Land Report April 2013 Newsletter

It’s amazing – the yarns that can be shared about certain tracts of real property. Our April Newsletter takes a closer at several standout stories, including one that I am quite confident is destined to end up before the Supreme Court in a year or two. Why? The two states involved have been disputing their boundary for only the last 195 years.

Also in our April Newsletter you’ll find the story of an Oregon Senator who is considering a shift in federal management of certain timberlands. Meanwhile the Texas Legislature is currently embroiled in how best to combat the drought that has plagued much of the Lone Star State.

Last but not least, an uptick in the housing market has brought renewed activity to North American forests. Learn more as one of America’s largest landowners gears up for increased lumber sales.

For up-to-the-minute reports on listings, auctions, sales, and breaking news pertaining to land and landowners, be sure to follow us on Facebook, Twitter, and Pinterest.

Land Report March 2013 Newsletter

Spring is off to a strong start, and this month’s Newsletter has the data to prove it. I spoke with Scott Shuman at Hall and Hall Auctions about the $4 million sale of more than 2,000 acres just outside of Dallas on March 7. His words to me? “If anyone needs any proof that there’s a ton of money sitting on the sidelines looking for a solid investment opportunity, this sale proves it.” Turn to page 3 for more on the TRBP Ranch auction, which was offered by Hall and Hall Auctions in conjunction with Hortenstine Ranch Company.

There is a strong emphasis on federal policy in our March Newsletter. In addition to an update on last year’s record crop insurance payouts, which now total a staggering $15 billion, landowners may want to take a closer look at possible grants currently available from the Natural Resources Conservation Service.

For up-to-the-minute reports on listings, auctions, sales, and breaking news pertaining to land and landowners, be sure to follow us on Facebook, Twitter, and Pinterest.

Land Report January 2013 Newsletter

Secretary of the Interior Ken Salazar announces his plan to leave Washington and return home to Colorado. The Supreme Court agrees to hear a dispute between Texas and Oklahoma over water rights. And the State of Texas, on a completely different matter, asks the Nation’s highest court to intervene in yet another water fight, one that involves Texas and another neighbor, New Mexico.

So much for a slow start to 2013. Our January newsletter features these news items and as well as others, including Land Report 100er Louis Bacon’s timeless gift to establish the Sangre de Cristo Conservation Area in Southern Colorado.

For up-to-the minute reports on listings, auctions, sales, and breaking news pertaining to land and landowners, be sure to follow us on Facebook, Twitter, and Pinterest.

The Land Report Winter 2012

Ring in the holidays with the latest edition of the Land Report!

Travel to Sonoma County and enjoy a rare and revealing portrait of John Jordan and his family’s renowned vineyard and winery. Learn the latest about the white hot market for Midwest farmland. Or follow the twists and turns of the Yellowstone River as it winds its way onto your iPad courtesy of the new documentary Where the Yellowstone Goes, sponsored by Trout Headwaters.

All these and many more stories So be our guest and enjoy our latest issue HERE.

For more up to the minute reports on listings, auctions, sales, and breaking news pertaining to land and landowners, be sure to follow The Magazine of the American Landowner on Facebook, Twitter, and Pinterest.

Land Report 100er: Bacon’s Leadership Spurs Creation of New Refuge

Thanks to the donation of a 77,000-acre conservation easement in the Sangre de Cristo Mountains by Land Report 100er Louis Bacon, Interior Secretary Ken Salazar was able to announce the establishment of the Sangre de Cristo Conservation Area as the nation’s 558th unit of the National Wildlife Refuge System. “Following in the footsteps of our greatest conservationists, Louis Bacon’s generosity and passion for the great outdoors is helping us to establish an extraordinary conservation area in one of our nation’s most beautiful places,” Salazar said. Bacon’s Trinchera Blanca Ranch is the largest contiguous, privately owned ranch in Colorado.

Read more here.

Download the October newsletter here.

Landowners Skunk EPA 9-0

Supreme Court votes unanimously to protect Idaho family’s property rights.

