Order Code IB10076
Issue Brief for Congress
Received through the CRS Web
Public (BLM) Lands and
National Forests
Updated October 28, 2002
Ross W. Gorte and Carol Hardy Vincent, Coordinators
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

---

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
History of the Bureau of Land Management
History of the Forest Service
Scope of Issue Brief
National Monuments and the Antiquities Act
Background
Administrative Actions
Legislative Activity
Roadless Areas of the National Forest System
Background
Administrative Actions
Legislative Activity
Wildfire Protection
Background
Administrative Actions
Legislative Activity
Energy and Minerals
Energy and Mineral Development on Federal Lands: Background
Legislative Activity
Hardrock Mining and Millsites: Background
Administrative Actions
Legislative Activity
Federal Land Acquisition
Background
Administrative Actions
Legislative Activity
Recreational Fee Demonstration Program
Background
Administrative Actions
Legislative Activity
LEGISLATION
National Monuments and the Antiquities Act
Roadless Areas
Wildfire Protection
Energy and Minerals
Federal Land Acquisition
Recreational Fee Demonstration Program
FOR ADDITIONAL READING

---

IB10076
10-28-02
Public (BLM) Lands and National Forests
SUMMARY
The 107th Congress is addressing issues
in the Senate. In addition, the Administra-
related to the public lands managed by the
tion’s Healthy Forests Initiative seeks to
Bureau of Land Management (BLM) and the
protect communities from wildfires by reduc-
national forests managed by the U.S. Forest
ing fuels; H.R. 5376, H.R. 5319, and a pend-
Service (FS). A key issue is how to balance
ing Senate amendment to Interior Appropria-
the protection and development of these lands.
tions (H.R. 5093) would largely enact this
Other questions relate to which lands the
proposal.
government should own, and the adequacy of
funds and programs for agencies to acquire
Energy and Minerals. The Bush
and manage lands. A related focus is author-
Administration and Congress are examining
ity for collecting fees for land use.
whether to increase access to federal lands for
energy and mineral development, and related
National Monuments and the
legislation (H.R. 4) is in conference. A
Antiquities Act. The Antiquities Act of 1906
second issue is whether to clarify the General
authorizes the President to establish national
Mining Law of 1872 regarding the number
monuments on federal lands. Congress is
and size of millsites per mining claim. A third
considering limiting the authority of the Presi-
issue is the Bush Administration’s revisions of
dent and amending particular monuments.
the hard rock mining regulations finalized by
The Administration is developing manage-
the Clinton Administration.
ment plans for some monuments created by
President Clinton, and is considering a new
Federal Land Acquisition. Debate is
monument in Utah.
focused on funding levels for land acquisition
using the Land and Water Conservation Fund.
Roadless Areas of the National Forest
Questions include the amount of funds to be
System. The Clinton Administration issued
provided, the lands to be acquired, and spend-
rules that limit road construction and timber
ing the Fund for purposes other than land
cutting in 58.5 million acres of roadless areas
acquisition. In addition, H.R. 701, which has
in the National Forest System. Implementa-
been reported by the House Resources
tion was enjoined, and the Bush Administra-
Committee, could provide more certain funds
tion has sought public comment on whether
for land acquisition.
and how to revise the roadless rules. Interim
direction is now in effect, and new rules are
Recreational Fee Demonstration Pro-
being developed. A bill to protect roadless
gram. The “Fee Demo” program was created
areas has been introduced.
to allow land management agencies to test the
feasibility of generating revenues for self-
Wildfire Protection. The threat of
financing through new fees. In his FY2003
catastrophic wildfires seems to have become
budget, President Bush proposed making the
more severe. The FY2003 budget request
program permanent, and legislation to make it
($2.02 billion) continued higher funding for
permanent has been introduced. The FY2002
most fire programs. Supplemental funding for
budget request proposed extending the pro-
2002 fire-fighting efforts of $700 million was
gram, and Congress enacted legislation to
added by the House, and of $825 million was
extend and revise the program.
requested by the Administration and proposed
Congressional Research Service ˜ The Library of Congress

---

IB10076
10-28-02
MOST RECENT DEVELOPMENTS
Senate debate on the Interior appropriations bill for FY2003 (H.R. 5093) stalled over
amendments to expedite fuel reduction treatments in national forests and provide $825
million in FY2002 supplemental funds for firefighting on DOI and FS lands. The
Administration’s Healthy Forests Initiative, to protect communities from wildfire by
expediting fuel reduction treatments, would largely be enacted by H.R. 5376 and H.R. 5319
as well as the pending fuel reduction amendment to the Interior appropriations bill.
On October 16, 2002, the House Committee on Resources reported H.R. 701, the
Conservation and Reinvestment Act (CARA). The measure was subsequently referred to the
Committee on Agriculture and the Committee on the Budget.
The Administration has published a report on comments received on whether to amend
rules to prohibit new roads and development in Forest Service roadless areas, but final rules
have not been developed. H.R. 4865, to protect roadless areas, has been introduced.
BACKGROUND AND ANALYSIS
The Bureau of Land Management (BLM) in DOI and the Forest Service (FS) in the U.S.
Department of Agriculture manage 456 million acres of land, 70% of the land owned by the
federal government and one-fifth of the total U.S. land area. The BLM itself manages 264
million acres of land, predominantly in the West. These lands are defined by the Federal
Land Policy and Management Act of 1976 (FLPMA, 43 U.S.C. §§1701, et seq.) as “public
lands.” The FS administers 192 million acres of federal land, also concentrated in the West.
The BLM and FS have similar management responsibilities for their lands, and many
key issues affect both agencies’ lands. However, each agency has unique emphases and
functions. For instance, most LM lands are rangelands, and the BLM administers mineral
development on all federal lands. Most federal forests are managed by the FS, and only the
FS has a cooperative program to assist nonfederal landowners. Moreover, development of
the two agencies has differed, and historically they have focused on different issues.
History of the Bureau of Land Management
For the BLM, many of the issues traditionally center on the agency’s responsibilities for
land disposal, range management (particularly grazing), and minerals development. These
three key functions were assumed by the BLM when it was created in 1946, by the merger
of the General Land Office (itself created in 1812) and the U.S. Grazing Service (created in
1934). The General Land Office had helped convey land to settlers and issued leases and
administered mining claims on the public lands, among other functions. The U.S. Grazing
Service had been established to manage the public lands best suited for livestock grazing.
The Taylor Grazing Act of 1934 (TGA, 43 U.S.C. §§315, et seq.) was the principal statute
governing the public lands in the early years of the U.S. Grazing Service, and remains a key
statute governing the use of federal rangelands for private livestock grazing. Enacted to
remedy the deteriorating condition of public rangelands, the Act provides for the
CRS-1

