Order Code RL33792
Federal Lands Managed by the
Bureau of Land Management (BLM)
and the Forest Service (FS):
Issues for the 110th Congress
Updated August 27, 2008
Ross W. Gorte, Carol Hardy Vincent, and Marc Humphries
Resources, Science, and Industry Division
Kristina Alexander
American Law Division

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Federal Lands Managed by the Bureau of Land
Management (BLM) and the Forest Service (FS):
Issues for the 110th Congress
Summary
The 110th Congress, the Administration, and the courts are considering many
issues related to the Bureau of Land Management (BLM) public lands and the Forest
Service (FS) national forests. Key issues include the following.
Energy Resources. The Energy Policy Act of 2005 has led to new regulations
on the leasing programs and application of environmental laws to certain agency
actions. H.R. 6 was enacted as P.L. 110-140 on December 19, 2007, without many
of the federal lands provisions considered earlier.
Hardrock Mining. The General Mining Law of 1872 allows prospecting for
minerals in open public domain lands, and staking a claim, developing the minerals,
and applying for a patent to obtain title to the land and minerals. The House passed
H.R. 2262 on November 5, 2007, to reform aspects of the General Mining Law.
National Landscape Conservation System. The BLM created the National
Landscape Conservation System in 2000 to enhance the focus on specially protected
conservation areas. Congress is considering measures to establish the 27 million acre
system legislatively and debating the adequacy of funds for the system.

Wilderness. Many agency recommendations for wilderness areas are pending.
Questions persist about wilderness review and managing wilderness study areas
(WSAs). Fifty wilderness area bills have been introduced this Congress, several have
been passed by at least one chamber, and one has been enacted into law.
Wild Horses and Burros. Changes in 2004 to the Wild Free-Roaming Horses
and Burros Act of 1971 removed the ban on selling certain animals for commercial
products; the House passed H.R. 249 on April 26, 2007, to overturn these changes.
The BLM continues to dispose of animals by sale, adoption, and long-term holding.
Wildfire Protection. Various initiatives seek to protect communities from
wildfires by expanding fuel reduction, and bills have been offered to restore forest
health. Concerns over high and rising suppression costs have led to bills for separate
wildfire suppression funding accounts.
FS NEPA Application. The FS has proposed altering its process for activity
review under the National Environmental Policy Act of 1969 (NEPA), and has added
activities that can be categorically excluded from such environmental and public
reviews. Many of these changes and proposals have been challenged in court.
Other issues discussed briefly include roadless areas in the National Forest
System, national forest planning, national forest county payments, BLM land sales,
and grazing management.

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Contents
Background and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
History of the Bureau of Land Management . . . . . . . . . . . . . . . . . . . . . . . . . 2
History of the Forest Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Scope of Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Onshore Energy Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Administrative Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Legislative Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Hardrock Minerals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Administrative Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legislative Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
National Landscape Conservation System . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Administrative Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Legislative Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Wilderness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legislative Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Wild Horses and Burros . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Administrative Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Legislative Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Wildfire Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Administrative Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Legislative Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
FS NEPA Application and Categorical Exclusions . . . . . . . . . . . . . . . . . . . 16
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Administrative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Judicial Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Other Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Roadless Areas in the National Forest System . . . . . . . . . . . . . . . . . . 18
National Forest Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
National Forest County Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
BLM Land Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Grazing Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Additional Reading: Current and Historical . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
List of Tables
Table 1. 110th Congress Bills to Designate Wilderness Areas . . . . . . . . . . . . . . 10

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Federal Lands Managed by the Bureau of
Land Management (BLM) and the Forest
Service (FS): Issues for the 110th Congress
The 110th Congress is considering actions that affect the various uses and
management of federal lands administered by the Bureau of Land Management and
the Forest Service. These actions include legislation, administrative or regulatory
proposals, and litigation and judicial decisions. Issue areas include access to energy
resources on federal lands; development of hardrock minerals; designation of the
National Landscape Conservation System; wilderness designation; management of
wild horses and burros; wildfire protection; Forest Service implementation of the
National Environmental Policy Act (NEPA); and other issues. Many of these issues
have been of interest to Congress and the nation for decades.
Background and Analysis
The Bureau of Land Management (BLM) in the Department of the Interior
(DOI) and the Forest Service (FS) in the U.S. Department of Agriculture (USDA)
manage 449 million acres of land, more than two-thirds of the land owned by the
federal government and one-fifth of the total U.S. land area. The BLM manages
255.8 million acres of land, predominantly in the West. The FS administers 192.8
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. Thus, merging the two agencies often

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is proposed.1 By law, 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. However, each agency also has
unique emphases and functions. For instance, most rangelands are managed by the
BLM, 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 forest landowners. Moreover, development of the two agencies has
differed, and historically they have focused on different issues. Nonetheless, there
are many parallels.
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. The BLM assumed these three key functions when it was
created in 1946 by the merger of the General Land Office (created in 1812) and the
U.S. Grazing Service (created in 1934). The General Land Office had helped convey
land to settlers, 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 (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 or to expand federal land ownership.
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 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 are to be managed — including
1 See CRS Report RL34772, Proposals to Merge the Forest Service and the Bureau of Land
Management: Issues and Approaches, by Ross W. Gorte.

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timber, grazing, recreation, wildlife and fish, and water — and directs “harmonious
and coordinated management” to provide for multiple uses and sustained yields of
the many resources found in the national forests.
Many issues concerning national forest management and use have focused on
the appropriate level and location of timber harvesting. In part to address these
issues, Congress enacted the National Forest Management Act of 1976 (NFMA; 16
U.S.C. §§ 1600-1614, et al.) to revise timber sale authorities and to elaborate on
considerations and requirements in land and resource management plans.
Wilderness protection also is a continuing issue for the FS. The Multiple-Use
Sustained-Yield Act of 1960 (16 U.S.C. § 528-531) authorizes wilderness as a use
of national forest lands, and possible national forest wilderness areas have been
reviewed under the 1964 Wilderness Act (16 U.S.C. §§ 1131-1136) as well as in the
national forest planning process. Pressures persist to protect the wilderness character
of areas in pending wilderness recommendations and other roadless areas.
Scope of Report
The missions of the BLM and FS are similar, and many issues, programs, and
policies affect both agencies. For these reasons, BLM and FS lands often are
discussed together, as in this report. This report focuses on several issues affecting
the agencies’ lands that appear to be of interest to the 110th Congress, including
onshore energy resources, hardrock mining, the National Landscape Conservation
System, wilderness, wild horses and burros, wildfire protection, and Forest Service
implementation of NEPA. It does not comprehensively cover general issues affecting
management of these and other federal lands. For background on federal land
management generally, see CRS Report RL32393, Federal Land Management
Agencies: Background on Land and Resources Management, coordinated by Carol
Hardy Vincent. For other information on the BLM, FS, and natural resources issues
and agencies generally, see the CRS website at [http://www.crs.gov/] and the CRS
reports on related issues listed at the end of this report.
Onshore Energy Resources2 (by Marc Humphries)

Background. A controversial issue is access to federal lands for energy and
mineral development. Phase III of a BLM-coordinated study (issued May 2008)
found that 62% of the estimated oil and 41% of the estimated natural gas on the 279
million acres of federal land inventoried are classified as “inaccessible” or
unavailable for drilling and development.3 The oil and gas industry contends that
entry into currently unavailable areas is necessary to ensure future domestic oil and
gas supplies. Opponents maintain that the restricted lands are unique or
2 This report does not cover offshore energy resources, such as oil and gas development in
the Outer Continental Shelf, or the Arctic National Wildlife Refuge (ANWR).
3 DOI, USDA, and Dept. of Energy, Inventory of Onshore Federal Oil and Natural Gas
Resources and Restrictions to their Development (Phase III), May 2008, available on the
BLM website at [http://www.blm.gov/epca/].

