Order Code IB10076
CRS Issue Brief for Congress
Received through the CRS Web
Bureau of Land Management (BLM)
Lands and National Forests
Updated May 2, 2006
Ross W. Gorte and Carol Hardy Vincent, Coordinators
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
History of the Bureau of Land Management
History of the Forest Service
Scope of Issue Brief
Wild Horses and Burros
Forest Service NEPA Categorical Exclusions
Roadless Areas of the National Forest System
Federal Land Sales
R.S. 2477: Rights of Way Across Public Lands
FOR ADDITIONAL READING
Bureau of Land Management (BLM) Lands and National Forests
The 109th Congress is considering issues
related to the public lands managed by the
Bureau of Land Management (BLM) and the
national forests managed by the Forest Service
(FS). The Administration is addressing issues
through budgetary, regulatory, and other
actions. Several key issues of congressional
and administrative interest are covered here.
Wilderness. Many wilderness recommendations for federal lands are pending.
Questions persist about wilderness review and
managing wilderness study areas (WSAs).
Bills to designate areas have been introduced,
and the 109th Congress may address wilderness review and WSA protection.
Wildfire Protection. President Bush’s
Healthy Forests Initiative, the Healthy Forests
Restoration Act, and other provisions may
help protect communities from wildfires by
expediting fuel reduction. Some believe that
more effort is needed; others are concerned
that current and additional streamlining will
increase timber sales and damage the environment. Legislation for research and post-fire
rehabilitation of federal lands is being considered. The 109th Congress also has held hearings on fire protection and on litigation over
fuel treatments and use of fire retardant.
Energy Resources. The Energy Policy
Act of 2005 affects energy development on
federal lands in a variety of ways. Significant
new regulations are expected in response to
the law, including changes to the federal oil,
gas, and coal leasing programs and application
of environmental laws to certain energy-related agency actions.
Wild Horses and Burros. Controversial
changes to the Wild Free-Roaming Horses and
Burros Act of 1971 gave the agencies authority to sell certain old and unadoptable animals
and removed the ban on selling wild horses
and burros and their remains for commercial
products. BLM has resumed animal sales
with provisions to prevent their slaughter.
Bills have been introduced to overturn the
changes (H.R. 297/S. 576) and to foster adoptions and sales (H.R. 2993/S. 1273).
Congressional Research Service
Other Issues. The Administration and
Congress are addressing other issues as well,
including grazing management, hardrock
mining, FS NEPA categorical exclusions,
national forest roadless areas, federal land
sales, and R.S. 2477 rights of way.
The Library of Congress
MOST RECENT DEVELOPMENTS
The BLM has begun or completed various actions to implement the Energy
Policy Act of 2005, including changes to oil and gas lease acreage limits and
lease reinstatement petition procedures, a final EIS on wind energy facilities
on BLM lands, and a new EIS on tar sands and oil shale leasing.
On March 29, 2006, the House Resources Committee ordered reported H.R.
4200, to improve research and expedite post-catastrophe forest recovery
activities (including timber salvage); the House Agriculture Committee
ordered the bill reported on April 5.
The Administration has sent to Congress draft legislation to sell National
Forest System lands, in furtherance of a proposal in the FY2007 budget
request for the Forest Service.
BACKGROUND AND ANALYSIS
The Bureau of Land Management (BLM) in the Department of the Interior (DOI) and
the Forest Service (FS) in the Department of Agriculture (USDA) manage 454 million acres
of land, two-thirds of the land owned by the federal government and one-fifth of the total
U.S. land area. The BLM manages 261.5 million acres of land, predominantly in the West.
The FS administers 192.5 million acres of federal land, also concentrated in the West.
The BLM and FS have similar management responsibilities for their lands, and many
key issues affect both agencies’ lands. However, each agency also has unique emphases and
functions. For instance, most BLM lands are rangelands, and the BLM administers mineral
development on all federal lands. Most federal forests are managed by the FS, and only the
FS has a cooperative program to assist nonfederal landowners. Moreover, development of
the two agencies has differed, and historically they have focused on different issues.
History of the Bureau of Land Management
For the BLM, many of the issues traditionally center on the agency’s responsibilities for
land disposal, range management (particularly grazing), and minerals development. These
three key functions were assumed by the BLM when it was created in 1946, by the merger
of the General Land Office (itself created in 1812) and the U.S. Grazing Service (created in
1934). The General Land Office had helped convey land to settlers and issued leases and
administered mining claims on the public lands, among other functions. The U.S. Grazing
Service had been established to manage the public lands best suited for livestock grazing
under the Taylor Grazing Act of 1934 (TGA, 43 U.S.C. §§315, et seq.).
Congress frequently has debated how to manage federal lands, and whether to retain or
dispose of the remaining public lands. In 1976, Congress enacted the Federal Land Policy
and Management Act of 1976 (FLPMA, 43 U.S.C. §§1701, et seq.), sometimes called BLM’s
Organic Act because it consolidated and articulated the agency’s responsibilities. Among
other provisions, the law establishes a general national policy that the BLM-managed public
lands be retained in federal ownership, establishes management of the public lands based on
the principles of multiple use and sustained yield, and generally requires that the federal
government receive fair market value for the use of public lands and resources. BLM public
land management encompasses diverse uses, resources, and values, such as energy and
mineral development, timber harvesting, livestock grazing, recreation, wild horses and
burros, fish and wildlife habitat, and preservation of natural and cultural resources.
