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Ask the Expert: Scott Jones

Eric OKeefe — Mon, 22 Feb 2010 23:49:05 +0000

The second session of the 111th Congress is already under way, and landowners have a lot at stake. With that in mind, The Land Report turns to Scott Jones to get the inside scoop on Washington’s next steps. Since 2003, Jones has been the CEO of the Forest Landowners Association (FLA), whose members own and operate some 40 million acres of forestland in 48 states. Founded in 1941, FLA offers education, information, and national grassroots advocacy with the goal of sustaining forestlands from one generation to the next.

With so many bold initiatives taken on by the Obama administration, what are the chances of a climate bill passing this year? Would it benefit forest landowners?

American voters believe that a climate/cap-and-trade bill may cost jobs; as a result, I would not be surprised to see the climate portion of the energy bill removed. If crafted properly, an energy bill could benefit private forest landowners by creating new markets for wood. However, the definition of “woody biomass” still needs to be fixed for landowners to truly benefit from the stripped down version of the bill.

The federal estate tax dropped to zero this year. Do you expect it to return to 55 percent with a $1 million exemption as scheduled in 2011?

There do not appear to be enough votes to bring the death tax back to life in 2010. Sen. Scott Brown’s (R-MA) recent election created a political barrier to retroactive death tax reinstatement. Unless legislative action is taken, the tax is scheduled to permanently return at a rate as high as 55 percent in 2011. But this is an election year, so anything is possible. Polls indicate 65 to 70 percent of Americans want the tax repealed.

Name one other issue landowners should follow closely.

The Clean Water Restoration Act is definitely legislation every landowner should keep an eye on. It seeks to expand the jurisdiction of the Clean Water Act by redefining “navigable waters” as “waters of the United States.” The consequences of this bill are enormous, and it has already created a firestorm in the Senate. Strong opposition convinced Rep. James Oberstar (D-MN) to delay introducing the bill on the House side. Oberstar now intends to move the bill through the House by the end of 2010.

Nebraska Governor to Address Wind Conference

Eric OKeefe — Sun, 25 Oct 2009 16:20:30 +0000

Gov. Dave Heineman is slated as one of the keynote speakers next month at the Nebraska Wind Power 2009 Conference. Scheduled for Nov. 9-10 in Kearney, the conference will feature nationally known experts on wind and wind power and focus on numerous issues of vital interest to landowners seeking to capitalize on this opportunity to generate revenues from renewable energy.

According to the National Renewable Energy Laboratory, wind energy is one of the fastest-growing forms of electricity generation in the world. The United States can currently generate more than 25,000 megawatts (MW) of electricity from the wind, which is enough to power about 7 million average American homes. Industry experts predict that, with proper development, wind energy could provide 20 percent of U.S. energy needs.

For more information on the Nebraska Wind Power 2009 Conference, read HERE.

Crossing the Divide with Al Biernat

Trey Garrison — Mon, 19 Oct 2009 07:00:35 +0000

When it came to the Colorado hamlet of Creede, it was love at first sight for Dallas restaurateur Al Biernat (standing front and center with wife Jeannie and writer Trey Garrison). And what’s not to love about Creede? Nestled among high rocky cliffs on the eastern side of the Continental Divide, the historic mining town is the picture-perfect home of just 400 year-round residents. The rest of the year, tens of thousands of tourists and part-timers cruise through. Best of all, it’s not a ski town. Unlike Vail or Aspen, there’s no crush of obnoxious fashionistas clamoring for lattes or sashimi. Consequently, snug cabins and larger retreats range in price from ridiculously affordable to seven-figure splendor.

BY TREY GARRISON
PHOTOGRAPHY BY GUSTAV SCHMIEGE
PUBLISHED SUMMER 2009

But Creede is no backcountry village. A tiny little Whoville of sorts, Creede boasts a slew of incredible little restaurants, art galleries, and the Creede Repertory Theatre, which has won acclaim from high-minded New York drama critics. The hunting is so rewarding that people wait years to get a permit to stalk elk, moose, and other trophy critters. The fly-fishing on the Rio Grande and its tributaries attracts anglers from around the world. And just four percent of the land in Mineral County is privately owned. The rest is controlled by the U.S. Forest Service.

Enter Al Biernat, a self-made success who worked his way up from bussing tables at the Palm Restaurant in Los Angeles to running the Palm’s Dallas locale as its GM. When a lease came up on a prime piece of Dallas real estate, he signed on the dotted line and created the dining establishment that now bears his name.

