Order Code IB10076
CRS Issue Brief for Congress
Received through the CRS Web
Bureau of Land Management (BLM)
Lands and National Forests
Updated October 26, 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
Wild Horses and Burros
Background
Administrative Actions
Legislative Activity
Wilderness
Background
Administrative Actions
Legislative Activity
Wildfire Protection
Background
Administrative Actions
Legislative Activity
Southern Nevada Public Land Management Act
Background
Administrative Actions
Legislative Activity
R.S. 2477: Rights of Way Across Public Lands
Background
Administrative Actions
Legislative Activity
Other Issues
Competitive Sourcing
Grazing Management
Hardrock Mining
National Forest Planning
Forest Service NEPA Categorical Exclusions
Roadless Areas of the National Forest System
National Monuments and the Antiquities Act
LEGISLATION
FOR ADDITIONAL READING

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Bureau of Land Management (BLM) Lands and National Forests
SUMMARY
The 109th Congress is considering issues
Wildfire Protection. The Healthy For-
related to the public lands managed by the
ests Restoration Act of 2003 (P.L. 108-148),
Bureau of Land Management (BLM) and the
President Bush’s Healthy Forests Initiative,
national forests managed by the Forest Service
and other provisions may help protect commu-
(FS). The Administration is addressing issues
nities from wildfires by expediting fuel reduc-
through budgetary, regulatory, and other
tion. Wildfire protection also has been ad-
actions. Several key issues of congressional
dressed through changes in regulations. The
and administrative interest are covered here.
2005 fire season is on a pace to be the worst
on record. The 109th Congress is conducting
Energy Resources. The Energy Policy
oversight on fire protection and implementa-
Act of 2005 has been enacted into law and
tion of the law and regulations. Hurricane
affects energy development on federal lands in
Katrina damaged southern forests, exacerbat-
a variety of ways, including through changes
ing fuel problems
to the federal oil, gas, and coal leasing pro-
grams and the application of environmental
Southern Nevada Land Sales. The
laws to certain energy-related agency actions.
Southern Nevada Public Land Management
Significant changes at the administrative level
Act allows the Secretary of the Interior to sell
may be forthcoming in response to the legisla-
land near Las Vegas, with the proceeds perma-
tion’s enactment. New legislation has also
nently appropriated for certain purposes. The
been introduced to address evolving energy
President has proposed altering the distribu-
issues related to public lands.
tion of receipts, with 70% going to the Trea-
sury rather than to a special account. No
Wild Horses and Burros. Controversial
related legislation has been introduced.
changes to the Wild Free-Roaming Horses
and Burros Act of 1971 gave the agencies
R.S. 2477 Rights of Way. Revised
authority to sell certain old and unadoptable
Statute (R.S.) 2477 granted rights of way to
animals and removed the ban on selling wild
construct highways across unreserved federal
horses and burros and their remains for com-
lands, but the extent of valid rights of way is
mercial products. BLM has resumed animal
unclear in some states. Bush Administration
sales with provisions to prevent their slaugh-
regulations on “disclaimers of interest” may
ter. Bills have been introduced to overturn the
be used to clear title to R.S. 2477 highway
changes (H.R. 297/S. 576) and to foster adop-
easements; this may “pertain to” R.S. 2477
tions and sales (H.R. 2993/S. 1273).
which has been prohibited by Congress.
Wilderness. Many wilderness recom-
Other Issues. The Administration and
mendations for federal lands are pending.
Congress have addressed other issues, as well,
Questions persist about wilderness review and
including competitive sourcing, grazing man-
managing wilderness study areas (WSAs).
agement, national forest planning, FS NEPA
Bills to designate areas have been introduced,
categorical exclusions, national forest roadless
and the 109th Congress may address wilder-
areas, hardrock mining, and national monu-
ness review and WSA protection.
ments.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
! P.L. 109-54, the FY2006 Interior appropriations act, capped funds for DOI
and FS competitive sourcing studies; barred funds for energy leasing
activities in national monuments; and provided funds for wildfire protection
for management of wild horses and burros.
