Order Code IB10076
CRS Issue Brief for Congress
Received through the CRS Web
Bureau of Land Management (BLM) Lands
and National Forests
Updated October 29, 2004
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
Other Issues
Wilderness
Hardrock Mining and Millsites
Grazing Management
Competitive Sourcing
National Forest Planning
Federal Land Acquisition
LEGISLATION
Wildfire Protection
Energy Resources
Roadless Areas
R.S. 2477: Rights-of-Way
National Monuments and the Antiquities Act
FOR ADDITIONAL READING

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Bureau of Land Management (BLM) Lands and National Forests
SUMMARY
In the second session, Congress contin-
issued a new rule exempting the Tongass NF
ues to confront an array of issues related to the
in Alaska from the roadless rule. The House
public lands managed by the Bureau of Land
agreed to an amendment to H.R. 4568 that
Management (BLM) and the national forests
would prohibit funding for new permanent
managed by the U.S. Forest Service (FS). The
roads in the Tongass. New proposed rules
Administration continues to address public
published on July 16, 2004, which would
lands and national forests through budgetary,
replace the Clinton rules, would allow state
regulatory, and other actions. Several key
governors to petition for special roadless area
issues of ongoing congressional and adminis-
management rules.
trative interest are covered in this report.
R.S. 2477 Rights of Way. Revised
Wildfire Protection. The Administration
Statute (R.S.) 2477 granted rights of way for
proposed a Healthy Forests Initiative to pro-
the construction of highways across unre-
tect communities from wildfires by reducing
served federal lands, but the extent of valid
fuels. Congress enacted the Healthy Forests
rights of way is not clear in some states.
Restoration Act of 2003 (P.L. 108-148) with
Congress prohibited regulations “pertaining
many of the proposals in the President’s
to” R.S. 2477 from becoming effective. The
initiative and other provisions. Other aspects
Bush Administration recently finalized regula-
of fire protection have been addressed through
tions on “disclaimers of interest” for clearing
changes in regulations.
title to R.S. 2477 highway easements, and
executed an agreement with Utah to acknowl-
Energy Resources. Congressional and
edge and disclaim R.S. 2477 rights of way in
administrative interest in access to federal
that state. Whether these regulations “pertain
lands for energy and mineral development is
to” R.S. 2477 is controversial.
reflected in major energy policy legislation —
H.R. 6 and S. 2095. Both S. 2095 and the
National Monuments and the
conference agreement on H.R. 6 would elimi-
Antiquities Act. The Antiquities Act of 1906
nate the 160-acre limit on coal leases and
authorizes the President to establish national
authorize demonstration technologies for
monuments on federal lands. The 108th
unproven, unconventional reserves, but not
Congress is considering limiting the Presi-
open ANWR to oil and gas leasing. The
dent’s authority and amending certain monu-
conference agreement passed the House but
ments. The Bush Administration is develop-
remains pending in the Senate, and S. 2095 is
ing management plans for many monuments.
on the Senate calendar.
H.R. 4568 and S. 2804 would bar funding for
energy leasing activities within presidentially
Roadless Areas of the National Forest
created national monuments.
System. The Clinton Administration issued
rules that limit road construction and timber
Other Issues. Other federal lands issues
cutting in 58.5 million acres of roadless areas
of interest to the 108th Congress include wil-
in the National Forest System. A court has
derness, hardrock mining and millsites, graz-
enjoined implementation of the Clinton rules.
ing management, forest planning, land acqui-
On December 30, the Bush Administration
sition, and competitive sourcing federal jobs.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
! H.R. 4503, energy legislation essentially identical to the conference
agreement on H.R. 6, passed the House on June 15, 2004. H.R. 4513, to
reduce NEPA analysis for renewable energy projects, also passed the House
on June 15. H.R. 4529, to open ANWR to oil and gas development, was
introduced and the rule for floor consideration was adopted June 15. The
conference report on H.R. 6 remains pending in the Senate.
! H.R. 4568 and S. 2804, Interior appropriations for FY2005, would bar
funding of energy leasing within presidentially created monuments.
! On September 9, 2004, the Administration extended the comment period on
new proposed rules for the management of the national forest roadless areas.
BACKGROUND AND ANALYSIS
The Bureau of Land Management (BLM) in DOI and the Forest Service (FS) in the U.S.
Department of Agriculture manage 454 million acres of land, two-thirds of the land owned
by the federal government and one-fifth of the total U.S. land area. The BLM manages 261.5
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 192.5 million acres of federal land, also concentrated in the West.
The BLM and FS have similar management responsibilities for their lands, and many
key issues affect both agencies’ lands. However, each agency has unique emphases and
functions. For instance, most BLM lands are rangelands, and the BLM administers mineral
development on all federal lands. Most federal forests are managed by the FS, and only the
FS has a cooperative program to assist nonfederal landowners. Moreover, development of
the two agencies has differed, and historically they have focused on different issues.