Creede was a dream come true—a place of solace, relaxation, and recreation to share with his family and friends—so he and his wife, Jeannie, bought a 30-acre plot in a delicate Alpine zone at 10,600 feet. The land is regulated by the Mineral County Alpine Zoning Commission, and Biernat has a thick stack of regulations to prove it. Everything from the size of structures to the materials he could use is spelled out. Surrounded on three sides by Forest Service land, he believed his cherished investment would be protected from the over development that has plagued other Colorado towns.

Since 2005, Biernat has put a substantial amount of his hard-earned cash into his cabin and the surrounding property. “It seemed the perfect little secret place,” Biernat says. “I had no idea what could be coming.”

But he should have.

Until the mid-1980s, Creede was a mining town, site of Colorado’s last big silver strike. Since then, however, the only miners have been tourists, picking up bits of quartz and the occasional fleck of pyrite (better known as fool’s gold). Biernat was positive this peaceful oasis was immutable.

He was so sure of it that he believed mining could never come back. That’s why he signed his deed, despite a standard print disclaimer and warning right above the signature line stating that he was not buying the patented mineral rights to his land. And yet, from 2007 through the end of 2008, mining returned—exploratory mining for untapped veins of nickel, silver, lead, and gold.

The prospect sent Biernat and a good number of local landowners into a tailspin of worry and doubt. They weren’t just concerned about the light and noise pollution from drilling operations or the heavy truck traffic on narrow, winding passes. Biernat was in a bind because while he owned the surface rights to his property, someone else owned the patented mineral rights. And the implications are enormous.

Different parties often own the surface and the subsurface rights. These interests may have been created through the reservation of the minerals by the government or may result from a decision by a landowner to sell their mineral interests.

Mining claims are initially unpatented claims, which give the right only for those activities necessary to explore and mine. Much as farmers could obtain title under the Homestead Act, miners can obtain a patent (a deed from the government). The owner of a patented claim can put it to any legal use. Bottom line? If extractable ore were found beneath his property, the subsurface rights owner can force landowners such as Biernat to sell.

Beyond that, full-scale mining would shatter the sanctity of the Continental Divide. Biernat’s 1,000-square-foot, loft-style cabin is something out of a Ralph Lauren catalog. It’s cozy, rustic, gorgeously decorated, and at night you get a better view of the stars than the Hubble telescope.

Biernat had planned to build a larger cabin and turn his existing one into a guest house. He had already added a barn-style garage for his truck, his ATVs, and the snowmobiles that are the only way to and from the cabin in winter. Needless to say, the return of mining put an end to Biernat’s construction plans. But to many longtime locals, another possibility loomed:

Was their dream of mining going to come true?

After the closure of the last active mine in 1985, Creede recreated itself as a tourism hub. But tourism is a fickle trade, which even opponents of mining admit. Ed Vita, an ex-techie who moved to Creede to get away from the rat race, owns two businesses in Creede. In the winters he runs San Juan Snowcat, and he owns the popular Old Miners Inn, where you can enjoy a mean pizza and the requisite adult beverage.

We sat outside on the inn’s upstairs deck, and Vita admitted he tentatively supports the return of mining. “It’s all exploratory. Until I see the numbers and the contracts, I’m not counting on anything. I know there will be some impact on the tourist industry, but it can be hard surviving here in the winter months when it’s just the 400 locals circulating the same dollars,” Vita says.

But businessmen like Avery Auger, president of Creede America Group, love the idea of mining coming back to Creede. Creede America is developing custom homes that start in the $300,000 range. Auger is not concerned about mining. In fact, he expects to draw potential buyers from the mining operations, at least from among those in management and high-tech positions that command six-figure salaries. His development overlooks Creede and is protected by an earthen berm that blocks sight and dampens noise. “This town needs this kind of business to grow,” Auger says. “This is only going to increase property values and bring money this town needs.”

Brian Egolf agrees. Egolf first came to Creede with his grandfather when he was only two years old. As years passed, Egolf thought someday he would relocate to Creede permanently. After finding his way he watched the mines close. He swore one day he would reopen them.

Over the last decade, Egolf gathered patented mineral rights for large swaths of land around Creede. A savvy businessman, he knew that the depressed price of minerals wouldn’t last forever and approached Idaho-based Hecla Mining. Egolf wanted Hecla to come to Creede, test the mines, and, if profitable, oversee production.

