1. The National Forest System

   Here is a link to the Forest Service home page.

2. The BLM Public LandsUpdate

   Here is a link to the BLM home page.

   Here is a state-by-state table showing BLM-managed lands.

   Update

   In 2008, Secretary of the Interior Dirk Kempthorne issued an order officially designating the BLM lands the "National System of Public Lands." The curiously generic name does little to distinguish the BLM lands from the other systems of federal public lands, such as the national park system and the national wildlife refuge system. Nonetheless, the BLM Director at the time, James Caswell, stated "this official designation will ultimately make it easier for the public to identify these lands and more readily understand the multiple-use mission that Congress has given to the BLM." The new logo can be viewed here.

3. The National Wildlife Refuge System

   Here is a link to the National Wildlife Refuge System home page.

4. The National Park System

   Here is a link to the National Park System home page.

5. The Preservation Lands and Other Generic Categories

   Here is a link to the home page of the National Wilderness Preservation System.

   Here is a link to the National Landscape Conservation System.

6. The Legal Offices
7. The United States Congress
   Here are links to key comittees of Congress:

   • Senate Committee on Energy and Natural Resources
   • Senate Committee on Agriculture, Nutrition and Forestry
   • Senate Committee on Environment and Public Works
   • House Committee on Energy and Commerce
   • House Committee on Natural Resources
8. The Special Case of Alaska

   Here is a link to maps of the public lands of Alaska

1. From the Original Colonies
2. From Foreign Nations
3. From Indian Tribes

   What exactly invokes the doctrine of discovery? In his classic study, La Salle and the Discovery of the Great West (1879), Francis Parkman described the scene of European "discovery" of much of the land later covered by the Louisiana Purchase. Here is an excerpt from Parkman’s history, with the key legal language from the antiquated doctrine of discovery.

   ---

   This is what a land patent looks like.

1. The Disposition System
   1. The Survey and Early Land Laws

      Here is an excellent explanation and diagram of the rectangular survey system at different scales.

      And here is more information on the public land survey system.

   2. Disposition by Foreign Governments
2. State Lands and Trust Doctrines
   1. The Equal Footing Doctrine
      Note: The Sagebrush Rebellion and County Supremacy Movements
   2. The Public Trust Doctrine
   3. Grants to States and More Trust Obligations
      Note: State Management of Federally Granted Lands
      Note: Other Grants to States
3. Grants to Private Parties

   This is what a land patent looks like.

   Here is an image of military warrant for public domain issued to a famous veteran.

   1. Grants to Farmers and Ranchers
   2. Grants for Reclamation
   3. Grants of Timber
   4. Grants to Miners
   5. Grants to Railroads

      Here is the Library of Congress' map of the railroad land grants.

The emergence of reservation, withdrawal and reaquisition as dominant themes of public land law coincided with an important shift in the American attitude. In a widely quoted portion of his classic study, A History of American Law (1973), Lawrence M. Friedman described it as follows:

The pioneer, the frontier individualist, had been the American culture hero, free, self-reliant, unencumbered by weakness that inhered in the cities. The frontier had been a symbol of an open society; opportunity was as unlimited as the sky. In 1893, Frederick Jackson Turner wrote his famous essay, "The Significance of the Frontier in American History." He traced the influence of the frontier on American character and institutions; but when he wrote the essay, Turner also announced that the frontier was irrevocably dead.

What really passed was not the frontier, but the idea of the frontier. This inner sense of change was one of the most important influences on American law. Between 1776 and the Civil War, dominant public opinion exuberantly believed in growth, believed that resources were virtually unlimited; that there would be room and wealth for all. The theme of American law before 1850 was the release of energy, in Willard Hurst's phrase. Develop the land; grow rich; all segments will gain. By 1900, if one can speak about so slippery a thing as dominant public opinion, that opinion saw a narrowing sky, a dead frontier, life as a struggle for position, competition as a zero-sum game, the economy as a pie to be divided, not a ladder stretching out beyond the horizon.

1. The Emergence of Withdrawal and Reservation: Forests and Scenery
2. Mineral Reserves
3. Range Resources

Recent U.S. circuit court decisions involving criminal convictions remind us that enclaves occur on national forests too. United States v. Fields, 516 F.3d 923 (10th Cir. 2008) (parcel of Ouachita N.F., Oklahoma); United States v. Gabrion, 517 F.3d 839 (6th Cir. 2008) (parcel of Manistee N.F., Michigan).

• Note 1 following Kleppe v. New Mexico

  Here is a link to the most recent state-by-state figures on wild horse and burro populations on public lands.

• Note: Nuclear Waste Disposal

  Current material, including the NRC license application and EIS, for the Yucca Mountain repository can be found here.

• The Property Clause and Non-Federal Land

  This map shows the location of the BWCAW withing the Superior National Forest. Here is another, somewhat more detailed map. Finally, this map shows land ownership in the area. Here are the current regulations limiting use of motors in the BWCAW. The remaining motorized recreation in the BWCAW continues to generate controversy. In March 2007, a coalition of environmental groups released this report documenting degradation from motors.

  The National Park Service does have a program dealing with light pollution at Chaco Canyon. See here and here. This is part of a larger effort to increase awareness of and preserve the rare places where the sky remains realtively untainted by artificial light pollution: This is an article aimed specifically at the NPS. This 2007 article summarizes recent efforts to quantify and map the darkest skies in the U.S.

1. Barriers to Judicial Review: The Procedural Obstacle CourseUpdate
   1. StandingUpdate
      Lujan v. National Wildlife Federation 497 U.S. 871 (1990)

      • The Mahaweli Project (here) is the largest multi purpose development program ever undertaken in Sri Lanka, covering thirty-nine percent of the total island.

      Update

      Update for the notes following Lujan v. National Wildlife Federation:

      In Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), a closely divided court found standing for Massachusetts to challenge the EPA’s denial of a petition to regulate greenhouse gases, including carbon dioxide. Justice Steven’s majority opinion endorses the trend exemplified by Akins. It emphasizes that a "widely shared" risk of injury does not defeat standing if a petitioner has an adequate personal stake in the outcome of a controversy to assure concrete adverseness. As landowner of coastal regions, Massachusetts’ risk of property loss due to rising sea levels is particular and concrete. The majority opinion highlighted three special circumstances that eased the plaintiffs’ burdens in establishing standing. First, Congressional power to "define injuries and articulate chains of causation" made this dispute "eminently suitable" to judicial resolution because the substance of the action turned on proper construction of a congressional statute. Second, the right to challenge the rejection of a rulemaking petition is essentially procedural. And, third, the "quasi-sovereign" interests of states also lighten the burden of establishing standing. As to redressability, the majority opinion found that for standing it is enough that the remedy can contribute to risk reduction, here through U.S. carbon emissions limitations, even though it alone cannot prevent or reverse global warming.

      In Summers v. Earth Island Institute (No. 07-463, Mar. 3, 2009), the Supreme Court held that plaintiffs challenging a Forest Service rulemaking restricting public comment and administrative appeals did not have standing. The plaintiffs originally established standing for a Sequoia National Forest salvage timber sale, which fell under the rule excluding public comment and appeal. At the district court, the plaintiffs won an injunction against the sale and invalidation of the relevant rulemaking. The Ninth Circuit largely affirmed. Because the Forest Service reached a settlement on the Sequoia timber sale after the initial preliminary injuction, the Supreme Court found that the plaintiffs no longer had standing to bring the challenge to the rulemaking. Justice Kennedy joined with the dissenters in Massachusetts v. EPA to form a 5-4 majority holding that the plaintiffs failed to allege a concrete enough injury. Writing for the majority, Justice Scalia relied heavily on the Lujan standing cases to find that the affidavits lacked both site-specific harms and certain future intentions. The Forest Service conceded that it plans to conduct throusands of further salvage timber sales under the challenged regulations. But, without knowing where and when they will occur, the plaintiffs were unable to establish "injury-in-fact." The dissent criticized the majority's approach with the following analogy:

      "To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity."

   2. Sovereign Immunity
   3. Exhaustion of Remedies and the Foreclosure RuleUpdate
      Update

      • In 2009 the Supreme Court reversed the 9th Circuit decision that overturned the Forest Service's regulations restricting appeals for some salvage logging and other activities. The Supreme Court held that the plaintiffs did not have standing to bring the challenge to the Forest Service rulemaking. Summers v. Earth Island Institute (No. 07-463, Mar. 3, 2009)

        The Red Lodge Clearinghouse posts helpful information on administrative appeals here, including a sample appeal.

   4. Ripeness and Agency Action
      • Ohio Forestry v. Sierra Club 523 U.S. 726 (1998)
        • In 2006 the Wayne National Forest adopted a new forest plan to supersede the one at issue in the Ohio Forestry v. Sierra Club.
      • Norton v. Southern Utah Wilderness Alliance 542 U.S. 55 (2004)
        • Here is the 2002 environmental assessment for the Route Designation Plan. Here are some photographs of the area along the routes.
        • Here is a comprehensive site to all the documents from the case.
   5. Committed to Agency Discretion by Law
2. The Scope of Judicial Review
   Wilderness Society v. Morton 411 U.S. 917 (1973)

   • Aleyska Pipeline Service Company operates the Trans-Alaskan Pipeline System. Its site includes links to the history and operation of the pipeline system.

