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The 111th 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 leasing
programs and application of environmental laws to certain 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 in the 110th Congress, to reform
aspects of the General Mining Law, and a similar bill, H.R. 699, has been introduced in the 111th
Congress.
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. The
economic stimulus legislation, P.L. 111-5, includes additional funding for fuel reduction.
Wild Horses and Burros. To reduce the number of wild horses and burros on the range and/or
program costs, the BLM is considering three controversial options: euthanizing healthy animals,
selling them without limitations, or ceasing to removing them from the range. H.R. 1018 has been
introduced to amend the Wild Horses and Burros Act to limit euthanasia and sales.
National Landscape Conservation System. The BLM created the National Landscape
Conservation System in 2000 to enhance the focus on specially protected conservation areas. The
111th Congress is considering measures to establish the 27 million acre system legislatively,
including in Title Q of S. 22, which passed the Senate on January 16, 2009, and may debate 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). Nearly fifty wilderness
area bills were introduced in the 110th Congress, and one was enacted into law. Bills have been
introduced in the 111th Congress, and one, S. 22, passed the Senate on January 16, 2009.
National Forest System Roadless Areas. Debates about managing roadless areas—for
wilderness values or development—persist, with differing regulations from the Clinton and Bush
Administrations, and litigation challenging both sets of regulations.
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 national forest planning, national forest county payments,
BLM land sales, and grazing management.

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Background ..................................................................................................................................... 1
History of the Bureau of Land Management............................................................................. 1
History of the Forest Service..................................................................................................... 2
Scope of Report......................................................................................................................... 2
Issue Discussion and Analysis......................................................................................................... 3
Onshore Energy Resources ....................................................................................................... 3
Background ......................................................................................................................... 3
Administrative Actions ....................................................................................................... 4
Legislative Activity............................................................................................................. 5
Hardrock Minerals .................................................................................................................... 5
Background ......................................................................................................................... 5
Administrative Actions ....................................................................................................... 6
Legislative Activity............................................................................................................. 6
Wildfire Protection.................................................................................................................... 7
Background ......................................................................................................................... 7
Administrative Actions ....................................................................................................... 7
Legislative Activity............................................................................................................. 8
Wild Horses and Burros ............................................................................................................ 8
Background ......................................................................................................................... 8
Administrative Actions ....................................................................................................... 9
Legislative Activity........................................................................................................... 10
National Landscape Conservation System...............................................................................11
Background ........................................................................................................................11
Administrative Actions ......................................................................................................11
Legislative Activity............................................................................................................11
Wilderness............................................................................................................................... 13
Background ....................................................................................................................... 13
Legislative Activity........................................................................................................... 14
Roadless Areas in the National Forest System........................................................................ 15
Background ....................................................................................................................... 15
Administrative Action....................................................................................................... 15
Legislative Action ............................................................................................................. 15
Judicial Action .................................................................................................................. 15
FS NEPA Application and Categorical Exclusions ................................................................. 16
Background ....................................................................................................................... 16
Administrative Action....................................................................................................... 16
Legislative Activity........................................................................................................... 17
Judicial Action .................................................................................................................. 17
Other Issues............................................................................................................................. 18
National Forest Planning................................................................................................... 18
National Forest County Payments .................................................................................... 19
BLM Land Sales ............................................................................................................... 20
Grazing Management........................................................................................................ 21
Additional Reading: Current and Historical.................................................................................. 22

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Table 1. Wilderness Legislation in the 111th Congress .................................................................. 14

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Author Contact Information .......................................................................................................... 23

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he 111th Congress may consider actions that could affect the various uses and management
of federal lands administered by the Bureau of Land Management and the Forest Service.
T These actions include legislation, administrative or regulatory proposals, and litigation and
judicial decisions. Issue areas include onshore energy resources, administration of hardrock
mining, wildfire protection, management of wild horses and burros, designation of the National
Landscape Conservation System, wilderness designation, management of national forest roadless
areas, 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.
ȱ
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 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, 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 emphasis 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 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.
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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

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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called BLM’s Organic Act because it consolidated and articulated the agency’s responsibilities.
Among other provisions, the law established a general national policy that BLM-managed public
lands be retained in federal ownership, established management of the public lands based on the
principles of multiple use and sustained yield, and generally required 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.
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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 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.
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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 likely to be of interest to
the 111th Congress, including access to energy resources, administration of hardrock mining,
wildfire protection, wild horses and burros management, the National Landscape Conservation
System, wilderness designation, protection and use of national forest roadless areas and FS
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 R40225, Federal Land Management Agencies: Background on Land
and Resources Management, coordinated by Ross W. Gorte. 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.
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(by Marc Humphries)
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Access to federal lands for energy and mineral development has been a controversial issue. 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 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 the land for mineral development. The Energy Policy Act of 2005 (EPAct05, 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.
Geothermal leasing on federal lands is conducted under the authority of the Geothermal Steam
Act of 1970, as amended (30 U.S.C. §§1001-1028). Much of the nation’s geothermal energy
potential is located on federal lands. Increasing geothermal production on federal lands while
mitigating environmental impacts from increased production are at issue. The George W. Bush
Administration asserted that improving the efficiency of the federal geothermal leasing process
could increase geothermal energy production. The BLM administers more than 400 geothermal
leases, with 29 operating geothermal power plants generating an estimated 1,250 mega-watts of
energy annually (equivalent to a single large nuclear power plant).5
Development of renewable energy such as solar and wind are governed by right-of-way
authorities under Title V of the Federal Land Policy and Management Act of 1976 (FLPMA; 43
U.S.C. §§1761-1771). Large tracts of land would be needed for new solar and wind energy

