Tenth Circuit Approves Interior's Wilderness Protection Policies in Energy-Rich Rocky Mountain Region

F. L. McChesney

Editors' Summary: The Bureau of Land Management is in the process of reviewing 23.8 million acres of its lands for possible wilderness designation. During this review it must manage these wilderness study areas under § 603(c), an ambiguous provision which mandates the application of a strict nonimpairment standard to WSAs but "grandfathers" certain poorly-defined pre-FLPMA activities. In 1978, the Solicitor of the Department of the Interior wrote a legal opinion construing the provision to provide stringent limits on oil and gas leasing in WSAs. In a challenge to this policy, oil and gas interests won an overwhelming victory in district court, but late in 1982, the Tenth Circuit reversed. While better reasoned than the district court's decision, the Tenth Circuit failed to resolve an important issue which troubled the district court: to what extent does § 701(h), which protects "valid existing rights," limit the applicability of the nonimpairment standard. A 1981 Solicitor's opinion, modifying the 1978 opinion's discussion of "valid existing rights" further complicates the question, and will likely lead to more litigation before the issue is resolved.

[13 ELR 10004]

Legislation mandating Forest Service and Bureau of Land Management (BLM) reviews of the vast expanses of public lands they manage for possible wilderness designation expressed a strong congressional commitment to protect "primitive, untrammelled" areas of the public domain. But there has been recurring controversy over how potential wilderness lands should be managed during the lengthy periods of agency study and congressional review. In the haste to protect wilderness areas in the National Forests, the initial legislation, the 1964 Wilderness Act,¹ did not address how such lands were to be managed by the Forest Service prior to final designation by Congress.² The Forest Service completed its Roadless Area Review and Evaluation process (RARE II)³ and the President made wilderness recommendations to Congress in 1979.⁴ But as Congress still struggles with state-by-state bills to designate wilderness based on these recommendations, the Forest Service struggles with the question of how to manage the lands it recommended as nonwilderness. Must it continue to manage these lands to protect their wilderness values or may it release them to multiple-use management? Predictably, a struggle has developed between the proponents of natural resource development in these potentially energy-rich lands and preservationists. The extensive litigation surrounding RARE II⁵ and the introduction of "release"⁶ language in the various wilderness bills are representative of the conflicts.

Congress recognized the management problems concerning potential wilderness when it enacted the 1976 Federal Land Policy and Management Act (FLPMA),⁷ [13 ELR 10005] which directed BLM to conduct a wilderness review of its lands. BLM is now reviewing the 24 million acres of land it has determined to have wilderness potential and must make its final recommendations to the President by 1991, and from the President to Congress by 1993.⁸ In § 603(c) of FLPMA,⁹ Congress specified how BLM is to regulate development activities in these wilderness study areas (WSAs) pending its action on recommended designations. However, the language of § 603(c) is ambiguous. It mandates the application of a strict nonimpairment standard to WSAs, but provides an exemption for certain poorly-defined pre-FLPMA activities. This "grandfather clause" created a host of interpretative problems. In 1978, the Solicitor of the Department of the Interior wrote a legal opinion construing the provision to provide stringent limits on oil and gas lease development in WSAs.

The opinion and its subsequent implementation through BLM regulations were promptly challenged in the Federal District Court for the District of Wyoming by oil and gas development interests. Plaintiffs in Rocky Mountain Oil and Gas Association v. Andrus,¹⁰ won a sweeping victory. The court rejected the Solicitor's interpretation and construed § 603(c)'s grandfather clause to exempt all mineral leasing activities from the nonimpairment standard. However, on November 30, 1982, the Tenth Circuit, in Rocky Mountain Oil and Gas Association v. Watt,¹¹ reversed the district court's decision. It agreed with the Solicitor's interpretation of the nonimpairment standard and the grandfather clause.

However, the appellate ruling is not likely to end the dispute over the meaning of § 603(c). Although better reasoned than the lower court ruling, it does not resolve the question of the interaction between § 603(c) and § 701(h),¹² a FLPMA provision which arguably protects leaseholders from losing the right to develop pre-FLPMA leases, which could result from the Solicitor's interpretation. A 1982 Solicitor's opinion provides a mechanism for resolving the conflict between the two provisions but its status is uncertain in the aftermath of the recent decision and it is likely to lead to further litigation which will prolong the confusion over implementation of the § 603(c) nonimpairment rule.

