Federal Court Rejects Wilderness Protection Policies In Energy-Rich Rocky Mountain Overthrust Belt

The principal statutes governing the administration of the federal lands¹ contain a mandate for multiple purpose management that conflicts with efforts by the Forest Service and the Bureau of Land Management (BLM), operating under a variety of statutory directives, to identify and protect lands under review for wilderness classification. The Forest Service, pursuant to the Wilderness Act,² and BLM, pursuant to the Federal Land Policy and Management Act (FLPMA),³ are directed to review wilderness-potential lands under their jurisdiction for possible inclusion in the National Wilderness Preservation System and, during those reviews, to protect the lands against environmental degradation. Simultaneously, however, both agencies are requiredto continue managing these lands according to multiple-use principles, cognizant of oft-repeated congressional statements of policy encouraging the development of energy resources.

In order to carry out the wilderness reviews the Departments of Agriculture and the Interior have developed management policies that, since they are designed to preserve wilderness values, have placed constraints on oil and gas leasing activities. As a result, several hundred oil and gas lease applications remain pending on nearly one million acres of national forest lands in the Idaho-Wyoming-Montana portions of the Western Overthrust Belt,⁴ and oil and gas leases covering close to one-fifth of the 23 million acres of BLM-managed wilderness study areas (WSAs)⁵ are encumbered by environmental restrictions. Mounting pressure to tap the potentially huge energy deposits in this region has been on a collision course with the Carter Administration's strong support for protecting the lands' wilderness potential, and the conflict predictably has spilled over into the courts.

Two recent decisions by the federal district court in Wyoming, in which plaintiffs challenged the two agencies' management policies, have brought a resolution of sorts. In Mountain States Legal Foundation v. Andrus,⁶ the court ruled that delay by the Secretaries of Agriculture and the Interior in ruling on oil and gas lease applications in national forest "further study areas"⁷ amounted to a de facto withdrawal of these lands from mineral development without prior approval of Congress, thus violating FLPMA. In Rocky Mountain Oil and Gas Association v. Andrus,⁸ the court vacated an opinion of the Solicitor of the Department of the Interior regarding management of BLM's WSAs, finding that the Solicitor's narrow interpretation of $603 of FLPMA inappropriately limited the rights of oil and gas lessees.

Statutory Background

Mineral Leasing Act

The authority of the Secretary of the Interior to permit oil and gas exploration and development on the federal lands derives from § 17 of the Mineral Leasing Act of 1920 (MLA),⁹ which provides that all lands covered by the Act "which are known or believed to contain oil and gas deposits may be leased by the Secretary."¹⁰ Section 17 of the Act has been construed to give the Secretary broad discretion in granting, rejecting, or suspending oil and gas lease applications;¹¹ however, the discretionary authority to issue leases has been limited by various statutes.

Management of National Forest Wilderness Review Areas

The Wilderness Act of 1964¹² established the National Wilderness Preservation System (NWPS). It is to be composed of large tracts of federal lands which are specifically designated by Congress and are administered by the relevant federal agency to preserve their wilderness character.¹³ The Act requires the Secretary of Agriculture to review each "primitive" area in the National Forest System for its suitability for preservation as wilderness and [11 ELR 10022] make recommendations through the President to Congress.¹⁴ To carry out this mandate, the Forest Service initiated the roadless area review and evauation (RARE II)¹⁵ program to identify other roadless, undeveloped areas which could be included in the wilderness system. In January 1979, the Service recommended that 15.5 million acres of national forests be designated as wilderness and that 36.7 million acres be managed under traditional Forest Service principles according to the Multiple-Use Sustained-Yield Act.¹⁶ An additional 10.8 million acres, the subject of the immediate controversy, were recommended for further study to determine their suitability for wilderness designation.

The management of these "further study" areas was based on a policy of cooperation between the Department of the Interior, which has authority over mineral leasing,¹⁷ and the Department of Agriculture, which has authority over surface land management in the national forests. Upon receipt of an application for an oil and gas lease in national forest lands included in the RARE process, the Interior Department refers it to the Forest Service for review. Consistent with its policy of preserving the wilderness attributes of these areas until Congress determines their fate, the Service usually recommends either denial of the application or the additional of lease stipulations to protect wilderness values. The consequence of this cooperative leasing approach is that mineral exploration in further study areas is to be conducted in such a way that the option of ultimately designating the land as wilderness is retained.