“I’m really hoping that we can revitalize Creede, so that people can stay and earn a good living and that their children won’t leave as soon as they graduate high school, because there will be opportunities here,” Egolf says.

Hecla’s exploratory plans called for three years of exploratory mining in a 36-square-mile area, an investment of more than $12 million. But when mineral prices declined, Hecla suspended operations. Although it promises to resume exploration in the near future, many in Creede are doubtful it will return anytime soon.

That’s no relief to Biernat, who is still considering a new house, a new well, and solar power. If commodity prices rebound, mining could come back. “Do I put the money in and risk losing my investment?” Biernat asks. “I don’t know.”

Active mining operations around a recreational retreat could drive down property values long before Hecla might acquire Biernat’s cabin. Although it’s appraised at $550,000 right now, it would be worth much less if mining resumed.

When Biernat first saw his land, everything convinced him his investment would be protected. Set in an Alpine zone, it is surrounded by Forest Service land. Brokers emphasized how mining was dead and that the town had been reinvented as a cultural and recreation hub. But unless an area is declared a wilderness, the U.S. Forest Service allows activities on federal land like mining, timber harvesting, and grazing.

To be fair, the fact that Biernat would not own the patented mineral rights wasn’t exactly in fine print. Biernat is a smart businessman and took a risk. And, he admits, despite all his anxieties, he doesn’t think he’d do anything different.

“I knew I was taking a little bit of a gamble,” Biernat admits. “I should have read things more closely. But I’ll be honest. If I could go back and do it again, I would, no matter what the stress and worry has been. Just the memories I built with my children and my wife make it worth it. I just wish I could be sure our investment would be safe over the long haul.”

While some of the specifics of his case are unique to Colorado law, the issue of patented mineral rights is a federal one. From coast to coast and everywhere in between, the potential for profit from subsurface minerals means that if a landowner hasn’t secured those rights, it could place their investment at risk.

Caveat emptor should be every landbuyer’s watchwords, even if they have competent lawyers and erstwhile brokers on their side. Should you find that dream spot, it just may not be possible to acquire the mineral rights to go with the surface estate. At that point, you have to measure the risk, and decide if it’s worth it.

For Biernat, it most definitely has been. But it’s not something he takes lightly. Every time he talks about the issue, you can see the concern etched on his face and the troublesome pall on his otherwise optimistic visage.

“I love that town, I love the fact that it’s an artists’ community, and I love the people,” he says. “It’s taken me so long to really start to fit into the town, and I’d hate to have to leave it. But I’m blessed. I have that option. What about the guy who doesn’t have that choice?”

For Sale: 19,079-Acre Pineywoods Mitigation Bank in East Texas

Eric OKeefe — Tue, 25 Aug 2009 22:00:47 +0000

One of the largest wetland mitigation banks in the nation is on the market. Located in Angelina, Jasper, and Polk Counties, the Pineywoods Mitigation Bank is currently the largest wetland mitigation bank in Texas and is fully permitted with the US Army Corps of Engineers.

The Pineywoods Mitigation Bank is the result of six years of cooperation between The Conservation Fund and GMO Renewable Resources, entities that have spent more than $2 million extracting all of the permitting and execution risk out of the project.

A contiguous block of 19,079 acres of valuable habitat, the bank is located in the middle of the Neches River basin and provides a corridor between the Davy Crocket and the Angelina National Forests. Its large size and the concentration of sensitive wetland habitat on 13,000 acres are two of its many distinctions.

The Conservation Fund and GMO Renewable Resources seek to sell the bank as a whole to a buyer who can fully focus on the monetization of the $85 million in potential credit value. The estimated net present value of the wetland mitigation credits is about $40 million with an 18% discount rate.

“Pineywoods Mitigation Bank is truly a unique piece of property managed for the conservation of natural resources while providing mitigation opportunities,” says Tom Margo, Director of Real Estate Sales at AFM Real Estate, the listing broker. The owners recognized the importance of this area and put a plan in place focused on conservation and enhancement. All of the necessary approvals and permits are in place, a rare find for a property of this size and with these characteristics.”

The timeline for the bidding process is as follows:
• Indicative offers due September 1, 2009.
• Binding offers with deposit due November 1, 2009
• Closing prior to December 31, 2009.

For additional information, go to the Pineywoods Mitigation Bank website. For details of the sale, review the following letter from GMO Renewable Resources. For more information about AFM Real Estate, visit their website.

