Order Code IB10076
CRS Issue Brief for Congress
Received through the CRS Web
Bureau of Land Management (BLM) Lands
and National Forests
Updated March 3, 2005
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
Energy Resources
Background
Administrative Actions
Legislative Activity
R.S. 2477: Rights of Way Across Public Lands
Background
Administrative Actions
Legislative Activity
Southern Nevada Public Land Management Act
Background
Administrative Actions
Legislative Activity
Wild Horses and Burros
Background
Administrative Actions
Legislative Activity
Wilderness
Background
Administrative Actions
Legislative Activity
Wildfire Protection
Background
Administrative Actions
Legislative Activity
Other Issues
Competitive Sourcing
Grazing Management
Hardrock Mining
National Forest Planning
National Monuments and the Antiquities Act
Roadless Areas of the National Forest System
LEGISLATION
FOR ADDITIONAL READING

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Bureau of Land Management (BLM) Lands and National Forests
SUMMARY
The 109th Congress is likely to consider
tion of receipts, with 70% going to the Trea-
issues related to the public lands managed by
sury rather than to a special account. No
the Bureau of Land Management (BLM) and
related legislation has been introduced.
the national forests managed by the Forest

Service (FS). The Administration might
Wild Horses and Burros. The 108th
address public lands and national forests
Congress made controversial changes to the
through budgetary, regulatory, and other
Wild Free-Roaming Horses and Burros Act of
actions. Key issues of likely congressional
1971. They included giving the agencies new
and administrative interest are covered here.
authority to sell certain old and unadoptable
wild horses and burros, and removing prohibi-
Energy Resources. Congressional and
tions on selling wild horses and burros and
administrative interest in access to federal
their remains for processing into commercial
lands for energy and mineral development was
products. Legislation has been introduced to
reflected in major energy policy legislation
overturn the changes.
that was not enacted in the 108th Congress.
Some versions would have eliminated the
Wilderness. Many wilderness recom-
160-acre limit on coal leases and authorized
mendations remain pending for national for-
demonstration technologies for unproven,
ests and BLM and other federal lands. Ques-
unconventional oil and gas reserves; others
tions also persist about wilderness reviews and
would have opened ANWR to oil and gas
management of wilderness study areas
leasing. Energy legislation remains a priority.
(WSAs). The 109th Congress will likely see
numerous bills to designate wilderness areas,
R.S. 2477 Rights of Way. Revised
and may address wilderness review and WSA
Statute (R.S.) 2477 granted rights of way to
protection.
construct highways across unreserved federal
lands, but the extent of valid rights of way is
Wildfire Protection. In 2002, the Bush
unclear in some states. Congress prohibited
Administration proposed a Healthy Forests
regulations “pertaining to” R.S. 2477 from
Initiative to protect communities from wild-
becoming effective. The Bush Administration
fires by expediting fuel reduction. Congress
developed regulations on “disclaimers of
enacted the Healthy Forests Restoration Act of
interest,” which may be used to clear title to
2003 (P.L. 108-148) with many aspects of the
R.S. 2477 highway easements. Whether the
President’s initiative and other provisions.
regulations “pertain to” R.S. 2477 remains
Wildfire protection also has been addressed
controversial. Congress may provide guid-
through changes in regulations. The 109th
ance on validating these easements.
Congress may conduct oversight on imple-
mentation of the law and regulations.
Southern Nevada Land Sales. The
Southern Nevada Public Land Management
Other Topics. Other topics of likely
Act allows the Secretary of the Interior to sell
interest include grazing management, hard-
land near Las Vegas, with the proceeds perma-
rock mining, national forest planning, national
nently appropriated for certain purposes. The
forest roadless areas, national monuments, and
President has proposed altering the distribu-
competitive sourcing.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
! P.L. 108-357 (the American Jobs Creation Act of 2004) was enacted on
October 22, 2004, with a number of energy tax incentives.
! P.L. 108-447, the FY2005 Consolidated Appropriations Act, was enacted on
December 8, 2004, with several relevant provisions: (1) it generally barred
funding of energy leasing within presidentially created monuments during
FY2005; (2) it provided $3.01 billion for wildfire protection for FY2005; (3)
it placed spending limits on DOI and FS competitive sourcing studies for
FY2005; and (4) it modified wild horse and burro management.
