Facilitating a more Holistic Public Dialogue
Montana is blessed with immense public lands, totaling approximately 37 percent of the state’s total area. However, more than 3,000 square miles of federal land and almost 1,900 square miles of state land are inaccessible, landlocked within or behind private parcels with no legal access. Public-private land exchanges could help clean up this mess, simplifying management for public agencies and private landowners while improving public access to public lands. The state of Montana could lead this effort, swapping parcels to increase access to both state and federal lands.
Unfortunately, the Montana Department of Natural Resources and Conservation (DNRC) lacks basic guidelines to manage land-exchange proposals. The result is an exceptionally unholistic process that can degrade into a counterproductive and contentious quagmire. Such was the case with the Swift River Investments (SRI) River Holdings land exchange proposal along the Jefferson River. It stands as a case study of how the public process could be improved. It is my hope that lessons learned from this experience will lead to a set of DNRC guidelines to facilitate future land-exchange proposals.
The Swift River Investments proposal was apparently initiated by SRI and negotiated with DNRC and Skyline Sportsmen, a Butte-based public access advocacy group based in Butte. These three parties negotiated a mutually beneficial package where SRI would obtain two parcels of state land totaling 608 acres in exchange for two parcels of private land totaling 861 acres with greater value and easier management for the state, while providing improved public access to federal lands in the nearby Highland Mountains.
The upland portion of the agreement traded 528 acres for 750 acres, and the riparian portion traded an 80-acre parcel on the Jefferson River for a 111-acre parcel upstream on the Big Hole River. The proposal would have been a reasonable and fair deal, except that the 80-acre parcel on the Jefferson served as a <A HREF=”http://www.jeffersonriver.org/Canoe_Trail_Campsites.htm”>public campsite</A> known as Beaver Chew on the Jefferson River Canoe Trail segment of the Lewis and Clark National Historic Trail.
In August 1805, Meriwether Lewis left a note for William Clark on a tree at the confluence of the Big Hole and Beaverhead rivers, but then a beaver toppled the tree. Instead of ascending the Beaverhead, Clark led the men and canoes up the Big Hole River for nearly a mile with great difficulty, camping in the mud. They corrected the navigational error the next day, but had a near-fatal accident on their return downstream. Joseph Whitehouse was thrown overboard and nearly crushed by the weight of the dugout canoe as it passed over him in the river. The expedition backtracked to the confluence, camping there on August 6th, 1805 to dry their gear.
The state parcel, named Beaver Chew in recognition of this story, was situated near the confluence and served as a public campsite for floaters coming down either the Beaverhead or Big Hole rivers.
Administered by the National Park Service, the Lewis and Clark National Historic Trail is the equivalent of having a long, skinny national park running through our backyards, albeit with no formal protection for the river or the land. The Jefferson River Canoe Trail Chapter of the national Lewis and Clark Trail Heritage Foundation, was formed to steward this segment of the Trail, to advocate for public lands along the Jefferson, and to enhance the Lewis and Clark experience with quality, designated campsites along the way. This project may one day connect with other water trails on the Missouri, forming a continuous chain of campsites from here to St. Louis, Missouri.
Trading Beaver Chew for land on the Big Hole was akin to trading away land in a national park for land outside the park. Beaver Chew was the only public land available for camping on the upper Jefferson. For floaters following the Lewis and Clark Trail down the Beaverhead, it is highly impractical to turn and paddle seven miles up the Big Hole to camp. The next available campsite on the Jefferson is 25 miles downstream.
The negotiating parties were unfortunately unaware of the Jefferson River Canoe Trail (JRCT) or that the state parcel served as a public campsite for floaters following the Lewis and Clark Trail. Had they known about the Canoe Trail, Beaver Chew would never have been included in the land-exchange proposal. However, by the time they negotiated the deal between themselves, the parties were reluctant to address the concerns of another user group. They want the Jefferson River Canoe Trail to bear the majority cost of the land exchange.
