Major New Public Land Laws Provide Detailed Guidance for Activities of Forest Service, Bureau of Land Management

Two of the most significant public lands laws in many years came out of the end-of-session logjam in the 94th Congress. Under the new laws, both the Forest Service and the Bureau of Land Management, whose practices have been the foci of criticism from environmentalists in recent years, have obtained broad new statutory guidance in carrying out their duties. (At press time, the President had not signed either bill, but no problems were anticipated.)

Forest Act

The National Forest Management Act of 1976 (the bill that was submitted for the President's signature was S. 3091) substantially amends the Forest and Rangeland Renewable Resources Planning Act of 1974,¹ to give more specific directives to the Agriculture Department's Forest Service in its timber harvesting methods and its management of national forest lands. While the law is not as strong as environmentalists had sought, as was S. 2926, the bill introduced by Senator Jennings Randolph (D-W.Va.), as a compromise it is nonetheless a protectionist statute that provides solid promise for more careful management of national forest resources. And, as with any law in which decision-making standards are carefully spelled out, litigation is an ever present remedy for agency failure to comply with statutory procedures. The new law goes beyond merely considering the economic return of forest management and reforms policies made law by the Multiple-Use Sustained-Yield Act of 1960.² The key provision in the new law, § 6(g), requires the Secretary of Agriculture to promulgate within two years regulations specifying procedures to ensure compliance with NEPA in the preparation of Forest Service land management plans, and establishing guidelines for the development of these plans,³ including timber harvest practices and evaluation of the regenerative capability of national forests lands.

Clearcutting

One of the most controversial issues treated by the Act is the Forest Service's practice of permitting timber companies to clearcut⁴ in their harvests of national forest timber. The issue became acute when two court decisions in the latter half of 1975⁵ reached back to the 1897 Organic Act⁶ and concluded that clearcutting violated the statute's provision that only "dead, matured or large growth of trees" which had been "marked and designated" may be cut for sale from national forests. The Forest Service responded by halting timber sales in the states affected by the decisions, arguing that the courts had deprived them of the flexibility to use long-standing practices that were sound forest management techniques.⁷ The courts, for their part, had recognized the havoc that would ensue from their enforcing the law but urged Congress to resolve the issue.⁸

[6 ELR 10241]

Congress' solution, which included repealing the offending portion of the Organic Act⁹ was essentially to specify the considerations that must go into the Secretary's harvesting guidelines so that they deal not only with the harvesting method but also with the harvesting's effects on the land itself.

On harvesting methods, Congress first of all directed that the system to be used not be selected "primarily because it will give the greatest dollar return or the greatest output of timber."¹⁰ This provision is directed at the environmentalists' concern that clearcutting was the oft-chosen method because of its short-term high-yield value. In addition, however, Congress directed that if clearcutting were the chosen practice for a particular cut, it must be "the optimum method … to meet the objectives and requirements of the relevant land management plan."¹¹ Other provisions elaborate on additional factors that should be evaluated in determining a cutting method: cut areas should conform to the natural terrain, individual cuts must not exceed maximum size limits within geographic forest classifications, and cuts must be carried out "in a manner consistent with the protection of soil, watershed, fish, wildlife, recreation, and esthetic resources, and the regeneration of timber resources."¹² In order to discourage cutting methods simply based on economic return, whenever timber cutting is intended to regenerate an even-aged stand of timber, the new law requires that sale of the timber be contingent upon an interdisciplinary review to assure that "the potential environmental, biological, esthetic, engineering, and economic impacts on each advertised sale area have been assessed, as well as the consistency of the sale with the multiple use of the general area."¹³ Whether this will delay current sale plans based on clearcutting is not at present known.

The analogies to NEPA and the constant references to the Multiple-Use Sustained-Yield Act in the new Forest Act open the possibility that while the new law articulates a strong environmental policy, it may be a policy that is essentially unenforceable. The Multiple-Use Sustained-Yield Act refers to the various interests that should be served by the national forests, but as many writers have attested, subsequent agency action did not measure up to that intent.¹⁴ Similarly, the National Environmental Policy Act enumerates factors that must be considered, but substantive review of the Act's environmental concerns remains a sometime thing.¹⁵ The National Forest Management Act of 1976, however, may avoid some of these problems since it is more specific in setting forth the management factors that the Secretary of Agriculture must consider. Not only must specific factors be evaluated in deciding on a cutting method in sale areas of the national forests, as noted above, but the Act clearly indicates that timber may be harvested from national forests only where.