Background

BLM administers about 448 million acres of federal lands, about one-fifth of the nation's lands. These lands contain some of the richest deposits of oil and gas in North America, particularly in the Idaho-Wyoming-Montana portions of the Western Overthrust Belt.¹³ Since 1973, the beginning of the domestic "energy crisis," oil and gas production in the United States has increased dramatically, and, aside from the outer continental shelf, is most intense on BLM and Forest Service lands in the Rocky Mountain region. Not surprisingly, there is significant pressure to develop potential wilderness areas in this region; oil and gas leases covering close to one-fifth of the 24 million acres of BLM WSAs have been issued.

In 1976, against a background of increasingly intense conflict between the developers and the preservationists, Congress enacted FLPMA. It was intended to be the first comprehensive statement of congressional policies for public lands management¹⁴ and signaled a major shift from a long-standing policy that public lands should be transferred into private ownership, to a policy that they should be retained in federal ownership to be managed as a national resource. In FLPMA, Congress sought to enable public lands managers to accommodate such competing interests as mineral development, timber harvesting, grazing, and the preservation of wilderness. However, the multiple-use principles it establishes are to some extent inconsistent. For example, one of the Act's principles is to "preserve and protect certain public lands in their natural condition"¹⁵ while another is to recognize "the Nation's need for domestic sources of minerals, food, timber, and fiber."¹⁶ However, the Act also suggests a basis for resolving this tension. It states that all lands need not be used for all purposes, but that the public lands as a whole should provide for multiple use. BLM is to make "the most judicious use of the land for some or all of [the] resources" and may use "some land for less than all of the resources."¹⁷

Consistent with this multiple use mandate, Congress directed the Secretary of the Interior to inventory all the public lands¹⁸ and their resources.¹⁹ Then under § 603, BLM is required to review all roadless areas of 5000 or more acres or roadless islands identified during the inventory process as having wilderness characteristics, and within 15 years from the effective date of FLPMA, to recommend to the President which of these roadless areas should be preserved as wilderness under the provisions of the Wilderness Act.²⁰

The inherent inconsistencies in FLPMA's multiple-use [13 ELR 10006] mandate are most apparent in § 603(c), which provides for interim management of the wilderness study areas:

During the period of review of such areas and until Congress has determined otherwise, the Secretary shall continue to manage such lands according to his authority under this Act and other applicable law in a manner so as not to impair the suitability of such areas for preservation as wilderness, subject, however, 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 the date of approval of this Act: Provided, That, in managing the public lands 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….²¹

While it sets a strict management standard to protect wilderness values, it still allows for limited but conflicting resource development and use.

The meaning of this language has proved to be a controversial issue. In an attempt to clarify § 603(c), the Solicitor of the Department of the Interior under President Carter in 1978 issued a legal opinion.²² He explained that the provision sets up two standards for the management of wilderness study areas. Mining and grazing uses and mineral leasing activities existing prior to October 21, 1976, the date of FLPMA's enactment, are to be regulated only to the extent necessary to prevent "unnecessary or undue degradation of the lands and their resources or to afford environmental protection."²³ Uses beginning after October 21, 1976, including development of pre-FLPMA leases which had not been used prior to that date, are subject to a far stricter standard; they must be regulated to the extent necessary to prevent the impairment of the area's wilderness characteristics.

The Department of the Interior implemented § 603 and the Solicitor's interpretation through the Interim Management Policy and Guidelines for Land Under Wilderness Review.²⁴ The policy provides guidance on the application of the nonimpairment standard, the no undue degradation standard, and the "grandfather" provision. Activities that protect or enhance wilderness values or provide the minimum necessary facilities for public enjoyment of wilderness are considered nonimpairing. Other proposed activities satisfy the standard if they meet three "nonimpairment criteria." First, the use must be temporary. Second, the temporary impacts must be capable of being reclaimed "to a condition of being substantially unnoticeable" by the time the Secretary sends wilderness designation recommendations to the President. And third, after reclamation is completed the land should not be so degraded as to constrain the Secretary's wilderness recommendation.²⁵

The grandfathered uses, which are governed by the undue degradation standard rather than the nonimpairment standard, are, under the Solicitor's interpretation, those on-site activities actually taking place as of the date of the passage of FLPMA. The Solicitor found Congress' reference to "mineral leasing" in § 603(c) ambiguous. He noted that one interpretation is that Congress was referring to the entire leasing and development process, including the Secretary's issuance of mineral leases, but concluded that it refers only to actual development operations on the leased land.

