Order Code IB10076
CRS Issue Brief for Congress
Received through the CRS Web
Bureau of Land Management (BLM)
Lands and National Forests
Updated December 6, 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
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. Hurricane Katrina damaged southern
actions. Several key issues of congressional
forests, exacerbating fuel problems. The 2005
and administrative interest are covered here.
fire season is on a pace to be the worst on
record. The 109th Congress held hearings on
Energy Resources. The Energy Policy
fire protection, litigation affecting fuel treat-
Act of 2005 has been enacted into law and
ment and use of air-tanker fire retardant, and
affects energy development on federal lands in
bills concerning post-catastrophe recovery.
a variety of ways, including through changes

to the federal oil, gas, and coal leasing pro-
Southern Nevada Land Sales. The
grams and the application of environmental
Southern Nevada Public Land Management
laws to certain energy-related agency actions.
Act allows the Secretary of the Interior to sell
Significant changes at the administrative level
land near Las Vegas, with the proceeds perma-
may be forthcoming in response to the legisla-
nently appropriated for certain purposes. The
tion’s enactment. New legislation has also
President has proposed altering the distribu-
been introduced to address evolving energy
tion of receipts, with 70% going to the Trea-
issues related to public lands.
sury rather than to a special account. No
related legislation has been introduced.
Wild Horses and Burros. Controversial
changes to the Wild Free-Roaming Horses and
R.S. 2477 Rights of Way. Revised
Burros Act of 1971 gave the agencies author-
Statute (R.S.) 2477 granted rights of way to
ity to sell certain old and unadoptable animals
construct highways across unreserved federal
and removed the ban on selling wild horses
lands, but the extent of valid rights of way is
and burros and their remains for commercial
unclear in some states. Bush Administration
products. BLM has resumed animal sales
regulations on “disclaimers of interest” may
with provisions to prevent their slaughter.
be used to clear title to R.S. 2477 highway
Bills have been introduced to overturn the
easements; but this may “pertain to” R.S.
changes (H.R. 297/S. 576) and to foster adop-
2477 which has been prohibited by Congress.
tions and sales (H.R. 2993/S. 1273).
Other Issues. The Administration and
Wilderness. Many wilderness recom-
Congress are addressing other issues as well,
mendations for federal lands are pending.
including competitive sourcing, grazing man-
Questions persist about wilderness review and
agement, hardrock mining, national forest
managing wilderness study areas (WSAs).
planning, FS NEPA categorical exclusions,
Bills to designate areas have been introduced,
and national forest roadless areas.
and the 109th Congress may address wilder-
ness review and WSA protection.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
! As of September 20, 2005, 1,445 wild horses and burros have been sold
under a new authority enacted in December of 2004.
! A BLM land sale under SNPLMA, held on November 16, 2005, generated
$791.3 million.
! A House Resources Subcommittee held a hearing (November 10) on H.R.
4200, to expedite post-catastrophe forest recovery activities (including
timber salvage).
! 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. Agency
responses have led to further court orders. The House Agriculture
Committee held a related hearing on Nov. 15.
! On Sept. 30, 2005, a U.S. District Court ruled that the FS needed to
complete its NEPA analysis and conduct formal ESA consultations on the
use of fire retardant in firefighting. The House Agriculture Committee held
a related hearing on Nov. 15.
! On November 18, 2005, the House passed S. 1932, the Deficit Reduction
Act of 2005, with significant amendments to the General Mining Act.
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 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. 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. T h e o i l a n d ga s i n d u s t r y
contends that entry into currently unavailable areas 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.)
Administrative Actions. 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 also have 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
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based on a single environmental review and a Master Development Plan, and additional
bonding requirements. The proposal also would 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) affects federal
lands in a variety of ways. It amends the geothermal leasing process provided under
Geothermal Steam Act, the Mineral Leasing Act to curtail various limitations previously
applicable to coal leases, and the regulation of onshore federal oil and gas. The Secretary of
the Interior also is directed to establish a Federal Permit Streamlining Pilot Project for oil and
gas leasing. Oil and gas lease acreage limitations also are 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 passed energy policy legislation, the Gasoline for America’s Security Act,
H.R. 3893. Among other provisions, the bill would require the President to designate federal
lands as suitable for refinery construction or expansion and provide an expedited permitting
process for refineries sited in the designated area. Additional energy-related legislation has
been introduced in response to the Gulf Coast Hurricanes. 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
for authorized disaster relief and for the Low-Income Home Energy Assistance Program.