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 U.S. Depts. of the Interior, of Agriculture, and 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/wo/st/en/prog/energy/oil_and_gas/EPCA_III.html.
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 U.S. Dept. of the Interior, Kempthorne Launches Initiative to Spur Geothermal Energy and Power Generation on
Federal Lands, News Release, October 22, 2008, http://www.doi.gov/news/08_News_Releases/102208b.html.
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projects as well. Some of the environmental impacts of renewable energy production have been
controversial, such as impacts on wildlife and locating projects in environmentally sensitive
areas.
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The Bush Administration responded to provisions of EPAct05.6 Under §369, the BLM had
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 progress of the pilot project.7
For commercial oil shale development, the BLM completed a draft programmatic environmental
impact statement (PEIS) on December 20, 2007. The BLM completed its final PEIS on
September 4, 2008, and published its final rule for a commercial oil shale and tar sands leasing
program on November 17, 2008. The new rule, in effect, has been criticized by a number of
interest groups and is under review by the Obama Administration.
For developing geothermal energy on federal lands, the BLM issued its final rule, effective June
1, 2007.8 EPAct05, §§221-236, amended the Geothermal Steam Act to change the leasing
procedures to offer more competitive leasing and establish a new royalty and rental rate
framework. Provisions in EPAct05 addressed competitive lease sale requirements, royalty
incentives, improved leasing and permitting processes. Based on BLM’s final PEIS, the Interior
Department published a Record of Decision on December 18, 2008, to amend several resource
management plans for increased development of geothermal resources on federal land.
For wind energy facilities on BLM lands, the BLM completed a final PEIS in January 2006.9 This
document supports land management plan amendments providing for wind energy development
in the western states. The review, undertaken in compliance with Executive Order 13212,10 seeks
to comply with provisions in EPAct05 directing renewable energy development on public lands.
On December 19, 2008, BLM issued its updated wind energy development policy.
An updated solar energy development policy was published by the BLM on April 4, 2007. The
agency continues to collaborate with DOE to prepare a PEIS to evaluate solar energy
development on public lands, among other things. A PEIS scoping report was completed in
October 2008. A final PEIS is expected to be available for public comment in June 2009.
A recent BLM quarterly oil and gas lease sale in Utah came under scrutiny by the National Park
Service (NPS) and several environmental organizations claiming that the lease sales offered were
too close to several national parks and environmentally sensitive areas without adequate analysis
of the impact on air quality. Initially, the BLM recommended a lease sale of 241 parcels on about
360,000 acres in Utah, near Arches National Park, Dinosaur National Monument, Canyonlands

6 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.
7 U.S. Dept. of the Interior, Bureau of Land Management, Year Two Report: Section 365 of the Energy Policy Act of
2005—Pilot Project to Improve Federal Permit Coordination (Feb. 2008).
8 72 Fed. Reg. 24358 (May 2, 2007).
9 71 Fed. Reg. 1768 (Jan. 11, 2006).
10 “Actions to Expedite Energy-Related Projects,” 66 Fed. Reg. 28357 (May 22, 2001).
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National Park, and areas having wilderness characteristics. The NPS recommended that 93
“parcels of concern” be removed from the sale. The BLM agreed to defer 33 of the 93 parcels.
After a number of additional parcels were deferred, the BLM announced on December 12, 2008,
its decision to lease 132 parcels on 164,000 acres. The lease sale (116 parcels) was held on
December 19, 2008. However, prior to the lease sale, several environmental organizations filed a
lawsuit against the BLM in U.S. district court to prevent the sale. While the sale took place as
scheduled, the BLM and several environmental groups agreed to allow the district court judge to
review and rule on the suit before the lease sale would be finalized (30 days after the sale).
In January 2009, the U.S. District Court for the District of Columbia issued a temporary
restraining order halting BLM from finalizing the sale of 77 parcels (on about 110,000 acres)
based on a finding of inadequate environmental review of oil and gas development in the area.11
Under the Bush Administration, the BLM argued that the Resource Management Plans, the basis
for the lease sale, were worked out over several years and do adequately address environmental
issues. In addition, the BLM stated that many of the leases contain a number of restrictions and
stipulations. Even so, others counter, the restrictions and stipulations could be waived by the
BLM at the request of industry. On February 4, 2009, Secretary of the Interior Ken Salazar
announced that the BLM will not accept the bids on the 77 parcels under the restraining order and
will withdraw the leases because of what the Administration considers to have been a rushed sale
without adequate environmental review.
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The use of public lands for increased domestic energy production is likely to remain contentious
in the 111th Congress as it has in previous Congresses. To date, no legislation on access to or use
of federal lands for energy production has been introduced in the 111th Congress.
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(by Marc Humphries)
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The General Mining Law of 1872 is one of the major statutes directing federal land 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.12
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