History of the Bureau of Land Management
For the BLM, many of the issues traditionally center on the agency’s responsibilities for
land disposal, range management (particularly grazing), and minerals development. These
three key functions were assumed by the BLM when it was created in 1946, by the merger
of the General Land Office (itself created in 1812) and the U.S. Grazing Service (created in
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
under the Taylor Grazing Act of 1934 (TGA, 43 U.S.C. §§315, et seq.).
Congress frequently has 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
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of public lands and resources; and establishes a general national policy that the public lands
be retained in federal ownership.

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 (initially 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 controlled by the Forest Service are to be
managed, allows protection of areas as wilderness, and directs “harmonious and coordinated
management” to provide sustained yields of resources.
Many issues concerning 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. In part to address these issues, 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 since 1964 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,
Wilderness: Overview and Statistics, by Ross W. Gorte.)
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,
although slightly different uses are specified for each agency. 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 — that is, 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 RL32393, Federal Land Management Agencies: Background on Land and Resource
Management, coordinated by Carol Hardy Vincent. Information on FY2005 appropriations
for the BLM and FS (and other agencies and programs funded by the FY2005 Interior and
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Related Agencies appropriations bill) is included in CRS Report RL32306, Appropriations
for FY2005: Interior and Related Agencies, coordinated by Carol Hardy Vincent and Susan
Boren. For information on park and recreation issues, see CRS Issue Brief IB10093,
National Park Management and Recreation, coordinated by Carol Hardy Vincent. For
information on oil and gas leasing in the Arctic National Wildlife Refuge (ANWR), see CRS
Issue Brief IB10111, Arctic National Wildlife Refuge (ANWR): Controversies for the 108th
Congress, by M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin. For information on
other related issues, see the CRS web page at [http://www.crs.gov/].
Wildfire Protection (by Ross W. Gorte)
Background. Recent fire seasons have killed firefighters, burned homes, and
threatened communities. 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
increasing numbers of structures are in and near the forests (i.e., the wildland-urban
interface). Reducing fuels on federal lands has been proposed to reduce the threats from fire.
Proponents of fuel reduction on federal lands argue that needed treatments often are delayed
by environmental studies, administrative appeals, and litigation. However, others fear that
streamlining fuel projects could increase logging on federal lands, that such projects might
not receive proper environmental review, and that reducing fire risk in the interface requires
landscaping to reduce fuels on the private lands and modifying structures on those lands.
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. It 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. Congress enacted the Healthy Forests
Restoration Act of 2003 (P.L. 108-148) with many of the proposals in the President’s
initiative and other provisions (described below under “Legislative Activity”).
Before legislation was enacted, the Administration made several regulatory changes to
facilitate fuel reduction. These changes are unaffected by P.L. 108-148. First, two new
categories of actions can 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 certain areas or under certain circumstances, but
may be used for timber sales if fuel reduction is the primary purpose. Second, the
administrative review processes also were revised (68 Fed. Reg. 33582, June 4, 2003, for the
FS; 68 Fed. Reg. 33794, June 5, 2003, for the BLM). The revisions sought to clarify that
some emergency actions may be implemented immediately and others after complying with
publication requirements, and to expand emergencies to include those “that would result in
substantial loss of economic value to the Government if implementation of the proposed
action were delayed.”
The Administration also proposed regulatory changes that could affect fuel reduction,
public involvement, and environmental impacts. New regulations were proposed for FS
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forest planning (67 Fed. Reg. 72770, December 6, 2002; see “Other Issues,” below)1, and
new categorical exclusions were finalized for small timber harvesting projects (68 Fed. Reg.
44598, July 29, 2003). The total impact of the regulatory changes is greater discretion for
FS action without environmental studies and with fewer opportunities for the public to
comment on or to request administrative review of those actions.
Legislative Activity. H.R. 1904, the Healthy Forests Restoration Act of 2003, was
signed into law (P.L. 108-148) on December 3, 2003. Title I addresses hazardous fuel
reduction on federal lands. Priority is directed to protecting “at-risk communities” and
municipal watersheds. Title I authorizes a new, alternative process for reducing fuels on up
to 20 million acres of national forests or BLM lands in certain areas: in or near the wildland-
urban interface and municipal water supply systems, certain endangered species habitats, and
areas affected by wind or ice storms or by insect or disease epidemics that threaten ecological
health or natural resources. Authorized projects must be consistent with land management
plans. They generally are to focus on small trees, thinning, fuel breaks, and prescribed
burning while retaining large trees and maintaining old growth stands, but are prohibited on
certain lands, such as wilderness areas. The law authorizes $760 million annually for
authorized projects and for any other fuel reduction activities, including grants to states.
For authorized projects, the FS or BLM must prepare NEPA documents, but the
agencies are allowed to analyze a limited number of alternatives. The public can be involved
through scoping, collaboration, and multiparty monitoring of project impacts; the public also
must be given a chance to comment on proposed projects. For its projects, the FS is to
develop a new pre-decisional review process to supplant the existing administrative appeals
process, and administrative reviews must be “exhausted” before litigation is allowed.
