Federal Lands Managed by the Bureau of Land Management (BLM) and the Forest Service (FS): Issues in the 111th Congress
Congressional research reportOct 22, 2010
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Federal Lands Managed by the Bureau of
Land Management (BLM) and the Forest
Service (FS): Issues in the 111th Congress
(name redacted), Coordinator
Specialist in Natural Resources Policy
(name redacted), Coordinator
Specialist in Natural Resources Policy
(name redacted)
Legislative Attorney
(name redacted)
Analyst in Energy Policy
October 22, 2010
Congressional Research Service
7-....
www.crs.gov
R40237
CRS Report for Congress
Prepared for Members and Committees of Congress
Federal Lands Managed by the Bureau of Land Management and the Forest Service
Summary
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 (P.L. 109-58) led to new regulations on
federal land leasing for oil and gas, oil shale, geothermal, and renewable energy. The Obama
Administration is reviewing some rules and has withdrawn certain oil and gas leases in Utah.
Hardrock Mining. The General Mining Law of 1872 allows prospecting for minerals in open
public domain lands. Several bills to reform aspects of the Law have been introduced to require
royalties on production and establish a fund to clean up abandoned mines, among other changes.
Wildfire Protection. Various initiatives seek to protect communities from wildfires by expanding
fuel reduction, and one related program was established in P.L. 111-11. Cost concerns led to new
fire suppression accounts in the FLAME Act (Title V of P.L. 111-88).
Wild Horses and Burros. To reduce program costs and the number of wild horses and burros on
the range, the Secretary of the Interior has proposed wild horse preserves and increased fertility
controls. Legislation would prohibit the slaughter of healthy wild horses and burros and more.
National Landscape Conservation System. The 111th Congress affirmed BLM’s 27 million-acre
land protection system by establishing it legislatively (P.L. 111-11). Questions focus on funding
and management for these specially protected conservation areas.
Wilderness. P.L. 111-11 designated more than 2 million acres of wilderness, and more wilderness
bills have been introduced. Many recommendations for wilderness areas are pending. Questions
persist about wilderness review and managing wilderness study areas (WSAs).
National Forest System Roadless Areas. Debates persist about managing roadless areas for
different values, and bills have been introduced to protect the areas. Regulations from previous
administrations were challenged successfully, leading to potentially conflicting court rulings.
FS NEPA Application. The FS has altered its process for activity review under the National
Environmental Policy Act of 1969 (NEPA), and has added activities that can be categorically
excluded from reviews. Many of these changes and proposals have been challenged in court.
BLM Land Sales. The Federal Land Transaction Facilitation Act authorizes the sale or exchange
of BLM lands and use of the proceeds for certain land acquisitions. The authority was extended to
July 25, 2011. H.R. 3339 would make the authorization permanent, while S. 1787 would extend it
to 2020.
National Forest Planning. The National Forest Management Act of 1976 requires land and
resource management plans for the national forests. Regulations from previous administrations
have not been implemented, and the Obama Administration has begun a new rulemaking effort.
Congressional Research Service
Federal Lands Managed by the Bureau of Land Management and the Forest Service
Contents
Background ................................................................................................................................1
Overview of Responsibilities of the Bureau of Land Management .........................................1
Overview of Responsibilities 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.........................................................................................................6
Hardrock Minerals ................................................................................................................6
Background ....................................................................................................................6
Administrative Actions....................................................................................................7
Legislative Activity.........................................................................................................7
Wildfire Protection................................................................................................................9
Background ....................................................................................................................9
Administrative Actions....................................................................................................9
Legislative Activity....................................................................................................... 10
Wild Horses and Burros ...................................................................................................... 11
Background .................................................................................................................. 11
Administrative Actions.................................................................................................. 11
Legislative Activity....................................................................................................... 13
National Landscape Conservation System ........................................................................... 14
Background .................................................................................................................. 14
Administrative Actions.................................................................................................. 15
Legislative Activity....................................................................................................... 15
Wilderness .......................................................................................................................... 16
Background .................................................................................................................. 16
Legislative Activity....................................................................................................... 17
Roadless Areas in the National Forest System ..................................................................... 20
Background .................................................................................................................. 20
Administrative Action ................................................................................................... 21
Legislative Action ......................................................................................................... 22
Judicial Action .............................................................................................................. 22
Forest Service NEPA Application and Categorical Exclusions ............................................. 23
Background .................................................................................................................. 23
Administrative Action ................................................................................................... 23
Legislative Activity....................................................................................................... 24
Judicial Action .............................................................................................................. 24
BLM Land Sales ................................................................................................................. 25
Background .................................................................................................................. 25
Administrative Action ................................................................................................... 26
Legislative Activity....................................................................................................... 26
National Forest Planning ..................................................................................................... 28
Background .................................................................................................................. 28
Administrative Action ................................................................................................... 28
Legislative Activity....................................................................................................... 28
Judicial Action .............................................................................................................. 29
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Tables
Table 1. Wilderness Legislation in the 111th Congress................................................................ 18
Contacts
Author Contact Information ...................................................................................................... 29
Congressional Research Service
Federal Lands Managed by the Bureau of Land Management and the Forest Service
T
he various uses and management of federal lands administered by the Bureau of Land
Management and the Forest Service raise a variety of issues for Congress. Actions
discussed in this report 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),
BLM land sales, and national forest planning. Many of these issues have been of interest to
Congress and the nation for decades.
Background
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 has been 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.
Overview of Responsibilities of the Bureau of Land Management
For the BLM, many of the issues traditionally center on the agency’s responsibilities for land
disposal, range management (particularly grazing), and minerals development. The BLM
assumed these three key functions when it was created in 1946 by the merger of the General Land
Office (created in 1812) and the U.S. Grazing Service (created in 1934). The General Land Office
had helped convey land to settlers, issued leases, and administered mining claims on the public
lands, among other functions. The U.S. Grazing Service had been established to manage the
public lands best suited for livestock grazing under the Taylor Grazing Act of 1934 (43 U.S.C.
§§315, et seq.).
1
See CRS Report RL34772, Proposals to Merge the Forest Service and the Bureau of Land Management: Issues and
Approaches, by (name redacted), and U.S. Government Accountability Office,Federal Land Management:
Observations on a Possible Move of the Forest Service into the Department of the Interior, GAO-09-223, Feb. 2009,
available on the GAO website at http://www.gao.gov/new.items/d09223.pdf.
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Congress frequently has debated how to manage federal lands, and whether to retain or dispose of
the remaining public lands or to expand federal land ownership. Congress enacted the Federal
Land Policy and Management Act of 1976 (FLPMA, 43 U.S.C. §§1701, et seq.), sometimes
called BLM’s Organic Act because it consolidated and articulated the agency’s responsibilities.
Among other provisions, the law 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.
Overview of Responsibilities of the Forest Service
The FS was created in 1905, when forest lands reserved by the President (beginning in 1891)
were transferred from DOI into the existing USDA Bureau of Forestry (initially an agency for
private forestry assistance and forestry research). Management direction for the national forests,
first enacted in 1897 and expanded in 1960, identifies the purposes for which the lands are to be
managed—including timber, grazing, recreation, wildlife and fish, and water—and directs
“harmonious and coordinated management” to provide for multiple uses and sustained yields of
the many resources found in the national forests.
Many issues concerning national forest management and use have focused on the appropriate
level and location of timber harvesting. In part to address these issues, Congress enacted the
National Forest Management Act of 1976 (NFMA; 16 U.S.C. §§1600-1614, et al.) to revise
timber sale authorities and to elaborate on considerations and requirements in land and resource
management plans.
Wilderness protection also is a continuing issue for the FS. The Multiple-Use Sustained-Yield Act
of 1960 (16 U.S.C. §528-531) authorizes wilderness as a use of national forest lands, and possible
national forest wilderness areas have been reviewed under the 1964 Wilderness Act (16 U.S.C.
§§1131-1136) as well as in the national forest planning process. Pressures persist to protect the
wilderness character of areas in pending wilderness recommendations and other roadless areas.
Scope of Report
The missions of the BLM and FS are similar, and many issues, programs, and policies affect both
agencies. For these reasons, BLM and FS lands often are discussed together, as in this report. This
report focuses on several issues affecting the agencies’ lands that appear to be of interest to the
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 (name redacted). For other information on the BLM,
FS, and natural resources issues and agencies generally, see the CRS website at
http://www.crs.gov/.
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Issue Discussion and Analysis
Onshore Energy Resources2
(by (name redacted))
Background
Access to federal lands for energy and mineral development has been a controversial issue. A
BLM-coordinated study (issued May 2008) found that 62% of the estimated oil resources and
41% of the estimated natural gas resources on the 279 million acres of federal land inventoried
are classified as “inaccessible”—that is, 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 management
of energy development on BLM and FS lands.
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 BLM administers
more than 400 geothermal leases, with 29 operating geothermal power plants generating an
estimated 1,250 megawatts 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 FLPMA (43 U.S.C. §§1761-1771). Large tracts of land would be
needed for new solar and wind energy projects if the goal is to replace or add significant capacity.
