federal conservation areas in Alaska, New Mexico, and Colorado. He notes there are also trapped lands in California, Washington, Oregon, Idaho, and Montana. The NASTL survey was nearly a decade ago, so the two million acre number is probably higher as federal conservation areas have increased since then.

See Map 1 for a typical example of state lands within a federal conservation area. Let’s very generously assume that the average market value of an acre of stranded state lands is $500. (Much of the state land acreage within federal conservation areas is of low economic value, as is much of the federal public land in those areas). $500/acre  * 2 million acres = $1 billion. 

Map 1. The 99,428-acre Cedar Mountain Wilderness (green) was established in 2006 on lands administered by the Bureau of Land Management (tan). The hatched and blue squares are State of Utah lands. If only hatched, the state owns only the subsurface minerals. The pink is a military reservation. Source: Utah School and Institutional Trust Lands Administration.

The money for the federal government to buy the stranded state lands can come from the federal Land and Water Conservation Fund (LWCF), first established in 1965. Between 1965 and 2019, $40.9 billion went into the LWCF, while Congress spent only $18.9 billion. On average, Congress has been spending $407 million from the fund each year. The Great American Outdoors Act signed by President Trump on August 4, 2020, guarantees $900 million a year in funding for the LWCF. Setting aside the question of the unspent backlog, annual spending will now more than double. The new law says that if Congress doesn’t spend the funds in congressional appropriations bills, the federal agencies can spend them without further approval of Congress.

The ACE Act should be modified to require that $100 million of the projected average of $593 million of new annual LWCF funding be spent each year acquiring state lands in federal conservation areas until all such lands are again federal public lands.

What are the political chances? Representative Stewart, whose idea the bill was, is in the minority in the House of Representatives at the moment (fortunately!). But Stewart is a member of the Interior, Environment, and Related Agencies Subcommittee of the House Appropriations Committee. The chair of that subcommittee is Representative Betty McCollum (D-MN-4th), a staunch public lands conservationist (rated as a 94 percent lifetime correct voter by the League of Conservation Voters). Now, a McCollum-Stewart bill offers a chance for both representatives to leave an enduring legacy of conservation and education.

Figure 3. Representative Betty McCollum (D-MN-4th). Source: Wikipedia.

Time for the Public Lands Conservation Community to Step Up

Some of my cynical conservationist friends may suggest that it’s not important to acquire these stranded state lands because they are indeed stranded and therefore under no threat of despoliation. To them I would say: 

•       Conservationists or our predecessors bled to get these areas established as federal conservation areas. The job is not done until they are entirely federal public land.

•       It’s the right thing to do morally. Through no fault of their own, the states have these stranded assets that are dedicated for public education.

•       It’s the right thing to do politically. As conservationists seek additional federal conservation areas, the presence of scattered state land holdings is often a political obstacle. Having an established and reliable mechanism for converting problematic state lands into higher conservation value federal public lands can result in more and larger federal conservation areas. (It’s a great day when the moral thing and the political thing coincide!)

State Trust Lands in Oregon Worth Acquiring by the Feds

Let’s close with some maps of various State of Oregon Common School Fund sections on and near national forests in southwest Oregon. These lands should also be acquired by the federal government for the benefit of this and future generations. There are other Oregon examples as well as similar cases in most of the western states.

Map 2. The lone state section (purple) is surrounded mostly by the Umpqua National Forest and Bureau of Land Management holdings. It is adjacent to the South Fork Cow Creek Unroaded Recreation Management Area. Conservationists are recommending that Senator Wyden introduce legislation making the South Fork of Cow Creek a wild and scenic river. Source: US Forest Service.

Map 3. The BLM land to the east of the state section is a research natural area and area of critical environmental concern. The Forest Service land on three sides is inventoried roadless area. Source: US Forest Service.

Map 4. Though the Minnow Creek Trail never comes within a mile of Minnow Creek, it’s still an important trail. The trailhead is on State of Oregon land that is surrounded on four sides by federal public lands. The trail is in the 3,423-acre Buckhorn Mountain Uninventoried Roadless Area. Source: US Forest Service.