Lawsuits against either agency’s projects must be filed in the district court for the area where
the project is proposed, and courts are encouraged to review cases expeditiously. Preliminary
injunctions are limited to 60 days, but can be renewed, and courts are directed to balance
short- and long-term impacts of action and of inaction. However, under the act, similar
projects can be implemented under other authorities, possibly without public participation.
P.L. 108-148 also contains five other titles that indirectly relate to wildfire protection.
Title II expands biomass research, authorizes a new biomass rural revitalization program, and
authorizes grants for biomass use. Title III establishes a watershed forestry assistance
program with cost-sharing assistance to landowners and financial and technical assistance
to states and tribal governments to protect water quality through forestry practices. Title IV
authorizes data collection on forest-damaging insects and “applied silvicultural assessments”
(treatments for research purposes) of up to 1,000 acres each (250,000 acres total) that are
categorically excluded from NEPA, but with peer review and public notice and comment on
each project. Title V authorizes a program of 10-year agreements or 30-year or long-term
(up to 99-year) easements to pay willing private landowners to protect or restore their lands
as habitat for endangered species. Finally, Title VI authorizes an “early warning system” for
environmental threats primarily to eastern U.S. forests.
1 See also CRS congressional memorandum, Analysis and Critique of the Forest Service Planning
Regulations Proposed on December 6, 2002, by Pamela Baldwin (Jan. 3, 2003), 21 p.
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Congress also continues to address wildfire protection through appropriations. For
FY2005, the Administration has requested $2.47 billion for the National Fire Plan. In H.R.
4568, the House passed FY2005 funding of $3.02 billion (including $500 million for
emergency firefighting, if certain conditions are met). In S. 2804, the Senate Appropriations
Committee recommended funding of $2.98 billion (including $500 million for emergency
firefighting, if certain conditions are met). Congress also enacted $500 million for FY2004
emergency firefighting in P.L. 108-287, the FY2005 DOD Appropriations Act. (For more
information, see CRS Report RL32306, Interior Appropriations for FY2005: Interior and
Related Agencies, coordinated by Carol Hardy Vincent and Susan Boren.)
Energy Resources (by Marc Humphries)
Background. A 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 (December 1, 2000) determined that, of the roughly 700 million
acres of federal minerals, underlying federal as well as other lands, (1) about 165 million
acres (24%) have been withdrawn from mineral entry, leasing, and sale, subject to valid
existing rights, and (2) mineral development on another 182 million acres (26%) is subject
to the approval of the surface management agency, and must not be in conflict with land
designations and plans.
The oil and gas industry contends that entry into areas that are off-limits to
development, particularly in the Rocky Mountain region, 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 energy conservation and increased
exploration elsewhere. (For more information, see CRS Report RL32315, Oil and Gas
Exploration and Development on Public Lands, by Marc Humphries.)
Administrative Actions. A 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, 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 intended to remove impediments, and streamline the permitting process, for oil and
gas leasing on federal lands. Features of this new strategy include the use of multiple
applications for a permit package when appropriate and use of a geographic area
development plan for the NEPA analysis and permitting process.
The Administration 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. Several federal agencies issued (January 2003) an
assessment entitled Scientific Inventory of Onshore Federal Lands’ Oil and Gas Resources
and Reserves and the Extent and Nature of Restrictions or Impediments to their
Development. Some assert that the report shows that more federal lands currently are
available for energy development than generally had been realized.
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The Bush Administration also is reviving the 20-year-old Clean Coal Technologies
program under its Clean Coal Power Initiative (CCPI) and is seeking $2 billion over 10 years
(FY2002-FY2011). For FY2004, Congress enacted $178.8 million for the CCPI including
funds for the FutureGen project, a 10-year, $1 billion Bush Administration initiative
designed to establish the feasibility of producing electricity and hydrogen from a coal-fired
plant yielding no emissions. For FY2005, the combined CCPI and FutureGen request is
$287 million. In H.R. 4568, the House passed $105 million for CCPI and the House
Appropriations Committee report notes support for up to $18 million in previously
appropriated Clean Coal Technology funds for FutureGen. In reporting S. 2804, the Senate
Appropriations Committee provided $18 million for Future Gen. For the CCTP, the Senate
Committee recommended a deferral of $257 million, the House supported a deferral of $237
million, and the President requested a rescission of $237 million. The Senate Committee
agreed with the Administration in supporting $50 million for the CCPI. Supporters note that
coal resources could be more widely used if the environmental restrictions could be reduced.
Opponents contend that new technology will not make coal environmentally acceptable at
a competitive cost.
Legislative Activity. While enacting comprehensive energy legislation was
considered a priority at the start of the session, such legislation has not been enacted to date.
However, a corporate tax bill (H.R. 4520) that was signed into law in October 2004 (P.L.