(i) soil, slope, or other watershed conditions will not be irreversibly damaged; (ii) there is assurance that such lands can be adequately restocked within five years after harvest; [and] (iii) protection is provided for streams, streambanks, shorelines, lakes, wetlands, and other bodied of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat.¹⁶

Land Resource

The second major feature of the new law, besides its detailed guidance on actual cutting practices, is its awareness of the values of the land resources of the national forests. One of the principal controversies shaping the new law was the question of harvesting on national forest lands where the likelihood of regeneration [6 ELR 10242] is little or non-existent, the so-called "marginal lands." This issue is partially dealt with in the sections on cutting practices, as noted above, but overlying the cutting standards is the question whether such lands should be harvested at all. This larger issue is addressed by the requirement that land management plans for the national forests must evaluate the economic and environmental aspects of forest management including providing for "outdoor recreation (including wilderness), range, timber, watershed, wildlife and fish" and the "diversity of plant and animal communities based on the suitability and capability of the specific land area" as well as "the diversity of tree species."¹⁷ This is consistent with the policy behind the Multiple-Use Sustained-Yield Act, but the danger remains that these factors will only be transparently considered since there is no explicit compulsion not to impose timber harvesting where other uses may be more advantageous.

The compulsion, however, could come from other sections of the new Act which require continuous field assessments to assure that forest management systems will "not produce substantial and permanent impairment of the productivity of the land."¹⁸ Furthermore, another feature of the law calls for periodic assessment of national forest lands not suited for timber production; except for salvage sales and sales necessary to protect other multiple-use values, such lands are exempt from timber harvesting for ten years. Subsequent decade-interval reviews could continue this status until the lands "have become suitable for timber production" after reforestation work.¹⁹ On the other hand, the compromise bill does not as rigidly restrict cutting on marginal lands as would have the original Senate bill.²⁰ Time and subsequent Forest Service practice will tell whether the new law will gloss over the careful protection of marginal lands that environmentalists sought.

Reforestation is one question on which the timber industry and the environmentalists agree, and the above-noted provision whereby marginal lands are held out of production for reforestation together with the provision that authorizes $200 million annually for reforestation work²¹ are indicative of the Act's efforts to maintain and rebuild resources. Consistent with the theme of the law, however, which is to move away from concern just for trees as crops and toward considering related resources, is the amendment to the Knutson-Vandenberg Act.²² That Act requires timber purchasers to pay for planting, sowing and removing undesirable trees on lands cut by timber purchasers. The amendment, however, requires private purchasers to pay, in addition, for site "improvement operations, maintenance and construction, reforestation and wildlife habitat management."

Harvest Rate

A third major issue surrounding the Act is the question of the rate at which timber harvesting shall take place. Section 11 of the new Act, which adds a new § 13 to the Forest and Rangeland Revewable Resources Planning Act, adopts a non-declining even-flow policy. Its basic provision requires that timber sales from each national forest be "a quantity equal to or less than a quantity which can be removed from such forest annually in perpetuity on a sustained-yield basis." If, however, multiple-use objectives indicate that a purpose other than timber harvesting would be a better use, the allowable sale quantity for any decade may depart from the projected long-term average sale quantity that would otherwise be established. Furthermore, within a decade-long span, annual sales may exceed the previously-established annual sale quantity so long as the decade-long average does not exceed the limitation. The ten-year period as the standard is consistent with § 14 of the new Act which establishes that time frame as the maximum length for timber sales contracts.

Apparently in response to public criticism of Forest Service actions, the new Act has mandated a greater degree of public participation in the decision-making process than existed in the past. Not only is the Secretary directed to provide for public participation in the development, review and revision of the land management plans, but the public "must" participate in decisions on variations in allowable sale quantities.²³ This participation is to be accomplished through public meetings and making the plans available three months prior to final adoption.²⁴ It is not clear, however, [6 ELR 10243] whether this will be the outer limit of encouraging public "participation," or whether it will be insufficient because it fails to allow the public to have a substantial say in the choice of alternatives. In addition, the Secretary is required to appoint a non-Forest Service "committee of scientists" to provide "scientific and technical advice and counsel on the proposed guidelines and procedures to assure that an effective interdisciplinary approach is proposed and adopted."²⁵ Because the committee views must be included in the public record for the regulations when they are proposed, there may be an opportunity for dissent to gain public support, but the substantive decision-making still lies exclusively with Forest Service discretion.