Sonia Sotomayor & Property Rights

Eric OKeefe — Mon, 06 Jul 2009 00:37:51 +0000

The current issue of The Land Report takes an in-depth look at Obama Administration and the American Landowner. Since that issue came off the press, the President has already been faced with a crucial task: nominating a replacement for Supreme Court Associate Justice David Souter. His choice? Federal appeals court judge Sonia Sotomayor.

Next Monday, July 13, the Senate Judiciary Committee will begin her confirmation hearings. Landowners will be paying particular attention to Judge Sotomayor regarding property rights, in particular, Kelo v. City of New London, the controversial 2005 decision that sparked a national uproar. What will her stance be? Insight can be gleaned from her role in an important test of Kelo that took place in 2006: Didden v. Village of Port Chester.

According to The New York Times:

The case arose from a meeting in 2003 between Mr. Didden, who owned property in Port Chester, N.Y., and an executive of a company that had been designated by the village to develop a 27-acre urban renewal area that included part of the property. What happened at that meeting, Mr. Didden said, amounted to extortion.

Mr. Didden had made arrangements to put a CVS drug store on his lot. At the meeting, the executive, Gregg Wasser, demanded $800,000 as the price for permission to proceed with that project, Mr. Didden said in court papers. The alternative, Mr. Wasser said, according to the papers, was to have the village condemn Mr. Didden’s property so that Mr. Wasser’s company could put a Walgreen’s in the same place.

“Here is a private person standing in the shoes of the government with the power to condemn or not condemn,” Mr. Didden said. “The $800,000 wasn’t going to rehabilitate a public park or build a soccer stadium. It was going into his pocket.”

Mr. Didden refused. The next day the village condemned his property.

As The Times points out, when Didden’s appeal reached the Court of Appeals for the Second Circuit, his case was rejected with a terse, unsigned decision. The response has not been favorable:

The ruling in Didden is not popular among some property rights and constitutional law professors. Eight of them filed a brief in 2006 unsuccessfully urging the Supreme Court to hear an appeal.

“This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and helped write the brief. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.”

Western Massachusetts to Become National Forest?

Eric OKeefe — Wed, 17 Jun 2009 07:00:22 +0000

Former Governor Mitt Romney’s proposal to designate the Berkshires and all of Western Massachusetts as national forest is being considered once again. Massachusetts is one of just six states without national forest designation, a situation the Romney administration sought to counter in 2003.

A key aspect of the proposal being considered is that the federal government would not acquire any private land. Instead, it would seek easements from local property owners to restrict development and thus allow the land to remain on tax rolls.

The proposed Massachusetts model, which is being called a “family-forest based” designation, is being pitched as a partnership between private landowners, the state, and the federal government.

“”Landowners would retain the rights to own the lands, but sell their right to develop it,” said Lisa Capone of the state’s Executive Office of Energy and Environmental Affairs. “The land also remains a working forest, with some level of access to outdoor recreation and protection from commercial development. Massachusetts would be the first state to have the land-easement concept.”

Madeleine Pickens Presents Eco-Sanctuary Plan to BLM

Eric OKeefe — Wed, 10 Jun 2009 07:00:29 +0000

Madeleine Pickens is no ordinary horsewoman. A lifelong equestrian, she has led numerous champions into the winner’s circle, including the Hall of Fame Thoroughbred Cigar, winner of 16 consecutive races. Now she is championing a new cause: America’s wild horses.

“Wild horses are a living symbol of the pioneering spirit of Americans and the America West,” she says. Her goal is to establish a 501(c)(3) eco-sanctuary for all horses currently in holding facilities on BLM lands. Similar to a national park, it would be a tourist attraction as well as a refuge. To that end she has submitted a proposal to the Bureau of Land Management to create a public/private partnership that would not only locate appropriate land with sufficient forage and water sources but allow wild horses and burros to be free‐roaming and able to form natural bands.

“While the primary objective of the project is to care for these wonderful creatures, we will also be stewards of the land,” she says.

In March during hearings on H.R. 1018, Restoring Our American Mustangs (the ROAM Act), Pickens testified before the House of Representatives Subcommittee on National Parks, Forests and Public Lands Committee on Natural Resources. She has also submitted a plan to initially alleviate conditions for 10,000 wild horses currently being penned in BLM short-term holding facilities.