108-357) incorporates a number of energy tax incentives that are included in comprehensive
energy legislation discussed below. Among those included were energy tax incentives for
marginal oil and gas producers, for the Alaskan natural gas pipeline, and for the use of a
specific clean coal technology called K-Fuel that cuts nitrogen oxides, sulfur dioxide, and
mercury emissions by 20%.
The House passed the energy bill (H.R. 6) on April 11, 2003. After contentious debate
over high-priority issues, the Senate opted to pass its previously passed version — H.R. 4
from the 107th Congress — in lieu of H.R. 6. A conference agreement on the House- and
Senate-passed versions was reached. The House approved the conference report (H.Rept.
108-375) on November 18, 2003, but the Senate failed to invoke cloture to end debate. The
Majority Leader entered a motion to reconsider the cloture vote, and the bill remains pending
in the Senate. The House also passed H.R. 4503, which is essentially the same as the
conference version of H.R. 6, on June 15, 2004.

Federal lands could be affected by various provisions of the energy legislation. Both
S. 2095 and the conference agreement on H.R. 6 would end the 160-acre limit on coal lease
modifications and would initiate demonstration technologies for oil and gas recovery in
unproven, unconventional reservoirs on public and private lands. They also would alter the
siting and administration of rights of way on federal lands, and would require the Secretary
of the Interior to evaluate the oil and gas leasing and permitting process, with particular
emphasis on permitting time frames.
Whether to open the Arctic National Wildlife Refuge (ANWR) to oil and gas
development has been one of the most contentious issues in the energy debate. A provision
to open ANWR was in the House-passed version of the energy bill, but was not in the
Senate-passed version. Opening ANWR to oil and gas exploration or drilling was not
included in the conference agreement on H.R. 6 or contained in S. 2095. H.R. 4529 contains
language that is substantially the same as the H.R. 6 language to open ANWR to oil and gas
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development; the rule for its consideration was agreed to by the House on June 15, 2004.
(See CRS Issue Brief IB10111, Arctic National Wildlife Refuge: Controversies for the 108th
Congress, by M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin.)
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 and
policies on roadless areas, NFS roads (66 Fed. Reg. 3219, January 12, 2001), and the FS
planning process. The Bush Administration has proposed new rules for both the forest
planning process (see “Other Issues,” below) and roadless area management; the latter issue
is discussed here. (For more information, see CRS Report RL30647, The National Forest
System Roadless Areas Initiative, by Pamela Baldwin.)
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. This
nationwide approach was justified as limiting the litigation and delays that occurred when
decisions were made at the level of each national forest. The roadless rule (66 Fed. Reg.
3244, January 12, 2001) would have prohibited road construction and timber cutting in the
inventoried roadless areas, with several exceptions, including roads for access to inholdings
or for public health and safety purposes, and timber cutting for fire control.
Implementation of the roadless rule was enjoined, citing “irreparable harm” to federal
forests and their neighbors (Kootenai Tribe of Idaho v. Veneman, 142 F.Supp. 2d 1231 (Id.
D.C. 2001)), but the Ninth Circuit reversed this decision. However, on July 14, 2003, the
Federal District Court for Wyoming again enjoined implementation of the rule.
The Bush Administration sought public comment on whether and how to change the
rule. On December 30, 2003, the Administration finalized a rule temporarily exempting the
Tongass NF from the roadless rule, until an Alaska-wide rule can be completed (68 Fed. Reg.
75136). The Bush Administration has now proposed a new rule that would replace the
Clinton rule and would allow governors of states to petition for promulgation of separate
statewide rules on roadless area management (69 Fed. Reg. 42636, July 16, 2004). Under
the proposed procedure, the resources and particular characteristics of each roadless area in
a state would be reviewed by the state, which would then make management
recommendations to the Secretary. If the petition is approved by the Secretary, rulemaking
for that state would follow. There are no express requirements as to public input into the
process, nor any indication of the weight to be given a petitioning state’s recommendations
versus those of other citizens interested in the public lands. The comment period on the
proposed rule has been extended to November 15, 2004 (69 Fed. Reg. 54600).
Until new regulations are finalized, the FS is managing roadless areas in accordance
with interim guidance directives. This guidance places most decisions 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. The FS also has made several changes to its NEPA compliance requirements
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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 roadless areas in particular. H.R. 2369 would require that roadless areas be
managed in accordance with the original roadless rule, and S. 1200 would enact most of the
content of the roadless rule. S. 1938 would protect roadless and other areas more stringently
than the Clinton roadless rule would have. No action has occurred on these bills. The House
adopted a floor amendment to the FY2005 Interior appropriations bill (H.R. 4568) to prohibit
funding for planning, designing, studying, or constructing development roads for timber
harvesting in the Tongass NF; however, the language is not a total ban on road construction
and would allow road maintenance. Neither the Senate companion bill nor the committee
report (S. 2804, S.Rept. 108-341) contains similar language.