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environmentally sensitive and that the United States could realize equivalent energy
gains through conservation and increased exploration on current leases or elsewhere.4
Development of oil, gas, and coal on BLM and FS lands (and other federal
lands) is governed primarily by the Mineral Leasing Act of 1920 (30 U.S.C. § 181).
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 the BLM may lease minerals. The Energy Policy
Act of 2005 (EPAct, P.L. 109-58) made significant changes to the laws governing
federal energy resources, including the management of energy development on BLM
and FS lands. Implementation of these changes is discussed below.
Administrative Actions. The Administration is responding to provisions of
EPAct.5 A BLM report analyzed the respective rights and responsibilities of owners
of mineral leases, private surface owners, and the federal government under existing
law,6 and recommended administrative actions that allow for access to oil and gas
deposits while seeking to address surface owner concerns.
Pursuant to §352 of EPAct, the BLM issued a final rule in March 2006 that
allows ownership of oil and gas leases covering greater acreages than previously
allowed.7 The final regulation also extended the lease reinstatement period under the
petition process.
In January 2006, the BLM completed a final programmatic environmental
impact statement (EIS) for wind energy facilities on BLM lands.8 This document
supports land management plan amendments providing for wind energy development
in the western states. The review was undertaken in compliance with Executive
Order 13212,9 and seeks to comply with congressional directives in EPAct directing
renewable energy development on public lands.
Under § 369 of EPAct, the BLM has completed environmental assessments and
issued leases for five oil shale research, development, and demonstration (RD&D)
projects on federal lands in Colorado and one in Utah; a BLM report highlights the
4 See CRS Report RS22928, Oil Development on Federal Lands and the Outer Continental
Shelf, by Marc Humphries and CRS Report RL33014, Leasing and Permitting for Oil and
Gas Development on Federal Public Domain Lands, by Aaron M. Flynn and Ryan J.
Watson.
5 For additional information on BLM implementation of the EPAct, see the agency’s website
at [http://www.blm.gov/wo/st/en/prog/energy/epca_chart.html].
6 DOI/BLM, Energy Policy Act of 2005 — Section 1835 Split Estate, Federal Oil and Gas
Leasing and Development Practices, A Report to Congress (Dec. 2006), at [http://www.
blm.gov/bmp/Split_Estate.htm].
7 71 Fed. Reg. 14821 (Mar. 24, 2006).
8 71 Fed. Reg. 1768 (Jan. 11, 2006).
9 “Actions to Expedite Energy-Related Projects,” 66 Fed. Reg. 28357 (May 22, 2001).

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progress of the pilot project.10 Also, the BLM has begun a programmatic
environmental impact statement (PEIS) to support a commercial tar sands and oil
shale leasing program. The BLM completed its draft PEIS on December 20, 2007,
and published its proposed regulations for commercial oil shale development on July
23, 2008. Final regulations are required by EPAct 2005 within six months of issuing
the final PEIS. However, language in the FY2008 Consolidated Appropriation Act
(P.L. 110-161), which included DOI funding, prohibited FY2008 expenditures to
finalize regulations for a commercial oil shale and tar sands leasing program.
The BLM has issued its final rule for developing geothermal energy on federal
lands, effective June 1, 2007.11 EPAct, §§ 221-236, amended the Geothermal Steam
Act of 1970 (30 U.S.C. §§ 1001-1028) to change the leasing procedures to offer more
competitive leasing and establish a new royalty and rental rate framework. Much of
the nation’s geothermal energy potential is located on federal lands. The
Administration has asserted that improving the efficiency of the federal geothermal
leasing process could increase geothermal energy production. The BLM administers
423 geothermal leases, of which 55 are currently in production.
Legislative Activity. The conflict between increased domestic energy
production from public lands and environmental concerns over development has
continued in the 110th Congress. To address concerns with the implementation of
EPAct, legislation (H.R. 2337) to repeal or amend several of its provisions related to
oil and gas development on federal lands was introduced, then folded into a broader
energy proposal (H.R. 3221, Title VII). Portions of this and other bills were
combined in the Energy Independence and Security Act of 2007 (H.R. 6). H.R. 6
was enacted on December 19, 2007, as P.L. 110-140, but without the oil and gas
provisions contained in Title VII of H.R. 3221.12 Several bills introduced in the
House (e.g., H.R. 6566 and H.R. 6709) would end the spending prohibition on
issuing final regulations for commercial-scale oil shale development.
Hardrock Minerals (by Marc Humphries)
Background. The General Mining Law of 1872 is one of the major statutes
directing federal lands management policy. The law grants free access to individuals
and corporations to prospect for minerals in open public domain lands, and allows
them, upon making a discovery, to stake (or locate) a claim on the deposit. A claim
gives the holder the right to develop the minerals and apply for a patent to obtain full
title of the land and minerals. A continuing issue is whether this 136-year-old law
should be reformed, and if so, how to balance mineral development with competing
land uses.13
10 DOI/BLM, Year Two Report, Section 365 of the Energy Policy Act of 2005 Pilot Project
to Improve Federal Permit Coordination (Feb. 2008).
11 72 Fed. Reg. 24358 (May 2, 2007).
12 On April 10, 2008, the Senate passed H.R. 3221, with an amendment in the nature of a
substitute, to provide needed housing reform and for other (non-energy) purposes.
13 For more information on the General Mining Law and recent reform efforts, see CRS
(continued...)

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The right to enter federal lands and freely prospect for and develop minerals is
the feature of the claim-patent system that draws the most vigorous support from the
mining industry. Critics consider the claim-patent system a giveaway of publicly
owned resources because royalty payments are not required and because of the small
amounts paid to maintain a claim and to obtain a patent. Congress has imposed a
moratorium on mining claim patents through the annual Interior appropriations laws
since FY1995, but has not restricted the right to stake claims or extract minerals. A
BLM study in 2000 estimated that about 165 million acres of lands with federally
owned mineral rights14 (about 24% of all federal mineral acreage) have been
withdrawn from mineral entry, leasing, and sale, subject to valid existing rights.
Mineral development on another 182 million acres (26% of all federal mineral
acreage) is subject to the approval of the surface management agency15 and must not
be in conflict with land designations and plans.
The lack of direct statutory authority for environmental protection under the
Mining Law of 1872 is another major issue that has spurred reform proposals. Many
Mining Law supporters contend that other current laws provide adequate
environmental protection. Critics, however, assert that these general environmental
requirements are not adequate to assure reclamation of mined areas and that the only
effective approach to protecting lands from the adverse impacts of mining under the
current system is to withdraw them from development under the Mining Law.
Further, critics charge that federal land managers lack regulatory authority over
patented mining claims and that clear legal authority to assure adequate reclamation
of mining sites is needed.
Administrative Actions. Since the late 1990s, administrative efforts have
focused on new surface management regulations, with attention centering on mine
reclamation efforts. New mining claim location and annual claim maintenance fees
were increased in 2005 to $30 and $125 per claim, respectively (from $25 and $100).
Legislative Activity. Broad-based legislation to reform the General Mining
Law of 1872 (H.R. 2262) was introduced on May 10, 2007 — the 135-year
anniversary of the original law’s signing. The bill would, among other provisions,
establish an 8% “net smelter return” (NSR) royalty (also known as “gross income”
royalty defined in § 613 (c)(1) of the Internal Revenue Code of 1986) on hardrock
mineral production (e.g., gold, copper, silver) from new mines and mine expansions
on public domain lands, and a 4% NSR royalty on existing mines. H.R. 2262 would
create an abandoned hardrock mine reclamation fund, require a reclamation plan by
mineral producers, and impose new environmental standards. Hearings were held on
H.R. 2262 by the House Natural Resources Subcommittee on Energy and Mineral
Resources in Washington, DC (July 26, 2007), and in Elko, NV (August 21, 2007).
13 (...continued)
Report RL33908, Mining on Federal Lands: Hardrock Minerals, by Marc Humphries.
14 There are approximately 700 million acres of federal mineral rights, including FS and
BLM lands as well as lands administered by the NPS, FWS, and Department of Defense and
federal mineral rights underlying private lands.
15 The BLM administers mineral resources under all federal lands, regardless of which
agency has responsibility for administering the surface.

