Order Code IB10076
Issue Brief for Congress
Received through the CRS Web
Public (BLM) Lands and
National Forests
Updated April 4, 2003
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
Wildfire Protection
Background
Administrative Actions
Legislative Activity
Energy Resources
Background
Administrative Actions
Legislative Activity
Roadless Areas of the National Forest System
Background
Administrative Actions
Legislative Activity
R.S. 2477: Rights-of-Way Across Public Lands
Background
Administrative Actions
Legislative Activity
National Monuments and the Antiquities Act
Background
Administrative Actions
Legislative Activity
Hardrock Mining and Millsites
Background
Administrative Actions
Legislative Activity
FOR ADDITIONAL READING

---

IB10076
04-04-03
Public (BLM) Lands and National Forests
SUMMARY
The 108th Congress is likely to address
reversed the decision. The Bush Administra-
issues related to the public lands managed by
tion has issued interim direction.
the Bureau of Land Management (BLM) and
the national forests managed by the U.S.
R.S. 2477 Rights of Way. Revised
Forest Service (FS). A key issue is how to
Statute (R.S.) 2477 granted rights of way for
balance the protection and development of
highways across unreserved federal lands.
these lands. Questions relate to how to protect
State law largely governs the validity of high-
federal lands from catastrophic wildfires and
ways under R.S. 2477, but the extent of valid
whether to preserve undisturbed roadless
rights of way is not clear in some states. This
areas. Other questions relate to whether and
might allow unrestricted public access across
how to increase access to federal lands for
(and to) federal lands, including sensitive
energy and mineral development, and whether
lands and potential wilderness. Congress
there are sufficient environmental safeguards
prohibited R.S. 2477 regulations in 1996, but
for mining operations. Still other issues
the Bush Administration recently finalized
involve whether to limit presidential authority
regulations on “disclaimers of interest” for
for creating national monuments and how to
clearing title to R.S. 2477 highway easements.
determine use of monument lands.
National Monuments and the
Wildfire Protection. Threats from wild-
Antiquities Act. The Antiquities Act of 1906
fires seem to have become more severe. The
authorizes the President to establish national
Administration’s proposed a Healthy Forests
monuments on federal lands. Congress has
Initiative to protect communities from wild-
considered limiting the authority of the Presi-
fires by reducing fuels. Numerous bills were
dent and amending particular monuments.
introduced in the 107th Congress on this issue,
Governors Island National Monument was
but none was enacted; however, one provision
conveyed to the National Trust for Historic
was included in the FY2003 Omnibus Appro-
Preservation and then back to the government;
priations Act. Other aspects are being pursued
the President subsequently reestablished the
through proposed regulatory changes.
Monument. The Administration also is devel-
oping management plans for some new monu-
Energy Resources. The Administration
ments.
and the 108th Congress continue to examine
whether to increase access to federal lands for
Hardrock Mining and Millsites. Two
energy and mineral development. The 107th
mineral issues have been controversial re-
Congress passed major energy legislation but
cently. The first is whether to clarify the
the differences could not be resolved in
General Mining Law of 1872 regarding the
conference.
number and size of millsites per mining claim.
Currently, the Department of the Interior is
Roadless Areas of the National Forest
drafting a new opinion on this issue. The
System. The Clinton Administration issued
second issue relates to the Bush Administra-
rules that limit road construction and timber
tion’s revisions of the hard rock mining regu-
cutting in 58.5 million acres of roadless areas
lations finalized by the Clinton Administra-
in the National Forest System. Implementa-
tion.
tion was enjoined, but the appellate court
Congressional Research Service ˜ The Library of Congress

---

IB10076
04-04-03
MOST RECENT DEVELOPMENTS
House and Senate committees are marking up energy bill drafts. The House draft
includes provisions that would lead to demonstration technologies for oil and gas recovery
in unproven, unconventional reservoirs on public and private lands. The Senate draft would
require further analysis of resource assessments, land withdrawals, and impediments to oil
and gas development on public lands. In other energy areas, the Interior Department is
drafting a new opinion regarding the number and size of millsites per mining claim and is
reviewing a decision on a proposed hardrock mining rule.
On January 31, 2003, Governors Island National Monument was conveyed to the
National Trust for Historic Preservation and then back to the government. The President
subsequently reestablished the Monument on February 7, 2003, with approximately 22 acres.
On December 12, 2002, the Ninth Circuit Court of Appeals reversed the district court’s
ruling on its preliminary injunction to prevent implementation of the Clinton regulations to
protect roadless areas; Idaho has requested a rehearing and en banc review of the decision.
On January 6, 2003, the Administration finalized regulations on “disclaimers of interest” to
clear title to R.S. 2477 highway easements, possibly conflicting with a congressional
prohibition on R.S. 2477 regulations unless explicitly authorized by law.
The lack of wildfire legislation in the 107th Congress led the Administration to propose
categorical exclusions from the National Environmental Policy Act (NEPA) for fuel projects
on December 16, 2002, and new administrative appeals regulations on December 18.
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 BLM 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
CRS-1