! In his FY2006 budget, the President proposed altering the distribution of
funds collected from land sales in Nevada, with 70% going to the general
fund of the Treasury rather than to a special account.
! On January 25, H.R. 297 was introduced to amend current law regarding
management of wild horses and burros, including to repeal certain sale
authority and prohibit sale of animals (or their remains) for processing into
commercial products.
! On January 5, 2005, the Administration issued new FS planning regulations
that emphasize (1) balancing ecological and economic sustainability, and (2)
making decisions locally.
BACKGROUND AND ANALYSIS
The Bureau of Land Management (BLM) in the Department of the Interior (DOI) and
the Forest Service (FS) in the Department of Agriculture (USDA) 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.
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 also 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.).
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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 the Federal Land
Policy and Management Act of 1976 (FLPMA, 43 U.S.C. §§1701, et seq.), sometimes called
BLM’s Organic Act because it consolidated and articulated the agency’s responsibilities.
Among other provisions, the law establishes a general national policy that the BLM-managed
public lands be retained in federal ownership, establishes management of the public lands
based on the principles of multiple use and sustained yield, and generally requires that the
federal government receive fair market value for the use of public lands and resources.
Today BLM public land management encompasses diverse uses, resources, and values, such
as energy and mineral development, timber harvesting, livestock grazing, recreation, wild
horses and burros, fish and wildlife habitat, and preservation of natural and cultural
resources.

History of the Forest Service
The FS was created in 1905, when forest lands reserved by the President (beginning in
1891) were transferred from DOI 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 and directs “harmonious
and coordinated management” to provide sustained yields of the many resources found in the
national forests — including timber, grazing, recreation, wildlife and fish, and water.
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. The Multiple-Use
Sustained-Yield Act of 1960 (16 U.S.C. §528-531) included wilderness as an appropriate use
of national forest lands, and possible national forest wilderness areas have been reviewed
under the 1964 Wilderness Act as well as in the national forest planning process. Pressure
to protect pending wilderness recommendations and other areas contributed to the Clinton
Administration’s decision to protect “roadless areas” not designated as wilderness. (See
“Other Issues,” below.)
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 — a high level of resource outputs in perpetuity, without impairing the productivity of
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the lands. Further, many issues, programs, and policies affect both agencies. For these
reasons, BLM and FS lands often are discussed together, as in this issue brief.
This brief focuses on several issues affecting BLM and FS lands that are likely to be of
interest to the 109th 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. For brief, general information on natural
resource issues, see CRS Report RL32699, Natural Resources: Selected Issues for the 109th
Congress, coordinated by Nicole Carter and Carol Hardy Vincent. Information on FY2005
appropriations for the BLM and FS (and other agencies and programs funded by the FY2005
Interior and 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 IB10145, National Park Management, coordinated by Carol Hardy Vincent, and CRS
Issue Brief IB10141, Recreation Issues in the 109th Congress, coordinated by Kori Calvert
and Carol Hardy Vincent. For information on oil and gas leasing in the Arctic National
Wildlife Refuge (ANWR), see CRS Issue Brief IB10136, Arctic National Wildlife Refuge
(ANWR): Controversies for the 109th Congress, by M. Lynne Corn, Bernard A. Gelb, and
Pamela Baldwin. For information on local compensation for the tax-exempt status of federal
lands, see CRS Report RL31392, PILT (Payments in Lieu of Taxes): Somewhat Simplified,
by M. Lynne Corn, and CRS Report RS22004, The Secure Rural Schools and Community
Self-Determination Act of 2000: Forest Service Payments to Counties, by Ross W. Gorte.
For information on other related issues, see the CRS web page at [http://www.crs.gov/].
Energy Resources (by Aaron M. Flynn)
Background. A controversial issue is whether and how 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, (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 the United
States could realize equivalent energy gains through 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. Executive Order 13212 (May 18, 2001) established an
administration policy of encouraging increased energy production on federal lands. On April
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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 analysis and permitting
process under the National Environmental Policy Act of 1969 (NEPA; P.L. 91-190, 42
U.S.C. §§4321-4347). New FS land management planning regulations (70 Fed. Reg. 1023,
Jan. 5, 2005) also are premised upon, among other things, increasing management flexibility
and streamlining energy project permitting. (See “Other Issues,” below.)