---

IB10076
10-28-02
management of public lands “pending [their] final disposal.” This language expresses the
view that federal lands might be transferred to other ownership.
In subsequent decades, Congress debated how best to manage federal lands, and
whether to retain or dispose of the remaining public lands. In 1976, Congress enacted
FLPMA, sometimes called BLM’s Organic Act because it consolidated and articulated the
agency’s responsibilities, although it left the TGA in place. Among other provisions, the law
establishes management of the public lands based on the principles of multiple use and
sustained yield; provides that the federal government receive fair market value for the use
of public lands and resources; and establishes a general national policy that the public lands
be retained in federal ownership (as opposed to managed until their “final disposal.”) This
retention policy contributed to the “Sagebrush Rebellion” of the late 1970s and early 1980s,
which was an effort among some Westerners seeking to reduce the federal presence in their
states by transferring federal land to state or private ownership. Land ownership, as well as
conflicts over land use, continue to be among the key issues for BLM lands.
History of the Forest Service
The FS was created in 1905, when forest lands reserved by the President (beginning in
1891) were transferred from the Department of the Interior into the existing USDA Bureau
of Forestry (an agency for private forestry assistance and forestry research). Management
direction for the national forests, first enacted in 1897 and expanded in 1960, identify the
purposes for which the lands are to be managed, allow protection of areas as wilderness, and
direct “harmonious and coordinated management” to provide sustained yields of resources.
Many issues over national forest management and use have focused on the appropriate
level and location of timber harvesting. Major conflicts over clearcutting began in the 1960s,
and litigation in the early 1970s successfully challenged FS clearcutting in West Virginia and
elsewhere. Congress enacted the National Forest Management Act of 1976 (NFMA; P.L. 94-
588) to revise timber sale authorities and to elaborate on considerations and requirements in
land and resource management plans. This NFMA planning has been widely criticized as
expensive, time-consuming, and ineffective for making decisions and informing the public.
The Clinton Administration promulgated new planning regulations on November 9, 2000 (65
Federal Register 67514-67581), which established ecological sustainability as the priority
for managing national forests. The Bush Administration is reviewing these new regulations.
Wilderness protection also has been a continuing issue for the FS because agency
recommendations are pending. Pressure to protect these and other areas contributed to the
Clinton Administration’s decision to protect roadless areas not designated as wilderness.
The Bush Administration is reviewing this decision. (For FS and BLM wilderness issues,
see CRS Report RL31447, Wilderness: Overview and Statistics.)

Scope of Issue Brief
While the evolution and issues of traditional focus for the BLM and FS have been
different, the issues affecting their lands have become more similar. Moreover, the missions
of the agencies are nearly identical. By law, the BLM and FS lands are to be administered
for multiple uses, albeit slightly different uses are specified. In practice, the land uses
considered by the agencies include recreation, range, timber, minerals, watershed, wildlife
CRS-2

---

IB10076
10-28-02
and fish, and conservation. BLM and FS lands also are required to be managed for sustained
yield—i.e., for providing in perpetuity a high level of resource outputs, without impairing
the land’s productivity. Further, many issues, programs, and policies affect both agencies.
For these reasons, BLM and FS lands often are discussed together, as in this report.
This brief focuses on particular issues affecting BLM and FS lands that are receiving
attention during the 107th Congress. While in some cases the issues discussed here are
relevant to other federal lands and agencies, this brief does not comprehensively cover issues
primarily affecting other federal lands, such as the National Park System (managed by the
National Park Service, DOI) or the National Wildlife Refuge System (managed by the Fish
and Wildlife Service, DOI). For background on federal land management generally, see CRS
Report RL30867. Information on appropriations for the BLM and FS (as well as other
agencies) is included in CRS Report RL31306. For information on park and recreation
issues, see CRS Issue Brief IB10093. For information on oil and gas leasing in the Arctic
National Wildlife Refuge (ANWR), see CRS Issue Brief IB10073. For information on
related issues, see the CRS web page at [http://www.crs.gov/].
National Monuments and the Antiquities Act (by Carol Hardy Vincent)
Background. Presidential establishment of national monuments under the Antiquities
Act of 1906 (16 U.S.C. §§431 et seq.) has been contentious. The President may proclaim
national monuments on federal lands containing “historic landmarks, historic and prehistoric
structures, and other objects of historic or scientific interest.” The President is to reserve “the
smallest area compatible with the proper care and management” of the protected objects.
Congress subsequently limited the President’s authority in Wyoming and Alaska.
Administrative Actions. President Clinton proclaimed 19 new monuments and
enlarged 3 others, totaling about 5.9 million federal acres. He selected the Bureau of Land
Management (BLM) to manage many of the monuments. Controversies have focused on
how President Clinton created monuments; the size of the areas and types of resources
protected; and restrictions on land uses that may result, but to date the courts have upheld the
monuments. Critics contend that the Antiquities Act should require congressional, state, or
public input or environmental reviews. Supporters defend presidential authority to rapidly
protect federal lands and resources, and contend that monuments have broad public support.