“My view is for a wild horse sanctuary that will be a tourist destination similar to our national parks where Americans and tourists from around the world can come, observe and be a part of this great part of American history. We can use this treasure to promote ecotourism and at the same time provide for permanent retirement and management of these American icons to which we owe so much,” she says.

To that end, she is urging those who cherish the wild mustang and support her initiative to contact Interior Secretary Ken Salazar to stop the slaughter and confinement America’s wild horses and burros.

To join the thousands who have already petitioned Secretary Salazar as well as read more about her plan, The Land Report encourages you to visit her website.

Interior Department Investigates Renewable Energy Speculators

Grant Gannon — Wed, 03 Jun 2009 07:00:56 +0000

Remember the Interior Department’s ongoing investigation into possible abuses of the Royalty-in-Kind program? Now the department’s Inspector General has started to look into possible abuses by companies seeking to develop renewable energies on BLM land.

Three years ago, BLM received six applications for solar energy projects. In the last year? 130, including one for 300,000 acres from Cogentrix Solar Investments.

The focus of the investigation is renewable energy companies as well as speculators that have applications pending for BLM leases and are seeking to be acquired based on the value of those applications.

According to the LA Times:

Officials said last week that the inspector general’s office of the Department of the Interior was investigating Tempe, Ariz.-based First Solar Inc.’s recent acquisition of Hayward, Calif.-based OptiSolar, and its unfinished renewable energy projects, for $400 million.The deal gave First Solar control of what the company described as OptiSolar’s “strategic land rights” to 136,000 acres of public land in San Bernardino, Riverside and Kern counties.

In acquiring OptiSolar, First Solar acquired the lease applications, not the land itself. Those applications are no guarantee according to Greg Miller of the BLM.

“There is no value associated with a mere application, which could be rejected by us for a variety of reasons,” Miller told the Times.

As a result, application approvals for solar energy projects have been suspended while officials sort out what’s going on.

Read more at:
“Renewable Energy Sparks a Probe of a Modern-Day Land Rush,” Los Angeles Times, June 1, 2009.

Texas Senate Tackles Eminent Domain

Grant Gannon — Sun, 17 May 2009 21:11:44 +0000

Four years after the Supreme Court handed down Kelo vs. New London, eminent domain reform continues. Earlier this month, the Texas Senate passed an amendment that would make it harder for the government to seize land from private landowners via eminent domain.

The foundation of Senate Bill 18 is the provision that private land can not be seized and then redistributed for private use. The bill also calls for good faith negotiations and fair compensation. The amendment passed the Senate on a 31-0 unanimous vote and is now before the House, which is considering a separate amendment. If approved by the House, it would go before Texas voters in November.

Also in the bill are several procedural definitions that call for transparency and accountability in the process.

The language is as follows:

Spells out objective criteria for courts to follow to determine good faith negotiations. Requires condemning entities to follow those criteria, or risk paying attorney fees and court costs for the landowner.
Creates a “Truth in Condemnation Procedures Act,” which requires a bona fide offer in writing.
Requires any condemnation procedure to be done in public and by a record vote.
Allows a property owner or their heirs to repurchase condemned property, at the original price paid for the property, if it is not utilized for public use after a 10-year period.
Requires all condemning entities to register with the state Comptroller. This will give the state a handle on how many and the kinds of entities having eminent domain power.
All of these provisions apply to all entities, not just governmental entities.

Ask the Expert: Scott Jones

Florida: “It’s Almost Like a Fire Sale”

Grant Gannon — Mon, 13 Apr 2009 12:10:45 +0000

A University of Florida study has put a staggering number on just how badly the economic crisis has impacted rural land values in the Sunshine State. The study concludes that land values plummeted upwards of 55 percent in 2008 from highs just one year previously.

The study focused exclusively on rural land, mostly those outside of urban areas that would have been hot spots for development just prior to the worldwide economic collapse.

“In some cases, it’s almost like a fire sale,” said Rodney Clouser, the UF professor of food and resource economics who led the survey.

The study found the northern part of the state most affected with values dropping the aforementioned 55 percent.

Farmland, that which traditionally would be the main focus of The Land Report readers, saw declines that reached as much as 26 percent.

What’s worse is the predicted continued decline in 2009.

Land prices are expected to continue their drop through 2009 — although not as dramatically as in 2008. Survey responses from individuals involved in the Florida real estate market predict an overall drop between 5 and 17 percent.

The full UF report is available here.