In sum, the National Forest Management Act of 1976 is a substantial improvement on the Forest Service's former statutory authority. The law directs timber harvesting to proceed on a basis whereby the Forest Service must consider not only the economic utility of timber sales and their impacts on recreation and wildlife, but also the effects on the land itself. And all of the interests, the timber industry, the environmentalists and the Forest Service, may now proceed with greater certainty concerning the actions that can and will be taken with respect to the nation's forest resources.

BLM Act

Equally as controversial as the new Forest Act and with as much compromise between the environmentalists and those favoring wider economic use of the nation's natural resources, the Federal Land Policy and Management Act of 1976,²⁶ is essentially a new organic act for the Department of the Interior's Bureau of Land Management (BLM).The Act repeals several old laws permitting the disposal of public lands, establishing instead a revitalized policy of retention and management of such lands. As hammered out in conference and passed in the closing hours of the 94th Congress, the final version of the Act represents a compromise between the Senate version, S. 507, which would have merely streamlined existing authority for federal land management, and the House bill, H.R. 13777, which would have specially benefitted mining and grazing interests. The conference version follows the lines of the House bill for the most part, but the Senate conferees were able to add some of the stronger, environmentally-protective language from their bill. Significant features of the new BLM law provide a stronger oversight role for Congress, rules for land use planning and sales and withdrawals of public lands, and revised provisions for grazing fees on public lands and rights-of-way conditions.

Congressional Oversight

The administration criticized the conference bill as allowing excessive congressional interference in essentially administrative matters. The Act provides, in the first place, that whenever the Secretary of the Interior decides to sell a tract of more than 2500 acres²⁷ or make a withdrawal of more than 5000 acres,²⁸ he must notify Congress, which can override his decision if both Houses disapprove. Representative Mink (D-Haw.) had urged, to no avail, a much higher threshold for withdrawals, arguing that a congressional override power could subject environmentally-protective decisions to intensive lobbying from mining interests. In an effort to denigrate lobbying pressures, the conferees rejected the House's proposal that would have allowed either House to override, in favor of requiring both Houses to reject a withdrawal decision.

Secondly, the two-house congressional override is available for Secretarial management decisions that exclude for two or more years a tract of 100,000 acres or more from one or more "principal or major uses,"²⁹ which are defined as domestic livestock grazing, fish and wildlife development and utilization, mineral exploration and production, rights-of-way, outdoor recreation, and timber production.³⁰ Thirdly, the Secretary may not make or modify a withdrawal created or which can be created by an Act of Congress, by the establishment of national monuments or additions to the National Wildlife Refuge System.³¹ The final new provision for congressional oversight into BLM's activities is that the appointment of its Director is subject to the advice and consent of the Senate.³²

Clearly, decisions on sales and withdrawals of public lands will become more openly politicized. Congress as a whole can never have the familiarity and experience with public lands management that would exist in a highly professionalized BLM. Nonetheless, Congress has in essence elected to let itself be led, as is the case in other technical areas, by a few members with specialized knowledge of public and management. On the other hand, bringing public lands decisions into the glare of an open forum will at the very least result in a more informed public. But in any case, congressional managerial excesses will be tempered by the disapproval mechanism, which is more removed from day-to-day BLM decisions than would be a congressional approval power over BLM actions.

Land Use Planning

The new Act requires the Secretary of the Interior not only to prepare and maintain an inventory of public [6 ELR 10244] lands and their resource and other values,³³ but also to develop land use plans for all tracts of public lands regardless of their prior designation.³⁴ These plans are to be coordinated with the land use planning of other federal agencies (particularly the Forest Service) with state and local governments, and with the land resource management programs of Indian tribes. In addition, the plans must observe multiple-use sustained-yield principles,³⁵ give management priority to areas of critical environmental concern, consider the relative scarcity of values involved and alternative means to protect those values, and provide for compliance with applicable state and federal pollution control laws.³⁶

Along with congressional oversight, several other provisions affect BLM's authority for "expansion of communities and economic development … which outweigh other public objectives and values, including, but not limited to, recreation and scenic values, which would be served by maintaining such tract in Federal ownership."³⁷ Public participation in the management of public lands is recognized in the new law³⁸ and, as with the Timber Act, there may be greater public participation in the agency decision making than existed in the past. Nonetheless, restrictions, particularly geographic ones, still prevent easy and widespread dissemination of the issues in question. Presumably then, congressional oversight must function as a surrogate for broader public participation. The House bill had provided for a ten-year life for withdrawals but the Senate conferees successfully had this limitation extended to twenty years. In addition, existing exploitative withdrawals, except those administrered by BLM or part of Indian reservations, the national parks, forests or wildlife refuges or those withdrawn for scenic, recreation or wilderness values, were made subject to review within fifteen years. And as with new withdrawals, continued withdrawal was made subject to congressional disapproval.³⁹

