Federal Land Management: BLM and the Forest Service Have Improved Oversight of the Land Exchange Process, but Additional Actions Are Needed

In May 2010, BLM issued Instruction Memorandum 2010-121 to all field locations that states that all substantive issues identified during formal reviews and their resolution must be documented and retained in the case file. It further states that BLM State Directors are responsible for ensuring that all substantive issues are resolved and documented. The memorandum includes a template for recording issues and their resolution. In a March 2012 meeting, BLM officials said that BLM headquarters has emphasized informal review of exchanges early in the process to provide comments and address issues before formal review and, if issues remain during formal review, they are documented. Officials noted that no major issues have been identified to date because the informal dialog has pre-empted the issues.

Since June 2009, the Forest Service's National Landownership Adjustment Team has assessed the effectiveness of regional case review processes by reviewing randomly selected land exchanges throughout the country, exchanges valued at over $1 million and nearly all land exchange cases in Regions 8 and 9 because they are conducted under an act triggering headquarters and congressional reviews. Regions 8 and 9 comprise the eastern United States and account for most of the land exchange cases for the Forest Service Agency officials said that for the roughly 10 exchanges that are completed in a given year, about 6-7 are from Regions 8 and 9. As part of its review, the team reviews a standard land exchange summary that documents any issues with the exchange. Furthermore, memoranda in exchange files, such as briefing documents for agency officials and Congress, also document key issues and their resolution.

In May 2010, BLM issued Instruction Memorandum 2010-121 to all field locations that states that documents submitted in formal reviews must be retained in exchange case file and includes an extensive checklist of documents that should be included in case files. The memorandum stresses the importance of ensuring that the exchange record is maintained properly and indicates that BLM State Directors are responsible for ensuring proper case files.

In May 2010, the Forest Service issued a memorandum to Regional Foresters clarifying the agency's records retention policy. The memorandum included the specific pages from agency guidance on records retention.

The Forest Service National Landownership Adjustment Team has continued to conduct reviews of regional land exchange programs. Specifically, the team completed reviews in March 2011 of Region 3, April 2012 of Region 6, and May 2013 of Region 9. In July 2013, the team lead reported that the team plans to review Region 10 in September 2013 and Regions 5 and either Regions 2 or 8 in fiscal year 2014. In addition, the Forest Service reports that it follows up on its previous recommendations. For example, the team holds a monthly conference call with regional lands staff to discuss issues and any potential changes in policy. Also, at a May 2010 national lands conference, time was dedicated to discussing actions items from previous team reviews. While the Forest Service does not appear to have a formal mechanism to follow-up on previous recommendations, agency actions to make review of regional programs a priority coupled with frequent communication with regional staff on exchange issues better ensures such recommendations are implemented.

Since June 2009, the Forest Service's National Landownership Adjustment Team has continued to conduct periodic reviews of regional land exchange programs, helping to ensure that regions provide consistent oversight of exchanges. The reviews document conformance with applicable law and policy and include reviews of individual exchange cases and the region's training and staffing issues, among other things. The team completed regional reviews in March 2011 of Region 3, April 2012 of Region 6, and May 2013 of Region 9. In addition to these periodic reviews, the team reviews randomly selected land exchanges throughout the country, exchanges valued at over $1 million and nearly all land exchange cases in Regions 8 and 9 because they are conducted under an act triggering headquarters and congressional reviews. Regions 8 and 9 comprise the eastern United States and account for most of the land exchange cases for the agency. Agency officials said that for the roughly 10 exchanges that are completed in a given year, about 6-7 are from Regions 8 and 9. Through all of these reviews, the Forest Service is helping to ensure that regions provide consistent oversight of land exchanges.

In May 2010, BLM issued Instruction Memorandum 2010-122 to all field locations that states that land exchange decisions must justify how the chosen configuration of the land exchange is the most reasonable alternative to minimize cash equalization. Further, the memo states that whenever a proposed ledger imbalance is in favor of (due to) the U.S., the State Director must make a written determination on the need to secure the ledger imbalance. The determination must be included as part of the administrative record for the exchange and reviewed and updated in conjunction with each posting of the ledger. Finally, the memo states that the decision package for a proposed multiple-phased exchange sent for review by the National Land Exchange Team must include the State Director's draft determination and rationale on the need to secure a ledger imbalance in favor of the U.S.

In May 2010, BLM issued Instruction Memorandum 2010-122 to all field locations that states that the provisions for a multiple phased land exchange must be documented in the draft agreement to initiate (ATI) or ATI amendment.

In May 2010, BLM issued Instruction Memorandum 2010-122 to all field locations that states that ledgers must include language to identify whether the ledger is open or closed and must identify the three year anniversary date by which the ledger must be balanced (i.e., reduced to zero). The memo includes ledger templates for open and closed ledgers that include appropriate language for identifying them as open or closed and the three year time frame. BLM officials provided an example of an approved ledger dated March 2011 that used the new ledger template and included the required language clearly showing the ledger status as open and the date upon which it must be balanced.