! As of October 14, wildfires in 2005 have burned 8.2 million acres, more
than any of the past five years, nearly 80% above the 10-year average, and
on a pace to exceed the post-1960 record of 8.4 million acres (in 2000).
! As of September 20, 2005, 1,445 wild horses and burros have been sold
under a new authority enacted in December of 2004.
! On August 9, 2005, BLM announced an intent to prepare a supplement to
its final environmental impact statement on proposed changes to regulations
on livestock grazing.
! On July 2, 2005, a U.S. District Court ruled that certain FS regulations
related to categorical exclusions from NEPA for certain decisions (and thus
also exempt from certain public challenges) violated the law. The FS has
responded by suspending more than 1,500 permits, projects, and contracts.
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.).
Congress frequently has debated how to manage federal lands, and whether to retain or
dispose of the remaining public lands. In 1976, Congress enacted the Federal Land Policy
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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 is 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
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.
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This brief focuses on several issues affecting BLM and FS lands that are 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 Resources
Management. For brief, general information on natural resource issues, see CRS Report
RL32699, Natural Resources: Selected Issues for the 109th Congress. Information on
FY2006 appropriations for the BLM and FS (and other agencies and programs funded by
Interior and Related Agencies appropriations bills) is included in CRS Report RL32893,
Interior, Environment, and Related Agencies: FY2006 Appropriations. For information on
park and recreation issues, see CRS Issue Brief IB10145, National Park Management, and
CRS Issue Brief IB10141, Recreation on Federal Lands. 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. 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, and CRS Report
RS22004, The Secure Rural Schools and Community Self-Determination Act of 2000: Forest
Service Payments to Counties. For information on other related issues, see the CRS web
page at [http://www.crs.gov/].
Energy Resources (by Aaron M. Flynn)
Background. BLM administers the Mineral Leasing Act of 1920, which governs the
leasing of onshore oil and gas, coal, and other minerals on many federal lands, including
lands managed by the BLM and the FS. Leasing on BLM lands goes through a multi-step
approval process. If the minerals are located on FS lands, the FS must perform a leasing
analysis and approve leasing decisions for specific lands before BLM may lease minerals.
A controversial issue is whether and how to increase access to federal lands for energy
and mineral development. A BLM study (Dec. 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. In January
2003, several federal agencies issued a similar assessment, 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 these reports show that
more federal lands currently are available for energy development than generally had been
realized, while others focus on the amount of lands withdrawn.
The oil and gas industry contends that entry into areas off-limits to development,
particularly in the Rocky Mountain region, is necessary to ensure future domestic oil and gas
supplies. Opponents maintain that the 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 RL33014, Leasing
and Permitting for Oil and Gas Development on Federal Public Domain Lands.)
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Administrative Actions. Executive Order 13212 (May 18, 2001) established a
policy of encouraging increased energy production on federal lands, and a series of
administrative actions have followed to implement this policy. Recent FS land management
planning regulations (70 Fed. Reg. 1023, Jan. 5, 2005) have been promulgated to increase
management flexibility and streamline energy project permitting, among other things. (See
“Other Issues,” below.) The BLM and FS have also proposed significant changes to
regulations governing the approval of oil and gas leases (70 Fed. Reg. 43349, July 27, 2005).
The changes would include new requirements for development on split estates, a new
approval process for multiple wells based on a single environmental review and a Master
Development Plan, and additional bonding requirements. The proposal would also
encourage the use of various best management practices aimed at reducing surface, visual,
and wildlife impacts.
Additionally, BLM has issued a final rule (70 Fed. Reg. 58854, Oct. 7, 2005) governing
the fees the agency will charge for processing documents associated with mineral
development. In accordance with the Energy Policy Act of 2005, certain fee changes
associated with oil and gas applications for permits to drill and geothermal exploration and
drilling permits have been deferred until the completion of a permitting pilot program.