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The Committee reported the bill on October 29, 2007 (H.Rept. 110-412), and the
House passed the bill on November 1, 2007. No further action has occurred.
Two oversight hearings on mining law reform have been held by the Senate
Energy and Natural Resources Committee in the 110th Congress — one on hardrock
mining on federal land (September 27, 2007) and a second on reform of the General
Mining Law of 1872 (January 24, 2008). The committee held a third hearing to
address abandoned hardrock mine lands and uranium mining (March 12, 2008). In
addition, a Senate bill (S. 2750, the Abandoned Mine Reclamation Act of 2008)
would address cleaning up abandoned hardrock mines throughout the United States
by establishing an Abandoned Mine Cleanup Fund and imposing various fees on
hardrock mining operations on federal land, including a 4% “gross income” royalty
that would apply to existing hardrock mineral producers on federal land. A second
Senate bill (S. 2287) aimed at the hardrock mining industry would eliminate the
percentage depletion allowance for certain hardrock minerals and establish an
Abandoned Mine Reclamation Trust Fund.
National Landscape Conservation System (by Carol Hardy Vincent)
Background. The BLM created the National Landscape Conservation System
(NLCS) in 2000 to focus management and public attention on its specially protected
conservation areas. According to the BLM, the mission of the system is to conserve,
protect, and restore for present and future generations the nationally significant
landscapes that have been recognized for their outstanding archaeological,
geological, cultural, ecological, wilderness, recreation, and scientific values.16 The
system consists today of about 27 million acres of land, with more than 850 federally
recognized units. These units include national monuments, national conservation
areas, wilderness areas, and wilderness study areas as well as thousands of miles of
national historic and national scenic trails and wild and scenic rivers. Current issues
for Congress include whether to establish the system legislatively, and the adequacy
of funds for the system.
Administrative Actions. Over the past several years, the BLM has given
priority to developing new or updated land management plans for areas within the
NLCS. Currently, most of these plans are completed. The Administration has
testified in favor of establishing the NLCS legislatively and is seeking reduced funds
for the system for FY2009. (See below.)
Legislative Activity. Legislation has been introduced (H.R. 2016, S. 1139,
S. 2180, and S. 3213) to establish the NLCS legislatively without intending to alter
the way the areas are currently managed. The measures seek to “conserve, protect,
and restore nationally significant landscapes” that have outstanding values for the
benefit of current and future generations. S. 2180 has been indefinitely postponed
by the Senate, while the other three bills are on the Senate calendar.
At hearings on the bills, the Administration (and other witnesses) testified in
favor of establishing the system legislatively. For instance, at a hearing on S. 1139,
16 DOI/BLM, Budget Justifications and Performance Information, Fiscal Year 2009, p. I-78.

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the Acting Director of the BLM testified that DOI supported the bill as a way to
provide legislative support and direction to the BLM and to formalize and strengthen
its conservation system within the context of agency’s multiple-use mission.17 Other
witnesses expressed opposition to the legislation, for instance, on the assertion that
it could have the effect of establishing new, standardized requirements for disparate
areas in the system.18
On April 9, 2008, the House passed H.R. 2016 with several amendments. Some
of the amendments sought to clarify the effect of establishing the system on the
management of its units. For instance, the House agreed to amendments specifying
that the bill would not affect existing grazing rights or operations; additionally hinder
or restrict energy development; or limit access for hunting, fishing, trapping, or
recreational shooting or infringe on the rights of states to manage these activities.
The House narrowly rejected a motion to recommit the bill with instructions to report
back promptly with an amendment stating that the bill shall not affect the right to
bear arms within the NLCS. The amendment was supported as essential to protect
the right to bear arms under the Second Amendment to the Constitution, but opposed
on the grounds that the legislation already affirmed the rights of gun owners and
hunters. On April 10, 2008, H.R. 2016 was placed on the Senate calendar.
On June 28, 2007, the Senate Committee on Energy and Natural Resources
reported S. 1139 with an amendment seeking to clarify the description of the
components of the system, but without making substantive changes to the bill as
introduced (S.Rept. 110-116, p. 3). The bill was placed on the Senate calendar on the
same date. Similar provisions to establish the NLCS were included in broader
natural resources legislation: S. 2180, which was indefinitely postponed by the
Senate on June 11, 2008, and S. 3213, which was placed on the Senate calendar on
June 27, 2008.
P.L. 110-229 (S. 2739) established two Outstanding Natural Areas and provided
for their management as part of the NLCS. Specifically, the law established the
Piedras Blancas Historic Light Station Outstanding Natural Area (CA) and the Jupiter
Inlet Lighthouse Outstanding Natural Area (FL). Other House and Senate bills also
would make federal land designations (e.g., wilderness and national monument) and
add the BLM areas to the NLCS.
Questions about the adequacy of funds for the NLCS have been recurring.
Some questions have centered on whether recent funding for management and law
enforcement have been sufficient to address vandalism and other damage to cultural
resources in the system. These questions are likely to continue in light of a proposed
reduction in funding for the NLCS in FY2009. Specifically, the Administration
requested $51.8 million for the NLCS in FY2009, a decrease from the FY2008
enacted level of $56.4 million.
17 U.S. Senate Energy and Natural Resources Subcommittee on Public Lands and Forests,
Hearing to Receive Testimony on Current Legislation (May 3, 2007).
18 Mr. Orie Williams, “Testimony,” Legislative Hearing on H.R. 2016, U.S. House Natural
Resources Subcommittee on National Parks, Forests, and Public Lands (June 7, 2007).

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Wilderness (by Ross W. Gorte)
Background. The 1964 Wilderness Act established the National Wilderness
Preservation System and directed that only Congress can designate federal lands as
part of the national system. Designations are often controversial because commercial
activities, motorized access, and roads, structures, and facilities generally are
restricted in wilderness areas.19 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 (see below) was prompted by a belief that Congress had lagged in designating
areas as wilderness.20 Others assert that the Bush Administration — in promulgating
new guidance to preclude additional, formal BLM wilderness study areas and in
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.
One significant issue is when (and whether) the agencies must review the
wilderness potential of their lands. The Wilderness Act directed the review of
administratively designated national forest primitive areas and of National Park
System and National Wildlife Refuge System lands. Release language, in statutes
designating national forest wilderness areas, and FS planning regulations (36 C.F.R.
§ 219.7(a)(5)(ii)) provide for periodic review of potential national forest wilderness
areas in the FS planning process. For BLM lands, § 603 of FLPMA required the
agency to review potential wilderness, to present recommendations to the President,
and to not impair the wilderness character of wilderness study areas (WSAs) “until
Congress has determined otherwise.”
In 1996, then-DOI Secretary Bruce Babbitt used the general BLM authority to
inventory lands and resources (FLPMA § 201; 43 U.S.C. § 1711) to identify an
additional 2.6 million acres in Utah as having wilderness qualities. The State of Utah
challenged the inventory as violating the review required by § 603, and in September
2003, the DOI settled the case and issued new wilderness guidance (IM Nos. 2003-
274 and 2003-275) prohibiting further reviews and limiting the nonimpairment
standard to previously designated § 603 WSAs.21
Legislative Activity. As of August 2008, nearly 50 bills to designate new
wilderness areas or expand existing ones in 14 states have been introduced in the
19 See CRS Report RL33827, Wilderness Laws: Permitted and Prohibited Uses, by Ross W.
Gorte.
20 The federal District Court for Wyoming found that the Clinton roadless rule violated the
Wilderness Act’s mandate that only Congress had the authority to designate wilderness
areas. Wyoming v. U.S. Department of Agriculture, No. 07-CV-17-B, 2008 WL 3397503
(D. Wyo. Aug. 12, 2008).
21 See CRS Report RS21917, Bureau of Land Management (BLM) Wilderness Review
Issues, by Ross W. Gorte and Pamela Baldwin.