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 1976, but existing rights were protected. What constitutes
construction of highways and whether a qualifying right of way existed by the time of repeal
in 1976 can be contentious. These issues are important because possible rights of way may
affect the management of federal lands, perhaps degrading their wilderness suitability while
increasing access for recreation and other uses. 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.
Administrative Actions. On January 6, 2003 (68 Federal Register 494), the BLM
finalized changes to its regulations for issuing “disclaimers of interest,” a procedure to help
clear title to property or interests in property with respect to possible interests of the United
States. This procedure will be used to acknowledge R.S. 2477 rights of way. Interior
Secretary Norton and the State of Utah executed a Memorandum of Understanding on April
9, 2003, under which the DOI will acknowledge and disclaim R.S. 2477 rights of way in
Utah. Other states also have requested MOUs. The MOU does not clarify what criteria will
be used to validate right of way claims. Critics assert that the disclaimer regulations “pertain
to” R.S. 2477 rights of way and are unlawful under §108 of P.L. 104-208. The General
Accounting Office has concluded that the Utah MOU itself was an unlawful regulation
pertaining to R.S. 2477. The first notice of an application for a disclaimer (filed in re a Utah
road) was published on February 9, 2004 (69 Federal Register 6000). Comments received
indicate that the road in question might have been federally constructed, and not eligible to
be an R.S. 2477 highway. Utah withdrew the application on September 16, 2004.
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
prohibits implementation of the amendments to the disclaimer regulations in certain federal
conservation areas, but this language was eliminated in conference.
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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 expressly prohibited the President from proclaiming new
national monuments in Wyoming (1950), and many assert that 1980 legislation did the same
for Alaska.

President Clinton’s establishment or enlargement of 22 monuments, primarily during
his last year in office (2000), set off renewed controversy regarding presidential authority to
proclaim monuments. The 108th Congress is focusing on land uses within monuments; the
inclusion of non-federal lands in monument boundaries; and whether the President should
be required to seek congressional, state, or public input or environmental reviews. (For more
information on monument issues, see CRS Report RS20902, National Monument Issues, by
Carol Hardy Vincent.)
To date, courts have upheld the monuments. In October 2003, the Supreme Court
declined to hear two cases challenging President Clinton’s designations of monuments,
leaving in place lower court decisions upholding the designations. One recent case
challenged the Grand Staircase-Escalante National Monument in Utah, but on April 19,
2004, the Federal District Court in Salt Lake City upheld the monument designation (2004
WL 965922, 2004 U.S. Dist. LEXIS 9865 (D. Ut. 2004)).
Administrative Actions. On April 24, 2002, the Department of the Interior began
developing management plans for the new DOI monuments. Currently, some monuments
are formulating and analyzing management options and issuing management plans. Some
issues have involved recreational uses, including off-highway vehicles, and commercial uses,
including grazing and energy development.
Other Administration actions affect national monuments. First, the Bush
Administration has been considering the issue of nonfederal lands within national
monuments, and is reported to support the removal of private and state lands from the
boundaries of national monuments. Second, Governors Island National Monument, and the
rest of Governors Island, were conveyed to the Governors Island Preservation and Education
Corporation of the State and City of New York for $1, despite P.L. 105-33, § 9101, which
required fair market value. That value had been estimated by some at between $300 million
and $500 million but by others as much less. The approximately 22 acres that comprise the
national monument were reconveyed to the federal government and reestablished as a
national monument to be managed by the Secretary of the Interior.
Legislative Activity. Congress enacted legislation (P.L. 108-108) that bars FY2004
funds from being used for energy leasing activities within the boundaries of presidentially-
created national monuments, as they were on January 20, 2001, except where allowed by the
presidential proclamations that created the monuments. Similar provisions were enacted for
FY2002 and FY2003, and are contained in the FY2005 Interior appropriations bills as passed
by the House (H.R. 4568) and reported in the Senate (S. 2804).
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A bill seeking to limit the authority of Presidents to designate national monuments has
been introduced. 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 two years. It also would establish a process for input into presidential monument
designations and require monument management plans to be developed in accordance with
NEPA. A bill dealing with private property within a monument’s boundaries saw committee
action. On November 21, 2003, the House Resources Committee reported H.R. 1629
(H.Rept. 108-392) to exclude private property from the boundaries of the Upper Missouri
River Breaks National Monument.
Other Issues
Congress is evaluating several other federal lands issues that could lead to increased
legislation or 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 federal lands as part of the
system. Wilderness designation is often controversial because various activities are not
allowed in wilderness areas — 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. (See CRS Report RS21917, Bureau of Land
Management (BLM) Wilderness Review Issues, by Ross W. Gorte and Pamela Baldwin.)