Grazing Fees

One of the most controversial issues during debate over the new law was the fee structure for grazing on the public lands. Although these fees have risen during the last few years, the fee charged has been consistently less than fees charged for similar private grazing lands. Prior to the new law, the only statutory direction was that the fees be "reasonable."⁴⁰ The new Act, however, declares the policy that "the United States receive fair market value of the use of public lands and their resources unless otherwise provided for by statute."⁴¹

In addition, Congress found that a substantial amount of the federal range lands were "deteriorating in quality, and that installation of additional range improvements could arrest much of the continuing deterioration and could lead to substantial betterment of forage conditions with resulting benefits to wildlife, watershed protection, and livestock production."⁴² Congress, seemingly in response to the grazing lobby, nevertheless turned its back on this problem after acknowledging it. In the first place, the Act institutes a year-long moratorium against raising the fee. Also, the Secretaries of Agriculture and the Interior are directed to conduct a year-long study to establish a fee "equitable to the United States and to the holders of grazing permits and leases."⁴³ The Secretaries were not directed to aim for a fair market value standard. Instead, they were directed to consider "the costs of production normally associated with domestic livestock grazing in the eleven western states, differences in forage values, and such other factors as may relate to the reasonableness of such fees."⁴⁴

Other Provisions

The Act authorizes rights-of-way for transportation and other public interest systems across all public lands except those designated as wilderness.⁴⁵ Right-of-way grants, however, must contain terms and conditions to, among other things,

minimize damage to scenic and esthetic values and fish and wildlife habitat[,] … require compliance with applicable [state and federal] air and water quality standards … [and] require compliance with State standards for public health and safety, environmental protection, and siting, construction, operation, and maintenance of or for rights-of-way for similar purposes if those standards are more stringent than applicable Federal standards.⁴⁶

BLM also is granted greater enforcement authority than it had in the past, but as much as possible this is to be carried out with "maximum feasible reliance upon local law enforcement officials."⁴⁷ Section 101(2) of the [6 ELR 10245] Senate bill had required "appropriate land reclamation as a condition of use … [for] any person permitted to engage in an extractive or other activity likely to entail significant disturbance to or alteration of the national resource lands," but the bill conferees retreated from this strong position and required only that in "managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands."⁴⁸

Finally, one of the other important provisions of the new law is to bring the vast amount of BLM-managed lands within the orbit of the National Wilderness Preservation System.⁴⁹ Previously, areas to be preserved as wilderness were selected only from the national forests, the national park system and the national wildilfe refuges and game ranges.⁵⁰ Under the new law, the Secretary of the Interior is directed to review "roadless areas of five thousand acres or more and roadless islands of the public lands" as to their suitability for preservation as wilderness.⁵¹ Designations become effective by an act of Congress.⁵²

In the final analysis, Congress' oversight responsibilities will be much greater than merely evaluating sales and withdrawal decisions. Notwithstanding the Act's extensive standards that are intended to guide BLM decision making, Congress expressly removed the courts from any role in reviewing the "adequacy" of reports submitted to Congress.⁵³ It will thus be incumbent upon Congress to review these BLM recommendations very carefully. Moreover, this action of Congress, in removing judicial review from the "adequacy" of reports submitted to Congress referring to the reports on public lands withdrawals and sales, could be the subject of early litigation. If Congress intended to preclude judicial review of BLM decisions, of which the reports would represent the essential record, it is not certain that this is the proper method.⁵⁴ As with so much in the two new public lands laws, time will tell whether the directions taken by Congress were the wisest.

1. 16 U.S.C. §§ 1601-10, ELR 41441-42.

2. The policy created by § 1 of the Multiple-Use Sustained-Yield Act is that "the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C. § 528, ELR 41406. The key terms are defined in § 4 of the Act as follows:

(a) "Multiple use" means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.

(b) "Sustained yield of the several products and services" means the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.

16 U.S.C. § 531(a), (b).

3. Land management plans are called for under § 5 of the Forest and Rangeland Renewable Resources Planning Act, 16 U.S.C. § 1604. In developing and maintaining the plans for use on units of the National Forest System, the Secretary "shall use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences."

