Property Rights Foundation of America®

by Carol W. LaGrasse, from Positions on Property, Vol. 2, No. 3 (PRFA, July 1995)

Environmental Pac Man
National Forest Becomes the "Core Area" to re-wild the Countryside

During 1995, people in a rural New York town began noticing a sinister shift in local land ownership. The Trust for Public Land and the U.S. Government were buying up distressed parcels at premium prices in Schuyler and Seneca Counties around the Finger Lakes National Forest.

Much of the land being acquired is outside the existing "footprint" of the National Forest and is establishing a new acquisition domain.

In the town of Hector alone, 906 acres worth an assessed value of $437,780 passed hands to the U.S. Government between 1992 and 1995, according to Town records. A Forest Service spokesperson reportedly admitted that the government recently acquired over 2,000 acres in the town. Much of the land had been quietly acquired by the Trust for Public Land (TPL) and turned over immediately at a tidy profit to the feds. One 65-acre parcel in the town of Hector was purchased by the TPL on December 28, 1992 for $52,000, and sold the same day to the U.S. Forest Service for $81,000, a 56.8% markup.

This profit-taking by wealthy tax-exempt not-profit land trusts as they destabilize the community tax base is all too familiar around the country, as is the secretive way by which the National Forest is cancerously expanding into surrounding farmland.

A preserve without boundaries
Congress has established no official boundaries for the Finger Lakes National Forest, which means that only the budget established by Congress restrains the greed of the land trusts and the free-wheeling decisions of bureaucrats in the Forest Service hierarchy.

However, in other National Forests and National Parks, where boundaries have been established by Congress, the Forest Service freely buys land outside the boundaries, because either the official boundaries have no legal meaning or because there exists no motivated, knowledgeable, funded individual with legal standing to challenge such purchases.

There is an advantage from the viewpoint of the un-American officials acquiring the land for government to stretch acquisitions as far beyond the current concentration of government-owned land as possible, thus progressively enlarging the area suitable for extensive acquisition as much as possible, because in the future the area will already have some government land. At some future point, intervening lands will then be sought, on the supposedly innocuous grounds of "consolidating" government holdings, rather than expanding, since the expansion will have already been done.

It is like playing a children's game of dots, all laid out on a grid to which you take turns adding one connecting line at a time, hoping to be the one to close the boxes and fill in your initials. You quietly set yourself up to be able to swoop over as much area as possible.

No guidelines, no competition, no community input, no public hearings, no public notice impinge on the process of taking land out of the private sector with funds (taxes) extracted from hard-working Americans.

Like every federal agency, the National Forest Service exerts the prerogative of exempting itself from State environmental review law. That is why the town officials in Hector only became aware of the federal tentacles sucking up land in their community when the assessor analyzed the tax roll.

The irony is that an agency purporting to be about the public good would choose to take exception from State laws established to protect the people and their descendants from overbearing government. When conducting activities in New York State, the federal government should abide by New York State law.

The state environmental quality review law was created to protect the people, their culture, economy and environment:

"Social, economic, and environmental factors shall be considered together in reaching decisions on proposed activities." (Environmental Conservation Law, Sect. 8-0103, par. 7)

No Notification of affected property owners
New York's environmental quality review law requires an early overall impact analysis for any project before the detailed review is undertaken.

"The purpose of the draft environmental statement is to relate environmental considerations to the inception of the planning process, to inform the public and other public agencies as early as possible about proposed actions..." (Sect. 8-0109. Par. 4, Environmental Conservation Law)

By exempting itself from New York State Environmental Quality Review Act, the Forest Service got around doing the lawfully mandated study of the cumulative effects on the economy of the community of acquiring all the land in the new acquisition domain it is establishing. In New York environmental law, this is referred to as illegally "segmenting" the project, or "action." It violates one of the first two fundamental areas of impact required under New York's Environmental Quality Review law, the environmental impact of "long-term effects,"

Acquisition domain of new area to protect Finger Lakes National Forest Service core area
The short-term acquisition domain being established now by the 15,000 acre Finger Lakes National Forest covers a minimum of 15,000 additional acres. Most of the National Forest is currently in the Town of Hector, which contains approximately 10,500 acres of federal forest. Ultimately, the two-fold expansion involves widening the core area and expanding along a north-south corridor.