Map 5. The BLM land to the east of the state section is a research natural area and area of critical environmental concern. The Forest Service land to the west is a protected area. The Nature Conservancy owns the adjacent private lands. It’s all a botanical wonderland. Source: US Forest Service.

Map 6. Conservationists are recommending that Senator Wyden introduce legislation making the South Fork of Sixes River a wild and scenic river. If this status is established, the state land would be within the protected corridor but not protected, as it is not federal public land. Source: US Forest Service.

Map 7. Senator Jeff Merkley has introduced legislation to expand the Smith River National Recreation Area into Oregon. Besides adding the Cedar Creek tributary (and many others!) to the North Fork Smith Wild and Scenic River, the legislation would facilitate conversion of the state parcel to federal ownership. Senator Ron Wyden is cosponsoring the legislation. Source: US Forest Service.

Amending the Eastside Screens, Part 2: The Science of Management and the Management of Science

This is the second of what were to be two but now are three Public Lands Blog posts that consider the desire of the Forest Service to amend a provision of the “Eastside Screens,” standards designed to protect public forests east of the Cascade Range. Part 1 examined the history, science, and politics leading up to the adoption of the Eastside Screens and their implementation since then. Part 2 explores issues both of management and of the science behind the management. Part 3 will suggest what the Forest Service could do to improve the Eastside Screens, in both the short and long term.

Figure 1. A low-intensity surface fire right now would knock back the young ponderosas and white firs that might otherwise compete with the old-growth ponderosa pines. Source: Larry N. Olson. (This image appeared in the book Oregon Wild: Endangered Forest Wilderness, Timber Press, 2004.)

In the beginning, the Forest Service created the “21-inch rule” as one of many rules in the Eastside Screens. The “Interim Management Direction Establishing Riparian, Ecosystem and Wildlife Standards for Timber Sales”—aka the Eastside Screens—has been in place as “interim” direction since 1995. At its core, the rule says: Thou shalt not cut down a live tree larger than 21 inches in diameter measured at breast height (DBH, or 4.5 feet above the ground) on the eastside forests of Oregon and Washington.” The rule generally ended the massive liquidation of old-growth trees that had always been agency policy.

Now the Forest Service is proposing to “revise” the rule “in light of current forest conditions and the latest scientific understanding of forest management in areas that have frequent disturbances, like wildfires.” The leader of the agency effort takes great pains to say that the proposed change is narrow and surgical, and is based on the best available science. The agency has not yet publicly revealed the particular modification it will propose, but it will likely be an age-based cutoff rather than a diameter-based cutoff.

Just what age? The same age for all species? Will diameter (largeness) continue to count at all?

The 21-inch rule has both pluses and minuses. So would a rule based on age. But any rule should be based on science specific to the eastside forests and not extrapolated from science specific to the westside forests. And any rule should steer the agency to manage the eastside forests to serve their greatest need: more old trees, dead or alive.

Forest Service “Science”

The managers in the Forest Service’s National Forest System branch are relying on the scientists in the Forest Service’s research branch to produce the science to support the effort. Twelve scientists and other experts—all Forest Service employees—have produced a white paper entitled “The 1994 Eastside Screens—Large Tree Harvest Limit: Synthesis of Science Relevant to Forest Planning 25 years Later.” A problem with the white paper is that it makes numerous references to northern spotted owls. The very definition of the demarcation line between westside and eastside forests is that the former host northern spotted owls and the latter do not.

Furthermore, the white paper points out that livestock grazing, roads, and fire suppression are all problems in the eastside forests. Still, the Forest Service’s management branch has always refused—and continues to refuse—to address these issues.

As supporting resources for the plan amendment project, the Forest Service research branch offers up two chapters from its “Synthesis of Science to Inform Land Management Within the Northwest Forest Plan Area” general technical report, noting they are “relevant to” the Eastside Screens plan amendment project. While not irrelevant, the chapters are specific to the Northwest Forest Plan area—in other words, the westside forests. The absence of northern spotted owls is evidence that the eastside forests are significantly and materially different from the westside forests.

Perhaps because they were not given adequate time, the scientists have had to phone in the science. Where is the specific eastside forest research and synthesis?