11 Southern Utah Wilderness Alliance v. Allred, No. 08-2187 (RMU)(D. D.C. January 17, 2009).
12 For more information on the General Mining Law and recent reform efforts, see CRS Report RL33908, Mining on
Federal Lands: Hardrock Minerals, by Marc Humphries.
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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 rights13 (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 agency14 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.
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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). It is unclear what course of action, if any, the Obama Administration will pursue
regarding the General Mining Law of 1872.
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Broad-based legislation to reform the General Mining Law of 1872 (H.R. 699) was introduced on
January 27, 2009. The bill is quite similar to H.R. 2262 of the 110th Congress. It 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. 699 would create a Locatable
Minerals Fund (administered by the Secretary of the Treasury), which would contain two
accounts: the Hardrock Reclamation Account and the Community Impact Assistance Account.
Both accounts, administered by the Secretary of the Interior, would be used for reclamation and
restoration of land and water from past mining activities, and to facilitate public services to those
communities impacted by mining conducted under the mining law. All revenues from royalties
and fees specified in H.R. 699 would be credited to the Locatable Minerals Fund. H.R. 699 would
also require a reclamation plan by mineral producers and impose new environmental standards.
In the 110th Congress, hearings were held on a Mining Law reform bill, H.R. 2262, by the House
Natural Resources Subcommittee on Energy and Mineral Resources. The committee reported the

13 There are approximately 700 million acres of federal mineral rights, including FS and BLM lands as well as lands
administered by the National Park Service, Fish and Wildlife Service, and Department of Defense and federal mineral
rights underlying private lands.
14 The BLM administers mineral resources under all federal lands, regardless of which agency has responsibility for
administering the surface.
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bill on October 29, 2007 (H.Rept. 110-412), and the House passed the bill on November 1, 2007.
In the Senate, two oversight hearings on mining law reform were held by the Senate Energy and
Natural Resources Committee—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). No further action occurred in the 110th Congress.
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(by Ross W. Gorte)
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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 was relatively
mild—42% fewer acres burned than on average in the previous four years. In contrast, in 2005,
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 interface).15
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In August 2002, President George W. 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.16 In
addition, the Bush Administration made several regulatory changes reportedly to facilitate fire
protection activities. First, additional categories of actions—including fuel reduction and post-fire
rehabilitation activities17—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.”18
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

15 See CRS Report RS21880, Wildfire Protection in the Wildland-Urban Interface, by Ross W. Gorte.
16 See CRS Report RS22024, Wildfire Protection in the 108th Congress, by Ross W. Gorte.
17 68 Fed. Reg. 33814, June 5, 2003.
18 FS at 68 Fed. Reg. 33582, June 4, 2003; BLM at 68 Fed. Reg. 33794, June 5, 2003.
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environmental impacts. The total impact of the regulatory changes seems likely to be greater
discretion for FS action.
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The 110th Congress held hearings on aspects of wildfire protection, particularly on wildfire
preparedness, cost containment, and the effects of global climate change on wildfires. Several
bills on forest health restoration to reduce wildfire threats were introduced. In the 111th Congress,
the Forest Landscape Restoration Act has been included in Title IV of the Omnibus Public Land
Management Act of 2009 (S. 22). It would provide a collaborative (diverse, multi-party) process
for geographically dispersed, long-term (10-year), large-scale (at least 50,000-acre) strategies to
restore forests, reduce wildfire threats, and utilize the available biomass. The act would require
multi-party monitoring of and reporting on activities. The authorization for the fund is $40
million annually for ten years. S. 22 was introduced on January 7, 2009, and passed the Senate on
January 15.
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.19 Legislation was introduced in the 110th Congress to
establish separate funds for wildfire suppression efforts, and one—the FLAME Act (H.R.
5541)—passed the House, but none was enacted. To date, no comparable bills have been
introduced in the 111th Congress. In addition, the economic stimulus, P.L. 111-5 (the American
Recovery and Reinvestment Act of 2009), includes $515.0 million for wildfire management—
$15.0 million for the BLM for fuel reduction, and $500.0 million for the FS, half for fuel
reduction, forest health protection and rehabilitation, and hazard mitigation in the national forests
and half for fuel reduction and forest health and ecosystem improvements on state and private
lands, with up to $50.0 million for wood energy grants.
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(by Carol Hardy Vincent)
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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.
Controversial issues 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.20

19 See CRS Report RL33990, Wildfire Funding, by Ross W. Gorte.
20 For more information, see CRS Report RL34690, Wild Horse and Burro Issues, by Carol Hardy Vincent.
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Adoption has been the primary method of disposal of healthy animals, with 225,420 adopted from
FY1972 to FY2008. 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 December 3, 2008, the BLM had
sold more than 2,900 animals.
As of February 29, 2008, there were an estimated 33,000 wild horses and burros on BLM lands.
The national maximum AML is 27,219 for all herds, 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, another 30,489 wild horses and burros that were
removed from the range were being held in short- and long-term facilities as of October 2008.
The BLM continues to be responsible for these animals.
ȱȱ
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 and reduce program costs, the
BLM has been focusing on three specific options. These options have been contentious. First, to
reduce program costs, the BLM is evaluating whether it is feasible to stop removing animals from
the range. The agency has expressed that stopping removals would be destructive to the range,
and this option likely would be opposed by ranchers who use the lands for forage for livestock.
Second, the BLM is considering whether to sell animals “without limitation,” as provided in the
108th Congress amendments to the 1971 Act. Thus far the agency has focused on buyers who
intend to provide long-term care. This option has been opposed on the grounds that these animals
could end up being sold for slaughter.
Third, the BLM is reviewing whether to euthanize healthy wild horses and burros under current
authorities. Authority to destroy excess animals is provided for under the 1971 Act. 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. The agencies have not used this authority since January 1982.
In reaction to the possibility of slaughter, a private animal activist has expressed interest in
purchasing more than 30,000 excess wild horses and burros from the BLM.21 The agency is also
evaluating other recommendations for managing wild horses and burros, developed at the