   
   Udall v. Tallman 380 U.S. 1 (1965)

   • The Kenai National Moose Range is now the Kenai National Wildlife Refuge. The Kenai NWR is a miniature Alaska, including an example of every major habitat found in Alaska. And, oil/gas leasing is part of the refuge's mix of uses.

   Note: The Chevron Doctrine and Deference to Special Forms of Agency Interpretations

1. Introduction and Overview
   Tennessee Valley Authority v. Hill 437 U.S. 153 (1978)

   • The snail darter feeds mainly on aquatic snails and was declared an endangered species in 1975, information regarding the snail darter can be found at here.
   • The Tennessee Valley Authority is the nation’s largest public power company.
   • The Tellico Reservoir is located on the Little Tennessee River in East Tennessee; construction on the Tellico Dam began in 1967 and finished in 1979.
2. Section 4: Listing Species and Designating HabitatUpdate
   Update

   Update for note 6 following Northern Spotted Owl v. Hodel:

   In Trout Unlimited v. Lohn, 2007 U.S. Dist. LEXIS 42858 (CV06-0483-JCC W.D. Wash. June 13, 2007), the court disagreed with Alsea Valley and required the Fisheries Service to consider only wild stocks in making a listing decision. The case involved a downlisting of a run of the Upper Columbia River steelhead from endangered to threatened based on the post-Alsea Valley policy of including hatchery-bred fish in population counts. In finding the policy and the downlisting invalid under the ESA, the Trout Unlimited court observed that:

   the record demonstrates that a healthy hatchery population is not necessarily an indication of a healthy natural population, and that in actuality, a healthy hatchery population can negatively affect the viability of a natural population. The scientific consensus is that artificial propagation has the potential to have either beneficial or deleterious effects on natural populations. Moreover, the possible negative effects of hatchery stocks on wild populations are scientifically well-established. AR 422 ("Hatchery salmonids have adverse impacts on wild stocks through interbreeding, ecological interactions in fresh water and mixed-stock fisheries. This results in losses in the genetic and life-history diversity of naturally-spawning stock."); AR 424 at 2 ("[H]atcheries relax selection on traits that are crucial for survival of wild salmon, and this is a subtle but . . . pernicious process."), 3 (describing overfishing, and ecological interactions and genetic effects that work to the detriment of wild fish). Thus, measuring the health of a salmon population by reference to the combined hatchery and natural populations does not necessarily provide an appropriate assessment of whether the natural population is on its way to becoming self-sustaining without human interference, and indeed, a healthy hatchery population may mask or obscure the decline of a natural population. Furthermore, the best available scientific evidence indicates that long-term reliance on hatcheries is at best an unproven strategy for the long-term conservation of a species or population, and may make its prospects for becoming self-sustaining more difficult with the passage of time.

   The Ninth Circuit Court of Appeals will now likely have to resolve the split among its district courts over whether hatchery-raised fish are part of the salmon stocks properly counted and considered in making a listing decision.

   Northern Spotted Owl v. Hodel 716 F. Supp. 479 (1988)

   • Supplementary information regarding the northern spotted owl, including the original listing decision, is available here.
   • A scientific evaluation of the status of the northern spotted owl in 2004 concluded that populations continue to decline, primarily due to habiatat loss.

   Note: Critical Habitat
   Note: Recovery Plans
3. Section 7: The Consultation and Conservation DutiesUpdate
   1. The Consultation DutyUpdate
      Update

      National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (June 25, 2007), is a significant new case interpreting the consultation duty of the ESA. It should be read at p. 283-84 of the casebook. Notes and Questions regarding the significance of this Supreme Court decision follow the edited opinion in the link.

      Consultations have been on a steady rise. The FWS reports that it completed twice as many consultations in 2002 as in 1996. In 2006 the FWS completed 26,762 informal consultations and 1,936 formal consultations. A more complete description is on page 12 of this 2008 environmental assessment.

      Here are examples of biological opinions concerning public natural resources:

      • Fisheries Service B.O. on the U.S. Bureau of Reclamation's operation of the Klamath Project.
      • FWS B.O. on a draft Forest Service land and resource management plan.
      • FWS B.O. on BLM oil and gas development in the Powder River Basin of Wyoming.
      • FWS B.O. on a five-year schedule of activities in the Olympic National Forest.

      
      Thomas v. Peterson 753 F. 2d 754 (1985)Update

      • The FWS listed the gray wolf as an endangered species in 1974. More information regarding the gray wolf, generally, is available here. The FWS delisted the Northern Rocky Mountain population segment in 2008, but a federal district court judge promptly reinstated the ESA protections. Defenders of Wildlife v. Hall (D. Mont. 2008). In addition to finding fault in the delisting decision's failure to ensure that subpopulations of wolves would be able to interbreed, the judge criticized Wyoming's plan to treat wolves as predators in most of the state. In 2009 the Obama Administration affirmed the January Bush Administration proposal to delist the gray wolf in the Michigan, Minnesota, Wisconsin, Idaho and Montana. The wolf will remain protected by the ESA in Wyoming, where state law allows open season on wolves.
      • Nearly half of the Nez Perce National Forest in north central Idaho is designated wilderness.
      • The Salmon River is also known as "The River of No Return." For more information see the Salmon River Scenic Byway.
      • The Jersey Jack area is now referred to as Cove/Mallard and consists of two roadless areas encompassing 76,000 acres of coniferous forest in the Nez Perce National Forest.
      • For more discussion of the controversy surrounding the Cove/Mallard area click here.
      • Note 1: The August 2008 proposed revision of the consultation rule would allow action agencies to avoid formal consultation by making a "not likely to adversely affect" determination without the concurrence of the FWS. The proposed rule, which would be the first comprehensive overhaul of the consultation regulations since 1986, would also address the causation standard that the Services would use to determine the effects of agency actions. The Fiscal Year 2009 appropriations bill signed by President Obama in March 2009 authorizes the Interior Department to repeal the Bush regulation. Pub. L. No. 111-8. In April 2009 the Interior and Commerce departments revoked the Bush consultation rule.
      • Note 2: The same proposed rule would clarify that the ESA consultation analysis excludes many effects that must be considered under NEPA. Under the proposed causation standards, species such as the polar bear, whose habitat is impaired by the effects of greenhouse gas emissions, would not trigger an effects analysis for many actions that increase greenhouse gas emissions. The proposed rule would narrow (or clarify, depending on your understanding of the existing standard) the definition of indirect effects to include only those "for which the proposed action is an essential cause, and that are later in time, but still are reasonably certain to occur." An essential cause is indispensable to the effect and has a closer connection to an effect than mere "but for" causation. "A conclusion that an effect is reasonably certain to occur must be based on clear and substantial information." The regulation would clarify that these standards for considering an effect relevant to the analysis are considerably more stringent than those under environmental impact analysis for NEPA. The Fiscal Year 2009 appropriations bill signed by President Obama in March 2009 authorizes the Interior Department to repeal the Bush regulation. Pub. L. No. 111-8. In April 2009 the Interior and Commerce departments revoked the Bush consultation rule.

      Note: "Counterpart" RegulationsUpdate

      Update

      The D.C. District Court has upheld the national fire plan counterpart regulations discussed in the casebook as implementing the Bush Administration's "Healthy Forests" initiative. Defenders of Wildlife v. Kempthorne, 2006 WL 2844232 (D.D.C. 2006). The court found that, under the second step of the Chevron analysis, the regulations emply a permissible interpretation of the ESA consultation requirement. The court stated:

      Plaintiffs argue that the Counterpart Regulations allow Action Agencies to "bypass" the Services entirely on any project within the National Fire Plan. This simply is not the case. Pursuant to the Regulations, an Action Agency must develop and implement an Alternative Consultation Agreement ("ACA") together with one or both of the Services before that Agency can be authorized to make NLAA determinations on National Fire Plan projects. See 50 C.F.R. § 402.33. The Agency and the Services must, inter alia: determine and identify who within the Agency will have authority to make such determinations; set forth "the standards the Action Agency will apply in assessing" the potential effects of any proposed National Fireplan Project;" agree upon "a program for monitoring and periodic program evaluation;" and implement a "training program outlined in the ACA to the mutual satisfaction of the Action Agency and the Service."

      In the meantime, an appeal of Washington Toxics Coalition is currently before the Ninth Circuit.

      Update

      In August 2008, the Interior Department proposed a significant revision of the consultation rule that builds on the experience with counterpart regulations. The proposed rule would extend to all agencies the option of determining the effects of their own actions on listed species without the concurence currently required of the Services (Fish & Wildlife or Fisheries). This self-consultation would be limited to situations where the action agency determines that it will not likely adversely affect a listed species (or critical habitat). The Bush Administration adopted the proposal in December 2008. President Obama has since announced his intention to review the rule and ordered agencies to continue seeking concurrence and consultation with the FWS in the interim. The Fiscal Year 2009 appropriations bill signed by President Obama in March 2009 authorizes the Interior Department to repeal the Bush regulation. Pub. L. No. 111-8. In April 2009 the Interior and Commerce departments revoked the Bush consultation rule.