Some observers believe that the Clinton rule protecting national forest roadless areas
(discussed above) was prompted by a view that Congress had lagged in designating areas
which many assert should be wilderness. Others assert that the Bush Administration — by
possibly disclaiming R.S. 2477 rights-of-way (discussed above), promulgating new guidance
to end additional BLM wilderness studies, and eliminating the nationwide national forest
roadless area protections of the Clinton Administration — is attempting to open these areas
to energy and mineral exploration, roads, and development, thereby making them ineligible
to be added to the Wilderness System. Many bills to designate wilderness areas typically are
introduced in each Congress, and to date, more than a dozen such bills have been introduced
in the 108th Congress. (For background information, see CRS Report RL31447, Wilderness:
Overview and Statistics, by Ross W. Gorte.)
Hardrock Mining and Millsites. Two recent mineral issues have been controversial.
First, the Clinton Administration revised the hardrock mining regulations (43 CFR 3809),
effective January 20, 2001. The changes were intended to enhance the BLM’s ability to
prevent “unnecessary or undue degradation” of public lands from mining operations and to
make mining operators more responsible for reclaiming mined lands. The Bush
Administration revised the rules on October 30, 2001 (66 Federal Register 54834). The final
rule eliminated some of the most controversial of the Clinton Administration changes.
Environmental groups challenged the Bush regulations. On November 18, 2003, District
Judge Henry H. Kennedy ruled that the regulations were not illegal on their face, but they
may be “unwise and unsustainable” land use policy. Also on October 30, 2001, the BLM
published a proposed rule (66 Federal Register 54863) with many of the same changes as
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the final rule; according to BLM, this unusual procedure was intended to provide the stability
of final rules while gathering additional public comments.
The second issues involves mining millsites. At issue is whether the General Mining
Law of 1872 allows only one millsite of no more than five acres or multiple millsites (of no
more than five acres each) for activities associated with each mining claim. On November
7, 1997, President Clinton’s Interior Department solicitor issued a Legal Opinion that each
claim could use no more than five acres for associated activities. Critics charged that this
Opinion indirectly reformed the 1872 Mining Law, was inconsistent with agency practice,
and severely restricted some modern mining operations (e.g., heap-leach mines for gold).
On September 28, 2001, President Bush’s Secretary of the Interior directed the BLM not to
apply the 1997 Opinion to existing mining operations and the new DOI solicitor to review
the Opinion. On October 7, 2003, a new Solicitor’s Opinion allowed multiple millsites (of
no more than five acres each) per claim if needed for development of mineral resources. On
October 24, 2003, BLM issued a final rule significantly reorganizing and amending
regulations on locating, filing, and maintaining mining claims and sites (68 Federal Register
61045), including regulations to implement the new millsite Opinion.
Grazing Management. BLM published proposed changes to its grazing regulations
(43 CFR Part 4100) on December 8, 2003, and on January 2, 2004 issued a draft
environmental impact statement (DEIS) analyzing the potential impact of the proposed
changes and of alternative actions. Past efforts at grazing reform were highly controversial.
BLM 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 proposed changes are: (1) allowing title to
range improvements to be shared by the BLM and permittees, (2) allowing permittees to
acquire water rights for grazing if consistent with state law, (3) changing the definition of
“grazing preference” to include an amount of forage, (4) eliminating conservation use
grazing permits, (5) extending the time to remedy rangeland health problems, and (6)
reducing occasions where BLM is required to consult with the public. Due to negative public
comments, the regulatory proposal did not include authorizing the agency to establish reserve
common allotments for permittees to use while their normal allotments undergo rest or range
improvements. Further, BLM did not address some controversial issues, such as revising the
grazing fee. BLM received public comment on the proposal and DEIS during a period
ending March 2, 2004. The agency anticipates issuing a final grazing rule in October 2004
that would take effect in the fall of 2004.
BLM is considering related grazing policy changes with a goal of providing more
flexibility to managers and increasing innovative partnerships. Changes under consideration
relate to establishing reserve common allotments, voluntary restructuring of allotments,
acquiring conservation easements, and creating conservation partnerships. Final grazing
policy changes will be developed when the rulemaking process is “substantially completed,”
according to BLM. (For more information, see CRS Report RL32244, Grazing Regulations
and Policies: Changes by the Bureau of Land Management, by Carol Hardy Vincent.)
Competitive Sourcing. The Bush Administration’s Competitive Sourcing Initiative
would subject commercial activities to public-private competition. This government-wide
effort could affect diverse government activities in agencies including the Forest Service and
BLM. The Administration’s goal is to save money through competition between government
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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, whether the private sector
could provide the same quality of service, or whether it is being used to accomplish policy
objectives by outsourcing particular functions. P.L. 108-108 placed spending limits on
agency competitive sourcing studies during FY2004 and required agencies to report annually
to Congress on competitive sourcing. Similar provisions are contained in H.R. 4568, the
FY2005 Interior appropriations bill as passed by the House, while the companion bill (S.