Legislative Activity. The Energy Policy Act of 2005 (P.L. 109-58) has been enacted
into law. The new law affects federal lands in a variety of ways. It significantly amends the
Geothermal Steam Act of 1970, providing new guidelines for geothermal development of
BLM and FS lands, imposing new royalty rates, and deeming geothermal leasing consistent
with existing land management plans. The law also amends the Mineral Leasing Act to
modify statutory requirements governing federal coal leases, ending the 160-acre limit on
coal lease modifications and allowing certain mining operations to continue beyond the
current 40-year limitation. In addition, the law makes several changes in the regulation of
onshore federal oil and gas. The Secretary of the Interior must evaluate and streamline the
existing oil and gas leasing and permitting processes and establish a Federal Permit
Streamlining Pilot Project. Oil and gas lease acreage limitations are also relaxed and a
five-year reclamation program for abandoned well sites on federal lands is authorized.
Additional provisions include requirements that DOI and USDA establish utility corridors
on federal lands and that the Secretary of Interior take additional steps to move forward with
oil shale leasing.
The House has recently passed new energy policy legislation, and it too would affect
the administration of BLM and FS lands, if enacted. The Gasoline for America’s Security
Act, H.R. 3893, would, among other things, require the President to designate certain federal
lands, which might include lands under the jurisdiction of BLM or FS, as suitable for refinery
construction or expansion. Upon such designation, an expedited permitting process would
be available for a refinery sited in the designated area.
Whether to open the Arctic National Wildlife Refuge (ANWR) to oil and gas
development continues to be one of the most contentious issues in the energy debate. This
issue may be addressed through the budget reconciliation process. For more information, see
CRS Issue Brief IB10136, Arctic National Wildlife Refuge (ANWR): Controversies for the
109th Congress.
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Finally, legislation affecting energy development on federal lands has been introduced
in response to Hurricane Katrina. The Hurricane Katrina Energy Emergency Relief Act, H.R.
3710, would require the suspension of any royalty relief program applicable to oil or natural
gas production from federal lands, so long as specified commodity prices were maintained.
The resulting royalty payments would then be available at the discretion of the President for
authorized disaster relief and for the Low-Income Home Energy Assistance Program.
Additional bills have been introduced in the 109th Congress addressing specific energy and
other mineral leasing issues, such as geothermal energy access, potash or soda ash royalties,
and coal leasing procedures. However, the numerous bills on specific energy and other
mineral leasing issues are not listed in the “Legislation” section of this report.
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, as 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,
despite prohibitions on that practice. (For background, see CRS Report RS21423, Wild
Horse and Burro Issues.)
The 108th Congress enacted changes to wild horse and burro management on federal
lands (§142, P.L. 108-447). These changes have intensified controversies. One change gave
the agencies new authority to sell, “without limitation,” excess animals (or their remains) that
essentially are deemed too old (more than 10 years old) or otherwise unable to be adopted
(tried unsuccessfully at least three times). Proceeds are to be used for the BLM wild horse
and burro adoption program. A second change removed the ban on wild horses and burros
and their remains 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 annual appropriations bills
apparently had since FY1988. These changes have been supported as providing a cost-
effective way to help the agencies achieve AML, to improve the health of the animals, to
protect range resources, and to restore a natural ecological balance on federal lands. The
changes have been opposed as potentially leading to the slaughter of healthy animals.

Administrative Actions. On April 25, 2005, BLM temporarily suspended sale and
delivery of wild horses and burros, due to concerns about the slaughter of some animals sold
under the new authority. According to BLM, 41 animals that were sold under the new
authority were subsequently resold or traded, and then sent to slaughterhouses by the new
owners. Another 52 animals also had been sold to slaughterhouses, but Ford Motor Co.
committed to purchasing them. On May 19, 2005, the agency resumed sales after revising
its bill of sale and pre-sale negotiation procedures to protect sold animals from slaughter.
