Acquisitions

The Acquisitions toolbox is a ‘work in progress’ and represents information available to date on this subject. To suggest new materials for inclusion, email Lisa Ronald at lisa@wilderness.net.

Introduction

Overview

Non-federal inholdings can have a consequential impact on wilderness character. Many inholdings go undeveloped, and as long as that remains the case, they do not affect wilderness. But landowners change over time and new owners with different interests may decide to develop, or access, the property in a way that negatively affects the surrounding wilderness area. For example, some inholdings may be subject to vehicle access through the surrounding wilderness, causing direct impacts, and if the vehicle use supports development of the property, further indirect impact to the surrounding wilderness may occur.

The Wilderness Act provides authority to acquire inholdings from willing sellers. Acquisition can occur through purchase, exchange, or donation. Examples from federal court cases further suggests that considering the opportunity of acquisition is an important step in the planning process when determining adequate and reasonable access to inholdings. This toolbox only addresses acquisitions, for information on providing access to inholdings, visit the Inholdings and Rights-of-Ways Toolbox.

Development of properties outside of, but adjacent to wilderness can also impact wilderness character. For example, a scenic vista may include private land outside of the wilderness boundaries. If that private land were to be developed, the scenic values associated with the wilderness could be diminished. The Wilderness Act provides a unique opportunity for lands adjacent to wilderness to be donated to the federal government, and through the donation process, added to the wilderness, amending its boundary.

Acquisition of lands by the federal government is subject to regulations and a process carried out by the agency's realty specialists. The process of acquisition is a laborious task and requires the commitment of time and budget. However, the process of determining access to an inholding is also time consuming, and often the subject of litigation which can make it even more laborious. It may be quicker and more cost effective for both the agency and the inholding owner to enter into a land acquisition than to go through the process of determining access across wilderness to a private property. Each case will be unique, but do not assume the acquisition process is so time consuming and costly that you choose to focus only on access authorization. There are several non-governmental organizations whose primary mission is acquiring private lands with special value to the public, and then transfer that land to federal ownership. These organizations can provide considerable help with the workload.

Is it Congress' intent that private lands within wilderness be acquired? One may argue that including areas of private land is unavoidable when Congress is designating large blocks of federal land as wilderness (federal land designation being the objective of wilderness legislation), and so believe that acquiring such incidental private lands is not an intent of Congress. Congressional intent regarding acquisition is not necessarily clear. However, Section 5(a) of the Wilderness Act, directs that when access is sought by a private owner, adequate access is to be provided, or the land is to be acquired through exchange. Some individual wilderness enabling statutes specifically establish priorities for acquiring properties. There are also times when Congress draws a boundary specifically to include private lands on the edges of federal lands; lands that it could easily have avoided (see the Spring Basin Wilderness legislative map example in the Resources and References section). In addition to legislative maps drawn to include non-federal lands, some enabling laws call out adjacent non-federal property for future inclusion. For example, In the Case of the Ojito Wilderness, the boundary did not include adjacent private lands, but the enabling law directs that if certain lands be acquired, they become a part of the wilderness: "If acquired by the United States, the following land shall become part of the wilderness area designated by this Act and shall be managed in accordance with this Act and other applicable law: [legal description of land provided]" These are all examples of a degree of priority on the part of Congress for acquisition of non-federal lands, should the owners be willing to sell, to then be managed as wilderness. Indeed, such acquisitions may greatly benefit wilderness character preservation, and so a prioritization of inholding acquisition is found in all four wilderness agencies policies. The managing unit should maintain a list of all the non-federal lands affected by the enabling legislation in order to keep acquisitions of these properties a priority when they become available.

Normally, acquisitions will only occur through purchase, exchange, or donation from willing owners. In rare cases, legislation may allow for condemnation. For example, the Eastern Wilderness Areas Act provides for condemnation under certain conditions. The agencies generally shun condemnation, and do not support acquisition work that is not from willing sellers.

Definitions

Basis in the Wilderness Act

Sec. 5. (a) [Provide access to land surrounded by wilderness] or the State-owned land or privately owned land shall be exchanged for federally owned land in the same State of approximately equal value under authorities available to the Secretary of Agriculture: Provided, however, That the United States shall not transfer to a state or private owner any mineral interests unless the State or private owner relinquishes or causes to be relinquished to the United States the mineral interest in the surrounded land.

Section 5(c) Subject to the appropriation of funds by Congress, the Secretary of Agriculture is authorized to acquire privately owned land within the perimeter of any area designated by this Act as wilderness if (1) the owner concurs in such acquisition or (2) the acquisition is specifically authorized by Congress.

Sec. 6. (a) The Secretary of Agriculture may accept gifts or bequests of land within wilderness areas designated by this Act for preservation as wilderness. The Secretary of Agriculture may also accept gifts or bequests of land adjacent to wilderness areas designated by this Act for preservation as wilderness if he has given sixty days advance notice thereof to the President of the Senate and the Speaker of the House of Representatives. Land accepted by the Secretary of Agriculture under this section shall become part of the wilderness area involved. Regulations with regard to any such land may be in accordance with such agreements, consistent with the policy of this Act, as are made at the time of such gift, or such conditions, consistent with such policy, as may be included in, and accepted with, such bequest.