On April 24, 2002, Interior Secretary Norton announced the development of
management plans for the new DOI monuments. Notices published in the Federal Register
on that date formally begin the planning process with scoping periods (of at least 60 days
each) to identify the key issues for each monument. Controversies are expected over
recreational uses, including off-highway vehicles, and commercial uses, including grazing
and energy development. Some observers interpret this planning effort as an indication that
the Secretary is dropping consideration of significant reductions to monument sizes.
Pending completion of the plans, BLM monuments are to be managed in accordance
with interim management policy for newly created monuments. The policy revises an earlier
one in areas including grazing, use of off-road vehicles, animal damage control, rights of
way, and activities on non-monument lands. BLM asserts that the changes seek to clarify
and simplify language in the earlier guidance, but some conservation groups view them as
substantive. In some cases, the monuments also are to be managed under state or issue
CRS-3

---

IB10076
10-28-02
specific interim guidance, e.g. for oil and gas leasing and development. For details of a
monument’s management, see its BLM web site at [http://www.blm.gov/nlcs/monuments/].
At least three other actions of the Bush Administration affect national monuments.
First, the Bush Administration is reported to be considering the issue of nonfederal lands
within national monuments, and to be supportive of the removal of private and state lands
from the boundaries of national monuments. Second, the Administration is considering
establishing the San Rafael Swell National Monument on some 620,000 acres in southern
Utah. Third, on April 1, 2002, President Bush stated that Governors Island, which contains
the Governors Island National Monument, would be sold to New York for a nominal fee.
Terms of the proposal have not been announced. Current law (P.L. 105-33, Section 9101)
requires the conveyance of the Island, but at fair market value. The fair market value has
been estimated by some at between $300 million and $500 million, but by others as much
less because New York authorities reportedly would block major development.
Legislative Activity. H.R. 2114 amends the Antiquities Act of 1906 to make
presidential designations of monuments exceeding 50,000 acres ineffective unless approved
by Congress within 2 years. The language applies to the creation of new monuments and to
additions to existing monuments if the acreage exceeds 50,000. The bill also establishes a
process for input into presidential monument designations. Specifically, a monument
proclamation affecting more than 50,000 acres may not be issued until 30 days after the
President has solicited written comments on the proposal from the Governor(s) of the state(s)
in which the monument would be located. Further, for any monument proclamation, to the
extent consistent with the protection of the resources on the lands to be designated, the
President is to solicit public input, and to consult with the Governor and congressional
delegation, to the extent practicable, at least 60 days before the proclamation is issued. The
measure also requires monument management plans to be developed in accordance with the
National Environmental Policy Act of 1969. The House Resources Committee reported the
measure on April 15, 2002, essentially on a party line vote with Democrats opposed. Earlier,
the Bush Administration testified in support of this bill.
Three bills would govern management, and transfer management, of Governors Island
National Monument. H.R. 1334 and S. 689 would authorize the conveyance of the Island to
New York for free. It is not clear how a conveyance might affect the Monument part of the
Island. H.R. 4759 seeks to ratify the establishment of the monument and prohibit it from
being sold. The measure would transfer jurisdiction and management of the monument, at
no cost, from the Administrator of General Services to the Secretary of the Interior. As a
condition of conveyance, certain rights of access and use are reserved. The Secretary is to
manage the monument in accordance with the bill and laws applicable to the National Park
System, and complete a monument management plan by January 19, 2004.
Other bills pertain to particular monuments. One bill (H.R. 4076) would modify the
boundaries of the Agua Fria National Monument, bar Presidents from expanding the
monument except during a specified 90-day period, require development of a monument
management plan within 2 years, and specify allowed land uses. A second measure (H.R.
4822), pending on the House calendar, would exclude some 81,000 acres of private land
from the boundaries of the Upper Missouri River Breaks National Monument. The
Monument consists of approximately 377,346 acres of federal land. A third bill (H.R. 601)
allowing hunting in the expanded portion of the Craters of the Moon National Monument
CRS-4

---

IB10076
10-28-02
was enacted into law (PL. 107-213). Fourth, provisions in the Senate Committee and House
passed versions of the FY2003 Interior appropriations bill (H.R. 5093) would bar funds in
the bill from being used for energy leasing activities within the boundaries of national
monuments as they were on January 20, 2001, except where allowed by the presidential
proclamations that created the monuments. A similar provision was enacted for FY2002.
Roadless Areas of the National Forest System (by Pamela Baldwin)
Background. In its final months, the Clinton Administration issued several new rules
that affect the roadless areas of the National Forest System (NFS). New rules were finalized
with respect to: (1) the roadless areas; (2) the NFS roads that make up the Forest
Development Transportation System, and (3) the FS planning process. These three rules are
intertwined and each part affects the others. Congressional and public attention have focused
on roadless areas, and that issue is discussed here. The roadless area rule would have
limited, but not eliminated, roads in the approximately 58.5 million acres of inventoried FS
roadless areas, but it has not been implemented.
Administrative Actions. The Clinton Administration established a new approach
to the management of NFS roadless areas by providing national guidance on roads and
timber cutting in those areas—issues that have generated litigation and delay in the past,
when decisions were made at the forest unit level. President Clinton’s approach would have
prohibited road construction in the inventoried roadless areas, with several exceptions, e.g.
roads for access to inholdings or for public health and safety purposes. In addition, the
cutting of timber in the roadless areas generally would have been prohibited, except for
specified purposes, including fire control. Environmentalists and those favoring less
developed recreation generally supported the regulations and urged greater protections, while
the extractive industries and those favoring greater access (e.g., for developed recreation and
hunting) generally opposed them.
The Bush Administration delayed the effective date of the roadless rule, but then
proposed letting the rule take effect while considering changes to again allow for local
modification of roadless area protection. However, on May 10, 2001, U.S. District Court
Judge Edward Lodge issued a preliminary injunction to postpone implementation of the rule,
citing its “irreparable harm” to federal forests and their neighbors (Kootenai Tribe of Idaho
v. Veneman, 142 F.Supp. 2d 1231 (Id. D.C. 2001)). The Administration did not appeal the
injunction, but intervenors did and the appeal is awaiting decision in the 9th Circuit.
Following the court injunction, the Bush Administration expanded the debate over protection
of roadless areas. On July 10, 2001, the Forest Service published an advance notice of
proposed rulemaking asking for public comment on whether and how to change the Clinton
Administration’s roadless rules (66 Fed. Reg. 35918). On July 26, 2002, the Administration
published a report on the comments received. See [http://www.roadless.fs.fed.us].) To date,
no new regulations have been proposed.
While considering new rules, the Bush Administration has issued a series of directives
constituting interim guidance on roadless area management. The most recent direction,
published on December 20, 2001 (66 Fed. Reg. 65796), places most decisions on roadless
area management with the Regional Forester, and some with the Chief of the Forest Service,
until each forest plan is amended or revised to address roadless area protection. This
approach would reverse the Clinton rule by returning decisions on roads and timber activities
CRS-5