The Administration also is examining land status and reviewing public land
withdrawals. The BLM, U.S. Geological Survey (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, while others focus on the amount of lands withdrawn.
Legislative Activity. Many of the issues addressed in earlier comprehensive energy
legislation that was not enacted remain priorities for the 109th Congress. Legislative activity
in the 108th Congress resulted in several versions of comprehensive energy legislation,
including separate House- and Senate-passed bills and a conference agreement on one bill.
While comprehensive energy legislation was not enacted, a number of energy tax incentives
were enacted as part of a corporate tax law (P.L. 108-357), including incentives for marginal
oil and gas producers; for the Alaskan natural gas pipeline; and for the use of a specific clean
coal technology (termed K-Fuel) that can cut nitrogen oxides, sulfur dioxide, and mercury
emissions by 20%.
Federal lands could have been affected by various provisions of the energy legislation.
Provisions would have ended the 160-acre limit on coal lease modifications and initiated
demonstration technologies for oil and gas recovery in unproven, unconventional reservoirs
on public and private lands. They also would have altered the siting and administration of
rights of way on federal lands, and required the Secretary of the Interior to evaluate the oil
and gas leasing and permitting process, with particular emphasis on streamlining permitting
time frames. Previous energy legislation also included provisions addressing geothermal
energy production on federal lands. Legislation to expedite the geothermal energy leasing
process — H.R. 174 — has been introduced in the 109th Congress as well.
Whether to open the Arctic National Wildlife Refuge (ANWR) to oil and gas
development was one of the most contentious issues in the energy debate. A provision to
open ANWR was included in energy bills by the House, but not by the Senate. Similar
legislation, H.R. 39, has been introduced in the 109th Congress as a stand-alone bill. (See
CRS Issue Brief IB10136, Arctic National Wildlife Refuge (ANWR): Controversies for the
109th Congress, by M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin.)
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 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 Fed. Reg. 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 is to 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 the existence of R.S. 2477 rights of way in Utah, by
disclaiming any federal interest. Other states also have requested MOUs. The MOU does
not fully 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 Government Accountability Office has concluded that the Utah MOU
itself is an unlawful regulation pertaining to R.S. 2477 (GAO Opinion B-300912,
Recognition of R.S. 2477 Rights-of-Way Under the Department of the Interior’s FLPMA
Disclaimer Rules and Its Memorandum of Understanding with the State of Utah, Feb. 6,
2004). The first notice of an application for a disclaimer (filed in regard to a Utah road) was
published on February 9, 2004 (69 Fed. Reg. 6000); Utah withdrew the application on
September 16, 2004.
Legislative Activity. The 108th Congress considered, but did not enact, legislation
which would have established a process for resolving R.S. 2477 claims and would have
defined certain terms critical to evaluating the validity of such claims. Also in the 108th
Congress, the House approved an amendment to FY2004 Interior appropriations legislation
to prohibit implementation of the 2003 changes to the disclaimer regulations in certain
federal conservation areas, but this language was eliminated in conference. The 109th
Congress may consider a process and criteria for resolving R.S. 2477 claims, and also may
consider the use of disclaimers in the R.S. 2477 context.
Southern Nevada Public Land Management Act (by Carol Hardy Vincent)
Background. Historically, proceeds from the sale of BLM lands under various laws
were deposited in the general fund of the Treasury. Certain recent laws have provided for
land sales and established separate Treasury accounts available to the Secretary for
subsequent land acquisition and other purposes. A proposal in the President’s FY2006
budget seeks a legislative change to one such law — the Southern Nevada Public Land
Management Act (SNPLMA, P.L. 105-623) — to provide that most proceeds are returned
to the Treasury.
Specifically, SNPLMA allows the Secretary of the Interior to sell or exchange certain
lands around Las Vegas, NV. The Secretary and the relevant local government unit jointly
choose the lands offered for sale or exchange. In practice, these responsibilities of the
Secretary are performed by the BLM. State and local governments get priority to acquire
lands for local purposes under the Recreation and Public Purposes Act (43 U.S.C. §869).
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Proceeds from the sales are distributed in different ways, depending on which lands are sold.