When Michael and Chantell Sackett bought a half-acre lot near Priest Lake, Idaho, they planned to build a home. The Sacketts applied for and received the requisite building permit and began construction. Then they heard from the Environmental Protection Agency (EPA). The agency demanded the Sacketts call off construction. Why? Because their half-acre parcel was a “wetland.”

To make matters worse, the EPA issued an administrative compliance order that offered two options. If the Sacketts complied with the order, they would have to restore their land to the condition it was in before construction began and then apply for a wetlands development permit from the Army Corps of Engineers. The cost to comply? Tens or possibly hundreds of thousands of dollars. Or the Sacketts could ignore the order, face criminal charges, and be subject to fines of up to $75,000 a day.

From the Sacketts’ point of view, the problem was more fundamental their limited number of choices: they had no reason to think their property was a wetland. Rather, they had every reason to believe the EPA was attempting to control their property in violation of the Clean Water Act, which gives the agency jurisdiction only over properties that have a connection to “waters of the United States.” So they took the EPA to court. On March 21, the Supreme Court unanimously ruled for the Sacketts in their David versus Goliath struggle to defend their property rights. In doing so, the justices reversed two lower courts that had abdicated any judicial review over the EPA’s attempt to control development on the Sacketts’ modest parcel. Furthermore, Sackett v. Environmental Protection Agency put in place an important precedent for anyone who cares about property rights and curtailing runaway bureaucracies.

First, the backstory. The Sacketts’ lot is separated from Priest Lake by a road and is surrounded by other lots, some with existing homes. An engineer they hired to assess the property assured them that it was not a wetland. With that in mind, the Sacketts believed that the EPA had no authority at all to issue the draconian order, so they requested a hearing to challenge the EPA’s jurisdiction. The agency denied them the opportunity. The government’s position was that only after the Sacketts complied with the order, or were sued by the agency for violating it, could the property owners challenge the agency’s jurisdiction — a position Supreme Court Justice Samuel Alito ultimately described as putting “the property rights of ordinary Americans entirely at the mercy of EPA employees.”

Had the Sacketts abandoned their plans — or suffered the cost of a wetlands permit — that might have been the end of the matter. However, their cause was taken up by the Pacific Legal Foundation (PLF), a public interest law firm that specializes in the defense of property rights. With PLF’s help, the Sacketts challenged the EPA’s jurisdiction in federal court. They claimed that the Administrative Procedures Act (APA) required judicial review of the EPA’s compliance order and, if it did not, then the order violated the Constitution’s Fifth Amendment guarantee of due process. To the Sacketts’ shock, the District Court dismissed the case. The U.S. Court of Appeals upheld the dismissal. After almost six years, the Sacketts were vindicated this spring when the Supreme Court unanimously reversed both lower court decisions. In reviewing the struggle, Justice Alito commented during the Supreme Court oral argument that “most ordinary homeowners would say this kind of thing can’t happen in the United States.”

The Supreme Court made clear in Sackett what should have been obvious all along: when the government sends you an order that deprives you of a property right and requires you to act at substantial expense on pain of suffering a lawsuit, potential fines, and/or criminal charges, it is interfering with your rights and you are entitled to have that order reviewed by a court.

The decision in Sackett assures property owners the right to have EPA administrative compliance orders reviewed by federal courts. It also admonished the agency for its overreaching attempts to expand its jurisdiction without regard to the rights of property owners — and pointedly suggested that Congress review the Clean Water Act to clarify the agency’s limits. “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question of whether the regulated party is within the EPA’s jurisdiction,” wrote the Court.