In May 2010, BLM issued Instruction Memorandum 2010-122 to all field locations that requires all BLM offices to use standard ledger formats for all exchange transactions involving a ledger, unless the BLM Director approves the use of a different format. Templates for those formats are provided in the guidance. The memo further states that written requests for the use of a different format with the accompanying rationale as to why the standard formats should not be used, may be submitted for the Director's concurrence through the National Land Exchange Team. If the Director approves the use of a different format, the request must explain how the identification of whether the ledger is open or closed and the three year anniversary date would be documented.

In May 2010, BLM issued Instruction Memorandum 2010-122 to all field locations that states that if a multiple phased land exchange is proposed at either the feasibility or decision stages, the feasibility or decision package submitted to the National Land Exchange Team for formal review must explain the rationale for the multiple phases versus a single closing. The memo adds that proposing a multiple phased land exchange at the feasibility stage is discouraged. Further, any decision package for a proposed multiple phased exchange in which a ledger is proposed must include the draft ledger for the current phase of the exchange.

In May 2010, BLM issued Instruction Memorandum 2010-122 to all field locations that requires copies of all executed ledgers and updated security determinations and documentation be submitted to the National Land Exchange Team immediately after signature of the State Director. In March 2012, BLM headquarters provided a copy of the update it had received from BLM state offices. According to the document, three states--California, New Mexico, and Utah--had open exchange ledgers as of March 2012 and it provided key details on those ledgers, including the name of the non-federal exchange party, value imbalance, and brief history of ledger transactions.

In October 2012, the Forest Service issued draft guidance on third party facilitators. The draft guidance clarifies the definition of a third party facilitator. For example, it clarifies when the policy applies to a facilitator, such as when a facilitator does not hold title, option, or other written agreement to convey non-federal land and when a facilitator does not sign the agreement to initiate a key exchange document. It identifies problems that have occurred with facilitated exchanges, thereby making such issues more apparent to staff processing facilitated exchanges. It also adds direction for required documentation from a third party facilitator under certain situations. In June 2013, Forest Service officials told us that the guidance had not been finalized and that, for consistency, the concept for third party facilitator guidance had been expanded to purchase and appraisal processes. Officials hope to have all of this guidance completed in 2013. On February 10, 2014, Forest Service officials provided GAO its policy revision on third party facilitators that addresses this recommendation. Specifically, the revised policy clarifies the definition of a third party facilitator, further distinguishing between land exchange facilitators and land exchange consultants. It also requires a consistent application of the guidance by requiring officials to consult with regional lands staff prior to negotiating a land exchange involving a facilitator and requires parties to include third party disclosures in land exchange reviews.

In May 2010, BLM issued Instruction Memorandum 2010-123 to all field locations that clarifies the definition of a third-party facilitator. Further, the memo states that a full disclosure provision must be included in the letter of intent, agreement to initiate, or other agreements for all land tenure adjustment actions involving a facilitator. The memo includes new language for the facilitated land exchange full disclosure provision which is applicable to all land exchanges. The memo further states that the decision package for a land exchange must reference the date and results of the verification of the status of any contracts, options, or other agreements with a facilitator.

In May 2010, BLM issued Instruction Memorandum 2010-124 to all field locations regarding training requirements for processing land exchange proposals. The memo states that managers and supervisors at all levels have the responsibility to (1) ensure employees have the knowledge, skills, and abilities to perform their assigned duties, (2) determine the capability of their staffs, individually and collectively, to perform required functions, and (3) determine when training is necessary to achieve that performance. Thus, the memo does not make any land exchange training mandatory. The memo provides a list of minimum competencies required for the processing of land exchanges and definitions of levels of competency that may be used to evaluate an employee's working knowledge of land exchanges, and to determine the need for additional formal or on-the-job training. In terms of tracking, the agency has stated that it will continue to use the DOI Learn system, which allows managers to track training completion. Because BLM does not mandate any of the exchange courses, it did not determine how often such training needed to be retaken.

The Forest Service has four courses that include land exchange training: Beginning Lands, Intermediate Lands, Complex Lands, and National Training for Line Officers. The agency has determined that one of them--National Training for Line Officers--is mandatory. Due to tight fiscal conditions, the three other courses continue to be recommended. The Forest Service has taken steps to track training attendance. Specifically, the Forest Service uses USDA's AgLearn database to track training attendance, as supplemented by employee training plans and course completion information submitted by the agency's training liaison. Also, the Forest Service has determined that National Training for Line Officers is to be taken once every five years; the other courses only need to be taken once.