Purchasers formerly gave written affirmation of an intent to provide humane care, and now
also must agree not to knowingly sell or transfer ownership of animals to persons or
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organizations that intend to resell, trade, or give away animals for processing into
commercial products. Sales contracts also now incorporate criminal penalties for anyone
who knowingly or willfully falsifies or conceals information. Some horse advocates have
questioned whether the penalties would withstand legal challenge because the law provides
for the sale of animals without limitation. Also, according to BLM, purchased animals are
classified as private property free of federal protection. BLM also pursued agreements with
the three U.S. horse processing plants to not purchase horses sold under the new law. While
there are no written agreements, the plants apparently have taken steps to preclude accepting
these animals.
According to the BLM, 8,400 wild horses and burros initially were affected by the new
law. There are about 7,000 animals available for sale currently, with 1,445 having been sold
and delivered as of September 20, 2005. BLM has been negotiating sales of groups of excess
animals, for instance with ranchers, tribes, and horse, humane, and other organizations, with
the price determined on a case-by-case basis. Ranchers, horse advocates, and other
prospective purchasers are considering or promoting several related ideas. They include
outsourcing the sale of wild horses and burros; creating private sanctuaries as tourist
attractions; raising funds for wild horses and burros by selling horse sponsorships; and
allowing proceeds of land disposals to be used for wild horse and burro management.
As of February 2005, there were about 32,000 wild horses and burros on the range, with
the national maximum AML set at 28,000, according to BLM. BLM has been pursuing a
multi-year effort to achieve AML. Some critics assert that the current AMLs are set low in
favor of livestock. BLM manages another 24,500 animals in holding facilities, as of October
2005. For management of wild horses and burros during FY2006, BLM requested $36.9
million, a reduction of $2.1 million (5%) from the FY2005 level of $39.0 million. The
agency asserted that the reduction can be accomplished through program efficiencies, such
as a reduction in the cost of the adoption program; an increase in animals adopted; and an
expected reduction during FY2005 of 5,000 animals in long-term holding facilities. The cost
per animal per year in these facilities is $465-$500, according to varying BLM estimates.
Legislative Activity. P.L. 109-54, the FY2006 Interior appropriations law, provided
$36.9 million for BLM management of wild horses and burros (excluding a rescission of
0.476%), and an additional $1.2 million in fees collected from adoptions. It did not prohibit
funds for the sale or slaughter of wild horses and burros, as originally passed by the House.
In addition, bills have been introduced (H.R. 297 and S. 576) to overturn the changes to wild
horse and burro management enacted during the 108th Congress. (See “Background,” above.)
Other bills (H.R. 2993 and S. 1273) seek to foster the sale and adoption of wild horses and
burros while establishing further protections. Changes include eliminating the limit of four
animals per adopter per year; reducing the minimum adoption fee from $125 to $25 per
animal; removing the provision that excess, unadoptable animals be destroyed in a humane
and cost-effective manner and making them available for sale; imposing a one-year wait
period before buyers obtain title to sold animals, and removing the provision for sale of
animals “without limitation.” Some opponents fear that additional sales or adoptions could
increase the risk of slaughter.
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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 wilderness.
Designations are 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.) 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 belief that Congress had lagged in designating areas
which “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 roads, energy and mineral exploration, 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, in
statutes designating national forest wilderness areas, and the new FS planning regulations (36
C.F.R. §219.7(a)(5)(ii)) provide 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.” In 1996, following debate over
additional wilderness areas proposed in legislation for Utah, then-Secretary 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 WSAs. (See CRS Report RS21917, Bureau of Land Management (BLM)
Wilderness Review Issues.)
Legislative Activity. Many wilderness recommendations remain pending, including
some FS areas and many BLM and Park System areas. Nearly 20 such bills for wilderness
areas in more than a dozen states have been introduced this Congress. The “Legislation”
section of this report does not identify these bills; it identifies bills to substantively amend
the Wilderness Act or alter wilderness or WSA management.
Bills were introduced in the 106th, 107th, and 108th Congresses to prohibit future BLM
wilderness reviews and to place time limits on WSA status, generally terminating WSAs 10
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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. To date, no wilderness review
or WSA legislation had been introduced in the 109th Congress.