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 is being debated through the budget reconciliation process. For more information, see
CRS Issue Brief IB10136, Arctic National Wildlife Refuge (ANWR): Controversies for the
109th Congress. Finally, numerous other bills have been introduced, addressing such issues
as geothermal energy access, potash or soda ash royalties, and coal leasing procedures.
These bills on specific energy 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.) seeks to protect wild horses and burros on federal land and places them
under the jurisdiction of BLM and the FS. For years, management of wild horses and burros
has generated controversy and lawsuits. Controversies include 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; whether appropriations for managing wild horses and burros
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are adequate; and the slaughter, or potential for slaughter, of horses. (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
directed the agencies 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
(offered 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 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. The agency did not sell animals directly for slaughter, and was
requiring purchasers to give written affirmation of an intent to provide humane care.
Nevertheless, according to BLM, 41 sold animals 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 now also must agree not to knowingly sell
or transfer ownership of animals to persons or 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, there are about 7,000 animals available for sale, 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 haves suggested several other ideas. They include
outsourcing the sale of wild horses and burros; creating private horse sanctuaries as tourist
attractions; raising funds 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 31,760 wild horses and burros on the range, with
the national maximum AML set at 28,186. 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.
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BLM manages another 25,044 animals in holding facilities, as of November 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, which did not occur. The
cost per animal per year in these facilities is about $500, according to BLM.
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.
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 preclude
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
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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 (IM 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. More than 20 bills for wilderness
areas in more than a dozen states have been introduced; two (for areas in New Mexico and
Puerto Rico) have been enacted. 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-108th Congresses to prohibit future
BLM 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. No
national wilderness review or WSA legislation has 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 8.3 million acres burned through November 4, more than
50% 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 to reduce the threats from fire.
Proponents of fuel reduction contend that treatments often are delayed by environmental
studies, administrative appeals, and litigation. Opponents of accelerated review processes
assert 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. Hurricane Katrina extensively damaged forests along the
Gulf Coast, exacerbating fire risks in the region. As of November 22, the FS had obligated
$394.1 million in FY2006 to help recover forests and reduce fuels in the affected region.1
1 See [http://appropriations.house.gov/_files/FEMAstatusrpt1124.pdf], visited on Nov. 30, 2005.
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In August 2002, President Bush proposed a Healthy Forests Initiative to improve
wildfire protection by expediting projects to reduce hazardous fuels on federal lands. The
Healthy Forests Restoration Act of 2003 (P.L. 108-148) included many of the proposals in
the President’s initiative and other provisions (see “Legislative Activity” below).
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.
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.
Several hearings have been held by various committees (House Resources, Senate Energy
and Natural Resources, and House Appropriations) on progress in, and various aspects of,
wildfire protection. Also, hearings have addressed the airworthiness of firefighting
airtankers, in the wake of an airtanker crash in California on April 20, 2005. The House
Agriculture Committee held hearings related to two lawsuits on November 15, 2005. One
lawsuit addressed the NEPA categorical exclusions (see below) for fuel reduction and post-
fire recovery projects. The second lawsuit led to a September 30, 2005, U.S. District Court
ruling that the FS must comply with NEPA in the use of chemical fire retardant for
firefighting and had failed to consult adequately with the FWS on the possible effects of fire
retardant use on endangered species. (Forest Service Employees for Environmental Ethics
v. U.S. Forest Service, CV 03-165-M-DVM (D. Mt. Sept. 30, 2005).)
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
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funds for FY2005).2 The law required 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 §210 of P.L. 109-58 authorized 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
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). At the most recent
sale, held November 16, 2005, lands sold under SNPLMA generated $791.3 million.
Administrative Actions. The President’s FY2006 budget request supported
amending SNPLMA to change the allocation of revenue, so that 15% of the receipts would
go to the special account, 70% to the Treasury, and 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
2 Funding has risen substantially over the past decade or so. Average spending for FY1994-FY1999
was $1.07 billion annually.
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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 was one of many changes advocated by the Administration that would
affect receipts or spending levels in FY2006 or subsequent years.

Legislative Activity. Administration budget documents for FY2006 stated that the
President intended to submit a legislative proposal 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
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 (MOU) 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
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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 are being addressed through legislation or oversight.
These include agency competitive sourcing initiatives, grazing management, hardrock
mining, national forest planning, FS NEPA categorical exclusions, and FS roadless areas.

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
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. H.R. 3058, as cleared for presidential action, contains
provisions on competitive sourcing government-wide.
