Order Code IB10076
CRS Issue Brief for Congress
Received through the CRS Web
Public (BLM) Lands and National Forests
Updated July 30, 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
Other Issues
Wilderness
Grazing Management
National Forest Planning
Federal Land Acquisition
Outsourcing
LEGISLATION
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
the construction of highways across unre-
the national forests managed by the U.S.
served federal lands, but the extent of valid
Forest Service (FS). The Administration also
rights of way is not clear in some states. This
continues to address public lands and national
statute might allow highways across (and to)
forests through budgetary, regulatory, and
federal lands, including sensitive lands and
other actions. Several key issues are covered
potential wilderness.
Congress prohibited
in this report.
regulations “pertaining to” R.S. 2477 from
becoming effective, but the Bush Administra-
Wildfire Protection. Threats from wild-
tion recently finalized regulations on “dis-
fires seem to have become more severe. The
claimers of interest” for clearing title to R.S.
Administration has proposed a Healthy For-
2477 highway easements, and executed an
ests Initiative to protect communities from
agreement with Utah to acknowledge and
wildfires by reducing fuels.
Stewardship
disclaim R.S. 2477 rights of way in that state.
contracting was authorized in the FY2003
Omnibus Appropriations Act. Other options
National
Monuments
and
the
are being pursued through proposed regula-
Antiquities Act. The Antiquities Act of 1906
tions, and wildfire protection bills have been
authorizes the President to establish national
introduced in the 108th Congress. H.R. 1904,
monuments on federal lands.
Congress is
enacting proposals in the President’s Initiative
considering limiting the authority of the Presi-
and other provisions, passed the House. The
dent and amending particular monuments.
Senate Agriculture Committee has ordered the
President Bush reestablished Governors Island
bill reported, amended.
National Monument. The Administration also
is developing management plans for some
Energy Resources. The 107th Congress
new monuments.
passed major energy legislation but the differ-
ences could not be resolved. The 108th Con-
Hardrock Mining and Millsites. Two
gress and the Administration continue to
mineral issues have been controversial. One
examine whether and how to increase access
is whether to clarify the General Mining Law
to federal lands for energy and mineral devel-
of 1872 regarding the number and size of
opment. Major energy policy legislation, with
millsites per mining claim.
Currently, the
provisions affecting federal lands, passed the
Department of the Interior is drafting a new
House and is being considered by the Senate.
opinion on this issue. The second issue relates
to the Bush Administration’s revisions of the
Roadless Areas of the National Forest
hard rock mining regulations finalized by the
System. The Clinton Administration issued
Clinton Administration.
rules that limit road construction and timber
cutting in 58.5 million acres of roadless areas
Other Issues. Many other issues affect-
in the National Forest System.
The Bush
ing federal lands also are of interest. These
Administration proposed changes to the rule
include wilderness, grazing management,
on July 15, 2003.
national forest planning, land acquisition, and
outsourcing government jobs.
Congressional Research Service
˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
H.R. 1904, the Healthy Forests Restoration Act of 2003, passed the House on May 20,
2003. The Senate Committee on Agriculture, Nutrition, and Forestry ordered the bill
reported with an amendment in the nature of a substitute on July 24, 2003. The Senate
Committee on Energy and Natural Resources held hearings on this and other fire-related bills
on July 22.
The House passed (H.R. 6) and the Senate is considering (S. 14) comprehensive energy
legislation. The House bill includes provisions that would open the Arctic National Wildlife
Refuge (ANWR) to development and 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 July 14, 2003, the Federal District Court for Wyoming again enjoined the Clinton
roadless rule that seeks to protect roadless areas, again preventing implementation of the rule.
In addition, on July 15 the Bush Administration proposed modifications to the Clinton
roadless rule.
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. 2386 was introduced on June 5, 2003, to make presidential designations of
monuments exceeding 50,000 acres ineffective unless approved by Congress within 2 years,
establish a process for public input in presidential monument designations, and require
monument management plans to be developed in accordance with the National
Environmental Policy Act of 1969.
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
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FS has a cooperative program to assist nonfederal landowners. Moreover, development of
the two agencies has differed, and historically they have focused on different issues.