4. Clearcutting is a tree-harvesting method used to produce even-aged management of the three resource. It involves cutting most of the trees in a given area for the purpose of regenerating the area by a new stand of trees. While this method represents a short-term high yield of timber, it denudes the landscape. On the other hand, the subsequent tree crop is consistent in terms of age. Clearcutting is the management parallel to the natural processes of area-wide destruction such as forest fires. Clearcutting has been used for many years in European forest management and in the softwood forests of some parts of the American west.

5. West Virginia Div. of the Izaak Walton League of America, Inc. v. Butz, 522 F.2d 945, 5 ELR 20573 (4th Cir. 1975); Zieski v. Butz, 406 F. Supp. 258, 6 ELR 20129 (D. Alas. 1975).

6. 16 U.S.C. §§ 475-82, ELR 41405.

7. See P. Rep. No. 893, 94th Cong., 2d Sess. 44-53 (1976).

8. In Izaak Walton, Judge Field, speaking for the Fourth Circuit, said:

We are not insensitive to the fact that our reading of the Organic Act will have serious and far-reaching consequences, and it may well be that this legislation enacted over 75 years ago is an anachronism which no longer serves the public interest. However, the appropriate forum to resolve this complex issue is not the courts but the Congress.

522 F.2d at 955, 5 ELR at 20577.

Judge Van der Heydt in the District of Alaska said that the interpretation of the Organic Act in Izaak Walton "is found to be correct although it may not coincide with the concept of the Forest Service as to sound timber management. That matter, however, is for Congress rather than the courts to decide." 406 F. Supp. at 259, 6 ELR at 20130.

9. National Forest Management Act of 1976 (hereinafter the "Forest Act") § 13.

10. Section 6 of the Forest Act amends redesignated § 6 of the Forest and Rangeland Renewable Resources Planning Act [hereinafter called the "RPA"] by adding subsection (g)(3)(E)(iv).

11. Section 6 of the Forest Act amends redesignated § 6 of the RPA by adding subsection (g)(3)(F)(i).

12. Section 6 of the Forest Act amends redesignated § 6 of the RPA by adding subsection (g)(3)(F)(iii)-(v).

13. Section 6 of the Forest Act amends redesignated § 6 of the RPA by adding subsection (g)(3)(F)(ii).

14. See Zaelke, Controlling Forest Service Discretion under the Multiple Use Act, 3 ELR 50017 (1973); Hall, The Myth and Reality of Multiple Use Management, 3 Nat. Res. J. 276 (1963); Reich, The Public and the Nation's Forests, 50 Calif. L. Rev. 381 (1962).

15. See Minnesota Public Interest Research Group v. Butz, 6 ELR 20736 (8th Cir. Aug. 30, 1976); Trout Unlimited v. Morton, 509 F.2d 1276, 5 ELR 20151 (9th Cir. 1974); Lathan v. Volpe, 506 F.2d 677, 4 ELR 20802 (9th Cir. 1974); Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972); Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971). The importance of substantive judicial review of agency decision making based on NEPA-mandated environmental considerations may fade because of footnote 21 in the recent Supreme Court decision in Kleppe v. Sierra Club, __ U.S. __, __ n. 21, 6 ELR 20532, 20537 n. 21. Footnote 21 says:

Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions. See Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 481 (CA2 1971), cert. denied, 407 U.S. 926 (1972). The only role for a court is to insure that the agency has taken a "hard look" at environmental consequences: it cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken." Natural Resources Defense Council v. Morton, 458 F.2d 827, 838, 418 U.S. App. D.C. 5, 16 (1972).

16. Section 6 of the Forest Act amends redesignated § 6 of the RPA by adding subsection (g)(3)(E)(i)-(iii).

17. Section 6 of the Forest Act amends redesignated § 6 of the RPA by adding subsection (g)(3)(A)-(B).

18. Section 6 of the Forest Act amends redesignated § 6 of the RPA by adding subsection (g)(3)(C).

19. Section 6 of the Forest Act amends redesignated § 6 of the RPA by adding subsection (k).

20. The Senate bill, S. 3091, sought to amend the Forest and Rangeland Renewable Resources Planning Act so that when land management plans were prepared, the plan would "identify the relative productivity of land for timber production and assure that timber production is not a management goal on lands where the estimated cost of production will exceed estimated economic return." See S. Rep. No. 893, 94th Cong., 2d Sess., 3, 66-67 (1976).

