[Federal Register Volume 65, Number 134 (Wednesday, July 12, 2000)]
[Notices]
[Pages 42982-42985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17581]


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DEPARTMENT OF AGRICULTURE

Forest Service


Davis Land Exchange; White River National Forest; Colorado

AGENCY: Forest Service, USDA.

ACTION: Notice of land exchange.

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SUMMARY: On June 15, 2000, Anne Keys, Deputy Under Secretary for 
Natural Resources and Environment, signed a Decision Notice and Finding 
of No Significant Impact for the Davis Land Exchange. The decision 
authorizes the exchange of 7.32 acres within the White River National 
Forest, Colorado, for approximately 61 acres in Pitkin County, 
Colorado. The exchange will be completed under authority of and in 
accordance with the General Exchange Act of March 20, 1922; the Federal 
Land Policy and Management Act of October 21, 1976, as amended; and the 
Federal Land Exchange Facilitation Act of August 20, 1988.

EFFECTIVE DATE: June 15, 2000.

ADDRESSES: Copies of the decision and environmental assessment may be 
obtained from Mr. Allan Grimshaw, Aspen Ranger District, 806 West 
Hallam Street, Aspen, CO 81611.

FOR FURTHER INFORMATION CONTACT: Allan Grimshaw, Aspen Ranger District, 
at (970) 925-3445 or email [email protected].

    Dated: June 26, 2000.
Sally D. Collins,
Associate Deputy Chief.

Decision Notice and Finding of No Significant Impact for the Davis 
Land Exchange, Pitkin County, Colorado, USDA Forest Service, White 
River National Forest, Aspen and Sopris Ranger Districts, May 2000

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Independence Avenue, SW Washington DC 20250-9410 or call (202) 720-
5964 (voice or TDD). USDA is an equal opportunity provider and 
employer.

Introduction

    The Davis Land Exchange was initiated in an effort to resolve a 
title claim by Mr. D. Stone Davis against the United States, Pitkin 
County, Colorado, and others. Properties claimed by both the United 
States and Mr. Davis were conveyed to the United States by Pitkin 
County in1994 as part of the implementation of the Colorado Land 
Exchange Act of May 19, 1994 (Pub. L. 103-255). The United States has 
entered into a settlement agreement with Davis and Pitkin County 
whereby the United States would consider exchange of certain National 
Forest System lands for Davis' interest in disputed lands and others.
    This Decision Notice (DN) documents my decision regarding the 
proposed Davis Land Exchange. An environmental assessment (EA) has been 
prepared in compliance with the National Environmental Policy Act for 
this proposal and discloses the environmental effects. This EA is 
available for review at the Forest Service Offices in Aspen and 
Glenwood Springs, Colorado. A biological assessment (BA)/biological 
evaluation (BE) was prepared in compliance with process requirements 
under the Endangered Species act and related Forest Service Policy. 
Floodplain and wetlands evaluations were prepared. A heritage resources 
inventory and report were completed. I referred to and have relied 
heavily upon these documents in my decision documented here.

Purpose and Need

    The Colorado Land Exchange Act of May 19, 1994 (Pub. L. 103-255) 
directed the Forest Service to exchange approximately one hundred 
thirty two acres of land at the former Mt. Sopris Tree Nursery (MSTN), 
in Eagle County, Colorado, for approximately one thousand three hundred 
acres of patented mining claims whose ownership was claimed by Pitkin 
and Eagle Counties. Pitkin County issued a quit claim deed to the 
United States for 148 patented claims on August 16, 1994 and an 
additional quit claim deed for 4 patented parcels on September 30, 
1994. Eagle County issued a quit claim deed to United States for 4 
patented claims on July 26, 1994.
    The Act also provided that any party who claimed any right, title, 
or interest in or to any lands conveyed to the Forest Service under the 
Act, would have to bring an action against the United States pursuant 
to the Real Property Quiet Title Act of October 25, 1972 (section 2409a 
of title 28, U.S.C.), prior to September 15, 2000. Civil action No. 96-
WM-1607 was filed in United States District Court for the District of 
Colorado, naming the United States of America, Pitkin County, and a 
number of other parties as defendants. The purpose of the action was to 
have the court quiet title to the Picayune Lode (U.S. Mineral Survey 
No. 5743) and the Daisy Lode (U.S. Mineral Survey No. 4050).
    Subsequently, Mr. Davis, the United States and Pitkin County 
negotiated a settlement agreement to resolve Mr. Davis' title claim. 
The settlement agreement was accepted by the U.S. District Court on 
September 10, 1999. The settlement agreement specifies that Mr. Davis, 
the United States, and Pitkin County will exchange various interests in 
land.