In addition, new transmission capacity would be needed, increasing the need for new rights-ofway. The extent of some of the environmental impacts of renewable energy production, such as
impacts on wildlife and on environmentally sensitive areas, have been controversial.
2
This report does not cover energy resources offshore, 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
For further information, see CRS Report R40806, Energy Projects on Federal Lands: Leasing and Authorization, by
(name redacted).
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.
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Administrative Actions
The Bush Administration responded to provisions of EPAct05 with a series of actions.6 Under
§369, the BLM 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. On October 20, 2009, the Obama Administration announced a second round of oil shale
RD&D leases. The terms and conditions—much different than those of the first round—include a
smaller preference right area (480 acres) and potential commercial lease size (640 acres), higher
application fees ($6,500), and diligent development milestones. Royalty rates would be
determined by the Secretary or established in regulation.
For commercial oil shale development, the BLM completed a final programmatic environmental
impact statement (PEIS) on September 4, 2008, and published its final rule for a commercial oil
shale and tar sands leasing program on November 17, 2008.
In addition, a 2008 BLM report highlighted the progress of a pilot project to improve efficiency
of processing oil and gas permits. The report claimed improved interagency communication and a
reduction in the time needed to review and process permit applications.7
For developing geothermal energy on federal lands, the BLM issued a final rule, effective June 1,
2007.8 EPAct05, §§221-236, amended the Geothermal Steam Act to change leasing procedures to
offer more competitive leasing and establish a new royalty and rental rate framework, with
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. As of July 2010, there were 35 geothermal power plants
extracting energy resources from federal lands, with a combined capacity of 1,300 MW.9
For wind energy facilities on BLM lands, the BLM completed a final PEIS (January 2006)10
supporting land management plan amendments providing for wind energy development in the
western states. On December 19, 2008, BLM issued its updated wind energy development policy.
The BLM has authorized 206 rights-of-way to develop wind power on public land. As of July
2010, BLM had approved 29 wind development projects with a combined capacity of 437 MW.
Further, on October 6, 2010, Interior Secretary Salazar signed the first lease agreement for
offshore commercial wind development (on the Outer Continental Shelf). The lease, with Cape
Wind Associates LLC, is for a 130 turbine wind farm that could generate 468 MW.11
6
For additional information on BLM implementation of EPAct05, 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
These figures, and other figures as of July 2010 in this section, are derived from the BLM Fact Sheet, Renewable
Energy and the BLM, July, 2010, available on the agency’s website at http://www.blm.gov/pgdata/etc/medialib/blm/
wo/MINERALS__REALTY__AND_RESOURCE_PROTECTION_/energy/renewable_references.Par.95879.File.dat/
2010%20Renewable%20Energy%20headed.pdf.
10
71 Fed. Reg. 1768 (Jan. 11, 2006).
11
U.S. Dept. of the Interior, Press Release, Salazar Approves First “Power Tower” Solar Project on U.S. Public
Lands, October 7, 2010, available on the DOI website at http://www.doi.gov/news/pressreleases/Salazar-ApprovesFirst-Power-Tower-Solar-Project-on-US-Public-Lands.cfm.
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The BLM is collaborating with DOE to prepare a PEIS to evaluate solar energy development on
public lands, among other matters; the comment period for public input ended September 14,
2009. On March 11, 2009, Interior Secretary Ken Salazar issued a Secretarial Order (3285) to
make renewable energy a top priority of DOI and to establish a Departmental Task Force on
Energy and Climate Change to identify zones on public land suitable for large-scale renewable
energy development.12 The Secretary of the Interior announced 24 solar energy study areas
located on 670,000 acres in six western states (Nevada, California, Arizona, Colorado, New
Mexico, and Utah). An evaluation of these lands for solar energy development is expected by the
end of 2010, according to the BLM.
A “fast-tracking” process is underway to identify the most promising solar projects furthest along
the permitting process. As of October 22, 2010, the Secretary of the Interior had approved five
solar projects on public lands, four in California and one in Nevada. These projects would employ
different technologies. For instance, the Imperial Valley Solar Project, being developed by
Tesserra Solar, would use the Suncatcher technology on 6,360 acres. The plans call for
construction to begin construction in 2010, with a capacity of 709 MW. Another project with
plans to begin construction in 2010 is the Lucerne Valley Solar Project, to be developed by
Chevron on 422 acres of public land in San Bernardino County. This project would use
photovoltaic solar technology and have a capacity of 45 MW. Both projects will benefit from the
American Recovery and Reinvestment Act of 2009 (ARRA) funding. Still a third project,
BrightSource Energy’s Ivanpah Solar Electric Generating System, is a 370-MW proposal to be
established in San Bernadino County. The project would use “power tower” technology. If
construction begins before December, 31, 2010, BrightSource could receive $1.4 billion in
Reinvestment Act funding. Additional projects are in the approval process, with more expected
before the end of 2010. As of July 2010, there were 188 pending solar applications.
Shortly before the end of the Bush Administration, the BLM recommended an oil and gas lease
sale of 241 parcels on about 360,000 acres in Utah. The National Park Service (NPS) and several
environmental organizations claimed that the sales were too close to several national parks units
and environmentally sensitive areas without adequate analysis of the impact on air quality. The
BLM deferred the sale of numerous parcels, and announced its decision to lease 132 parcels on
164,000 acres on December 12, 2008. Several 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 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.13 On February 4, 2009, Secretary of the Interior Ken Salazar announced
that the BLM would not accept the bids on the 77 parcels under the restraining order and would
withdraw the leases because of what the Obama Administration considers to have been a rushed
sale without adequate environmental review. A follow-up DOI review conducted a parcel-byparcel assessment to determine which of the 77 parcels should be deferred, leased, or removed
from leasing. An Interior Department Review Team concluded that 52 parcels should be deferred
12
The Secretarial Order and a related agency news release are available on the DOI website at http://www.doi.gov/
news/pressreleases/2009_03_11_releaseB.cfm.
13
Southern Utah Wilderness Alliance v. Allred, No. 08-2187 (RMU)(D. D.C. January 17, 2009).
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until specific conditions are met, 17 parcels should be leased, and 8 should be removed from
leasing because of other critical resource values established by BLM’s Land Use Plan.14
Legislative Activity
Numerous bills have been introduced to provide a framework and incentives for developing
renewable energy. Many of the bills address renewable electricity standards and global climate
change issues in general (e.g., H.R. 2454), but several proposals would address permitting for
renewable and non-renewable energy projects on federal lands (e.g., S. 523, H.R. 2300, and S.
1462). Among other provisions, the Clean Renewable Energy and Economic Development Act
(S. 539) and American Clean Energy Leadership Act of 2009 (S. 1462) would establish renewable
energy zones. Under S. 1462, the National Academy of Sciences would conduct a study on the
siting, development, and management of public lands available for wind and solar energy
development. Also, the study would examine the pros and cons of the current rights-of-way
system and a competitive/noncompetitive leasing system for managing the development of wind
and solar energy on public lands.
Hardrock Minerals15
(by (name redacted))
Background
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 law, largely
unchanged since 1872, should be reformed, and if so, how to balance mineral development with
competing land uses. 16
The mining industry supports the claim-patent system, which offers the right to enter federal
lands and freely prospect for and develop minerals. Critics consider the claim-patent system a
giveaway of publicly owned resources because royalty payments are not required and the
amounts paid to maintain a claim and to obtain a patent are small. Congress has imposed a
moratorium on mining claim patents in 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 rights17 (about 24% of all
federal mineral acreage) have been withdrawn from mineral entry, leasing, and sale, subject to
14
Bureau of Land Management, Final BLM Review of 77 Oil and Gas Lease Parcels Offered in BLM-Utah’s
December 2008 Lease Sale, October 7, 2009, http://www.doi.gov/documents/BLM_Utah77LeaseParcelReport.pdf.
15
This section pertains to solid minerals covered by the General Mining Law of 1872, such as copper, silver, lead, and
gold.
16
For more information on the General Mining Law and recent reform efforts, see CRS Report RL33908, Mining on
Federal Lands: Hardrock Minerals, by (name redacted).
17
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.
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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 agency18 and must not be
in conflict with land designations and plans.
The lack of direct statutory authority for environmental protection under the Mining Law of 1872
is another major issue that has spurred reform proposals. Many Mining Law supporters contend
that other current laws provide adequate environmental protection. Critics, however, assert that
these general environmental requirements are not adequate to assure reclamation of mined areas
and that the only effective approach to protecting lands from the adverse impacts of mining under
the current system is to withdraw them from development under the Mining Law. Further, critics
charge that federal land managers lack regulatory authority over patented mining claims and that
clear legal authority to assure adequate reclamation of mining sites is needed.
Administrative Actions
Since the late 1990s, administrative efforts have focused on new surface management regulations,
with attention centering on mine reclamation efforts. New mining claim location and annual
claim maintenance fees were increased in 2005 to $30 and $125 per claim, respectively (from $25
and $100). It is unclear what course of action, if any, the Obama Administration will pursue
regarding the General Mining Law of 1872.