In general, 85% of the money from land sales is deposited into a special account, which is
permanently appropriated for certain purposes, including (1) federal acquisition of
environmentally sensitive lands in Nevada; (2) development of a multi-species habitat
conservation plan in Clark County, NV; (3) conservation initiatives on federal land in Clark
County; (4) capital improvements at certain federal areas; and (5) development of parks,
trails, and natural areas in Clark County. The other 15% of the revenues are provided to the
State of Nevada and certain local entities, for state and local purposes such as the Nevada
general education program.
The law was enacted in part to promote sale of federal land for development near fast-
growing Las Vegas, to acquire environmentally sensitive land, and to foster competition in
land disposals in response to criticisms that the government did not consistently receive a fair
price for land it sold. Collections from SNPLMA land sales in FY2005 are estimated at $1.2
billion, vastly exceeding expectations at the time the law was enacted ($70 million annually)
and more than double the amount collected in FY2004 ($530.5 million).
Administrative Actions. The President’s FY2006 budget request supports amending
SNPLMA to change the portion of revenue dedicated to the special account. The
Administration recommends that 15% of the receipts from land sales go to the special
account and 70% go to the Treasury, with the remaining 15% provided to the state of Nevada
and local entities as under current law. The Administration states that because SNPLMA
land sales have produced receipts far beyond expectations, there is significantly more
revenue than is needed for land acquisition in Nevada. Consequently, proceeds of land sales
increasingly are being used for local projects which are not overseen by Congress, thus
reducing accountability, and do not reflect the highest needs of the nation, according to the
Administration. Further, the change would still provide for far more money for Nevada than
anticipated when the law was enacted, according to the Administration. The SNPLMA
proposal could be opposed as impeding development in the Las Vegas area, federal
acquisition of land with valuable resources, and conservation and recreation initiatives in
Clark County. It is one of many changes advocated by the Administration that affect receipts
or spending levels in FY2006 or subsequent years.

Legislative Activity. Administration budget documents for FY2006 state that the
President intends to submit a legislative proposal to accomplish his desired change regarding
SNPLMA receipts. The Administration has not done so to date, according to the BLM, and
no related legislation has been introduced to amend SNPLMA.
Wild Horses and Burros (by Carol Hardy Vincent)
Background. The Wild Free-Roaming Horses and Burros Act of 1971 (16 U.S.C.
§1331 et seq.) sought to protect wild horses and burros on federal land and placed them
under the jurisdiction of BLM and the FS. For years, management of wild horses and burros
has generated controversy and lawsuits. Controversies have involved the method of
determining the “appropriate management levels” (AMLs) for herd sizes that the statute
requires; whether and how to remove animals from the range to achieve AMLs; alternatives
to adoption for reducing wild horses and burros on the range, particularly fertility control and
holding animals in long-term facilities; and whether appropriations for managing wild horses
and burros are adequate. There was particular concern that adopted horses were slaughtered,
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despite prohibitions on that practice. (For background, see CRS Report RS21423, Wild
Horse and Burro Issues, by Carol Hardy Vincent.)
The 108th Congress enacted changes to wild horse and burro management on federal
lands in the Consolidated Appropriations Act for FY2005 (§142, P.L. 108-447). These
changes have intensified controversies. One change gives the agencies new authority to sell,
“without limitation,” excess animals (or their remains) which essentially are deemed too old
(more than 10 years old) or otherwise unable to be adopted (tried unsuccessfully at least thee
times). A second change removed provisions of law that had barred wild horses and burros
and their remains from being sold for processing into commercial products. A third change
removed criminal penalties for processing into commercial products the remains of a wild
horse or burro, if it is sold under the new authority. Also, the law did not expressly prohibit
BLM from slaughtering healthy wild horses and burros, as had annual appropriations bills
apparently each year starting in FY1988. These changes have been supported as providing
a cost-effective way of helping the agencies achieve AML, to improve the health of the
animals, protect range resources, and restore a natural ecological balance on federal lands.
The changes have been opposed, particularly by animal rights activists, as potentially leading
to the slaughter of large numbers of healthy animals.

Administrative Actions. It is unclear how BLM will implement the changes enacted
in §142, and how they affect the agency’s ambitious multi-year effort to reduce wild horses
and burros on its lands to achieve AML. About 8,400 wild horses and burros are affected
by the new law, according to BLM. The agency has completed its first sale under the new
authority, with the sale of 200 wild horses to a Wyoming company seeking to protect them.