---

IB10076
10-28-02
in roadless areas to the individual forest planning level. Relatedly, on September 20, 2001,
the Forest Service proposed new interim direction on a facet of NEPA
compliance—categorical exclusions. If finalized, that action could allow some activities in
roadless areas without environmental studies (66 Fed. Reg. 48412).
Legislative Activity. Congress may consider legislation on forest management in
general or on the roadless areas issue in particular. H.R. 4865, with 179 co-sponsors, would
direct management of inventoried roadless areas in accordance with the final rule
promulgated by the Clinton Administration. S. 2790 would prohibit road construction and
timber harvesting in inventoried roadless areas. No action has occurred on either bill.
Wildfire Protection (by Ross W. Gorte)
Background. The 2000 and 2002 fire seasons were, by most standards, among the
worst in the past 50 years. The threat of severe wildfires seems to have grown, because many
forests have unnaturally high fuel loads (e.g., dead trees and dense undergrowth) and an
historically unnatural mix of plant species (e.g., exotic invaders). Fuel treatments have been
proposed to reduce the threats from wildfires, including prescribed burning (setting fires
under specific conditions); commercial logging followed with appropriate slash disposal; and
other treatments (e.g., precommercial thinning). Proponents of fuel reduction argue that
needed treatments often are delayed by administrative appeals and litigation. However, many
environmentalists fear that fuel reduction could enable timber companies to increase logging
on federal lands and that such projects would not receive careful environmental review.
Administrative Actions. President Bush’s FY2003 budget proposed continuing
most of the wildfire management programs expanded by President Clinton, with a total of
$2.02 billion. In August of 2002, the Administration requested an additional $825 million
for FY2002 firefighting efforts. It also proposed a Healthy Forests Initiative to improve
wildfire protection. The legislative proposal accompanying this initiative, introduced in H.R.
5376, would direct a fuel reduction program to reduce the buildup of hazardous fuels that
contribute to wildfires. The program would give priority to the “wildland-urban interface,”
municipal watersheds, and areas affected by insects, diseases, or windthrow. It would use
a collaborative process and expedite consultations on endangered species. However, it
would not allow the public to request an administrative review of project proposals, would
constrain judicial review, and would prohibit restraining orders and injunctions.
The stewardship contracting provisions would authorize goods-for-services contracts,
essentially allowing the agencies to use timber (instead of cash) to pay contractors for various
land management services, e.g., road and trail maintenance, watershed restoration, and
noxious weed control. Any receipts generated—if the value of goods sold exceed the cost
of services—could be retained by the agencies for additional service contracts. The agencies
would be required to report to Congress annually on the status of the program.
In addition, the Administration proposed repealing the FS “Appeals Reform Act,” which
requires an opportunity for the public to request that agency line officers review decisions.
It also proposed that the courts consider the effect of not reducing hazardous fuels and defer
to agency findings that the short-term harm from fuel reduction activities is outweighed by
the long-term harm of not taking action.
CRS-6

---

IB10076
10-28-02
Legislative Activity. Congress has focused attention on wildfire protection through
annual agency appropriations. The FY2001 Interior Appropriations Act included nearly $2.9
billion in wildfire funding for the FS and BLM, and the FY2002 Act contained $2.24 billion.
For FY2003, in S. 2708 the Senate Appropriations Committee recommended $2.02 billion
in wildfire funding, essentially matching the Administration’s request. The House passed
H.R. 5093 with $2.17 billion for FY2003, and added $700 million for FY2002 firefighting.
Senate consideration of an amendment to add the Administration’s request of $825 million
has stalled. Alternative Senate draft language had been circulated to provide $1.25 billion.
(For more information, see CRS Report RL31306, Interior Appropriations for FY2003:
Interior and Related Agencies.)
Also stalled is Senate consideration of an amendment to the Interior Appropriations bill
that would enact parts of the President’s Healthy Forests Initiative by eliminating
administrative appeals and restricting litigation for up to 10 million acres of fuel treatment.
This is similar to language in the Supplemental Appropriations Act for FY2002 (P.L. 107-
206), which directs completion of certain timber sales and other treatments in the Black Hills
(SD) National Forest without administrative appeals or judicial review. Cloture votes to end
Senate debate were unsuccessful. Congress enacted continuing funding resolutions for
FY2003, which do not contain FY2002 firefighting funds or fuel treatment provisions.
The House has addressed wildfire programs in legislation. Several bills would
accelerate fuel treatments by reducing, restricting, or eliminating public review of and/or
challenges to projects, in limited or expansive circumstances, depending on the bill. (See
H.R. 5214, H.R. 5309, H.R. 5341, H.R. 5358, H.R. 5376, S. 2811, and S. 2920.) One bill,
H.R. 5319, has been the primary focus. After extensive negotiations on a bipartisan version,
the House Resources Committee ordered the bill reported on October 8, 2002.
Energy and Minerals (by Marc Humphries and Carol Hardy Vincent)
Energy and Mineral Development on Federal Lands: Background. A key,
controversial issue is whether to increase access to federal lands for energy and mineral
development. The BLM administers the Mineral Leasing Act of 1920 which governs the
leasing of onshore oil and gas, coal, and several other minerals on the federal lands. A BLM
study determined that of the roughly 700 million acres of federal minerals, 1) about 165
million acres have been withdrawn from mineral entry, leasing, and sale, subject to valid
existing rights, and 2) mineral development on another 182 million acres is subject to the
approval of the surface management agency, and must not be in conflict with land
designations and plans.
The U.S. Geological Survey (USGS) estimates that significant oil and gas resources
exist below some federal lands now off-limits, particularly in the Rocky Mountain region.
The industry contends that entry into these areas is necessary to ensure future domestic oil
and gas supplies. Opponents to opening these areas maintain that there are environmental
risks, restricted lands are environmentally sensitive or unique, and that the United States
could meet its energy needs with increased exploration elsewhere and energy conservation.
Coal provides a sizable share of U.S. energy supply and accounts for about half of U.S.
electricity needs. Over the past 20 years, the government has emphasized developing clean
coal technologies (CCT). However, with environmental restrictions on coal emissions and
cheaper natural gas, funding for CCT has been deferred or rescinded over the past 5 years.
CRS-7