The next question the Solicitor considered was the language concerning continuation of activities in the same "manner and degree." He explained that the existing physical and aesthetic impact was the benchmark for determining what activities could continue. Changes in use or in the rate of use that would alter the physical impact of the activity would be subject to the nonimpairment standard, otherwise only the less stringent standard would apply.²⁶

Finally, the Solicitor examined the relationship between § 603(c) and the savings provision, § 701(h), which provides that "[a]ll actions by the Secretary concerned under this Act shall be subject to valid existing rights."²⁷ The Solicitor interpreted this provision to mean that the mineral leases, mining claims, and grazing permits, which grant varying rights, may not be taken, in the constitutional sense, pursuant to § 603.²⁸ To determine if there has been a taking, the Solicitor explained, it is necessary to examine on a case-by-case basis, the nature of the "right" granted. Few leases contain an absolute right to develop, but rather are qualified by specific terms in the lease and by regulations duly adopted by the Secretary. These lease terms and regulations limit the rights of the lessee and, therefore, the protection provided by § 701(h). However, the Solicitor emphasized, the Supreme Court has ruled that even "valid existing rights" may be regulated and to some extent impaired in furtherance of proper government purposes without being considered a "taking" requiring compensation. He concluded, therefore, that such rights may be regulated to carry out § 603's purposes.²⁹

The controversy in RMOGA focused on the Solicitor's interpretation and the question of what management [13 ELR 10007] standard BLM is to apply to mineral leasing activities in WSAs. Several decisions bear on the issue,³⁰ but Utah v. Andrus³¹ is the only other decision to directly interpret the wilderness review provisions of FLPMA. The case involved an attempt by the United States to enjoin construction of a road through a WSA to mining claims on state and federal lands in order to protect the WSA's wilderness characteristics. Plaintiff argued that § 603(c) authorizes only one management standard: no undue degradation, and that all uses must be considered for each parcel of land. The Utah court resolved the inconsistencies inherent in § 603 and other sections of FLPMA by viewing the Act's multiple objectives as applying to all public lands, rather than individual parcels: "BLM is not obliged to, and indeed cannot, reflect all the purposes of FLPMA in each management action."³² Then, considering in detail the Solicitor's interpretation of § 603, it found ample support in the language of the statute and the legislative history for the view that § 603(c) created two management standards. Furthermore, the court found that in order to give meaning to the "manner and degree" language, "existing" uses must refer to actual uses, not merely statutory rights to use. The court stressed that Congress intended to provide a balanced approach to management of WSAs; while BLM could not halt all activity in them, it could not unnecessarily foreclose future use as wilderness.

RMOGA Challenges the Solicitor's Opinion

BLM's implementation of § 603(c) through the Interim Management Plan inhibited oil and gas development in proposed wilderness areas on both post-FLPMA leases and some pre-FLPMA leases. The Rocky Mountain Oil and Gas Association (RMOGA), a trade association of 650 oil and gas developers, challenged the Solicitor's opinion and implementing guidelines, which it contended effectively prohibited oil and gas exploration and resulted in an unconstitutional taking of private property. In a strongly worded opinion the district court ruled overwhelmingly in favor of plaintiff. The Department of the Interior's strict application of § 603(c)'s nonimpairment standard was "statutorily erroneous," "contrary to expressed Congressional intent," and "counter-productive to public interest."³³

At the heart of the controversy was the meaning of the grandfather clause of § 603(c), which provides that WSAs are

subject, however, 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, the date of enactment] ….³⁴

The court found this statutory language "clear and unequivocal on its face." The court ruled that the Solicitor had erred; the nonimpairment standard is inapplicable to mineral leasing as a whole, including both physical on-site development and the letting of leases by the Secretary. Congress' use of the term "mineral leasing" was the key to interpreting the clause. Because Congress used the term "leasing" rather than the term "leases," it intended that mineral leasing continue after October 21, 1976 in the same "manner and degree," not just that lessees be allowed to continue existing activities. In other words, not only should exploitation activities under pre-FLPMA leases continue in the same "manner and degree," but the Secretary should continue to issue new leases within WSAs at the same rate as it did before FLPMA, and free of nonimpairment stipulations.