Wildfire Protection (by Ross W. Gorte)
Background. Recent fire seasons have killed firefighters, burned homes, threatened
communities, and destroyed trees. The 2005 fire season is on a pace to be the worst since
record-keeping began in 1960, with 8.2 million acres burned through October 14, nearly 80%
above the 10-year average. Many assert 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 contend 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), President Bush proposed
a Healthy Forests Initiative to improve wildfire protection by expediting projects to reduce
hazardous fuels on federal lands. 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”).
The Administration has made several regulatory changes to facilitate fire protection
activities, which 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 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.”
A U.S. District Court found these and other regulations violate the legal requirements for
public review of FS decisions. (See “Other Issues,” below.)
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 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 for FS
action without environmental studies and with fewer opportunities for the public to comment
on, or to request administrative review of, those actions.
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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.) Title I authorized a new, alternative process for reducing
fuels on FS or BLM lands in many areas. The act contained five other titles that indirectly
relate to fire protection.
The 109th Congress is overseeing the implementation of this law. On February 17,
2005, a House Resources subcommittee hearing focused on a Government Accountability
Office (GAO) review of progress in wildfire protection. The GAO report (GAO-05-147) and
testimony (GAO-05-353T) found some progress, but noted that the agencies lack a cohesive
long-term strategy for addressing excess fuels and other wildfire threats. On April 26, 2005,
the Senate Energy and Natural Resources Committee held a hearing on wildfire
preparedness. GAO’s report (GAO-05-380) and testimony (GAO-05-627T) noted that the
knowledge and technology for protecting structures and improving communications exist,
but their adoption by landowners and governmental agencies has been slow. Also, questions
were raised about the airworthiness of firefighting airtankers, in the wake of an airtanker
crash in California on April 20, 2005. On July 14, 2005, witnesses testified before a House
Appropriations subcommittee on progress in implementing the National Fire Plan; GAO
testified on the need for identifying long-term options and funding needs (GAO-05-923T).
On August 31, 2005, the House Resources Subcommittee on Forests and Forest Health held
a field hearing on the health of the Black Hills (SD) National Forest.
Congress also has addressed wildfire protection through appropriations. The FY2006
Interior appropriations act (P.L. 109-54) included $2.59 billion for the National Fire Plan,
$76.7 million (3%) more than the Administration requested and $413.2 million (14%) less
than the FY2005 appropriations (including $524.1 million of emergency and supplemental
funds for FY2005).1 The law also included provisions requiring a report on the Biscuit fire
(OR) rehabilitation and consideration of the effects of competitive sourcing (see below) on
wildfire protection. (See CRS Report RL32893, Interior, Environment, and Related
Agencies: FY2006 Appropriations.) In addition, bills have been introduced to alter
firefighter and fire organization compensation and safety practices, and a provision was
included in the Energy Policy Act of 2005 (§210) authorizing grants for producing energy
from biomass fuels removed from forests to reduce wildfire risks.
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 to change one such law — the Southern Nevada Public Land Management Act
(SNPLMA, P.L. 105-263) — to send most proceeds to the Treasury.
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
1 Funding has risen substantially over the past decade or so. Average spending for FY1994-FY1999
was $1.07 billion annually.
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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). Proceeds are
distributed in different ways, depending on which lands are sold. In general, 85% 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 supported
amending SNPLMA to change the allocation of revenue to the special account. The
Administration recommended that 15% of the receipts go to the special account and 70% go
to the Treasury, with the remaining 15% to the state of Nevada and local entities as under
current law. The Administration stated 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 stated 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. P.L. 109-54, the FY2006
Interior appropriations act, did not include a House-passed provision to require the Secretary
of the Interior to report on expenditures under SNPLMA during FY2003 and FY2004.