History of the Forest Service
The FS was created in 1905, when forest lands reserved by the President (beginning in
1891) were transferred from DOI into the existing USDA Bureau of Forestry (initially an
agency for private forestry assistance and forestry research). Management direction for the
national forests, first enacted in 1897 and expanded in 1960, identifies the purposes for
which the lands are to be managed and directs “harmonious and coordinated management”
to provide for multiple uses and sustained yields of the many resources found in the national
forests — including timber, grazing, recreation, wildlife and fish, and water.
Many issues concerning national forest management and use have focused on the
appropriate level and location of timber harvesting. In part to address these issues, Congress
enacted the National Forest Management Act of 1976 (NFMA; P.L. 94-588) to revise timber
sale authorities and to elaborate on considerations and requirements in 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) includes wilderness as a use of national
forest lands, and possible national forest wilderness areas have been reviewed under the 1964
Wilderness Act as well as in the national forest planning process. Pressures to protect
pending wilderness recommendations and other “roadless” areas persist.
Scope of Issue Brief
Many issues affecting BLM and FS lands are similar, and the missions of the agencies
are nearly identical. By law, the BLM and FS lands are to be administered for multiple uses,
although slightly different uses are specified for each agency. In practice, the land uses
considered by the agencies include recreation, range, timber, minerals, watershed, wildlife
and fish, and conservation. BLM and FS lands also are required to be managed for sustained
yield — a high level of resource outputs in perpetuity, without impairing the productivity of
the lands. Further, many issues, programs, and policies affect both agencies. For these
reasons, BLM and FS lands often are discussed together, as in this issue brief.
This brief focuses on several issues affecting BLM and FS lands that are of interest to
the 109th Congress, and does not comprehensively cover issues primarily affecting 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, see the CRS web
page at [http://www.crs.gov/].1
For brief, general information on natural resource issues, see CRS Report RL32699, Natural
Resources: Selected Issues for the 109th Congress, by Nicole Carter and Carol Hardy Vincent.
Information on FY2006 appropriations for the BLM and FS (and other agencies and programs
funded by Interior and Related Agencies appropriations bills) is included in CRS Report RL32893,
Energy Resources (by Aaron M. Flynn)
Background. A controversial issue is whether and how to increase access to federal
lands for energy and mineral development. A BLM study in 2000 determined that (1) about
165 million acres of federal minerals (24%) have been withdrawn from mineral entry,
leasing, and sale, subject to valid existing rights, and (2) mineral development on another
182 million acres (26%) is subject to the approval of the surface management agency and
must not be in conflict with land designations and plans. The oil and gas industry contends
that entry into 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 elsewhere. (For more, see CRS Report RL33014,
Leasing and Permitting for Oil and Gas Development on Federal Public Domain Lands, by
Aaron M. Flynn and Ryan J. Watson.)
Development of oil, gas, and coal on BLM and FS lands is governed primarily by the
Mineral Leasing Act of 1920. Leasing on BLM lands goes through a multi-step approval
process. If the minerals are located on FS lands, the FS must perform a leasing analysis and
approve leasing decisions for specific lands before BLM may lease minerals. The Energy
Policy Act of 2005 (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 has begun to respond to the 2005
Energy Policy Act. For example, BLM is soliciting comments and holding a series of
meetings to prepare a report for Congress analyzing agency policy on management of split
estates. The report is expected to analyze the rights and responsibilities under existing law
of the owner of a mineral lease, the private surface owners, and the federal government. It
is also to compare the surface owner consent provisions found in other mining laws to those
provisions applicable to federal oil and gas. Finally, the report is to recommend legislative
changes necessary to authorize any policy changes the Department wishes to implement.
Pursuant to §352 of the 2005 act, BLM has issued a final rule that may allow the
ownership of oil and gas leases covering greater acreages. The law generally limits a single
entity to owning leases of up to 246,080 acres in one state. The new regulation exempts the
area attributable to producing leases and leases committed to communitization agreements
Interior, Environment, and Related Agencies: FY2006 Appropriations, co-coodinated by Carol
Hardy Vincent and Susan Boren. For information on park and recreation issues, see CRS Issue Brief
IB10145, National Park Management coordinated by Carol Hardy Vincent; and CRS Issue Brief
IB10141, Recreation on Federal Lands, co-coordianted by Kori Calvert and Carol Hardy Vincent.
For information on oil and gas leasing in the Arctic National Wildlife Refuge (ANWR), see CRS
Issue Brief IB10136, Arctic National Wildlife Refuge (ANWR): Controversies for the 109th Congress,
M. Lynne Corn, Bernard A. Gelb, and Pamela Baldwin. For information on local compensation for
the tax-exempt status of federal lands, see CRS Report RL31392, PILT (Payments in Lieu of Taxes):
Somewhat Simplified, by M. Lynne Corn; and CRS Report RS22004, The Secure Rural Schools and
Community Self-Determination Act of 2000: Forest Service Payments to Counties, by Ross W.
from the overall limitation. A final regulation amending the lease reinstatement petition
process has also been issued; now, if a lease is terminated for late or non-payment of rent,
a lessee may petition for reinstatement for up to 24 months from the date of termination, an
increase from the previous 15-month deadline (71 Fed. Reg. 14821, March 24, 2006).
Additionally, in response to §353 and §354 of the Energy Policy Act of 2005, BLM is
seeking public comment on two advanced notices of proposed rulemaking. Possible BLM
regulations could provide various incentives for development of natural gas hydrates, both
onshore and offshore. Others could provide incentives to companies using underground
injection of carbon dioxide to increase production from federal oil and gas leases.