The 80-acre parcel was appraised at $400,000, which is an enormous sum in itself. Yet, the real-world cost is considerably higher, since Jefferson River real estate typically sells for $10,000 to $15,000 per acre. If the land exchange went through, the Canoe Trail would have to raise $800,000 to $1.2 million to replace the lost public lands. Rather than working with our group to find an equitable solution, the other parties vilified the Canoe Trail and tried to intimidate and pressure the group with empty offers of “compromise.”
The experience, detailed as follows, shows how the public process broke down and provides insights for potential guidelines to facilitate better land-exchange proposals. These guidelines could form the basis for a land-exchange handbook that could be accessed by DNRC personnel from any office. DNRC would share the guidebook with all involved and interested parties, so that everyone understands how to move forward in a holistic and communicative manner.
1. Basic Research
DNRC should do background research on any parcel involved in any trade.
It would not have been difficult to identify the Jefferson River Canoe Trail as an affected party early in the process. Since 2004, the Canoe Trail has been featured in many local and national publications, including the Montana Standard, Bozeman Daily Chronicle, Belgrade News, Madisonian, Lewis and Clark Journal, Big Sky Journal, Canoeroots, Outside Bozeman magazine, and The Trail Companion, published by the National Park Service. Type the words “Jefferson River” into an online search, and you will immediately discover the Jefferson River Canoe Trail.
If this search had been done, then Beaver Chew would have been excluded from the land-exchange, and the remainder of the deal could have proceeded forward without controversy. Unfortunately, without a guidebook, DNRC personnel were left to make mistakes that are easily avoidable.
2. Public Input
DNRC needs to clarify the role of public input in the land-exchange process.
Early in the process we were told that our input mattered in the decision-making process, and SRI offered our group a 4-acre campsite on the downstream end of their ranch to replace the 80-acre site at Beaver Chew. We appreciated the gesture and toured the site, but found largely inhospitable rock and cactus. We picnicked briefly in some broken willows and cow pies, then scrambled for the canoes as soon as it was time to leave. Nobody wanted to stay. What good is a campsite if nobody wants to be there? We politely refused the offer.
Then came the shocker. Instead of working with us to find an acceptable alternative, SRI and DNRC-Dillon chose to advance the proposal to the Land Board, attempting to sell their “gift” to us as a reasonable deal. The “gift” made SRI look generous, at least on paper, and they tried to force us to take an undesirable campsite that the public wouldn’t use. It was a hostile move that fostered an atmosphere of extreme distrust.
3. Notify Affected Parties
DRNC should implement a policy of notifying all known parties affected by proposals under consideration by the Land Board.
When SRI and DNRC-Dillon advanced the land-exchange proposal to the State Land Board for the first time on December 21, 2015, members of the Jefferson River Canoe Trail were not invited. We did not receive any notification whatsoever about the hearing, even though our group was directly affected by SRI’s proposal to take away Beaver Chew and grant us an undesirable campsite. We were fortunate to catch wind of the public hearing in advance and were thus able to attend and defend Beaver Chew.
4. Disclose Potential Conflicts of Interest
DNRC and the Land Board need to adopt guidelines to publicly disclose any and all potential conflicts of interest. There should also be clear and consistent guidelines to identify when Land Board members should ethically recuse themselves from a vote.
When Swift River Investments advanced the land exchange proposal to the Land Board over our objections, we began to wonder who was behind this push. Background research revealed that the principal owner of SRI is Hamilton “Tony” James, a billionaire with deep political connections at the state and national level, including connections to at least one member of the state Land Board. This revelation led to doubts about the public process. Does public input really matter? Was the land exchange decided before we ever heard about it?
These are valid questions that led to considerable paranoia and distrust in the public process. On the one hand, we would like to think that our public officials are above reproach and will objectively consider the proposal based on its merits. On the other hand, SRI and DNRC-Dillon advanced the proposal to the Land Board, didn’t inform us of the hearing, and tried to sell the proposal as a generous gift after we already turned it down.