History of the Bureau of Land Management
For the BLM, many of the issues traditionally center on the agency’s responsibilities for
land disposal, range management (particularly grazing), and minerals development. These
three key functions were assumed by the BLM when it was created in 1946, by the merger
of the General Land Office (itself created in 1812) and the U.S. Grazing Service (created in
1934). The General Land Office had helped convey land to settlers and issued leases and
administered mining claims on the public lands, among other functions. The U.S. Grazing
Service had been established to manage the public lands best suited for livestock grazing.
The Taylor Grazing Act of 1934 (TGA, 43 U.S.C. §§315, et seq.) was the principal statute
governing the public lands in the early years of the U.S. Grazing Service, and remains a key
statute governing the use of federal rangelands for private livestock grazing. Enacted to
remedy the deteriorating condition of public rangelands, the Act provides for the
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.)
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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 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 RL31806. 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 have given priority to the “wildland-urban interface,” municipal watersheds,
and areas affected by insects and diseases. The proposal included expedited consultations
on endangered species and a collaborative process for public involvement, but would have
eliminated public requests for an administrative review of project proposals, constrained
judicial review, and prohibited restraining orders and injunctions.
The proposal also
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included stewardship (goods-for-services) contracts, essentially allowing the agencies to use
timber, 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 has not been enacted, the Administration made
two administrative changes to facilitate fuel reduction. One is the addition of two new
categories of actions to be excluded from NEPA analysis and documentation: fuel reduction
and post-fire rehabilitation activities (68 Fed. Reg. 33814, June 5, 2003). These categorical
exclusions cannot be used in wilderness, or in wilderness study areas if doing so would
impair the suitability of those areas for preservation as wilderness, or if “extraordinary
circumstances” exist and the managers determine that the effects might be significant.
Projects using herbicides or pesticides or involving new permanent road construction may
not be categorically excluded, but the exclusions may be used for projects that include timber
sales if fuel reduction is the primary purpose.
The second change is the revision of the administrative review processes (68 Fed. Reg.
33582 [June 4, 2003] for the FS; 68 Fed. Reg. 33794 [June 5, 2003] for the BLM). Among
the many modifications is a clarification that some emergency actions may be implemented
immediately and others may be implemented after complying with publication requirements.
The change also 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. New standards on
standing for who can challenge agency activities also are established.
These changes must be read in conjunction with other final and proposed regulatory
changes to understand the potential consequences for fuel reduction, public involvement, and
environmental impacts. For the Forest Service, 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. Much of the attention in the 108th Congress has been on 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 was reported by the Committee on Agriculture (May 9, 2003), discharged from the
Committee on Resources (May 9, 2003), and ordered reported by the Committee on the
Judiciary (May 14, 2003). The Resources Committee had marked up a committee print,
similar to H.R. 1904, on April 30. After initial referral to the Agriculture and Resources
Committees, the bill was referred to the Judiciary Committee for consideration of provisions
relating to expedited judicial reviews of fuel reduction projects. The Committee approved
the bill on a party line vote.
Republicans supported the bill on the grounds that it
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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significantly reduces the chances of catastrophic wildfire by expediting removal of
underbrush. Democrats opposed the bill on the assertion that it allows widespread clearing
of mature forests and they had too little time to consider it. The House passed the bill on
May 20, 2003.
H.R. 1904 was referred to the Committee on Agriculture, Nutrition, and Forestry in the
Senate. The Committee held hearings on this bill and related legislation on June 26, 2003,
and ordered the bill reported on July 24. In addition, the Senate Committee on Energy and
Natural Resources held hearings on July 22 on wildfire protection legislation, including H.R.
1904. Both Senate committees also considered other wildfire protection legislation that has
been introduced in the 108th Congress. (See CRS Report IB10124, Wildfire Protection in the
108th Congress
.)
Congress also continues to address wildfire protection through appropriations. The
FY2003 Consolidated Appropriations Resolution (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. The Bush
Administration has requested emergency supplemental funding for FY2003 firefighting. The
Senate included FY2003 supplemental fire funds in H.R. 2657, but the House did not include
such funds in the FY2003 supplemental funding bill (H.R. 2859) it passed on July 25, 2003.