BLM has recently completed a final programmatic environmental impact statement
(EIS) for developing wind energy facilities on BLM lands (71 Fed. Reg. 1768, Jan. 11,
2006). This document will be used to support land management plan amendments providing
for wind energy development the western states. The review was undertaken in compliance
with Executive Order 13212 and seeks to comply with congressional directives within the
Energy Policy Act of 2005 directing renewable energy development on public lands.
Consistent with §369 of the Energy Policy Act of 2005, BLM has begun a programmatic
EIS to support a tar sands and oil shale leasing program for research and development (70
Fed. Reg. 73791, Dec. 13, 2005). Regulations to govern this leasing program are also
required, and implementation of a commercial leasing program is also underway.
Short of issuing additional regulations, BLM has held meetings and taken a variety of
other actions to begin implementation of the Energy Policy Act of 2005, including changes
in geothermal leasing (70 Fed. Reg. 65933, Nov. 1, 2005) and in oil and gas leasing (70 Fed.
Reg. 50262, Aug. 26, 2005). Prior to the Energy Policy Act, BLM and FS proposed
significant changes to the regulations governing the approval of oil and gas leases (70 Fed.
Reg. 43349, July 27, 2005). Changes included new requirements for development on split
estates, a new approval process for multiple wells based on a single environmental review
and Master Development Plan, and additional bonding requirements. The proposal would
have also encouraged the use of various best management practices to reduce surface, visual,
and wildlife impacts. Because of the passage of the Energy Policy Act, BLM extended the
comment period on this proposed rule and may issue a significant revision in the future.
Legislative Activity. On October 7, 2005, the House has passed additional energy
policy legislation, the Gasoline for America’s Security Act (H.R. 3893). Among other
provisions, the bill would require the President to designate federal lands as suitable for
refinery construction or expansion and provide an expedited permitting process for refineries
sited in the designated area. Additional energy-related legislation has been introduced in
response to the Gulf Coast Hurricanes and the ensuing increases in energy prices; various
bills (e.g., H.R. 3710, H.R. 4479) would suspend any royalty relief program applicable to oil
or natural gas production from federal lands as well as other federal resource production
incentives contained in the Energy Policy Act of 2005.
Whether to open the Arctic National Wildlife Refuge (ANWR) to oil and gas
development continues to be one of the most contentious issues in the energy debate. Recent
efforts to authorize ANWR development through the budget reconciliation process and in
the defense appropriations bill were unsuccessful. For more information, see CRS Issue
Brief IB10136, Arctic National Wildlife Refuge (ANWR): Controversies for the 109th
Congress, by M. Lynne Corn. Finally, numerous other bills have been introduced,
addressing such issues as geothermal energy access, potash or soda ash royalties, and coal
leasing procedures. These bills on specific energy issues are not listed in the “Legislation”
section of this report.
Wild Horses and Burros (by Carol Hardy Vincent)
Background. The Wild Free-Roaming Horses and Burros Act of 1971 (16 U.S.C.
§§1331, et seq.) seeks to protect wild horses and burros on federal land and places them
under the jurisdiction of BLM and the FS. For years, management of wild horses and burros
has generated controversy and lawsuits. Controversies include the method of determining
the “appropriate management levels” (AMLs) for herd sizes, as the statute requires; whether
and how to remove animals from the range to achieve AMLs; alternatives to adoption for
reducing 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. (For background, see CRS Report RS21423,
Wild Horse and Burro Issues, by Carol Hardy Vincent.)
The 108th Congress enacted changes to wild horse and burro management on federal
lands (§142, P.L. 108-447). These changes have intensified controversies. One change
directed the agencies to sell, “without limitation,” excess animals (or their remains) that
essentially are deemed too old (more than 10 years old) or otherwise unable to be adopted
(offered unsuccessfully at least three times). Proceeds are to be used for the BLM wild horse
and burro adoption program. A second change removed the ban on wild horses and burros
and their remains being sold for processing into commercial products. A third change
removed criminal penalties for processing into commercial products the remains of a wild
horse or burro, if it is sold under the new authority. Also, the law did not expressly prohibit
BLM from slaughtering healthy wild horses and burros, as annual appropriations bills had
since FY1988. These changes have been supported as providing a cost-effective way to help
the agencies achieve AML, to improve the health of the animals, to protect range resources,
and to restore a natural ecological balance on federal lands. They have been opposed as
potentially leading to the slaughter of healthy animals.
Administrative Actions. On April 25, 2005, BLM suspended sale and delivery of
wild horses and burros, due to concerns about the slaughter of some animals sold under the
new authority. On May 19, 2005, the agency resumed sales after revising its bill of sale and
pre-sale negotiation procedures to protect sold animals from slaughter. For instance,
purchasers now must agree not to knowingly sell or transfer ownership of animals to persons
or organizations that intend to resell, trade, or give away animals for processing into
commercial products. Sales contracts also now incorporate criminal penalties for anyone
who knowingly or willfully falsifies or conceals information. Some horse advocates have
questioned whether the new penalties would withstand legal challenge because the law
provides for the sale of animals without limitation. Also, according to BLM, purchased
animals are classified as private property free of federal protection.
There are about 8,200 animals available for sale, with 1,700 having been sold and
delivered as of March 2006, according to BLM. The sale price is determined on a case by
case basis. Currently, BLM is promoting sales of animals through two new efforts. First,
BLM and the Public Lands Council have appealed to BLM grazing permit holders to
purchase wild horses and burros. Second, BLM, Ford Motor Company, and Take Pride in
America are making a similar appeal to wild horse and equine rescue groups, with the “Save
the Mustangs Fund” providing $100 for each animal purchased by these groups. In both
cases, the animals would be sold for $10 each and BLM would deliver 20 or more animals
purchased by a rancher or rescue group.