As to pre-FLPMA leases, the court concluded that the nonimpairment standard had been so strictly applied that oil and gas development had come to a virtual halt in WSAs. BLM had entirely negated § 701(a), which protects "any valid lease" from termination, and the "valid existing rights" protection of § 701(h). By blocking the exercise of these rights through environmental controls, BLM had effected an unconstitutional taking and made "a mockery of the term 'lease.'"³⁵

The district court also examined Interior's policy of including wilderness protection stipulations in leases issued after 1978, which, the government argued, put lessees on notice that development of the lease might be precluded because of the obligation to satisfy the nonimpairment standard. The court found the government's position "a poor excuse for the end result"; leases are issued, but the application of the Solicitor's opinion completely prevents mineral development and is contrary to congressional intent to encourage mineral production. The court characterized defendants' actions and legal arguments to the contrary as "an unconstitutional taking and blatantly unfair to lessees," "ludicrous," "anomalous," and "woefully inadequate."³⁶

In an opinion as cool and dispassionate as district Judge Kerr's was angry, the Tenth Circuit in Rocky Mountain Oil and Gas Association v. Watt³⁷ reversed. Disagreeing strongly with the district court's characterization of § 603(c) as clear and unambiguous, the Tenth Circuit took a much different approach to analyzing the provision. It characterized FLPMA as a comprehensive statute for balanced management of public lands, and like the Utah court, pointed out that in interpreting § 603 it must be kept in mind that each parcel of land need not serve all uses. It began its analysis by outlining several important "precepts" of statutory construction, stressing that while it must closely analyze the statutory language, [13 ELR 10008] if that is unclear, as § 603 is, it must give deference to the administering agency's interpretation if consistent with the congressional purposes "divined" through the statute's legislative history.

The Tenth Circuit disagreed with the district court's interpretation of § 603(c)'s "grandfather" provision in two crucial ways. First, it found that the district court was wrong in concluding that in the phrase "continuation of existing mining and grazing uses and mineral leasing," "existing" only modifies "mining and grazing uses." This interpretation improperly treated "mineral leasing" differently from mining and grazing.

There were numerous reasons for the Tenth's Circuit's position. First, looking simply at the statutory language, the court noted that the clause contains no internal punctuation to indicate that the three uses should be treated differently. Furthermore, the legislative history "belies such a construction." The original House bill used the phrase "existing grazing and mineral uses and appropriation under the mining laws.³⁸ This indicates that "existing" modifies all three uses. The Senate Report and hearings on thestatute, which explained the purpose of the language, provided the court with further support for the Solicitor's interpretation. Finally, the court was not swayed by the argument that the statute's use of the singular "was" rather than the plural "were" in the phrase "in the manner and degree in which the same was being conducted," meant that it applied only to mineral leasing, thus separating it from the other two uses. Because an interpretation that mineral leasing was to be treated differently was "contradictory to the clause's purpose, as evidenced by the legislative history," and for other reasons, the court concluded that Congress' use of "was" was only a grammatical error.³⁹

There remained the question of whether Congress intended the term "mineral leasing" to refer to the entire leasing process, including issuance of leases by the Secretary, or only to on-site development of mineral leases. The Tenth Circuit found "anomalous" the district court's conclusion that in the context of § 603(c), the term includes the Secretary's administration of the leasing program as well as the development of leased tracts. Arguably, the phrase suggests that all activities included in the term "mineral leasing" should continue to include the issuance of leases in WSAs at the same rate as prior to FLPMA.But the court chose instead to follow the Utah court's reasoning and to conclude that Congress intended to limit leasing activities to the level of physical activity under way on the date of FLPMA's enactment.

The key to the Tenth Circuit's position was again the statutory language. It found that its interpretation of the language "comports with common sense" and the basic purposes of the statute. Otherwise mining and grazing uses would be limited to pre-FLPMA levels, while giving "disruptive mineral leasing activities carte blanche."⁴⁰ Furthermore, the court pointed out, the legislative history made no reference to the Secretary's administration of the leasing program. It found it highly unlikely that Congress, in such an "offhand and cursory manner," would constrict the Secretary's discretion over mineral leasing, an activity which traditionally has been highly discretionary.

Discussion

With two sharply divergent district court decisions the only prior judicial guidance on the meaning of § 603(c), the Tenth Circuit's decision in RMOGA was not easy to forecast. In upholding the Solicitor's opinion, the decision reflects a better analysis than the RMOGA district court opinion, and, of necessity, goes beyond that of the Utah court.⁴¹ It represents a more reasonable analytic approach to determining the meaning of an ambiguous provision and takes into consideration the legislative history and the purposes of the statute.