There never was any public disclosure regarding the nature of the connections between Mr. James and members of the Land Board. How deep are these connections? Were there potential conflicts of interest? Should any Land Board members have recused themselves from voting on this particular land exchange proposal?
5. Disclose the Involved Parties
DNRC should immediately supply any interested party a document that a) outlines the land-exchange proposal, b) reveals who is substantially involved in the process, and c) defines the nature of their role in the process.
For eight months we studied, debated, and attempted to negotiate with SRI to improve the land exchange proposal, but at no point did anyone mention that the Skyline Sportsmen’s group in Butte was a key player in negotiating the original proposal. The first time we met Skyline Sportsmen was immediately after our first hearing with the Land Board in Helena. Members of Skyline Sportsmen showed up after the hearing and claimed they were on our side. We went out to lunch together and had a great time. It took another week to learn that they were not on our side, and even more time to learn that they actually helped draft the agreement to take Beaver Chew away from the Canoe Trail.
6. Document the Purpose and Benefits of the Land Exchange
DNRC should maintain an ongoing public log of who, what, and why of the main points of the land exchange to any interested parties.
Throughout the land exchange proceedings, it was excruciatingly difficult to obtain basic information about the proposal. For example, who added Beaver Chew to the land exchange proposal and why? We heard many different, conflicting answers. What were the benefits of the land exchange for the landowner? For DNRC? For Skyline Sportsmen? It took more than a year to obtain sketchy details about who was involved and what they wanted out of the deal. DNRC ultimately published a Project Development timeline as part of the Environmental Assessment almost two years after we first learned of the land exchange proposal, and only after DNRC closed the official public comment period. This narrative could have easily been provided from the beginning to clarify core issues.
7. Consider Inequities Between the Parties
DNRC needs to establish guidelines calling for equitable compromise according to each party’s ability to contribute.
The SRI River Holdings land exchange proposal was a good deal for SRI, DNRC and Skyline Sportsmen, but only at the expense of the Jefferson River Canoe Trail and other river users. Our group would have to raise $800,000 to $1.2 million to purchase an equivalent property for public use on the upper Jefferson River.
Rather than the Canoe Trail alone paying for the land exchange, an equitable compromise would have entailed each party contributing one-fourth of the value in acres or dollars. However, the state has limited flexibility, and Skyline Sportsmen is a nonprofit group like the Canoe Trail, that could not be expected to chip in hundreds of thousands of dollars. Separating DNRC and Skyline from the deal leaves only SRI and the Canoe Trail to split the cost 50/50. Although our group would prefer to retain Beaver Chew as a public campsite, we were willing to accept a reasonable compromise, even considerably less than a 50/50 deal.
In January of 2016 we proposed that SRI could purchase a 20-acre property downstream for a public campsite, and in exchange, we could support the land exchange proposal. It wasn’t a particularly good deal for the Canoe Trail, giving up 80 acres for 20, but it would have minimally satisfied the issues surrounding the land swap. The property would have cost less than two days of the landowners’ income, but the offer was rejected, along with several other compromise solutions from our group. This was coming from a billionaire with 38,000 acres who insisted on pushing the public off the 80-acre campsite at Beaver Chew without providing a functional replacement on the Jefferson River.
SRI could have easily brought our group onboard with the proposal, but instead expected the Canoe Trail to bear the majority cost of the land swap. Rather than spend a few days his time to settle the deal, Mr. James chose to drag the process out for an additional year, consuming hundreds of hours from all parties involved in the process.
Given that the Land Board passed the deal, the Jefferson River Canoe Trail will now have to work for a decade or more to raise funds to replace public lands lost along the Jefferson.
8. Include Affected Parties in the Process
DNRC needs to establish guidelines to include affected parties in drafting proposals before those proposals go public.