---

IB10076
10-28-02
Administrative Actions. The underlying concern for the Administration is how to
best increase U.S. domestic oil and gas supplies. Proposals from the National Energy Policy
Development (NEPD) Group, established by President Bush and led by Vice President
Cheney, recommended that the President direct the Secretary of the Interior to identify and
eliminate impediments to oil and gas exploration and development on federal land. The
Administration also is examining land status and reviewing public lands withdrawals. The
BLM, USGS, and Department of Energy (DOE) are working to assess the oil and gas
reserves and resources on federal lands. In addition, the Bush Administration wants to revive
the CCT programs under its Clean Coal Power Initiative (CCPI), and is seeking $2 billion
over the next 10 years (FY2002-FY2011). There is broad bipartisan support in the House
and Senate for CCPI.
Legislative Activity. A broad House-passed energy bill (H.R. 4) repeals the
prohibition on leasing in the coastal plain of ANWR but ensures that not more than 2,000
acres of surface area of the federal lands are used for development. H.R. 4 also is consistent
with the NEPD energy report and authorizes spending for coal and related technologies
programs for FY2002-FY2004. It also includes relief for marginal onshore oil and gas. The
Senate passed version of H.R. 4 does not include language to open ANWR to oil and gas
drilling, one of the dominant issues. Like the House version, it instructs the Secretary of the
Interior to ensure “timely action” on applications for oil and gas leases and drilling on federal
lands. It supports expeditious environmental reviews on public lands available for oil and
gas development and increases funding for fossil energy research and development.
Energy bill conferees are negotiating a compromise, but reaching agreement remains
uncertain because of controversial issues including opening ANWR to development,
reforming electricity regulations, and providing energy tax incentives. The fate of H.R. 4
may be determined in a “lame duck” session following the November 5th elections.
There is a greater push from the energy industries to increase federal land available to
oil and gas development, particularly in the Rocky Mountain region. Some regional and
national organizations, including ranchers and environmentalists, have expressed concern
with, and opposition to, any increased federal leasing in the West because of its potential
impacts to wildlife, water quality, and other land uses. Other bills (H.R. 3538 and S. 1808)
seek to “reduce impediments” for oil and gas development on federal lands.
Royalty in-kind (RIK) provisions are contained in H.R. 4 as passed by the House, and
the Senate-passed version would require a tax and royalty policy review to ascertain its
impact on oil and gas development. The issue has been the appropriate valuation for oil and
gas produced on federal land. Critics charge that the Minerals Management Service (MMS)
has been collecting less than fair market value in oil and gas royalties as a result of
undervaluation of production on federal leases. The MMS attempted to correct the situation
through the issuance, on March 15, 2000, of new rules for establishing a price for calculating
the government’s royalty share. The oil industry trade representative, the American
Petroleum Institute, has filed a lawsuit to overturn the new valuation rule. Taking federal oil
and gas royalties in-kind has been proposed as a method to solve the oil valuation issue and
several RIK pilot studies are underway. The federal government would receive its royalty
payment in physical quantities of oil or gas then sell its quantities for a market-based price.
The Bush Administration will use the RIK program to acquire 22 million barrels of oil from
the Gulf of Mexico for the Strategic Petroleum Reserve.
CRS-8

---

IB10076
10-28-02
Hardrock Mining and Millsites: Background. In addition to access to federal
lands for energy development, two recent issues have been controversial. One is the
regulations governing hardrock mining operations (43 CFR 3809). The Clinton
Administration changed the regulations, seeking to enhance the agency’s ability to prevent
“unnecessary or undue degradation” of public land resources from mining operations. The
regulations authorized the BLM to deny mining operations if the result were “substantial
irreparable harm” to significant resources, and made mining operators more responsible for
reclaiming mined lands. The mining industry asserted that the regulations were unlawful,
impeded mining operations, and duplicated some existing federal and state laws. The Bush
Administration has revised these regulations. (See below.)
A second issue involves mining millsites. Under the General Mining Law of 1872, the
holder of a mining claim has the right to claim and patent nonmineral, noncontiguous lands
to mill and process ore—millsites—from mining claims on federal lands. At issue is whether
the language in the 1872 statute allows only one millsite (of no more than five acres) or
multiple millsites per mining claim. The Clinton Administration decided that only one
millsite is allowed per claim. Congress, and later the Bush Administration, essentially
exempted on-going mining operations from this decision. The Bush Administration is
drafting a new opinion. (For information on other mining legislation, see CRS Issue Brief
IB89130.)
Administrative Actions. After a decade of review, the Clinton Administration
revised the hardrock mining regulations, effective on January 20, 2001. The Bush
Administration subsequently revised these rules, taking a multi-tiered approach. First, on
June 15, 2001, BLM issued a final rule that changed the dates by which financial guarantee
requirements would become effective (66 Fed. Reg. 32571). Then, on October 30, 2001 (66
Fed. Reg. 54834), the BLM published a final hard rock mining rule, effective December 31,
2001. The final rule eliminates some of the most controversial Clinton changes, primarily
the part on unnecessary and undue degradation of BLM lands that permitted BLM to stop
mining operations that would cause substantial irreparable harm to significant resources that
could not be effectively mitigated. Environmental groups have challenged the Bush
Administration regulations in court claiming they fail to prevent undue land degradation.
Also on October 30, 2001 (66 Fed. Reg. 54863), BLM published a proposed rule that
proposed many of the changes that were just put in place in the final rule published the same
day. According to BLM, this unusual procedure was intended to both achieve some stability
by issuing changes in final form, but then also issuing them as proposals in order to gather
additional public comments. The proposed rule also contains several technical, clerical, and
other modifications. A decision on this issue is under review.
With respect to millsites, on November 7, 1997, a legal opinion of the Solicitor of the
Department of the Interior stated that each mining claim could use no more than five acres
for activities associated with mining (i.e., for “millsites”). This opinion affects many modern
mining operations, such as heap-leach mines for gold, which typically require large tracks
of land beyond that of the mining claim for mining-related purposes, including disposal of
waste rock. Critics charged that this opinion was a new interpretation of the Mining Law,
inconsistent with agency practice, and an indirect way of reforming the 1872 Mining Law.
Supporters assert that it is based both in law and practice, and necessary because the Mining
Law is anachronistic and lacks tough environmental protections.
CRS-9

