Order Code IB10076
CRS Issue Brief for Congress
Received through the CRS Web
Public (BLM) Lands and
National Forests
Updated May 9, 2003
Ross W. Gorte and Carol Hardy Vincent, Coordinators
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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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

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Public (BLM) Lands and National Forests
SUMMARY
The 108th Congress confronts an array of
R.S. 2477 Rights of Way. Revised
issues related to the public lands managed by
Statute (R.S.) 2477 granted rights of way for
the Bureau of Land Management (BLM) and
highways across unreserved federal lands, but
the national forests managed by the U.S.
the extent of valid rights of way is not clear in
Forest Service (FS). The Administration also
some states. This statute might allow unre-
continues to address public lands and national
stricted public access across (and to) federal
forests through budgetary, regulatory, and
lands, including sensitive lands and potential
other actions. Several key issues are covered
wilderness. Congress prohibited R.S. 2477
in this report.
regulations in 1996, but the Bush Administra-
tion recently finalized regulations on “dis-
Wildfire Protection. Threats from wild-
claimers of interest” for clearing title to R.S.
fires seem to have become more severe. The
2477 highway easements, and executed a
Administration has proposed a Healthy For-
Memorandum of Understanding with the State
ests Initiative to protect communities from
of Utah to acknowledge and disclaim R.S.
wildfires by reducing fuels. One program to
2477 rights of way in that state.
reduce fuels was enacted in the FY2003 Om-
nibus Appropriations Act. Other options are
National Monuments and the
being pursued through proposed regulations,
Antiquities Act. The Antiquities Act of 1906
and wildfire protection bills have been intro-
authorizes the President to establish national
duced in the 108th Congress. H.R. 1904 was
monuments on federal lands. Congress has
ordered reported by the House Agriculture
considered limiting the authority of the Presi-
Committee on May 8, 2003.
dent and amending particular monuments.
President Bush reestablished Governors Island
Energy Resources. The 107th Congress
National Monument. The Administration also
passed major energy legislation but the differ-
is developing management plans for some
ences could not be resolved. The 108th Con-
new monuments.
gress and the Administration continue to
examine whether and how to increase access
Hardrock Mining and Millsites. Two
to federal lands for energy and mineral devel-
mineral issues have been controversial. One
opment. Major energy policy legislation, with
is whether to clarify the General Mining Law
provisions affecting federal lands, has passed
of 1872 regarding the number and size of
the House and is being considered by the
millsites per mining claim. Currently, the
Senate.
Department of the Interior is drafting a new
opinion on this issue. The second issue relates
Roadless Areas of the National Forest
to the Bush Administration’s revisions of the
System. The Clinton Administration issued
hard rock mining regulations finalized by the
rules that limit road construction and timber
Clinton Administration.
cutting in 58.5 million acres of roadless areas
in the National Forest System. Implementa-
Other Issues. Many other issues affect-
tion was enjoined, but the appellate court
ing federal lands also are of interest. These
reversed the decision. The Bush Administra-
include wilderness, grazing management,
tion is considering new rules and has issued
national forest planning, and land acquisition.
interim direction.

Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
The House passed and the Senate is considering comprehensive energy legislation. The
House bill includes provisions that would lead to demonstration technologies for oil and gas
recovery in unproven, unconventional reservoirs on public and private lands. The Senate
version would require further analyses of resource assessments, land withdrawals, and
impediments to oil and gas development on public lands.
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 requested a rehearing and en banc review of the decision, but
this was denied. 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 Administration has executed a Memorandum of Understanding with the State of
Utah to acknowledge and disclaim R.S. 2477 rights of way in that state.
H.R. 1904, the Healthy Forests Restoration Act of 2003, was ordered reported by the
Committee on Agriculture on May 8, 2003, and is pending before the Committee on
Resources. The Resources Committee marked up a committee print, similar to H.R. 1904,
on April 30.
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.
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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
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.
(See Other Issues, below.)
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
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Clinton Administration’s decision to protect roadless areas not designated as wilderness.
(For wilderness issues, see Other Issues, below, and 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,
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 several issues affecting BLM and FS lands that are of interest to
the 108th 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 IB10111. For information on
related issues, see the CRS web page at [http://www.crs.gov/].
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 project opponents 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 by reducing hazardous fuels. The
program would give priority to the “wildland-urban interface,” municipal watersheds, and
areas affected by insects and diseases. The proposal includes expedited consultations on
endangered species and a collaborative process for public involvement, but would eliminate
public requests for an administrative review of project proposals, constrain judicial review,
and prohibit restraining orders and injunctions. The proposal also includes authorized
stewardship (goods-for-services) contracts, essentially allowing the agencies to use timber,
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instead of cash, to pay contractors for land management services (e.g., thinning, noxious
weed control, and road and trail maintenance).