---

IB10076
04-04-03
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
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, identifies the
purposes for which the lands are to be managed, allows protection of areas as wilderness, and
directs “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.
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.
(For FS and BLM wilderness issues, see CRS Report RL31447.)
Scope of Issue Brief
Many issues affecting BLM and FS lands are similar, and the missions of the agencies
are nearly identical. By law, the BLM and FS lands are to be administered for multiple uses,
CRS-2

---

IB10076
04-04-03
albeit slightly different uses are specified. In practice, the land uses considered by the
agencies include recreation, range, timber, minerals, watershed, wildlife 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 likely to be
examined during the 108th Congress. One issue not discussed in depth in this brief is land
acquisition. The principal source of land acquisition funding for BLM and the Forest Service
(and the Park Service and Fish and Wildlife Service as well) is the Land and Water
Conservation Fund (LWCF). Under current law, the fund is authorized at $900 million
annually, but only that portion of the total that is appropriated is available to the federal
agencies. Most of the appropriations are earmarked to specific units of public land; in some
instances congressional priorities agree with agency priorities, and in others, they do not.
Recent Congresses have provided generally increasing amounts under this funding process.
In addition, legislation has been introduced in the prior 3 Congresses to fully appropriate the
fund annually and to make it mandatory funding, removing that discretion from the
appropriators. One version of this legislation, known as CARA, passed the House in the
106th Congress, and a slightly different version was reported by the House Resources
Committee in the 107th Congress. Action in the 108th Congress seems less likely, however,
as the projection of a surplus has been replaced by a deficit, and as federal spending priorities
change in the aftermath of 9/11. It is also unclear how these events will affect future funding
levels under the current system. For more information, see CRS Issue Brief IB10015 and
CRS Report RL30444.
Another issue not examined in this brief is federal land management planning. This is
largely an administrative issue, with new Forest Service planning regulations promulgated
by the Clinton Administration on November 9, 2000, and further new regulations proposed
by the Bush Administration on December 6, 2002. The Clinton regulations would have
established ecological sustainability as the priority for managing national forests, and were
to be implemented over several years. The Bush proposal responded to concerns about the
feasibility of the Clinton regulations with revisions seeking to simplify planning and to lead
to decisions made closer to the users, but without ecological sustainability as the main
priority and with other changes that some assert will reduce public participation in and
review of agency decisions.
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 IB10094. For information on related issues, see the CRS web page at
[http://www.crs.gov/].
CRS-3

---

IB10076
04-04-03
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. Many argue that the threat of severe wildfires has 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., selectively logged or containing 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 environmental
studies, administrative appeals, and litigation. However, many environmentalists fear that
“streamlining” fuel reduction projects could enable timber companies to increase logging on
federal lands and that such projects might not receive proper environmental review.
Administrative Actions. In August 2002, the Bush Administration proposed a
Healthy Forests Initiative to improve wildfire protection. The legislative proposal
accompanying this initiative proposed a fuel reduction program to reduce the buildup of
hazardous fuels. The program would have given priority to the “wildland-urban interface,”
municipal watersheds, and areas affected by insects and diseases. The proposal sought to
expedite consultations on endangered species and establish a collaborative process for public
involvement. However, it would not have allowed the public to request an administrative
review of project proposals, would have constrained judicial review, and would have
prohibited restraining orders and injunctions. It also directed the courts to consider the effect
of not reducing 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. In addition,
the proposal would have authorized stewardship (goods-for-services) contracts, essentially
allowing the agencies to use timber, instead of cash, to pay contractors for various land
management services, e.g., thinning, noxious weed control, and road and trail maintenance.
Because such legislation was not enacted in the 107th Congress, the Administration
proposed two changes in the rules and regulations to facilitate fuel reduction. One is a
proposal (67 Fed. Reg. 77038, Dec. 16, 2002) to add two new categories of actions to be
excluded from NEPA analysis and documentation: fuel reduction and post-fire rehabilitation
activities. These categorical exclusions would not be allowed in wilderness or wilderness
study areas. Projects could not include herbicide or pesticide use or new permanent road
construction, but the exclusions could encompass timber sales if fuel reduction were the
primary purpose of the sale.
The second change is a proposal to revise the administrative appeals process (67 Fed.
Reg. 77451, Dec. 18, 2002). Among the many changes is a clarification that actions in
emergency situations are to be implemented immediately, without stays of action during the
appeal. The proposal expands emergency situations to include those “that would result in
substantial loss of economic value to the Government if implementation of the proposed
action were delayed,” while deleting examples of emergency situations. It also would
exclude notice and opportunity for the public to comment on or to appeal actions
categorically excluded from NEPA, such as the fuel reduction activities discussed above.
These proposed changes must be read in conjunction with other proposed regulatory
changes to understand the potential consequences for fuel reduction, public involvement, and
CRS-4