Legislative Activity
Broad-based legislation (H.R. 699) to reform the General Mining Law of 1872 was introduced on
January 27, 2009. Among other provisions, this legislation would establish an 8% “net smelter
return” (NSR) royalty19 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, which would contain two accounts: the
Hardrock Reclamation Account and the Hardrock 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 affected 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.
The Hardrock Mining and Reclamation Act of 2009 (S. 796) was introduced on April 2, 2009.
Like H.R. 699, S. 796 would limit the issuance of patents to federal lands to claimants whose
patent applications were filed with the Secretary of the Interior on or before September 30, 1994,
and met appropriate statutory requirements by that date. A royalty rate (varying according to the
mineral) of not less than 2% and not greater than 5% would be based on the value of production
on federal land but would not apply to mining operations already in commercial production or
those with an approved plan of operations. Royalty revenues would be deposited into a newly
established Hardrock Minerals Reclamation Fund. The fund would be administered by the
Secretary of the Interior and used for restoration and reclamation of land and water resources
18
The BLM administers mineral resources under all federal lands, regardless of which agency has responsibility for
administering the surface.
19
This is similar to a “gross income” royalty as defined in §613(c)(1) of the Internal Revenue Code of 1986.
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impacted by past mining in abandoned hardrock mining states (14 western states including
Alaska) and on Indian land within those states. An abandoned mine land reclamation fee would
be set at between 0.3% and 1.0% of the gross value of production of current mining operations on
federal lands, imposed on each mine operator (as defined in the bill), and deposited into the
Reclamation Fund. Further, S. 796 would amend FLPMA to include a complete “review of land”
not later than three years after enactment. The Secretary would have the authority to withdraw
land from entry under the General Mining Law of 1872 based on specified criteria and would
revise land use plans as appropriate to allow for a withdrawal from operations under the 1872
Mining Law.
The Locatable Mineral Royalty and Reclamation Act of 2009 (H.R. 3201), introduced on July 14,
2009, also would limit the issuance of patents as under H.R. 699 and S. 796. An annual
abandoned locatable mine land fee ($25/claim) and maintenance ($125/ claim) would be
established as well as a $35/claim location fee. A royalty rate of 2% of net proceeds of mineral
production would be established but would be waived for producers that generate net proceeds of
less than $100,000. The Secretary of the Interior also could waive, suspend, or reduce the royalty.
An Abandoned Locatable Mine Reclamation Fund would be created in the Treasury and
administered by the Secretary of the Interior for the proposed Abandoned Locatable Minerals
Mine Reclamation Program created by the bill. Revenues from the fees and royalties created by
the bill would be among those deposited in the reclamation fund.
H.R. 3201 also would establish an Office of Economic Geology (OEG) within DOI, under the
supervision of the USGS. The OEG would conduct all policy, planning, and program direction for
mineral and energy activities within the USGS. DOI would be required to conduct mineral
assessments within the United States and insular areas, identify critical commodities, update
mineral resource models, provide a historical analyses of mineral deposits, and update a USGS
paper entitled United States Mineral Resources. Further, the bill would require the Secretaries of
the Interior and Energy to convene a national summit on uranium, report to Congress an
assessment of the nation’s uranium resources, and provide policy recommendations for uranium
development by the private sector.
In addition, the Abandoned Mine Reclamation Act of 2009 (S. 140) seeks to address cleaning up
abandoned hardrock mines throughout the United States by establishing an Abandoned Mine
Cleanup Fund and imposing various fees on hardrock mining operations on federal land. A 4%
“gross income” royalty would apply to existing hardrock mineral producers on federal land.
Under this proposal, the annual hardrock mining maintenance fee would rise to $300 per claim
from the current $125 per claim and would apply to claims other than oil shale claims and those
with ten or fewer claims. Additionally, hardrock miners on federal lands would be required to pay
an annual reclamation fee of 0.3% of their gross annual income from mining except for operators
making less than $500,000, among other specified conditions. All funds from the reclamation fee
and the royalty would be deposited into the Cleanup Fund.
In the 111th Congress, the House Natural Resources Subcommittee on Energy and Mineral
Resources held a hearing on the Mining Law reform bill, H.R. 699, on February 26, 2009.
Testimony at the hearing highlighted the environmental and economic impacts of mining and the
types of royalty regimes in place for hardrock minerals at the state level. The Senate Energy and
Natural Resources Committee held a hearing on S. 796 and S. 140 on July 14, 2009. As in past
Congresses, the testimony examined various types of royalty regimes, environmental permitting,
abandoned mine cleanup, and withdrawals from entry under the General Mining Law.
Congressional Research Service
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Wildfire Protection
(by (name redacted))
Background
Fire seasons seem to have been getting more severe, with more acres burned and presumably
more damage to property and resources in the past decade. More area burned in each year of
2004-2007 than in any other years since record-keeping began in 1960. Further, wildfire funding
now constitutes nearly half the FS budget and has grown comparably for DOI. 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 in and near the forests (the wildland-urban interface).20
Administrative Actions
Administrative efforts by the FS and DOI have focused on controlling wildfires and on reducing
“hazardous fuels” (unnaturally high fuel loads of dense undergrowth, dead trees, etc.) on federal
lands to improve fire control effectiveness and to reduce fire control costs and wildfire damages.21
Funding for fuel reduction treatments rose from $117.0 million in FY2000 to $493.9 million in
FY2005. After stabilizing near $500 million, fuel reduction funding rose to $619.7 million in
FY2008 and to $791.1 million in FY2009.22 FY2010 funding dropped to $551.5 million, and the
Administration requested $486.5 million for FY2011. Appropriations for the full 2011 fiscal year
have not been enacted as of October 20, 2010. Various changes in the process for selecting and
implementing fuel reduction projects have been proposed, enacted, or promulgated in regulation
over the past decade, to expedite and reduce the cost of treatments. It is unclear whether changes
have had a significant effect on the extent or cost of fuel reduction treatments.
In an effort to contain fire costs and to reduce the need to transfer funds from other programs to
fire fighting, Congress and the Obama Administration have taken actions to alter the way funds
are provided for wildland fires. The Administration has supported congressional efforts to modify
the funding structure for large wildfire suppression activities and proposed a new contingency
reserve fund for each agency again in its FY2011 budget request. The fund would be available for
suppressing catastrophic wildfires after regular suppression appropriations and FLAME funds
(described below) had been depleted and when certain conditions had been met. The
Administration sought to establish the reserve funds with appropriations of $282.0 million for the
FS and $75.0 million for DOI, in addition to funding the FLAME accounts with appropriations of
$291.0 million for the FS and $96.0 million for DOI. Also, the Obama Administration proposed a
significant decrease of $498.3 million (36%) in suppression appropriations for FY2011—$402.5
(40%) for the FS and $95.8 million (25%) for DOI. The proposed decrease was to be partially
offset by an increase in preparedness for the FS of $333.2 million (49%) to return costs that had
shifted to suppression funding in recent years.
20
See CRS Report RS21880, Wildfire Protection in the Wildland-Urban Interface, by (name redacted).
See CRS Report R40811, Wildfire Fuels and Fuel Reduction, by (name redacted).
22
This FY2009 figure includes $265.0 million in “stimulus funding” provided in P.L. 111-5, the American Recovery
and Reinvestment Act of 2009.
21
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Legislative Activity
For FY2010, the Interior, Environment, and Related Agencies Appropriations Act (P.L. 111-88)
provided $3.37 billion for wildland fire management—fire suppression, preparedness, and other
operations ($2.52 billion for the FS and $0.86 billion for DOI). This included $474.0 million for
the FLAME Fund ($413.0 million for the FS and $61.0 million for DOI), described below. The
total is $383.4 million (10%) less than total FY2009 funding, which came to $3.76 billion
including $250.0 million in FY2009 emergency funding in P.L. 111-32 and $515.0 million in the
stimulus law, P.L. 111-5.
The FY2010 Interior appropriations act also included the Federal Land Assistance, Management
and Enhancement (FLAME) Act in Title V. Because wildfire funding constitutes nearly half the
FS budget, and the agencies may use other unobligated funds after wildfire appropriations are
exhausted, some Members of Congress have expressed concerns that wildfire control efforts are
delaying or preventing other agency activities, including land management and cooperative
assistance. 23 FLAME bills (H.R. 1404 and S. 561) had been introduced in the 111th Congress to
address this situation. H.R. 1404 passed the House on March 26, 2009, and the Senate Committee
on Energy and Natural Resources held hearings on the bills on July 21, 2009. As enacted, the
FLAME Act creates a FLAME fund for DOI and a FLAME fund for the FS, with direct
appropriations and excess (unneeded) wildfire suppression appropriations. The funds can be used
for certain individual fires (those of more than 300 acres or that pose a significant threat) or after
regular fire suppression appropriations have been exhausted. The act also requires a cohesive
wildfire strategy, as recommended by the Government Accountability Office (GAO).24 Two other
provisions of H.R. 1404 and S. 561 were not included in the FLAME Act: a review of all
wildfires costing more than $10.0 million in suppression funds, and regional maps of
communities most at risk from wildfire with cost-share grants for education, training, equipment,
and implementing community wildfire protection plans and fire-safety programs for such
communities.