      New Note: Recovery Crediting GuidanceUpdate

      Update

      In July 2008 the FWS issued "guidance" authorizing federal agencies to employ recovery credit systems to promote recovery and mitigate adverse impacts from federal actions by sponsring habitat conservation on non-federal lands. The FWS promulgated the "guidance" under the same notice and comment procedures as a final rule would employ, so it may well have the same administrative law status as an informal rulemaking.

      The idea behind the recovery credit systems ("RCS") is that federal agencies can offset adverse impacts to listed species and critical habitat by arranging for conservation measures on non-federal lands. The RCS model grew out of an experiment in Texas where the large Fort Hood military reservation arranged by contracts with neighboring landowners to provide habitat for the endangered golden-cheeked warbler. The army could then conduct military activities on the reservation that impaired the warbler habitat. The FWS allowed the military activities to occur as long as the credits from the private land contracts exceeded the impairment caused by the activities. The RCS policy anticipates that credits will be quantifiable units of measurement that represent a contribution to the recovery of a species. A credit could be a certain number of habitat acres or a specified quantity of water. The action agency operating an RCS would "bank" credits to be used when it engages in a series of projects covered under the RCS. Therefore, the RCS guidance anticipates that programmatic consultations would address the design issues that surround both accural and debiting the credits.

      How do you think the Forest Service could use recovery crediting in complying with the ESA for a set of timber sales comparable to those challenged in Thomas v. Peterson?

   2. The Conservation Duty
      Sierra Club v. Glickman 156 F. 3d 606 (1998)

      • The Edwards Aquifer serves the needs of almost two million users in south central Texas, the website also includes an interesting "species" link which discusses those mentioned within the case.
4. Section 9: The "Take" Prohibition
   Babbitt v. Sweet Home 515 U.S. 687 (1995)

   • Northern spotted owls are monogamous and form long-term pair bonds, more information regarding the northern spotted owl is available here.
   • Unlike the northern spotted owl, the population of the red-cockaded woodpecker is increasing. More information regarding the red-cockaded woodpecker is available here.

   Note: Habitat Conservation Plans (HCPs) and "No Surprises"
   

   Here is an example of a large-scale HCP dealing with forestry, with links to the accompanying documentation.

   Note: Reintroduction of Species
5. The Relationship between Section 9 and Section 7
   Arizona Cattle Growers 273 F. 2d 1229 (2001)

   • The razorback sucker is an extremely rare, large-river species found only in the Colorado Basin, information regarding the razorback sucker is available here.
   • The Arizona population of the cactus ferruginous pygmy-owl was delisted in 2006; more information regarding the ferruginous pygmy-owl is available here.
   • The Arizona BLM manages 12.2 million surface acres of public lands and 17.5 millions subsurface acres.
   • The New Mexico BLM received over half a billion dollars in oil and gas royalties in 2006.

1. Property Rights and "Takings" Compensation
   Mountain States v. Hodel 480 U.S. 951 (1987)

   • This site provides program updates on managing wild horses in the Rock Springs district of Wyoming.

   Note: Private Property Interests in Federal Land

   Note 6: The Federal Circuit reversed the cited Casitas case. Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008) awarded water rights owners compensation for a physical occupation. The physical occupation was the government's diversion of water from the irrigation project to a fish ladder for endangered steelhead trout. The court distinguished Tahoe-Sierra on the basis that not all per se takings categories are congruent and that water rights present distinct property attributes. The court discussed but did not decide whether the Tulare analysis is correct. The subsequent denial of a petition for rehearing also contains a lively debate among the judges over the physical occupation theory of compensation for water rights impaired by endangered species regulation. 556 F.3d 1329 (Fed. Cir. 2009).

2. Contract RightsUpdate
   Mobil Oil v. United States 530 U.S. 604 (2000)

   • Note: This Minerals Management Service website describes how the offshore leasing program works.

   Update

   Amber Resources Co. v. United States, 538 F.3d 1358 (Fed. Cir. 2008), relied on Mobil Oil to uphold a $1.1 billion restitution payment to OCS lessees. The breach of the leases occurred as a result of implementation of the 1990 amendments to the Coastal Zone Management Act, which subjected OCS lessees to greater regulation and made exploration/development more difficult. The payment refunded the bonus bids from the lessees' predecessors in interest.

1. Access Across Nonfederal Land to Federal Land

   If you want to get a feel for the place that spurred the Leo Sheep litigation, there is a short video of the area on the Wyoming parks web site.

2. Access Across Federal LandUpdate
   1. R.S. 2477 Rights of WayUpdate
      These maps show the extent of R.S. 2477 right-of-way claims in some of the more contentious regions of the country:

      Area around Zion National Park, Utah [PDF]
      Moffat County, Colorado [PDF]

      The Southern Utah Wilderness Alliance has posted some photos of Utah R.S. 2477 claims here [PDF]
      Here are photos of R.S. 2477 claims from Moffat Browns Park and Vermillion Basin

      Southern Utah Wilderness Alliance v. BLM

      • The counties of San Juan, Kane, and Garfield are located in south-eastern Utah, see image here.
      • There are mixed reactions to the existence of RS 2477 claims. The Wilderness Society views the claims as a threat to the protection of public lands, while others defend these claims as property rights which must be protected.

      Update

      Note 1: On September 1, 2009, the Tenth Circuit decided the Wilderness Society v. Kane County case. Kane County had enacted an ordinance opening primitive routes on federal land to OHV use, claiming they were valid RS 2477 routes. The BLM had adopted a land use plan for the area that had closed the routes to OHV travel, subject to VER. Kane County removed BLM's "closed" signs from the routes, and replaced them with its own "open" signs. The federal government dithered in the wake of this action, so environmental groups brought a lawsuit alleging that, until the County established in court that its RS 2477 claims were valid, the County could not purport to regulate alleged RS 2477 routes in a manner that conflicts with federal management plans.

      After finding that plaintiffs had standing to sue because their members used the area for primitive (non-vehicular) recreation that was interfered with by OHV use, the Tenth Circuit held for plaintiffs on the merits, and ordered the County to take the signs down.

      Judge McConnell, author of the SUWA opinion (and who resigned from the bench shortly afterward to join the Stanford Law School faculty), wrote a lengthy dissent. He argued plaintiffs had no standing because the case was a property rights dispute between the county and the federal government, and plaintiffs had no property interest at stake. It was therefore up to the federal government, not the environmental groups, to challenge the county's action. Judge McConnell did say the County had "no right to erect misleading signs purporting to authorize OHV travel ... over the objections of federal land managers," and also conceded in a footnote that even if the County could establish good RS 2477 claims, the federal government retained "substantial regulatory authority" and "might well have authority to ban OHVs from some or all of the roads" in question as exceeding the "scope" of the RS 2477 right of way.

      McConnell also argued that the court had already held in SUWA that a court adjudication of an RS 2477 claim was not a "prerequisite to the [claimant's exercising] rights under RS 2477." Is that a correct reading of the passage on p. 391, which says the County must advise the federal agency in advance of its claim?

      Update

      In April 2008 the Montana Supreme Court addressed the R.S. 2477 issue in a private dispute about road access to a proposed amusement park and tram ride just outside of Butte. Our Lady of the Rockies, Inc. v. Peterson, --- P.3d ----, 2008 WL 867022 (Mont., April 01, 2008). Private landowners in the vicinity argued that the road location is either a private driveway or, if a public easement, limited in scope to a "12-foot-wide dirt road, not a 60-foot, 2-lane public highway barreling through [the Landowners’] properties." Though the 4-3 majority decision decided that the R.S. 2477 dispute was not squarely raised on appeal, both the dissent and the concurrence discuss it extensively. The discussion of Montana law contrasts with the Utah law relevant in the Southern Utah Wilderness Alliance case. The Montana case also illustrates how R.S. 2477 issues can pop up in ordinary private litigation among neighbors.

   2. ANILCA PermitsUpdate
      Here is an assignment (problem, and map link) that provides a common set of facts to the ANILCA standard for a right-of-way permit.
      The relevant Forest Service Regulations are here:

      • Code of Federal Regulations [Section 251.110]
      • Code of Federal Regulations [Section 251.111]
      • Code of Federal Regulations [Section 251.112]
      • Code of Federal Regulations [Section 251.113]
      • Code of Federal Regulations [Section 251.114]

      ---

      Update for Note 6Update

      The U.S. Supreme Court denied cert. in Hale v. Norton, 476 F.3d 694 (9th Cir. 2007).

