Preservation vs. Mineral Development of Withdrawn Federal Lands -- Much Ado, But Little to Show

Preservation vs. Mineral Development of Withdrawn Federal Lands — Much Ado, But Little to Show

David W. Tundermann

Editors' Summary: As the 97th Congress came to a close, the Reagan Administration, natural resource development interests, the Congress, and conservationists had come to a stalemate in a high stakes battle over mineral development on the nation's public lands. Mr. Tundermann examines the reasons for the stalemate and discusses several congressional and administrative actions of the past year that have contributed to it. He explains that as much as 50 percent of the federal lands are currently withdrawn from mineral development. With the depletion of high grade mineral deposits, interest has focused on these lands, many of which are withdrawn to protect environmental values. Thus, intense conflicts have arisen between development interests and environmentalist interests.

In 1982, several administrative and congressional proposals emerged to increase or decrease mineral access to withdrawn federal lands. The proposed National Minerals Securities Act, aimed to improve the economic and regulatory environment for mining, and numerous bills to either withdraw RARE II lands from development or to "release" them to development, died in the 97th Congress. However, Congress extended a moratorium on mineral leasing in wilderness areas. In conclusion, Mr. Tundermann points out that a substantial amount of the lands are withdrawn for other than preservation interests. He suggests that the active parties in the debate focus their efforts on these lands where the value conflicts are more easily resolved.

Mr. Tundermann is a partner in the Salt Lake City, Utah law firm of Parsons, Behle & Latimer.

[13 ELR 10017]

Nineteen eighty-two witnessed a string of controversial congressional and administrative actions surrounding natural resource development on the nation's public lands. Bills to withdraw¹ certain Roadless Area Review and Evaluation (RARE II)² lands and to release³ others for mineral development died in the lame duck session but Congress extended a moratorium on mineral leasing in wilderness areas through the fiscal year. By year's end the Reagan Administration had begun to implement new policies to open up withdrawn lands to mineral location and leasing.

These actions made no additional federal land available for mineral development or protected any from it. As a result a stalemate continues, pitting resource development industries and the administration against the Congress (particularly the House Interior and Insular Affairs Committee) and conservationists. The stalemate is yielding little or nothing to the active players. It is yielding little or nothing to the public, either, who are getting neither environmental proctection nor increased energy and minerals production.

The economic origins of this standoff are straightforward. For the oil and gas industry, the discovery of the Western and Eastern Overthrust Belts, oil price and partial natural gas price deregulation, and the 1979-80 run-up [13 ELR 10018] in world crude prices combined to make drilling — hence leasing — on federal lands an attractive opportunity. The current downturn in oil prices has affected but not reversed these basic economics. For the domestic mining industry, the poor quality of domestic reserves compared to foreign ore is one of the major reasons why U.S. mineral production costs are 20 to 30 percent higher than foreign producers'. Other things being equal, an increase in average domestic ore grade of only 0.25 percent copper, for example, could virtually eliminate the production cost advantage now enjoyed by foreign producers.⁴

However, the areas with the greatest potential for oil and gas and new, high-grade reserves are also often areas with great scenic beauty, fish and wildlife habitat, and other important environmental values. Between preservation of environmental values and development of mineral deposits and other resources, successive administrations and Congresses since the first Roosevelt Administration have often favored the former, withdrawing from development large areas of public lands.⁵

Until recently, these withdrawals did not significantly affect the vitality of the mining industry, for high grade "mother lodes" — also on public lands — were available for mining. The depletion of these once rich deposits is causing the mining and other resource development industries to look harder at potential development of withdrawn lands. Development interests are clashing increasingly with conservation interests, witnessed several years ago in the debate over disposition of public lands in Alaska and now in the struggle over RARE II lands and Bureau of Land Management (BLM) wilderness study areas.

With the fate of these lands still unsettled, it is understandable that development and conservation interests are bending their efforts toward this issue. However, the intensity and adversity of the debate may be preoccupying the parties' attention and generating levels of mutual antagonism which prevent agreement and compromise on releasing other withdrawn public lands for development. Substantial acreage is withdrawn in land classes other than designated wilderness areas, RARE II areas, and BLM wilderness study areas. Mineral development on these other lands may not be nearly so contentious. The mining and petroleum industries and conservationists may find room for agreement if they broaden their consideration, even while they strain to make progress allocating uses for the disputed lands.

Public Land Withdrawals from Mining Access

The acreage unavailable for mining and mineral development due to withdrawals is enormous. Published estimates of public lands inexcessible to mining range from 165 to 336 million acres, or about 20 to 50 percent of federal lands.⁶ After allowing for variations in the types of withdrawals and lands analyzed in these reports and differences in their analytic methods, these studies indicate that about 300 million acres of public land are closed to mining or are heavily restricted.