Unfortunately, the Sacketts’ story is not uncommon. Today, government exerts enormous control over private property, limiting or prohibiting productive and even ordinary use of small parcels and large estates. The EPA and other agencies have a history of using poorly written statutes and the possibility of astronomical fines to expand their jurisdiction and bully property owners into doing what they want with no meaningful opportunity for judicial review. As Justice Alito concluded in a concurring opinion, “[i]n a nation that values due process, not to mention private property, such treatment is unthinkable.” The Sacketts were only rescued from their nightmare when the Supreme Court overturned the judicial abdication of the lower courts for real judicial engagement: a careful review of the facts and the law rather than a rubber-stamping of EPA actions. The resulting decision gives property owners at least a chance to contest the EPA’s jurisdiction when it issues ruinous orders without a basis in law. The ruling is certainly welcome, but nonetheless limited. The Court grounded that right not in the Constitution but in the APA — a statute that Congress can modify at any time. It is left to a future case to decide whether property owners will have a full Constitutional right to due process where their property rights are not fully protected by the APA.

Larry Salzman is an attorney with the Institute for Justice, a libertarian public interest law firm. The Institute filed a friend-of-the-court brief in the Sackett case in support of the Sacketts.

Download the digital version of The Land Report’s Summer 2012 edition here.

Online Exclusive: Western Wildfires – Fighting Fire with Fire

Now that the worst of the wildfire season appears to be behind us, this is a good time to take a longer view about fire and land – specifically the role of intentionally setting fire to grasses or forests as a land management tool.

Prescribed burns are part and parcel of holistic range management, which takes the long-range big picture overview of maintaining healthy rangeland and wildlife habitat. Before settlers arrived in the American West, the native peoples knew well enough to let the grasslands and woodlands burn when fire broke out because the fires germinated seed stock and provided fertilizer in the form of carbon. Even today, in Mexico and other less-developed countries, agrarian societies burning crop remnants ever spring is considered part of the growing cycle.

Fear of fire prompted immigrants who established permanent settlements to suppress wildfires at any cost, which over the course of the past two centuries has contributed to building up considerable fuel loads. That, and a widespread reaction to clear-cutting that included not cutting any timber whatsoever, leaving deadwood standing, augmented over the past two decades by pine beetle infestations that have turned millions of acres of forests into kindling awaiting a spark, helped create the perfect storm for what’s become an annual occurrence of wildfires breaking out throughout the American West.

The “Burn, Baby, Burn” approach utilizes smaller backfires to burn dry leaves, dry brush, and other tinder to reduce the amount of combustible material needed to create a wildfire. Sometimes, backfires can be set to stop a wildfire by denying the wildfire the fuel load it needs to spread.

Various states, counties, and communities have set up prescribed burn agencies, committees, and groups for certification, education, and in many cases, providing insurance in case a controlled burn gets out of control.

When folks think about parcels of land in the thousands of acres and legacy property owners who’ve stewarded over land for multiple generations, they rightfully associate such places with the American West.

But as much as the land has been fragmented and urbanized in the eastern and northeastern United States, the American East is on the cutting edge of forest management, especially in regards to prescribed burns as a management tool, largely because of the surprising number of large chunks of privately-owned land.

Where the Wilderness-Urban Interface is a relatively new concept out west, the juxtaposition of people and the wild world is an old story back east, which gives greater weight to the observations of four non-westerners – Bob Williams, William Haines, Jr., Chuck Leavell, and Brian Treadwell.

Williams, the vice-president of forestry operations for Land Dimensions Engineering in Glassboro, New Jersey, believes prescribed burning is essential for healthy land. “We need fire back in the forest, but in a controlled fashion, as the Native Americans did for thousands of years.” Moreover, he says, the need for burning isn’t confined to a specific region. “This is not a western problem,” Williams makes clear. “I view this as a national crisis.”

Williams likes to cite the use of prescribed burns by landowners in the eastern United States such as William S. Haines, Jr. of Burlington County, New Jersey. The 59 year old fourth-generation farmer grew up on the family’s 14,000 acres spread, which includes 1,300 acres comprising New Jersey’s largest cranberry bog, Hog Wallow, in Washington Township, the heart of the state’s Pinelands, where the bogs are bordered by pitch pine, oak, and American white cedar.