      ---

      Update for Note 9Update

      More recently, the Sixth Circuit Court of Appeals determined that the Fish and Wildlife Service has organic act authority to regulate private easements on national wildlife refuges. Burlison v. United States, -- F.3d -- (6th Cir. 2008) (2008 WL 2755472). The Burlison easement predated federal acquisition of the refuge parcel and was not acquired under RS 2477, ANILCA, or any other federal statute. The United States acquired the land subject to existing easements for roads. But the court held that the "sovereign police power" of the federal government under the property clause is sufficient to regulate such private easements. The key provision of the refuge system's organic act is 16 U.S.C. section 668dd(d)(1)(B), which delegates authority to "permit the use of . . . any areas within the [Refuge] System for purposes such as . . . roads" under regulations that the Interior Secretary may prescribe. The court rejected the plaintiffs' arguments that the road easement is not "within the System" because it is a dominant private property interest. The posessory interest of the United States in the land over which the easement runs is sufficient to consider the area "within the System" and thus subject to the agency's regulatory power.

      ---

      Colorado Wild v. U.S. Forest Service, 523 F. Supp.2d 1213 (D. Colo. 2007), accepted the application of ANILCA to all Forest Service lands and applied the existing Forest Service regulations for road access rights of way. The court faulted a Forest Service decision to issue a road construction permit for failure to explore some reasonable alternatives and for unsupported deference to county commission determinations of reasonableness. An edited version of the case is here. After reading the case, consider whether ANILCA requires the Forest Service to provide access for the full project, a year-round, recreational development. Could the Forest Service limit access to just winter use as a ski resort /second-home development? What is the proper role of county determinations in deciding what constitutes reasonable use?

1. The President's Powers

   Here is a Department of Energy web page describing the naval petroleum reserves that have their origins in Taft's executive order.

   Note: The President's Power to Guide Agencies by Executive Order
2. Modern Withdrawal Practice Under FLPMAUpdate
   Note: Is a Decision Not to Authorize an Activity on Federal Land a Withdrawal?
   Note: FLPMA Withdrawal Procedures and the Legislative Veto
   
   Update Congress and the Interior Department may be headed for another showdown over FLPMA's emergency withdrawal provision, 43 U.S.C. 1714(e), and the regulation interpreted by National Wildlife Federation v. Watt. On June 25, 2008, the House Natural Resources Committee (the current name of the old Interior and Insular Affairs Committee) voted 20-2 for a resolution temporarily withdrawing lands adjacent to Grand Canyon National Park from new uranium claims. In September 2008, coalition of environmental groups sued the Interior Department after it refused to withdraw the lands. Here is the complaint. In October 2008 the Bureau of Land Management proposed to revoke the emergency withdrawal rule, which had been the basis of Judge Oberdorfer's National Wildlife Federation v. Watt decision forcing the Interior Department to comply with the House Interior Committee's directive to withdraw federal coal land in the Upper Great Plains. On December 5, 2008 the Interior Department published the final rule eliminating the congressional committee trigger for emergency withdrawals. Unlike the Oct. 2008 proposed rule, it retains the Secretary's authority to intiate emergency withdrawals.
   Update In July 2009, President Obama's Secretary of the Interior, Ken Salazar, published a proposed withdrawal for the area near the Grand Canyon under FLPMA's provision for tracts larger than 5000 acres. 74 Fed. Reg. 35887 (July 21, 2009). During the time that the proposal is pending, up to 2 years, the lands are closed to entry under the General Mining Law. Mineral leasing is not affected by the notice, which is concerned with possible adverse effects to the Grand Canyon watershed from uranium mining. This action is likely to settle the 2008 lawsuit.
3. Withdrawals and Reservations Under the Antiquities Act
   Tulare County v. Bush

   • Giant Sequoia National Monument protects thirty-eight groves of giant sequoias.
   • At the beginning of 2004, the Forest Service adopted a management plan for the Giant Sequoia National Monument which authorized logging. The record of decision and EIS are here. A federal district court enjoined the logging and the plan in California ex rel. Lockyer v. United States Forest Serv., 465 F. Supp. 2d 942 (N.D. Cal. 2006). The court found the plan's EIS inadequate under NEPA because it was "incomprehensible" and because it improperly tiered to a fire plan that itself violated NEPA. The court did not reach claims that the plan violated the term of the executive order creating the national monument. The Forest Service is now working on a new management plan and intends to employ a more collaborative approach. Details are here.

   
   Note 7 after Tulare County v. Bush: In 2007, the federal government choose Papahanaumokuakea as the name for the Northwest Hawaiian Islands National Monument. Here is its homepage. This page contains links explaining the meaning and pronunciation of the name. President Bush capped his historically expansive use of Antiquities Act reservations for marine conservation in his last days in office with a 2009 trio of national monuments that is nearly 200,000 square miles in remote reaches of the Pacific Ocean. The Marianas Marine National Monument, Pacific Remote Islands National Monument and Rose Atoll National Monument will be managed cooperatively by the Interior and Commerce Departments.

1. Land Acquisitions
2. Land SalesUpdate
   Update

   The latest figures show that the federal government has now earned nearly $3 billion from Southern Nevada Public Land Management Act sales. But nominations for land parcels to be sold (made by real estate developers, through the county government) have slowed considerably since the end of 2005.

   While some groups are working on a legislative expansion of the boundary for sales under the Southern Nevada Public Land Mangement Act, others are criticizing its implementation. So far, more land has been sold than acquired in Nevada under the Act. Instead, much of the revenue from Las Vegas-area land sales have supported municipal services in southern Nevada, going to schools, parks, and transporatation. An investigative report in the New York Times observed that:

   Supporters say the law, which authorized competitive auctions, has been a godsend for a region dealing with rampant population growth, limited room to grow, scarce water and facilities overwhelmed by their own popularity. But critics see it as having created a limitless federal bank account that has encouraged and subsidized unbridled growth at the expense of taxpayers from the 49 other states, all while Nevada continues to draw new residents as a low-tax state disinclined to pay for such projects itself. Jesse McKinley & Griffin Palmer, Nevada Learns to Cash in on Sales of Federal Land, N.Y. Times, Dec. 3, 2007.

   
   Update

   Federal Land Transaction Facilitation Act
   A 2008 GAO Report criticizes the effectiveness of FLTFA outside of Nevada. It provides useful information about land sale adminstration.

3. Moving Federal Lands Around the Federal Family

   The most recent chapter in the periodic effort to consolidate federal lands into a single agency or department occured in 2009, when the Government Accountability Office issued a report to Congress on the merits of and problems with moving the Forest Service to the Interior Department. The impetus for this particular study is fiscal; it came from the Rep. Norm Dicks from Washington, who chairs the House subcommittee on Interior appropriations. While the GAO did not conclude that considation would assure budget savings, it did discuss several, more practical initiatives to improve coordination and alignment of resource management across federal agencies. In summary, the costs of consolidation would dominate the short term but efficiency benefits could be realized in the long term:

   According to many agency officials and experts with whom we spoke, where the Forest Service mission is aligned with Interior’s—in particular, the multiple-use mission comparable to BLM’s—a move could increase the overall effectiveness of some of the agencies’ programs and policies. For example, some officials stated that a move would help harmonize the Forest Service’s and BLM’s oil and gas, grazing, and other programs and potentially make the agencies’ internal administrative appeals processes similar. Conversely, most agency officials and experts believed that few short-term efficiencies would be realized from a move, although they said an opportunity would be created for potential long-term efficiencies, such as consolidating information technology systems. GAO Report at 4-5.

   The report makes for interesting reading on how agencies with almost congruent mandates approach their tasks differently. The report is particularly helpful on the history of the establishment of administrative functions of public resource agencies and past efforts to rationalize them.

   If the GAO could show a likely budget savings, would there be any reason to retain the current system of dispersed responsibilities?

4. Land Exchanges Update
   National Audubon Society v. Hodel

   • The Alaska Maritime National Wildlife Refuge is so large, totaling 4.9 million acres, that traveling between its two farthest points would be the equivalent of taking a trip from Georgia to California.
   • Almost 70% of the19 million acres in the Yukon Delta National Wildlife Refuge are below 100 feet in elevation.
   • The Kenai National Wildlife Refuge was originally established as the Kenai National Moose Range to protect the Alaska-Yukon moose.

   Update

   New 2009 case may substitute for National Audubon Society v. Hodel. Click here for edited version of Center for Biological Diversity v. Asarco LLC, with notes and questions.

   Note: Federal-State Land Exchanges

1. The Origins of Water Law on Federal Lands
2. Federal Reserved Water Rights
3. Reserved Water Rights by Federal Land Category
   1. National Forests
   2. National Parks
   3. National Wildlife Refuges
   4. Wilderness Areas
   5. Wild & Scenic Rivers
   6. Bureau of Land Management ("BLM") Public Lands
4. Modern Congressional and Executive Practice in Federal Land Reservations
5. Adjudicating Federal Water Rights: The McCarran Amendment, State Water Adjudications and Related Issues

   Here is the settlement agreement between the United States and Idaho quanitfying reserved rights claims in the Hells Canyon National Recreation Area.

6. Beyond the Reserved Rights Doctrine: Other Means of Protecting Federal Interests in Water
   1. Controlling Water by Regulating Access to Federal Land
   2. Claiming Water Rights Under State Law
   3. Federal Non-Reserved Water Rights

1. What Minerals are Locatable under the Mining Law?
2. What "Lands Belonging to the United States" Are Open to Claim Location?
3. How Is a Mining Claim Located?