There are currently about 37,000 wild horses and burros on the range, with the national
AML set at between 26,000 and 28,000, according to different BLM estimates. BLM
manages another 24,000 animals in holding facilities. For management of wild horses and
burros during FY2006, BLM has requested $36.9 million, a reduction of $2.1 million (5%)
from the FY2005 level of $39.0 million. The agency asserts in its FY2006 budget
justification that the reduction can be accomplished through program efficiencies, such as
a reduction in the cost of the agency’s adoption program; an increase in the number of
animals adopted; and a reduction in the number of animals maintained in long-term holding
facilities, presumably in part through the new sale authority. The cost per animal per year
in long-term holding facilities is between $465 and $500, according to varying BLM
estimates. During FY2005, BLM expects to reduce the number of animals in long-term
facilities by 5,000 head, reducing budgets need for FY2006.
Legislative Activity. Legislation has been introduced in the 109th Congress (H.R.
297) to overturn the changes to wild horse and burro management enacted during the 108th
Congress. Specifically, the bill would repeal provisions of law that allow the sale of certain
excess animals or their remains and that remove related criminal penalties for processing into
commercial products the remains of such animals. The measure also would bar the sale of
wild horses and burros or their remains for processing into commercial products. No further
action has been taken on the bill.
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Wilderness (by Ross W. Gorte and Pamela Baldwin)
Background. 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 commercial activities,
motorized access, and roads, structures, and facilities generally are restricted in wilderness
areas. (See CRS Report RS22025, Wilderness Laws: Permitted and Prohibited Uses, by
Ross W. Gorte.) Similarly, agency wilderness studies are controversial because many uses
also 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 below) was prompted by a view that Congress had lagged in designating areas
which many assert should be wilderness. Others assert that the Bush Administration — in
addressing R.S. 2477 rights-of-way (discussed below), promulgating new guidance to end
additional, formal BLM wilderness study areas, and eliminating the nationwide national
forest roadless area protections of the Clinton Administration — is attempting to open areas
with wilderness attributes to energy and mineral exploration, roads, and development,
thereby making them ineligible to be added to the Wilderness System.
Administrative Actions. The Wilderness Act directed the Secretary of Agriculture
to review the wilderness potential of administratively designated national forest primitive
areas and the Secretary of the Interior to review the wilderness potential of National Park
System and National Wildlife Refuge System lands. The Forest Service expanded its review
and sent recommendations to the President and Congress in 1979. “Release language,”
agreed to in statutes designating national forest wilderness areas, provides for periodic
review of potential national forest wilderness areas in the agency’s planning process. The
Secretary of the Interior was directed to review the wilderness potential of BLM lands in
§603 of FLPMA, and to maintain the wilderness character of wilderness study areas (WSAs)
“until Congress has determined otherwise.” (For background, see CRS Report RL31447,
Wilderness: Overview and Statistics, by Ross W. Gorte.)
In 1996, following debate over additional wilderness areas proposed in legislation for
Utah, then-Secretary of the Interior Bruce Babbitt used the BLM authority to inventory its
lands and resources (§201 of FLPMA; 43 U.S.C. §1711) to identify an additional 2.6 million
acres in Utah as having wilderness qualities. The state of Utah filed suit alleging that the
inventory was illegal. On September 29, 2003, Interior Secretary Gale Norton settled the
case and issued new wilderness guidance (Instruction Memoranda Nos. 2003-274 and 2003-
275) prohibiting further wilderness reviews and limiting the “nonimpairment” standard of
management to the BLM’s previously designated wilderness study areas. (See CRS Report
RS21917, Bureau of Land Management (BLM) Wilderness Review Issues, by Ross W. Gorte
and Pamela Baldwin.)
Legislative Activity. Many of the administrative wilderness recommendations
remain pending, including some national forest areas and many BLM and National Park
System areas. Many bills to designate wilderness areas typically are introduced in each
Congress, and nearly a dozen such bills have been introduced to date in the 109th Congress.