His management of the woodlands shadowing on the Wading and Oswego rivers earned him recognition this year as New Jersey’s outstanding forest steward by the state Department of Environmental Protection. A key to Haines’ success as a steward is prescribed burning, which is employed to keep forest watersheds healthy with clean water – a critical component for any cranberry bog.

Haines’ methods for ensuring good soil, clean water, and a healthy environment are pretty much the same for landowners in the American West.

Granted, conditions are generally wetter in Haines’ New Jersey than in most western states, which makes prescribed burns less of a threat to neighboring properties. The unfortunate Cerro Grande fire near Los Alamos, New Mexico in 2000, started by a prescribed burn that got out of control, aided by low humidity and high winds, did considerable damage to public perception toward controlled burning.

But fire alone won’t keep forests healthy. Haines’ formula for sound forest management also includes thinning out deadwood and overgrowth.

Four states south of New Jersey, landowner Chuck Leavell of Georgia, who is being profiled in The Land Report, echoed Haines’ sentiment. “We’ve seen in past years and decades, the terrible wildfires that destroy a lot of our forests. If only people could understand the value of prescribed burning. You know the Native Americans used to do it when they were living here without European influence. If we look to the wisdom of the way they were managing forestlands, we’d have less incidence of these wildfires.”

Leavell learned about burning through a forestry and land use correspondence course he’d taken some years ago, then by talking to his consulting forester through the Georgia Forestry Commission and by talking to other landowners.

“Fire helps decrease the woody competition within a stand of pines,” he said. “Let’s all remember that that woody growth in the understory is competing with the pines for water and nutrients. By keeping that growth down, more energy is going to the pines. Secondly, while the fire discourages that woody growth, it is promoting the growth of natural weeds and grasses that benefit the wildlife. It is one of the best tools a forest landowner has, but of course it has to be used wisely and with caution.

Four states west are two Texas ranchers who have become prescribed burn specialists, Brian Treadwell and his father John. John Treadwell had been a student of holistic rangeland management, and when father and son began using fire to improve some beaten-down range on a ranch they acquired in west central Texas, they saw immediate results. Eighty burns and seven years later, native grasses such as Wilman Lovegrass, sideoats grama, bluestem, green sprangletop, switchgrass, and Indian grass, all of which need fire to germinate, flourished while invasive prickly pear cactus and mesquite trees were beaten back.

“When you open up a thicket with fire, there are plants that have been trapped in there that suddenly have access to air, moisture and light,” John Treadwell said. “It’s the solution to so many of the problems you see around here,” added Brian. “We started a Calf Creek Burn Coop that turned into a Menard County Coop and McCullough County Coop,” Brian said.

Their efforts, which cleared more than 1,000 acres of mesquite and prickly pear cactus and removed Ashe juniper from more than 3,600 acres, bringing back native prairie grasses in the process, earned the Treadwells a Lone Star Land Steward award from Texas Parks & Wildlife for restoring the land.

Since then, the Treadwells have moved on to ranches south of San Angelo, near the Treadwell family homestead, and received official Prescribed Burn training and certification, securing a $1 million insurance policy to do business as a Conservation Fire Team.

It was in that guise that Brian Treadwell got involved with fighting the 12,000 acre Wildcat wildfire that broke out north of San Angelo in March 2011, lighting a 2.5 acre backfire that stopped the big fire’s southward march.

Personnel from the Texas Forest Service were on the scene, but it was Treadwell who made the difference. “The Wardlaw brothers of San Angelo hired me to coordinate a response that included their best interests. The TFS regional chief happens to be the same man I log my prescribed fires with in this region, plus we had the history of four previous wildfires.” So Treadwell did the deed.

It was one of several fires he worked in conjunction with the Texas Forest Service. “The first few, I was invited by an affected or threatened landowner, of which two landowners paid me a day fee for responding,” Treadwell said. “After the Encino Fire, the TFS or fire chiefs invited me to respond.”