The Decision

    I am well convinced that there is a valid purpose and need for this 
exchange. It is my decision to proceed with the land exchange as 
proposed in Alternative 1 of the EA. The exchange will be completed 
under authority of and in accordance with the General Exchange Act of 
March 20, 1922 (Pub. L. 67-173), the Federal Land Policy and Management 
Act of October 21, 1976 (FLPMA, Pub. L. 100-409). Additional authority 
for settlement is provided through the United States Attorney Manual, 
Chapter 4-1.300.
    The Forest Service will convey approximately 7.32 acres of Federal 
land with an agency approved value of $725.000 to D. Stone Davis. Non-
Federal parcels totalling approximately 65 acres with an agency 
approved value of $897,781 will become National Forest. This exchange 
will require a cash equalization payment by the United States to Mr. 
Davis in the amount of $172,781, in order to meet the equal value 
requirements of the Federal Land Policy and Management Act. The 
decision also includes the specified mitigation outlined in the 
environmental assessment. With regards to item d. of Alternative 1, the 
MIDCON Realty property to be conveyed to the United States is described 
as follows:


[[Page 42983]]


Township 10 South, Range 89 West, 6th PM, County of Pitkin, State of 
Colorado
    Sec. 10 N\1/2\ E\1/2\ SE\1/4\ NE\1/4\ SE\1/4\;
    Sec. 11 SW\1/4\ NW\1/4\ SW\1/4\;
    Sec. 14 N\1/2\ NW\1/4\ NW\1/4\, NW\1/4\ NE @ NW\1/4\.

    The area described contains 42.5 acres, more or less.

Reasons for My Decision

    After reviewing the EA and the public comment received through the 
process, I am convinced that this land exchange serves the public 
interest. Implementation of Alternative 1 not only resolves the title 
claim fairly and expeditiously, it provides for the acquisition of non-
Federal land valuable for National Forest purposes.
    Acquisition of the non-Federal parcels assist in achieving the 
objectives of the White River National Forest Land and Resource 
Management Plan (EA page 2). The non-Federal parcels which become 
National Forest will be protected from the sale, resale, and further 
development which could occur absent this exchange. Development would 
likely take place on most of the non-Federal lands in this exchange. 
This development would have a negative affect on the surrounding 
National Forest and would threaten the values for which those lands are 
being managed in the broader public interest. This is particularly true 
for the Case Lode and the MIDCON parcels. This exchange offers the 
opportunity to secure these lands from such intrusion.
    The Forest Service's jurisdiction over the proposed land exchange 
is limited to the transfer of land ownership. While the National 
Environmental Policy Act (NEPA) requires the Forest Service to evaluate 
and disclose the impacts that can be expected as a result of the 
exchange. The use and management of the land that becomes private as a 
result of this exchange will be subject to the zoning authority which 
is Pitkin County. Pitkin County is a party to the Settlement Agreement. 
The agreement, as well as the past actions, demonstrate a strong desire 
to insure controlled development within the County. They support this 
exchange. This indicates to me that they are reasonably comfortable 
with their jurisdictional authority to regulate and mitigate 
development which results from the land exchange.
    The Federal parcel is located in an area of considerable private 
land with ongoing development. The conveyance of this parcel will 
affect its use and enjoyment by owners of the adjacent property. 
However, it is my responsibility to insure that decisions involving 
National Forest reflect the greater public interest. It is acknowledged 
that wildlife habitat quality, which is already low, would decline 
further when the parcel is inevitably developed. In addition, the 
limited recreation resources associated with the parcel would be loss. 
I believe that both of these impacts are more than offset by the values 
associated with the non-Federal parcels to be acquired.
    The administrative obligations of the Forest Service would be 
reduced through reduction of 6000 feet of boundary line to be located, 
posted and maintained and 12 corners to locate and maintain. Boundary 
location cost in this area is estimated of $11,000/mile. Maintenance 
costs are estimated at $2,500/mile every five years. There would be no 
change in road maintenance costs. There will be no net change in road 
miles the Forest Service would maintain.