One bill, designating 14 new BLM wilderness areas (among other provisions), was enacted
in the 108th Congress (P.L. 108-424). Note that the “Legislation” section, near the end of this
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report, does not identify each bill that would designate new wilderness areas; rather, it
identifies bills that would substantively amend the Wilderness Act or alter wilderness or
WSA management.
Bills also were introduced in the 106th, 107th, and 108th Congresses to prohibit future
wilderness reviews and to place time limits on WSA status, generally terminating WSAs 10
years after the bills’ enactment or after Congress establishes new WSAs. The House
Committee on Resources reported bills in the 106th and 107th Congresses, but there was no
floor consideration. No action occurred in the 108th Congress.
Wildfire Protection (by Ross W. Gorte)
Background. Recent fire seasons have killed firefighters, burned homes, threatened
communities, and killed trees. Many argue that the threat of severe wildfires has grown,
because many forests have unnaturally high fuel loads (e.g., dense undergrowth and dead
trees) and increasing numbers of structures are in and near the forests (the wildland-urban
interface). Reducing fuels on federal lands has been urged as a way 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. Opponents of
accelerated review processes argue 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 reducing fuels and modifying structures on private
lands. The National Fire Plan is the program of wildfire protection activities and funding for
the FS and BLM.
Administrative Actions. In August 2002 (107th Congress), the Bush Administration
proposed a Healthy Forests Initiative to improve wildfire protection by expediting projects
to reduce hazardous fuels. 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 fire protection activities, which remain 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 are limited in scale, and 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 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 (1) to clarify that some emergency actions may be implemented immediately and
others after complying with publication requirements; and (2) 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 has made other regulatory changes that could affect fuel reduction,
public involvement, and environmental impacts. For example, new categorical exclusions
for small timber harvesting projects (68 Fed. Reg. 44598, July 29, 2003) and new regulations
for FS forest planning (70 Fed. Reg. 1023, Jan. 5, 2005; see “Other Issues,” below) have
been completed. The total impact of the regulatory changes is generally greater discretion
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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. (See CRS Report RS22024, Wildfire
Protection in the 108th Congress, by Ross W. Gorte.) Title I authorized a new, alternative
process for reducing fuels on national forest or BLM lands in certain areas. 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,
providing comments on proposed projects, collaborating, and multiparty monitoring of
project effects. Lawsuits must be filed in the district court for the project’s area, and courts
are encouraged to review cases expeditiously. However, under the act, similar projects
expressly can be implemented under other authorities, including the new regulatory processes
described above. P.L. 108-148 contained five other titles that indirectly relate to fire
protection. The 109th Congress may conduct oversight of the implementation of this law and
the several new regulations.
Congress also has addressed wildfire protection through appropriations. For FY2006,
the Administration has requested $2.47 billion for the National Fire Plan. For FY2005,
Congress provided $3.00 billion for wildfire protection, including supplemental and
emergency funding.1 (For more information, see CRS Report RL32306, Appropriations for
FY2005: Interior and Related Agencies, coordinated by Carol Hardy Vincent and Susan
Boren.)
Other Issues
Several other federal lands topics could be addressed through legislation or oversight.
These include agency competitive sourcing initiatives, grazing management, hardrock
mining, national forest planning, national monuments and the Antiquities Act, and roadless
areas of the national forest system.
Competitive Sourcing. (by Carol Hardy Vincent) The Bush Administration’s
Competitive Sourcing Initiative would subject federal agency activities judged to be
commercial in nature to public-private competition. This government-wide effort could
affect diverse government activities in federal agencies, including BLM and the FS. The
Administration’s goal is to save money through competition, particularly in areas where
private business might provide better commercial services (e.g., administration 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.
Through December 2004, BLM had studied 415 full-time equivalents (FTEs) to determine
whether they should be subject to competitive bidding. That represents 12% of the agency’s
3,340.5 FTEs identified as commercial. While 176 FTEs were subjected to competitive
bidding, none were contracted out. For the FS, similar information is not readily available.
1 Funding has risen substantially over the past decade or so. For instance, there was average
spending of $1.07 billion annually for FY1994-FY1999.
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P.L. 108-447 specified that agencies include, in reports to Congress on competitive
sourcing, information on costs associated with sourcing studies and related activities. The
law also placed spending limits on agency competitive sourcing studies during FY2005,
limiting funds for FS competitive sourcing studies to $2.0 million. For DOI, the cap is $3.25
million, unless the appropriations committees approve an agency reprogramming proposal.