---

IB10076
04-04-03
environmental impacts. New forest planning regulations were proposed on December 6,
2002 (67 Fed. Reg. 72770)1, and new categorical exclusions were proposed for small timber
harvesting projects on January 8, 2003 (68 Fed. Reg. 1026). The total impact of these
proposals, if finalized, seems to be greater discretion for the Forest Service to act without
environmental studies and with fewer opportunities for the public to comment on or to
administratively appeal those actions.
Legislative Activity. Numerous bills were introduced late in the 107th Congress to
address the wildfire threats on federal lands. Bills focused on several issues — on
environmental concerns, especially NEPA analysis, endangered species consultation, and
large tree retention; public involvement and challenges to decisions, including public
participation under NEPA, administrative appeals, and judicial challenges; priorities for
action, such as the wildland-urban interface and municipal watersheds; and limitations for
action, such as total acreage treated and areas excluded from possible action. (See CRS
Report RL31679, Wildfire Protection: Issues in the 107th Congress.) None was enacted, and
various proposals seem likely to be reintroduced in the 108th Congress. Congress also
continues to address wildfire protection through annual agency appropriations. The FY2003
Consolidated Appropriations Act (P.L. 108-7) included appropriations for wildfire
management for FY2003 and supplemental funds for fire fighting actions in FY2002. (For
more information, see CRS Report RL31306, Interior Appropriations for FY2003: Interior
and Related Agencies.) It also contained a section authorizing unlimited stewardship (goods-
for-services) contracting for the FS and BLM through 2013.
Energy Resources (by Marc Humphries)
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). Although environmental restrictions have led to rescissions and
deferrals for CCT programs over the past 5 years, the Bush Administration has been
1 See CRS congressional memorandum, Analysis and Critique of the Forest Service Planning
Regulations Proposed on December 6, 2002, by Pamela Baldwin (January 3, 2003), 21 p.
CRS-5

---

IB10076
04-04-03
successful in getting funding for its new Clean Coal Power Initiative (CCPI). The CCPI,
modeled after the CCT, focuses on improved performance of coal-fired power generators.
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 land withdrawals. The
BLM, USGS, and Department of Energy (DOE) continue to assess the oil and gas reserves
and resources on federal lands.
The Bush Administration is reviving the CCT program under its Clean Coal Power
Initiative (CCPI), and is seeking $2 billion over 10 years (FY2002-FY2011). Congress has
supported the Administration by funding the CCPI at $146 million in FY2002 and $150
million in FY2003. The Administration is seeking $130 million in FY2004. Supporters note
that coal resources could be more widely used if the environmental drawbacks could be
reduced. Opponents contend that new technology will not make coal environmentally
acceptable at a competitive cost.
Legislative Activity. The House and Senate passed comprehensive energy legislation
in the 107th Congress (H.R. 4) but the measure stalled in conference. Conferees reached
agreement on several issues but agreement on the most controversial issues—such as
ANWR, reforming electricity regulations, and energy tax incentives—remained elusive.
Passing comprehensive energy legislation is considered a priority in the 108th Congress.
House and Senate committees are currently marking up energy bill drafts. The House draft
includes provisions that would lead to demonstration technologies for oil and gas recovery
in unproven, unconventional reservoirs on public and private lands. The Senate draft would
require further analysis of resource assessments, land withdrawals, and impediments to oil
and gas development on public lands.
Roadless Areas of the National Forest System (by Pamela Baldwin)
Background. In its final months, the Clinton Administration issued several new rules
affecting 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 rules were
intertwined and each part affects the others. On December 6, 2002, the Bush Administration
proposed new rules for the planning process. Congressional and public attention have
focused on roadless areas, and that issue is discussed here. (See CRS Report RL30647.)
Administrative Actions. The Clinton Administration established a new approach
to the management of the approximately 58.5 million acres of NFS inventoried roadless areas
by providing national guidance limiting roads and timber cutting in those areas. These issues
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.
CRS-6