As of February 2005, there were about 31,760 wild horses and burros on the range, with
the national maximum AML set at 28,186. BLM has been pursuing a multi-year effort to
achieve AML. Some critics assert that the current AMLs are set low in favor of livestock.
BLM manages another 25,044 animals in holding facilities, as of November 2005. The cost
per animal per year in long-term holding facilities is about $500, according to BLM. For
FY2007, the President has requested continuing funding for management of wild horses and
burros at $36.4 million, with an additional $0.7 million in fees expected to be collected from
Legislative Activity. H.R. 297 and S. 576 seek to overturn the changes to wild horse
and burro management enacted during the 108th Congress. H.R. 2993 and S. 1273 aim to
foster the sale and adoption of wild horses and burros while establishing further protections.
Changes include eliminating the limit of four animals per adopter per year; reducing the
minimum adoption fee from $125 to $25 per animal; removing the provision that excess,
unadoptable animals be destroyed in a humane and cost-effective manner and making them
available for sale; imposing a one-year wait period for buyers to obtain title to sold animals;
and removing the provision for sale of animals “without limitation.” Some opponents fear
that additional sales or adoptions could increase the risk of slaughter.
Wilderness (by Ross W. Gorte and Pamela Baldwin)
Background. The Wilderness Act established the National Wilderness Preservation
System in 1964 and directs 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. (See CRS Report RS22025, Wilderness Laws: Permitted and Prohibited Uses, by
Ross W. Gorte.) Similarly, agency wilderness studies are controversial because many uses
also are restricted in the study areas to preserve wilderness characteristics while Congress
considers possible designations.
Some observers believe that the Clinton rule protecting national forest roadless areas
(discussed below) was prompted by a belief that Congress had lagged in designating areas
which “should” be wilderness. Others assert that the Bush Administration — in addressing
R.S. 2477 rights-of-way (discussed below), promulgating new guidance to preclude
additional, formal BLM wilderness study areas, and eliminating the nationwide national
forest roadless area protections of the Clinton Administration — is attempting to open areas
with wilderness attributes to roads, energy and mineral exploration, and development,
thereby making them ineligible to be added to the Wilderness System.
One significant issue is when the agencies are to 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 agency’s planning process. For BLM lands, §603 of FLPMA
required the agency to review potential wilderness and to not impair the wilderness character
of wilderness study areas (WSAs) “until Congress has determined otherwise.” In 1996, thenSecretary Bruce Babbitt used the BLM authority to inventory its lands and resources (§201
of FLPMA; 43 U.S.C. §1711) to identify an additional 2.6 million acres in Utah as having
wilderness qualities. The State of Utah challenged the inventory, 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 nonimpairment standard to the previously
designated WSAs. (See CRS Report RS21917, Bureau of Land Management (BLM)
Wilderness Review Issues, by Ross W. Gorte and Pamela Baldwin.)
Legislative Activity. Many wilderness recommendations remain pending, including
some FS areas and many BLM and Park System areas. As shown in the table below, more
than 30 bills to designate wilderness areas in more than a dozen states have been introduced;
two (for areas in New Mexico and Puerto Rico) have been enacted.
Table 1. 109th Congress Legislation to Designate Wilderness Areas
Most Recent Action
North California Coastal Wild Heritage
H. Resource hearings 7/14/05
Senate passed S. 128 on 7/26/05
Ojito Wilderness Act
S. 156 became P.L. 109-94 on
Caribbean National Forest Act of 2005
H.R. 539 became P.L. 109-118
& S. 261a
Udall-Eisenhower Arctic Wilderness Act
[no official title to Senate bill]
Both introduced 2/2/05
Wild Sky Wilderness Act of 2005
H.R. 851 introduced 2/16/05
Senate passed S. 152 on 7/26/05
Alaska Rainforest Conservation Act of 2005
Rockies Prosperity Act
Utah Test and Training Range Protection Act
Enacted 1/6/06 in Subtitle G,
Title I of P.L. 109-163
America’s Red Rock Wilderness Act of 2005
Both introduced 4/21/05
Virginia Ridge and Valley Act of 2005
Both introduced 4/28/2005
Central Idaho Economic Development and
H.R. 2514 introduced 5/19/05
H. Resource hearings 10/27/05
Rocky Mountain National Park Wilderness
H.R. 3193 introduced 6/30/05
S. Energy hearings 4/6/06
Browns Canyon Wilderness Act
H.R. 4235 introduced 11/4/05
S. 1971 introduced 11/7/05
Colorado Wilderness Act of 2005
Most Recent Action
Rocky Mountain National Park Wilderness
and Indian Peaks Wilderness Expansion Act
California Wild Heritage Act of 2006
Both introduced 3/16/06
Mount Hood Stewardship Legacy Act
H. Resources hearings 4/5/06
New Hampshire Wilderness Act of 2006
House bills introduced 3/30/06
S. 2463 introduced 3/28/06
Eastern Sierra Rural Heritage and Economic
Both introduced 4/6/06
Vermont Wilderness Act of 2006
Both introduced 4/6/06
Bills are not identical, but designate same acreage as wilderness.
Affects the Arctic National Wildlife Refuge (ANWR).
Affects the Tongass National Forest.
Affects lands in ID, MT, OR, WA, and WY; similar to Northern Rockies Ecosystem Protection Act
introduced in previous Congresses.
Bills have the same title, but differ. H.R. 5059 would designate one new wilderness area, while H.R.