Management of BLM "WSAs"

FLPMA also contains a provision requiring a wilderness review of BLM lands. It directs the Secretary of the Interior to inventory all public lands¹⁸ and review roadless areas of 5,000 acres or more having wilderness characteristics for possible inclusion in the NWPS.¹⁹ As a result of the review, BLM released 149.3 million acres from further wilderness review and retained 23.8 million acres as WSAs.²⁰ During the period of review and until Congress acts on wilderness recommendations, § 603(c) requires the Secretary to manage the WSAs in a manner "so as not to impair the suitability of the area[s] for preservation as wilderness."²¹ This strict standard of protection, however, was expressly made subject to a "grandfather" clause permitting "the continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted" on the date of enactment.²² For areas subject to preexisting uses, § 603(c) sets forth a less stringent standard of protection: "the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue degradation of the lands and their resources or to afford environmental protection."²³

To assist the BLM in conducting its wilderness review and in managing WSA's, the Solicitor of the Department of the Interior prepared a legal memorandum interpreting § 603 of FLPMA.²⁴ The opinion states that before oil and gas leasing or other activities are allowed in an identified WSA they must be reviewed to determine whether they will impair the area's suitability for eventual inclusion in the wilderness system or whether they can be modified or conditioned to avoid such impairment. If impairment cannot be avoided, then the action cannot proceed until the wilderness review is complete and Congress has acted on the President's recommendations. An exception to this rule is that § 603(c) exempts certain preexisting activities from the nonimpairment standard by virtue of the grandfather clause.

A crucial question is the extent to which mineral extraction activities are exempt from the nonimpairment standard. Under the Solicitor's interpretation, pre-FLPMA leases that were being developed on the enactment date are exempt from the nonimpairment standard. They remain subject to the less exacting "no undue degradation" requirement. On the other hand, preexisting [11 ELR 10023] leases not actually being worked are subject to the nonimpairment standard if development activity is begun. New leases may be issued only subject to stipulations to prevent operations from impairing the area's suitability for preservation as wilderness.²⁵

Withdrawals Under FLPMA

For decades there has been a sharp controversy between the legislative and executive branches over possession of the authority and responsibility to withdraw lands from operation of the public land laws.²⁶ In FLPMA, Congress enacted major changes from existing case law governing withdrawals. After declaring in § 102(a) its intent that "the Congress exercise its constitutional authority to withdraw … and that Congress delineate the extent to which the Executive may withdraw lands without legislative action,"²⁷ it expressly revoked the implied authority of the executive to make withdrawals.²⁸ Section 204(a) permits the Secretary to "withhold an area from settlement, sale, location, or entry" under the land laws, "for the purpose of limiting activities under those laws in order to maintain other public values … or reserving the area for a particular public purpose,"²⁹ but only in accordance with the provisions of the statute, including notice to Congress.³⁰ Since 1976, then, the Secretary's discretionary authority to withdraw lands has been narrowly circumscribed, although the nature and purposes of withdrawals remain unchanged.

Mountain States v. Andrus

In Mountain States Legal Foundation v. Andrus,³¹ the court was faced with a challenge to the policy of the Departments of the Interior and Agriculture to maintain the wilderness characteristics of "further study" RARE II areas. Mountain States Legal Foundation, a nonprofit public interest law firm representing oil and gas lease applicants in the Rocky Mountain region of the Western Overthrust Belt, claimed that the cooperative policy of the two departments to defer acting to the applications acted as a withdrawal of the lands in violation of § 204 of FLPMA. As a result of the defendants' inaction, plaintiffs asserted, they had been denied the right to develop oil and gas deposits, in violation of congressional policy to encourage energy development on federal lands.

The court agreed with plaintiff that the combined actions of the Departments of the Interior and Agriculture "fit squarely within [FLPMA's] definition of withdrawal";³² the actions were found to have effectively withheld faderal land from oil and gas leasing and the operation of the MLA in order to "reserv[e] the area for a particular public purpose" of protecting wilderness values. However, § 204 of FLPMA requires that such withdrawals be made only in compliance with specified procedural requirements, such as the giving of notice and an explanation of the withdrawal to Congress. Since Congress had not been informed of Interior's "withdrawals," they were held to be illegal.