21 For background as well as news stories related to the proposal, see the website of its proponent at
http://www.madeleinepickens.com.
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November 17, 2008, meeting of the Wild Horse and Burro Advisory Board. The
recommendations relate to enhancing the adoption and sale of animals, euthanizing animals,
slowing population growth, securing sufficient funding, and providing care through livestock
permits, among other matters.22
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, partially in light of declining rates of adoption over the
past several years. The BLM estimates that the cost of holding animals in all facilities in FY2008
was nearly three-quarters of its appropriation for wild horse and burro management. The BLM
currently needs additional space in long-term holding facilities and has been soliciting bids for
contracts for new pasture facilities.
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 BLM 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. Ultimately, an estimated
5,275 wild horses and burros were removed in FY2008. For FY2009, the Administration
requested $37.0 million. Funding for wild horse and burro management has not been determined
for FY2009; the BLM is operating under a continuing appropriations resolution through March 6,
2009 (Division A, P.L. 110-329).
ȱ¢ȱ
Legislation to amend the 1971 Act has been introduced in the 111th Congress. H.R. 1018 seeks to
prohibit the slaughter23 of wild horses and burros, unless the animal is terminally ill, and to
remove the authority of the agencies to sell excess wild horses and burros. Further, the bill would
limit the removal of wild horses and burros from the range except where (1) the animals are
terminally ill, (2) the immediate health or safety of the animals is threatened, or (3) the Secretary
“has exhausted all practicable options” of maintaining the animals on the range, has determined
that there is an “adoption demand” for the animals, and can “ensure humane treatment and care”
through specified requirements. Other provisions of the bill seek to facilitate the establishment of
wild horse and burro sanctuaries on public lands; identify new rangelands for wild horses and
burros, including on private lands; improve the methods for estimating animals on the range and
determining AMLs; enhance implementation of fertility control; and promote wild horse and
burro adoptions. The bill would require annual reports to the House and Senate authorizing
committees24 with information on animal populations, AMLs, acres of BLM land for wild horses
and burros, sanctuaries (or exclusive use areas), and fertility control, among other topics.

22 The recommendations are on the BLM website at
http://www.blm.gov/wo/st/en/info/newsroom/2008/november/NR_11_19_2008.html.
23 For information on horse slaughter legislation generally, see CRS Report RS21842, Horse Slaughter Prevention Bills
and Issues, by Geoffrey S. Becker.
24 The committees are the House Committee on Natural Resources and the Senate Committee on Energy and Natural
Resources.
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In October 2008, the Government Accountability Office (GAO) released a report on BLM
management of wild horses and burros.25 GAO examined a number of issues including the BLM’s
progress towards setting and meeting AML; use of adoptions, sales, and holding facilities for
managing wild horses and burros off the range; controls to ensure humane treatment of animals;
and challenges in program management. Among other findings, GAO determined that if the costs
of holding animals in facilities are not controlled, they will overwhelm the program. GAO also
concluded that the BLM’s options for dealing with unadoptable animals are limited, and that
because the BLM is not destroying animals or selling them without limitation, it is not in
compliance with 1971 Act. Among its recommendations for executive action, GAO
recommended that the Secretary of the Interior direct the BLM to discuss with Congress and
other interests how best to comply with the 1971 Act or to amend it so that the BLM would be
able to comply.
ȱȱȱ¢ȱȱ
(by Carol Hardy Vincent)
ȱ
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.26 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.
ȱȱ
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
George W. Bush Administration testified in favor of establishing the NLCS legislatively and
sought reduced funds for the system for FY2009.
ȱ¢ȱ
Legislation has been introduced (H.R. 404, S. 22) to establish the NLCS legislatively. The
measures seek to “conserve, protect, and restore nationally significant landscapes” that have
outstanding values for the benefit of current and future generations. H.R. 404 is a free-standing

25 U.S. Government Accountability Office, Bureau of Land Management: Effective Long-Term Options Needed to
Manage Unadoptable Wild Horses, GAO-09-77, October 2008, at http://www.gao.gov/new.items/d0977.pdf.
26 U.S. Dept. of the Interior, Bureau of Land Management, Budget Justifications and Performance Information, Fiscal
Year 2009, p. I-78.
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bill that has been introduced and referred to committee. S. 22 is an omnibus public lands bill that
passed the Senate and has been sent to the House.
At hearings in the 110th Congress on similar NLCS bills, the Bush Administration (and other
witnesses) testified in favor of establishing the system legislatively. For instance, at a hearing on
S. 1139 (110th Congress), the then 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 the agency’s multiple-use mission.27
Other witnesses expressed opposition to such legislation, for instance, on the assertion that it
could have the effect of establishing new, standardized requirements for disparate areas in the
system.28
There continues to be some concern over whether measures to establish the NLCS legislatively
would affect how the areas in the system are managed. The intent appears to be not to alter the
way the areas are currently managed. For instance, when introducing S. 1139 in the 110th
Congress, Senator Bingaman expressed that “[t]he bill does not create any new management
authority and does not change the authorities for any of the previously designated areas within the
system.”29 Provisions of the pending measures (H.R. 404 and S. 22) state they do not enhance,
diminish, or modify any law, proclamation, or related regulations under which components of the
system were established or are managed. Concerns have centered on whether lands in the system
will be given a higher emphasis on conservation with resulting restrictions on land uses, such as
energy development; livestock grazing; or hunting, fishing, and trapping.
Pending bills also would make federal land designations (e.g., wilderness, national monument,
and national conservation area) and add the BLM areas to the NLCS. Such measures were
considered in the 110th Congress. For instance, 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).
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 Bush Administration requested $49.9 million for the NLCS in FY2009, a $4.4
million decrease from the FY2008 enacted level of $54.2 million. Funding for the NLCS has not
been determined for FY2009; Interior agencies are operating under a continuing appropriations
resolution through March 6, 2009 (Division A, P.L. 110-329).