---

IB10076
10-28-02
On September 28, 2001, the Department of the Interior instructed the BLM not to apply
the millsite opinion to mines with plans of operation approved before November 29, 1999,
operations with plans submitted prior to the Solicitor’s November 7, 1997 opinion, and
patent applications grandfathered as part of the 1995 mining patent moratorium. The
Department simultaneously tasked its Solicitor (under President Bush) to review the 1997
millsite opinion. These actions came as a two-year similar legislative exemption from the
Solicitor’s 1997 opinion was due to expire. Currently, a new millsite opinion has been
drafted, but has not received final approval. Its contents have not been publicly disclosed.
Legislative Activity. The millsite issue and hardrock mining regulations have been
addressed in recent Interior appropriations laws. In the FY2000 law, Congress provided a
two-year exemption from the Solicitor’s millsite opinion for mines with approved plans of
operation, operations with plans submitted prior to the Solicitor’s opinion, and patent
applications grandfathered as part of the 1995 mining patent moratorium. Provisions of the
FY2000 and FY2001 laws prohibited the Secretary of the Interior from using funds to revise
the hardrock mining regulations except to make changes “not inconsistent” with law and the
recommendations contained in a National Research Council (NRC) report entitled “Hardrock
Mining on Federal Lands.” Under President Clinton, the Department interpreted this as
allowing the regulations to include subjects not addressed in the NRC report, provided its
recommendations were not directly contradicted. This interpretation was controversial in
Congress. The Bush Administration’s final rule retained some provisions not specifically
addressed by the NRC recommendations. Comprehensive mining law reform legislation
(H.R. 4748), which was introduced May 16, 2002, contains surface management provisions
that require a reclamation plan and financial guarantees for cleanup of mine activities.
Federal Land Acquisition (by Jeffrey Zinn)
Background. The Land and Water Conservation Fund (LWCF) is the principle
source of funding for land acquisition by the four major federal land management agencies.
LWCF includes a matching grant program to assist states in acquiring and developing
recreational sites and facilities. It accumulates $900 million annually, mostly from offshore
oil and gas revenues; money becomes available only if Congress appropriates it. The
unappropriated balance in the general treasury may be used for other purposes. Of the $25.4
billion LWCF accumulated through FY2001, Congress appropriated $12.5 billion to LWCF.
The 107th Congress is considering three policy issues related to LWCF. One issue is the
level of annual appropriations and whether to make the appropriation permanent. Some
interests are seeking full annual funding at $900 million and permanent appropriations to
bypass the annual requests and congressional consideration. The second issue is deciding
which lands federal agencies should acquire with LWCF funds. Currently, federal agencies
propose acquisitions in their annual budget requests, and Congress earmarks most of the
funds for specified acquisitions. The agencies typically can identify more potential
acquisitions than the appropriations would fund. The agencies and Congress do not similarly
direct the states as to how to spend their LWCF state grants. A final issue is spending LWCF
funds on federal purposes other than land acquisition, which began in FY1998 and has
involved substantial sums in some years.
Administrative Actions. For FY2003, the Bush Administration requested $333
million for federal land acquisition: $86 million for NPS, $45 million for BLM, $71 million
CRS-10

---

IB10076
10-28-02
for FWS, and $131 million for FS. The Administration also sought $200 million for the state
grant program, of which $50 million would have been for a proposed Cooperative
Conservation Initiative. In FY2002, in its first budget, the Bush Administration requested
$900 million for LWCF, a portion of which would have been spent for other purposes.
Congress provided $573 million for LWCF, including $144 million for state grants. In
earlier years, the Clinton Administration had proposed increases for many natural resource
programs, including LWCF. For FY2001, the Clinton Administration sought $600 million
for LWCF, while Congress provided $548 million, including $90 million for state grants.
For FY2000, the Clinton Administration requested $560 million for LWCF, and Congress
appropriated $450 million, including $41 million for state grants. Beginning in FY1998,
Congress also appropriated from LWCF funds for purposes other than federal land
acquisition and state-side grants.
Legislative Activity. For FY2003, the House-passed Interior appropriations bill
(H.R. 5093) provides $374 million for federal land acquisition and $154 million for state
grants. The appropriations bill reported by the Senate Committee on Appropriations (S.
2708) provides $380 million for federal land acquisition and $144 million for state grants.
Neither bill funds the Administration’s proposed Cooperative Conservation Initiative.

The Conservation and Reinvestment Act (CARA) has been reintroduced in the 107th
Congress (H.R. 701), with provisions nearly identical to the House-passed version from the
106th Congress. It would create the CARA Fund, funding LWCF at $900 million annually
—$450 million for federal land acquisition and $450 million for state grants. The bill has
245 cosponsors, including the leaders of the House Resources Committee. That Committee
reported the bill on October 16, 2002 (S. Rept. 107-758 part 1), following a 15-month delay
since ordering the bill reported on July 25, 2001. Following the report of the Resources
Committee, H.R. 701 was sequentially referred to the Committee on Agriculture and the
Committee on the Budget for consideration of portions within their jurisdictions. These
Committees are to report by November 22, 2002. Comparable bills have been introduced
by Senator Murkowski (S. 1318) and Senator Landrieu (S. 1328).
Recreational Fee Demonstration Program (by Carol Hardy Vincent)
Background. The Recreational Fee Demonstration Program (“Fee Demo”) was
authorized to begin in FY1996 as a 3-year trial to allow the four major federal land
management agencies (BLM, FS, the National Park Service (NPS), and U.S. Fish and
Wildlife Service) to test the feasibility of recovering some of the costs of operating and
maintaining federal recreation sites through new fees. It has been extended and revised by
Congress. Currently, each agency can establish any number of fee projects and retain and
spend all the revenue collected, with at least 80% retained at the site where collected. The
agencies have broad discretion in using the revenues.
The agencies generally support the Fee Demo program because of the discretion they
have in determining fee sites, setting fees, and using the revenues. The agencies assert that
users overwhelmingly support the new fees, and some supporters would like the program
extended to other agencies. Critics counter that fees restrict access, result in “double
taxation” of the recreating public, and may not be needed given recent increases in
appropriations for public land management. Most of the current concern has focused on the
CRS-11