---

IB10076
04-04-03
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.
On May 10, 2001, a U.S. district court judge issued a preliminary injunction postponing
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)). On December
12, 2002, the Ninth Circuit reversed the decision, noting that the district court had wrongfully
concluded the plaintiffs were likely to succeed on the merits and accepted a minimal showing
of irreparable harm, and thus incorrectly issued the injunction. On December 26, 2002, the
State of Idaho filed a motion for a rehearing and en banc review of the decision, but there has
not yet been a decision on this motion.
Following the May, 2001 court injunction, the Bush Administration expanded the
debate over protection of roadless areas. In an advance notice of proposed rulemaking (66
Fed. Reg. 35918), the Forest Service asked for public comment on whether and how to
change the Clinton Administration’s roadless rules. On July 26, 2002, the Administration
published a report on the comments received, but no new roadless rules 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 (66
Fed. Reg. 65796, Dec. 20, 2001) 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 reverses the Clinton
rule by returning decisions on roads and timber activities in roadless areas to the individual
forest planning level. This is also the position taken in the proposed planning regulations.
In addition, the Forest Service has proposed three changes in categorical exclusions to NEPA
compliance: (1) allowing decisionmakers to determine whether the presence of extraordinary
circumstances necessitates an environmental analysis (66 Fed. Reg. 48412, Sept 20, 2001),
(2) adding a categorical exclusion for fuel reduction and fire rehabilitation activities (67 Fed.
Reg. 77038, Dec. 16, 2002), and (3) adding a categorical exclusion for small timber sales (68
Fed. Reg. 1026, Jan 8, 2003). If finalized in their current form, they could allow some
activities in roadless areas without environmental studies, public notice and comment, or
appeals.
Legislative Activity. Congress may consider legislation on forest management in
general or on the roadless areas issue in particular. One bill in the 107th Congress would
have directed management of inventoried roadless areas in accordance with the final rule
promulgated by the Clinton Administration; another would have prohibited road construction
and timber harvesting in inventoried roadless areas. No action occurred on either bill.
R.S. 2477: Rights-of-Way Across Public Lands (by Pamela Baldwin)
Background. In 1866, in an act that became Revised Statute (R.S.) 2477, Congress
granted rights of way across unreserved public lands “for the construction of highways.”
This grant was repealed in the Federal Land Policy and Management Act of 1976 (FLPMA;
P.L. 94-579; 43 U.S.C. 1701, et seq.), but existing rights were protected. What constitutes
construction of highways and whether a qualifying right of way existed in 1976 can be
contentious issues.
CRS-7