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CRS-10
110th Congress. (See Table 1.) One, the Consolidated Natural Resources Act of
2008 (S. 2739), has been enacted into law (P.L. 110-229). Six other bills have passed
the House, with two of those reported by the Senate Energy and Natural Resources
Committee. The Senate committee has reported five other bills. In addition, many
hearings have been held on numerous bills. Some bills that include provisions to
release specific BLM WSAs have been introduced. Bills to prohibit broad future
BLM wilderness reviews and to release all WSAs after a specified period had been
introduced in the 106th-108th Congresses, but to date have not been introduced in the
110th Congress.

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CRS-11
Table 1. 110th Congress Bills to Designate Wilderness Areas
Bill Title
Acreage
State
Bill No.
Most Recent Action
Alaska Rainforest Conservation Act
3,233,800
AKa
H.R. 3757
Introduced 10/4/07
Alpine Lakes Wilderness Additions and
22,100
WA
H.R. 4113
Introduced 11/8/07
Wild Pratt River Act of 2007
9,425,840
H.R. 1919
H.R. 1919 introduced 4/18/07
America’s Red Rock Wilderness Act of 2007
UT
9,208,840
S. 1170
S. 1170 introduced 4/19/07
Beaver Basin Wilderness Act
11,740
MI
S. 3017
Hearing 6/17/08
Browns Canyon Wilderness Act
20,025
CO
S. 3066
Introduced 5/22/08
H.R. 3682 passed House
H.R. 3682
California Desert and Mountain Heritage Act
153,339b
CA
6/9/08
S. 2109
S. 2109 hearing 4/15/08
H.R. 860
California Wild Heritage Act of 2007
2,088,766
CA
Both introduced 2/6/07
S. 493
Cascade-Siskiyou National Monument
Reported by Sen. ENR
Voluntary and Equitable Grazing Conflict
23,000
OR
S. 2379
6/16/08
Resolution Act
Central Idaho Economic Development and
318,765
ID
H.R. 222
Introduced 1/4/07
Recreation Act
Chattahoochee National Forest Act of 2007
8,448
GA
H.R. 707
Introduced 1/29/07
Colorado Wilderness Act of 2007
1,637,846c
CO
H.R. 3756
Introduced 10/4/07
Consolidated Natural Resources Act of
Signed into law on 5/8/08 as
2008d
106,000
WA
S. 2739
P.L. 110-229
H.R. 3513 passed House
H.R. 3513
4/22/08
Copper Salmon Wilderness Act
13,700
OR
S. 2034
S. 2034 reported by Sen. ENR
4/10/08
Dominguez-Escalante National Conservation
H.R. 6162
H.R. 6162 introduced 5/22/08
Area and Dominguez Canyon Wilderness
66,280
CO
S. 3065
S. 3065 hearing 7/16/08
Area Act
Eastern Sierra and Northern San Gabriel
H.R. 6156
H.R. 6156 introduced 5/22/08
473,806
CA
Wild Heritage Act
S. 3069
S. 3069 hearing 7/16/08
Izembek and Alaska Peninsula Refuge and
H.R. 2801 ordered reported
Wilderness Enhancement Act of 2007 (S.
H.R. 2801
45,493
AK
by H. NR 4/23/08
1680); ... and King Cove Safe Access Act
S. 1680
S. 1680 hearing 4/15/08
(H.R. 2801)
H.R. 6290 introduced 6/18/08
Lewis and Clark Mount Hood Wilderness
H.R. 6290
128,660
OR
S. 647 reported by Sen. ENR
Act of 2007 (S. 647); ... of 2008 (H.R. 6290)
S. 647
9/17/07
Natural Resource Projects and Programs
Indefinitely postponed
Authorization Act of 2007f
124,240
OR
S. 2180
6/11/08
ID, MT,
Northern Rockies Ecosystem Protection Act
24,322,915
OR, WA,
H.R. 1975
Hearing 10/18/07
WY
CO, ID,
Omnibus Public Land Management Act of
OR, VA,
S. 3213
Introduced 6/26/08
2008g
985,375
WV
Oregon Badlands Wilderness Act of 2008
29,837
OR
S. 3088
Hearing 7/9/08

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CRS-12
Bill Title
Acreage
State
Bill No.
Most Recent Action
Owyhee Initiative Implementation Act of
517,196
ID
S. 802
Introduced 3/7/07
2007
Owyhee Public Land Management Act of
Reported by Sen. ENR
517,128
ID
S. 2833
2008
6/16/08
AZ, CA,
Protecting America’s Wild Places Act of
NM, OR,
H.R. 5610
Introduced 3/13/08
2008h
482,835
WV
H.R. 2334 hearing 11/13/07
Rocky Mountain National Park Wilderness
H.R. 2334
253,534
CO
S. 1380 reported by Sen. ENR
and Indian Peaks Wilderness Expansion Act
S. 1380
6/16/08
Sabinoso Wilderness Act of 2007
19,880
NM
H.R. 2632
Sen. ENR hearing 7/16/08
H.R. 3022 passed House
Sequoia-Kings Canyon National Park
H.R. 3022
114,686
CA
6/9/08
Wilderness Act of 2007
S. 1774
S. 1774 hearing 6/17/08
Spring Basin Wilderness Act of 2008
8,661
OR
S. 3089
Hearing 7/9/08
Tumacacori Highlands Wilderness Act of
83,300
AZ
H.R. 3287
Hearing 11/13/07
2007
Udall-Eisenhower Arctic Wilderness Act
H.R. 39 introduced 1/4/07
1,559,538
AKi
H.R. 39
(H.R. 39); no short title to S. 2316
S. 2316
S. 2316 introduced 11/7/07
H.R. 1011 Sen. ENR hearing
H.R. 1011
4/15/08
Virginia Ridge and Valley Act of 2007
39,161j
VA
S. 570
S. 570 reported by Sen. ENR
6/16/08
Washington County Growth and
264,394
UT
S. 2834
Hearing 4/22/08
Conservation Act of 2008
H.R. 5151 reported by Sen.
Wild Monongahela Act: A National Legacy
H.R. 5151
47,128
WV
ENR 6/16/08
for West Virginia’s Special Places
S. 2581
S. 2581 hearing 4/15/08
Included in S. 2739 and
H.R. 886
Wild Sky Wilderness Act of 2007
106,000
WA
enacted as P.L. 110-229 on
S. 520
5/8/08
a. Affects the Tongass National Forest.
b. Also designates 41,100 acres of “potential wilderness,” to be added when current non-conforming uses have ceased and
sufficient inholdings have been acquired to make a manageable unit.
c. Also designates 36,522 acres of “potential wilderness,” to be added when current non-conforming uses have ceased.
d. Essentially includes Wild Sky Wilderness Act of 2007 (S. 520) and many other non-wilderness provisions.
e. Also designates 2,770 acres of “potential wilderness,” to be added when conditions are compatible or land is acquired through
a land exchange.
f. Essentially includes Lewis and Clark Mount Hood Wilderness Act of 2007 (S. 647).
g. Essentially includes several previously-introduced wilderness bills (plus other provisions): Cascade-Siskiyou National
Monument Voluntary and Equitable Grazing Conflict Resolution Act (S. 2379), Copper Salmon Wilderness Act (S. 2034),
Lewis and Clark Mount Hood Wilderness Act of 2007 (S. 647), Owyhee Public Land Management Act of 2008 (S. 2833),
Rocky Mountain National Park Wilderness and Indian Peaks Wilderness Expansion Act (S. 1380), Virginia Ridge and
Valley Act of 2007 (S. 570), and Wild Monongahela Act: A National Legacy for West Virginia’s Wild Places (S. 2581).
h. Essentially includes several previously-introduced wilderness bills: California Desert and Mountain Heritage Act (H.R. 3682),
Copper Salmon Wilderness Act (H.R. 3513), Sabinoso Wilderness Act of 2007 (H.R. 2632), Sequoia-Kings Canyon
National Park Wilderness Act of 2007 (H.R. 3022), Tumacacori Highlands Wilderness Act of 2007 (H.R. 3287), and Wild
Monongahela Act: A National Legacy for West Virginia’s Special Places (H.R. 5151).
i. Affects the Arctic National Wildlife Refuge (ANWR).
j. Also designates 349 acres of “potential wilderness,” to be added when current incompatible conditions are removed or in five
years, whichever is first.

