Private Property, the Viewshed and MapsWritten by Jim Hellyer
By Fremont County rancher Jim Hellyer
People like maps. Bureaucracies produce lots of maps. Public policy has become a map, and the data upon which maps are built is highly subjective.
Today, agencies make decisions not on what is truly on the ground, but rather on what bureaucrats and/or advocates want to be on the ground. This is poor policy and is the result of a bureaucratic culture that has lost contact with the physical parts of geography and has substituted office analysis and easy reference material for the basics of map reading.
Consider, when in the outdoors it is common for people to make use of a topographical map. The purpose of this is to guide the reader across the terrain. The map provides the basic data and the reader makes a decision. The decision is then applied, correctly or incorrectly, and if the decision is arrived at through an incorrect reading of the map, then a poor decision is made and a difficult route chosen.
Applied to the bureaucratic world, the map analogy is the same. When an agency produces a viewshed map that only shows what the agency “interprets” as the viewshed, and ignores the occurrence of private property upon the land, the agency makes the same mistake as the lost outdoorsman.
A viewshed takes in much more than a simple shading and outline of some special place on a map. For example, when the BLM produces an ACEC map it draws boundaries around and up to the various property lines. When the same agency produces a Visual Inventory map it paints a broad swath and the reader is left with the impression that the viewshed is all encompassing. A planning failure will occur when the experience does not match the expectation. In other words, when an individual makes a decision to visit a “public” place, and arrives to find it anything less than pristine, the experience is a letdown compared to the expectation of serenity.
Consequently, policy to guide viewshed management treats all property as public and ignores the reality of actual ownership. The agency presents to the public the impression that all in the viewshed is public, when in fact most viewsheds involve someone else’s property. This is a fundamental failure of adequate analysis and certainly sets the public up for disappointment, as a closer examination of the scenario reveals a whole host of opportunities for change – change that will be independent from and with general disregard for agency wishes by private actors on a mixed stage. It will be a general state of disregard due to the hostility most private project proponents receive from the agency and NGOs alike.
Critics of this position will argue that in these mixed ownership settings the public enjoys such a high degree of ownership that this type of analysis is the only kind that will produce any type of basic and consistent document. However, the high percentage argument fails the basic test of governmental consistency in the first place. Consider for a moment the Securities and Exchange Commission rules of reporting. Individuals operating in the marketplace are required to report to the SEC when positions (amounts of shares, i.e. ownership of something) reach certain levels. The rationale for such reporting is that smaller percentages can affect the marketplace of the whole in question. In other words, five percent of a larger object is significant.
This is a property rights reporting requirement that, if the BLM applied to viewshed analysis, would produce a viewshed that recognized the private property within the viewshed as being significant enough to, at a minimum, be recognized as existent, and should certainly be treated as a potential contributor to or from the viewshed.
Expressed as an economic model, this suggestion reads that the viewshed is the marketplace and the commodity is space. This space is public and private: identifiable, tradable and insurable.
Therefore, with the bureaucratic tendency to manage viewsheds for what ought to be, as opposed to what is, the public would be best served by a discontinuation of viewshed analysis, as its present form is not likely to produce an accurate map – a map from which the decision makers make policy and the public makes judgments.
Alternatively, the bureaucracy could do two things: first, insert into present GIS databases the occurrence of various property ownerships and publish the shortcomings and assets of the viewshed and let managers make an informed decision. Second, an additional viewshed matrix column is needed within the current analysis whereby the BLM can add, for broad area analysis, the proximity to private property to produce degrees of sensitivity to private influence ranging from high, or close proximity to private property, to low, or distant from private property.
For example, just as the BLM can readily insert into any map a circle representing a sage grouse lek, so, too, could the BLM insert a circle around the private property. This visual enhancement of the land status would alert the viewer that visual classifications, habitat content, and the associated expectations of experience, are subject to private influence.
To continue this example: draw a circle one mile in diameter, place a 40-acre private tract in the middle, do this to all private property in the viewshed and then analyze the relationship and impact of all the circles to the visual classification at hand.
Presently, BLM staff has suggested that putting the land status on other layers of data would create a map that was too “busy.” Perhaps that is the problem. The BLM draws a very simple map to avoid the unpleasant realities of a “busy” map because a busy map is less inclined to lead to further regulation. Hopefully a busy map would produce a conclusion that private property can affect the landscape and that private property owners should be recognized for their contributions to an area. Furthermore, a busy map would show the public at large that much of what they take for granted is there for their viewing experience, provided the private land remains undeveloped.
For example, southwest Wyoming is well known for its resources. It is also a land pattern of the checkerboard nature, which results in a viewshed having a potential one-mile experience, at most. Anything greater than this one mile is, by land status alone, private property and should not be analyzed with any expectation of experience.
The checkerboard pattern of land status is unique in that the lands were privatized not as a result of individuals choosing the most productive lands first, as happened with Homestead Act lands, but rather as a side result of an engineered route choice. This difference is important, because as we have discussed above, with the bureaucratic tendency to portray things in simple shades, that simplicity ignores one of the central themes of Western land status. That theme is that the best was settled first, and therefore when agencies analyze on viewshed levels it should be apparent that the prime land is not public because the prime land is generally more productive, and generally private. It is not accurate analysis to analyze the privatized lands the same as the public.
With the many ongoing resource management plan (RMP) projects around the state, it is time the BLM gave property owners the basic acknowledgement that private property deserves. Federal planning continually goes to great lengths to plan for everything and analyze everything in greater detail to make a sound decision that will withstand legal scrutiny. Asking the agencies to plan around the fact they don’t own everything is not too great of a burden.
Let’s be clear: this is not a planning alternative. This is not a citizens’ property alternative for the bureaucracy to digest. This is a call for the bureaucracy to take the data it already has and analyze it completely. The property is where it is, and it is where it has always been. The ability of the agencies to analyze the situation has improved with technology, and this should be reflected in the planning process. Using an improved Visual Model will correct the deficiencies of prior designations and lead to a regulatory system that treats landowners and the rights associated with property fairly.