For all three courts, the "grandfather" provision presented interpretative difficulties. Three questions were particularly troublesome: Does the word "existing" modify "mineral leasing" as well as "mining and grazing uses"? Does the phrase "continuation of … mineral leasing in the manner and degree" refer to the Secretary's administration of the leasing program or to mineral leases? Does the provision grandfather all existing leases or only those on which activity had begun prior to October 21, 1976?

As to the first question, the Tenth Circuit's view that "existing" modifies all three is more compelling. It is more consistent with the plain language of the statute and better reflects its purposes. The legislative history adds some confusion on this issue because it fails to explain the change from an earlier version of the bill, which used the phrase "grazing and mineral uses and appropriation under the mining laws," to the language in the final bill. However, this change most likely was an attempt to reflect the statutory distinctions between mining and mineral leasing: "mining" refers to activities under the Mining Act of 1872 and other hardrock mining laws,⁴² and "mineral leasing" refers to activities under the Mineral Lands Leasing Act and other leasing statutes.⁴³ By using these terms Congress may simply have wished to make it clear that activities carried out under the mineral leasing laws as well as those under the mining laws are exempted from the nonimpairment standard by the grandfather clause.

The second question involved not only the meaning of the term "mineral leasing," but its interaction with the term "manner and degree." In the final analysis it is probably more reasonable to interpret the term "mineral leasing" to refer to mineral leases, not the Secretary's administration of the leasing program. It strains the literal reading of the language of the statute. However, reading the provision to allow, even to require, continued issuance of new leases not governed by the nonimpairment [13 ELR 10009] standard would strip the statute of its effectiveness. Section 603(c) is aimed at protecting WSAs from activities that will impair their suitability as wilderness. The mere issuance of a mineral lease has no physical impact on an area's wilderness characteristics — only operations on a lease can impair an area's suitability. If the statutory purposes are considered, as both the Utah court and the Tenth Circuit did, the term must be construed to refer to on-site activities on leases.

The Tenth Circuit's position is also the more reasonable for another important reason. If the district court's view were followed, oil and gas leasing would be given preferential treatment over the other uses. If the Secretary were allowed to continue issuing leases in the same "manner and degree," mining and grazing uses would be regulated to prevent impairment while mineral leasing would only be subject to the undue degradation standard. That Congress intended that result is highly unlikely, particularly when considering the nature of the mineral leasing statutes compared to the mining statutes. Under the mineral leasing statutes, the Secretary has discretion concerning whether to and where to issue leases, and lease stipulations, however, under the Mining Act of 1872, the Secretary must issue a mining patent if the claimant meets the statutory requirements.⁴⁴ Under one interpretation of the district court's construction, the Secretary's discretion over mineral leasing would be abolished in WSAs since the Secretary must continue to issue leases at the same rate as before.

FLPMA lends further support to the Solicitor's and the Tenth Circuit's view that mineral leasing should not be treated differently from mining and grazing. Section 302(b) of FLPMA specifically provides that § 603 amends the Mining Law of 1872.⁴⁵ In addition, § 701(f) provides that "nothing in this Act shall repeal any existing law."⁴⁶ The effect of the district court's decision would be to repeal the Secretary's discretion to lease minerals by saying that he must continue to lease at the same rate as he did prior to FLPMA.

While the Tenth Circuit's analysis of § 603(c) seems solid on the first two issues because it more accurately reflects the obvious purposes of the statues, it is weak on the third, whether § 603(c) imposes the nonimpairment standard on undeveloped pre-FLPMA leases. The result is consistent with the language of the statute; starting up development where none had been underway before FLPMA is clearly not continuation of the activity in the same manner and degree. However, the court ignored the issue that most troubled the district court. It had found that if the nonimpairment standard was applied to pre-FLPMA leases they would become "shell" leases with no development rights. And that, it ruled, is "clearly an unconstitutional taking" and violates § 701. It was most likely appropriate for the Tenth Circuit to ignore the takings issues raised by the district court since there was no factual basis on which to consider such claims. However, its failure to address the 1978 Solicitor's analysis of § 701 raises the issue of what is a "valid existing right" and what is the import of § 701(h) if all undeveloped leases must be managed under the nonimpairment standard.