Note: Through subsequent legislation, where Secretary of Agriculture is stated, provisions also apply to the Secretary of Interior.

Management Regulations, Policies, and Practices

BLM

MS 6340 1.6 C.9.c. Wilderness inholdings (including mineral rights) are one of the BLM's highest acquisition priorities. Field offices with BLM wilderness within their purview will identify priorities for acquisition of lands and other interests within or adjacent to wilderness areas, prioritizing lands where wilderness resources are at greatest risk.

FWS

610 FW 1 2.9 F. We will pursue voluntary land exchanges, purchases, or donations to consolidate Service ownership where the exercise of private rights would be detrimental to wilderness character or values.

FS

FSM 2320.3 9. Whenever and wherever possible, acquire non-Federal lands located within wildernesses. (1/22/2007)

NPS

NPS Reference Manual #41 Transferable Wilderness Inholdings. Private, State-owned, Tribal, or other lands not under Federal control located within a designated Wilderness boundary that can convert to Wilderness without further Congressional action IF they are acquired by the National Park Service. Acquisition of said lands is subject to willing sellers, not condemnation. This is a subset of Designated Wilderness lands.

NGOs Specializing in Land Acquisitions

NGOs can provide vital assistance in acquiring private land in and adjacent to wilderness. They can move quickly and in ways the Federal government cannot. Because they have dedicated land acquisition staff, they can provide assistance with real estate due diligence work such as appraisals, property and legal research, and also have the ability to remove facilities or restore parts of the property prior to transfer. This independent expertise can be useful to the agency as well as the landowner as they work through their options. Additionally, the NGO may be able to raise private funding or negotiate a partial donation (below market value sale) to further the acquisition. In some cases, an NGO may be able to pre-acquire the property thus allowing the federal agency to wait for funding through the Land and Water Conservation Fund (see information regarding the LWCF in the Resources and References section) and to complete the administrative process.

Contact to these organizations should be coordinated between the wilderness specialist, realty specialist, and authorized manager. The agency cannot make commitments which would obligate funds not yet appropriated, or guarantee acceptance of title without Solicitor or General Counsel approval. The agency cannot reimburse some acquisition costs incurred by the 3rd party. To avoid the potential for later problems in conveyance to the US, the Federal acquisition standards should be followed. Before imitating action, an important consideration is to develop a Letter of Intent signed by the agency's regional director to agree upon the requirements and responsibilities of the agency and the 3rd party.

Inholding Acquisition Process

Acquisitions of inholdings can occur through purchase, exchange, or donation from willing owners. The agency must always base acquisition on fair market value, though it can also accept a full or parcel donation. There are no special reporting processes or procedures for inholding acquisition beyond the normal process that your realty staff apply to non-wilderness land acquisitions.

Once non-federal land within the designated wilderness boundary has been acquired, it immediately becomes, and is managed as, part of the wilderness.

Though there are processes to rank the importance of inholding acquisitions that can be useful in some circumstances, prioritization is normally based on an owner putting the property on the market (i.e. its availability). When a landowner approaches the agency for access, that is also an important prioritization prompt at which time discussions of acquisition should occur. Sometimes the owner of a particularly important parcel to a wilderness can be identified by the agency and approached. All inholdings are important to wilderness character, and inholdings don't become available frequently, so take advantage of opportunities when they occur.

Edgeholding Donation Process

Section 6(a) of the Wilderness Act allows for the donation of land adjacent to but outside of the Congressionally established wilderness boundary. Through the donation, the land is added to the wilderness, amending the wilderness boundary. Normally, donations are facilitated by a 3rd party NGO.

Unlike inholding acquisition which immediately becomes a part of the wilderness upon acquisition, the donation of lands adjacent to wilderness, if they are to be added to it, must first go through an evaluation and notification process.

Acceptance of a donated property for addition to the wilderness requires the Secretary to notify the Congress. The agency must prepare the Department for Congressional notification by preparing an evaluation of the property's compatibility with management as wilderness. This is an additional step to those steps (such as NEPA analysis and realty processes) that would be required for inholding acquisition. This additional step includes identifying the property's current circumstances, needed restoration, potential conflicting land uses, and the feasibility of effectively managing the donated land as wilderness. This section includes examples of the land donation evaluation processes.

Congress does not need to respond to or approve proposed donations. It only needs to be given 60 day advance notice. Unless, during that time period, Congress chooses to involve itself legislatively, the acquisition may be completed after the notice period.

Examples

Once an Acquisition is Complete

The BLM is the dedicated record keeper of Federal lands. Notify the BLM State Office jurisdictional area in which the wilderness is located to update the federal land status records.

Case Studies in Preserving Wilderness Character

Resources and References