27 Mr. Jim Hughes, Acting Director, Bureau of Land Management, Hearing to Receive Testimony on Current
Legislation, U.S. Senate Energy and Natural Resources Subcommittee on Public Lands and Forests (May 3, 2007).
28 Mr. Orie Williams, Chief Executive Officer, Doyon Limited, Legislative Hearing on H.R. 2016, U.S. House Natural
Resources Subcommittee on National Parks, Forests, and Public Lands (June 7, 2007).
29 Senator Jeff Bingaman, Remarks in the Senate on S. 1139, April 18, 2007, Congressional Record, p. S. 4679.
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(by Ross W. Gorte)
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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 often
are controversial because commercial activities, motorized access, and roads, structures, and
facilities generally are restricted in wilderness areas.30 Similarly, agency wilderness studies can be
controversial, first because uses are restricted while the study is conducted and while Congress
considers possible designations, and second because the study recommendations and Congress’s
decision may permanently determine the future management of the areas.
Some observers believe that a Clinton rule protecting national forest roadless areas (see below)
was prompted by a belief that Congress had lagged in designating areas as wilderness.31 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—was 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 requires 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, DOI settled the case and issued new wilderness
guidance (IM Nos. 2003-274 and 2003-275) prohibiting further reviews and limiting the non-
impairment standard (i.e., protecting wilderness characteristics of the areas) to previously
designated §603 WSAs.32

30 See CRS Report RL33827, Wilderness Laws: Permitted and Prohibited Uses, by Ross W. Gorte.
31 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. Dept. of Agriculture, 570 F.Supp.
2d 1309 (D. Wyo. 2008).
32 See CRS Report RS21917, Bureau of Land Management (BLM) Wilderness Review Issues, by Ross W. Gorte and
Pamela Baldwin.
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In the 110th Congress, dozens of bills to designate new wilderness areas or expand existing ones
were introduced; only one, the Consolidated Natural Resources Act of 2008, was enacted into law
(P.L. 110-229). Only one introduced bill would have amended the Wilderness Act, but no
hearings were held on the bill. Near the end of the 110th Congress, a proposed amendment titled
the Omnibus Public Lands Management Act of 2008 (S.Amdt. 5662) was submitted to the
Congressional Record but was not enacted.
In the 111th Congress, the Omnibus Public Lands Management Act of 2009 (S. 22), which
included many wilderness designations, was introduced on January 7, 2009, and passed the
Senate on January 15. As passed, the bill would enact 2.0 million acres of wilderness in eight
states. Other bills to designate wilderness areas have also been introduced (and some of these
have been included in S. 22).
Table 1. Wilderness Legislation in the 111th Congress
Bill Title
Acreagea
State Bill No.
Most Recent Action
Beaver Basin Wilderness Act
11,740
MI
S. 109
Introduced 1/6/09
California Desert and Mountain
146,824b CA
H.R.
369
Introduced
1/9/09
Heritage Act of 2009
Central Idaho National Forest and
318,765 ID
H.R.
192
Introduced
1/6/09
Public Land Management Act
Dominguez-Escalante National
66,280 NM
H.R.
170/
H.R. 170 introduced 1/6/09
Conservation Area and Dominguez
S. 183
S. 183 introduced 1/8/09
Canyon Wilderness Area Act
Northern Rockies Ecosystem
24,034,575c
d
H.R. 980
Introduced 2/11/09
Protection Act
Omnibus Public Land Management
2,029,870f
g
S. 22
Passed Senate 1/15/09
Act of 2009e
Rocky Mountain National Park
253,534 CO
H.R. 419/ H.R. 419 introduced 1/9/09
Wilderness and Indian Peaks
S. 190
S. 190 introduced 1/8/09
Wilderness Expansion Act
Sabinoso Wilderness Act of 2009
15,995
NM
H.R. 921
Introduced 2/11/09
Udall-Eisenhower Arctic Wilderness 1,559,538 AKh
H.R. 39/
H.R. 3 introduced 1/609
Act (H.R. 39); no short title to S. 231
S. 231
S. 231 introduced 1/14/09
Source: CRS calculation from LIS database.
Notes:
a. Acreage as introduced; acreage may change as bills are reported or passed.
b. Also designated potential wilderness of 43,300 acres, to be added when current non-conforming uses have
ceased and sufficient inholdings have been acquired to make a manageable unit.
c. Acreage totaled from pre-publication edition via LIS.
d. Contains acreage in several states: ID, MT, OR, WA, and WY.
e. Also identified as Craig Thomas Snake Headwaters Legacy Act of 2008.
f. Also designated several potential wilderness areas (46,419 acres total) to be added when non-conforming
uses have ceased, land exchanges have been completed, or other conditions have been met.
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g. Contains acreage from several states: CA, CO, ID, MI, NM, OR, UT, VA, and WV. Includes Beaver Basin
Wilderness Act (S. 109), California Desert and Mountain Heritage Act of 2009 (H.R. 369), Rocky Mountain
National Park Wilderness and Indian Peals Wilderness Expansion Act (H.R. 419/S. 190), and Sabinoso
Wilderness Act of 2009 (H.R. 321), plus several bills from the 110th Congress.
h. Affects Arctic National Wildlife Refuge (ANWR).
ȱȱȱȱȱȱ¢ȱ
(by Ross W. Gorte and Kristina Alexander)
ȱ
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 the process. Some contend that the
remaining roadless areas (that have not been designated as wilderness by Congress) should be
protected from development, while others contend that the areas should be available for
development-type uses.33
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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.34 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. 35 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 Bush Administration stated that under the Administrative Procedure Act (5
U.S.C. §§701, et seq.) states could still petition for a special rule. A final rule for Idaho was
published on October 16, 2008.36
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Bills to provide protection for national forest roadless areas have been introduced in past
Congresses, but to date, none have been introduced in the 111th Congress.
ȱȱ
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,37 but that decision was overturned by the