DNRC-Dillon published multiple scoping documents regarding the land exchange proposal without consulting affected parties in advance. For example, on July 13, 2016, DNRC published a scoping notice and asked for public comment on a proposal that included numerous offers to the Canoe Trail without informing the group or soliciting our input in advance. These proposals sounded generous on paper, but they were hollow offers, including:
- A Lewis and Clark interpretive sign at the confluence of the Big Hole and Beaverhead Rivers that we didn’t ask for and didn’t want, because the river is highly volatile there, and the sign would end up littering the river.
- A $50,000 matching grant for future Canoe Trail projects, which sounds great, except that it is only about 5% of the replacement cost for the public lands being taken away at Beaver Chew.
- A recreation easement for camping on a 4-acre portion of 80-acre parcel of state land, which seems reasonable, except that the site offered is largely uninviting and inaccessible. Plus SRI imposed tight restraints limiting access to three months of the year, and visitors would be required to call the ranch ahead of time to stay there. Moreover the recreation easement would be permanently revoked if people broke the rules or trespassed outside the 4-acre corral.
SRI and/or DNRC could have easily solicited our input in advance to develop an acceptable compromise, but chose instead to present the proposal as if they were granting the Canoe Trail a generous gift. The package was seemingly intended to mislead the public into believing that core issues were being addressed. How could DNRC publish something like this without consulting the affected parties?
9. Protect Public Access to Public Lands
DNRC needs to prevent private landowners from posting public lands.
During the summer of 2016, several people reported that they were unable to locate Beaver Chew. SRI posted a “No Trespassing” sign on the edge of the state land, causing visitors to continue downstream, unable to find the campsite. Although SRI’s sign was on their land, the apparent purpose of the sign was to scare the public away from public land. SRI also mowed a patrol pathway along the edge of the state land, facilitating the illusion that they owned it. DNRC shouldn’t tolerate these deceptions. DNRC should immediately post the state land as public, or insist that the landowner remove or clarify their signs.
10. Disclose Conflicts of Interest among Supporters
DNRC needs to establish protocols for disclosing behind-the-scenes connections when facilitating a land exchange.
The land exchange proposal was supported by the George Grant Chapter of Trout Unlimited and other TU members, which sounds like an honest endorsement, at least on the surface. However, the land exchange proposal had no bearing on fisheries issues. The reason Trout Unlimited voiced an opinion on this issue was because the landowner, Tony James, is Vice Chairman and a big donor to Trout Unlimited’s Coldwater Conservation Fund. TU members were effectively paid to endorse the land exchange.
11. Prioritize Local Residents and Affected Users
DNRC needs to establish guidelines to prioritize the concerns of those who are directly impacted by a land exchange proposal.
A key issue with the land exchange was that an out-of-state landowner negotiated the deal with parties in Beaverhead County (DNRC) and Silverbow County (Skyline Sportsmen) to manage and dispose of lands in Madison County without including Madison County residents or Jefferson River advocates who are most impacted by the exchange. The original parties invested time, energy, and momentum in developing a three-way pact, with which they sought to push over those of us who live here. This was evident at the Nov. 1, 2016 public meeting in Twin Bridges, where land exchange proponents were principally from over the hill in Butte and wouldn’t be impacted by the loss of public land on the Jefferson River.
12. Acknowledge Public Opinion
DNRC needs to acknowledge public opinion in the land exchange process.
More people opposed the land exchange than supported it, according to a tally of all available public comment. Even those who favored the land exchange proposal widely agreed that Swift River Investments should have reached an acceptable settlement with the Canoe Trail. Why then did DNRC go out of its way to finalize the land exchange without settling core issues? Does public opinion matter in deciding the fate of public lands?
13. Develop Consistent Procedures
DNRC needs to develop consistent procedures for facilitating land exchange proposals.