The forest has historically had a productive relationship with the town. In fact, most of the acreage was acquired by the federal government during the Depression, and is locally thought to have been a benefit to the farmer-owners at the time. The Hector Land Use Area is the only unit administered by the Forest Service in New York State, and, according to the Forest Service, has been intensely managed to obtain a combination of forage, timber, wildlife and recreational use. Payments under the 25 Percent Fund Act of 1908 have required the Forest Service to distribute 25% of all the revenues to counties to support local school and roads. The federal payments have been to offset the tax-roll loss. In addition, the counties have received supplemental revenue according to the 1976 Public Law 94-565, Payments in Lieu of Taxes (PILT).

In mid-1995, however, the Hector Town Supervisor dropped a bombshell at a town board meeting. No payments had been received for three years, he pointed out, neither for the land the federal government has owned for generations, nor for the newly acquired land.

The local newspaper reported that,

"Reacting to the recent expansion of the national forest and concerned about the effect on other taxpayers and the Forest Service's plans for the area, the board voted 4-1 to ask for a moratorium on land buys until a payment plan can be devised."(1)

However, the federal government had indeed made the payments, which are received by the county directly from the federal government or through the State. The timber revenue payment was held up for two years by the State of New York. The town has begun to feel the payments are too low, however.

Empty promises from local representatives of federal government
The District Ranger subsequently promised the Town board that the Forest Service would consult the town officials before buying property in the future. But, at a minimum, the promise did not apply to additional land buys still in progress including the purchase of the Camp Seneca Boy Scout Camp on Seneca Lake in Seneca County. Revealingly, the District Ranger also said it was considering land for ecological or historic significance, to improve trails, or fill in gaps in the forest. The purposes have more of a "preservation" drift than the purposes for which the forest is said to have been historically used. A claim that only "gaps" are being filled in the forest was patently false.

The old "willing seller" saw
The last defense of the forester to the angry town board was also misleading.

"We only purchase land on a willing-seller basis... They come to us," the local paper reported the district forester to have told the town board.(2)

Violation of National Environmental Policy Review Act (NEPA)
The Forest Service is in violation of the National Environmental Policy Review Act by pursuing a significant expansion of the Finger Lakes National Forest piecemeal without divulging the ultimate expansion that will take place.

At every turn, the Forest Service has hidden the forest expansion project from the public, and, when the project was discovered, has covered up the real intent.

One parcel is for endangered species, such as a minnow, says the spokesperson.

Another parcel is for a different endangered species, a sparrow,

Another for lake access.

Other parcels are for the Finger Lakes Trail.

If we consider buying more land, we will consult you.

Oh yes, we're buying several parcels now under contracts, but you have no input in these.

We only buy from "willing sellers." "They come to us." But...

Most of the parcels are bought from the Trust for Public Land (TPL), which acts as a straw man and reaps a profit over the lower price paid to the unknowing original owner.

Yes, the TPL comes to the Forest Service, but that is hardly the same as an original property owner, who does not have an inside relationship with the Forest Service, coming to the agency.

In fact, the TPL is the right hand of government, existing on the taxpayer's purse and carrying out government purposes. Any private purposes of the TPL are inconsequential, yet because it is not a government agency it is exempt from scrutiny. The TPL is also the left hand of government, coming to the government as an advocate for land purchases, which it in turn carries out at a profit, secretly, on government's behalf. But, although it is involved in a constant flow of influence and dollars between itself and government, it retains IRS fully tax-exempt not-profit status.

The National Environmental Policy Act requires that all federal agencies

"develop procedures to ensure the fullest practicable provision of timely information and understanding of Federal plans and programs with environmental impact in order to obtain the views of interested parties. These procedures shall include, whenever appropriate, provisions for public hearings, and shall provide the public with relevant information, including information on alternative causes of action."(3)

No effort was made by the U.S. Forest Service to inform the public and obtain the views of interested local people about the new land being acquired for the Finger Lakes National Forest. Federal public participation effort was missing for each individual parcel and for the entire acquisition domain being established.

The federal government has avoided environmental impact analysis for such land acquisitions by pretending that each individual acquisition, 50 acres here, 1,000 acres there, and so on, is an individual "action." Because an environmental impact statement (EIS) is solely required for "major" federal actions, it has been very important to keep up this pretext.

But the pretext that each individual land acquisition by a federal agency for a particular National Forest, for instance, is a separate action for environmental impact purposes is indefensible.