   The federal government has a web-based mapping program that allows viewers to see various kinds of mineral claims.

   Here is an example of a certificate of location that a miner would file under state law, generally in a county courthouse, in order to protect the pedis possessio right and bolster a claim under the General Mining Law. Locations are alienable in a similar manner to most real property rights and may be transferred by deed.

4. What Are a Mining Claimant's Rights Before Discovery? The Pedis Possessio Doctrine
5. Gaining Rights Against the United States: Discovery of a Valuable Mineral Deposit
   Note: The Problem of "Common Varieties"
   Discovery of Fuel Minerals: Uranium and Oil Shale
   Update

   At the time of claim location, prospective miners are not required to identify the specific minerals they are seeking. Nonetheless, the BLM estimated that between 40 and 50 percent of the 92,000 new mining claims filed in Fiscal Year 2007 were directed at uranium ore. By 2009 the price of uranium had dropped somewhat, to $45 per pound, but the uranium mining boom remains strong.

   Update

   In 2008 the Interior Department issued a final rule for the oil shale leasing program, under section 369 of the 2005 Energy Policy Act. The BLM web page on the final programmatic final environmental impact statement contains links to many useful and techinical documents. The rule specifies lease areas, sale protocols, rental rates, and royalties. The relatively low royalty rates, at least for the first several years of commercial production, are a source of particular controversy. Should Congress itself specify the royalty rates for all mineral leasing?

6. Holding and Privatizing Mining Claims
   Holding Claims: The Assessment Work Requirement
   Privatizing: Patenting Claims
7. Inroads on the Freedom of the Mining Claimant
   Note: Processes for Challenging the Validity of Unpatented Mining Claims
8. Modern Environmental Regulation of Operations on Unpatented Mining ClaimsUpdate
   1. Forest Service RegulationUpdate
      Here is the "plan of operations" form miners must submit to the Forest Service for surface disturbance of national forest lands. Update

      In March 2008 the Forest Service proposed a new set of regulations for hardrock mining that would mirror the approach of the 2001 BLM rule. Here is the proposed rule, from 73 Fed. Reg. 15,694 (Mar. 25, 2008).

   2. BLM Regulation
9. Note: Regulating Hardrock Mining in National Parks
   Note: Reforming the Mining LawUpdate
   Update

   Congress is once again considering reforms to the General Mining Law. In November 2007, the House passed H.R. 2262, with a couple of dozen Republicans joining almost all Democrats in supporting the measure. The bill has been the subject of several hearings. John Leshy provided testimony and answers to questions posed by the House Natural Resources Committee, which places the proposed legislation in the context of comprehensive reform issues. Here is a complete list of recent testimony reflecting a wide range of views on mining law reform. In 2008 the action moved to the Senate, where Majority Leader Reid promised to pare down the environmental protection provisions of the House bill. Congress ultimately did not enact any GML reform legislation in 2008.

1. Mineral Leasing Systems in a Nutshell

   The federal government now has a web-based mapping program to view various kinds of mineral lease locations.

   Sample Onshore Lease:
   Here is the standard form for a federal onshore oil/gas lease.
   This document, entitled Uniform Format for Oil and Gas Lease Stipulations, provides guidance for the standardization of federal oil and gas lease stipulations, uniform definitions, format, and wording.

   Here is the standard form for a federal coal lease.

   Here is the standard form for a federal geothermal resource lease.

   Here is the standard form for a federal lease of other resources under the MLA, including sodium, sulfur, phosphate, and potassium.

   Sample Outer Continental Shelf Lease:
   This website includes links to various forms used by permittees, lessees, and operators (including the following two links).

   Mineral Lease of Submerged Lands Under the OCS Act:

   Oil and Gas Lease of Submerged Lands Under the OCS Lands Act:

2. Competition in Federal Mineral Development
3. What Is "Fair Market Value"?Update
   Update

   This interactive map shows Powder River Basin coal. Hereis a BLM web site that collects reports, maps, and statistics on Powder River Basin coal leasing in Wyoming.

   In 2007 the Departments of Energy, Interior and Agriculture released this report on federal coal resources. It contains helpful maps, especially of the vast Powder River Basin deposits, which constitute 55% of all U.S. owned coal.

4. Mineral Leasing and Environmental Regulation
   Kerr-McGee Corp. v. Hodel was not an unusual situation. Here is a map and information on the extent of federal acquired minerals in the East subject to leasing.

   Note: The Surface Mining Control and Reclamation Act
5. NEPA and Planning for Onshore Oil and Gas LeasingUpdate

   The BLM maintains a web site on the National Petroleum Reserve that links to maps and NEPA documents. The U.S. Geologic Survey hosts a web site explaining many of the issues associated with CBM development in the Powder River Basin.

   Note 4: The BLM National Petroleum Reserve web site now contains the final supplemental EIS and an integrated activity plan that addresses the cumulative impacts of leasing on both the northwest and the northeast quadrants. The BLM prepared these documents in response to Judge Singleton's decision in National Audubon Society v. Kempthorne. In July 2008, the BLM announced its final decision to authorize oil and gas development in the northeastern quadrant of the NPR-A. However, in a reversal of its past position, the agency decided to exclude the environmentally sensitive Lake Teshekpuk area from leasing. The Sept. 24, 2008 NPRA lease sale on both the northeast and northwest quadrants brought in nearly $31 million to the Treasury. However, of the 4.8 million acres offered, only 1.7 million acres of leases sold.

   In Wilderness Society v. Salazar, 603 F.Supp.2d 52 (D.D.C. 2009), the court upheld leasing in the northeast quadrant of the NPR-A against NEPA challenges. The court rejected the Wilderness Society's claim that the EIS failed to sufficiently analyze cumulative impacts on wildlife and to sufficiently evaluate site-specific adverse effects.

   Note 5: Western Organization of Resource Councils v. Bureau of Land Management, 591 F.Supp.2d 1206 (D. Wyo. 2008), upheld a comprehensive EIS and ROD for the development of over fifty thousand CBM wells in the Powder River Basin. "The project would also authorize construction of 17,000 miles of road and 26,000 miles of pipeline; it would permit up to 1.0 trillion gallons of water to be pumped from groundwater aquifers onto the surface; allow for excavation of 3,100 unlined reservoirs of waste pits to hold some of the produced water and authorize the discharge of the remainder of the water, untreated, onto the ground." Id. at 1208-09. The analysis included the area covered in the Pennaco Energy case and clears the way for extensive development in the Buffalo district and surrounding BLM lands.

   Note 7: The BLM BMPs required by the 2005 Energy Policy Act are here.

   Greenhouse Gas Mitigation and Fossil Fuel Development on Federal LandsUpdate

   In the wake of Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (rejecting the federal government's argument that greenhouse gases, especially carbon dioxide, are not pollutants under the Clean Air Act unless it can show that they do not contribute to climate change), the EPA has shown signs of a new assertiveness toward greenhouse gas emissions in its Clean Air Act duty to comment on all federal agency EISs. On June 1, 2007, the EPA sent this comment letter urging the Interior Department to deal with the methane emissions associated with a proposed mine expansion in Colorado. The EPA notes that methane is over twenty times more effective in trapping heat in the atmosphere than carbon dioxide and designates the DEIS analysis as one to which the EPA has significant objections. In particular, the letter recommends that:

   the final EIS identify the magnitude of the emissions and discuss alternatives to allowing the methane resource to be vented directly to the atmosphere. Specifically, we recommend that the final EIS describe the range of alternative technologies available for capturing the methane and the potential economic and environmental benefits associated with capturing and utilizing a portion of the methane emissions.

   In October 2008, the WildEarth Guardians challenged the approval of the West Elk mine coal mine under NEPA for failure to consider alternatives to venting methane. Here is the complaint.

   By 2008, EPA had begun asking the BLM to quantify the amount of greenhouse-gases emitted by energy projects, and to compare the impacts of alternatives on greenhouse gas emissions. Here is an example from the Toquop Energy Project and another one from the Pinedale Anticline Oil and Gase Exploration and Development Project. Mitigating carbon and methane emissions, and possibly evaluating cumulative impacts, may not be far behind.

   In 2008 the Ninth Circuit weighed in on the debate over how NEPA documents should consider the effects of greenhouse gas emissions. Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172 (9th Cir 2008), remanded the agency's rule updating corporate average fuel economy (CAFE) standards. Among other problems with the rule, the court found the EA deficient. The EA had quantified the expected amount of carbon dioxide emitted from vehicles but failed to "evaluate the 'incremental impact' that these emissions will have on climate change or on the environment more generally in light of other past, present, and reasonably foreseeable actions." The court explained its reasoning:

   Thus, the fact that "climate change is largely a global phenomenon that includes actions that are outside of [the agency's] control ... does not release the agency from the duty of assessing the effects of its actions on global warming within the context of other actions that also affect global warming." The cumulative impacts regulation specifically provides that the agency must assess the "impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." 40 C.F.R. § 1508.7.