Although agreeing that the Secretary of the Interior has discretion under the MLA to refuse to issue a lease on a given tract, the court found no basis for the position that Congress intended to give the Secretary the ability to make block withdrawals involving such large scale geographic areas and extended periods of years. Moreover, the court questioned the Secretary's authority to withhold lands from mineral exploration and development based solely on the desire for wilderness preservation without considerations of mineral potential. Noting that statutorily granted discretionary authority can nonetheless be exceeded, the court rules that the Secretary's refusal to issue leases on further study lands clashed with the policies of the federal land management laws and therefore constituted an abuse of discretion. Among these policies were those expressed in the Wilderness Act, the MLA, the Multiple-Use Sustained-Yield Act, and the Mining and Mineral Policies Act,³³ all of which require the public lands to be managed in a manner which recognizes the nation's need for domestic sources of minerals. Furthermore, one of the central policies of FLPMA is to limit the authority of the Secretary to remove land from operation of the public land laws through the unreviewed use of his discretionary authority. The court also found it pertinent that § 4(d)³⁴ of the Wilderness Act permits mineral exploration and development in designated wilderness areas until the end of 1983, whereas according to the Secretary, lands merely under study for possible wilderness designation must be closed to leasing in the interim. In sum, these factors persuaded the court that the Secretary had plainly misconstrued Congress' intended disposition of further study areas.

Upholding plaintiff's second contention, the court ruled that the defendants had also violated §§ 102(a)(5)³⁵ and 310³⁶ of FLPMA by failing to issue regulations setting forth the basis upon which oil and gas lease applications would be approved, rejected, or suspended, and establishing principles of coordination between the two departments. Relying on the § 102(a)(5) policy calling on the Secretary to establish "comprehensive rules and regulations" for administering the public lands, and the § 310 requirement that both Secretaries promulgate rules and [11 ELR 10024] regulations "to carry out the purposes of [FLPMA] and other laws," the court found no justification for defendants' failure to have promulgated regulatory criteria governing these de facto withdrawals. Indeed, it added, it was precisely this kind of standardless administrative decision making which had no doubt moved Congress to enact limitations on the Secretary's discretion.

Finally, the court flatly rejected the federal government's standing defense. In essence, its position was that since the MLA does not require the Secretary to issue leases and the filing of an application does not create a legal right enforceable in court, plaintiff had suffered no injury to a legally protected right. The court, although agreeing that a lease applicant acquires no vested property interest by merely filing an application, found that an applicant does have the right to have the agency at least process the application. Administrative delay in this instance has the same effect as a denial and thus is ripe for judicial review under the Administrative Procedure Act.³⁷

The court thus ordered the Secretary of the Interior to report the withdrawals to Congress within 20 days or cease withholding lands from oil and gas leasing, exploration, and development.³⁸ The Secretaries were also ordered to issue rules and regulations governing the policies of the two departments for evaluating oil and gas lease applications.

RMOGA v. Andrus

The Rocky Mountain Oil and Gas Association (RMOGA), a trade association of 650 member companies engaged in oil and gas production in the Rocky Mountain states, challenged the legal opinion of the Solicitor of the Department of the Interior³⁹ interpreting § 603 of FLPMA.⁴⁰ RMOGA argued that the Solicitor had incorrectly concluded that mineral development activities which would impair the suitability of an area for preservation as wilderness could not be permitted in a WSA. It claimed that through application of the "no undue degradation" standard to pre-FLPMA leases and the "nonimpairment" standard to subsequent leases in WSAs, the Department had in effect transformed them into "shell leases" virtually without value.

After determining that the case was ripe for review,⁴¹ the court vacated the Solicitor's opinion. The court's decision turned on the meaning of the grandfather clause, which provides that all WSAs that would otherwise be entitled to "nonimpairment" protection are nevertheless subject to the "continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on [October 21, 1976] …."⁴² As shown by its use of the term "mineral leasing," the court concluded, Congress had intended leasing to continue in the same "manner and degree," not just the continuation of activity on leases already existng on October 21, 1976. In other words, Congress did not merely intend activities under pre-FLPMA leases to continue in the same "manner and degree" (i.e., free of the duty to prevent impairment of wilderness values); it also intended that new leases continue to be issued subject to identical environmental stipulations. This meant that Interior had illegally imposed strict "nonimpairment" stipulations on post-FLPMA leases.