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CRS-13
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 the BLM and 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; methods — other than adoption — for reducing animals on the
range, particularly fertility control and holding animals in long-term facilities;
whether appropriations for managing wild horses and burros are adequate; and the
slaughter, or potential for slaughter, of horses.22
Adoption has been the primary method of disposal of healthy animals, with
221,714 adopted from FY1972 to FY2007. The 108th Congress enacted controversial
changes to wild horse and burro management on federal lands (P.L. 108-447, § 142)
to provide for the sale of wild horses and burros. Specifically, the first 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 adoption program. A second change removed the ban on the sale of wild horses
and burros or their remains 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 sold under the new authority. These changes have been
supported as providing a cost-effective way to help the agencies achieve AMLs, to
improve the health of the animals, to protect range resources, and to restore a natural
ecological balance on federal lands. They have been opposed as potentially leading
to the slaughter of healthy animals. As of January 2008, the BLM had sold more than
2,500 animals.
As of February 29, 2008, there were an estimated 33,000 wild horses and burros
on BLM lands. National maximum AMLs are set at 27,512, which some critics
assert is set low in favor of livestock. There were another 3,180 wild horses and
burros on FS lands as of September 30, 2006 (most recent year available). Further,
29,772 wild horses and burros were being held in facilities — preparation,
maintenance, and long-term facilities — as of April 1, 2007, and the BLM continues
to be responsible for these animals.
Administrative Actions. The BLM has been pursuing a multi-year effort
to achieve AMLs and in FY2007 had been closer to AMLs than at any time since the
early 1970s. To achieve AMLs, the BLM has continued to remove wild horses and
burros from the range, and dispose of them through adoption and sale as well as
through placement in long-term holding facilities. However, the BLM currently
anticipates removing 5,200 animals in FY2008 and 3,300 in FY2009, reductions
from the number removed in each of the past several years. These reductions will
contribute to higher populations on the range. For instance, the BLM projects a total
of 33,444 wild horse and burros on the range in FY2009. Although adoptions have
22 See CRS Report RS22347, Wild Horse and Burro Issues, by Carol Hardy Vincent.

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CRS-14
been declining over the past several years, they will continue to be the primary
method of disposal in FY2008. The BLM has determined that there is very little
demand for the estimated 8,000 older animals available through the sales program.
In addition, the BLM is reportedly considering whether to euthanize healthy
wild horses and burros, under current authorities, to bolster efforts to reach AML.
The possibility of euthanizing wild horses and burros has been controversial.
Authority to destroy excess animals is provided for under the 1971 law. Specifically,
the Secretary of the Interior, for BLM lands, and the Secretary of Agriculture, for FS
lands, are to remove animals exceeding the range’s carrying capacity to restore a
natural ecological balance and protect the range from deterioration associated with
an overpopulation of wild horses and burros. First, they are to destroy old, sick, or
lame animals by the most humane means available. Second, they are to remove
healthy animals for private adoption. Third, if adoption demand is insufficient, “the
Secretary shall cause additional excess wild free-roaming horses and burros ... to be
destroyed in the most humane and cost efficient manner possible.”23 The agencies
have not used this authority since January 1982.

For FY2008, the BLM requested $32.1 million for management of wild horses
and burros, a 12% decrease from the FY2006 and FY2007 level of $36.4 million.
The agency expected that the funding reduction would be achieved by reducing
efforts to gather and remove animals from the range, at the time anticipating the
removal of 830 animals in FY2008. Congress did not support the requested decrease,
instead appropriating $36.2 million for FY2008. For FY2009, the Administration
has requested $37.0 million. FY2009 appropriations have not been enacted to date.
The level of funding that would be sufficient to care for wild horses and burros,
achieve AML, and reduce long-term budgetary needs has been a matter of debate.
A particular concern has been the cost of holding animals in facilities, in part in light
of declining rates of adoption over the past several years. The potential cost of
holding animals in all facilities for one year is $26.4 million, which would be nearly
three-quarters of BLM’s FY2007 appropriation for wild horse and burro
management.24 The BLM currently needs additional space in long-term holding
facilities and has been soliciting bids for new facilities. Most recently, in June 2008,
the agency solicited bids for contracts for one or more new pasture facilities. Each
facility must be able to provide care for between 500 and 2,500 animals.
Legislative Activity. On April 26, 2007, the House passed H.R. 249 to
overturn the changes enacted in the 108th Congress. Specifically, the bill would
repeal the authority to sell wild horses and burros, reimpose a ban on the sale of wild
horses and burros and their remains for processing into commercial products, and
23 16 U.S.C. §1333(b). Other provisions provide for the sale of excess animals.
24 The cost for animals in preparation and maintenance facilities is $4.55 daily, for a
potential total annual cost of $17.4 million for the 10,496 animals being held as of March
30, 2007. The cost for animals in long-term facilities is $1.27 daily, for a potential total
annual cost of $8.9 million for the 19,276 animals in long-term holding. The combined cost
for all animals in holding is thus estimated at $26.4 million. Annual costs derived by CRS
from data provided by the BLM on daily costs and numbers of animals in holding facilities.

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CRS-15
reinstate criminal penalties for processing the remains into commercial products.25
As with the 108th Congress legislation, the debate centered on whether the sale
authority would result in the slaughter of healthy animals or whether it is needed as
a tool to manage the number of wild horses and burros on the range. There has been
no further action on H.R. 249.
Wildfire Protection (by Ross W. Gorte)
Background. Recent fire seasons seem to have been getting more severe,
with more acres burned and presumably more damage to property and resources than
in previous years. Despite early concerns about, and evacuations from, wildfires in
California, the 2008 fire season has been relatively mild — at least 33% fewer acres
burned through August 25 than in any year since 2003. In contrast, in 2006 and
2007, more area burned than in any other years since record-keeping began in 1960.
Many assert that the threat of severe wildfires and the cost of suppressing fires have
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 interface26).
Administrative Actions. In August 2002, President Bush proposed the
Healthy Forests Initiative to improve wildfire protection by expediting projects to
reduce hazardous fuels on federal lands. The Healthy Forests Restoration Act of
2003 (HFRA; 16 U.S.C. §§ 6501 et al.) included many of these proposals as well as
other provisions. Title I authorized a new, alternative process for reducing fuels on
FS or BLM lands in many areas; five other titles indirectly relate to fire protection.27
In addition, the Administration made several regulatory changes reportedly to
facilitate fire protection activities. First, additional categories of actions — including
fuel reduction and post-fire rehabilitation activities28 — could be excluded from
analysis and documentation under the National Environmental Policy Act (NEPA;
42 U.S.C. §§ 4321-4347). (See “FS NEPA Application and Categorical Exclusions,”
below.) Second, the administrative review processes were revised to clarify that
some emergency actions may be implemented immediately, and others may be
implemented after complying with public notice requirements. Other changes to the
administrative review process expanded “emergencies” to include those “that would
result in substantial loss of economic value to the Government if implementation of
the proposed action were delayed.”29
25 For information on horse slaughter legislation generally, see CRS Report RS21842, Horse
Slaughter Prevention Bills and Issues, by Geoffrey S. Becker.
26 See CRS Report RS21880, Wildfire Protection in the Wildland-Urban Interface, by Ross
W. Gorte.
27 See CRS Report RS22024, Wildfire Protection in the 108th Congress, by Ross W. Gorte.
28 68 Fed. Reg. 33814 (June 5, 2003).
29 FS at 68 Fed. Reg. 33582 (June 4, 2003); BLM at 68 Fed. Reg. 33794 (June 5, 2003).