---

IB10076
04-04-03
For much of the time between 1866 and 1976, as the West was being settled, state law
largely governed the validity of highways under R.S. 2477, although federal law provides the
parameters of the grants. The laws in many states were clear as to when a public highway
was established and few issues remain; in other states, such as Alaska and Utah, the situation
is less clear. In such states, depending on existing rights and the definitions of “highway”
and “construction,” the public might have broad, unrestricted access across (and to) federal
lands, including sensitive lands and potential wilderness. Thus, the possible existence of
R.S. 2477 rights of way across federal lands can affect the management of those lands and
their suitability as wilderness.
In 1988, the Department of the Interior issued a policy on the subject that defined
certain terms. At the request of Congress, the Department completed a study of R.S. 2477
issues in June 1993, and in August 1994 proposed regulations to process R.S. 2477 claims.
Those regulations met with congressional support and opposition, and led to a prohibition
on using FY1996 funds to promulgate or implement a rule concerning R.S. 2477 rights of
way (P.L. 104-134). Section 108 of the FY1997 Interior Appropriations Act (P.L. 104-208)
states that final regulations pertaining to R.S. 2477 rights of way cannot take effect unless
expressly authorized by an Act of Congress.
In 1997, the Clinton Administration issued a new R.S. 2477 policy that revoked the
1988 policy and changed some of the relevant definitions. However, the Secretary directed
the BLM to defer processing R.S. 2477 claims unless there was a “demonstrated, compelling,
and immediate need to make such determinations,” and the Forest Service has followed suit.
The Administration offered a legislative proposal on R.S. 2477 but no bill was introduced.
Administrative Actions. On January 6, 2003 (68 Fed. Reg. 494), the Bureau of Land
Management finalized changes to its regulations at 43 CFR Part 1864 under which the
agency issues “disclaimers of interest.” A disclaimer functions much as a quit-claim deed
does and clears title to property or interests in property with respect to possible interests of
the United States. The regulations expand those who can apply for a disclaimer to include
states, subdivisions of states, and “creations” of states. It is not clear what entities might be
included in this last group, but it might include special commissions. It is anticipated that
disclaimers will be used to clear title to lands beneath navigable waters and to R.S. 2477
highway rights-of-way. BLM asserts in the explanatory material accompanying the new
regulations that they do not trigger the congressional direction that regulations “pertaining
to” R.S. 2477 are not effective unless authorized by Congress, because the disclaimer
regulations address only the procedures for obtaining disclaimers. Critics note that the BLM
itself indicates an awareness that the newly-broadened process will be used for increased
R.S. 2477 filings and the critics therefore conclude that the regulations violate the
congressional prohibition.
Legislative Activity. Congress has not addressed the issue since 1996. The language
in §108 of the FY1997 Interior Appropriations Act — prohibiting final regulations on R.S.
2477 rights of way without express authorization in an Act of Congress — has been
characterized as permanent law, and thus re-enactment of the provision in subsequent
appropriations acts has been seen as unnecessary. Nonetheless, in light of the new disclaimer
regulations, Congress might again address the issue.
CRS-8

---

IB10076
04-04-03
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.) sometimes 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 has limited the President’s authority to proclaim monuments in
Wyoming and Alaska.
Administrative Actions. President Clinton’s proclamation of 19 new monuments,
and enlargement of 3 others, has been controversial. Controversies have focused on whether
the President should be required to seek congressional, state, or public input or
environmental reviews; the size of the areas and types of resources protected; and restrictions
on land uses that may result. To date courts have upheld the monuments.
On April 24, 2002, the Department of the Interior began the process of developing
management plans for the new DOI monuments. Some observers interpreted this action as
an indication that the Secretary is dropping consideration of significant reductions to
monument sizes. Currently, some monuments are concluding the scoping process,
formulating management options, and issuing draft management plans. Some issues have
involved recreational uses, including off-highway vehicles, and commercial uses, including
grazing and energy development.
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 support the removal of private and state lands from the boundaries of
national monuments. Second, Governors Island National Monument was conveyed to the
National Trust for Historic Preservation and back to the government. The Monument was
“established” again on February 7, 2003 by Proc. 7647 (68 Fed. Reg. 7053, February 11,
2003), although the previous proclamation (from January 19, 2001) was not expressly
repealed. The Monument consists of approximately 22 acres and will be managed by the
Secretary of the Interior. The rest of Governors Island was conveyed to the Governors Island
Preservation and Education Corporation of the State and City of New York. The Monument
lands and the rest of the Island were each conveyed for $1, according to the deeds, which
emphasized the public benefit aspects of the conveyance. However, the deeds also allow
retail development and other uses. Governors Island was required by law to be conveyed,
but at fair market value (P.L. 105-33, § 9101). That value had been estimated by some at
between $300 million and $500 million, but by others as much less because New York
authorities reportedly were opposed to major development.
Legislative Activity. P.L. 108-7, which includes FY2003 funds for Interior and
related agencies, bars funds in the law from being used for energy leasing activities within
the boundaries of presidentially-created national monuments, as they were on January 21,
2001, except where allowed by the presidential proclamations that created monuments. A
similar provision was enacted for FY2002. A 108th Congress bill (H.R. 1629) seeks to
exclude private property from the boundaries of the Upper Missouri River Breaks National
Monument; a similar bill was introduced last Congress.
CRS-9

---

IB10076
04-04-03
In the 107th Congress, several monument-related measures were considered but only one
was enacted—to allow hunting in the expanded portion of the Craters of the Moon National
Monument (P.L. 107-213). Among those considered was a bill to amend the Antiquities Act
of 1906 to make presidential designations of monuments exceeding 50,000 acres ineffective
unless approved by Congress within 2 years. The bill also would have established a process
for input into presidential monument designations, and required monument management
plans to be developed in accordance with the National Environmental Policy Act of 1969.
The Bush Administration testified in support of this bill. Three bills would have governed
management, and transferred management, of Governors Island National Monument.
Another would have modified the boundaries of the Agua Fria National Monument and
governed the monument’s expansion and management.