5062 would add to an existing area; S. 2463 includes both designations.
The “Legislation” section of this report includes only bills to substantively amend the
Wilderness Act or alter wilderness or WSA management. Bills were introduced in the 106th108th Congresses to prohibit future BLM wilderness reviews and to place time limits on
WSA status. No similar legislation has been introduced in the 109th Congress.
Wildfire Protection (by Ross W. Gorte)
Background. Recent fire seasons have killed firefighters, burned homes, threatened
communities, and destroyed trees. More acres burned in the 2005 fire season — 8.7 million
acres — than in any year since record-keeping began in 1960, and nearly 2.3 million acres
have burned already in 2006. Many assert that the threat of severe wildfires has grown,
because many forests have unnaturally high fuel loads (e.g., dense undergrowth and dead
trees) and increasing numbers of structures are in and near the forests (the wildland-urban
interface). Reducing fuels on federal lands has been urged to reduce the threats from fire.
In August 2002, President Bush proposed a Healthy Forests Initiative to improve
wildfire protection by expediting projects to reduce hazardous fuels on federal lands. The
Healthy Forests Restoration Act of 2003 (P.L. 108-148) included many of the proposals in
the President’s initiative and other provisions. 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. (See CRS Report RS22024, Wildfire Protection in the 108th Congress, by Ross
Administrative Actions. The Bush Administration has made several regulatory
changes to facilitate fire protection activities, aside from P.L. 108-148. First, two new
categories of actions can be excluded from NEPA analysis and documentation: certain fuel
reduction and post-fire rehabilitation activities (68 Fed. Reg. 33814, June 5, 2003). Second,
the administrative review processes were revised (68 Fed. Reg. 33582, June 4, 2003, for the
FS; 68 Fed. Reg. 33794, June 5, 2003, for the BLM) to clarify that some emergency actions
may be implemented immediately and others after complying with publication requirements,
and to expand emergencies to include those “that would result in substantial loss of economic
value to the Government if implementation of the proposed action were delayed.” A U.S.
District Court found that these and other regulations violate the legal requirements for public
review of FS decisions. (See “Other Issues,” below.)
The Administration has made other regulatory changes that could affect fuel reduction,
public involvement, and environmental impacts. For example, new categorical exclusions
for small timber harvesting projects (68 Fed. Reg. 44598, July 29, 2003) and new regulations
for FS planning (70 Fed. Reg. 1023, Jan. 5, 2005) have been completed. The total impact
of the regulatory changes is generally greater discretion for FS action without environmental
studies and with fewer opportunities for the public to comment on, or to request
administrative review of, those actions.
Legislative Activity. The 109th Congress is overseeing wildfire protection efforts.
Several hearings have been held by various committees (House Resources, Senate Energy
and Natural Resources, and House Appropriations) on progress in, and various aspects of,
wildfire protection. Hearings have addressed the airworthiness of firefighting airtankers and
litigation over the use of chemical fire retardant (Forest Service Employees for
Environmental Ethics v. U.S. Forest Service, CV 03-165-M-DVM (D. Mt. Sept. 30, 2005)).
Other hearings have addressed the litigation over NEPA categorical exclusions (see below)
for fuel reduction and post-fire recovery projects.
Bills have been introduced to improve research and expedite action for rehabilitation
of areas after catastrophic events. H.R. 4200 and S. 2079 would establish a permanent
program to assess significant events affecting forests and allow pre-authorized management
activities or use of alternative NEPA arrangements; they would also direct the establishment
of appropriate research protocols. H.R. 3973 would establish a three-year pilot program of
up to 10 multi-activity projects to rehabilitate lands and resources affected by
“uncharacteristic disturbances.” The House Resources and Agriculture Committees ordered
H.R. 4200 reported on March 29 and April 5, respectively.
Congress also has addressed wildfire protection through appropriations. The FY2006
Interior Appropriations Act (P.L. 109-54) included $2.55 billion for the National Fire Plan.
For FY2007, the Administration has requested $2.57 billion, an increase of $23.2 million
(1%) from FY2006. The FY2006 appropriations act also required a report on the Biscuit fire
(OR) rehabilitation and consideration of the effects of competitive sourcing on wildfire
protection. (See CRS Report RL32893, Interior, Environment, and Related Agencies:
FY2006 Appropriations, coordinated by Carol Hardy Vincent and Susan Boren.) In
addition, bills have been introduced to alter firefighter and fire organization compensation
and safety practices, and §210 of P.L. 109-58 authorized grants for producing energy from
biomass fuels removed from forests to reduce wildfire risks.
Several other federal lands topics are being addressed through legislation or oversight.
These include grazing management, hardrock mining, FS NEPA categorical exclusions, FS
roadless areas, federal land sales, and R.S. 2477 rights of way.
Grazing Management. (by Carol Hardy Vincent) BLM asserts that changes in
grazing regulations are needed to comply with court decisions, increase flexibility of
managers and permittees, improve administrative procedures and business practices, and
promote conservation. While lauded by some, the reform effort has been criticized by others
as unnecessary or harmful. On June 17, 2005, the BLM published a Final Environmental
Impact Statement (FEIS) that analyzed the impact of proposed changes as well as two
alternatives. On March 31, 2006, BLM published an addendum to the FEIS that analyzed
comments of the Fish and Wildlife Service as well as public comment received after the
official comment period. The BLM currently is proceeding with final rulemaking. (See
[http://www.blm.gov/grazing/].) Some of these 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
BLM is required to consult with the public. BLM did not address some controversial issues,
such as revising the grazing fee. BLM expects to return to the consideration of related
grazing policy changes when the regulatory process is completed. On September 28, 2005,
a Senate subcommittee held an oversight hearing on the regulatory changes and other grazing
Legislation has been introduced to compensate livestock operators on federal lands.