2804) reported by the Senate Committee on Appropriations would limit agency spending on
competitive sourcing. The FY2004 law also required agencies to specify in their annual
budget requests the level of funding sought for competitive sourcing studies. P.L. 108-7,
providing consolidated appropriations for FY2003, limited the use of quotas in agencies’
competitive sourcing efforts. Authorizing committees and the Appropriations Committees
continue to evaluate the competitive sourcing initiative. (For more information, see CRS
Report RL32306, Appropriations for FY2005: Interior and Related Agencies, coordinated
by Carol Hardy Vincent and Susan Boren and CRS Report RL32017, Circular A-76 Revision
2003: Selected Issues, by L. Elaine Halchin.)
National Forest Planning. Another issue is land management planning for the
national forests. New Forest Service planning regulations were promulgated by the Clinton
Administration effective on November 9, 2000, but with delayed implementation. New
regulations were proposed by the Bush Administration on December 6, 2002, to supplant the
Clinton regulations, but have not been finalized. The Clinton regulations established
ecological sustainability as the priority for managing national forests, and were meant to be
phased in 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 involving public participation in and review of agency decisions that was
criticized by many environmentalists. On September 29, 2004, the FS issued an “interpretive
rule,” effective immediately without notice or comment, stating that the 1982 regulations are
not in effect, apparently leaving only the requirement to manage the national forests using
“the best available science.” This appears to eliminate the “viable species” and all other
management guidance, aside from the forest plans themselves. A lawsuit challenging this
action was filed October 26, 2004.
Federal Land Acquisition. Federal land acquisition is a perennial focus of Congress
and the public because of debates over how much land the federal government owns and
should own, and which parcels of land it should acquire. The principal source of land
acquisition funding for BLM and the Forest Service (and the Park Service and Fish and
Wildlife Service) is the Land and Water Conservation Fund (LWCF). The LWCF is
authorized at $900 million annually, but only the appropriated amount is available. Most of
the appropriations are identified for specific units of public land. Legislation has been
introduced starting with the 105th Congress to appropriate the full authorized level (the
CARA proposals) and, in some of those bills, to remove the discretion to limit funding from
the appropriators by making it mandatory spending.
On March 31, 2004, Representative George Miller introduced H.R. 4100, the latest
iteration of the CARA proposals (Conservation and Reinvestment Act). This bill has many
similarities with the earlier versions. It would dedicate $3.125 billion annually from federal
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offshore oil and gas revenues to numerous purposes, including offsetting the coastal effects
of offshore oil and gas development activities; fully funding LWCF; and funding several
other wildlife, park, and historic preservation programs. It would sunset at the end of
FY2024. The Senate CARA bill, S. 2590, does not address funding for federal land
acquisition.
Total funding for federal land acquisition using the LWCF has declined steadily over
the last two years, from $429 million in FY2002 to $165 million in FY2004. The BLM
portion dropped over that period from $49.9 million to $18.4 million, while the FS portion
declined from $149.7 million to $66.4 million. Possible explanations include the change
from a federal budget surplus to a deficit, different spending priorities since 9/11, and
concern by some about the extent of federal land ownership. The Administration’s request
for federal land acquisition for FY2005 is $220 million, including $24.0 million for BLM
and $66.9 million for FS. H.R. 4568, the FY2005 Interior appropriations bill as passed by
the House, contains $48.5 million for total federal land acquisition, with $4.5 million for
BLM and $15.5 million for FS. The Senate companion measure, S. 2804 as reported,
provides $217.1 million in total, with $22.9 million for BLM and $62.5 million for FS. (For
more information, see CRS Report RS21503, Land and Water Conservation Fund: Current
Status and Issues, by Jeffrey A. Zinn.)
LEGISLATION
Wildfire Protection.2
H.R. 1904 (McInnis); P.L. 108-148
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. December 3, 2003, enacted into law
(P.L. 108-148).
Energy Resources.
H.R. 6 (Tauzin)
Omnibus energy legislation. Federal lands could be affected by provisions including
those 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. Nov. 18, 2003, conference report (H.Rept. 108-375) agreed to in the House
(246-180). Nov. 21, 2003, Senate failed to invoke cloture (57-40) on the conference report.
H.R. 794 (Cubin)
The Coal Leasing Act Amendments of 2003 amend the Mineral Leasing Act of 1920
to repeal the 160-acre limit on coal leases, modify plan requirements and advance royalty
payments, and require periodic assessment of coal resources under public lands. Introduced
Feb. 13, 2003; referred to Committee on Resources.
2 This section does not include alternatives considered prior to the enactment of H.R. 1904.
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H.R. 2772 (Gibbons)
Amends the Geothermal Steam Act of 1970 in many ways, to alter the leasing process
and the collection and disposition of royalties, and to require a periodic assessment of
geothermal steam energy potential under federal lands. Included in conference report on
H.R. 6 (H.Rept. 108-375) Nov. 18, 2003. (See H.R. 6, above.)
H.R. 3698 (M. Udall)
The Western Waters and Surface Owners Protection Act enhances protection of water
quality and surface landowner rights in federal oil and gas development. Introduced Dec. 8,
2003; referred to Committees on Resources and on Transportation and Infrastructure.