Hardrock Mining and Millsites (by Marc Humphries)
Background. Two recent mineral issues have been controversial. One is the
regulations governing hardrock mining operations (43 CFR 3809), changed by the Clinton
Administration to enhance the agency’s ability to prevent “unnecessary or undue
degradation” of public land resources from mining operations and to make mining operators
more responsible for reclaiming mined lands. The mining industry asserted that the
regulations were unlawful, impeded mining operations, and duplicated existing federal and
state laws. The Bush Administration has revised these regulations.
A second issue involves mining millsites. At issue is whether the language in the
General Mining Law of 1872 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, exempted on-
going mining operations from this decision. The Bush Administration is drafting a new
opinion. (For information on other mining issues, 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 revised these rules, effective December 31, 2001 (66 Fed. Reg. 54834). 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 new 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. 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
CRS-10

---

IB10076
04-04-03
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.
On September 28, 2001, the Department of the Interior instructed the BLM not to apply
the millsite opinion to on-going mining operations and simultaneously tasked its Solicitor
(under President Bush) to review the 1997 millsite opinion. These actions came as a 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. DOI is not releasing
information regarding its focus, specific contents, or time frame for consideration.
Legislative Activity. The millsite issue and hardrock mining regulations were not
addressed in 107th Congress laws and have not been addressed in 108th Congress bills to date.
LEGISLATION
H.R. 387 (Shadegg)
The Wildfire Prevention and Forest Health Protection Act would authorize Forest
Service Regional Foresters to exempt tree-thinning projects from any provision of law, and
from administrative appeals and judicial review. Introduced January 27, 2003; referred to
Committees on Agriculture and on Resources.
H.R. 504 (Udall, M.)
Helps finance the cleanup of inactive and abandoned mine sites in certain eligible states.
The proposal would establish an interest-bearing Abandoned Minerals Mine Reclamation
Fund. Its revenues would come from a reclamation fee imposed on producers of hardrock
minerals that received a claim or patent under the General Mining Law of 1872. The fee
would be a percentage of the net proceeds from the mine. Introduced January 29, 2003;
referred to Committee on Resources.
H.R. 1042 (Udall, M.)
The Forest Restoration and Fire Risk Reduction Act would authorize a cooperative
program for wildland fire hazard reduction and forest restoration on federal and other lands,
with special procedures for projects meeting the specified conditions. Introduced February
27, 2003; referred to Committees on Agriculture and on Resources.
H.R. 1629 (Rehberg)
Provides that the Upper Missouri River Breaks National Monument does not include
private property within its boundaries. Introduced April 3, 2003; referred to Committee on
Resources.
S. 44 (Feingold)
Amends the Internal Revenue Code to repeal the percentage depletion allowance for
hardrock mines located on land subject to the general mining laws or patented under such
laws. Introduced January 7, 2003; referred to Committee on Finance.
CRS-11

---

IB10076
04-04-03
FOR ADDITIONAL READING
CRS Report RL31096, Bush Energy Policy: Overview of Major Proposals and Legislative
Action, by Robert L. Bamberger and Mark E. Holt, coordinators.
CRS Issue Brief IB10080, Energy Policy: Setting the Stage for the Current Debate, by
Robert L. Bamberger.
CRS Report RS21402, Federal Lands, “Disclaimers of Interest,” and RS2477, by Pamela
Baldwin.
CRS Report RL30755, Forest Fire Protection, by Ross W. Gorte.
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.
CRS Report RL31427, Omnibus Energy Legislation: H.R. 4 Side-by-side Comparison, by
Mark Holt and Carol Glover, coordinators.
CRS Report RL31679, Wildfire Protection: Legislation in the 107th Congress and Issues in
the 108th Congress, by Ross W. Gorte.
CRS-12

---