H.R. 411 seeks to require federal land management agencies to compensate holders of
grazing permits when certain actions reduce or eliminate their permitted grazing, and
alternative forage is not available. The bill also would authorize grazing permit holders to
sublease their allotments under specified conditions. Other legislation provides for buying
out grazing permittees generally or in particular areas, with the allotments then permanently
closed to grazing. H.R. 3166 provides for payment to federal grazing permittees who
voluntarily relinquish their permits, at a rate of $175 per AUM. The bill also provides for
payments to counties in which the relinquished allotments are located, and authorizes
permittees to opt for nonuse or reduced use throughout a term. Other examples include H.R.
3701, regarding lands included in Ecosystem Protection Areas that would be created under
the legislation, and H.R. 3603, for certain lands in Idaho.
Hardrock Mining. (by Aaron M. Flynn) Reform of the General Mining Act of 1872,
the law governing hardrock mining on federal lands, has been proposed in the 109th
Congress. The Mining Act authorizes a prospector to locate and claim an area believed to
contain a valuable mineral deposit, subject to the payment of certain fees. At such time,
mineral development may proceed. Comprehensive legislation to reform the development
of these mineral resources, H.R. 3968, has been introduced. Among other provisions, the bill
would require a royalty payment based on hardrock mineral production, resolve current
disputes regarding the number of acres available for mine-associated mill sites, prohibit
patenting — or purchasing — federal lands in most circumstances, and establish new
standards for determining which federal lands are available for development.
Significant amendments to the General Mining Act were considered during in budget
reconciliation bill, although such provisions were eventually removed. The provisions would
have altered the existing discovery requirement to allow fee payments to establish a
claimant’s right to use and occupy the public lands for mineral development. The proposal
would have also repealed the current prohibition on patenting lands encompassed in mining
claims. It would have expressly maintained a general requirement that discovery of a
valuable mineral deposit precede approval of land patents; however, the provisions would
have established several specific circumstances in which title could be purchased without a
discovery requirement. Finally, the provisions would have increased the amounts that must
be paid to patent lands, setting them at the greater of $1,000 per acre or fair market value.
Forest Service NEPA Categorical Exclusions. (by Pamela Baldwin) The FS
has historically identified certain activities as not having significant environmental impacts,
and exempted them from analysis and associated public participation under the National
Environmental Policy Act of 1969 (NEPA; P.L. 91-190, 43 U.S.C. §§4321-4347), except in
extraordinary circumstances. Various statutes and regulations have expanded categorical
exclusions, including those for biomass fuel reduction projects (68 Fed. Reg. 33814, June
5, 2003), “small” timber sales (68 Fed. Reg. 44598, July 29, 2003), and forest plans (70 Fed.
Reg. 1023, Jan. 5, 2005). The agency also has modified its application of extraordinary
circumstances (67 Fed. Reg. 54622, Aug. 23, 2002). Previously, the rule appeared to
automatically preclude an action from being categorically excluded if extraordinary
circumstances were present; the new rule gives the responsible official discretion to
determine whether extraordinary circumstances warrant NEPA analysis and public
involvement in otherwise exempt projects. Several of the regulations were challenged. On
July 2, 2005, a U.S. District Court ruled that five regulations violated the Forest Service
Decision Making and Appeals Reform Act (§322 of P.L. 102-381; 16 U.S.C. §1612 note)
by excluding decisions from the public comment and appeals process and for other reasons
(Earth Island Institute v. Pengilly, 376 F.Supp. 2d 994 (E.D. Cal. 2005). The agency initially
responded to the ruling by suspending more than 1,500 permits, projects, and contracts. The
court issued a clarifying order that allowed many minor activities to go forward as categorical
exclusions, now under the name Earth Island Institute v. Ruthenbeck.
Roadless Areas of the National Forest System. (by Pamela Baldwin) The
Clinton Administration issued several rules affecting roadless areas in the National Forest
System (NFS). The principal rule (66 Fed. Reg. 3244, Jan. 12, 2001) resulted in a nationwide
approach to management that curtailed (but did not eliminate) most roads and timber cutting
in roadless areas. National guidance was justified as avoiding the litigation and delays when
decisions were made at each national forest. The rule was twice enjoined. The Bush
Administration issued a new final rule to replace the Clinton rule and allow governors 18
months to petition the FS for a special rule for roadless areas in all or part of their state (70
Fed. Reg. 25654, May 13, 2005). Until such a new regulation in response to a petition is
finalized, the FS is to manage roadless areas in accordance with interim directives (69 Fed.
Reg. 42648, July 16, 2004) that place most decisions with the Regional Forester, and the
Chief of the FS, until each forest plan is amended or revised to address roadless area
management. This returns decisions on roadless area management to the individual forest
plans, basically reversing the Clinton nationwide roadless rule. New FS planning regulations
do not address roadless areas, apparently leaving decisions involving them to the project
level within each forest, unless a special rule is adopted for a particular state. California,
New Mexico, and Oregon have sued to challenge the new roadless area rule. Oregon also
petitioned for a rule allowing any state to petition for an expedited restoration of full
protections for roadless areas in that state; this petition was denied. Virginia and North
Carolina have submitted petitions for a special rule. H.R. 3563 would direct that roadless
areas be managed in accordance with the 2001 regulations; S. 2364 would essentially enact
the 2001 roadless rule; and S. 1897 would provide stricter protections for roadless areas than
the 2001 rule did.