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
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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. GAO 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. Two new Utah applications
have been filed (70 Fed. Reg. 19500, April 13, 2005). A recent case concluded that state law
plays a significant role in determining the validity of R.S. 2477 highways, but also cast doubt
on the use of administrative disclaimers to validate such rights of way. (See SUWA v. BLM,
2005 U.S. App. LEXIS 19381 (10th Cir. 2005).)
Legislative Activity. The 108th Congress considered, but did not enact, legislation
to establish a process for resolving R.S. 2477 claims and define 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. H.R. 3447 in the 109th Congress would establish an
administrative process and criteria for resolving R.S. 2477 claims.
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 activities in agencies including BLM and the FS. The goal is to save money
through competition, particularly in areas where private business might provide better
services (e.g., administration and maintenance). The plan is controversial, with concerns as
to whether it would save the government money, the private sector could provide the same
quality of service, or it is being used to accomplish policy objectives. Through December
2004, BLM had studied 415 full-time equivalents (FTEs) to determine whether they should
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be subject to competitive bidding. That is 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.
P.L. 109-54, the FY2006 Interior appropriations law, capped DOI competitive sourcing
studies during FY2006 at $3.45 million. It did not specify the portion for BLM. BLM had
sought $562,000, for planning and competitive sourcing studies during FY2006 on up to 150
FTEs. The law limited FS spending on competitive sourcing during FY2006 to no more than
$3.0 million. The Administration had urged removing the funding limitations. Further, the
law directed the Secretary of Agriculture to assess the affect of contracting out on FS fire
management, and specified that agencies include, in any reports to the Appropriations
Committees on competitive sourcing, information on the costs associated with sourcing
studies and related activities.

Grazing Management. (by Carol Hardy Vincent) The BLM had expected to publish
new grazing regulations in the Federal Register in mid-July, but on August 9, 2005, the
agency announced its intent to prepare a supplement to the Final Environmental Impact
Statement (FEIS). The agency expects to develop the supplement in the fall of 2005 for
public review and comment. The FEIS, which was issued on June 17, 2005, analyzed the
impact of proposed changes to grazing regulations as well as of two alternatives. (See
[http://www.blm.gov/grazing/].) 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. Some of the changes in the
FEIS would (1) allow title to range improvements to be shared by the BLM and permittees,
(2) allow permittees to acquire water rights for grazing if consistent with state law, (3)
change the definition of “grazing preference” to include an amount of forage, (4) eliminate
conservation use grazing permits, (5) extend the time to remedy rangeland health problems,
and (6) reduce occasions where BLM is required to consult with the public. BLM did not
address some controversial issues, such as revising the grazing fee. BLM expects to return
to the consideration of related grazing policy changes when the regulatory process is
completed. On September 28, 2005, a Senate subcommittee held an oversight hearing on the
regulatory changes and other grazing issues
Legislation has been introduced to compensate livestock operators on federal lands.
H.R. 411 seeks to require federal land management agencies to compensate holders of
grazing permits when certain actions reduce or eliminate their permitted grazing, and
alternative forage is not available. The bill also would authorize grazing permit holders to
sublease their allotments under specified conditions. Other legislation provides for buying
out grazing permittees generally or in particular areas, with the allotments then permanently
closed to grazing. H.R. 3166 provides for payment to federal grazing permittees who
voluntarily relinquish their permits, at a rate of $175 per AUM. The bill also provides for
payments to counties in which the relinquished allotments are located, and authorizes
permittees to opt for nonuse or reduced use throughout a term. Other examples include H.R.
3701, regarding lands included in Ecosystem Protection Areas that would be created under
the legislation, and H.R. 3603, for certain lands in Idaho.
Hardrock Mining. (by Aaron M. Flynn) Reform of the General Mining Act of 1872,
the law governing hardrock mining on federal lands, may be considered in the 109th
Congress. The Mining Act authorizes a prospector to locate and claim an area believed to
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contain a valuable mineral deposit, subject to the payment of certain fees. At such time,
mineral development may proceed. Comprehensive legislation to reform the development
of these mineral resources, H.R. 3968, has been introduced in the 109th Congress. Among
other things, this bill would require a royalty payment based on hardrock mineral production,
resolve current disputes regarding the number of acres available for mine-associated mill
sites, prohibit patenting of federal lands in most circumstances, and establish new standards
for determining which federal lands are available for development.