The Aftermath of RMOGA

In 1981, the new Solicitor under the Reagan Administration issued an opinion⁴⁷ addressing the relationship between § 701(h) and § 603, which modified the § 701 analysis in the 1978 opinion. The 1981 opinion accepted the position that § 603 mandates two management standards but it determined that the "valid existing rights" clause of § 701 is a limitation on the nonimpairment standard. The standard cannot be applied in a manner that would prevent the exercise of any "valid existing right." It defined "valid existing rights" as "those rights short of vested rights⁴⁸ that are immune from denial or extinguishment by the exercise of Secretarial discretion."⁴⁹ For example, once the Secretary has issued a lease, the applicant has valid existing rights in the lease. The 1981 opinion recognized, as did the 1978 opinion, that valid existing rights are not absolute and are defined by examining the applicable statute and the nature of the rights conveyed. It gives these rights broader scope because it does not use the Takings Clause of the Constitution as the limit on those rights.⁵⁰ Instead, activities on the lease are subject to the nonimpairment standard only to the extent that the standard does not unreasonably interfere with those rights.

The 1981 opinion made a careful distinction between pre- and post-FLPMA leases: If the rights existed before the enactment of FLPMA, the nonimpairment standard governing leasing activities is limited. If nonimpairment unreasonably interferes with the enjoyment of these rights, only the undue degradation standard applies. But after FLPMA's enactment, the Secretary has authority only to issue leases that will not impair an area's suitability for preservation as wilderness. Leases issued after October 21, 1976 would not receive unlimited rights to develop but would be restricted by the nonimpairment standard.

The major difference between the two opinions is that while the 1978 opinion would apply the nonimpairment standard to all inactive pre-FLPMA leases, the 1981 opinion would only apply it to pre-FLPMA leases as where it did not harm development rights granted by the applicable statutes and in the particular lease.

The 1981 opinion appears to be a better interpretation of § 701(h). Pre-FLPMA leases are not apt to contain such strict environmental protection stipulations as the nonimpairment standard requires. As a result, lessees' rights under those leases are likely to be broader than the rights of lessees in post-FLPMA leases. Under the 1981 opinion, they will not be deprived of these rights. While the effect of the 1981 opinion may be to foreclose more [13 ELR 10010] areas from wilderness designation than the previous opinion, it gives some meaning to § 701(h) and is more certain to protect "valid existing rights" of lessees. On the other hand, the 1981 opinion creates a vehicle with which the BLM could administratively exempt all pre-FLPMA leases from the nonimpairment standard.

Whether or not it is reasonable, however, a question remains whether the 1981 opinion is valid in the aftermath of the Tenth Circuit's decision. While the Tenth Circuit addressed neither § 701(h) or the 1981 opinion, it did uphold the 1978 opinion's interpretation that the nonimpairment standard applies to pre-FLPMA leases on which no activity has yet begun. In fact, the court ruled that the Solicitor's interpretation was "compelled" by the statute; arguably no other interpretation is acceptable. Further litigation is likely before the question whether Interior, through the 1981 opinion, may further limit the application of the nonimpairment standard to pre-FLPMA leases is resolved. But probally the quickest way to resolve the question is for Interior to complete its wilderness review and make its recommendations to the President. Many of the potential wilderness lands will then be released for multiple-use management.⁵¹

In the meantime, BLM will continue to issue leases in WSAs in keeping with the 1978 Solicitor's opinion. While it is currently drafting a new Interim Management Policy to reflect the new Solicitor's opinion, and may have been considering broader changes, it is now unlikely to make any changes in its interpretation of § 603(c) because of the Tenth Circuit's decision in RMOGA.

1. 16 U.S.C. §§ 1131-1136, ELR STAT. 41411.

2. The Wilderness Act, which directs that only Congress can designate wilderness, provides a management standard only for already designated areas, not for areas under review. Id.

3. In 1972, the Forest Service conducted an initial Roadless Area Review and Evaluation (RARE I). However, development pursuant to the resulting national planning document was enjoined pending completion of an environmental impact statement (EIS). See Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 3 ELR 20830 (10th Cir. 1973).

4. The President recommended allocating 15 million acres of RARE II lands to wilderness, 10.8 million acres to further planning, and 36 million acres to nonwilderness.

5. See California v. Bergland, 483 F. Supp. 465, 10 ELR 20098 (E.D. Cal. 1980), aff'd sub nom. California v. Block, 13 ELR 20092 (9th Cir. Oct. 22, 1982) (EIS for 47 nonwilderness areas in California held inadequate).