There remained the question of whether the Interior Department had also applied overly stringent environmental sateguards to pre-FLPMA leases under the rubric of the "nonimpairment" standard. Though conceding that this standard of protection is "relatively stringent," the court stated that close heed must be paid to the prodevelopmental as well as the pro-environmental policies expressed in the various land use statutes:

One policy should not suffer for the benefit of another. Compromises must be worked out. The Solicitor's opinion leaves no room for compromise.Mineral development is completely and totally sacrificed for environmental concerns. Such a policy is statutorily erroneous ….⁴³

Substantiation for this conclusion was derived from § 701(a) of the Act, which provides that

Nothing in this Act … shall be construed as terminating any valid lease … existing on the date of approval of this Act.⁴⁴

The court found that defendants, contrary to their duty to protect existing rights, had in fact blocked the exercise of these rights with the imposition of environmental controls. Thus, they had affected an unconstitutional taking of these rights by transforming valuable leases into worthless shells.

Finally, the court pointed out that while § 603(c) of FLPMA requires that designated wilderness areas be administered under the Wilderness Act, the latter Act provides that wilderness areas shall be left open to mineral leasing until 1984. Citing Mountain States, the court concluded that BLM could not rely on FLPMA to impose a stricter standard on study areas than the Wilderness Act requires for wilderness. The court characterized the defendants' actions and legal arguments to the contrary as "ludicrous," "anomalous," "arbitrary and capricious," "blatantly unfair," and "counterproductive to [the] public interest."⁴⁵

[11 ELR 10025]

Discussion

An appropriate starting point for a determination of the proper management of areas under study for possible wilderness designation may be the definition of the term in the Wilderness Act as

[A]n area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions ….⁴⁶

The generally strict application of this definition in identifying lands for the RARE II process doubtless benefited development interests because it greatly limited the number of areas which could be considered for wilderness designation. However, the application of strict management policies designed to protect these study areas has acted to restrict development.Congress chose to ease such hindrances by specifically permitting mineral activities to continue in wilderness areas until 1984. The Mountain States court was thus on solid ground in disapproving of the policy of the Departments of the Interior and Agriculture to delay issuing leases until wilderness designations have been made on study areas in which they are located. If Congress had meant to place a freeze on wilderness impairment it probably would have done so explicitly.

With respect to RMOGA v. Andrus, however, the same conclusion does not necessarily hold. The court found illegal the Secretary's limits on mineral leasing in WSAs, while the Wilderness Act itself permits leasing until 1984. However, under § 603 of FLPMA the Wilderness Act does not apply to BLM lands until after they have been designated as wilderness. Prior to designation, BLM-managed WSAs are to be managed under either the nonimpairment or the unnecessary and undue degradation standard, statutory safeguards not provided for RARE II lands.

It is at least conceivable that in 1964 Congress intended candidate wilderness lands to be open for entry until designation, whereas in 1976, after reconsidering the wisdom of this scheme as applied to BLM lands (which has a history of serious abuse and under-protection), it chose to adopt standards of protection pending wilderness review. Due consideration should also be given to the fact that Congress gave the Department of the Interior until 1991 to make wilderness recommendations, long after mineral development is halted on designated wilderness areas.⁴⁷ The court's parroting of the Mountain States holding is thus less than satisfying.

Although it appears that the Mountain States court correctly ruled that the leasing delays violate the MLA and the Wilderness Act, its conclusion that the Secretary's inaction amounts to a withdrawal under FLPMA is not so easily defended. Admittedly, Congress intended in FLPMA to circumscribe the executive withdrawal authority and to clarify Congress' supervisory role, but, as expressed in the legislative history, it did not intend to change the traditional purposes for a "withdrawal."⁴⁸ Withdrawals have traditionally been used as a protective mechanism, most notably to protect environmentally sensitive areas from abuses under the Mining Act of 1872, under which the Secretary has little statutory control over mining entries.⁴⁹ However, withdrawals are generally deemed unnecessary to protect environmentally sensitive areas from mineral leasing since the Mineral Leasing Act of 1920 has been consistently construed as leaving to the Secretary wide discretion in denying leases.⁵⁰ Thus, when the Secretary has ordered, pursuant to his discretionary authority under the MLA, that large areas of federal land shall be closed to mineral leasing, it has not been construed as a withdrawal.⁵¹