   The impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct. Any given rule setting a CAFE standard might have an "individually minor" effect on the environment, but these rules are "collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7; see also Native Ecosystems Council, 304 F.3d at 897 (holding that the Forest Service's road density standard amendments must be subject to cumulative impacts analysis because otherwise, "the Forest Service will be free to amend road density standards throughout the forest piecemeal, without ever having to evaluate the amendments' cumulative environmental impacts."). Thus, NHTSA must provide the necessary contextual information about the cumulative and incremental environmental impacts of the Final Rule in light of other CAFE rulemakings and other past, present, and reasonably foreseeable future actions, regardless of what agency or person undertakes such other actions.

   In 2009 John Leshy and Mark Squillace proposed this amendment to the Mineral Leasing Act to enable the BLM to better regulate methane emissions from coal mines. Methane released to the atmosphere contributes more than 20 times the heat-trapping intensity as does the same amount of carbon dioxide over a 100-year period. The West Elk mine, describe above as the subject of the EPA comment letter and the WildEarth Guardians law suit, emits enough methane to equal the heat-trapping effects of a 150 megawatt coal-fired power plant. Currently, the MLA does not appear to authorize the BLM to allow a coal lessee to capture methane without undergoing a separate lease auction for the gas.

   Note: Oil and Gas Leasing on the Offshore LandsUpdate

   The Interior Department's Mineral Management Service provides maps of current outer continental shelf oil and gas leasing areas.

   Update

   In 2007 the Department of the Interior proposed expanding the area of the outer continental shelf eligible for leasing. Here is the program proposal and a map of the area.

   Geothermal ResourcesUpdate

   The rise in fossil fuel energy costs has made federal geothermal leasing more important, and lucrative. Geothermal energy now accounts for some 17 percent of all renewable energy in the United States. Half of that is produced under federal leases. Since the 2005 Energy Policy Act established a new competitive leasing system, the Interior Department has taken in $57 million in bonus bids. That represents a significant growth in geothermal development.

   Here is a link to the BLM's growing geothermal energy leasing program.

   In October 2008, the BLM and Forest Service released a Final Programmatic Environmental Impact Statement for the entire public lands geothermal leasing program. It is expected to expedite processing a backlog of lease applications.

   Here is an interactive map of geothermal leases.

   Pursuant to the 2005 Energy Policy Act, Pub. L. No. 109-58, section 222, all Geothermal Steam Act leases now are initially put out for competitive bidding. The 2005 law, section 224(a), also lowered royalties for geothermal resources to 1-2.5 percent for the first ten years, and 2-5 percent after that.

1. Federal Minerals Under Private SurfaceUpdate

   These maps compare the federal surface estate with the vast federal ownership of coal in the Powder River Basin. The colorful map on p. 14 of this document is an excellent graphic of federal control of Powder River Basin coal. Other maps in this document illustrate the richness of these deposits.

   1. What Minerals Are Reserved?
   2. Protecting the Environment and Surface Values in Developing Federally Reserved MineralsUpdate

      The BLM's response to the 2005 Energy Policy Act's mandate to study the split estate issue with respect to adverse effects on private surface resources is here.

      Update

      In 2007 the New Mexico joined Wyoming in passing a "Surface Owners Protection Act" that requires compensation for, among other things, "lost land value, lost use of and lost access to the surface owner's land and lost value of improvements caused by oil and gas operations." 2007 New Mexico Laws Ch. 5 (H.B. 827).

      The new statute also requires bonds in the absence of surface owner agreeents and specifies a range of damages that courts may award for violations of the Act.

      Note: Determining Whether Federal Rights are Reserved in Dispositions
2. Private Minerals Under Federal Surface
   1. What Minerals Are Reserved?
   2. Authority of the United States to Control Development of Reserved Mineral Rights
      Agency Split Estate Regulations and Application

1. The Multiple-Use, Sustained-Yield Act of 1960
2. The Resources Planning Act of 1974

1. Timber Harvesting Methods and Physical Suitability

   Here is an example of a federal timber sale contract. In contrast, here is an example of a timber sale contract where the landowner is private.

2. The Diversity Mandate
3. Other NFMA Provisions
   1. Economic Suitability: The "Below-Cost Timber Sales" Issue
   2. Rotation Age and Culmination of Mean Annual Increment ("CMAI")
   3. Sustained Yield and the Concept of Nondeclining Even Flow ("NDEF")
4. Revision of the Forest Service Planning RegulationsUpdate
   1. The 2000 Regulations
   2. The 2005 regulationsUpdate
      Update

      The first LRMP prepared under the 2005 rule (for the Comanche and Cimmarron National Grassland in Colorado and Kansas) finally came out in March, 2007. Later that month U.S. District Court Judge Phyllis Hamilton enjoined the rule for violations of the APA, NEPA, and ESA. Citizens for Better Forestry v. U.S. Dept. of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007). The court did not address whether the rule met the standards of the NFMA.

      The APA violation stemmed from provisions in the 2005 final rule that were not "logical outgrowths" of the proposed rule and did not represent a natural evolution in the drafting of standards. The court took particular note of the Forest Service’s claim that the EMS approach, which was not in the proposed rule, represents a "paradigm shift" for the agency.

      The court found improper the Forest Service’s use of a categorical exclusion to satisfy the CEQ regulations that call for an EA or EIS for programmatic rules and changes. The court held that the 2005 rule may have significant effects on the environment. Therefore the agency should have, at minimum, prepared an EA.

      Similarly, because the 2005 rule may affect listed species or critical habitat, the Forest Service violated section 7 of the ESA by not initiating consultation.

      In January 2008, the United States and the timber industry intervenors dropped their appeal of Judge Hamilton's decision. In the subsequent months of 2008, the Forest Service released an EIS (notwithstanding its disagreement with Judge Hamilton's decision) and promulgated a new rule that is virtually identical to the 2005 rule overturned by Judge Hamilton (73 Fed. Reg. 21468 (Apr. 21, 2008)). You can view the EIS and other material related to the 2008 rulemaking here. The EIS explains that the agency can find no environmental impacts from the LRMP rule (the preferred alternative) because it does not actually authorize any projects "on the ground." The coalition of environmentalists that fought the 2005 rule promptly returned to court challenging the 2008 rule on the basis that the new EIS inadequately addresses environmental impacts, particularly those stemming from elimination of the viable populations requirement. Here is the 2008 complaint. In the meantime, national forests prepare LRMPs under a 2008 interim directive.

      In June 2009 the environmentalists won their suit against the 2008 LRMP rule. A federal district court found that the Dept. of Agricuture violated both NEPA and the ESA by failing to evaluate the impacts of the change to the new rule.Here is the opinion, Citizens for Better Forestry v. U.S. Dept. of Agriculture. The court determined that the 2008 EIS "does not actually analyze the environmental effects of implementing the Rule. Instead, the EIS repetitively insists . . . that the rule will have no effect on the environment because it merely sets out the process for developing and revising LRMPs and is removed from any foreseeable action that might affect the environment." The court specifically discussed the effects from the change in the viability standards from the 1982 and 2000 rules as an issue that an EIS must analyze. The ESA compliance suffered from similar problems. Perhaps the most controversial aspect of the new decision upholds standing despite the 2009 Supreme Court decision of Summers v. Earth Island Institute, 129 S. Ct. 1142. The district court distinguished Summers by noting that procedural injury is the entire basis for the LRMP challenge, whereas the Summers challenge involved a claim that the Forest Service violated a substantive standard in an administrative appeals statute.

      In August 2009 Agriculture Secretary Vilsack announced that the United States would not appeal Citizens for Better Forestry. Instead it will develop yet another new regulation for the LRMP process.

      Note 7: In 2009 the U.S. Supreme Court reversed the 9th Circuit decision overturning some of the Forest Service restrictions on administrative appeals. The Supreme Court held that the plaintiffs did not have standing to bring the challenge to the Forest Service rulemaking. Summers v. Earth Island Institute (No. 07-463, Mar. 3, 2009).

5. Wildfire Management Update

   Here is the influential Beschta report on wildfire and salvage logging cited by Blue Mountains Biodiversity Project (p. 740).

   Update

   Sierra Club v. Bosworth, --- F.3d ----, 2007 WL 4246103, C.A.9 (Cal.), December 05, 2007 (NO. 05-16989), enjoined the Forest Service regulation applying a categorical exclusion from NEPA analysis to "fuel reduction" timber sales up to 1000 acres and prescribed burns up to 4500 acres.

   Global climate change seems to be exacerbating the fire problem caused by accumulated fuels. Higher temperatures and drought in the Southwest, for instance, are reducing the area of high-elevation forests. Dr. Thomas W. Swetnam, director of the Laboratory of Tree-Ring Research at the University of Arizona has found that that wildfire rates indicate the changing climate. "Since the mid-1980s, about seven times more federal land has burned than in the previous time frame, he found, and the fire season has been extended by more than two months." Timothy Egan, Heat Invades Cool Heights Over Arizona Desert, N.Y. Times, Mar. 27, 2007. (Westerling et al., Warming and Earlier Spring Increase Western U.S. Forest Wildfire Activity, 313 Science 940 (2006).)