The portion for BLM was not specified. However, the FY2006 BLM budget justification
states that the agency received $562,000 for competitive sourcing, which will be used for
planning and competitive sourcing studies on 80 to 100 FTEs. For FY2006, the BLM is
seeking another $562,000, for planning and competitive sourcing studies on up to 150 FTEs.
The FY2006 Forest Service budget justification states that the agency will conduct its
FY2005 studies within the $2.0 million cap imposed by law. The agency is not requesting
funds for competitive sourcing for FY2006, but instead will focus on implementing
completed studies and analyzing study results. (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.)
Grazing Management. (by Carol Hardy Vincent) 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. The agency is developing a final grazing rule.
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. BLM did not address some controversial issues, such as revising the
grazing fee or authorizing the agency to establish reserve common allotments for permittees
to use while their normal allotments undergo rest or range improvements.
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. No timetable for
completion of policy changes has been announced. (For more information, see CRS Report
RL32244, Grazing Regulations and Policies: Changes by the Bureau of Land Management,
by Carol Hardy Vincent.) The 109th Congress may conduct oversight on the proposed
changes or the final changes when they have been completed.
Hardrock Mining. (by Aaron M. Flynn) Reform of the General Mining Act of 1872,
the law governing hardrock mining on federal public lands, may be undertaken by the 109th
Congress. The Mining Act authorizes a prospector to locate and claim an area believed to
contain a valuable mineral deposit, subject to the payment of certain fees. At such time,
mineral development may proceed and, if certain minimum conditions are met, the Mining
Act authorizes claim holders to patent — or acquire title to — the federal land contained
within the claim area and to patent attendant millsites. Some argue that title acquisition
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encourages mineral production in a variety of ways, including assurance of necessary land
access and facilitation of project financing. Others argue that the patent system is
unnecessary and deprives the government of fair market value for transferred lands, and that
mining incentives can be achieved through other measures. As this debate has continued,
Congress has placed yearly moratoria on mineral claim patents through appropriations
legislation, most recently in the FY2005 Consolidated Appropriations Act (P.L. 108-447).
Similarly, critics of the Mining Act suggest that the lack of a production-related royalty, as
is required for oil, gas, and several other minerals, also serves as an unnecessary
subsidization of the mining industry. Legislation has been introduced in previous Congresses
that would have required royalty payments, but such provisions have not been enacted.
Additional reforms also have been proposed. Significant issues, such as environmental
protection and abandoned mine reclamation, have been addressed in past legislation (e.g.,
H.R. 504 and H.R. 2141, 108th Congress), although major reforms have not been enacted.
Recent administrative activities in these areas also have been controversial. First, in October
2001, the Bush Administration eliminated several Clinton Administration regulations
designed 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 (66 Fed. Reg. 54834). A November 18, 2003, federal district court
decision upheld the Bush regulations against challenge by several environmental groups,
despite concluding that they may arguably constitute “unwise and unsustainable” land use
policy.
National Forest Planning. (by Ross W. Gorte) New FS planning regulations were
promulgated by the Clinton Administration in November 2000, but implementation of them
was delayed. On January 5, 2005, the Bush Administration issued two new rules. The first
(70 Fed. Reg. 1022) removes the Clinton regulations, and the second (70 Fed. Reg. 1023-
1061) finalizes new FS planning regulations. The Clinton regulations established ecological
sustainability as the priority for managing national forests. The Bush regulations seek to
simplify planning in response to concerns about the feasibility of the Clinton regulations.
Plans are to be an articulation of desired conditions and goals, and all planning details will
be moved to the level of agency “directives.” Because plans will guide activity decisions,
and not make decisions, they are to be categorically excluded from NEPA analysis and public
involvement requirements. The new regulations replace ecological sustainability as the main
priority for the national forests with a balance of ecological, economic, and social
sustainability. The regulations do not address species viability, roadless areas, or many other
specific topics. These and other regulatory changes affecting public participation in, and
review of, agency decisions have been criticized by many environmentalists and others. The
109th Congress may review the new FS planning regulations.
National Monuments and the Antiquities Act. (by Carol Hardy Vincent)
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.