If, in FLPMA, Congress intended not only to limit the Secretary's discretion to make traditional withdrawals but to control a wide class of additional barriers to resource development on federal lands, then the court in Mountain States would have strong support for its conclusion that Interior's moratorium on leasing constituted a "withdrawal." However, that appears not to have been the case. While the Act does establish exacting procedures for making withdrawals, it appears to limit the reach of those requirements to the traditional form of withdrawal.⁵² Evidently it did not intend to prevent the Secretary from denying oil and gas lease applications on [11 ELR 10026] traditional grounds. The Mountain States court, apparently unaware of or unconcerned with these subtleties, ruled the effect of the moratorium was to "withdraw" the further study areas from development. This does not necessarily lead to the conclusion, however, that the Secretary was obligated to comply with the procedures applicable to withdrawals under § 204 of FLPMA.

The one aspect of the RMOGA controversy that all parties agree on is that Congress' mandate in § 603(c) is ambiguous. Both the court and the Solicitor of the Department of the Interior wrestled with the interpretation of FLPMA's provision allowing for the "continuation of … mineral leasing in the manner and degree in which [it] was being conducted" at enactment. The Solicitor concluded that Congress intended to allow continuing activity under particular mineral leases rather than a continuing practice of issuing new mineral leases.⁵³ Thus, any new leasing activities are subject to the "nonimpairment" standard, while existing activities are subject to the more relaxed "undue degradation" standard. The legislative history appears to support this position.⁵⁴ The court, on the other hand, would construe the provision to mean mineral leasing was intended to be continued. The result is to bar the application of the "nonimpairment" standard to any leases, old or new. As noted above, the court found support for the ruling in the §§ 701(a) and 701(h) directives to preserve "existing rights." What the court overlooked, however, is that under its interpretation of § 603(c), all leases are subject to the same standard of protection. No category of leases are left subject to the "nonimpairment" standard. This conclusion is undercut by the existence of § 302(b),⁵⁵ which provides an undue degradation standard to all the public lands.

Thorny issues of standing and ripeness plagued the court in both Mountain States and RMOGA and may have influenced its view of the merits. Defendants' contention in Mountain States, that mere lease applicants can have no standing to seek judicial review because they have not yet suffered injury to a legally protected right, was easily refuted by the court. The Administrative Procedure Act clearly provides that administrative inaction may not be used to prevent judicial review and at some point must be deemed a denial of an application. The situation in RMOGA offers slightly more support for the federal government's argument that the organizational plaintiff did not have standing to contest the legality of the Solicitor's opinion and that only individual lessees had standing to challenge particular leasing restrictions. During the RMOGA action, many of the so-called "shell" leases issued in the BLM-managed WSAs were bought and sold by lessees, and as areas were dropped from wilderness study status, wilderness protection stipulations vaporized and leases became full functional.⁵⁶ Thus, because of the unique situation that may apply to each lease, it may have been more appropriate to treat each lease separately and proceed through the administrative process and then the courts. On the other hand, in the interests of judicial economy, it was not unreasonable to resolve those issues common to many of the leases. The conclusion by the court that the Solicitor's opinion and resulting Interim Management Guidelines are "final agency action" subject to judicial review merits reconsideration by the Tenth Circuit.⁵⁷

Conclusion

The court's rejection in Mountain States of the management policies of the Departments of the Interior and Agriculture may have far-reaching impacts on the management of areas under study for wilderness designation. At a minimum, there is certain to be an increase in oil and gas exploration and development in RARE II areas in the Idaho-Wyoming-Montana portions of the Western Overthrust Belt. As a result of the decisions, the two agencies are developing regulations setting forth guidelines for issuing leases generally and in RARE II areas.⁵⁸ In addition, the Department of Agriculture has set a schedule for making recommendations on the pending lease applications, which the Department of the Interior intends to process promptly as recommendations are received.

The Mountain States decision, and the Department of the Interior's decision not to appeal it, leaves some question as to when secretarial inaction on a lease application amounts to a withdrawal under § 204 of FLPMA. The court held that a general policy of inaction is a de facto withdrawal but did not hold that the rejection of specific lease applications would be a withdrawal. The question remains as to how long must a lease be suspended before it becomes a withdrawal. The effect of the decision is to unsettle the law relating to withdrawals and to reduce the Secretary's statutory discretion over leasing. Any future delays in issuing leases or taking any other discretionary action are now wide open to judicial challenge.