   In 2008, the federal costs of fire suppression are now three times what they were in 2001. Most of that money appears to be spent on protecting private property in the wildand-urban interface. An April 2009 GAO report, Wildland Fire Management (GAO-09-444T), found continued hemorrhaging of Forest Service and Interior project budgets in order to fund fire supression. The GAO reports that, in recent years, wildland fire management has cost the federal government an average of $2.9 billion annually.

   Update
   Ecology Center, Inc. v. Austin Overruled

   In July 2008, the Ninth Circuit, en banc, overruled Ecology Center, Inc. v. Austin. The case is The Lands Council v. McNair.

6. The National Forest Roadless Rule Update
   Update

   Despite the injunction against implementation of the 2005 Roadless Rule, the Forest Service pressed ahead with state-by-state rulemakings to deal with roadless area management. In October 2008, the agency published this final rule , which would govern roadless area management in Idaho. In July 2008, the Forest Service filed this notice of proposed rulemaking for Colorado.

   Update

   Note 2: In August 2008 the Wyoming district court reinstated its injunction against the Clinton rule. Wyoming v. U.S. Department of Agriculture, -- F. Supp.2d --, 2008 WL 3397503 (D. Wyo. 2008). Judge Brimmer used the occasion to criticize Magistrate Judge LaPorte's 2006 decision to invalidate the Bush rule and reinstate the Clinton rule. The Forest Service must now deal with these conflicting national injunctions until the circuit courts sort it out. In December 2008, Magistrate Judge Laporte, "in the spirit of comity," partially stayed her injunction "as to states outside the Ninth Circuit and New Mexico" while the appeals pend. Here is her decision. In June 2009 Judge Brimmer declined to limit his nationwide injunction to the Tenth Circuit. While that conflict simmers, the Obama Administration announced in May 2009 that it would impose a one-year moratorium on most roadbuilding and timber harvesting in the roadless areas while it reviews the issue.

   In August 2009 the 9th Circuit upheld Magistrate LaPorte's decision on the merits and affirmed the reinstatement of the 2001 roadless rule as relief. Relying in part on Kootenai Tribe v. Veneman, 313 F.3d 1094 (9th Cir. 2002), discussed at note 5, p. 751 of the casebook, the court found that the 2005 rule undermined the beneficial effects of the 2001 rule without evaluating the impacts as required under NEPA and the ESA. Until NEPA and ESA compliance occur, the court held that the greater protections of the 2001 rule should apply. The conflict with Judge Brimmer's decisions remains.

1. Introduction to The Taylor Grazing Act (TGA)
2. The Grazier’s Legal Interest in Public Lands

Here is an example of a grazing permit.

The BLM Forms Central public website is a good source of material on implementation of grazing and other programs.

Here is a list of BLM forms and applications related to grazing permits. Application for a preference based term permit on BLM lands requires four (4) forms as well as supporting the application with documentation and evidence:

Four Required Forms

1) Grazing Application - Grazing Schedule -- Form 4130-1

2) Grazing Preference Application and Preference Transfer Application -- Form 4130-1a

3) Grazing Application - Supplemental Information -- Form 4130-1b

4) Assignment of Range Improvements - Form 4120-8

Here is an internal BLM checklist that outlines the steps required to issue a grazing permit that arises from an acquisition of base property. It contains reference to the regulations as they were revised in 2006 (before they were enjoined), thus some of the regulatory cites on the form are currently inaccurate. Still, it is what BLM uses.

3. Administration of the TGAUpdate
   Update

   Update to note 10 following Public Lands Council v. Babbitt

   On June 8, 2007, Judge Winmill permanently enjoined the entire 2006 Bush grazing rule and reinstated the 1996 rule upheld in Public Lands Council. Western Watersheds Project v. Kraayenbrink (CV-05-297-E-BLW D. Idaho 2007). The court agreed with that the plaintiffs that the 2006 regulations:

   loosen restrictions on grazing. They limit public input from the non-ranching public, offer ranchers more rights on BLM land, restrict the BLM’s monitoring of grazing damage, extend the deadlines for corrective action, and dilute the BLM’s authority to sanction ranchers for grazing violations. While the BLM justifies the changes as making it more efficient, the BLM was not their originator – it was the grazing industry and its supporters that first proposed them. Certainly the industry has a vital interest in being regulated efficiently, but the new regulations reach far beyond that prosaic purpose. According to the federal agency charged with protecting endangered species – the Fish and Wildlife Service – the new regulations "fundamentally change the way BLM lands are managed," and "could have profound impacts on wildlife resources."

   The court found that the BLM may not implement such regulations until it has complied with the ESA consultation requirement and taken the requisite "hard look" at environmental impacts under NEPA.

   Note: Grazing FeesUpdate

   Update

   In 2009 public land grazing fees will remain at the statutory (1978 Public Rangelands Improvement Act) mininum of $ 1.35 per AUM, where they have been since 2007.

   
   Note: Enforcing the Range CodeUpdate

   Update

   Wilkie v. Robbins, 127 S.Ct. 2588 (2007), dismissed once and for all the federal racketeering and constitutional tort claims against the BLM employees that allegedly engaged in a pattern of harassment that included trespassing and permit violation charges. The court found that the federal racketeering law is not applicable to misconduct of public land managers.

1. NEPA
2. FLPMA
   1. FLPMA Planning and Grazing Management on a Broad Scale
   2. Allotment Management on a Fine Scale
      Update

      This 2001 grazing bill, which includes the Comb Wash allotment covered in the case on p. 827, illustrates Professor Feller’s observation on p. 811 that the actual number of cattle authorized in a permit may far exceed the number actually grazed. The bill (p.2) indicates that 127 head (501 AUMs) were active on the allotment while 396 (1771 AUMs) were not used. Since 2002 no cattle at all were grazed in the Comb Wash allotment, despite the 2002 permit, which authorizes 508 head.The permittee has requested and been granted authorization for total non-use of the allotment every year since 2002. Nonetheless, trespassing cattle from neighboring allotments do graze Comb Wash.

      The stipulations to the 2001 bill, especially #4, respond to the Comb Wash decision. The absence of similar stipulations in the 2002 permit is now the subject of an administrative appeal by the attorney representing NWF in the Comb Wash case (Professor Feller). In 2009 the BLM settled the appeal and completed the EA ordered by Judge Rampton in 1993. Here is the new permit.It and the 2002 permit illustrate typical BLM grazing permits.

      Here are Professor Feller's photographs of Comb Wash and vicinity.

1. History and Issues of Administration

   The map on page 2 of this brochure shows the extent of the refuge system.

2. State Law and Refuge System GoalsUpdate

   Maps and other information on the National Elk Refuge are here.

   Here is the full text of the FWS Policy on Biological Integrity, Diversity and Environmental Health.

   Update

   The federal government released its final EIS for bison and elk management in the National Elk Refuge, Grand Teton National Park, and the John D. Rockefeller, Jr., Memorial Parkway connecting the two: Visit Here

   The April 2007 record of decision chose the alternative that would reduce wintering elk numbers to approximately 5,000 on the refuge and to 1,600 in the park. Winter feeding would be reduced but not eliminated. A case study of the issues involved with elk management on the NER can be found in the first section of this article.

   In 2008 a coalition of environmental groups challenged the 2007 elk management plan. The complaint alleges violations of the Refuge System organic act, NEPA, and the APA. The complaint argues that the plan violates both the mandate to maintain biological integrity, diversity, and environmental health" and the conservation mission to sustain "healthy populations of . . . wildlife" from the 2007 Refuge Improvement Act. How would you rule on the suit if you were the district court judge?

3. Individual Refuge Establishment Purposes

   Here is the full text of the FWS Policy on National Wildlife Refuge System Mission and Goals and Refuge Purposes.

4. The Compatibility Criterion (note 4 after Ruby Lake cases)Update

   The web site for Ruby Lake NWR contains information about current management and resources.

   Here is the full text of the FWS Policy on Compatibility.

   Update Stevens County v. U.S. Dept. of Interior, 2007 WL 2407063 (E.D. Wash. 2007) upheld a FWS decision to reduce grazing on the Little Pend Oreille NWR. The Court interpreted the 1997 Refuge Improvement Act's mandate that compatibility determinations be based on "sound professional judgment" to grant deference to the FWS in applying general scientific literature to explain conditions observed in site-specific evaluations of range conditions.

   Update In Delaware Audubon Society v. Secretary of the U.S. Department of the Interior, 2009 WL 763925 (Mar. 24, 2009), a district court enjoined the FWS from allowing farming at Prime Hook NWR. Cooperative farming is a common practice on the refuges where farmers cultivate commodity crops, e.g. corn and soybeans, in exchange for labor to benefit wildlife, e.g. planting winter crops. The court found that the FWS signed 37 cooperative farming agreements between 1995 and 2007 at Prime Hook without making the compatiblity findings required by the organic act. Part of what made the farming at Prime Hook so controversial was the use of genetically engineered crops by farmers, in contravention of a 2001 FWS policy. FWS biologists found that planting the genetically modified crops ran the risk of "biological contamination, increased week resistance, and damage to soils."