21. Forest Act § 4.

22. Forest Act § 18, amending 16 U.S.C. § 576(b).

23. The new law directs that not only must there be public hearings but that the Secretary of Agriculture, in planning and managing the National Forest System, must "establish and consult [pursuant to the Federal Advisory Committee Act, 86 Stat. 770] such advisory boards as he deems necessary to secure full information and advice on the execution of his responsibilities. The membership of such boards shall be representative of a cross section of groups interested in the planning for and management of the National Forest System and the various types of use and enjoyment of the lands thereof." Forest Act § 11. While in theory a good idea, the federal advisory committees do not often live up to their promise; they can be either ignored or their membership over-balanced to one viewpoint. See generally Perritt & Wilkinson, Open Advisory Committees and the Political Process: The Federal Advisory Committee Act after Two Years, 63 GEO. L.J. 725 (1975).

24. The plans must be made available to the public "at convenient locations in the vicinity of the affected unit." Section 6 of the Forest Act amends redesignated § 6 of the RPA by adding subsection (d). This clearly may raise a problem because interested parties will not only be those living near the particular national forests but those living at a distance without easy access to study the plans. This could mean that national environmental protection groups would be at a distinct disadvantage in challenging Forest Service plans within the time available. See generally Note, Managing Federal Lands: Replacing the Multiple Use System, 82 Yale L.J. 787, 790-95 (1973).

25. Section 6 of the Forest Act amends redesignated § 6 of the RPA by adding subsection (h)(1).

26. The bill that was submitted for the President's signature was S. 507.

27. § 203(c).

28. § 204(c). Section 103(j) provides:

Withdrawal means withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purposes of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program.

Historically, withdrawals have been made to protect wilderness and scenic values and to prevent mining or grazing activities.

29. § 202(e)(2).

30. § 103(l).

31. § 204(j).

32. § 301(a).

33. § 201.

34. § 202(a).

35. These two terms are defined in §§ 103(c) and (h) of the new Act and are similar to the same terms defined, for management purposes for the national forests, in the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528, 531, ELR 41406. See note 2 supra.

36. § 202(b).

37. § 203(a)(3).

38. Public involvement must include notice and opportunity to comment by federal, state and local governments and the general public, meetings near the affected lands, and the use of advisory committees. See §§ 103(d), 202(f) and 309.

39. § 204(l).

40. 43 U.S.C. § 315b.

41. § 102(a)(9).

42. § 401(b)(1).

43. § 401(a).

44. Id. (emphasis added). H.R. 13777 had originally used a formula based, among other things, on the price of beef and the type of forage land involved. In the new law, money received as fees for grazing on public lands is to be used for "on-the-ground range rehabilitation, protection, and improvements … including, but not limited to, seeding and reseeding, fence construction, weed control, water development, and fish and wildlife habitat enhancement as the respective Secretary may direct after consultation with user representatives." § 401(b)(1). As a peripheral comment, however, it would be hard to imagine "user representatives" agreeing to "wildlife habitat enhancement" where the wildlife is in competition with domestic livestock for forage, and where wildlife might depredate livestock herds.

45. § 501(a).

46. § 505(a).

47. § 303(c)(1). Also, the extent of state responsibility for the management of fish and wildlife on federal public lands remains the same. § 302(b).

48. Id. See also § 603(c) which adds the prevention of unnecessary degradation of the lands' resources and requiring environmental protection "in managing the public lands." By the context, however, this presumably refers just to public lands under review for inclusion in the Wilderness System.

49. 16 U.S.C. §§ 1131-36, ELR 41412.

50. 16 U.S.C. § 1132.

51. § 603(a). Under the Wilderness Act, a "wilderness" is:

an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain … an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

16 U.S.C. § 1131(c).

52. § 603(b).

53. § 701(h).

54. Judicial review of final agency action is available pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706. One is reminded of § 203(d) of the 1973 amendments to the Mineral Leasing Act of 1920, P.L. 93-153, wherein "the actions of the Federal officers concerning the issuance of the necessary rights-of-way, permits, leases, and other authorizations for construction and initial operation at full capacity [of the Trans-Alaska Pipeline System] shall not be subject to judicial review under any law…." 43 U.S.C. § 1652(d), ELR 41429. In addition, the Alaska Natural Gas Transportation Act of 1976, S. 3521, which was cleared for the President's signature on the last day of the 94th Congress, contains in $10 very specific limitations on the right to judicial review of action authorized.