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CRS-16
Other regulatory changes, such as new NEPA categorical exclusions for small
timber harvesting projects and new regulations for FS planning, could affect fuel
reduction, public involvement, and environmental impacts. The total impact of the
regulatory changes seems likely to be greater discretion for FS action.
Legislative Activity. The 110th Congress has held hearings on aspects of
wildfire protection, particularly on wildfire preparedness, on cost containment, and
on the effects of global climate change on wildfires. Several bills on forest health
restoration to reduce wildfire threats have been introduced. Two quite similar bills
(H.R. 5263 and S. 2593) are both titled the Forest Landscape Restoration Act. Both
would provide a collaborative (diverse, multi-party) process for geographically
dispersed, long-term (10-year), large-scale (at least 50,000 acres) strategies to restore
forests, reduce wildfire threats, and utilize the available biomass. The authorization
is $40 million annually for five years, and the bills require multi-party monitoring of
and annual reporting on activities. The Senate Committee on Energy and Natural
Resources reported S. 2593 on June 16, 2008; the House Committee on Natural
Resources held hearings on H.R. 5263 on July 10, 2008. Another bill, Saving
American Lives and Investing in Protecting Land and Nature (H.R. 4245) would
categorically exclude fuel reduction projects from NEPA analysis if they are
consistent with forest plans and “extraordinary circumstances” regulations, are
covered in a community wildfire protection plan, and are within 1½ miles of
nonfederal land in the wildland-urban interface and conditions pose a threat to those
lands. Other bills are geographically limited, and commonly respond to insect
epidemics that threaten to exacerbate wildfire threats. Additional legislation would
expand or support programs to utilize biomass fuels for electricity, heat, or
transportation fuel production.
The 110th Congress is also considering wildfire funding issues.30 For FY2008,
the National Fire Plan was funded at $3.59 billion, including $800.0 million in two
emergency supplemental appropriations acts. For FY2009, the Administration
requested $2.86 billion, $732.9 million (20%) less than the FY2008 funding. The
request included a 17% increase for FS and BLM fire suppression, a 12% decrease
for FS fire preparedness, a 10% decrease in other FS wildfire operations, and no
emergency contingency funds. Because wildfire funding now constitutes nearly half
the FS budget and the FS and BLM may use other unobligated funds after wildfire
appropriations are exhausted, some are concerned that wildfire control efforts are
delaying or preventing other agency activities, including land management and
cooperative assistance.
Two bills have been introduced in the House and two in the Senate to establish
a separate fund for major wildfire suppression efforts. The Federal Land Assistance,
Management and Enhancement (FLAME) Act (H.R. 5541/S. 3256) establishes a
separate fund, designated as an emergency requirement pursuant to H.Con.Res. 376
(109th Congress), for severe wildfires of at least 300 acres that threaten lives,
property, or critical resources. The fund is authorized at the five-year average of
emergency fire suppression expenditures, with transfers from the Treasury and any
unused fire suppression appropriations. The Emergency Wildland Fire Response Act
30 See CRS Report RL33990, Wildfire Funding, by Ross W. Gorte.

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CRS-17
of 2008 (H.R. 5648) amends the Cooperative Forestry Assistance Act of 1978 (16
U.S.C. §§ 2101-2111) to establish a fund from appropriations, emergency
appropriations, and other transfers for declared emergency incidents for wildfires
where a cooperative agreement exists and that either are 300 acres with potential for
extreme fire behavior or could cause life, property, or other losses. It also provides
assistance to “fire-ready communities” and authorizes “good neighbor partnerships”
for states to implement HRFA projects on federal lands. The House Committee on
Resources held hearings on the two House bills on April 10, 2008. The FLAME Act
passed the House (amended) by voice vote on July 9, 2008. In the Senate, the Stable
Fire Funding Act (S. 1770) would establish separate funds for the BLM and FS for
80% of suppression costs that exceed annual appropriations, authorized at $200
million for the BLM and $600 million for the FS.
FS NEPA Application and Categorical Exclusions
(by Ross W. Gorte and Kristina Alexander)
Background. Unlike most federal agencies, the FS has not published its
NEPA policies in regulation. Instead, the policies have been included in the Forest
Service Handbook (FSH). Also, the FS historically has identified certain activities
as not having significant environmental impacts, and has exempted them from
analysis and associated public participation under NEPA, except in extraordinary
circumstances. Proponents see categorical exclusions (CEs) as a way to expedite
actions and reduce agency costs. Opponents charge that some of the excluded actions
could have significant impacts, especially if extraordinary circumstances are present,
and should be examined and subject to public involvement.
Administrative Action. The FS initiated rulemaking in August 2007 to shift
some of its NEPA policies from the FSH to the Code of Federal Regulations
(C.F.R.).31 Under the proposed rule, some — but not all — of the NEPA guidance
from the FSH will be integrated into Title 36 of the C.F.R. The proposal would
modify the NEPA process to incorporate “incremental alternative development,” to
allow FS decision-making to change while developing alternatives without issuing
versions for notice and comment. The rule also would allow the FS to consider only
one alternative when preparing an environmental assessment (EA), if there are no
unresolved conflicts concerning alternative uses of available resources. Further, the
proposed rule would limit consideration of cumulative impacts to only those past
actions found to be “relevant and useful.”
Since 2003, the FS has expanded the types of activities that can be conducted
without environmental review, increasing the number of types from 18 to 27.32 Some
of the nine newer CEs include biomass fuel reduction projects, “small” timber sales,
and forest plans.33 Additionally, the FS has modified its application of extraordinary
31 72 Fed. Reg. 45998 (Aug. 16, 2007).
32 Forest Service Handbook (FSH) 1909.15, ch. 30, §§ 30.12, 31.2. Under the proposed
rule, the CEs would be found at 36 C.F.R. § 220.6.
33 68 Fed. Reg. 33814 (June 5, 2003); 68 Fed. Reg. 44598 (July 29, 2003); and 70 Fed. Reg.
(continued...)