The Administrative Elegance of the 21-Inch Rule

Inherently, bureaucrats want to maximize their discretion. They don’t like hard-and-fast rules that limit their actions. Managers argue that circumstances on the ground are varied and resist a one-size-fits-all approach.

Inherently, conservationists fear agency abuse of discretion and love unambiguously clear commands that limit agency discretion. Their experience has too often been that if Congress grants the agency discretion, the agency abuses that discretion.

Inherently, scientists know the world is neither black nor white, on nor off. So scientists tend to frame recommendations to agency managers in ranges rather than absolutes (for example, a riparian buffer should be between 150 and 300 feet, depending on . . . ). While scientists are correct in acknowledging varying conditions, they fail to recognize that bureaucrats are under pressure to achieve certain outcomes (for example, to get the cut out). Given those pressures, the 150 feet in the example becomes both the floor and the ceiling.

The administrative elegance of the 21-inch rule is that anyone with a D-tape (a diameter tape measure scaled in diameter though it actually is measuring circumference) will come up with the same result. No discretion is required, so no abuse of discretion is possible.

The Limits of the 21-Inch Rule

Not all old trees are large, and not all large trees are old. There is essentially a poor correlation between age and diameter (Figure 2). While trees all grow old at the same rate, trees grow large faster on more productive growing sites than on poor growing sites. In any forest, but perhaps especially in forests with fires of relatively high frequency but low intensity, both large and old are important.

Figure 2. The correlation between size and age for ponderosa pine in eastern Washington. Below the pink horizonal line are trees less than 21 inches (53.3 centimeters) in diameter at breast height. To the left of the vertical pink line are trees younger than 150 years old. Source: Robert Van Pelt.

The Eastside Forest Scientific Societies Panel recommended that the Forest Service no longer log large young, large old, and small old trees (see Part 1 of this three-part post). The 21-inch rule in the Eastside Screens means that the Forest Service does not allow logging of live large young and old trees, casting aside the small old trees. The agency now wants to log more large young trees and perhaps not log more small old trees.

Is Age a Better Management Metric Than Diameter?

Would an age-based cutoff for logging be a better management tool for eastside forests than a diameter-based cutoff? Yes and no.

First we have to consider whether an age-based cutoff can ever be as precise as a diameter-based cutoff. Remember: if discretion is required, abuse of discretion is always possible.

Before the early 1990s, to assess a tree’s age, one had to either core the tree with an increment borer or cut down the tree and count the rings before bucking it up and hauling it away, an option disfavored by wildlife everywhere. Regarding the first method, large trees need a big increment borer that requires massive strength to overcome the stresses put on it by a very large mass of wood, and the core often breaks even if the borer can reach the center of the tree.

Since the early 1990s, scientists have figured out ways to approximate the age of a tree just by assessing its looks. As trees age they tend to take on similar characteristics at similar times. One interesting metric is the size of the largest bark plate or patch of bark between the cracks in the bark. Robert Van Pelt of the University of Washington has done pioneering work on the metric. But this metric is not precise, and as Figure 3 shows, relying on bark plates to identify trees under a certain age for cutting can result in trees older than the cutoff age being logged.

Figure 3. While bark plate width is a better predictor of tree age than tree size, where the management line is drawn is critical. In the sample above, if the age cutoff were 150 years, the maximum bark plate width on trees marked for cutting would be 15 centimeters (2.54 cm = 1 inch, so ~6+ inches). In this sample graph, three trees over 150 years old and up to 225 years old with bark plates just under 15 centimeters in width would be logged using such a metric.

Another issue is that a diverse, healthy, and ecologically useful forest has trees in all cohorts. If the Forest Service cuts most of the small young trees because they are below a certain age, there might not be enough of the large young, large old, and small old in the future. Of course, the reason eastside forests are in such a state is that the Forest Service overcut the large—be they young or old—trees before the Eastside Screens were put in place. In most stands (outside of roadless areas, of which there is precious little acreage), the largest and oldest trees were the trees not worth taking the first (or second or even third) time, but are the trees that were next to be cut.