The discussion of § 603 in RMOGA makes at least an effort to clear the ambiguity inherent in that provision's grandfather clause, though it leads to the questionable conclusion that pre-FLPMA and post-FLPMA leases must be subject to an identical nondegradation standard. The very existence of § 603 establishes Congress' intention to treat activities in WSAs differently depending on their date of commencement. Further construction of this language is needed and can be expected.

The concept of wilderness preservation is inherently irreconcilable with many of the uses contemplated for public lands under the federal land management laws. The difficulties experienced by the court and the management [11 ELR 10027] agencies in administering the wilderness review lands are attributable in large part to Congress' failure to resolve clearly the intended balance between wilderness protection and resource development. Although mineral resource development is a recognized public policy, it is not the sole policy of the multiple-use public land statutes. Further, wilderness preservation is clearly established in the Wilderness Act and FLPMA as an important objective, sometimes more important than other public land management goals. The decision to permit oil and gas exploration and development to override other uses of the public lands mirrors the escalating public demand for new supplies of energy. On the other hand, it may limit Congress' options when designating wilderness areas and certainly reduces the Secretary of the Interior's discretionary authority over oil and gas leasing.

1. The Multiple-Use Sustained-Yield Act, 16 U.S.C. §§ 528-531, ELR STAT. & REG. 41406, governs the management of the national forests, and the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-1782, ELR STAT. & REG. 41458, governs the management of lands under the jurisdiction of the Bureau of Land Management.

2. 16 U.S.C. §§ 1131-1136, ELR STAT. & REG. 41412.

3. 43 U.S.C. §§ 1701-1782, ELR STAT. & REG. 41458.

4. The Western Overthrust Belt is a geologic formation extending from Alaska into Mexico that geologists consider to have considerable potential for oil and gas production. The portions of the Overthrust Belt at issue herein are estimated to contain as much as 25 billion barrels of oil and 175 trillion cubic feet of natural gas.

5. The term "wilderness study area" refers to those lands currently under review by the Bureau of Land Management for possible inclusion in the National Wilderness Preservation System.

6. 499 F. Supp. 383, 11 ELR 20044 (D. Wyo. Oct. 14, 1980). James Watt, prior to his recent appointment as Secretary of the Interior, was president and chief counsel for the plaintiff, Mountain States Legal Foundation.

7. The term "further study area" refers to those lands currently under review by the Forest Service for possible inclusion in the National Wilderness Preservation System.

8. 500 F. Supp. 1338, 11 ELR 20036 (D. Wyo. Nov. 7, 1980).

9. 30 U.S.C. § 226.

10. Id. § 226(a).

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

12. Supra note 2.

13. The Wilderness Act defines "wilderness" as:

(c) A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as 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 wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as 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), ELR STAT. & REG. 41412.

14. The Act also required the Secretary of the Interior to review roadless areas of five thousand acres or more in the national parks, monuments, and national wildlife refuges, and make recommendations through the President to Congress within 10 years of the date of enactment. 16 U.S.C. § 1132(c), ELR STAT. & REG. 41413. These lands are not at issue in these cases.

15. Although the Act only provided for a review of "primitive" areas, 16 U.S.C. § 1132(b), ELR STAT. & REG. 41412, the Secretary of Agriculture directed the Forest Service to inventory all national forest lands to identify other areas suitable for inclusion in the system. The first roadless area review (RARE I) began in 1967 and ended in 1973. A second review (RARE II) was instituted in 1977 and resulted in recommendations to Congress in 1979. The review generated considerable controversy and some litigation. See Sierra Club v. Butz, No. C-72-1455, 3 ELR 20071 (N.D. Cal. 1972); California v. Bergland, 483 F. Supp. 465, 10 ELR 20098 (E.D. Cal. Jan. 8, 1980). See also Comment, Wilderness in the National Forests: California Court Finds RARE II NEPA Violations, Congress Ponders 'Release,' 10 ELR 10096 (1980).

16. 16 U.S.C. §§ 528-531, ELR STAT. & REG. 41406. In that Act Congress stated specific uses for which the national forests had been established: "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." Id. at § 528, ELR STAT. & REG. 41406.