Public Interest Determination

    Per the requirements of 36 CFR 254.3(2), I have reviewed this 
decision against the criteria for determining public interest.
    The resource values and the public objectives served by the non-
Federal lands and interests to be acquired exceed the resource values 
and public objectives served by the by the Federal land to be conveyed. 
Also considered here was the time and expense of prolonged litigation 
in resolving the title claim.
    The intended use of the Federal land will not substantially 
conflict with established management objectives on adjacent Federal 
land.
    The consideration of all physical and biological resources and the 
public interests associated with both Federal and non-Federal 
properties, demonstrates a net gain in the public interest with the 
selection of Alternative 1.

Alternatives

    The proposed action was analyzed in detail in the Environmental 
Assessment, along with the No Action alternative. Other alternatives 
were considered but dismissed from further analysis. The alternatives 
analyzed in detail in the Environmental Assessment are summarized 
below.

Alternative 1, Exchange Lands with D. Stone Davis, Proposed Action

    Complete a land exchange under the current laws and regulations and 
Department of Justice Settlement Authority.
     The Forest Service would convey approximately 7.32 acres 
of Federal land into private ownership.
     D. Stone Davis would convey approximately 65 acres of non-
Federal land to the United States.

Alternative 2, No Action

    No lands would be exchanged between the Forest Service and D. Stone 
Davis.
     Land owned entirely by Davis would be available for resale 
or development. Litigation would continue over those properties with 
disputed title.
     The Federal land would remain under the current management 
prescription of the White River National Forest Land and Resource 
Management Plan. It would remain available for potential disposal in 
future exchanges.

Deed Restrictions

    I wish to further expound on the impositions of deed restrictions, 
and alternative that was initially considered but dismissed. It has 
been suggested that the use of deed restrictions on the Federal parcel 
may be appropriate.
    Forest Service direction for use of deed restrictions is found at 
several locations, including:
    (a) Forest Service Manual 5474 deed restrictions and conditions.
    In conveyances of National Forest System lands, in addition to 
reservations, it may be necessary to apply specific limiting conditions 
to manage effectively or to protect National Forest System lands and 
resources.
    (b) Federal Register Notice of March 8, 1994, Part II, Department 
of Agriculture, Forest Service. 36 CFR 254 Land Exchanges; final rule.
    A review of specific comments for 36 CFR 254.32 (h) Reservations or 
restrictions in the public interest provide an indication of the intent 
of this regulation. It contains references to ``protecting critical 
interests'' and restrictions to protect ``any federal interests''. The 
regulation itself states that ``(t)he use or development of lands 
conveyed out of federal ownership are subject to * * * all laws, 
regulations and zoning authorities of State and local governing 
bodies''.
    (c) Forest Service Policy Statements.
    October 14, 1999 memo from Deputy Chief James Furnish to Regional 
Foresters: ``Do not propose or agree to restrictive covenants on the 
Federal lands unless they are required to comply with legal, regulatory 
requirements, executive orders, (i.e., wetlands or floodplains, 
cultural) or to meet land and resource management objectives. Do not 
agree to reservations by either party as a means of equalizing values. 
The potential de-valuing effect of covenants on the Federal lands need