33 For more detailed information, see CRS Report RL30647, National Forest System Roadless Area Initiatives, by
Kristina Alexander and Ross W. Gorte.
34 66 Fed. Reg. 3244, Jan. 12, 2001.
35 70 Fed. Reg. 25654, May 13, 2005.
36 73 Fed. Reg. 61456-61496, Oct. 16, 2008.
37 Kootenai Tribe of Idaho v. Veneman, 142 F. Supp. 2d 1231 (D. Idaho 2001).
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Ninth Circuit.38 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.39 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.40 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 that the Clinton roadless rule had violated NEPA and the Wilderness Act, and
enjoined it.41 The Wyoming court said it had the 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. Because of these
conflicting court rulings, the FS sought clarification from the courts as to which rule governed.
The California court limited the application of its injunction to specific states (AK, AZ, CA, ID,
HI, NV, NM, OR, and WA).42 Therefore, the Clinton rule applies in those states, but the Bush rule
is in place for the rest of the country.
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(by Ross W. Gorte and Kristina Alexander)
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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. Categorical exclusions (CEs) and other controversial
NEPA-related decisions have been based on the belief that FS management and activities have
been thwarted by litigation based on the statute. Proponents of CEs see them 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.
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In 2008, the FS shifted many of its NEPA policies from the Forest Service Handbook (FSH) to
the Code of Federal Regulations (C.F.R.).43 As part of the rulemaking to make the switch, some
regulations were modified. For example, the NEPA process would incorporate “incremental
alternative development,” to allow FS decision-making to change while developing alternatives
without issuing versions for notice and comment.44 The rule also allows 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.45 Further, the rule limits

38 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002).
39 Wyoming v. U.S. Dept. of Agriculture, 277 F. Supp. 2d 197 (D. Wyo. 2003).
40 California v. U.S. Dept. of Agriculture, 459 F. Supp. 2d 874 (N.D. Cal. 2006).
41 Wyoming v. U.S. Dept. of Agriculture, 570 F. Supp. 2d 1309 (D. Wyo. 2008).
42 California v. U.S. Dept. of Agriculture, No. C05-03508 EDL, 208 WL S102864 (N.D. Cal. Dec. 2, 2008).
43 73 Fed. Reg. 43084, July 24, 2008.
44 36 C.F.R. §220.5(e).
45 36 C.F.R. §220.7(b)(2).
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consideration of cumulative impacts to only those past actions found to be “relevant and
useful.”46
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 27.47 Some of the nine newer
CEs include biomass fuel reduction projects, “small” timber sales, and forest plans.48
Additionally, the FS has modified its application of extraordinary circumstances.49 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 (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.50
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Little legislation has been introduced addressing CEs, and none addressing CEs generally. Two
bills (which were not enacted) in the 110th Congress would have repealed the authority to use CEs
for certain energy leases enacted in the Energy Policy Act of 2005 (P.L. 109-58). Another 110th
Congress bill would have authorized use of CEs for certain wildfire protection projects.
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The new CE appeals regulation (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.51 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).52 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. The action was brought before the U.S. Supreme Court, which heard arguments on the
issue in early October 2008.
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.53 In January 2007, the court
upheld the regulations, finding that the FS complied with NEPA in adopting the CEs.54 The court

46 36 C.F.R. §220.4(f).
47 FSH 1909.15, ch. 30, §§30.12, 31.2; under the rule, the CEs are found at 36 C.F.R. §220.6.
48 68 Fed. Reg. 33814, June 5, 2003; 68 Fed. Reg. 44598, July 29, 2003; and 70 Fed. Reg. 1023, Jan. 5, 2005,
respectively.
49 67 Fed. Reg. 54622, Aug. 23, 2002.
50 68 Fed. Reg. 33581, June 4, 2003; 36 C.F.R. part 215.
51 Earth Island Institute v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005).
52 Earth Island Institute v. Ruthenbeck, 459 F.3d 954 (9th Cir. 2007).
53 The challenged regulations are found at FSH 1909.15, ch. 30, §§ 31.2(10) through (14).
54 Wildlaw v. U.S. Forest Service, 471 F. Supp. 2d 1221, 1242-43 (M.D. Ala. 2007).
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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.55 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.
In two recent NEPA cases, the Ninth Circuit has found in favor of the FS. In one case, the Ninth
Circuit acknowledged that the court had overly scrutinized FS actions in some cases.56 The court
refused to act as a panel of scientists, instead deferring to the FS’s expertise regarding the
disputed timber sale. In the second case, the court found that the FS took the requisite “hard look”
at possible impacts on wildlife populations in its EIS and determined that the hazardous fuels
reduction project did not endanger the viability of species. In support of the viability conclusions,
the court found that the FS appropriately relied on studies conducted by qualified scientists and
its own wildlife biologist’s evaluation.57
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Other federal lands topics are of interest to the 111th Congress. They include national forest
planning, national forest county payments, BLM land sales, and grazing management.
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(by Ross W. Gorte and Kristina Alexander)
The FS is required to prepare comprehensive, integrated land and resource management plans for
the national forests.58 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 (16
U.S.C. §1604(e)), and must be prepared in accordance with NEPA (16 U.S.C. §1604(g)(1)).
Regulations for forest planning were adopted in 1979 and substantially revised in 1982.59

55 Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007).
56 Lands Council v. McNair, 537 F.3d 981, 1001 (9th Cir. 2008) (“to the extent our case law suggests that a
NEPA violation occurs every time the Forest Service does not affirmatively address an uncertainty in the
EIS, we have erred”).
57 Native Ecosystems Council v. Kimbell, No. 07-35360, 2008 WL 5272518, at 2 (9th Cir. Dec. 19, 2008).