The Collaborative Forest Landscape Restoration Program was enacted in Title IV of the Omnibus
Public Land Management Act of 2009 (P.L. 111-11). The law requires a program to select and
fund ecological restoration treatments for priority forest landscapes. It provides 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, and criteria for selecting landscapes. The program would require multi-party monitoring
and reporting of activities. The law established a separate Treasury fund—the Collaborative
Forest Landscape Restoration Fund—to pay up to 50% of the treatment costs on the national
forests, authorized at $40.0 million annually for FY2009-FY2019. The Administration used $10.0
million of FS fuel treatment (wildfire) appropriations for the program in FY2010, and included
$40.0 million in the FY2011 request for “Integrated Resource Restoration,” a new line within the
National Forest System appropriation account.
23
See CRS Report RL33990, Federal Funding for Wildfire Control and Management, by (name redacted).
U.S. General Accounting Office (now Government Accountability Office), Western National Forests: A Cohesive
Strategy Is Needed to Address Catastrophic Wildfire Threats, GAO/RCED-99-65, April 1999, http://www.gao.gov/
archive/1999/rc99065.pdf; and U.S. Government Accountability Office, Wildland Fire Management: Important
Progress Has Been Made, but Challenges Remain to Completing a Cohesive Strategy, GAO-05-147, January 2005,
http://www.gao.gov/new.items/d05147.pdf.
24
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Wild Horses and Burros
(by (name redacted))
Background
The Wild Free-Roaming Horses and Burros Act of 1971 (16 U.S.C. §§1331, et seq.) seeks to
protect wild horses and burros on federal land and places them under the jurisdiction of the BLM
and FS. For years, management of wild horses and burros has generated controversy and lawsuits.
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. 25
Adoption has been the primary method of disposal of healthy animals, with 224,560 adopted from
FY1972 to FY2009. Under this program, an individual receives title to the animal after one year
of demonstrating humane care. The 108th Congress enacted controversial changes to wild horse
and burro management on federal lands (P.L. 108-447, §142), primarily 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. Under the sales program, title to the animal
passes immediately from the government to the purchaser. 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 August
25, 2010, the BLM had sold more than 4,200 animals since the beginning of the program.
As of February 28, 2010, there were approximately 38,400 wild horses and burros on BLM lands,
according to agency estimates. The national AML is 26,582 for all herds, which some critics
assert is set low in favor of livestock. There were another 3,620 wild horses and burros on FS
lands as of September 30, 2008. Further, it is estimated that another 34,500 additional wild horses
and burros were removed from the range and were being held in short- and long-term facilities as
of August 2010. The BLM continues to be responsible for these animals.
Administrative Actions
The BLM strategy for managing wild horses and burros has focused on removing animals from
the range in an attempt to reach AML, offering the animals for adoption or sale, and caring for the
excess animals in long-term holding facilities. This approach has been under examination, due in
part to declining interest in adoptions, slower than expected sales, and the substantial cost of
holding increasing numbers of animals in facilities. BLM estimated that during FY2010, 11,500
25
For more information, see CRS Report RL34690, Wild Horses and Burros: Issues and Proposals, by (name redact
ed).
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
animals would be removed from the range, and 3,595 would be adopted. Further, the agency
expected to administer fertility control treatments to 750 mares. From FY2004 to FY2009, a total
of 2,396 mares received these treatments.
Calling the current BLM wild horse and burro program “unsustainable,” on October 7, 2009, the
Secretary of the Interior announced proposals aimed at reducing wild horse and burro
populations, developing new options for animals removed from the range, and reducing the costs
of wild horse and burro management. The Secretary called for the establishment of a set of wild
horse preserves throughout the United States, particularly on the grasslands of the Midwest and
East. The wild horses in these preserves would be non-producing. Land for the preserves would
be acquired by BLM or “partners.” Proposals to reduce population growth included enhancing
use of the fertility control drug PZP, and increasing the proportion of males to females in herds to
reduce the number of foals born yearly. The Administration has indicated that it is not planning to
use euthanasia to put down healthy horses, or to sell older horses without limitation, as these
authorities have been controversial.
BLM has taken several subsequent actions in an effort to improve management of wild horses
and burros. On June 3, 2010, the agency issued a draft strategy document to implement the
Secretary’s initiative and in response to congressional interest in BLM development of a longterm plan and policy for managing wild horses and burros. The document, containing draft goals,
objectives, and actions, was available for public comment through September 3, 2010. BLM
expected to consider this public input in preparing the strategy to submit to Congress for
consideration of authorities and appropriations needed to accomplish it.26
On July 14, 2010, BLM announced the issuance of a new policy handbook on wild horse and
burro management. The handbook sets out the authorities, objectives, policies, and procedures
that govern management of wild horses and burros. One goal of the handbook is to ensure that the
factors considered in setting AMLs are consistent across all herds.27
BLM has asked the National Academy of Sciences/National Research Council (NAS/NRC) to
conduct an independent review of its wild horse and burro program, according to an August 27,
2010 agency announcement. The purpose of the review is to ensure that the agency is using the
best science in managing wild horses and burros. The review is expected to address population
estimate methods, annual herd growth rates, and population control methods, among other issues.
Many of the topics of the current review were addressed by the NAS/NRC in reports 20-30 years
ago. BLM estimates that the study will begin in 2011, cost $1.5 million, and take two years to
complete. BLM expects to ask the NAS/NRC for recommendations stemming from the study.28
Out of concern that thousands of excess horses and burros could be slaughtered, a private animal
activist purchased a ranch in Nevada to serve as a sanctuary for these animals. A proposal from
the proponent, to care for thousands of animals currently in BLM holding facilities, among
26
Information on the development of the strategy, and the draft strategy itself, are available on the BLM website at
https://www.blm.gov/epl-front-office/eplanning/planAndProjectSite.do?methodName=dispatchToPatternPage&
currentPageId=14350.
27
The handbook is available on the BLM website at http://www.blm.gov/pgdata/etc/medialib/blm/wo/
Information_Resources_Management/policy/blm_handbook.Par.11148.File.dat/H-4700-1.pdf.
28
See the BLM’s News Release, BLM Proposes National Academy of Sciences Study, August 27, 2010, on the
agency’s website at http://www.blm.gov/wo/st/en/info/newsroom/2010/august/NR_8_27_2010.html.
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
others, is currently under review by BLM.29 BLM had expressed doubt about an earlier proposal
from the proponent, based on that proposal’s expected costs and a lack of authority to allow the
animals to graze on the proposed public lands in Nevada.30
Legislative Activity
Legislation to amend the 1971 Act—H.R. 1018—passed the House on July 17, 2009, and was
referred to a Senate committee on July 20, 2009. A companion bill, S. 1579, was introduced in the
Senate and referred to committee on August 5, 2009. The bills seek to prohibit the slaughter31 of
wild horses and burros, unless the animal is terminally ill or fatally injured, and to remove agency
authority to sell excess wild horses and burros. They would limit the removal of wild horses and
burros from the range to certain circumstances: (1) the immediate health or safety of the animals
is threatened; (2) the health and well being of native plants or wildlife 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 bills are intended to expand the area available for wild horses and burros.
To the extent practicable, the acreage should not be less than the acreage where the animals
roamed in 1971—51.3 million acres; currently, wild horses and burros roam on 31.9 million
acres. The bills seek to facilitate the establishment of wild horse and burro sanctuaries on public
lands, and identify new rangelands for wild horses and burros, including on private lands. They
would require an assessment of the effects of creating new ranges, sanctuaries, or exclusive use
areas for wild horses and burros, including on range health, water quality, and threatened and
endangered species. Still other provisions aim to improve the methods for estimating animals on
the range and determining AMLs; enhance implementation of fertility control; and promote wild
horse and burro adoptions. Further, the bills would require annual reports to the House and Senate
authorizing committees32 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.
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. The BLM
estimated that the cost of holding animals in all facilities in FY2010 would exceed $38 million,
which is more than half of its FY2010 appropriation for wild horse and burro management. The
agency also estimated that in FY2011, approximately 45,000 horses will be in holding facilities
and the cost of their care will be about $48 million.
29
The proposal is on the BLM website at http://www.blm.gov/pgdata/etc/medialib/blm/wo/
Communications_Directorate/public_affairs.Par.76646.File.dat/SAM_pospectus.pdf. Further, for additional
information on the proposal, see the website of its proponent at http://www.madeleinepickens.com.
30
The March 16, 2009 statement on the earlier proposal is available on the BLM website at http://www.blm.gov/wo/st/
en/info/newsroom/2009/march/blm_statement_regarding.html.
31
For information on horse slaughter legislation generally, see CRS Report RS21842, Horse Slaughter Prevention Bills
and Issues, by (name redacted).
32
The committees are the House Committee on Natural Resources and the Senate Committee on Energy and Natural
Resources.