17. See note 9, supra.

18. Section 103 of FLPMA defines "public lands" as those lands administered by the Secretary of the Interior through the Bureau of Land Management. 43 U.S.C. § 1702(e), ELR STAT. & REG. 41459.

19. Sections 201(a) and 603(a), 43 U.S.C. §§ 1711(a) and 1782(a), ELR STAT. & REG. 41461, 41475.

20. 45 Fed. Reg. 75574 (Nov. 14, 1980). The Secretary has until 1991 to review the lands and make recommendations to the President, who has two additional years to make recommendations to Congress. As with the Wilderness Act, only Congress can designate lands for inclusion in the Wilderness System. Section 603(a), 43 U.S.C. § 1782(a), ELR STAT. & REG. 41475.

21. 43 U.S.C. § 1782(c), ELR STAT. & REG. 41475.

22. Id. The date of enactment was October 21, 1976.

23. Id. (Emphasis added.) This standard is less stringent because it does not require wilderness character to be retained. See also § 302(b), 43 U.S.C. § 1732(b), ELR STAT. & REG. 41466, which requires the Secretary to manage all public lands "to prevent unnecessary or undue degradation," unless other provisions are applicable. Once Congress designates an area for preservation as wilderness, the provisions of the Wilderness Act govern. Lands not so designated revert to multiple use management under FLPMA. FLPMA § 603(c), 43 U.S.C. § 1782(c), ELR STAT. & REG. 41475.

24. Solicitor's Opinion No. M-36910 (Sept. 5, 1978): Interpretation of Section 603 of the Federal Land Policy and Management Act of 1975 — Bureau of Land Management (BLM) Wilderness Study, 86 I.D. 89 (1979).

25. FLPMA also provides, in §§ 701(a) and (h), set out as a note under 43 U.S.C. § 1701, ELR STAT. & REG. 41459, that no section of the Act shall terminate any valid existing lease, and all secretarial actions are subject to valid existing rights.

26. The controversy concerned the executive power to withdraw lands without express congressional authority. In United States v. Midwest Oil Co., 236 U.S. 459 (1915), the Supreme Court, faced with President Taft's withdrawal of three million acres from location under the Mining Act of 1872, concluded that Congress has affirmed the executive's authority to withdraw lands because of a long practice of congressional acquiescense. See also Wheatley, Withdrawals Under the Federal Land Policy and Management Act of 1976, 21 ARIZ. L. REV. 311 (1979).

27. 43 U.S.C. § 1701(a)(4), ELR STAT. & REG. 41459.

28. FLPMA § 704(a), ELR STAT. & REG. 41478. This section also expressly repeals the decision in United States v. Midwest Oil Co., supra note 26.

29. 43 U.S.C. § 1714(a), ELR STAT. & REG. 41462.

30. Id.

31. 499 F. Supp. 383, 11 ELR 20044 (D. Wyo. Oct. 14, 1980).

32. 499 F. Supp. at 391, 11 ELR at 20047.

33. 30 U.S.C. § 21(a).

34. 16 U.S.C. § 1133(d)(3), ELR STAT. & REG. 41414. The section also requires that mineral leases contain reasonable stipulations to protect the wilderness character of the land.

35. 43 U.S.C. § 1701(a)(5), ELR STAT. & REG. 41459.

36. 43 U.S.C. § 1740, ELR STAT. & REG. 41467.

37. 5 U.S.C. §§ 555(b), 706, ELR STAT. & REG. 41003, 41005.

38. The court noted that its decision does not require the Secretary of the Interior to accept, reject, or even take action on the the outstanding oil and gas leases. 499 F. Supp. at 397, 11 ELR at 20050-20051.

39. See note 24, supra.

40. 43 U.S.C. § 1782, ELR STAT. & REG. 41475. The lawsuit also involved BLM's Wilderness Inventory Handbook, 43 Fed. Reg. 43772 (Sept. 27, 1978) and Interim Management Policy Handbook, published as proposed in 44 Fed. Reg. 2694 (Jan. 12, 1979).