In one of its most important clauses, NEPA states,
"...all agencies of the Federal Government shall... include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on... the environmental impact of the proposed action..." (4)

The Sierra Club established in litigation it brought in 1975 over development of coal reserves in what it called the "Northern Great Plains" that the term "major federal action" must be assessed in view of the potential overall, cumulative impact of the proposed action, related actions nearby, and further actions contemplated. The court held that minor federal actions can be "cumulatively considerable" when, over a period of years, an agency puts into a project individually minor but collectively major resources.

In expanding the Finger Lakes National Forest bit by bit without doing an environmental impact statement, the Forest Service is violating the interpretation by the court in other cases brought by environmental groups that a project cannot be viewed in its "segments" under NEPA in order to avoid environmental impact analysis.

The ploy that there are no specific concrete government "plans" delineating exactly the future boundaries of the Finger Lakes National Forest are to look, is not a way out of environmental impact analysis under NEPA.

NEPA was passed to force agencies to reveal and evaluate the direction of their actions, even the unintended directions.

And of course it can be readily seen that the avoidance of a formal plan for the land acquisition boundaries is a way to avoid public scrutiny and outrage, with or without NEPA. It is rather easy to see, with minimal mapping analysis, the extent of the minimum short-term (10-30 year) acquisition domain of the Finger Lakes National Forest, as revealed by current purchases. The likelihood of even more ambitious long-term boundaries, in line with the "re-wilding" concept expressed by Finger Lakes activists, even more firmly dictates an environmental impact statement. Natural Resources Defense Council argued the point successfully over a 1972 North Carolina stream channelization project that if substantial federal time and expenditures are involved, an environmental impact statement is dictated.

"Coercive effect" of completion of early segments of a project
Environmentalists established in federal court that a San Antonio highway project divided into segments for federal funding and approval could not be so divided for purposes of environmental review under NEPA. This was based on the "coercive effect" of construction of one segment upon others.

The principle that the "coercive effect" requires an environmental impact statement applies not only to construction of highways and trails, which form a linear pattern requiring closure, but to open grid-like government land acquisitions which also are meant to lead to solid blocks of government-owned land. The coercive principle has never been tested for a trail or other land acquisition domain.

Local government and the economy under NEPA
NEPA has been more troublesome than its framers envisioned because it has been enforced in court almost exclusively by environmentalists.

NEPA incorporates principles of fundamental respect for local and state government and for the local economy and culture that have not been pursued by advocates of home rule and preservation of the American tradition of private ownership of land.

The Congressional declaration of national environmental policy under NEPA declares that

"it is the continuing policy of the Federal Government, in cooperation with state and local governments,... to use all practical means and measures,... in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans." (5)

Among its detailed goals, the Congressional declaration calls for the nation to...

"attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences,"

"preserve important historic, cultural and natural aspects of our national heritage,..."

"achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities..." (6)

The National Environmental Policy Act has been used to advantage by environmental groups, more and more to the detriment of the human values clearly expressed in it.

If the U.S. Forest Service were forced to undergo an environmental impact evaluation of its actions under NEPA, the values such as "beneficial use," prosperity, cultural preservation and cooperation with local government would all weigh heavily against the expansion of the Finger Lakes National Forest to the acquisition domain that appears to be defined by recent government purchases.

If the potential long-term trend of the pattern of government land acquisitions in the Finger Lakes area over the next 30 to 100 years were scrutinized under NEPA, it is likely that a prognosis of extreme negative impact to the human health and welfare would be found.

Rather than a "balance between population and resource use" as envisioned under NEPA, the ultimate conversion to wild lands of much of the Finger Lakes region, first from the Finger Lakes National Forest north to the Montezuma Swamp, and then outward around Seneca and Cayuga Lakes and beyond to gather productive farmland under the government wing during weak stretches of the economy, would spell a decline in both population and resource use, a shift of production overseas, and a concentration of population in urban areas quite different from the "safe, healthful, productive and esthetically and culturally pleasing surroundings" envisioned for "all Americans" in NEPA.

(1) Glenda Gephart, "Hector to National Forest: Stop Buying Land in Town" Watkins Review & Express, Jul. 12, 1995 p1
(2) "Forest Ranger Pledges Better Communication" The Watkins Review & Express, Aug. 9, 1995 p3
(3) 42 USCS Sect. 4321, Executive Order No. 11991 (amending Executive Order No. 11514) Sect. 2 (a)
(4) 42 USCS Sect. 4332 (C) (i)
(5) 42 USCS Sect. 4331 (a)
(6) 42 USCS Sect. 4331 (b) (3), (4) & (5)

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