---

IB10076
10-28-02
FS’s Fee Demo program, with assertions that the fees are confusing, commercialize public
lands, and are unfair if improved facilities are lacking.
Administrative Actions. The Bush Administration’s FY2003 budget proposes
making the Fee Demo Program permanent, and states an intent to draft such legislation. The
agencies in the program have collaborated on developing related legislation. Last year, in
his FY2002 budget, the President proposed extending the program through FY2006.
Legislative Activity. Legislation has been introduced to establish a permanent
recreation fee program. S. 1011 creates a permanent program with between 60% and 80%
of the funds retained at the collecting site. S. 2607 authorizes the collection of fees on certain
lands administered by DOI and DOA, prohibits other recreation fees from being collected
on these lands, lists circumstances when fees may not be charged, and authorizes between
60% and 80% of funds to be retained at the collecting site. S. 2473 establishes a permanent
fee program only for the Park Service, with 60%-90% of funds retained at the collecting site.
Other measures would remove FS lands from the Fee Demo program (H.R. 908 and H.R.
1139), or extend the program to the Bureau of Reclamation and the Army Corps of Engineers
(H.R. 1013 and S. 531). S. 2015 would exempt residents of counties containing Fee Demo
program areas from paying fees.
The FY2002 Interior and Related Agencies Appropriations Act (P.L. 107-63) extended
the Fee Demo Program for 2 years—through September 30, 2004, for collection and
September 30, 2007, for expenditures. The law also gives the agencies discretion to
determine the number of fee sites. (For more information, see CRS Report IB10093,
National Park Management and Recreation.)
A November 2001 report by the General Accounting Office asserts that agencies in the
program could be more innovative in setting and collecting fees to make fee payment easier
for visitors; improve coordination to eliminate inconsistent and confusing fees; and establish
performance measures to facilitate an evaluation of the program. It finds that Congress may
wish modify the requirement that 80% of the revenues be kept at the collecting site, to direct
more funds to agency-wide priorities and sites with little or no collections.
LEGISLATION
National Monuments and the Antiquities Act
P.L. 107-213, H.R. 601
Authorizes continued hunting by creating a national preserve in the expanded portion
of Craters of the Moon National Monument. Signed into law August 21, 2002.
H.R. 1334 (Gilman)/S. 689 (Schumer)
The Governors Island Preservation Act guides management and transfers Governors
Island National Monument from General Services Administration to Department of the
Interior. H.R. 1334 introduced April 3, 2001, and referred to Committees on Resources and
on Government Reform. Senate Energy and Natural Resources subcommittee held hearings
on S. 689 on July 31, 2001.
CRS-12

---

IB10076
10-28-02
H.R. 2114 (Simpson)
Amends the Antiquities Act of 1906 to make presidential designations of monuments
exceeding 50,000 acres ineffective unless approved by Congress within 2 years, establishes
a process for public input in presidential monument designations, and requires monument
management plans developed in accordance with the National Environmental Policy Act of
1969. House Resources reported (amended), and placed on calendar, on April 15, 2002.
H.R. 4076 (Stump)
The Agua Fria National Monument Technical Corrections Act contains provisions on
boundary adjustments to the monument, allowed land uses, and development of a
management plan. Introduced March 20, 2002; referred to Committee on Resources.
H.R. 4759 (Nadler)
Ratifies establishment of Governors Island National Monument and prohibit its sale.
Introduced May 16, 2002; referred to Committees on Resources and on Government Reform.
H.R. 4822 (Rehberg)
Removes private lands from the boundaries of the Upper Missouri River Breaks
National Monument. Committee on Resources reported; place on House calendar on
September 5, 2002.
Roadless Areas
H.R. 4865 (Inslee)
Requires management of inventoried national forest roadless areas under the Clinton
Administration’s final rule. Introduced June 5, 2002; referred to Committees on Agriculture
and on Resources.
S. 2790 (Cantwell)
The Roadless Area Conservation Act generally prohibits road construction and timber
harvesting in inventoried roadless areas. Introduced July 25, 2002; referred to Committee
on Energy and Natural Resources.
Wildfire Protection
H.R. 5214 (Rehberg)
The National Forest Fire Prevention Act specifies criteria for timber sales to proceed
without environmental analysis and without administrative appeals or judicial review.
Introduced July 25, 2002; referred to Committees on Agriculture and on Resources.
Committee on Resources held hearing on September 5, 2002.
H.R. 5309 (Shadegg)
The Wildfire Prevention and Forest Health Protection Act authorizes FS Regional
Foresters to exempt certain types of projects from environmental analysis and administrative
appeals or judicial review. Introduced July 26, 2002; referred to Committees on Agriculture
and on Resources. Committee on Resources held hearing on September 5, 2002.
H.R. 5319 (McInnis)
The Healthy Forests Reform Act directs expedited environmental review, and limits
administrative appeals and judicial review for certain types of projects; also authorizes
CRS-13