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President Clinton’s establishment or enlargement of 22 monuments set off renewed
controversy regarding presidential authority to proclaim monuments. To date, courts have
upheld the monuments. Currently, BLM is formulating and analyzing management options
and issuing management plans for some of the monuments. Some issues have involved
recreational uses, including off-highway vehicles, and commercial uses, including grazing
and energy development. The 108th Congress focused 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. A bill was
introduced to limit the President’s authority to designate national monuments and establish
a process for input into presidential monument designations, but no further action was taken.
The 108th Congress enacted legislation (P.L. 108-447) that essentially bars FY2005 funds
from being used for energy leasing activities within the boundaries of presidentially created
national monuments. (For more information on monument issues, see CRS Report
RS20902, National Monument Issues, by Carol Hardy Vincent.) The 109th Congress may
consider legislation restricting presidential authority and altering President Clinton’s
proclamations.
Roadless Areas of the National Forest System. (by Pamela Baldwin) The
Clinton Administration issued several rules affecting the roadless areas of the National Forest
System (NFS). The principal rule (66 Fed. Reg. 3244, Jan. 12, 2001) resulted in a nationwide
approach to management that curtailed, but did not eliminate, most roads and timber cutting
in roadless areas. This national guidance was justified as avoiding the litigation and delays
that had occurred when decisions were made at the level of each national forest. The rule
was twice enjoined. The Bush Administration has proposed a new general rule that would
replace the Clinton rule by allowing governors of states to petition the FS to promulgate
separate statewide rules on roadless area management (69 Fed. Reg. 42636, July 16, 2004).
Until new roadless area regulations are finalized, the FS is managing roadless areas in
accordance with interim directives that place most decisions with the Regional Forester, and
some with the Chief of the FS, until each forest plan is amended or revised to address
roadless area management. This returns decisions on roadless area management to the
individual forest planning process, basically reversing the Clinton nationwide roadless rule.
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. New NFS planning regulations finalized January 5, 2005, do not
address roadless areas, apparently leaving decisions involving them to the project level
within each forest. (For more information on roadless area issues, see CRS Report RL30647,
The National Forest System Roadless Areas Initiative, by Pamela Baldwin.) The 109th
Congress may review administrative guidance for roadless area management.
LEGISLATION
H.R. 39 (Don Young)
The Arctic Coastal Plain Domestic Energy Security Act of 2005 would establish a
competitive oil and gas leasing program for the Arctic National Wildlife Refuge. Introduced
January 4, 2005; referred to House Committee on Resources.
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H.R. 174 (Millender-McDonald)
The Geothermal Energy Initiative Act of 2005 would encourage the use of geothermal
power for energy production. Introduced January 4, 2005; referred to House Committee on
Resources and Committee on Agriculture.
H.R. 297 (Rahall)
This bill would amend the Wild Horses and Burros Act (P.L. 92-195; 16 U.S.C. §1333
(d)(5)) to restore the prohibition on the commercial sale and slaughter of wild horses and
burros. Introduced January 25, 2005; referred to House Committee on Resources.
H.R. 411 (Renzi)
The Cattleman’s Bill of Rights Act would direct compensation for ranchers when
government actions reduced their allowed amount of grazing. Introduced January 26, 2005;
referred to House Committee on Resources and Committee on Agriculture.
FOR ADDITIONAL READING
CRS Report RL32306. Appropriations for FY2005: Interior and Related Agencies, by Carol
Hardy Vincent and Susan Boren, Co-coordinators.
CRS Issue Brief IB10136. Arctic National Wildlife Refuge (ANWR): Controversies for the
109th 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 IB10143. Energy Policy: Legislative Proposals in the 109th Congress, 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.
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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 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 Issue Brief IB10141. Recreation Issues in the 109th Congress, coordinated by Kori
Calvert and Carol Hardy Vincent.
CRS Report RS21423. Wild Horse and Burro Issues, by Carol Hardy Vincent.
CRS Report RS22025. Wilderness Laws: Permitted and Prohibited Used, by Ross W. Gorte.
CRS Report RL31447. Wilderness: Overview and Statistics, by Ross W. Gorte.
CRS Report RS21544. Wildfire Protection Funding, by Ross W. Gorte.
CRS Report RS22024. 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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