Mega land swaps – gaming the western checkerboard

Mention checkerboards at the local senior center and somebody will whip out a square of cardboard, a box of checkers and challenge you to a match. Travel out on the Rocky Western landscape, however, and you find yourself rolling across a checkered game-board of continental proportions.

In the mid-19^th Century, Congress wanted railroads constructed across the West to open the region to settlement. Free public land was the sugar they used to entice venture capitalists into building the rail lines; railroad companies were granted vast acreages as incentive to push iron horses across prairies and mountains.

Congress hedged their bet in one aspect. They didn’t want the tycoons of the time to establish private empires with the land grants – that might lead to a competitive political power the federal government couldn’t control. The solution was to grant the lands in alternating square sections of 640 acres each. This way every private section was dividing from the next by a section of public land.  Look at a map of western states today and see the alternating green, yellow, blue, and white squares symbolizing public versus private ownership.

That tablecloth ownership pattern has been the source of trouble out West ever since.

For decades public recreationists, chiefly hunters, have complained about the millions of public acres unreachable and un-huntable because they are cut off from public access by neighboring private landowners – some five million acres by one estimate. Indeed, the 2013 Session of the Montana Legislature considered and rejected a bill to legalize the pedestrian crossing of touching section corners (corner-crossings) by the public.

In an ironic turn, hunters now have reason to pause and reflect on a potential new value of those thousands of isolated federal and state land sections.

Western states with high amenity value private lands – that is, properties with scenery, wildlife, water and connection to large federal lands -- are experiencing a land rush of petro-billionaires looking for big parking places for mega bucks they are making in the current frack boom. The Montana market, in particular, offers a lot of high-amenity ranches as their traditional owners retire or quit the Ag business.

A large-scale change of ownership from traditional owner-operators to a new model of non-resident investor-owners is in rapid progress.

This change is not yet at peak. A recent demographic analysis indicates the average age of a Montana farmer-rancher spiked over a short five-year period from 56 years to 58 years of age. We can read the future in such a number.  Nobody regrets this trend more than the good folks of Montana’s traditional rural way of life. But urban hunters should be just as distressed.

No matter how heated our urban-rural arguments become, we city folk are much better off with multi-generational resident families owning our rural private lands rather than indifferent Wall-Street types who see nothing but dollars when they look at us.

Urban sportsmen and women have had a sometime tumultuous relationship with landowners who both live on the land and earn their living there by farming and ranching. But recreationists from town always have been able to meet their rural peers face-to-face and work toward agreement. Many good agreements are on the books. These interactions always have been framed by the tacit understanding that, when all is said and done, we Montanans, Idahoans, etc. continue to live in the same house-of-state with each other so we may as well figure out how to get along.

Now that old-time social-contract appears to be unraveling.

The import of this landscape-wide ownership change is made apparent in recent proposals for public-private land exchanges offered by new zillionaire ranch owners. This brings us full circle back to those big checkerboards.

After 125-odd years of wheeling, dealing land deals, along with the peculiarities of the Homestead Laws and the school trust law, a whole lot of the public estate is now isolated inside private properties. And a considerable amount of private land is isolated as ‘in-holdings’ inside public ownerships. Doing some swaps to consolidate holdings would seem to make sense in order to improve management efficiency.

As always, the devil is in the details.

Until recently, land exchanges were relatively small, and usually were agreeable to both public and private interests, particularly when the private landowners were participants in a private-public partnership to manage wildlife and hunting opportunities on private lands by public process (i.e. Block Management). In Montana, the Land Board and state agencies have taken great care not to lose public access when doing land banking and exchanges.

A recent proposal by the new owner of the Dana Ranch in Cascade and Meagher Counties of Montana illustrates the formidable new challenge facing westerners accustomed to dealing with traditional local landowners. Offered to Montana DNRC was the exchange of 14,000-plus acres of state lands landlocked inside the Dana Ranch in trade for another ranch of equivalent acreage that would become public.

The Dana proposal had the effect of delivering a sharp, loud wake-up call to affected sportsmen. But the merit of the deal offered by the Dana owners is not the topic of this discussion. This essay is about the strategic social and political questions evoked by the proposal.

What do deals of this kind portend for the future of outdoor recreation in Montana? What will the quality of life in Big Sky Country be like a generation from now if exchanges such as this are the trend of the future thus leaving the public locked out of thousands of square miles at a whack?  The Treasure State is 70 percent privately owned after all.

Is Montana destined to morph into the ‘great state of North Texas?’

Exchanging landlocked public parcels often makes sense when ranches are multiples of 1,000 acres in size. Do they still make sense to the recreating public when ranches balloon to multiples of 100,000 acres -- as a few have already done? (Note-to-file: just because isolated parcels are inaccessible via current transport technology does not mean this will forever be the case.)

Given current state law, a private landowner with a very large consolidated property can be effectively beyond the reach of the law when it comes to enforcement of state game laws. Are the 19^th Century fears of Congress about the power of private land empires coming true in the 21^st Century?

Another on-going exchange example illuminates what values the public has at risk. 

The Texas oil billionaire Wilks Brothers started buying land in Montana just three years ago. They now own 276,000 acres in seven counties. Their consolidated holding in the area centered on the Little Snowy Mountains in Fergus, Musselshell and Golden Valley counties has grown to 199,200 acres. That’s a bit more than 311 square miles under unified private control not counting public in-holdings. 

This inland empire just happens to almost wholly envelope 4,000 head of public wild elk, the second largest elk herd in the state. Those elk are an amenity of extraordinary public value that forces hunters to see they have a lot of skin in the ownership change game.

So what are resident elk hunters to make of an exchange offered to the federal BLM by the Wilks?  The Wilks want to swap a land parcel they own in an area known as the Bullwhacker north of the Missouri River that controls road access to about 50,000 acres of BLM land. In trade they want a strategic BLM in-holding located right in the heart of their Little Snowy empire?

That parcel, the Durfee Hills parcel, is landlocked from access by road. But a backcountry airstrip located in the parcel is well-used by hunters as the only public access remaining to almost all of those 4,000 elk in the Little Snowy herd.

In this case, local hunters already have staked out a public position opposing this trade for reasons that will continue to resonate on the larger strategic game-board.

{See this Bull Moose Gazette page to view maps and read a petition opposing the trade by Central Montana Hunters for Public Access.}

The public interest, the hunters argue, lies on the one hand, in BLM maintaining the public elk hunting opportunity by keeping the Durfee parcel. And on the other hand, in BLM establishing a new road access into the Bullwhacker. 

I believe the standard of public access the hunters are advocating will have implications for future exchange debates.

The actual travel venue of public access, they say, should be only one of several key criteria defining ‘effective’ public access. By effective they mean access that prefers established traditional public uses of lands and waters while also enabling state management of wildlife within a resource management plan created by lawful public process in which decisions are transparent. (this does not preclude change of public use for good cause.)

Among other important decision-making factors is the quality and value of the resource at risk in any exchange as well as the quality of the recreational experience. And, the net effect on the North American system of wildlife management is material to every ownership and access decision.

In summation, not all land exchanges will be bad deals; each must be considered on its merits. And public recreationists will have to resist the temptation to stick their noses into the truly private business of private landowners, even when they are affected by those private decisions.

I hope resident recreationists of Montana and other transitioning states in the West get their heads in the strategic game and come up with some new policy direction for how land management agencies will deal with large-scale land exchanges.

If they don’t they may find they have been bumped right off the checkerboard.

  ~~ Ron Moody