[[Page 42984]]

to be considered when developing proposals.''
    Forest Service direction indicates that deed restrictions are to be 
imposed in only those occasions when necessary to protect critical 
Federal interests. Neither scoping nor evaluation of the Federal land 
by specialists identified any critical resources or National Forest 
lands in need of protection through deed restrictions. In addition, the 
use of deed restrictions is not consistent with the Forest Service goal 
of improving the effectiveness and efficiency of its management. The 
Forest has identified these properties for disposal because of their 
intermingled status with private land, which makes management 
complicated and costly. Administration of deed restrictions can be 
extremely complicated, time consuming and expensive, resulting in a 
potential decrease in management efficiency, instead of the intended 
increase.
    Finally, deed restrictions are not imposed to protect property 
interests on adjacent private property. The Forest Service has long 
taken the position that zoning and regulation of uses on private land 
are within the responsibility of state and local governments. Local 
authorities are in the best position to determine appropriate uses of 
private land. The Forest Service has neither the legal authority nor 
responsibility to substitute deed restrictions for local zoning 
controls. Local governments have traditionally agreed and insisted that 
such decisions be left to them.
    Based on the fact that conveyance of the property with deed 
restrictions is inconsistent with policy, direction and regulation, and 
is beyond the scope of Forest Service responsibility, this alternative 
was dismissed from further consideration. It is ``unlikely to be 
implemented'' and thus, merited no further consideration.

Scoping and Public Involvement

    A scoping effort to solicit issues and concerns related to the 
proposed action was accomplished through:
     The publication of the exchange proposal in the Aspen 
Times (July 31, August 7, 14 and 21, 1999)
     A mailing addressing the proposed action to potentially 
interested or affected organizations and individuals across the White 
River National Forest (July 30, 1999)
     A mailing to local officials, Pitkin County Commissioners, 
State of Colorado agencies, and the Colorado Congressional Delegation 
(March 23, 1999)
    Four comment letters were received as a result of the scoping 
effort. All comments made or submitted were considered in this analysis 
and are available for review in the project file.
    A notice of the availability of the completed EA was mailed to four 
parties on April 6, 2000. Both a notice of the availability of the EA 
and a copy of the EA were mailed or hand delivered to 18 parties 
between April 5th and April 7th. Those 18 parties were those who had 
commented, those who had previously requested copies, and those who we 
believed were very interested in the proposal. Legal notices of the 
availability of the EA were published April 3, 2000 in the Federal 
Register and April 8, 2000 in the Aspen Times.
    Four written comments on the Environmental Assessment were received 
within the 30 day comment period. These comments have been documented 
and responses are provided in Appendix G of the EA.

Changes in the Environmental Assessment in Responses to Public Comment 
and Since February 2000

    The Scoping section (EA page 4) was amended to include public 
review of the Environmental Assessment. Appendix G was also added. 
Appendix G is identification of the public comments on the 
Environmental Assessment and the Forest Service Response to those 
comments.
    The EA, under mitigation measures for Alternative 1, called for 
reserving a right-of-way across the Federal parcel for a driveway to 
access land to the north. It was determined that this reservation is 
not needed because land to the north adjoins Castle Creek Road. This 
mitigation has been deleted from the EA.
    Three names have been added to Exhibit 3 of Appendix B (parties who 
were mailed the 7/30/99 scoping letter). These names were overlooked 
when the EA was prepared.
    Appendix E (BA & BE) has been supplemented with documentation of 
``No Effect'' on Canada Lynx.