Federal Land Sales. (by Ross W. Gorte and Carol Hardy Vincent) The President’s
FY2007 budget request includes proposals for federal land sales. For the BLM, the proposal
would alter the distribution of proceeds from sales authorized under the Federal Land
Transaction Facilitation Act (FLTFA). The proposal also would direct using updated land
management plans for determining which lands to sell. Legislation would be needed to
effect these changes. The Administration has not offered draft legislation related to BLM
land sales and no such legislation has been introduced in Congress to date.
Current FS authorities for selling or otherwise disposing of national forest lands are
extremely narrow, so legislation would be needed to authorize the President’s proposal. The
Administration has sent to Congress draft legislation to sell national forest lands, but related
legislation has not been introduced to date. The draft contains criteria for determining lands
eligible for sale, such as lands that are inefficient or difficult to manage because they are
isolated or scattered. The proceeds would be used to pay for a five-year extension of FS
payments under the Secure Rural Schools and Community Self-Determination Act of 2000
(P.L. 106-393). That act created an alternative to the traditional FS 25% payments for county
roads and schools, because the decline in timber sales had reduced payments enormously in
some areas, but payments under the act expire at the end of FY2006. (See CRS Report
RS22004, The Secure Rural Schools and Community Self-Determination Act of 2000: Forest
Service Payments to Counties, by Ross W. Gorte.) H.R. 517 and S. 267 would reauthorize
the 2000 act for five years, but neither includes FS land sales. The House budget resolution
for FY2007 (H.Con.Res. 376) includes a reserve fund for reauthorizing P.L. 106-393, which
is intended to accommodate such reauthorization as long as it would not increase the deficit
Pending legislation pertaining to land sales is not covered in this brief. Such legislation
includes proposals to direct disposal of specific sites, grant federal lands to states for state
educational purposes, offset acquisitions with disposals, and inventory federal property to
identify land no longer required to be in federal ownership.
R.S. 2477: Rights of Way Across Public Lands. (by Pamela Baldwin) In 1866,
in an act that became Revised Statute (R.S.) 2477, Congress granted rights of way across
unreserved public lands “for the construction of highways.” This grant was repealed in 1976,
but existing rights were protected. What constitutes construction of highways and whether
a qualifying right of way existed by the time of repeal in 1976 can be contentious. These
issues are important because possible rights of way may affect the management of federal
lands, perhaps degrading their wilderness suitability while increasing access for recreation
and other uses. Section 108 of the FY1997 Interior appropriations act (P.L. 104-208) states
that final regulations “pertaining to” R.S. 2477 rights of way cannot take effect unless
expressly authorized by an act of Congress. On January 6, 2003 (68 Fed. Reg. 494), the
BLM finalized changes to its regulations for issuing “disclaimers of interest,” a procedure
to help clear title to property or interests in property with respect to possible interests of the
United States. This procedure is to be used to acknowledge R.S. 2477 rights of way, and
may constitute regulations “pertaining to” R.S. 2477. A recent case concluded that state law
plays a significant role in determining the validity of R.S. 2477 highways, but also cast doubt
on the use of administrative disclaimers to disclaim federal title and thereby validate such
rights of way. (See SUWA v. BLM, 2005 U.S. App. LEXIS 19381 (10th Cir. 2005).) On
March 22, 2006, then-Secretary Norton issued guidance on determining R.S. 2477 highways
and indicated the disclaimer process would be used. H.R. 3447 in the 109th Congress would
establish an administrative process and criteria for resolving R.S. 2477 claims.
P.L. 109-58 (H.R. 6 (Barton))
The Energy Policy Act of 2005, among other provisions, amends the Geothermal Steam
Act of 1970 and the Mineral Leasing Act, requires the Secretary of the Interior to evaluate
the oil and gas leasing process, and shields various energy-related activities on federal lands
from review under NEPA. Signed into law August 8, 2005.
H.R. 297 (Rahall); S. 576 (Byrd)
These bills amend the Wild Horses and Burros Act to restore the prohibition on the
commercial sale and slaughter of wild horses and burros. H.R. 297, introduced January 25,
2005; referred to Committee on Resources. S. 576, introduced March 9, 2005; referred to
Committee on Energy and Natural Resources.
H.R. 411 (Renzi)
The Cattleman’s Bill of Rights Act directs compensation for ranchers when federal
actions reduce their allowed amount of grazing. Introduced January 26, 2005; referred to
Committee on Resources and Committee on Agriculture.
H.R. 517 (Walden)/S. 267 (Craig)
The Secure Rural Schools and Community Self-Determination Reauthorization Act of
2005 reauthorizes modified payments under P.L. 106-393 through FY2013. H.R. 517
reported by House Resources Committee June 9, 2005 (H.Rept. 109-117, Part I). Senate
Committee on Energy and Natural Resources held hearings on S. 267 March 8, 2005.
H.R. 2993 (Porter)/S. 1273 (Reid)
These bills foster the sale and adoption of wild horses and burros while strengthening
protections. H.R. 2993, introduced June 20, 2005; referred to Committee on Resources. S.
1273, introduced June 20, 2005; referred to Committee on Energy and Natural Resources.
H.R. 3166 (Grijalva)
The Multiple-Use Conflict Resolution Act compensates livestock operators who
voluntarily relinquish grazing permits. Introduced June 30, 2005; referred to three
H.R. 3447 (Udall, M.)
