A case involving a South Dakota farming family recently received national attention. The family has farmed land for generations that borders U.S. Forest Service (USFS) land. A boundary fence had been in place for many decades. A couple of years ago, the USFS (a sub-agency of the U.S. Department of Agriculture) determined that the family was farming USFS land. The couple was charged with theft of government property and sought a 10-year prison sentence for each of them. Fortunately, with a change in Administration, the USDA dropped the case.
Now, the matter is returned to where it stood before criminal charges were brought—trying to find a solution to the boundary dispute. Fortunately, Congress has provided an avenue to solving this type of problem in the most recent Farm Bill: the Small Tracts Act.
What is The Small Tracts Act?
The Small Tracts Act (16 U.S.C. §§521c-521i), as amended by the 2018 Farm Bill, provides a mechanism for the U.S. Forest Service to resolve land disputes and management issues involving small parcels of National Forest System (NFS) land.
Specifically, the section of the Small Tracts Act most directly relevant to the criteria for conveyance of small parcels and road rights-of-way, as amended by the 2018 Farm Bill, is 16 U.S.C. §521e. That provision provides that the following actions can be taken with respect to National Forest System land that meet the following criteria:
- Small, interspersed parcels: Parcels of forty acres or less that are mixed in with or next to lands that were transferred out of federal ownership under mining laws. These parcels must be determined by the Secretary to be inefficient to manage due to their location or size.
- Encroached-upon small parcels: Parcels of ten acres or less containing improvements on them. This applies when the person who made the improvements occupied or used the land under a claim or appearance of having title, and they were not given advance notice that their improvements were or would be encroaching. Additionally, they must have acted in good faith based on an incorrect survey, title search, or other land information.
- Unneeded road rights-of-way: Road rights-of-way, whether reserved or acquired, that are mostly surrounded by land not owned by the United States and are no longer needed by the U.S. government. In these cases, the owners of the land next to the right-of-way have the first opportunity to buy it.
- Isolated or inaccessible small parcels: Parcels of 40 acres or less that the Secretary determines to be:
- Physically separated from other Federal land.
- Inaccessible.
- Having lost their National Forest character.
- Small parcels with unintentional encroachments: Parcels of 10 acres or less that don’t qualify under the second point but have a permanent habitable improvement and no evidence that the encroachment was intentional or due to negligence.
- Certain special use parcels: Parcels used as a cemetery (including up to one acre next to it), a landfill, or a sewage treatment plant, where this use is authorized by the Secretary through a special use permit or other authorization.
2018 Farm Bill Modifications
The 2018 Farm Bill increased the amount of land that can possibly be conveyed under the Small Tracts Act from 10 acres to 40 acres. The 2018 Farm Bill also specifically addressed encroachments by allowing the conveyance of parcels of 10 acres or less where permanent, habitable improvements have been made, and there’s no evidence the encroachment was intentional or negligent. This could be crucial for farmers or ranchers who have inadvertently built structures (homes, barns, fences) on small tracts of NFS land.
The 2018 Farm Bill also increased the value limit for tracts that can be conveyed under the Act from $150,000 to $500,000, making the Act applicable to a wider range of land values. The 2018 Farm Bill also added categories for conveying parcels used as cemeteries, landfills, or sewage treatment plants under a Forest Service special use authorization. While less directly applicable to typical farmer/rancher disputes, it shows a broader intent to resolve land management complexities.
Funds received from the conveyance of certain eligible lands are now directed to a Sisk Act account – a dedicated fund for acquiring new lands using proceeds from certain land transactions. 16 U.S.C. §484a. These funds are to be used by the Secretary of Agriculture to acquire land or interests in land for the National Forest System within the same state, including land for administrative sites and recreational access. In essence, the Sisk Act provides a mechanism for the USFS to adjust land ownership patterns within the National Forests through exchanges, often with the goal of improving management efficiency and serving the public interest.
How The Small Tracts Act Helps Farmers and Ranchers in Land Disputes
Resolving boundary issues and encroachments.
If a farmer or rancher has a long-standing boundary dispute with the Forest Service, particularly where improvements have unintentionally crossed onto NFS land, the modified Small Tracts Act offers a pathway for potential resolution through conveyance. If the encroached area is 10 acres or less and meets the criteria (permanent, habitable improvement, no intentional or negligent encroachment), the Forest Service now has a clearer mechanism to sell or exchange that small parcel to the landowner.
Addressing isolated or inaccessible parcels.
If a farmer or rancher owns land that is adjacent to a small, isolated, or inaccessible NFS parcel (up to 40 acres) that is difficult for the Forest Service to manage or has lost its “National Forest character,” the Small Tracts Act provides a way for the USFS to potentially sell or exchange that land to the adjacent landowner, potentially streamlining property boundaries and land management for both parties.
Flexibility for the USFS.
The Farm Bill amendments give the USFS more flexibility in resolving property conflicts with private landowners. By providing clear categories and an increased value limit, they reduce the time and expense associated with protracted boundary disputes. This increased flexibility should lead to the USFS’s greater willingness and ability to find mutually agreeable solutions with farmers and ranchers.
Focus on practical solutions.
The Small Tracts Act acknowledges that some small parcels of NFS land create more administrative burden than benefit. By allowing their conveyance, the USFS can focus its resources on managing larger, more integral tracts of land, which can be a pragmatic approach to resolving disputes with neighboring landowners.
Other Considerations
The use of the Small Tracts Act is discretionary on the part of the Secretary of Agriculture and the USFS. They are not obligated to convey land even if it meets the criteria, and they will consider various factors, including public interest. In addition, a conveyance under the Small Tracts Act must be determined by the government to be in the public interest.
There is also an application process. A farmer or rancher would typically need to apply to the Forest Service, providing documentation and potentially covering costs associated with surveys and appraisals.
Conclusion
The Small Tracts Act is just one potential tool for resolving land disputes with the USFS. Farmers and ranchers in land disputes with the federal government may also need to explore other legal and administrative avenues. However, the modifications to the Small Tracts Act in the 2018 Farm Bill offer an enhanced framework for resolving certain types of land disputes between farmers/ranchers and the federal government, particularly those involving small, encroached, isolated, or inaccessible parcels of NFS land. It provides the USFS with greater flexibility and clearer guidelines for potential conveyance, which could lead to more efficient and amicable resolutions.
