Guest Opinion: Protecting the commons

Pitkin County Open Space and Trails Board
Aspen, CO Colorado

The privatization of 2 square miles of federal land on the north flank of Mount Sopris should confer clear and compelling net public benefits before county endorsement is forwarded to the Colorado congressional delegation. Nearly 85 percent of the county is federal land, and many other private landowners adjacent to national forest or BLM boundaries and parcels may have the inclination and the political and financial resources to privatize the commons through future congressional land-exchange proposals.

When the Wexners launched their political and PR campaign early in 2009, neither Pitkin County nor its Open Space Program had any standards for measuring net public benefits. Rapidly growing numbers of mountain bikers, wildlife advocates, conservation leaders and downvalley elected officials joined the chorus that Pitkin County endorsement was a “no-brainer” and needed to be expedited, before the Sutey ranch was lost forever.

With hindsight, this absence of threshold application procedures and evaluation standards did not well serve the proponents, Abigail and Les Wexner, or their respected lawyers and lobbyists. Likewise, the lack of any road map or standards hamstrung Pitkin County’s elected and appointed officials. One thing was clear from the outset: Appropriate stewardship of our public lands (the shared “commons” of the Roaring Fork Valley) require great care and vigilance by local open space trustees and elected county commissioners. The thousands of taxpaying county residents deserve our best efforts to zealously protect the commons for future generations. Through our diligent study of these issues, we have learned a great deal about federal land exchanges.

We now know that across the country there are both terrific and terrible examples of congressionally mandated land exchanges. Both congressional and private watchdogs have exposed land exchanges that were pure pork for influential constituents and were not in the public interest. But how are local county officials to discern those proposals to support and those to oppose? It may be a “no-brainer” when the proponent launches an administrative land exchange through the lengthy public NEPA scoping process of either the BLM or Forest Service. After a slow and meticulous public process, such agency approval results in one parcel being “sold” and privatized “in exchange” for a parcel elsewhere that will be donated by the same landowner to the same agency. But when the landowner elects to fast-track federal approval by fiat through a congressional land exchange, county gatekeepers have less information and less time to sort out the sweet apples from the bitter lemons.

The adoption of Pitkin County standards in no way attempts to ignore, dictate or override established federal land-exchange policies. Rather, such standards will telegraph to future proponents and their representatives the full array of information and analysis that must be furnished before county consideration of an endorsement request will be calendared.

Despite widespread support, there were telltale signs – early and often – that the proposal deserved much more intense scrutiny and not just a casual “me too” to jump on the bandwagon. By mid-2009 the open space board learned that Wexner lawyers and lobbyists had misrepresented that the 1,240-acre BLM parcel they wanted to privatize was already on the BLM “disposal list,” meaning that, following a public scoping process, it would be sold off to a private landowner anyway. The Wexners coveted this BLM parcel because public land cut right through the middle and separated their otherwise contiguous “Two Shoes” parcels. After investing $66 million in the two ranches and securing county development approvals for some 27 residences totaling more than 200,000 square feet, privatizing the 2 square miles in the middle made economic sense to the land-exchange proponents.

Contrary to the Wexners’ stated reasons for their full-court press for quick endorsement, arguing that soon it would be “too late” for introduction by Congressman John Salazar in 2009, the rush was purely strategic. Never once was any reason furnished for pursuing the congressional fast-track rather than the slower, more public, more thorough administrative route. Although many other seductive concessions were readily agreed to, the Wexners never furnished often-requested comparable valuation reports by respected independent appraisers.

Finally, in each draft of the proposed Act of Congress they hoped Rep. Salazar would carry, they expressly reserved the right to claim charitable donation deductions for conservation easements placed on both the Two Shoes and the Sutey parcels. Because very different Treasury Department valuation rules apply to charitable deductions than the Justice Department valuation rules that apply to appraising the two (or more) exchange parcels, the end result could be that the public picks up some or all of the tab for this privatization of the commons.

Because no one could know this and object until long after the Act of Congress was passed, the deal consummated and the deeds recorded, requiring analysis of net private benefit in advance seems to be warranted before county endorsement is forwarded to Congress. It is as if you are making a deal with both wholesale and retail prices, selling the parcels at wholesale, and buying the conservation easements back at retail without knowing what those values are at the time you make the deal. This is not a “no-brainer” deal.

The important wildlife, recreation, agriculture and historic values of the Sutey Ranch can be preserved with or without the Two Shoes land exchange. The Wexners could elect to preserve, rather than develop, the land – as a wildlife refuge with limited but extraordinary recreational trails – and they could commit to this now by placing it under conservation easement and realizing significant tax benefits. In this manner, the 600-acre historic ranch would be protected until the exchange is completed or until another source of funding is forthcoming.

Alternatively, Garfield County could offer to purchase Sutey and eliminate development forever, rather than perpetuating the fiction that, without the exchange, the historic ranch will simply have to fall victim to full build-out and bulldozers because the county commissioners will simply have to approve some future subdivision and development application. Or Garfield County could “save Sutey” now by using some of its tens of millions of dollars from oil and gas taxes to either option or purchase this priceless asset for its citizens.

Likewise, the BLM, Division of Wildlife or other public agency, or a consortium of public and private partners including Pitkin County Open Space, could preserve Sutey through well-known alternate-funding mechanisms. The Conservation Fund has an amazing track record of capturing and consummating just these sorts of land-preservation opportunities, often paid for by federal Land and Water Conservation Funds.

There are consequences in Garfield County for the failure of board after board of elected commissioners to propose by ballot referendum – and then push for voter approval and adoption – of a funded open lands preservation program. Given Garfield demographics, perhaps the mission and thrust of such an effort should be to save critical agricultural and recreational lands. While Pitkin was first, and this fall celebrates its 20th anniversary, several other Western Slope counties have established publicly funded open space programs with widespread popular support, e.g. Eagle, Mesa, Gunnison, Summit and San Miguel. It is downright silly to blame Pitkin County for allowing the Sutey Ranch to remain unprotected should the land exchange fail.

As appointed trustees, we are the overseers of priceless open space and trails assets preserved during the past 20 years in Pitkin County. And we are making best efforts to serve as a compass, and not just a weathervane, on matters of policy. Some 18,000 acres of land and 40 miles of trails are permanently protected thanks to mil levy property taxes that Pitkin County voters approved by greater and greater margins in four consecutive elections since the fall of 1990. We would turn our backs on all of those voters and all of these properties if we just caved in to avoid the criticism.

There is no reason to rush into a precedent-setting disposal of the public commons in the Roaring Fork Valley. Public land privatization and disposal is permanent, a lasting shift in our collective relationship with the landscape which surrounds us. We need to be deliberate in our approach and be sure before any deal is made that we get it right.


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