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,
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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 is being considered in 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. Comprehensive legislation to reform the development
of these mineral resources, H.R. 3968, has been introduced. Among other provisions, the 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 — or purchasing — federal lands in most circumstances, and establish new
standards for determining which federal lands are available for development.
The House-passed version of the Deficit Reduction Act of 2005, S. 1932, also contains
significant amendments to the General Mining Act. This bill would alter the existing
discovery requirement by allowing fee payments to establish a claimant’s right to use and
occupy the public lands for mineral development purposes. The bill also would repeal the
current prohibition on patenting lands encompassed in mining claims. It would expressly
maintain a general requirement that discovery of a valuable mineral deposit precede approval
of land patents; however, the bill would establish several specific circumstances in which
title could be purchased without a discovery requirement. It also would increase the amounts
that must be paid to patent lands, setting them at the greater of $1,000 per acre or fair market
value. When the sale is for the purpose of facilitating “sustainable economic development,”
fair market value is not to include “the mineral deposits in the land or the use of such land
for mineral activities.”
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
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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. They 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 and public involvement requirements. The House Agriculture
Committee held hearings on the FS planning regulations on May 25, 2005 (H. Serial 109-9).
Forest Service NEPA Categorical Exclusions. (by Pamela Baldwin) The FS
has historically identified certain activities as not having significant environmental impacts,
and thus exempted them from analysis and associated 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,
including for biomass fuel reduction projects (68 Fed. Reg. 33814, June 5, 2003), “small”
timber sales (68 Fed. Reg. 44598, July 29, 2003), and forest plans (70 Fed. Reg. 1023, Jan.
5, 2005). The agency also has modified its application of extraordinary circumstances (67
Fed. Reg. 54622, Aug. 23, 2002). Previously, the rule appeared to automatically preclude
an action from being categorically excluded if extraordinary circumstances were present; 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 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. Pengilly, 376 F.Supp. 2d 994
(E.D. Cal. 2005). The agency initially responded to the ruling and subsequent orders by
suspending more than 1,500 permits, projects, and contracts. The court issued a clarifying
order that allowed many minor activities to go forward as categorical exclusions, now under
the name Earth Island Institute v. Ruthenbeck.
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. Oregon also petitioned for a rule allowing any state to petition for an expedited
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restoration of full protections for roadless areas in that state; this petition was denied. H.R.
3563 would direct that roadless areas be managed in accordance with the 2001 regulations.
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. 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.
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 three
committees.
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 four committees.
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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. Passed
House October 7, 2005; referred to Senate Committee on Energy and Natural Resources
October 24, 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
Committee on Resources.
H.R. 3973 (Udall, T.)
The National Forests Rehabilitation and Recovery Act of 2005 establishes a 3-year pilot
program of up to 10 multi-activity projects requested by local groups to rehabilitate and
restore lands and resources affected by “uncharacteristic disturbances.” Introduced October
6, 2005; referred to Committee on Agriculture and Committee on Resources.
H.R. 4200 (Walden)
The Forest Emergency Recovery and Research Act establishes a permanent program to
assess significant catastrophic events affecting forests and allowing pre-authorized
management activities or projects using alternative NEPA arrangements. Introduced
November 2, 2005; referred to three committees. Resources subcommittee hearing held on
November 10.
S. 1932 (Gregg)
Among other provisions, the Deficit Reduction Act of 2005 contains significant reforms
to the General Mining Act of 1872. The bill would alter the current discovery requirement,
authorize land patents under a variety of circumstances, and generally increase the fees and
payments required under existing law. Passed House November 18, 2005.
S. 2079 (Smith, G)
The Forests for Future Generations Act establishes a permanent program to assess
significant catastrophic events affecting forests and allowing pre-authorized management
activities or projects using EPA alternative arrangements; similar to H.R. 4200. Introduced
November 18, 2005; referred to Committee on Energy and Natural Resources.
FOR ADDITIONAL READING
CRS Report RS21917, Bureau of Land Management (BLM) Wilderness Review Issues, by
Ross W. Gorte and Pamela Baldwin.
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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 RL33014, Leasing and Permitting for Oil and Gas Development on Federal
Public Domain Lands, by Ryan J. Watson.
CRS Report RL30647, The National Forest System Roadless Areas Initiative, by Pamela
Baldwin.
crsphpgw
CRS Report RL32315, Oil and Gas Exploration and Development on Public Lands, by Marc
Humphries.
CRS Report RS21423, Wild Horse and Burro Issues, by Carol Hardy Vincent.
CRS Report RS22025, Wilderness Laws: Permitted and Prohibited Uses, 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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