National Forest Planning. (by Ross W. Gorte) New FS planning regulations were
promulgated by the Clinton Administration in November 2000, but their implementation was
delayed. On January 5, 2005, the Bush Administration issued two new rules. The first (70
Fed. Reg. 1022) removed the Clinton regulations, and the second (70 Fed. Reg. 1023-1061)
finalized 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 articulate desired conditions and goals, and most planning details have been
moved to agency “directives,” some of which were published on March 23, 2005 (70 Fed.
Reg. 14637). The new regulations replace ecological sustainability as the main priority with
a balance of ecological, economic, and social sustainability. The regulations do not address
species viability, roadless areas, or many other specific topics. Because plans will guide
activity decisions but not make decisions, the regulations allow plans to be categorically
excluded from NEPA analysis (see below) and public involvement requirements. House
Agriculture Committee hearings were held on the new FS planning regulations on May 25,
2005 (H. Serial 109-9).
Forest Service NEPA Categorical Exclusions. (By Ross W. Gorte) The Forest
Service has historically identified certain activities as not having significant environmental
impacts, and thus exempted them from analysis and public participation under the National
Environmental Policy Act of 1969 (NEPA; P.L. 91-190, 43 U.S.C. §§4321-4347), except in
extraordinary circumstances. Various regulations have expanded the exempt activities in
recent years, including for biomass fuel reduction projects (68 Fed. Reg. 33814, June 5,
2003), for “small” timber sales (68 Fed. Reg. 44598, July 29, 2003), and for forest plans (70
Fed. Reg. 1023, Jan. 5, 2005; see above). The agency has also modified its application of
extraordinary circumstances (67 Fed. Reg. 54622, Aug. 23, 2002). Previously, the rule
specified that the presence of extraordinary circumstances would automatically preclude an
action being categorically excluded; the new rule gives the responsible official discretion to
determine whether extraordinary circumstances warrant NEPA analysis and public
involvement in otherwise exempt projects. Several of the 2003 regulations were challenged.
On July 2, 2005, a U.S. District Court ruled that five regulations violated the Forest Service
Decision Making and Appeals Reform Act (§322 of P.L. 102-381; 16 U.S.C. §1612 note)
by excluding decisions from the public comment and appeals process and for other reasons
(Earth Island Institute v. Ruthenbeck, 376 F.Supp. 2d 994 (E.D. Cal. 2005). The agency has
responded to the ruling and subsequent orders by suspending more than 1,500 permits,
projects, and contracts. On October 18, 2005, Senators Bingaman and Harkin sent a letter
to President Bush asserting that the agency took an “unnecessary and inappropriate response”
by suspending non-controversial activities, such as firewood cutting permits, and asking for
a more rational response.
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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. National guidance was justified as avoiding the litigation and delays when
decisions were made at each national forest. The rule was twice enjoined. The Bush
Administration issued a new final rule to replace the Clinton rule and allow governors 18
months to petition the FS for a special rule for roadless areas in all or part of their state (70
Fed. Reg. 25654, May 13, 2005). Until such a new regulation in response to a petition is
finalized, the FS is to manage roadless areas in accordance with interim directives (69 Fed.
Reg. 42648, July 16, 2004) that place most decisions with the Regional Forester, and 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
plans, basically reversing the Clinton nationwide roadless rule. The new NFS planning
regulations (see above) do not address roadless areas, apparently leaving decisions involving
them to the project level within each forest, unless a special rule is adopted for a particular
state. California, New Mexico, and Oregon have sued to challenge the new roadless area
rule. H.R. 3563 has been introduced to direct that roadless areas be managed in accordance
with the 2001 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. President Clinton’s establishment
or enlargement of 22 monuments set off renewed controversy regarding presidential authority
to proclaim monuments. The 108th Congress focused on land uses within monuments (e.g.,
recreation, off-highway vehicles, and commercial uses); 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. Similar legislation
has not been introduced in the 109th Congress.