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
The appropriation for wild horse and burro management for FY2010 was $64.0 million, the
highest level to date. This was a $23.4 million (58%) increase over the FY2009 level of $40.6
million. The increase was intended to help BLM achieve AMLs by 2013, cover increased costs of
gathering and holding animals, expand adoptions and sales through new management policies,
and enhance fertility control treatments, among other activities. BLM estimated that the cost of
wild horse and burro management will be approximately $85 million in FY2012 under current
practices. Further, the FY2010 Interior appropriations law prohibited funds from being used for
the slaughter of healthy, unadopted wild horses and burros under BLM management, or for the
sale of wild horses and burros that results in their slaughter for processing into commercial
products.
For FY2011, the Obama Administration is seeking $75.7 million for BLM wild horse and burro
management, an $11.7 million (18%) increase over FY2010. The Administration seeks this
increase in part to implement Secretary Salazar’s proposals for wild horse and burro management,
including increased fertility control treatments. The Administration requested an additional $42.0
million to acquire lands for a wild horse preserve, as proposed by the Secretary. Appropriations
for the 2011 fiscal year have not been enacted as of October 20, 2010.
In October 2008, the Government Accountability Office (GAO) released a report on BLM
management of wild horses and burros.33 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. 34
National Landscape Conservation System
(by (name redacted))
Background
The BLM created the National Landscape Conservation System (NLCS) in 2000 to focus
management and public attention on its specially protected conservation areas. According to the
BLM, the mission of the system is to conserve, protect, and restore for present and future
generations the nationally significant landscapes that have been recognized for their outstanding
archaeological, geological, cultural, ecological, wilderness, recreation, and scientific values. 35 The
33
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.
34
According to GAO, BLM has implemented all of its recommendations. See the GAO website at http://www.gao.gov/
products/GAO-09-77#recommendations. Further, in a July 14, 2010, News Release, the BLM stated that it had
completed the corrective actions recommended by the GAO.
35
U.S. Dept. of the Interior, Bureau of Land Management, Budget Justifications and Performance Information, Fiscal
(continued...)
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
system consists today of about 27 million acres of land, with 886 federally recognized units.
These units include 16 national monuments,36 16 national conservation areas, 221 wilderness
areas, and 545 wilderness study areas as well as thousands of miles of national historic and
national scenic trails and wild and scenic rivers. The 111th Congress established the system
legislatively (in P.L. 111-11). A current issue is the adequacy of funds for the system, although
appropriations have increased over the past few years. For instance, appropriations have increased
from $52.1 million in FY2008, to $66.7 million in FY2009, to $74.6 million for FY2010.
Administrative Actions
Over the past several years, the BLM has given priority to developing new or updated land
management plans for areas within the NLCS. Currently, many of these plans are completed, and
the focus is on implementing them. The Obama Administration requested $75.0 million in
appropriations for the NLCS for FY2011, a slight increase ($0.4 million) over FY2010.
Appropriations for the 2011 fiscal year have not been enacted as of October 20, 2010.
In managing the NLCS lands, BLM has identified four priorities: (1) conservation, protection,
and restoration; (2) communities and partnerships; (3) recreation, education, and visitor services;
and (4) science. 37 With regard to the fourth priority, BLM asserts that NLCS lands offer unique
opportunities for students and scientists to conduct research in scientific fields including geology,
paleontology, biology, archaeology, history, and social science. Science on NLCS lands is guided
by a 2007 Science Strategy that sets out actions to promote science on NLCS lands, implement a
standard for permitting and reporting scientific research, and integrate scientific findings into
management decisions, among other actions.
The Administration is undertaking a year-long celebration of the 10th anniversary of the
(administrative) establishment of the NLCS with events across the country, including an NLCS
science symposium. The events seek to promote the NLCS and set goals for the next decade.
Legislative Activity
The Omnibus Public Land Management Act of 2009 (P.L. 111-11) contained provisions that
established the NLCS legislatively. These provisions sought to “conserve, protect, and restore
nationally significant landscapes” that have outstanding values “for the benefit of current and
future generations.” The George W. Bush Administration had testified in favor of establishing the
NLCS legislatively. For example, at a hearing in the 110th Congress on NLCS legislation, 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.38
(...continued)
Year 2011, p. IV-235.
36
Nearly all of the monuments were established presidentially under the authority in the Antiquities Act of 1906. For a
discussion of this authority and related issues, see CRS Report R41330, National Monuments and the Antiquities Act,
by (name redacted) and (name redacted).
37
Ibid.
38
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).
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
There had been concern over whether establishing the NLCS legislatively would affect how the
areas in the system were managed. One concern was that lands in the system might be given a
higher emphasis on conservation with resulting restrictions on land uses, such as energy
development; livestock grazing; or hunting, fishing, and trapping. Another was that it could have
the effect of establishing new, standardized requirements for disparate areas in the system. 39 The
intent appeared to be not to alter the way the areas are currently managed. For example, when
introducing a similar measure (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.”40
The law included provisions intended to address these concerns over how areas in the NLCS were
to be managed. The law stated that it does not enhance, diminish, or modify any law,
proclamation, or related regulations under which components of the system were established or
are managed. Other provisions stated that the establishment of the NLCS is not to be construed as
(1) affecting state authority to manage fish and wildlife, including the regulation of hunting,
fishing, trapping, and recreational shooting on BLM land, and (2) limiting access for hunting,
fishing, trapping, or recreational shooting.
P.L. 111-11 also made several federal land designations and added them to the NLCS.
Specifically, the law established a total of 1.2 million acres of new BLM wilderness areas,
national monuments, and national conservation areas, and designated additional wild and scenic
rivers segments and national scenic trails. Other pending bills would make additional federal land
designations (e.g., wilderness and national conservation area) and add the BLM areas to the
NLCS.
Questions about the adequacy of funds for the NLCS have been recurring. Some 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. Whether BLM is sufficiently
safeguarding NLCS lands from damage has been raised. Some development advocates question
the need for the system, given the extent of other lands for conservation and recreation outside
BLM, such as the National Park System managed by the National Park Service (NPS), and given
the limitations on some NLCS lands on commercial uses of the land. Some conservation
advocates contend that the lands in the NLCS should be managed by another federal agency with
more of a focus on conservation and recreation, such as the NPS or the Fish and Wildlife Service,
citing BLM’s historical focus on extractive land uses.
Wilderness
(by (name redacted))
Background
The 1964 Wilderness Act (16 U.S. C. §§1131-1136) 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
39
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).
40
Senator Jeff Bingaman, Remarks in the Senate on S. 1139, April 18, 2007, Congressional Record, p. S. 4679.
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
access, and roads, structures, and facilities generally are restricted in wilderness areas.41 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 nationwide Clinton Administration rule protecting national forest
roadless areas (see below) was prompted by a belief that Congress had lagged in designating
areas as wilderness. Others assert that the Bush Administration—in promulgating new guidance
to preclude additional, formal BLM wilderness study areas and in replacing the nationwide
protections of the Clinton Administration with a state-petition rule—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. The Obama Administration has not
issued any general rulings on wilderness and roadless area protection.
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.42
Legislative Activity
Information on 111th Congress bills to designate wilderness areas (as of October 20, 2010) is
contained in Table 1. The Omnibus Public Land Management Act of 2009, P.L. 111-11, was
enacted on March 30, 2009. It included wilderness designations totaling 2,050,964 acres, as well
as numerous land, water, and other provisions. Title I included subtitles designating wilderness
areas in various locales, some of which had already been introduced in wilderness bills in the
111th Congress (as shown), and Title II included another such subtitle. The wilderness subtitles of
P.L. 111-11 are as follows:
•
Subtitle A, Wild Monongahela (WV) Wilderness (H.R. 1109, Wild Monongahela
Act: A Legacy for West Virginia’s Special Places)
•
Subtitle B, Virginia Ridge and Valley Wilderness
41
See CRS Report RL33827, Wilderness Laws: Permitted and Prohibited Uses, by (name redacted).
See CRS Report RS21917, Bureau of Land Management (BLM) Wilderness Review Issues, by (name redacted) and
(name redacted).
42
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•
Subtitle C, Mt. Hood Wilderness, Oregon
•
Subtitle D, Copper Salmon Wilderness, Oregon
•
Subtitle E, Cascade-Siskiyou National Monument, Oregon
•
Subtitle F, Owyhee (ID) Public Land Management
•
Subtitle G, Sabinoso Wilderness, New Mexico (H.R. 921, Sabinoso Wilderness
Act of 2009)
•
Subtitle H, Pictured Rocks National Lakeshore (MI) Wilderness (S. 109, Beaver
Basin Wilderness Act)
•
Subtitle I, Oregon Badlands Wilderness
•
Subtitle J, Spring Basin Wilderness, Oregon
•
Subtitle K, Eastern Sierra and Northern San Gabriel Wilderness, California
•
Subtitle L, Riverside County Wilderness, California (H.R. 369, California Desert
and Mountain Heritage Act of 2009)
•
Subtitle M, Sequoia and Kings Canyon Wilderness, California
•
Subtitle N, Rocky Mountain National Park Wilderness, Colorado (H.R. 419/S.