58 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.
59 47 Fed. Reg. 43037 (Sept. 30, 1982).
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The Clinton Administration finalized new rules (to be phased in) that emphasized planning for the
biological sustainability of the national forests.60 The Bush Administration delayed implementing
the Clinton rules, then replaced them before they went into effect. The final Bush rules were to
balance biological and socioeconomic sustainability, to make fewer decisions nationally by
reducing regulatory guidelines, and to alter public input in the planning process. The rules also
exempted plans from NEPA and ESA, because the Bush Administration viewed plans as guides to
decision-making that would not include site-specific decisions.61
The Bush planning rules were challenged, with plaintiffs asserting that the rules reduced
environmental protection without adequate opportunities for public comment and consideration of
the effects on endangered species. On March 30, 2007, the U.S. District Court for Northern
California remanded the Bush rules because they violated NEPA, ESA, and APA.62 The FS
reissued the 2005 rule as a proposed rule to meet the court’s requirement to provide notice.63 To
comply with the court’s other mandates, the FS issued a draft environmental impact statement and
consulted with the Fish and Wildlife Service under the ESA. The final planning rules were issued
in April 2008.64 Two lawsuits have been filed challenging the rules, again alleging reduced
environmental protection without adequate opportunities for public comment and consideration of
the effects on endangered species.
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(by Ross W. Gorte)
The Secure Rural Schools and Community Self-Determination Act of 2000 (SRS; 16 U.S.C.
§500, note)65 provided an alternative to two major programs that compensate counties for the tax-
exempt status of certain federal lands.66 Payments under SRS expired at the end of FY2006, but
the FY2007 emergency supplemental appropriations act (P.L. 110-28, the U.S. Troop Readiness,
Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007) extended
the payments for one year ($525 million). Bills to extend the SRS payments were introduced in
the 110th Congress, 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. A four-year extension (FY2008-FY2011), with complex modifications to
shift more of the payments toward counties with large federal landholdings but low historic
revenues from those lands, was enacted in the Emergency Economic Stabilization Act of 2008
(P.L. 110-343, in Title VI of Division C). The enacted provision also provides five years
(FY2008-FY2012) of mandatory spending for the Payments in Lieu of Taxes (PILT) program.

60 65 Fed. Reg. 67514 (Nov. 9, 2000).
61 70 Fed. Reg. 1022 (Jan. 5, 2005).
62 Citizens for Better Forestry v. U.S. Dept. of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007).
63 72 Fed. Reg. 48513 (Aug. 23, 2007).
64 73 Fed. Reg. 21467 (Apr. 21, 2008).
65 See CRS Report RL33822, The Secure Rural Schools and Community Self-Determination Act of 2000: Forest
Service Payments to Counties, by Ross W. Gorte.
66 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.
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(by Carol Hardy Vincent)
The Federal Land Transaction Facilitation Act (FLTFA, 43 U.S.C. §2301) provides for the sale or
exchange of land identified for disposal under BLM’s land use plans. Most of the proceeds are to
be used for land acquisitions, as described below. The law’s purposes include 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. This authority to sell or exchange BLM lands is to expire on July 24, 2010—ten years
after enactment. An issue for the 111th Congress is whether to retain this authority and if so in
what form.
FLTFA currently provides for the sale or exchange of public land identified for disposal in BLM’s
land use plans “as in effect on the date of enactment”—July 25, 2000. All BLM lands (except
some lands in Alaska) are covered by a land use plan. In 2001, BLM began a multiyear effort to
develop new land use plans and to update existing ones to address changing circumstances, such
as increased demand for energy resources. BLM estimates that from the start of that effort
through 2009, it will complete approximately 100 new or revised plans. The changing nature of
these plans has prompted interest in amending FLTFA to allow the most current land use plans to
be used as the basis of land disposals. For instance, the George W. Bush Administration’s FY2009
budget request included a proposal to extend FLTFA until January 1, 2018, and to direct using
updated land management plans for determining which lands to sell or exchange. The FLTFA
sales authority was not tied to future land use plans due to concerns that BLM might revise plans
to pursue a broad land disposal program as a way to generate funds. BLM asserts that its
authorities to dispose of public lands would preclude this. Under FLPMA, for example, BLM is
authorized to sell certain tracts of land only if they meet specified criteria. The agency also has
asserted that land use plan revisions since 2000 have not changed significantly the acreage
identified for disposal. Further, a 2008 report of the Government Accountability Office (GAO)67
concluded that while BLM land use plans identify areas for disposal, BLM has not made sale of
lands under FLTFA a priority.
Currently, proceeds from the sale or exchange of BLM lands under FLTFA are split between the
state in which the lands were disposed of (4%) and a separate Treasury account (96%). The funds
in the account are available to 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, with no more than 20% for administrative expenses
related to the land disposal program. Of the funds for acquisitions, at least 80% are to be used in
the state in which the funds were generated, and the remaining funds may be used in any state.
Further, not less than 80% of the funds for land purchases within a state are to be used to acquire
inholdings.
An area of debate has been whether to retain the current allocation of proceeds. One question is
whether to continue to allow the proceeds of land sales to be retained by the agencies, or whether
to return them to the general fund of the Treasury as traditionally had been the case. Under one
failed proposal, in the FY2009 Bush Administration budget, 70% of the net proceeds would have