Because wildfire protection legislation was not enacted in the 107th Congress, the
Administration also proposed two changes in Forest Service 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, in other “extraordinary circumstances,”or if managers
determined that the effects would be significant. 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 proposal is 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
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. Wildfire protection legislation has been introduced in the 108th
Congress. Some measures (e.g., H.R. 387 and H.R. 1621) are substantially the same as 107th
Congress bills. Others focus on narrow aspects of fire protection (e.g., firefighting
equipment availability) or on protecting private lands (e.g., H.R. 1042). On May 8, the
House Committee on Agriculture reported H.R. 1904 — the Healthy Forests Restoration Act
of 2003. The bill would enact many of the proposals in the President’s Healthy Forests
Initiative and also includes provisions on a biomass utilization-fuel reduction grant program,
watershed forestry assistance, insect infestation assessment and treatment, and federal
payments for private forest reserves. The bill is pending before the House Committee on
Resources, although the Resources Committee marked up a committee print quite similar to
H.R. 1904 on April 30, 2003, and is expected to discharge the bill for floor consideration.
Congress also continues to address wildfire protection through appropriations. The
FY2003 Consolidated Appropriations Resolution (P.L. 108-7) included appropriations for
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.
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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. The request
for FS and Interior wildfire management for FY2004 is $2.24 billion. This is down $606
million (-21%) from the $2.85 billion enacted in FY2003 (including the $825 million
supplemental FY2002 funds).
Numerous bills were introduced late in the 107th Congress to address the wildfire threats
on federal lands, focusing on several issues — environmental concerns (e.g., NEPA analysis,
endangered species consultation, and large tree retention); public involvement and challenges
to decisions (e.g., public participation under NEPA, administrative appeals, and judicial
challenges); priorities for action (e.g., the wildland-urban interface and municipal
watersheds); and limitations for action (e.g., total acreage treated and areas excluded from
possible action). However, none was enacted. (See CRS Report RL31679, Wildfire
Protection: Legislation in the 107th Congress and Issues in the 108th Congress.)
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
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. on April
14, 2003, the BLM recently announced new management strategies that are intended to
remove impediments and streamline the processing of permits to drill for oil and gas leasing.
The Administration also is examining land status and reviewing public land withdrawals.
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The BLM, USGS, and Department of Energy (DOE) continue to assess the oil and gas
reserves and resources on federal lands. The January 2003 Scientific Inventory of Onshore
Federal Lands’ Oil and Gas Resources and Reserves and the Extent and Nature of
Restrictions or Impediments to their Development, by several federal agencies, concluded
that there were fewer restrictions on access than many have asserted.
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. Passing comprehensive
energy legislation is considered a priority in the 108th Congress. The House passed its
version of energy legislation (H.R. 6) on April 11, 2003. Federal lands could be affected by
provisions that would end the 160-acre limit on coal lease modifications and would lead to
demonstration technologies for oil and gas recovery in unproven, unconventional reservoirs
on public and private lands. The Senate is considering its version (S. 14) of comprehensive
energy legislation. The Senate bill would similarly end the 160-acre limit on coal lease
modifications and would require further analyses 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 the roadless areas, NFS roads, and 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. (See Other Issues, below.) 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.
On May 10, 2001, a U.S. district court judge issued a preliminary injunction postponing
implementation of the roadless 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
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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 this was denied.
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.
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, potential wilderness, or even national forests and parks if
the highways were established before the lands were reserved. Thus, the possible existence
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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 both 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. Secretary Norton and the State of Utah executed a Memorandum
of Understanding on April 9, 2003, under which R.S. 2477 rights of way in the State of Utah
will be acknowledged and disclaimed. The MOU repeals the 1997 policy, for purposes of
the MOU, but does not clarify what criteria will be used to validate right of way claims.
Legislative Activity. H.R. 1639 would establish a process for resolving R.S. 2477
claims and would define certain terms critical to evaluating the validity of such claims.
Congress may also address the issue of the recent disclaimer regulations issued by the
Department of the Interior. 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, but whether it applies to the
disclaimer regulations is controversial.
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
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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.
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
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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.
On October 30, 2001 (66 Fed. Reg. 54863), BLM also 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
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.
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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.
Other Issues
Several other issues affecting federal lands are under evaluation that could lead to
increased legislation or congressional oversight. These include wilderness, grazing
management, national forest planning, and federal land acquisition.
Wilderness. The Wilderness Act established the National Wilderness Preservation
System in 1964 and directed that only Congress could designate areas as part of the System.