190, Rocky Mountain National Park Wilderness and Indian Peaks Wilderness
Expansion Act)
•
Subtitle O, Washington County, Utah
•
Title II, Subtitle E, Dominguez-Escalante (CO) National Conservation Area
(H.R. 170/S. 183, Dominguez-Escalante National Conservation Area and
Dominguez Canyon Wilderness Area Act)
Legislation to broadly modify WSA non-impairment protection under § 603 of FLPMA was
offered in earlier Congresses (106th, 107th, and 108th), but was not enacted and has not been
introduced in the 111th Congress. Some bills in the 111th Congress would release specific areas
while designating other areas as wilderness; this area-specific release of WSA protection is not
shown in Table 1. The only pending bill to amend the Wilderness Act, H.R. 2809, would establish
a right for qualified recreation organizations to cross wilderness areas without restrictions on
numbers of users in a group.
Table 1. Wilderness Legislation in the 111th Congress
Bill Title
Acreagea
State
Bill No.
Most Recent Action
Alpine Lakes Wilderness Additions
and Pratt and Middle Fork
Snoqualmie Rivers Protection Act
22,173
WA
H.R. 1769/
S. 721
H.R. 1769 passed House 3/18/10
S. 721 reported 3/2/10
America’s Red Rock Wilderness Act
of 2009
9,409,840
UT
H.R. 1925/
S. 799
H.R. 1925 hearing held 10/1/09
S. 799 introduced 4/2/09
Beauty Mountain and Agua Tibia
Wilderness Act of 2009
21,431
CA
H.R. 4304
Introduced 12/14/09
Beaver Basin Wilderness Act
11,740
MI
S. 109
Enacted as Pictured Rocks
National Lakeshore Wilderness in
P.L. 111-11, 3/30/09
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Bill Title
Acreagea
State
Bill No.
Most Recent Action
2,098b
CA
H.R. 4040
Introduced 11/6/09
California Desert and Mountain
Heritage Act of 2009
146,824c
CA
H.R. 369
Enacted as Riverside County
Wilderness in P.L. 111-11, 3/30/09
California Desert Protection Act of
2010
346,108
CA
S. 2921
Hearing held 5/20/10
Cathedral Rock and Horse Heaven
Wilderness Act of 2010
16,477
OR
S. 2963
Hearing held 4/21/10
Central Idaho Economic
Development and Recreation Act
332,928
ID
H.R. 5205/
S. 3294
H.R. 5205 introduced 5/4/10
S. 3294 hearing held 6/16/10
Central Idaho National Forest and
Public Land Management Act
318,765
ID
H.R. 192
Introduced 1/6/09
Colorado Wilderness Act of 2009
813,612d
CO
H.R. 4289
Hearing held 3/11/10
Devil’s Staircase Wilderness Act of
2009
30,520/
29,650
OR
H.R. 2888/
S. 1272
H.R. 2888 reported 11/16/09
S. 1272 reported 8/5/10
Dominguez-Escalante National
Conservation Area and Dominguez
Canyon Wilderness Area Act
66,280
CO
H.R. 170/
S. 183
Enacted in P.L. 111-11, 3/30/09
Eagle and Summit County
Wilderness Preservation Act
81,790
CO
H.R. 6280
Introduced 9/29/10
Forest Jobs and Recreation Act of
2009
669,060
MT
S. 1470
Hearing held 12/17/09
Manzano Mountain Wilderness,
Cibola NF (no short title)
896
NM
H.R. 5388
Reported 9/16/10
Monongahela Conservation Legacy
Act of 2010
6,042
WV
H.R. 5965/
S. 3863
H.R. 5965 hearing held 9/16/10
S. 3863 introduced 9/28/10
National Park Service Authorities
and Corrections Act of 2009
18,460
CA
H.R. 3804,
§304
Senate committee reported
8/5/10
Northern Rockies Ecosystem
Protection Act
24,034,575
e
H.R. 980
Hearing held 5/5/09
Omnibus Public Land Management
Act of 2009
2,050,964f
g
H.R. 146/
S. 22
H.R. 146 enacted as P.L. 111-11,
3/30/09
Organ Mountains-Desert Peaks
Wilderness Act
241,400h
NM
S. 1689
Reported 9/27/10
Pinnacles National Park Act
2,905
CA
H.R. 3444/
S. 3744
H.R. 3444 hearing held 11/17/09
S. 3744 hearing held 9/29/10
Rio Grande del Norte National
Conservation Area Establishment
Act
21,420
NM
H.R. 5334/
S. 874
H.R. 5334 introduced 5/18/10
S. 874 reported 3/2/10
Rocky Mountain National Park
Wilderness and Indian Peaks
Wilderness Expansion Act
253,534
CO
H.R. 419/
S. 190
Enacted as Rocky Mountain
National Park Wilderness in P.L.
111-11, 3/30/09
Sabinoso Wilderness Act of 2009
16,030
NM
H.R. 921
Enacted in P.L. 111-11, 3/30/09
San Juan Mountains Wilderness Act
of 2010
33,383
CO
H.R. 3914/
S. 2762
H.R. 3914 reported 9/16/10
S. 2762 hearing held 4/28/10
Big Sur Forest Service Management
Unit Act of 2009
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Bill Title
Acreagea
State
Bill No.
Most Recent Action
Sleeping Bear Dunes National
Lakeshore Conservation and
Recreation Act
32,557
MI
H.R. 4558/
S. 2976
H.R. 4558 introduced 2/2/10
S. 2976 hearing held 5/19/10
Tennessee Wilderness Act of 2010
19,556
TN
S. 3470
Introduced 6/9/10
Tony Dean Cheyenne River Valley
Conservation Act of 2010
48,025
SD
S. 3310
Hearing held 6/16/10
Tumacacori Highlands Wilderness
Act
83,300
AZ
H.R. 6155
Introduced 9/16/10
Udall-Eisenhower Arctic Wilderness
Act (H.R. 39); no short title to S. 231
1,559,538
AKi
H.R. 39/
S. 231
H.R. 39 introduced 1/6/09
S. 231 introduced 1/14/09
Wasatch Wilderness and Watershed
Protection Act of 2010
15,541
UT
H.R. 5009
Hearing held 6/10/10
Wild Monongahela Act: A Legacy for
West Virginia’s Special Places
37,771
WV
H.R. 1109
Enacted as Wild Monongahela
Wilderness in P.L. 111-11, 3/30/09
Source: CRS acreage calculation from the pertinent legislation.
Notes: Excludes legislation with minor boundary adjustments of wilderness areas.
a.
Acreage as identified in the latest version—as enacted, passed, reported, or introduced.
b.
Net acreage, after 6 wilderness area deletions totaling 232 acres.
c.
Also designates 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.
d.
Also designates potential wilderness of 36,522 acres, to be added when current non-conforming uses have
ceased.
e.
Contains acreage in several states: ID, MT, OR, WA, and WY.
f.
Also designates potential wilderness of 46,419 acres, to be added when non-conforming uses have ceased,
land exchanges have been completed, or other conditions have been met.
g.
Acreage is within 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), DominguezEscalante National Conservation Area and Dominguez Canyon Wilderness Area Act (H.R. 170/S. 183)
Rocky Mountain National Park Wilderness and Indian Peaks Wilderness Expansion Act (H.R. 419/S. 190),
Sabinoso Wilderness Act of 2009 (H.R. 921), and Wild Monongahela Act: A Legacy for West Virginia’s
Special Places (H.R. 1109), plus several bills from the 110th Congress.
h.
Also designates potential wilderness of 100 acres when communication site is no longer used and associated
right-of-way is relinquished or not renewed.
i.
Affects Arctic National Wildlife Refuge (ANWR).
Roadless Areas in the National Forest System
(by (name redacted) and (name redacted))
Background
Potential wilderness areas in the National Forest System were examined in the 1970s and early
1980s; about 60 million acres of “roadless” areas were inventoried in the process. Some contend
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
that the remaining roadless areas (that have not been designated as wilderness by Congress)
should be protected from development; others contend that the areas should be available for
development-type uses. 43
Administrative Action
In 2001, the Clinton Administration issued a nationwide rule for roadless areas, resulting in a
nationwide approach that curtailed most road building and timber cutting in roadless areas.44 In
2005, the Bush Administration issued the state-petition rule to replace the nationwide rule,
allowing governors 18 months to petition the FS for a special rule for roadless areas in all or part
of their state.45 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 placed
most decisions with the regional forester or the Forest Service Chief. The state-petition rule was
enjoined. However, the Bush Administration allowed states to petition for a special rule regarding
their roadless areas under the Administrative Procedure Act (5 U.S.C. §§701, et seq.). Idaho and
Colorado filed petitions for managing the roadless areas in those states. A final rule for Idaho was
published on October 16, 2008.46 A modified Colorado petition was submitted on April 4, 2010,
after originally being submitted in 2006. Agriculture Secretary Tom Vilsack accepted the
modified petition and announced that “this petition will be put out for public comment to allow
for additional public input into protection of roadless areas on Colorado’s National Forests.”47
Proponents contend that the state petitions provide public agreement on appropriate management
for those roadless areas. Critics have characterized the Colorado petition as “a roadless forest
management rule that could set a dangerous precedent for the nation’s roadless forests, paving the
way for fewer forest protections nationwide.”48
In light of conflicting court orders (discussed below), on May 28, 2009 and again on May 28,
2010, Secretary Vilsack issued one-year directives reserving to himself the authority to approve
most decisions on road building and timber harvesting in inventoried roadless areas.49 On July 13,
2009, the Secretary approved the first timber sale in a roadless area under the new policy, in the
Tongass National Forest (AK). Roadless areas in Idaho are not covered by these directives
because Idaho’s roadless area rule was established pursuant to a petition. Colorado also could be
exempt if the special rule is promulgated.