DNRC-Dillon published several versions of the SRI River Holdings land exchange proposal that included offers to the Canoe Trail, as noted earlier. However, in October 2016, DNRC stripped these settlement proposals from the official documents, declaring that those were side deals that were independent of the state process. Lacking an established set of guidelines to facilitate the land exchange process, DNRC changed the rules on the fly, inventing policies and procedures as they went along. The land exchange process doesn’t need to be this convoluted.
14. Publicly Disclose DNRC’s Position
If DNRC isn’t neutral to the proceedings, then that bias needs to be disclosed in all public documents and at all public meetings.
The state of Montana is presumably a neutral party in land exchange proceedings, intended to facilitate rather than advocate. In this case, however, DNRC was an active proponent of the trade. DNRC needs to publish guidelines clarifying its role in facilitating the public process. Is DNRC neutral? Or does DNRC have its own agenda and thus ignores public opinion?
15. Follow MEPA Process for Public Review
DNRC needs to follow the MEPA process as laid out in the law.
Writing an Environmental Assessment is standard procedure for a land exchange proposal and virtually any other state or federal decision-making process. A typical Environmental Assessment includes a Preferred Alternative, a No-Action Alternative, and several other alternatives, listed as A, B, C, etc. There is a public comment period of thirty or more days after the EA is published before a final decision is made.
Members of the Jefferson River Canoe Trail offered several proposals and viable alternatives for the EA. Most of our suggestions were omitted from the EA, and none were evaluated as potential alternatives. Moreover, DNRC closed the public comment period prior to publishing the EA, contrary to Montana Environmental Policy Act (MEPA) Model Rules:
- PUBLIC REVIEW OF ENVIRONMENTAL ASSESSMENTS
(3) The agency is responsible for providing additional opportunities for public review consistent with the seriousness and complexity of the environmental issues associated with a proposed action and the level of public interest. Methods of accomplishing public review include publishing a news release or legal notice to announce the availability of an EA, summarizing its content and soliciting public comment; holding public meetings or hearings; maintaining mailing lists of persons interested in a particular action or type of action and notifying them of the availability of EAs on such actions; and distributing copies of EAs for review and comment.
Although there was significant opposition to the land exchange proposal, DNRC arbitrarily opted to skip public review of the EA in the MEPA process.
Public-private land exchanges can be a good tool for consolidating public lands, facilitating resource management, and enhancing public access. DNRC and the Land Board could greatly improve the public process by publishing a set of guidelines to ensure an orderly, fair, and holistic dialogue to bring all parties together towards common goals. I write this article as a formal request for the state of Montana to establish such guidelines.
In regards to the SRI River Holdings land exchange, Beaver Chew never would have been included in the proposal if DNRC-Dillon did the most basic research early in the process. Failing this fundamental duty, DNRC didn’t attempt to resolve the issues, but instead chose to preserve its alliance with SRI and Skyline Sportsmen against Jefferson River advocates. Those of us who care about and love the Jefferson River bent over backwards in the attempt to accommodate the trade and find a win-win solution to benefit all parties. Unfortunately, Swift River Investments was not willing to compromise or to search for common ground, and DNRC was less than helpful.
The final package that went before the Montana Land Board was a bait-and-switch land deal. There was no campsite in the package, yet SRI and DNRC retained endorsements from parties who believed there was. The Land Board, consisting of the five highest elected officials in the state, approved the deal anyway. Our state government can do better than that. Let’s establish a set of guidelines to facilitate the public process and facilitate, rather than impede, future land exchanges.
Thomas J. Elpel lives in Pony, Montana. He is the author of numerous books on wilderness survival, nature, and sustainable living. He is the founder/director of Green University® LLC and Outdoor Wilderness Living School (OWLS) and an original founding member of the Jefferson River Canoe Trail.
–Billionaire Surcharge Tax: Funding to Restore Public Access
–Overlords of Montana: A land and people conquered by money
–Posted: Please Trespass: The Green Post Campaign to Reclaim Everyman’s Right to Roam
–Freedom to Roam