The Highway Claims Resolution Act of 2005 establishes an administrative process and
criteria to resolve R.S. 2477 claims. Introduced July 26, 2005; referred to Committee on
H.R. 3563 (Inslee)
The National Forest Roadless Area Conservation Act directs that inventoried roadless
areas of the national forests be managed in accordance with the 2001 regulations. Introduced
July 28, 2005; referred to Committee on Agriculture and Committee on Resources.
H.R. 3710 (Markey)
Under certain circumstances, the bill directs the suspension of royalty relief programs
for oil and natural gas production from federal lands and authorizes resulting revenues to be
used for specified hurricane relief and low income energy assistance programs. Introduced
September 8, 2005; referred to four committees.
H.R. 3893 (Barton)
The Gasoline for America’s Security Act requires, among other things, the President
to designate certain federal lands (possibly including BLM or FS lands) as suitable for
refinery construction or expansion; an expedited permitting process would be available for
a refinery sited in the designated area. Passed House October 7, 2005; referred to Senate
Committee on Energy and Natural Resources October 24, 2005.
H.R. 3968 (Rahall)
The Federal Mineral Development and Land Protection Equity Act of 2005 requires a
royalty payment based on hardrock mineral production, resolves current disputes over the
number of acres available for mine-associated mill sites, prohibits patenting federal lands in
most circumstances, and establishes new standards for determining federal lands available
for development. Introduced October 6, 2005; referred to Committee on Resources.
H.R. 3973 (Udall, T.)
The National Forests Rehabilitation and Recovery Act of 2005 establishes a three-year
pilot program of up to 10 multi-activity projects requested by local groups to rehabilitate and
restore lands and resources affected by “uncharacteristic disturbances.” Introduced October
6, 2005; referred to Committee on Agriculture and Committee on Resources.
H.R. 4200 (Walden)
The Forest Emergency Recovery and Research Act establishes a permanent program to
assess significant catastrophic events affecting forests and allowing pre-authorized
management activities or projects using alternative NEPA arrangements. Introduced
November 2, 2005; referred to three committees. Resources and Agriculture Committees
ordered reported on March 29 and April 5, 2006, respectively.
H.R. 4479 (Higgins)
The emergency Consumer Relief Act of 2005 seeks to reduce energy prices by requiring
termination of royalty suspension programs now in place and eliminating various federal
resource production incentives in the Energy Policy Act of 2005. Introduced December 8,
2005; referred to six committees.
H.R. 4875 (Udall, M.)/S. 2584 (Salazar)
The Rocky Mountain Forest Insects Response Enhancement and Support (FIRES) Act
amends the Healthy Forest Restoration Act of 2003 (P.L. 106-148) to add an insect-affected
emergency area in the Rocky Mountain region to priority treatments, and to provide financial
assistance for community wildfire protection planning. H.R. 4875 introduced March 2,
2006; referred to Committee on Agriculture, Committee on Resources, and Committee on
Ways and Means. S. 2584 introduced April 6, 2006; referred to Committee on Energy and
S. 1897 (Corzine)
The Act to Save America’s Forests provides stricter protection for roadless areas than
the 2001 rule did, as part of a larger bill to alter management of federal forestlands.
Introduced October 19, 2005; referred to Committee on Energy and Natural Resources.
S. 2079 (Smith, G)
The Forests for Future Generations Act establishes a permanent program to assess
significant catastrophic events affecting forests and allowing pre-authorized management
activities or projects using EPA alternative arrangements; similar to H.R. 4200. Introduced
November 18, 2005; referred to Committee on Energy and Natural Resources.
S. 2364 (Cantwell)
The Roadless Area Conservation Act essentially enacts the 2001 roadless rule; similar
in effect (though not in content) to H.R. 3563. Introduced March 2, 2006; referred to
Committee on Energy and Natural Resources.
FOR ADDITIONAL READING
CRS Report RS21917, Bureau of Land Management (BLM) Wilderness Review Issues, by
Ross W. Gorte and Pamela Baldwin.
CRS Issue Brief IB10143, Energy Policy: Legislative Proposals in the 109th Congress, by
Robert L. Bamberger.
CRS Report RL32393, Federal Land Management Agencies: Background on Land and
Resources Management, by Carol Hardy Vincent, coordinator.
CRS Report RS21402, Federal Lands, “Disclaimers of Interest,” and R.S. 2477, by Pamela
CRS Report RL30755, Forest Fire/Wildfire Protection, by Ross W. Gorte.
CRS Report RL32244, Grazing Regulations: Changes by the Bureau of Land Management,
by Carol Hardy Vincent.
CRS Report RL32142, Highway Rights of Way on Public Lands: R.S. 2477 and Disclaimers
of Interest, by Pamela Baldwin.
CRS Report RL33399, Interior, Environment, and Related Agencies: FY2007
Appropriations, Carol Hardy Vincent and Susan Boren, co-coordinators.
CRS Report RL33014, Leasing and Permitting for Oil and Gas Development on Federal
Public Domain Lands, by Ryan J. Watson.
CRS Report RL30647, The National Forest System Roadless Areas Initiative, by Pamela
CRS Report RL32315, Oil and Gas Exploration and Development on Public Lands, by Marc
CRS Report RS22347, Wild Horse and Burro Issues, by Carol Hardy Vincent.
CRS Report RS22025, Wilderness Laws: Permitted and Prohibited Uses, by Ross W. Gorte.
CRS Report RL31447, Wilderness: Overview and Statistics, by Ross W. Gorte.
CRS Report RS21544, Wildfire Protection Funding, by Ross W. Gorte.