43
For more detailed information, see CRS Report RL30647, National Forest System (NFS) Roadless Area Initiatives,
by (name redacted) and (name redacted).
44
66 Fed. Reg. 3244, Jan. 12, 2001.
45
70 Fed. Reg. 25654, May 13, 2005.
46
73 Fed. Reg. 61456-61496, Oct. 16, 2008.
47
USDA Office of Communication, Statement from Agriculture Secretary Vilsack on Colorado Roadless Petition,
Release No. 0167.10, http://www.usda.gov/wps/portal/usda/usdahome?contentidonly=true&contentid=2010/04/
0167.xml.
48
Susannah Clark, Under Threat Again: Will the Obama Administration Protect Roadless Forests? The Wilderness
Society, http://wilderness.org/content/threat-colorado-roadless.
49
See http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5167211.pdf.
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Legislative Action
Just as in past Congresses, legislation has been introduced in the 111th Congress to make the
nationwide rule law. The House (the National Forest Roadless Area Conservation Act, H.R. 3692)
and Senate (the Roadless Area Conservation Act of 2009, S. 1738) bills are similar, in that each
establishes a nationwide policy that roadless areas may not be developed. However, they differ in
how they define roadless areas. The House bill defines roadless areas as those in the final
environmental document for the nationwide rule, which would include areas both Idaho and
Colorado planned to develop; the Senate bill defines the term as “an area identified in a roadless
area map.” The Senate bill could have the effect of redesignating areas the Idaho rule had
identified to allow some development, since Idaho continues to identify those areas as “roadless”
despite permitting roads.
Judicial Action
Numerous lawsuits have tracked the roadless rules’ courses. In April 2001, the nationwide rule
was enjoined by the U.S. District Court for Idaho,50 but that decision was overturned by the Ninth
Circuit.51 In July 2003, the U.S. District Court for Wyoming stopped application of the
nationwide rule—the second injunction, after the first was overturned. 52 The Tenth Circuit
vacated the decision, finding that the case had been made moot by the state-petition rule.
In September 2006, the U.S. District Court for Northern California found that the state-petition
rule violated NEPA and the Endangered Species Act. The court set aside the state-petition rule
and reinstated the nationwide rule.53 On August 5, 2009, the Ninth Circuit upheld the Northern
California court’s decision that the nationwide rule applied. An existing Bush Administration
exemption for the Tongass National Forest is in question, however, because the Ninth Circuit did
not extend the exemption. On December 22, 2009, a lawsuit was filed to rescind the Tongass
exemption.
While litigation was underway in the Ninth Circuit to reestablish the nationwide rule, litigation in
the Tenth Circuit sought to have that rule nullified. On August 12, 2008, the U.S. District Court
for Wyoming again held that the nationwide rule had violated NEPA and the Wilderness Act, and
enjoined it.54 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 nationwide
rule, and so there was no conflict between the court decisions. The Tenth Circuit is considering an
appeal of the Wyoming court’s decision. Depending on the court’s decision, the FS could face
conflicting judicial orders. This potential dilemma for the agency could be avoided by a Supreme
Court ruling on the issue, a statutory decision by Congress on roadless area management, or a
new administrative rule that replaces both the nationwide and state-petition rules.
50
Kootenai Tribe of Idaho v. Veneman, 142 F. Supp. 2d 1231 (D. Idaho 2001).
Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002).
52
Wyoming v. U.S. Dept. of Agriculture, 277 F. Supp. 2d 197 (D. Wyo. 2003).
53
California v. U.S. Dept. of Agriculture, 459 F. Supp. 2d 874 (N.D. Cal. 2006).
54
Wyoming v. U.S. Dept. of Agriculture, 570 F. Supp. 2d 1309 (D. Wyo. 2008).
51
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Forest Service NEPA Application and Categorical Exclusions
(by (name redacted) and (name redacted))
Background
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” (e.g., the presence of endangered species habitat). Some
“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, and should
be examined and subject to public involvement.
Administrative Action
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.).55 As part of the rulemaking to make the switch, some
provisions were modified. For example, the NEPA process now incorporates “incremental
alternative development,” to allow FS decision-making to develop alternatives without issuing
those versions for notice and comment.56 The rule also was changed to allow the FS to consider
only one alternative when preparing an environmental assessment (EA), if there are no
unresolved conflicts concerning alternative uses of available resources.57 Another rule change
limits consideration of cumulative impacts to only those past actions found to be “relevant and
useful.”58
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 27.59 Some of the nine newer
CEs include hazardous fuels reduction projects, “small” timber sales, and forest plans.60
Additionally, the FS has modified its application of extraordinary circumstances.61 Previously, the
rules appeared to preclude automatic use of a CE in the presence of extraordinary circumstances.
The new rule gives the responsible official discretion to determine whether extraordinary
circumstances warrant NEPA analysis and public involvement in otherwise exempt projects.
Further, 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. 62
55
73 Fed. Reg. 43084, July 24, 2008.
36 C.F.R. §220.5(e).
57
36 C.F.R. §220.7(b)(2).
58
36 C.F.R. §220.4(f).
59
FSH 1909.15, ch. 30, §§30.12, 31.2; under the rule, the CEs are found at 36 C.F.R. §220.6.
60
68 Fed. Reg. 33814, June 5, 2003; 68 Fed. Reg. 44598, July 29, 2003; and 70 Fed. Reg. 1023, Jan. 5, 2005,
respectively.
61
67 Fed. Reg. 54622, Aug. 23, 2002.
62
68 Fed. Reg. 33581, June 4, 2003; 36 C.F.R. part 215.
56
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Legislative Activity
Typically, few measures pertaining to CEs are introduced each Congress. None addressing FS use
of CEs generally has been introduced in the 111th Congress as of October 19, 2010.
Judicial Action
Several of the CE regulations have been challenged in court (see below). Nevertheless, all the
new appeals regulations remain in place, except that the FS cannot use the hazardous fuels
reduction CE.
In 2005, a California federal court ruled that the new CE appeals 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.63 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).64 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 U.S. Supreme Court ruled that the
parties lacked standing to make the challenge, reversing the Ninth Circuit’s holding that the rule
violated the ARA.65 This effectively reinstates §215.12(f).
In addition, 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.66 The challenges were
to the NEPA process (i.e., did the FS comply with NEPA). Challenges also addressed whether the
regulation complied with other laws. In January 2007, the court upheld the regulations on the
NEPA process, finding that the FS complied with NEPA in adopting the CEs.67 However, it
refused to consider other issues (e.g., 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.68 The court
found that the FS had failed to consider the environmental consequences of such a broad
program, and stopped the use of that CE until NEPA had been followed.
In other cases regarding NEPA reviews, but not reviewing new regulations, the Ninth Circuit
found in favor of the FS. In one case, the Ninth Circuit acknowledged that the lower court had
overly scrutinized FS actions in some cases.69 The Ninth Circuit said it should not act as a panel
of scientists, instead deferring to the FS’s expertise regarding the disputed timber sale. In the
second case, the Ninth Circuit found that the FS took the requisite “hard look” at possible impacts
63
Earth Island Institute v. Pengilly, 376 F. Supp. 2d 994 (E.D. Cal. 2005).
Earth Island Institute v. Ruthenbeck, 459 F.3d 954 (9th Cir. 2007).
65
Summers v. Earth Island Institute, 129 S.Ct. 1142 (2009).
66
The challenged regulations are found at FSH 1909.15, ch. 30, §§ 31.2(10) through (14).
67
Wildlaw v. U.S. Forest Service, 471 F. Supp. 2d 1221, 1242-43 (M.D. Ala. 2007).
68
Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007).
64
69
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”).
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
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. 70 The Ninth Circuit’s review of a FS plan to allow commercial logging and
a prescribed burn held that NEPA was followed, but that NFMA had not been. 71
BLM Land Sales
(by (name redacted))
Background
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 “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. 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 briefly
expired on July 25, 2010—ten years after enactment. On July 29, 2010, it was subsequently
extended for one year.72 An issue for the 111th Congress is whether to retain this authority and, if
so, in what form.
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 inholdings73 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.