Finding of No Significant Impact

    Based on my review of the Environmental Assessment, including 
appendices and supporting documents, it is my conclusion that 
Alternative 1 is not a major Federal action that would significantly 
effect the quality of the human environment as defined at 40 CFR 
1508.27. Therefore, an environmental impact statement will not be 
prepared. This finding is based on the following factors:
     Consideration for context of the project. The context is 
local to Pitkin County, Colorado with implications for the immediate 
area only.
     Consideration of both beneficial and adverse impacts. 
Impacts from the selected action are not unique to this project. I 
conclude that the beneficial and adverse effects of the selected action 
are not significant to the context of the proposed and cumulative 
effects.
     Consideration of the effects on public health and safety. 
This exchange will not affect public health or safety. There are no 
hazardous materials or substances present on either the federal or non-
Federal lands to be exchanged.
     Consideration of unique characteristics of the geographic 
area. There are no ``unique characteristics of the geographic area'' as 
defined at 40 CFR 1508.27(3).
     Consideration of the degree to which the effects are 
likely to be highly controversial.  This land exchange is consistent 
with many other lands exchanges. There are no scientific disputes over 
the likely effects of this project. Therefore, I conclude that the 
environmental effects of the decision will not be highly controversial.
     Consideration of the degree to which effects are uncertain 
or unknown. This exchange is not likely to result in effects on the 
human environment which are highly uncertain or involve unique risk. It 
is similar to many past actions which have occurred on the White River 
National Forest. The probable effects and risks are well understood.
     Consideration of the degree to which this action will set 
a precedent for future actions with significant effects. Neither the 
land exchange nor this decision are precedent setting. Similar land 
exchanges have occurred in the past, nationally and locally. They are 
completed by Forest Service and by other public land management 
agencies with the objective of consolidating public land ownership. I 
conclude that this action does not establish precedence for further 
actions as each project must be evaluated on its individual merits.
     Consideration of the action in relation to other actions 
with individually insignificant but cumulatively significant impacts. 
This land exchange would not likely have cumulatively significant 
impacts on the environment.
     Consideration of the degree to which the action may 
adversely affect districts, sites, highways, structures, or objects 
listed or eligible for listing in the National Register of Historic 
Places, or may cause loss or destruction of significant scientific, 
cultural or historic resources. Cultural resource surveys have been 
conducted on all Federal lands to be exchanged. The selected

[[Page 42985]]

action will not affect any site, structure or object. No sites that are 
eligible for listing in the National Register of Historic Places or 
that may be scientifically, culturally or historically significant will 
be affected. Based on this information, I conclude that the selected 
action will not cause loss or destruction of significant scientific, 
cultural or historic resources. (EA, page 4)
     Consideration for the degree to which the action may 
affect threatened or endangered species, or its critical habitat. No 
threatened, endangered species is known to exist in the areas 
considered under this land exchange. There is no habitat within the 
project area that is viewed as critical habitat for threatened or 
endangered species, as documented in the biological assessment. There 
is the potential for sensitive species to benefit from the protection 
of acres of potential habitat. (EA, Page 4)
     Consideration of whether the action violates or threatens 
to violate federal, state, or local laws or requirements imposed for 
the protection of the environment. This land exchange does not violate 
nor threaten to violate any federal, state or local laws, regulations 
or requirements for protection of the environment.

Findings Required by Other Laws and Regulations

Executive Orders 11988 and 11990

    The Forest Service has evaluated the proposed exchange in 
accordance with EO 11988 Floodplains and EO 11990 Wetlands and is in 
compliance. There are no floodplains or wetlands involved.

Endangered Species Act

    The Biological Assessment/Biological Evaluation concluded the land 
exchange would have ``No Effect'' on any threatened, endangered or 
sensitive species.

National Historic Preservation Act

    Heritage resource inventories have been completed on the federal 
parcels and the Colorado State Historic Preservation Officer has 
concurred with a finding of No Effect.

White River National Forest Land and Resource Management Plan

    The land exchange is in compliance with the White River National 
Forest Land and Resource Management Plan as described on pages 2-3 of 
the EA.

CERCLA, Comprehensive Environmental Response, Compensation, and 
Liability Act

    Field examinations of the Federal and non-Federal parcels 
considered for exchange have been completed. No evidence was found that 
hazardous or potentially hazardous substances or petroleum products 
have been used, stored, released or disposed on any parcel.

Implementation Date

    Implementation of this decision may occur immediately.

Administrative Review or Appeal Opportunities

    Since the decision notice was approved by the Secretary of 
Agriculture pursuant to the provisions of 36 CFR 215.2, this decision 
is not subject to the overall requirements of 36 CFR 215 and thus, 
cannot be appealed. The requirements of 36 CFR 215 apply only to forest 
service line officers.

Additional Information and Contact Person

    For additional information concerning this decision, contact: Allan 
Grimshaw, Aspen Ranger District, White River National Forest, 806 West 
Hallam St., Aspen, Colorado 81611, 970/925-3445.

    Dated: June 15, 2000.
Anne Keys,
Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 00-17581 Filed 7-11-00; 8:45 am]
BILLING CODE 3410-11-M