For FY2004, the Administration requested $2.24 billion for the National Fire Plan (for
the FS and BLM); the House-passed Interior Appropriations bill (H.R. 2691) included 4%
more funding, although the Senate Appropriations Committee recommended matching the
request. (For more information, see CRS Report RL31806, Interior Appropriations for
FY2004: Interior and Related Agencies
.)
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
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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 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. 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, and by the siting and administration of rights of way on federal
lands. Whether to open the Arctic National Wildlife Refuge (ANWR) to oil and gas
development is also an important issue, as are possibly increasing conservation and
developing alternative energy sources. A provision to open ANWR is in the House-passed
version of the energy bill. 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. S. 1005 is an identical bill
introduced essentially for procedural reasons, but S. 14 is the vehicle currently under
consideration.
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), including new rules on
roadless areas, NFS roads, and the FS planning process. On December 6, 2002, the Bush
Administration proposed new rules for the planning process. (See Other Issues, below.)
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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. The Clinton roadless rule 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.
Implementation of the rule has been prevented by litigation. On May 10, 2001, the
Federal District Court for Idaho enjoined 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. However, on July 14, 2003, the Federal District Court for Wyoming
again enjoined implementation of the rule.
In related action, the FS has been assessing whether to keep the Clinton roadless rule,
and sought public comment on whether and how to change the rule. On June 9, 2003, the
Secretary announced that the Department would retain the roadless rule, but with two
important modifications: 1) new rules would be proposed to allow the governors to request
exceptions for certain activities; and 2) the Tongass National Forest would be excluded and
a special rule proposed. Notices regarding these changes were published on July 15, 2003,
but how the Administration will proceed in light of the July 14 injunction is uncertain.
The FS also issued a series of directives constituting interim guidance on roadless area
management that 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 consistent with the new proposed planning regulations. The FS also
has made several changes to its NEPA compliance requirements that could allow some
activities in roadless areas without environmental studies, public notice and comment, or
appeals.
Legislative Activity. Congress is considering legislation on forest management in
general and on the roadless areas issue in particular. H.R. 2369 would require that roadless
areas be managed in accordance with the original roadless rule. S. 1200 would enact most
of the content of the roadless rule. No action has occurred on these bills. A House floor
amendment to the FY2004 Interior appropriations bill (H.R. 2691), to prohibit funding for
proposing, finalizing, or implementing changes to the Clinton roadless rule, was rejected
(185-234).
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.”
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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
(and private) lands, including sensitive lands, potential wilderness, or even through national
forests and parks if the highways were established before the lands were reserved. 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 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 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. In §108 of the FY 1997
Interior Appropriations Act, Congress prohibited regulations “pertaining to” R.S. 2477 from
becoming effective unless authorized by Congress. 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, and other states have also
requested MOUs. 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. Critics assert that the
disclaimer regulations therefore “pertain to” R.S. 2477 rights of way and are unlawful.
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. The
House approved an amendment to the FY2004 Interior appropriations bill, H.R. 2691, that
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prohibits implementation of the amendments to the disclaimer regulations in certain federal
conservation areas. This language was adopted instead of a more general prohibition on
implementation.
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, set off renewed controversy regarding presidential authority to
proclaim monuments. 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. H.R. 2386 would 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 establish a process for input into
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presidential monument designations, and require monument management plans to be
developed in accordance with the National Environmental Policy Act of 1969. A 107th
Congress version of this measure, which was supported by the Bush Administration, was on
the House calendar but not considered on the House floor.
The House passed, and the Senate Appropriations Committee reported, FY2004 Interior
appropriations bills that would bar funds 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 the monuments.
Similar provisions were enacted for FY2002 and FY2003. 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.
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
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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.
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 federal lands issues that are under evaluation could lead to increased
legislation or congressional oversight. These include wilderness, grazing management,
national forest planning, federal land acquisition, and outsourcing government jobs.
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.
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
(discussed above) was prompted by congressional inactivity in designating areas which many
people believe should be wilderness. Others assert that the Bush Administration — in
disclaiming R.S. 2477 rights-of-way (discussed above) and settling a lawsuit by agreeing to
end additional wilderness studies and study area protections agreed to during the Clinton
Administration — is attempting to undermine potential wilderness area protection and open
the areas to energy and mineral exploration and development, thereby preventing Congress
from adding the areas to the Wilderness System. 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
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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.