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CRS-18
circumstances.34 Previously, the rules appeared to preclude automatic use of a CE
in the presence of extraordinary circumstances (e.g., roadless areas or endangered
species habitat). The new rule gives the responsible official discretion to determine
whether extraordinary circumstances warrant NEPA analysis and public involvement
in otherwise exempt projects. Finally, the FS issued new regulations, in 36 C.F.R.
Part 215, changing its notice, comment, and appeals procedures for land management
planning, particularly including a change that a decision to use a CE could not be
administratively appealed.35
Judicial Action. The new CE appeals regulation (at 36 C.F.R. Part 215) was
challenged. In 2005, a California federal court ruled that the regulation violated the
Forest Service Decision Making and Appeals Reform Act (ARA; P.L. 102-381, §
322; 16 U.S.C. § 1612, note) by excluding decisions from the public comment and
appeals process and for other reasons.36 On appeal, the Ninth Circuit reversed the
lower court, holding that the challenges to the regulations in Part 215 were
premature, except for § 215.12(f).37 That section — which provided that CE projects
could not be appealed — had been applied by the FS, and therefore was ripe for
review. The court held that the rule violated the ARA.
Five of the new CE types, including those for fire management activities and
limited timber harvesting, were challenged in the U.S. District Court for Alabama.38
In January 2007, the court upheld the regulations, finding that the FS complied with
NEPA in adopting the CEs.39 The court also considered the regulations under Part
215. It did not expressly consider § 215.12(f), which had been invalidated in August
2006 by the Ninth Circuit, although it refers to the Ninth Circuit decision. The
Alabama court held that the issuance of the Part 215 rule followed NEPA. It refused
to consider ARA challenges to the Appeal Rule, finding they were not ripe for review
because the rule had not been applied yet.
Despite the Alabama District Court’s holding, the hazardous fuels reduction CE
is not in effect. In December 2007, the Ninth Circuit Court of Appeals ruled that the
CE violated NEPA.40 The court found that the FS had failed to consider the
environmental consequences of such a broad program. Thus, after all the relevant
court decisions, the new appeals regulations in Part 215 remain in place, except for
§ 215.12(f) — that is, invoking a CE is not exempt from administrative appeal — and
the FS cannot use the hazardous fuels reduction CE.
33 (...continued)
1023 (Jan. 5, 2005) respectively.
34 67 Fed. Reg. 54622 (Aug. 23, 2002).
35 68 Fed. Reg. 33581 (June 4, 2003); 36 CFR part 215.
36 Earth Island Institute v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005).
37 Earth Island Institute v. Ruthenbeck, 459 F.3d 954 (9th Cir. 2007).
38 The challenged regulations are found at FSH 1909.15, ch. 30, §§ 31.2(10) through (14).
39 Wildlaw v. U.S. Forest Service, 471 F. Supp. 2d 1221, 1242-43 (M.D. Ala. 2007).
40 Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007).

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CRS-19
Other Issues
Other federal lands topics are of interest to the 110th Congress. They include
national forest roadless areas, national forest planning, national forest county
payments, BLM land sales, and grazing management.
Roadless Areas in the National Forest System. (by Ross W. Gorte and
Kristina Alexander)41 Potential wilderness areas in the National Forest System were
examined in the 1970s and early 1980s; 60 million acres of roadless areas were
inventoried in process, and many recommended areas have not been designated as
wilderness by Congress. Some believe that the remaining roadless areas should be
protected from development, while others contend that the areas should be available
for development-type uses. The principal Clinton Administration rule affecting
roadless areas, issued in 2001, resulted in a nationwide approach that curtailed most
road building and timber cutting in roadless areas.42
The Bush Administration issued a final rule in 2005 to replace the Clinton rule,
allowing governors 18 months to petition the FS for a special rule for roadless areas
in all or part of their state.43 Until such a new regulation was finalized or until each
forest plan was amended or revised, the FS was to manage roadless areas in
accordance with interim directives that place most decisions with the regional
forester or the Chief. Even though the Bush rule was enjoined and the 18-month
period has expired, the Administration has stated that under the Administrative
Procedure Act (5 U.S.C. §§ 701, et seq.) states can still petition for a special rule.
Numerous lawsuits have tracked the roadless rules’ course. In April 2001, the
Clinton roadless rule was enjoined by the U.S. District Court for Idaho,44 but that
decision was overturned by the Ninth Circuit.45 In July 2003, the U.S. District Court
for Wyoming stopped application of the Clinton roadless rule — the second
injunction, after the first was overturned.46 In September 2006, the U.S. District
Court for Northern California found that the Bush roadless rule violated NEPA and
the Endangered Species Act (ESA; 16 U.S.C. §§ 1531-1540). The court set aside the
Bush roadless rule and reinstated the Clinton rule.47 The FS filed an appeal in the
Ninth Circuit, challenging the September 2006 decision. After a new suit was filed,
the U.S. District Court for Wyoming found the Clinton roadless rule had violated
NEPA and the Wilderness Act, and enjoined it.48 The Wyoming court said it had the
41 For more detailed information, see CRS Report RL30647, National Forest System
Roadless Area Initiatives, by Kristina Alexander and Ross W. Gorte.
42 66 Fed. Reg. 3244 (Jan. 12, 2001).
43 70 Fed. Reg. 25654 (May 13, 2005).
44 Kootenai Tribe of Idaho v. Veneman, 142 F. Supp. 2d 1231 (D. Idaho 2001).
45 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002).
46 Wyoming v. U.S. Dept. of Agriculture, 277 F. Supp. 2d 197 (D. Wyo. 2003).
47 California v. U.S. Dept. of Agriculture, 459 F. Supp. 2d 874 (N.D. Cal. 2006).
48 Wyoming v. U.S. Department of Agriculture, No. 07-CV-17-B, 2008 WL 3397503 (D.
(continued...)

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authority to do this despite the California court’s order because it (the Wyoming
court) was the only court to consider the legality of the Clinton roadless rule, and so
there was no conflict between the court decisions.
Two bills have been introduced in the 110th Congress addressing roadless area
management. H.R. 2516 would direct implementation of the Clinton roadless rule.
S. 1478 would have a similar effect, but would largely enact the provisions of the
Clinton rule rather than directing that the rule be implemented. Both bills were
introduced on May 24, 2007, and have seen no action.
National Forest Planning. (by Ross W. Gorte and Kristina Alexander) The
FS is required to prepare comprehensive, integrated land and resource management
plans for the national forests.49 The plans are to be developed and revised with public
involvement (16 U.S.C. § 1604(d)), must provide for the multiple use and sustained
yield of goods and services (§ 1604(e)), and must be prepared in accordance with
NEPA (§ 1604(g)(1)). Regulations to implement forest planning were adopted in
1979 and substantially revised in 1982.50
The Clinton Administration finalized new rules (to be phased in over three
years) that emphasized planning for the biological sustainability of the national
forests.51 The Bush Administration delayed the effective date of the Clinton rules
three times, then replaced them before they went into effect.
The Bush Administration promulgated final rules in 2005 to balance biological
and socioeconomic sustainability, to make fewer decisions at the national level by
reducing regulatory guidelines, and to alter public input in the planning process. The
rules also would have exempted plans from NEPA and ESA, because the
Administration views plans as guides to decision-making that would not include site-
specific decisions.52 The Bush planning rules were challenged. On March 30, 2007,
the U.S. District Court for Northern California remanded the Bush rules to the agency
because the rules violated NEPA, ESA, and APA.53 The Administration appealed the
decision, but later withdrew the appeal. The FS reissued the 2005 rule as a proposed
rule to meet the court’s requirement to provide notice.54 To comply with the court’s
other mandates, the FS issued a draft environmental impact statement (DEIS) and
48 (...continued)
Wyo. Aug. 12, 2008).
49 The requirement is in the Forest and Rangelands Renewable Resources Planning Act of
1974, as amended (16 U.S.C. §§ 1600-1614). Substantial detail on the considerations and
analysis to be included in the plans was added in the National Forest Management Act of
1976 (NFMA). Hence, forest planning is also often called NFMA planning.
50 47 Fed. Reg. 43037 (Sept. 30, 1982).
51 65 Fed. Reg. 67514 (Nov. 9, 2000).
52 70 Fed. Reg. 1022 (Jan. 5, 2005).
53 Citizens for Better Forestry v. U.S. Dept. of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal.
2007).
54 72 Fed. Reg. 48513 (Aug. 23, 2007).