From the initial 9 million acres of national forest land designated in 1964, the System has
grown to more than 105 million acres of federal land managed by the four federal land
management agencies. Wilderness designation is often controversial because wilderness
areas usually may not be developed—commercial activities, motorized access, and roads,
structures, and facilities generally are prohibited. Wilderness studies are also controversial,
because many uses are restricted in the study areas to preserve wilderness characteristics
while Congress considers possible designations. Some observers believe that the Clinton
rule protecting national forest roadless areas was prompted by congressional inactivity in
designating areas which many people believe should be wilderness. Many bills to designate
wilderness areas are typically introduced in each Congress, and to date, about a dozen
wilderness designation bills have been introduced in the 108th Congress.
Grazing Management. The BLM is considering changes to grazing regulations (43
CFR Part 4100) and policy. Past efforts at grazing reform were highly controversial. On
March 3, 2003, the agency issued an advanced notice of proposed rulemaking describing the
nature of the proposed regulatory changes, and a notice of intent to prepare an environmental
impact statement analyzing the potential impact of the proposed changes and of alternative
actions. The agency asserts that regulatory changes are needed to comply with court
decisions, increase flexibility of managers and permittees, improve administrative procedures
and business practices, and promote conservation. Among the regulatory changes under
consideration are: (1) authorizing the agency to establish reserve common allotments, which
permittees could use while their normal allotments undergo rest or range improvements; (2)
extending a permittee’s non-use of a permit from 3 to 5 years, (3) allowing range
improvements to be shared by the BLM and permittees, (4) streamlining the administrative
appeals process, (5) clarifying who will receive preference for a permit or lease, and (6)
making changes related to permitted use. The proposal does not relate to the grazing fee or
resource advisory councils. The public comment period on these proposed changes closed
on May 2, 2003. The BLM expects to issue a proposed rule in the summer of 2003 and a
final rule/EIS in the fall.
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The BLM also is considering related grazing policy changes with a goal of providing
more flexibility to managers and increasing innovative partnerships. Changes under
consideration include voluntary allotment restructuring, conservation easement acquisition,
and conservation partnerships.
National Forest Planning. Another issue is land management planning for the
national forests. 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.

Federal Land Acquisition. Federal land acquisition is a perennial focus of Congress
and the public. 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 the portion of the total that is appropriated is available to the federal
agencies. Most of the appropriations are identified for specific units of public land. In
addition, legislation has been introduced in the past three Congresses to fully appropriate the
authorized level and to make it mandatory spending, 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 budget surplus has been replaced by a deficit, and as federal spending priorities have
changed 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 Report RS21503
and CRS Report RL30444.
LEGISLATION
H.R. 6 (Tauzin)
Omnibus energy legislation. Federal lands could be affected by provisions ending the
160-acre limit on coal lease modifications and leading to demonstration technologies for oil
and gas recovery in unproven, unconventional reservoirs on public and private lands. Passed
House April 11, 2003; placed on Senate Calendar May 6, 2003.
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
Committee on Agriculture and Committee on Resources.
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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 and Committee on Transportation and Infrastructure.
H.R. 1042 (Udall, M.)
The Forest Restoration and Fire Risk Reduction Act authorizes 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 Committee on Agriculture and Committee on Resources.
H.R. 1621 (Miller, G.)
The Federal Lands Hazardous Fuels Reduction Act of 2003 authorizes expedited
procedures for fuel reduction projects on federal lands. Introduced April 3, 2003; referred
to Committee on Agriculture and Committee 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.
H.R. 1639 (Udall, M.)
The R.S. 2477 Rights-of-Way Act of 2003 establishes a process for resolving R.S. 2477
claims and defines certain terms critical to evaluating the validity of such claims. Introduced
April 3, 2003; referred to Committee on Resources.
H.R. 1904 (McInnis)
The Healthy Forests Restoration Act of 2003 authorizes expedited planning and review
procedures for fuel reduction projects on federal lands, grants for fuel reduction-biomass
utilization, watershed forestry assistance, assessment and treatment of insect infestations, and
a federal payments for a private forests reserve system. Introduced May 1, 2003; referred to
Committee on Agriculture and Committee on Resources. Reported by Committee on
Agriculture on May 8, 2003.
S. 14 (Domenici)
Omnibus energy legislation. Federal lands could be affected by provisions ending the
160-acre limit on coal lease modifications and requiring further analyses of resource
assessments, land withdrawals, and impediments to oil and gas development on public lands.
Senate floor consideration began May 6, 2003.
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.
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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 RL31447, Wilderness: Overview and Statistics, by Ross W. Gorte.
CRS Report RL31679, Wildfire Protection: Legislation in the 107th Congress and Issues in
the 108th Congress, by Ross W. Gorte.
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