Reauthorization of Federal Land Transaction Facilitation Act Offers Opportunities for Federal Land Users, Conservation

by Snell & Wilmer
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Buried deep inside the recently passed Consolidated Appropriations Act of 20181, legislation reviving the formerly expired Federal Land Transaction Facilitation Act (FLTFA) offers opportunities for potential purchasers of federal public lands, while also creating a source of funding for important conservation transactions.

Originally enacted by Congress in 2000, FLTFA authorized the U.S. Bureau of Land Management (BLM) to sell identified public lands in order to provide funding for purchase of high-priority conservation lands.2 Prior to FLTFA, BLM was authorized to sell certain public lands identified for disposal in land use plans, but had no incentive to do so, since proceeds from land sales were allocated to the general federal treasury, while costs of sales were borne by the BLM budget. FLTFA instead allowed BLM to retain 20 percent of net land sales proceeds to recover its processing costs. More importantly, FLTFA authorized BLM to use the remaining 80 percent of net sales proceeds to purchase high-priority conservation lands within 11 contiguous Western states and Alaska.3

During the 10 years in which FLTFA was originally in effect, BLM generated over $113 million by selling at auction public lands that had been identified in land use plans as having limited values for conservation, recreation or other public uses.4 After recovery of costs, BLM and other federal agencies were able to use FLTFA funds to acquire over 18,000 acres of prime conservation lands, including critical elk wintering habitat in New Mexico, private inholdings in Zion National Park in Utah, and redwood forests in California.

After FLTFA’s original authorization expired in 2011, reauthorization was held up for seven years due to congressional reluctance to authorize additional federal land acquisitions, and debate about whether funds generated from federal lands sales might more appropriately be dedicated to fixing maintenance backlogs in national parks. The current 2018 reauthorization largely tracks FLTFA’s original format, although adding provisions for the acquisition of non-federal lands that provide access for public hunting, fishing and target shooting.5

FLTFA reauthorization may offer the private sector opportunities for purchase of BLM lands adjacent to working farms and ranches, mines, and real estate developments. Conversely, for owners of lands with significant conservation values such as endangered species habitat or parks or forest inholdings, FLTFA will create a welcome funding source for federal acquisition of conservation lands.

In order to be eligible for sale under FLTFA, BLM-managed public lands must be identified for disposal in a current land use plan.6 The reauthorization provides that, within 180 days of the reauthorization, the Department of the Interior must publish on its website a database of all land available for sale under the act.7 Sales are conducted under existing land sale authority, with a competitive bidding process, subject to some exceptions for sales to state and local governments and adjoining landowners.8 BLM will work with the National Park Service, the Fish and Wildlife Service, and the USDA Forest Service to prioritize land acquisition targets in each state. Federal public lands that are not currently identified by disposal in a land use plan can be added through a plan amendment; however, plan amendments under the Federal Land Policy and Management Act can be time consuming, and this option is unlikely to be available if substantial natural values exist on the parcel in question.

FLTFA is not the only federal legislation that authorizes the sale of BLM lands. Particularly for federal lands in Nevada, congress has created authority for BLM to sell lands to fund specific conservation and economic development goals, and more efforts of this nature are pending enactment.9 These legislative efforts collectively represent a decision by congress that surplus and non-essential BLM lands represent a useful funding source for pursuing worthy conservation goals. This in turn provides a previously unavailable opportunity for the private sector and state and local governments to purchase BLM public lands where doing so would advance their particular objectives.  

Footnotes:

  1. Public Law 115-141, Division G, Title III, §§ 301-302 (March 23, 2018).
  2. Public Law 106-248, Title II, 114 Stat. 613 (July 25, 2000), codified at 43 U.S.C. §2301.
  3. 43 U.S.C. §2305(c)(2). Sales proceeds are net of certain payments – usually 4 percent of federal land sale amounts - made to the states under individual state enabling acts. 43 U.S.C. 2305(a).
  4. Senate Report 111-260 (August 5, 2010).
  5. FN 1, §302(3).
  6. 43 U.S.C. 2304(a).
  7. FN 1, §302(4)(A).
  8. 43 U.S.C. §1713(f).
  9. See e.g. Southern Nevada Public Land Management Act of 1998, 112 Stat. 2343; section 2601 of the Omnibus Public Management Act of 2009, Pub. L. 111-11, 123 Stat. 1121 (Washington County, Utah); Pershing County Economic Development and Conservation Act, S. 414; H.R. 1107 (115th Cong).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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