H.R. 4017 (M. Udall)
The Western Waters and Farm Lands Protection Act enhances protection of water
quality and surface landowner rights in federal oil and gas development. Introduced Mar.
23, 2004; referred to Committee on Resources and Committee on Transportation and
Infrastructure.
H.R. 4503 (Barton)
The Energy Policy Act of 2004 is essentially the same as the conference agreement on
H.R. 6. June 15, 2004, passed the House.
H.R. 4513 (Pombo)
Modifies NEPA review process for renewable energy projects to require analysis only
of proposed and no-action alternatives. June 15, 2004, passed the House. June 17, 2004,
referred to the Senate Committee on Environment and Public Works.
H.R. 4529 (Pombo)
The Arctic Coastal Plain and Surface Mining Improvement Act of 2004 essentially
would enact the provision of H.R. 6 (as introduced) to open the Arctic National Wildlife
Refuge to oil and gas development, and would reform the Abandoned Mine Reclamation
Program. June 15, 2004, rule for House consideration agreed to.
H.R. 4549 (Pombo)
Virtually identical to H.R. 4529. Introduced June 14, 2004; referred to Committee on
Resources and Committee on Ways and Means.
H.R. 4984 (Pearce)
The Potash Royalty Reduction Act of 2004 would reduce potash royalties to 1.0% for
five years. Oct. 6, 2004, reported by House Resources Committee (H.Rept. 108-739).
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.
July 31, 2003, Senate returned S. 14 to the calendar, and passed H.R. 4 from the 107th
Congress in lieu, as an amendment in the nature of a substitute to H.R. 6.
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S. 2095 (Domenici)
Omnibus energy legislation. Federal lands could be affected by provisions including
those 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. Feb. 23, 2004, placed on the Senate legislative calendar.
Roadless Areas.
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.
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. 1938 (Corzine)
Seeks to protect ancient forests and roadless, watershed, and special areas. Introduced
Nov. 24, 2003; referred to Committee on Energy and Natural Resources.
R.S. 2477: Rights-of-Way.
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
Apr. 3, 2003; referred to Committee on Resources.
National Monuments and the Antiquities Act.
H.R. 1629 (Rehberg)
Provides that the Upper Missouri River Breaks National Monument does not include
private property within its boundaries. Nov. 21, 2003, placed on House calendar.
H.R. 2386 (Simpson)
Amends the Antiquities Act of 1906 making presidential designations of monuments
exceeding 50,000 acres ineffective unless approved by Congress within two years,
establishing a process for public input in presidential monument designations, and requiring
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.
FOR ADDITIONAL READING
CRS Report RL32306. Appropriations for FY2005: Interior and Related Agencies, by Carol
Hardy Vincent and Susan Boren, Co-coordinators.
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CRS Issue Brief IB10111. Arctic National Wildlife Refuge (ANWR): Controversies for the
108th Congress, by M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin.
CRS Report RS21917. Bureau of Land Management (BLM) Wilderness Review Issues, by
Ross W. Gorte and Pamela Baldwin.
CRS Issue Brief IB10116. Energy Policy: The Continuing Debate and Omnibus Energy
Legislation, by Robert L. Bamberger.
CRS Report RL32393. Federal Land Management Agencies: Background on Land and
Resources Management, by Carol Hardy Vincent, Coordinator.
CRS Report RS21402. Federal Lands, “Disclaimers of Interest,” and R.S. 2477, by Pamela
Baldwin.
CRS Report RL32244. Grazing Regulations and Policies: Changes by the Bureau of Land
Management, by Carol Hardy Vincent.
CRS Report RL32142. Highway Rights of Way on Public Lands: R.S. 2477 and Disclaimers
of Interest, by Pamela Baldwin.
CRS Report RS21503. Land and Water Conservation Fund: Current Status and Issues, by
Jeffrey A. Zinn.
CRS Issue Brief IB89130. Mining on Federal Lands, by Marc Humphries.
CRS Report RL30647. The National Forest System Roadless Areas Initiative, by Pamela
Baldwin.
CRS Report RS20902. National Monument Issues, by Carol Hardy Vincent.
CRS Issue Brief IB10093. National Park Management and Recreation, by Carol Hardy
Vincent, Coordinator.
CRS Report RL32315. Oil and Gas Exploration and Development on Public Lands, by
Marc Humphries.
CRS Report RL32078. Omnibus Energy Legislation: Comparison of Major Provisions in
House- and Senate-Passed Versions of H.R. 6, Plus S. 14, by Mark Holt, Coordinator.
CRS Report RL31447. Wilderness: Overview and Statistics, by Ross W. Gorte.
CRS Report RS21544. Wildfire Protection Funding, by Ross W. Gorte.
CRS Issue Brief IB10124. Wildfire Protection in the 108th Congress, by Ross W. Gorte.
CRS Report RS21880. Wildfire Protection in the Wildland-Urban Interface, by Ross W.
Gorte.
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