Then there is the fact that relying on any single metric for conservation is rarely a good idea. The Eastside Forest Scientific Societies Panel report suggested no longer logging both (1) any tree of any species 150 years old or older; and (2) any tree 20 inches DBH or larger. No, “20 inches” is not a typo. In fact, when the Forest Service chose their Eastside Screens, they specified 21 inches. In this case, the Forest Service took an inch and countless board feet went to the mill. Size matters. The Forest Service also decided that only live trees would fall under their 21-inch rule. The scientific societies panel report did not exclude dead trees in their recommendations.

The Need for More Old Trees

Eastside forests need more old trees, dead or alive. In general, due to fire exclusion, high-grade logging, and livestock grazing, the eastside forests (save for those at high elevations) have fewer large and old trees than they used to, but often more trees overall. This is because exclusion of relatively frequent but low-intensity fire (caused in part by the introduction of livestock) has interrupted the periodic natural thinning of stands. The result is that younger trees (sometimes ponderosa pine but often white or grand fir) are crowding out residual live old-growth ponderosa pine trees, turning them prematurely into snags—often not by fire but by insect or pathogen. In the normal course of events, these old-growth ponderosa pines would, on average, have another several centuries of life.

Don’t get me wrong. I love snags. Some of my best friends are snags. There is more life in a dead tree than a live tree. Eastside forests need more snags, especially large snags from old trees. However, eastside forests are also dramatically depauperate of very large old-growth ponderosa pine (aka yellowbellies).

The judicious killing of younger competing trees—whether by fire or chainsaw—can allow the older and larger trees to live. Please notice that judicious killing does not necessarily mean cutting down the trees, bucking them into logs, and hauling the logs to the mill. It can and often has, and that can be okay. However, a tree can also be killed in various ecologically friendly ways, including but not limited to

• reintroducing fire into the forest stand in ways that will kill most small trees and spare most large and old ones (Figure 4);

• letting forest fires burn to the same effect;

• gridling the tree so it dies from the outside in to become a useful snag;

• blowing the top off a tree so it dies from the inside out to become a useful snag;

• scorching the tree with a backpack flamethrower while on snowshoes to limit collateral damage;

• cutting the tree down and leaving it as terrestrial large woody habitat; and/or

• cutting the tree down and placing it in a nearby stream for large woody aquatic habitat.

Figure 4. The National Park Service, in this case in Crater Lake National Park, is reintroducing fire into fire-excluded stands without having to thin first. The Park Service is comfortable with fire, while the Forest Service still is not. Source: Elizabeth Feryl, Environmental Images. (This image appeared in the book Oregon Wild: Endangered Forest Wilderness, Timber Press, 2004.)

Conservationists’ Concerns

While the Eastside Screens provide guideposts for land managers, the Forest Service scientists recommend that the Forest Service land managers have carte blanche. The rationale is that forests are complex and differ depending on latitude, elevation, aspect, species, precipitation, temperatures, and other factors, so one rule does not fit all. That is true, but one rule is superior to no rules.

Out of concern that the revision process is being driven by political and economic considerations, is dismissing the work of independent scientists, and is going forward at a time when public engagement is difficult, twenty-seven national, state, and local organizations (Figure 5) have jointly sent a letter to the Pacific Northwest Regional Forester that opens as follows:

For 25 years, these rules have provided a safety net for old-growth forests, large trees and structure, and wildlife in Eastern Oregon and Washington. They have also made it easier for conservationists, Tribes, local elected officials, logging interests, and the Forest Service to find common ground based on a clear understanding of what is and is not allowed on our public lands.

The letter goes on to allege that the process is being rushed, the effort relies on flawed science, and the public trust is being violated. It asks that the process be suspended and that any change in the rules be done through a process that is “balanced, transparent, comprehensive, and scientifically sound” and that “prioritizes wildlife protection, climate resilience, and public consensus.” Earlier, Oregon Wild, on behalf of some other organizations (including The Larch Company, my LLC), sent extensive “scoping” comments to establish standing and preserve their interests in the event of a legal challenge.

Figure 5. Organizations—including The Larch Company (moi!)—that signed a joint letter to the Forest Service critical of efforts to change the Eastside Screens. Source: Oregon Wild.

Part 3 of this Public Lands Blog series will offer recommendations on what course the Forest Service should take regarding the 21-inch rule and eastside forests in general.