1. The National Park System

   Yellowstone National Park maintains a trove of information about its bison herd here. The state of Montana provides information on its bison hunt here.

   Update

   The May 2009 credit card reform legisation contains a rider ordering the national parks and wildlife refuges to allow visitors to carry loaded firearms, which may increase wildlife poaching. Most of the debate, however, focused on public safety. The legislation endorses a Bush Administration rule that a federal district court remanded. Credit Card Accountability Responsibility and Disclosure Act, Pub. L. No. 111-24, section 512; 123 Stat. 1734, 1764-66 (2009).

2. National Forest and BLM Public Lands

   Wolf control on Alaska public lands continues to spark controversy. The Alaska Dept. of Fish and Game explains its current program. This history is particularly helpful. Defenders of Wildlife continues to monitor and oppose the state wolf control efforts here.

3. Predator Control

   APHIS "Wildlife Services" (formerly ADC) collects many studies and describes its programs.

   The Forest Service maintains this website on range management in the Fishlake National Forest.

   Note: Protecting Subsistence Uses of Wildlife Resources on Federal Lands

   The BLM provides detailed information about subsistence uses of Alaskan public lands.

1. The NPS Organic Act and National Park Establishment StatutesUpdate

   Here are some photos of the disputed Salt Creek Road from Southern Utah Wilderness Alliance v. Dabney.

   NPS Management Policies

   The NPS Management Policies are a rich source of information on park administration.

   Rationing RecreationUpdate

   Update

   Note 7: In 2006 the NPS issued a record of decision and a final Colorado River Management Plan adopting the modified preferred alternatives in the EIS. This site contains links to the plan and ongoing research on recreational impacts on the Colorado River. This site contains links to the ROD, the EIS, and other historical documents dealing with use of the River.

2. Recreation Management and NEPA

   Sierra Club v. United States Update
   Note 1 Update: In September 2009 the United States settled the NEPA litigation over recreation management in Yosemite Valley when it agreed to terminate all new commercial deveopment in the area until it prepares a new plan, estimated to come out in 2012. The NPS promised to focus its new plan on capping the use of the popular valley in order to preserve the environment and visitor experience. Here is the settlement agreement.

   While Yosemite NP continues to struggle with cars in the Valley, Zion National Park has moved to a mass transit system to carry visitors during peak months through its central valley. Information on the Zion shuttle busses is here.

   Note 4 after Sierra Club v. United States
   For an example of a cruise ship concession permit for Glacier Bay National Park click here.

1. Recreation Fees

   FLREA implementation has generated a passionate opposition to recreation fees.

2. Recreation Concessions
   1. The National Park Service

      Here is an example of a National Park Service concession permit. Examples of evaluation and compliance reports regarding concession permits can be found here.

   2. The U.S. Forest Service and Ski Areas
3. Recreational Permitting on National Forests and BLM Public Lands

1. Wheeled ORVs
   1. The BLM
   Sierra Club v. Clark (Dove Springs Canyon case):

   The current, updated, California Desert Conservation Area Plan seeks to accommodate a range of recreation and preservation interests. It can be found here.

   Note 6:
   This poster illustrates the Barstow to Las Vegas race.

   2. The NPS
   3. The USFS
2. Snowmobiles and Jet SkisUpdate

   Update The sparring between the U.S. district courts of Wyoming and D.C. continues. The latest episode involves Greater Yellowstone Coalition v. Kempthorne, 2008 U.S. Dist. LEXIS 69802 (D.D.C. Sept. 15, 2008) (Judge Sullivan) and this unpublished retort by Judge Brimmer from Wyoming. In December 2008 the NPS reinstated the 2004 temporary rule limit of 720 snowmobiles per day in Yellowstone. Here are the planning documents for winter use of Yellowstone N.P.

   The Obama Administration has now reopened comments on the Bush Administration's latest rule and promised to conduct yet another new EIS. 74 Fed. Reg. 36640 (July 24, 2009). Until it has a chance to propose and promulgate a final rule, the Obama Administration has indicated it will impose a limit of 318 snowmobiles per day for the coming winter seasons ending with 2010-11. Here is the current winter use plan for 2009-10.

1. The Origins of Federal Wilderness Preservation
2. Wilderness Management
   Update The Wilderness Society v. U.S. Fish & Wildlife Service

   In 2008 the FWS released a wilderness stewardship policy to guide management and designation of wilderness areas in the national wildlife refuge system. It deals specifically with fish stocking (section 2.18) and commercial activities (section 2.12). Special provisions address the relationship between Alaska wilderness areas and ANILCA (part 5). Does the stewardship policy or the court decision encourage active management to restore natural elements (e.g. fish stocks) of a wilderness to historic levels of abundance? In other words, does wilderness management focus on activity prohibitions or restoration? Should it? See John Nagle, The Spritual Values of Wilderness, 35 Envtl. L. 955 (2005).

   Note: Mining and Wilderness
   Note: Grazing and Wilderness
   Note: Other Wilderness Management Issues
3. Expanding the Wilderness System
   1. The National Forest System
      Note: Future Wilderness Consideration and the "Release" Issue
   2. Bureau of Land Management Lands
      1. The Inventory Process
      2. Interim Management: FLPMA § 603 (c)
   3. Mineral Leasing in Wilderness Study Areas

1. External Threats from Non-Federal Lands
2. External Threats from Other Federal Lands
   Problem: Geothermal Leasing Adjacent to Yellowstone National Park

1. Designating Wild & Scenic Rivers
2. Managing Wild & Scenic Rivers

1. Archaeological Resources
2. Cultural and Religious ResourcesUpdate
   Update

   Note 3: Update to Navajo Nation v. U.S. Forest Service.
   In August 2008 the Ninth Circuit, in an en banc rehearing, reversed the 2007 circuit court decision. Navajo Nation v. U.S. Forest Service, --- F.3d ----, 2008 WL 3167692. Judge Fletcher, who wrote the 2007 opinion, filed a vigorous dissent. The en banc decision focuses on whether the Snowbowl expansion permit places a "substantial burden" on a person's exercise of religion under the RFRA. The court concludes that it does not. The court interprets the RFRA "substantial burden" test to be the same as that applied by the Supreme Court in first amendment disputes. The key passage follows:

   The only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities. To plaintiffs, it will spiritually desecrate a sacred mountain and will decrease the spiritual fulfillment they get from practicing their religion on the mountain. Nevertheless, under Supreme Court precedent, the diminishment of spiritual fulfillment—serious though it may be—is not a “substantial burden” on the free exercise of religion.

   The court adds this footnote to the end of the paragraph:

   The dissent’s assertion that we misunderstand the “nature of religious belief and practice” is misplaced. One need not study the writings of Sir Francis Bacon or William James to understand “religious exercise invariably, and centrally, involves a ‘subjective spiritual experience.’ ” We agree with the dissent that spiritual fulfillment is a central part of religious exercise. We also note that the Indians’ conception of their lives as intertwined with particular mountains, rivers, and trees, which are divine parts of their being, is very well explained in the dissent. Nevertheless, the question in this case is not whether a subjective spiritual experience constitutes an “exercise of religion” under RFRA. That question is undisputed: The Indians’ religious activities on the Peaks, including the spiritual fulfillment they derive from such religious activities, are an “exercise of religion.” Rather, the sole question is whether a government action that affects only subjective spiritual fulfillment “substantially burdens” the exercise of religion. For all of the rich complexity that describes the profound integration of man and mountain into one, the burden of the recycled wastewater can only be expressed by the Plaintiffs as damaged spiritual feelings. Under Supreme Court precedent, government action that diminishes subjective spiritual fulfillment does not “substantially burden” religion. * * *

   In making its determination, the en banc court relied on the district court finding that "no plants, springs, natural resources," or shrines would be "physically affected by" the spreading of artificial snow made from reclaimed sewage effluent. The dissent states that the reclaimed water does contain residual organic contaminants. Of course, so does naturally occuring river water. Do you think that the physical/chemical properties of the reclaimed water should be dispositive? Or, is the spraying activity of the snowmaking the key injury here? What national forest management activities would the en banc decision preclude under the RFRA?

   Note 5: following Lyng v. Northwest Indian Cemetery Protective Association: For a better sense of how the NPS handles the sensitive issue of climbing on Devils Tower, see Devils Tower Climb.

   Here is the part of the NPS guide to Rainbow Bridge N.M. that requests visitors to refrain from walking under the arch due to the religious significance of the site.

   Note 6: The Supreme Court granted cert. in Buono v. Norton to review both the standing and Establishment Clause issues. The Court heard oral argument in Oct. 2009. A decision is expected by June 2010.

   Note: The Constitution and Free Speech on Federal Lands
3. Historical Resources

   Here is the National Park Service's National Register of Historic Places. This search engine allows you to find places listed in any county. The Advisory Council on Historic Preservation also mainstains a helpful web site on the NHPA.