67 U.S. Government Accountability Office, Federal Land Management: Federal Land Transaction Facilitation Act
Restrictions and Management Weaknesses Limit Future Sales and Acquisitions, GAO-08-196, February 5, 2008, at
http://www.gao.gov/new.items/d08196.pdf.
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been deposited in the general fund of the Treasury. The change was promoted to reduce the
federal deficit, to ensure that the public would benefit from land sales, and to reduce the amount
of money not subject to oversight during the appropriations process. However, such a proposal
would reduce funds for land acquisition at a time of declining funds from the primary acquisition
source—the Land and Water Conservation Fund.68 A related question is whether some of the
funds should be used for other federal lands purposes. For instance, the FY2009 Bush
Administration proposal had sought to dedicate “a portion” of the funds to BLM for restoration
projects.
Another issue regarding the allocation of proceeds is whether to retain the requirement that most
of the funds for land acquisition be used in the state where the funds were generated. The GAO
concluded that this requirement has made it difficult to acquire priority lands in states that sell
relatively little land. Currently, most of the revenue for land acquisitions is available to Nevada.
Specifically, as of September 30, 2008, $85.6 million was available for land acquisition, with
$17.1 million (20%) for purchases in any state and $68.5 million (80%) for purchases in the states
in which the funds were generated. Of the $68.5 million, $54.1 million was available for land
acquisitions in Nevada. Nevada has generated the most revenue from land sales due to the large
BLM holdings in areas of population growth, the high demand for such land to develop, and the
experience of BLM with selling land in Nevada under another land sale program.69 Most states
had land sales of about a million dollars or less.70
The GAO report identified other challenges to future land sales and acquisitions which might be
examined by the 111th Congress. They included that the BLM has insufficient realty staff to work
on land sales, has not developed goals or an implementation strategy for land sales, and lacks an
effective mechanism for determining which lands to acquire.
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(by Carol Hardy Vincent and Kristina Alexander)
The BLM issued new grazing regulations in 2006, but an injunction has prevented the regulations
from taking effect. The BLM had revised its grazing regulations on the grounds that changes were
needed to comply with previous court decisions, to increase flexibility for managers and
permittees, to improve administrative procedures and business practices, and to promote
conservation. While lauded by some, the reform effort had been criticized by others as
unnecessary or harmful. Some of the regulatory changes would have (1) allowed title to range
improvements to be shared by the BLM and permittees, (2) allowed permittees to acquire water
rights for grazing if consistent with state law, (3) changed the definition of grazing preference to
include an amount of forage, (4) eliminated conservation use grazing permits, (5) extended the
time to remedy rangeland health problems, and (6) reduced occasions where the BLM is required
to consult with the public. The BLM did not address some controversial issues, such as revising

68 For further information, see CRS Report RL33531, Land and Water Conservation Fund: Overview, Funding
History, and Current Issues, by Carol Hardy Vincent.
69 Under the Southern Nevada Public Land Management Act, the Secretary of the Interior, through the BLM, is
authorized to sell or exchange certain land around Las Vegas. Revenues from these land sales have totaled $3.29 billion
as of September 30, 2008, significantly larger than had been expected.
70 Revenues currently are allocated to 11 “states.”
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the grazing fee. The BLM had expected to return to the consideration of related grazing policy
changes once the new regulations were in effect.
The U.S. District Court for Idaho enjoined all the 2006 regulations from taking effect.71 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 BLM currently is operating under its 1995 grazing regulations, which
were in effect before the 2006 changes. The court did not require the BLM to use these grazing
regulations, leaving that decision to the BLM. However, the provisions on conservation use
permits that were enjoined in 1996 are not in effect.72
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CRS Report RL34273, Federal Land Ownership: Current Acquisition and Disposal Authorities,
by Ross W. Gorte and Carol Hardy Vincent.
CRS Report RL34267, Federal Land Ownership: Constitutional Authority and the History of
Acquisition, Disposal, and Retention, by Kristina Alexander and Ross W. Gorte.
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, by
Carol Hardy Vincent et al.
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.

71 Western Watersheds Project v. Kraayenbrink, 538 F. Supp. 2d 1302 (D. Idaho 2008).
72 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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CRS Report RS22928, Oil Development on Federal Lands and the Outer Continental Shelf, by
Marc Humphries.
CRS Report RL34772, Proposals to Merge the Forest Service and the Bureau of Land
Management: Issues and Approaches, by Ross W. Gorte.
CRS Report RL33525, Recreation on Federal Lands, by Kori Calvert et al.
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 RL34690, 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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Ross W. Gorte, Coordinator
Kristina Alexander
Specialist in Natural Resources Policy
Legislative Attorney
rgorte@crs.loc.gov, 7-7266
kalexander@crs.loc.gov, 7-8597
Carol Hardy Vincent, Coordinator
Marc Humphries
Specialist in Natural Resources Policy
Analyst in Energy Policy
chvincent@crs.loc.gov, 7-8651
mhumphries@crs.loc.gov, 7-7264

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