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. To date, the Bush Administration has not
finalized new planning regulations.
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.
CARA legislation has not been reintroduced in the 108th Congress. Funding for federal
land acquisition programs declined in FY2003 and appears certain to decline again in
FY2004. Reasons for this decline include the change from a federal budget surplus to a
deficit, different federal spending priorities since 9/11, and concerns of some Members about
the extent of federal land ownership. For more information, see CRS Reports RS21503 and
RL30444.
Outsourcing. The Bush Administration is considering privatizing numerous and
diverse government jobs in agencies including the Forest Service and BLM under its
“competitive sourcing” initiative. The goal is to save money through competition between
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government and private businesses, particularly in areas where private business might
provide better commercial services, e.g., law enforcement and maintenance. The plan is
controversial, with concerns as to whether it would save the government money and whether
the private sector could provide the same quality of service. The House-passed, and Senate
committee-reported, versions of the FY2004 Interior appropriations bill seek to limit the
outsourcing initiative. The bill approved by the House would bar agencies funded in the bill
from using funds to begin new outsourcing studies. The language in the Senate committee
bill would bar the Forest Service from initiating or continuing competitive sourcing studies
until the appropriations committees have received and approved a competitive sourcing
proposal. P.L. 108-7, providing consolidated appropriations for FY2003, limits the use of
quotas in agencies’ outsourcing efforts. Authorizing committees also are examining the
outsourcing initiative.
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.
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.
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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. Passed by the House (256-170) on
May 20, 2003. The Senate Committee on Agriculture, Nutrition, and Forestry ordered the
bill reported, with an amendment in the nature of a substitute, on July 24, 2003.
H.R. 2369 (Inslee)
The National Forest Roadless Area Conservation Act requires that roadless areas be
managed in accordance with the original roadless rule. Introduced June 5, 2003; referred to
Committee on Agriculture and Committee on Resources.
H.R. 2386 (Simpson)
Amends the Antiquities Act of 1906 to make presidential designations of monuments
exceeding 50,000 acres ineffective unless approved by Congress within 2 years, establishes
a process for public input in presidential monument designations, and require monument
management plans to be developed in accordance with the National Environmental Policy
Act of 1969. Introduced June 5, 2003; referred to Committee on Resources.
H.R. 2639 (Hooley)/S. 1352 (Wyden)
The Community and Forest Protection Act authorizes expedited procedures for fuel
reduction projects on certain federal lands over the next 5 years, biomass utilization grants,
forest health inventory and monitoring, emergency fuel reduction grants, and assistance to
communities with proactive steps for fire protection. Both introduced June 26, 2003; H.R.
2639 referred to House Committee on Agriculture and House Committee on Resources, and
S. 1352 referred to Senate Committee on Agriculture, Nutrition, and Forestry. Senate
Committee on Energy and Natural Resources held hearings on S. 1352 on July 22, 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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S. 1200 (Cantwell)
The Roadless Area Conservation Act of 2003 enacts most of the content of the Clinton
Administration roadless rule. Introduced June 5, 2003; referred to Committee on Energy and
Natural Resources.
S. 1314 (Bingaman)
The Collaborative Forest Health Act authorizes expedited procedures for certain fuel
reduction projects over the next 5 years, assessment of insect infestations, borrowing for fire
suppression, limits on competitive sourcing, and funding for wildfire protection and
rehabilitation of nonfederal lands. Introduced June 23, 2003. Committee on Energy and
Natural Resources held hearings July 22, 2003.
S. 1449 (Crapo)
America’s Healthy Forest Restoration and Research Act authorizes accelerated
procedures for fuel reduction projects on certain federal lands over the next 5 years, biomass
utilization grants, watershed forestry assistance, applied silvicultural research and forest
inventory and monitoring, and private forest reserves. Introduced July 23, 2003; referred to
Senate Committee on Agriculture, Nutrition, and Forestry.
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 IB10116, Energy Policy: The Continuing 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 Issue Brief IB10124, Wildfire Protection in the 108th Congress, by Ross W. Gorte.
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