6. The RARE II litigation led to the addition of so-called "release" provisions in wilderness bills. See CONG. Q., Vol. 40, No. 38, at 2309-10 (Sept. 18, 1982). "Hard" release would set a deadline for Congress to act on wilderness, and if it did not, the lands would be released for multipleuse and could not later be considered for wilderness or be managed to protect wilderness. See, e.g., S. 842, 97th Cong., 2d Sess. (1982), H.R. 6070, 96th Cong., 1st Sess. (1979). "Soft" release, preferred by conservationists, would release nonwilderness and further planning areas only until the next Forest Service planning cycle in 1992-1994. See, e.g., H.R. 4083, 97th Cong., 2d Sess. (1982).

7. 43 U.S.C. §§ 1701-1782, ELR STAT. 41458.

8. FLPMA § 603, 43 U.S.C. § 1782, ELR STAT. 41475.

9. 43 U.S.C. § 1782(c), ELR STAT. 41475.

10. 500 F. Supp. 1338, 11 ELR 20036 (D. Wyo. 1980), rev'd sub nom. Rocky Mountain Oil and Gas Ass'n v. Watt, 13 ELR 20038 (10th Cir. Nov. 30, 1982). See Comment, Federal Court Rejects Wilderness Protection Policies in Energy-Rich Rocky Mountain Overthrust Belt, 11 ELR 10021 (1981).

11. 13 ELR 20038 (10th Cir. Nov. 30, 1982).

12. 43 U.S.C. § 1701 note, ELR STAT. 41459.

13. 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 Rocky Mountain portions of the Overthrust Belt are estimated to contain as much as 25 billion barrels of oil and 175 trillion cubic feet of natural gas.

14. FLPMA specifically repealed many of the roughly 3000 laws previously governing public and management and changed certain management standards. See Pub. L. No. 94-579, §§ 702-706, ELR STAT. 41476; Rocky Mountain Oil and Gas Ass'n v. Watt, 13 ELR 20038 at 20039 n.2 (10th Cir. Nov. 30, 1982).

15. FLPMA § 102(a)(8), 43 U.S.C. § 1701(a)(8), ELR STAT. 41459.

16. FLPMA § 102(a)(12), 43 U.S.C. § 1701(a)(12), ELR STAT. 41459.

17. FLPMA § 102(c), 43 U.S.C. § 1702(c), ELR STAT. 41459.

18. For the purposes of FLPMA, "public lands" refers to those lands managed by BLM. FLPMA § 103(e), 43 U.S.C. § 1702(e), ELR STAT. 41459.

19. FLPMA § 201, 43 U.S.C. § 1711, ELR STAT. 41461.

20. As a result of the review, BLM released 149.3 million acres from further wilderness review and retained 23.8 million acres as WSAs. 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. Once designated the lands are to be managed under the Wilderness Act standards, and lands not so designated revert to multiple use management. FLPMA § 603(a), 43 U.S.C. § 1782(a), ELR STAT. 41475.

21. FLPMA § 603(c), 43 U.S.C. § 1782(c), ELR STAT. 41475.

22. Solicitor's Opinion No. M-36910 (Sept. 5, 1978): Interpretation of Section 603 of the Federal Land Policy and Management Act of 1976 — Bureau of Land Management (BLM) Wilderness Study, 86 I.D. 89 (1979).

23. This standard is less stringent than the nonimpairment standard because it does not require wilderness character to be retained. It is similar to FLPMA's general management standard of § 302(b), 43 U.S.C. § 1732(b), ELR STAT. 41466, which requires the Secretary to manage all public lands "to prevent unnecessary or undue degradation," unless other provisions are applicable, but the additional language of § 603(c), "or to afford environmental protection," could be interpreted to be a stricter standard than the § 302(b) standard.

24. See 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).

25. Nonimpairing uses could include, for example, a hardrock miner using a pick and shovel to work a mining claim, or exploratory drilling for oil under a mineral lease where the temporary road and drill pad are soon reclaimed. However, full scale oil and gas development with roads, heavy equipment, pipelines, and personnel would not be compatible with wilderness and would be considered an impairing activity. Id. See also 13 ELR at 20041 n.10.

26. The Interim Management Policy explained that continuation of the activity in the same manner and degree would allow for the logical progression of the activity, e.g., a geographic extension of the existing activity or a change in the type of activity if done at a logical pace, but new impacts maynot be of a significantly different kind. Supra n.24.