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consulted with the Fish and Wildlife Service under the ESA. The final planning rules
were issued in April 2008.55 Two lawsuits have been filed challenging the rules.
National Forest County Payments. (by Ross W. Gorte) The Secure Rural
Schools and Community Self-Determination Act of 2000 (SRS; 16 U.S.C. § 500,
note)56 provided an alternative to two major programs that compensate counties for
the tax-exempt status of certain federal lands.57 Payments under SRS expired at the
end of FY2006, but the FY2007 emergency supplemental appropriations act (P.L.
110-28)58 extended the payments for one year ($525 million). Bills to extend the
SRS payments have been introduced, but legislation that creates new or extends
existing mandatory spending (like SRS payments) generally must be offset by new
revenues or other changes in mandatory spending programs. One bill, the Public
Land Communities Transition Assistance Act of 2007 (H.R. 3058), would extend the
SRS for five years, with complex modifications to shift more of the payments toward
counties with large federal landholdings but low historic revenues from those lands
and with the agencies establishing new or higher fees to offset the payments. On
December 19, 2007, the House Committee on Natural Resources reported the bill,
amended, and on January 15, 2008, it was discharged from the House Committee on
Agriculture. On June 4, 2008, the House considered the bill under suspension of the
rules, but did not pass the bill.
For FY2009, the Administration stated it would offer a legislative proposal for
$200 million “for a 4-year extension ... which will be targeted to the most affected
areas, capped, adjusted downward each year, and phased out.”59 In FY2007 and
FY2008, the President proposed selling about 300,000 acres of FS lands to fund the
program extension, but no source of funds has been identified for FY2009.
BLM Land Sales. (by Carol Hardy Vincent) The President’s FY2009 budget
request included a proposal to extend and amend BLM’s authority to sell or exchange
land under the Federal Land Transaction Facilitation Act (FLTFA, 43 U.S.C. §
2301). The law currently provides for the sale or exchange of land identified for
disposal under BLM’s land use plans “as in effect” at enactment. That authority will
expire on July 24, 2010. Proceeds from the sale or exchange of public land are to be
deposited into a separate Treasury account. Funds in the account are available to
55 73 Fed. Reg. 21467 (Apr. 21, 2008).
56 See CRS Report RL33822, The Secure Rural Schools and Community Self-Determination
Act of 2000: Forest Service Payments to Counties, by Ross W. Gorte.
57 FS and some BLM payments have traditionally been based on revenues — 25% of FS
gross revenues returned to the states for use on roads and schools in the counties where the
FS lands are located; and 50% of BLM revenues from the Oregon & California (O&C) grant
lands returned to the counties containing the O&C lands. FS and BLM revenues declined
precipitously in the early 1990s due to declining timber sales to protect northern spotted
owls, water quality, and other resources.
58 The U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability
Appropriations Act, 2007.
59 USDA/FS, Fiscal Year 2009 President’s Budget: Budget Justification (Washington, DC:
Feb. 2008), p. 15-51.

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both the Secretary of the Interior and the Secretary of Agriculture to acquire
inholdings and other nonfederal lands (or interests therein) that are adjacent to federal
lands and contain exceptional resources. The law’s purposes included allowing for
the reconfiguration of land ownership patterns to better facilitate resource
management, improving administrative efficiency, and increasing the effectiveness
of the allocation of fiscal and human resources.
The President’s proposal would extend FLTFA until January 1, 2018. It would
direct using updated land management plans for determining which lands to sell or
exchange. Further, the proposal would change the distribution of the proceeds to
allow 70% of the net proceeds to be deposited in the general fund of the Treasury,
with “a portion” available to the BLM for restoration projects. It would cap receipts
retained by Interior at $60 million annually. The Administration had estimated that
these changes would generate $193 million in total revenue for the Treasury from
FY2008 through FY2012. The Administration made a similar proposal in its
FY2007 and FY2008 budgets. The changes were promoted to reduce the federal
deficit, to ensure that the public will benefit from land sales, and to reduce the
amount of money not subject to oversight during the appropriations process.
Legislation would be needed to effect these changes, and no such legislation has been
introduced in Congress to date.
Grazing Management. (by Carol Hardy Vincent and Kristina Alexander)
The BLM issued new grazing regulations, effective August 11, 2006.60 The U.S.
District Court for Idaho enjoined all the 2006 regulations from taking effect.61 The
court found that the BLM had violated three laws in promulgating the regulations —
NEPA, ESA, and FLPMA. In particular, the court criticized the 2006 regulations’
reduction of public input into BLM day-to-day decisions such as allotment
boundaries and temporary permits. It also found that the BLM should have consulted
with the Fish and Wildlife Service regarding the changes, as it had done for the 1995
changes to grazing regulations. Further, the court criticized the BLM for eliminating
comments by DOI scientists from a NEPA document. Before the regulations could
be reinstated, the BLM would have to satisfy the court that it had examined the
environmental impacts under NEPA, performed a § 7 consultation under ESA, and
restored the FLPMA public comments provisions. The court did not require the
BLM to use the 1995 grazing regulations, leaving that decision to the BLM. The
BLM currently is operating under those regulations, which were in effect before the
2006 changes. However, the provisions on conservation use permits that were
enjoined in 1996 are not in effect.62
The BLM had revised its grazing regulations (in 2006) on the grounds that
changes were needed to comply with court decisions, increase flexibility for
managers and permittees, improve administrative procedures and business practices,
60 The new grazing regulations, and related information about the reform effort, are available
at [http://www.blm.gov/grazing/].
61 Western Watersheds Project v. Kraayenbrink, 538 F. Supp. 2d 1302 (D. Idaho 2008).
62 See the BLM instruction memorandum on the agency’s website, at [http://www.blm.gov/
wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction/2007/
im_2007-137__0.html].

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and promote conservation. While lauded by some, the reform effort had been
criticized by others as unnecessary or harmful. Some of the regulatory changes
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 the BLM is required to consult with
the public. The BLM did not address some controversial issues, such as revising the
grazing fee. The BLM had expected to return to the consideration of related grazing
policy changes once the new regulations were in effect.
Additional Reading: Current and Historical
CRS Report RL33872, Arctic National Wildlife Refuge (ANWR): New Directions in
the 110th Congress, by M. Lynne Corn, Bernard A. Gelb, and Kristina
Alexander.
CRS Report RL34273, Federal Land Ownership: Current Acquisition and Disposal
Authorities, by Ross W. Gorte and Carol Hardy Vincent.
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 RL34461, Interior, Environment, and Related Agencies: FY2009
Appropriations, coordinated by Carol Hardy Vincent.
CRS Report RS21967, Land Exchanges: Bureau of Land Management Process and
Issues, by Carol Hardy Vincent.
CRS Report RL33014, Leasing and Permitting for Oil and Gas Development on
Federal Public Domain Lands, by Aaron M. Flynn and Ryan J. Watson.
CRS Report RL33908, Mining on Federal Lands: Hardrock Minerals, by Marc
Humphries.
CRS Report RL30647, National Forest System Roadless Area Initiatives, by Kristina
Alexander and Ross W. Gorte.
CRS Report RL33806, Natural Resources Policy: Management, Institutions, and
Issues, coordinated by Carol Hardy Vincent, Julie Jennings, and Nicole T.
Carter.
CRS Report RL34772, Proposals to Merge the Forest Service and the Bureau of
Land Management: Issues and Approaches, by Ross W. Gorte.

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CRS Report RL33525, Recreation on Federal Lands, coordinated by Kori Calvert
and Carol Hardy Vincent.
CRS Report RL33822, The Secure Rural Schools and Community Self-
Determination Act of 2000: Forest Service Payments to Counties, by Ross W.
Gorte.
CRS Report RS22347, Wild Horse and Burro Issues, by Carol Hardy Vincent.
CRS Report RL33827, Wilderness Laws: Permitted and Prohibited Uses, by Ross
W. Gorte.
CRS Report RL31447, Wilderness: Overview and Statistics, by Ross W. Gorte.
CRS Report RL34517, Wildfire Damages to Homes and Resources: Understanding
Causes and Reducing Losses, by Ross W. Gorte.
CRS Report RL33990, Wildfire Funding, by Ross W. Gorte.
CRS Report RS21880, Wildfire Protection in the Wildland-Urban Interface, by Ross
W. Gorte.

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