Treadwell recalls the Encino Fire: “The north wind pushed the Encino fire across the Wardlaw ranch and threatened to cross the Arden Highway. We had already backed up two miles as the fire approached and there was a large response by area firefighters and the city of San Angelo. I told the TFS chief that if we didn’t stop the fire here, at this road using a backfire, we would be re-gathering another three miles south of our present location and have the same argument on Highway 67. As the fire threatened the fence line and bar ditch, I was given the green light to start burning. I responded with two men I regularly burn with and we proceeded to hustle in over two miles of fire, building the backline to 50-75 yards wide with a zig-zag pattern every two hundred yards, burning multiple strips, robbing the fuel from the approaching headfire. The picture I had sent you was of the backfire I lit meeting the headfire, but the amazing photo would have been the convoy of fire trucks, lights flashing, shadowing my movement in the pasture from the highway.

“That was a Monday. By noon on Friday the Wildcat fire was burning and TFS called me in to help on that one, too. The Wildcat fire threatened half a dozen houses, which preoccupied the responders to the point where the fire escaped and grew beyond control. We spent two days burning around houses and trying to contain the growth of the fire. Our mistake on the Wildcat was waiting for a final confirmation from the overwhelmed TFS chief to begin our backburns.

“The next fire was off of Highway 277, south of San Angelo, on the Allison Ranch. I left my truck running (in the hopes someone would move it if things went badly and I had called in a crewmate to meet me) and jumped out with a torch to begin burning behind the first road-grader widening the intersecting ranch road. We caught that one quickly and kept it under 2000 acres.

“The last four fires we responded to, we were the only true volunteers – we dropped everything to respond without collecting firefighting funds. I would simply rather respond in your neighborhood than wait and fight it in mine. One of the men from my crew has gone on to get his own commercial prescribed burn manager license as well.”

The experience has prompted the prescribed burn specialist to get involved with state and federal agencies to improve communications and shorten response time. “One of our first response problems is that the local fire department or volunteer fire department charges out to a location, but hesitates to react, calling in reinforcements and generally monitoring the advance of the wildfire until a Texas Forest Service commander arrives. TFS would like to arrive on scene to a response in action, but when they arrive, the first responder doesn’t have a head count on available firefighters at location, no maps of the location, and usually no intel on fire behavior or scope, and no applied effort other than where structures are involved. So if the first responders wait three hours for a TFS commander to show, it may take another hour of administrative work for the TFS to understand the situation. In extreme conditions, this could mean the difference from a 300 acre fire to a 3,000 acre fire or bigger.

“What makes a local response so effective is that I can respond in my region faster than the Texas Forest Service can deploy a federal hotshot team to build the same defense. I’m working with the Texas Department of Agriculture burn board to get MCE credit for burn licensees responding to TFS wildfires, in an effort to foster more local response. Just as I’ve told that board, when we can re-direct a retardant-loaded airplane from dropping its load on the head of the dragon to a nearby road which we can use to burn against, than we have begun to work with fire instead of just fighting it.”

Which drives the point home: fire is not just something to be feared by land stewards; it is the tool to fight bigger fires and improve the land and environment to the benefit of not just the landowner, but for all.

Read parts one and two of this series.

The Land Report Summer 2012

Did you know that the Supreme Court just issued a landmark ruling? I’m not talking about health care. I’m talking about land. That’s right, the high court came down 9-0 for landowners in a suit that was brought against the EPA by Idaho’s Sackett family.

We’ve been following Sackett v. EPA for over a year. It’s one of the many eye-opening stories you’ll enjoy in the Summer 2012 issue of The Land Report, now on newsstands from coast to coast.

You can access the digital edition free of charge HERE.

Our summer issue also features the story of an innovative gift to the University of Wyoming, one that kicks in when Wyoming’s River Bend Ranch sells. It’s a great example of stewardship, one that Greg Fay brought to us and that we are proud to share. Learn five great ways to add value and beauty to your land by improving your waters. And be sure to have a look at our third annual roundup of the nation’s leading auction houses. No surprise here … farmland prices continue to best record highs.

So be our guest and enjoy our latest issue HERE.