Since the enactment of FLTFA, BLM has used the authority to sell a total of 309 parcels with
29,437 acres and a value of approximately $113.4 million. Acquisitions by the agencies have been
smaller in terms of number of parcels, acreage, and value. Specifically, since enactment of
FLTFA, the agencies have acquired a total of 28 parcels with 16,738 acres and a value of
approximately $43.8 million. 74
70
Native Ecosystems Council v. Kimbell, No. 07-35360, 2008 WL 5272518, at 2 (9th Cir. Dec. 19, 2008).
Hapner v. Tidwell, No. 09-35896, 2010 WL 3565255 (9th Cir. 2010).
72
Sec. 3007(a), P.L. 111-212.
71
73
FLTFA defines “inholding” as “any right, title, or interest, held by a non-Federal entity, in or to a tract of land that
lies within the boundary of a federally designated area.”
74
Sales and acquisition information in this paragraph is current as of November 2009. See Mr. Robert V. Abbey,
Director, Bureau of Land Management, Legislative Hearing on H.R. 2889, H.R. 3339, H.R. 3444, H.R. 3538, and H.R.
3726, U.S. House Committee on Natural Resources, Subcommittee on National Parks, Forests, and Public Lands,
November 17, 2009, p. 2, http://resourcescommittee.house.gov/images/Documents/20091117/testimony_abbey.pdf.
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Administrative Action
The Obama Administration’s FY2011 budget supported making FLTFA permanent, and using
current land management plans for determining which lands to sell or exchange. The
Administration testified in support of related House and Senate bills (see below). The
Administration noted the difficulty of relying on land exchanges under other BLM authorities,
important acquisitions made under FLTFA, and the role of FLTFA as a “critical tool for enhancing
our Nation’s treasured landscapes.”75 The George W. Bush Administration also supported using
updated land management plans for determining which lands to sell or exchange, and proposed
extending FLTFA until January 1, 2018.76
The changing nature of land use plans has prompted interest in amending FLTFA to allow the
most current land use plans to be used as the basis of land disposals. 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 FY2009, it has completed 86 new or revised plans. Further, the agency
anticipates that in FY2011, at least 34 major plans will be under development or revision.
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)
concluded that, while BLM land use plans identified areas for disposal, BLM had not made sale
of lands under FLTFA a priority. 77
Legislative Activity
Legislation to amend FLTFA has been introduced in both the House and Senate. H.R. 3339 as
introduced would make FLTFA permanent. S. 1787, which is pending on the Senate calendar,
would extend the law for 10 years (until July 25, 2020). Both bills would allow for updated land
management plans to be used as the basis for identifying lands for disposal and exchange. The
bills have somewhat different language on using updated plans. The Senate bill calls for use of
plans in effect as of its enactment, while the House bill simply calls for use of approved land use
plans, which would imply the most current plans.
Other pending legislation (H.R. 6206 and S. 3762) seeks to reinstate the monies that were in the
FLTFA account when the law (briefly) expired on July 25, 2010. Under FLTFA, any funds in the
account when the law terminated were to become available for appropriation under the Land and
75
76
Ibid, p. 1-2.
The Bush Administration’s FY2009 budget request contained this proposal.
77
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,
http://www.gao.gov/new.items/d08196.pdf. For the list of GAO recommendations related to FLTFA, see the GAO
website at http://www.gao.gov/products/GAO-08-196#recommendations. For information on agency actions related to
the recommendations, see U.S. Government Accountability Office, Federal Land Management: Challenges to
Implementing the Federal Land Transaction Facilitation Act, GAO-10-259T, November 17, 2009, at
http://www.gao.gov/new.items/d10259t.pdf, p. 9-10. Hereafter cited as “GAO Testimony.”
Congressional Research Service
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Water Conservation Fund (LWCF) Act.78 Because a law extending FLTFA was not enacted until
July 29, 2010, the monies in the account ceased to be available for FLTFA purposes (the
administrative costs of BLM land sales and the agencies’ land acquisitions). Both the House and
Senate bills specify that the balance in the FLTFA account as of July 24, 2010 is to be reinstated,
and available until expended, for the purposes covered by the FLTFA law. BLM estimates that
nearly $52 million was in the account on that date.79 H.R. 6206 was introduced on September 23,
2010, while S. 3762 is on the Senate calendar.
None of the pending bills would not make other changes in areas that have been under recent
debate. One such area is whether to retain the current allocation of proceeds. One question has
been 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
before the enactment of FLTFA. Under one proposal in the FY2009 Bush Administration budget,
for instance, 70% of the net proceeds would have been deposited in the general fund of the
Treasury. The proposal 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 change would have reduced funds for land acquisition at
a time of declining funds from the primary acquisition source—the Land and Water Conservation
Fund. Since then, funds for land acquisition have increased. 80 A related question has been 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. GAO
concluded in 2008 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 in
Nevada. GAO testified in 2009 that approximately 78% of the revenues raised—$88 million—
has come from land sales in Nevada.81 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. 82
Still another focus has been on whether changes are desirable to increase the pace of spending
FLTFA funds to acquire lands. In its 2008 report, GAO determined that agencies had spent $13.3
million of the $95.7 million in the FLTFA account. The pace of acquisitions has quickened since
that time. In its 2009 testimony, the Administration stated that the agencies had spent $43.8
million of the $108.9 million in the account. Among the challenges to completing land
acquisitions, GAO has identified the time, cost, and complexity of acquisitions; difficulty in
78
For information on the operation of the Land and Water Conservation Fund, see CRS Report RL33531, Land and
Water Conservation Fund: Overview, Funding History, and Issues, by (name redacted)
79
This estimate was provided by David Beaver, Senior Realty Specialist, BLM, on October 20, 2010.
80
For information on recent funding for land acquisition through the Land and Water Conservation Fund, see CRS
Report R41258, Interior, Environment, and Related Agencies: FY2011 Appropriations, coordinated by (name redact
ed).
81
The information is current as of August 2009. See GAO Testimony, p. 3.
82
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 $3.34 billion
as of March 31, 2010, significantly larger than had been expected.
Congressional Research Service
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
identifying a willing seller; insufficient realty staff to conduct acquisitions; lack of funding for
some states; and public opposition to land acquisitions.
National Forest Planning
(by (name redacted) and (name redacted))
Background
The FS is required by the National Forest Management Act of 1976 (NFMA) to prepare
comprehensive, integrated land and resource management plans for the national forests.83 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 1982.84
The Clinton Administration finalized rules (that were to be phased in) that emphasized planning
for the biological sustainability of the national forests.85 The Bush Administration delayed
implementing the Clinton rules, then in 2005 replaced them before they went into effect. The final
(2008) 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.86
Administrative Action
In August 2009, Secretary Vilsack announced the intent to develop a new planning rule after the
2008 (Bush) rule was rejected by a court. The FS published a notice of intent to prepare an
environmental impact statement (EIS) on new planning rules, and in the interim is using the 2000
(Clinton) planning rules.87 The comment period on the notice of intent closed in February 2010,
and the agency conducted a series of public meetings regionally and in Washington from March
through May of 2010. The Federal Register notice included the agency’s expectation to have a
draft EIS in December 2010 and a final EIS in October 2011, with a decision—a new planning
rule—in November 2011.
Legislative Activity
Typically, few, if any, bills on national forest planning generally are introduced each Congress.
None have been introduced in the 111th Congress as of October 19, 2010.
83
Technically, the requirement is in the Forest and Rangelands Renewable Resources Planning Act of 1974, as
amended (16 U.S.C. §§ 1600-1614). However, NFMA provided substantial detail on the considerations and analysis to
be included in the plans. Hence, forest planning is also often called NFMA planning.
84
47 Fed. Reg. 43037 (Sept. 30, 1982).
85
65 Fed. Reg. 67514 (Nov. 9, 2000).
86
70 Fed. Reg. 1022 (Jan. 5, 2005).
87
74 Fed. Reg. 67165 (Dec. 18, 2009).
Congressional Research Service
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Federal Lands Managed by the Bureau of Land Management and the Forest Service
Judicial Action
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. In 2007, the U.S. District Court for Northern California
remanded the Bush rules because they violated NEPA, ESA, and APA. 88 The FS reissued the 2005
rule as a proposed rule to meet the court’s requirement to provide notice. 89 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
2008.90 They were invalidated by the Northern District of California in June 2009 for failing to
comply with NEPA and ESA. 91 The court held that the rules were put in place without adequate
opportunities for public comment and consideration of the effects on endangered species.
Author Contact Information
(name redacted), Coordinator
Specialist in Natural Resources Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
(name redacted), Coordinator
Specialist in Natural Resources Policy
[redacted]@crs.loc.gov, 7-....
(name redacted)
Analyst in Energy Policy
[redacted]@crs.loc.gov, 7-....
88
Citizens for Better Forestry v. U.S. Dept. of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007).
72 Fed. Reg. 48513 (Aug. 23, 2007).
90
73 Fed. Reg. 21467 (Apr. 21, 2008).
91
Citizens for Better Forestry v. U.S. Dept. of Agriculture, 632 F.Supp.2d 968 (N.D. Cal. 2009).
89
Congressional Research Service
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