27. FLPMA § 701(h), 43 U.S.C. § 1701 note, ELR STAT. 41459.

28. Solicitor's Opinion, supra n.22 at 32.

29. In 1981, the Solicitor under the Reagan Administration issued a new opinion modifying the 1978 opinion's interpretation of the interaction of § 701 and § 603. See text accompanying notes 47-50, infra.

30. See also Parker v. United States, 309 F. Supp. 593, 1 ELR 20522 (D. Colo. 1970), aff'd 448 F.2d 793, 1 ELR 20489 (10th Cir. 1971), cert. denied, 405 U.S. 989 (1972) (Injunction prohibiting timber harvesting in an area adjoining a wilderness area until Congress acted up-held) Mountain States Legal Foundation v. Andrus, 499 F. Supp. 383, 11 ELR 20044 (D. Wyo. 1980) (Inaction by Departments of the Interior and Agriculture on oil and gas lease applications amounted to an unauthorized "withdrawal" of lands).

31. 486 F. Supp. 995, 10 ELR 20570 (D. Utah 1980).

32. 486 F. Supp. at 1003, 10 ELR at 20573.

33. Rocky Mountain Oil and Gas Ass'n v. Andrus, 500 F. Supp. 1338, 1344-47, 11 ELR 20036, 20039-40 (D. Wyo. 1980).

34. 43 U.S.C. § 1781(c), ELR STAT. 41475.

35. 500 F. Supp. at 1345, 11 ELR at 20039.

36. 500 F. Supp. at 1344-47, 11 ELR at 20039-40.

37. 13 ELR 20038 (10th Cir. Nov. 30, 1982). Before addressing the issue of the validity of the Solicitor's opinion, the court first determined that the case was ripe for judicial review. The issue was purely one of statutory interpretation and appellee would suffer undue economic hardship if judicial review were withheld. The court also ruled that appellee was not banned from seeking judicial review by the exhaustion doctrine. Appellee need not have waited for the denial of a development permit to contest Interior's interpretation of the statute because the development of a factual record would not aid the court where only a question of statutory construction was raised. 13 ELR at 20040-42.

38. See 13 ELR at 20043.

39. Id. at 20043. The court pointed out that Congress had, a few days prior to the enactment of FLPMA, enacted a statute designating several areas within national forests as "wilderness study areas" to be managed to protect their wilderness characteristics. The grandfather clause of this statute also incorrectly used the singular "was" rather than the plural. Id. at 20044.

40. Id. at 20044.

41. The Utah court addressed the effect of § 603(c) on mining not mineral leasing. See Utah v. Andrus, 486 F. Supp. 995, 10 ELR 20570 (D. Utah 1980).

42. See, e.g., General Mining Law of 1872, Act of May 10, 1872, ch. 152, 17 Stat. 91, 30 U.S.C. §§ 22-30, 33-34, 37, 39, 40-42.

43. See, e.g., Mineral Lands Leasing Act, 30 U.S.C. §§ 181-226; Mineral Leasing Act for Acquired Lands, 30 U.S.C. §§ 351-359; Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356.

44. See generally, Martin, The Interrelationships of the Mineral Lands Leasing Act, the Wilderness Act, and the Endangered Species Act: A Conflict in Search of Resolution, 12 ENVTL. L. 363 (1982), for a discussion of the Secretary's discretionary authority under the Mineral Lands Leasing Act in issuing leases and placing stipulations to protect environmental values.

45. 43 U.S.C. § 1732(b), ELR STAT. 41466.

46. 43 U.S.C. § 1701 note, ELR STAT. 41459.

47. Solicitor's Opinion No. M-36910 (Supp.) (Oct. 5, 1981): The Bureau of Land Management Wilderness Review and Valid Existing Rights.

48. "Vested rights" in public lands law typically applies to legal or equitable right to a fee title. Thus, oil and gas leases, which do not convey fee title, have not been couched in terms of the traditional "vested right" usage. See Solicitor's Opinion, supra n.47, at 3 n.4

49. Id. at 3.

50. See text accompanying notes 26-29, supra.

51. The Department of the Interior recently announced that it was dropping close to one million acres in the west and southwest from wilderness review and management under § 603(c), and another 5.1 million may also soon be drpped. Legal challenges, based on § 603(c), to the action are likely. See N.Y. Times, Dec. 28, 1982, at A1, col. 1.