For more up to the minute reports on listings, auctions, sales, and breaking news pertaining to land and landowners, be sure to follow The Magazine of the American Landowner on Facebook, Twitter, and Pinterest.

P.S. Our award-winning quarterly magazine is available in a print version via subscription.

Online Exclusive: Western Wildfires

The Magazine of the American Landowner presents the first in a series by Field Reporter Joe Nick Patoski as he takes a closer look at the wildfires raging out West.

The American West is on fire again, with wildfires breaking out across the Gila Wilderness in southwest New Mexico, around Ruidoso in southeastern New Mexico, and throughout Colorado. The Gila fire now ranks as the worst in New Mexico’s recorded history. Colorado’s High Park fire (pictured above) west of Fort Collins has destroyed more homes in state history. And all that was before summer even officially started.

Most western states have been experiencing drier-than-normal range conditions, and many regions are officially in drought. Conditions have been ripe for a major outbreak quite awhile. Maybe it’s an old writer’s faded memory, but it seems like massive wildfires used to happen every three or four years. Lately, it’s pretty much an annual occurrence, a seasonal rite, if you will.

Last year, Texas burned. Four million acres were scorched and it took 16,000 emergency responders from all 50 states and Puerto Rico to tamp it down. Wildfires near Fort Davis in Far West Texas and around Bastrop in Central Texas were the two worst in state history.

Other states will have their turn soon enough. What’s going on here?

Is this normal or an aberration? Where do wildfires fit into the big picture, beyond the considerable destruction and property damage in their wake? Who’s paying to fight the fires and to mitigate property damage? The largest mountain pine-beetle epidemic in recorded history, which has ravaged western forests with 3.3 million acres of ponderosa, piñon, whitebark, lodgepole, and eight other pine species destroyed in Colorado alone, has created ideal conditions for fire. The pine beetle’s success is tied to rising temperature, suggesting climate change is another enabling factor for increased wildfire. Forest management practices are being scrutinized, as is the impact of humans. Before European pioneers arrived to establish permanent settlements, the natives let fires burn. Are we tilting against windmills trying to stop them? Most important, what can communities and individuals do to protect their land and to lower the risk?

We can argue about what it all means until we’re gone, but the good news is there are answers to these questions. Accumulated data, good science, history, facts, truths, and verities all tell stories worth telling that inform and expand our knowledge about western wildfires.

Over the next few weeks, while the western forests and rangeland burns, we’ll visit with some folks whose perspectives on fire, ecosystems, biology, prescribed burns, economics, erosion, range science, meteorology, and, of course, land ownership have the potential to inform and enlighten if we’re willing to read, listen, and ponder. That won’t stop the fires from breaking out, but it can certainly make our responses smarter.

Read part two of this series here.

Land Report May 2012 Newsletter

Many items to consider from our May newsletter, but let’s stick to page one material. The Land Report Top Ten has a brand-new look with Montana’s Broken O Ranch now crowning the list. The 124,000-acre Bates Sanders Swan listing features more than 20 miles of the Sun River, carries 3,500 mother cows, and produces about 25,000 tons of alfalfa hay and 700,000 bushels of small grain crops annually. At $132.5 million, it’s not a ranch. It’s a hedge fund, one built on a rock-solid agricultural asset.

Two properties have joined the Top Ten: Hawaii’s Dillingham Ranch, our new No. 5 at $65 million, which is listed by Zackary Wright with Christie’s; and Swain’s Neck on Nantucket Island, the new No. 7 at $59 million, courtesy of Gary Winn at Maury People Sotheby’s International Realty. There has been a $5 million reduction on No. 4 California’s Rancho Dos Pueblos, which Kerry Mormann & Associates now has listed for $79 million.

For more up to the minute reports on listings, auctions, sales, and breaking news pertaining to land and landowners, be sure to follow The Magazine of the American Landowner on Facebook and Twitter. The Land Report is now on Pinterest.

P.S. Our award-winning quarterly magazine is available in a print version via subscription.

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