---

IB10076
10-28-02
“goods-for-services” stewardship contracting, where timber purchasers can be required to
perform additional stewardship services as part of the timber sale contract. Introduced
September 4, 2002; referred to Committees on Resources and on Agriculture. Ordered
reported by Committee on Resources on October 8, 2002.
H.R. 5341 (Taylor, C.)
The National Forest Fire Fuels Reduction Act specifies criteria for timber sales to
proceed without environmental analysis or administrative appeals, and with limits on judicial
review. Introduced September 5, 2002; referred to Committees on Agriculture and on
Resources.
H.R. 5358 (Inslee)
The Community Protection Against Wildfire Act directs that 85% of fuel reduction
funds be spent on projects in the wildland-urban interface, authorizes $1.5 billion over 5
years for grants for community and private land wildfire assistance, restricts the size of trees
cut in fuel reduction projects, and authorizes “forest restoration and value-added centers.”
Introduced September 10, 2002; referred to Committees on Resources and on Agriculture.
H.R. 5376 (Combest)
Seeks to enhance the authorities of the Secretary of Agriculture and Secretary of the
Interior to reduce catastrophic wildfire threats to communities and the environment.
Introduced September 12, 2002; referred to Committees on Resources and on Agriculture.
S. 2811 (Enzi)
The Emergency Forest Rescue Act directs the Secretaries of Agriculture and of the
Interior to identify emergency mitigation areas and to use alternative arrangements approved
by the Council on Environmental Quality to expedite environmental analysis; the projects
are exempt from administrative appeals. Introduced July 26, 2002; referred to Committee
on Agriculture, Nutrition, and Forestry.
S. 2920 (Baucus)
Directs exemptions and expedited procedures for certain types of fuels reduction
projects, without administrative appeals. Introduced September 10, 2002; referred to
Committee on Agriculture, Nutrition, and Forestry.
Energy and Minerals
H.R. 4 (Tauzin)
Seeks to enhance energy conservation, research, and development; includes resource
assessments for federal lands and other modifications in energy production on federal lands.
Conference held June, July, September, and October 2002.
H.R. 3538 (Cubin)
Amends the Mineral Leasing Act of 1920 to reduce impediments to development of
natural gas and oil resources on federal lands. Excludes producing acreage from limitations
on taking, holding, owning, and controlling federal oil and gas leases. Introduced December
19, 2001; referred to Committee on Resources.
CRS-14

---

IB10076
10-28-02
H.R. 4748 (Rahall)
Comprehensive mining law reform, with surface management provisions that require
a reclamation plan and financial guarantees for cleanup. Introduced May 16, 2002; referred
to Committee on Resources.
S. 388 (Murkowski)
Seeks to protect U.S. energy and security and decrease America’s dependency on
foreign oil to 50% by the year 2011; includes the Federal Oil and Gas Lease Management
Improvement Act of 2000 [sic] to allow state administration of leases on federal lands.
Committee on Energy and Natural Resources held hearings in May, June, and July 2001.
S. 597 (Bingaman)
Seeks to provide for a comprehensive and balanced energy policy. Marked up by
Energy and Natural Resources on August 2, 2001.
S. 1766 (Daschle)
A comprehensive energy bill to provide for the energy security of the Nation and for
other purposes. Introduced December 5, 2001; placed on calendar on December 6, 2001.
S. 1808 (Thomas)
Amends the Mineral Leasing Act of 1920 to encourage the development of natural gas
and oil resources on federal lands; exempts certain oil or gas leases from the statutory
acreage limitation. (H.R. 3538 has identical title, similar purpose, and different language.)
Introduced December 12, 2001; referred to Committee on Energy and Natural Resources.
Federal Land Acquisition
H.R. 701 (Young, D.)
Conservation and Reinvestment Act (CARA) authorizes use of royalties from Outer
Continental Shelf oil and gas production to establish a fund for land acquisition, protection,
and restoration. On October 16, 2002, Committee on Resources reported, and sequentially
referred to Committees on Agriculture and the Budget.
S. 1318 (Murkowski)
Provides coastal impact assistance to state and local governments and establishes a fund
for conservation and recreation. Introduced August 2, 2001; referred to Committee on
Energy and Natural Resources.
S. 1328 (Landrieu)
Entitled the Conservation and Reinvestment Act. Introduced August 2, 2001; referred
to Committee on Energy and Natural Resources.
Recreational Fee Demonstration Program
H.R. 908 (Capps)
Removes FS from the Fee Demo Program. Introduced March 7, 2001; referred to
Committees on Agriculture and on Resources.
CRS-15

---

IB10076
10-28-02
H.R. 1013 (Deal)/S. 531 (Lincoln)
Includes an extension of the Fee Demo Program to the Bureau of Reclamation and
Army Corps of Engineers. Introduced March 14, 2001. H.R. 1013 referred to Committees
on Resources, on Transportation and Infrastructure, and on Agriculture. S. 531 referred to
Committee on Energy and Natural Resources.
H.R. 1139 (Bono)
Removes FS from the Fee Demo Program. Introduced March 21, 2001; referred to the
Committees on Resources and on Agriculture.
S. 1011 (Graham)
National Parks Stewardship Act includes establishing a permanent recreation fee
program, with between 60% and 80% of receipts retained at the collecting site. Introduced
June 11, 2001; referred to Committee on Energy and Natural Resources.
S. 2015 (Smith, Bob)
Exempts residents of counties containing Recreational Fee Demonstration Program
areas from paying program fees. Introduced March 14, 2002; referred to Committee on
Energy and Natural Resources.
S. 2607 (Bingaman)
Establishes a permanent recreation fee program. Introduced June 11, 2002; Committee
on Energy and Natural Resources held hearings on June 19, 2002.
FOR ADDITIONAL READING
CRS Report RS20471, The Conservation Spending Category: Funding Natural Resource
Protection, by Jeffrey A. Zinn.
CRS Report 98-794 ENR, Federal Recreation Fees: Demonstration Program, by Rosemary
Mazaika.
CRS Report RL30755, Forest Fire Protection, by Ross W. Gorte.
CRS Issue Brief IB10015, Managing Growth and Related Issues in the 107th Congress, by
Jeffrey Zinn.
CRS Issue Brief IB89130, Mining on Federal Lands, by Marc Humphries.
CRS Report RL30647, The National Forest System Roadless Areas Initiative, by Pamela
Baldwin.
CRS Report RS20902, National Monument Issues, by Carol Hardy Vincent.
GAO-02-10, Recreation Fees: Management Improvements Can Help the Demonstration
Program Enhance Visitor Services (Washington, DC: November 2001).
CRS-16

---