LEGISLATION
H.R. 6 (Barton); P.L. 109-58
The Energy Policy Act of 2005, among other provisions, amends the Geothermal Steam
Act of 1970 and the Mineral Leasing Act, requires the Secretary of the Interior to evaluate
the oil and gas leasing process, and shields various energy-related activities on federal lands
from review under NEPA. The conference report was filed July 27, 2005, and agreed to by
the House and Senate. Signed into law August 8, 2005.
H.R. 297 (Rahall); S. 576 (Byrd)
These bills amend the Wild Horses and Burros Act to restore the prohibition on the
commercial sale and slaughter of wild horses and burros. H.R. 297, introduced January 25,
2005; referred to Committee on Resources. S. 576, introduced March 9, 2005; referred to
Committee on Energy and Natural Resources.
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H.R. 411 (Renzi)
The Cattleman’s Bill of Rights Act directs compensation for ranchers when federal
actions reduce their allowed amount of grazing. Introduced January 26, 2005; referred to
Committee on Resources and Committee on Agriculture.
H.R. 2993 (Porter); S. 1273 (Reid)
These bills foster the sale and adoption of wild horses and burros while strengthening
protections. H.R. 2993, introduced June 20, 2005; referred to Committee on Resources. S.
1273, introduced June 20, 2005; referred to Committee on Energy and Natural Resources.
H.R. 3166 (Grijalva)
The Multiple-Use Conflict Resolution Act compensates livestock operators who
voluntarily relinquish grazing permits. Introduced June 30, 2005; referred to Committee on
Resources, Committee on Agriculture, and Committee on Armed Services.
H.R. 3447 (Udall, M.)
The Highway Claims Resolution Act of 2005 establishes an administrative process and
criteria to resolve R.S. 2477 claims. Introduced July 26, 2005; referred to Committee on
Resources.
H.R. 3563 (Inslee)
The National Forest Roadless Area Conservation Act directs that inventoried roadless
areas of the national forests be managed in accordance with the 2001 regulations. Introduced
July 28, 2005; referred to Committee on Agriculture and Committee on Resources.
H.R. 3710 (Markey)
Under certain circumstances, the bill would direct the suspension of royalty relief
programs for oil and natural gas production from federal lands and authorize resulting
revenues to be used for specified hurricane relief and low income energy assistance
programs. Introduced September 8, 2005; referred to Committee on Resources, Committee
on Transportation and Infrastructure, Committee on Energy and Commerce, and Committee
on Education and the Workforce.
H.R. 3893 (Barton)
The Gasoline for America’s Security Act would, among other things, require the
President to designate certain federal lands, which might include lands under the jurisdiction
of BLM or FS, as suitable for refinery construction or expansion, at which time an expedited
permitting process would be available for a refinery sited in the designated area. Introduced
September 26, 2005; passed by the House October 7, 2005.
H.R. 3968 (Rahall)
The Federal Mineral Development and Land Protection Equity Act of 2005 would
require a royalty payment based on hardrock mineral production, resolve current disputes
regarding the number of acres available for mine associated mill sites, prohibit patenting of
federal lands in most circumstances, and establish new standards for determining which
federal lands are available for development. Introduced October 6, 2005; referred to House
Subcommittee on Energy and Mineral Resources.
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FOR ADDITIONAL READING
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 RL30755, Forest Fire/Wildfire Protection, by Ross W. Gorte.
CRS Report RL32244, Grazing Regulations: 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 RL32893, Interior, Environment, and Related Agencies: FY2006
Appropriations, Carol Hardy Vincent and Susan Boren, co-coordinators.
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 RL32936, Omnibus Energy Legislation, 109th Congress: Assessment of H.R. 6
as Passed by the House, by Mark Holt and Carol Glover, co-coordinators.
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.
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