41. Following the Supreme Court's analysis in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), the court ruled that (1) the disagreement over the proper interpretation of § 603 represented a purely legal question, (2) plaintiff's members held leases on the affected lands and had suffered real hardship, and (3) the Solicitor's opinion and subsequent guidelines were "final agency action" within the meaning of the Administrative Procedure Act, 5 U.S.C. § 704, ELR STAT. & REG. 41005, because they were statements of "law and policy."

42. 43 U.S.C. § 1782(c), ELR STAT. & REG. 41475.

43. 500 F. Supp. at 1344, 11 ELR at 20039.

44. FLPMA § 701(a), set out as a note under 43 U.S.C. § 1701, ELR STAT. & REG. 41459. In addition, § 701(h) requires that "all actions by the Secretary concerned under this Act shall be subject to valid existing rights." Id.

45. 500 F. Supp. at 1344-47, 11 ELR at 20039-20040.

46. 16 U.S.C. § 1131(c), ELR STAT. & REG. 41412.

47. 43 U.S.C. § 1782(a), ELR STAT. & REG. 41475. It is worth noting that although the court finds fault with the inclusion of wilderness protection stipulations in post-FLPMA leases, the Wilderness Act itself mandates that stipulations be included to protect wilderness characteristics. 16 U.S.C. § 1133(d)(3), ELR STAT. & REG. 41414.

48. H.R. REP. NO. 1163, 94th Cong., 2d Sess. 5, 41, 44 (1976).

49. CONG. REC. H. 7583 (JULY 22, 1976).

50. See note 11, supra.

51. In Udall v. Tallman, 380 U.S. 1 (1965), the Supreme Court upheld the Secretary's directive placing a moratorium on processing oil and gas lease applications for lands in wildlife refuges. The Court noted that a moratorium on issuance of leases did not fit within the definition of "withdrawal," and held that the action was permissible as an instance of the Secretary's "overriding discretionary authority to refuse to issue" oil and gas leases. Id. at 19 and 20. More recently, in Rowe v. United States, 464 F. Supp. 1060 (D. Alaska 1979), aff'd 633 F.2d 799 (9th Cir. 1980), the court rejected plaintiffs' argument that a suspension on processing lease applications in the North Slope was invalid because it was not accomplished in compliance with the formal withdrawal requirements.

[T]o hold otherwise would be equivalent to declaring that unless the Secretary accepts or rejects lease offers immediately upon receipt thereof, he must issue a public land order announcing a withdrawal of the subject lands. Then, when he is ready to act, he must issue a revocation of the order in the form of another public land order. Given the intent of Congress in the Mineral [Leasing] Act to grant broad discretion to the Secretary on whether or not to lease public lands, I do not agree that Congress intended each such discretionary action to constitute a "Picket Act" action [i.e., a withdrawal].

464 F. Supp. at 1074.

52. FLPMA defines "withdrawal" as "withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities … to maintain other public values in the area or reserving the area for a particular public purpose," 43 U.S.C. § 1702(j), ELR STAT. & REG. 41460, all of which result in a grant of fee title to the entry person. A lease does not pass title. Other FLPMA provisions appear to recognize the distinction between the Secretary's discretionary leasing authority and a withdrawal. Sections 202(e)(3) and 603(c) specifically require a formal withdrawal under § 204 for mining but make no mention of leasing.

53. The Solicitor based this conclusion on the argument that if the Secretary had to issue leases at the same rate and same terms (manner and degree) as had been done prior to enactment, the Secretary's traditional discretionary authority with respect to mineral leasing would be stripped. Solicitor's Opinion, supra note 24, at 29.

54. The Solicitor relied on the House Committee Report, which describes Congress' intent to grandfather "existing … mineral uses" rather than all activities on existing mineral leases. Reference to "existing mineral uses" as well as "appropriation under the mining laws" suggests that activities not leases are grandfathered. Id. at 29-30. See also H. REP. NO. 94-1163, 94th Cong., 2d Sess. 17 (1976).

55. 43 U.S.C. § 1732(b), ELR STAT. & REG. 41466.

56. Rocky Mountain Oil and Gas Association v. Andrus, Civ. No. 78-265-K, Defendant's Brief in Support of Their Cross-Motion for Summary Judgment, Affidavit of Frank Gregg, Director of the Bureau of Land Management, at 6 (Apr. 23, 1980).

57. The RMOGA decision has been appealed to the Tenth Circuit.

58. 46 Fed. Reg. 5772 (Jan. 19, 1981).