None of the studies provides a very reliable picture of the total amount of withdrawn land, however, because they do not accurately account for withdrawals that overlap the same land. One study by a number of environmental groups contends that the multiple counting of land subject to more than one withdrawal may inflate the figure for the gross acreage withdrawn by as much as 25 percent.⁷ The studies also typically ignore land that is legally open but in fact closed by administrative restrictions. For example, BLM wilderness study areas are legally open to mineral location,⁸ but are often subject to such significant restrictions on claimants' access or operations that mineral development is effectively precluded.⁹

Until recently the Federal government made no effort to maintain comprehensive information on the amount of land closed to mining, although prospective mineral entrants could learn the status of their particular tracts of Federal land by consulting the records in the local office of the service management agency. Presently, BLM is conducting an inventory of withdrawals on certain classes of federal land as required by § 204 of the Federal Land Policy and Management Act of 1976 (FLPMA).¹⁰ This partial inventory, scheduled to be completed in 1991, is the first attempt to identify withdrawals officially and accurately on a large part of the public domain.

Table 1 presents an estimate of the amount of federal lands withdrawn from mining, based on published studies and interviews with BLM and Forest Service officials. The table lists formal withdrawals from the public domain and readily identifiable "de facto"¹¹ withdrawals.

[13 ELR 10019]

*2*TABLE 1

*2*Major Categories of Withdrawals of Federal Public

*2*Domain Land from Development of Hardrock Minerals¹²

Designated Use Acreage Withdrawn

(in millions)

Segregated from Location Pending

Applications for Withdrawal ¹³ 10.6

National Parks 61.5

Defense 13.9

Fish and Wildlife Refuges ¹⁴ 88.7

National Forest Wilderness Areas ¹⁵ 25.2

National Forest Wilderness Study Areas ¹⁶ 14.8

BLM Wilderness Study Areas ¹⁷ 24.3

Petroleum and Oil Shale Reserves 27.4

Reclamation 9.1

Federal Energy Regulatory Commission Lands 15.2

Nuclear Regulatory Commission Lands 1.4

Alaska State Selection Lands ¹⁸ 110.0

Alaska Native Selection Lands ¹⁹ 116.0

As the table illustrates, the largest withdrawn acreages are land classes where mineral development is highly controversial: national parks, wilderness areas, wilderness study areas, wildlife refuges, and various Alaska lands. Sizable acreage exists in other classes, however, particularly petroleum and oil shale reserves, military reservations, power sites and other energy development areas, and agriculture-related areas such as reclamation sites.

Government, industry, and conservationists know little about the mineral potential of these withdrawn lands or of the potential compatibility between mineral development and the purposes of the withdrawals. Since withdrawals frequently prevent exploration as well as development, field studies have not occurred which could yield data on mineralization. Because surface management agencies have limited missions, few if any have the incentive to investigate seriously whether mineral development could take place compatibly with the purposes for which they are managing withdrawn lands. Unfortunately, last year's Congressional debate produced no headway on either of these points.

Last Year's Debate

Nineteen eighty-two saw active debate on a variety of proposals to increase or decrease mineral access to withdrawn federal lands; some proposals did both. Insofar as the debate touched wilderness areas and wilderness study areas, it was sharply focused. The active players in the debate — the Administration; Congress; timber, oil and gas, and mining interests; and conservationists — were preoccupied with oil and gas leasing in wilderness areas. By and large, the Administration and the oil industry battled the House Committee on Interior and Insular Affairs and conservationists to a standoff. By [13 ELR 10020] concentrating on their disagreements, however, the parties have missed opportunities for potential agreement on providing mineral access to other withdrawn lands.

Four legislative or administrative vehicles framed the debate over mineral access to withdrawn lands last year. None of them progressed to the point of portending the opening or definite removal of withdrawn lands to mineral access. The proposals are:

the proposed National Minerals Security Act;

the Administration's National Materials and Minerals Policy;

BLM's withdrawal review program; and

proposed wilderness legislation.

National Minerals Security Act

In 1981, former Rep. James Santini (D-Nev.) introduced H.R. 3364,²⁰ the proposed National Minerals Security Act, and held hearings on the bill in October 1981. The bill represented a comprehensive approach to improving the economic and regulatory environment for the mining industry, including release, tax, antitrust, and government reorganization provisions. Among other measures, the bill would have required the Secretary of the Interior to:

review all BLM land use plans developed under § 2 of FLPMA to consider the suitability of lands covered by such plans for mineral location and leasing, and to revise the plans accordingly;

include in each BLM land use plan an estimate ofpotential mineral resources;

consider development of any significant mineral deposit as a dominant use of the land;

call periodically for nominations of withdrawn lands for review to determine their suitability for mineral location or leasing. After consulting with appropriate agencies, and within one year after each notice, the Secretary would determine whether mineral location of nominated lands was consistent or incompatible with the purposes of the withdrawal. If his determination were negative, the nominated lands would become available for mineral location and leasing.

The bill would also have deferred for ten years the January 1, 1984 closure of wilderness areas to mineral location and leasing mandated by the Wilderness Act.²¹

The bill died in subcommittee in 1982 for a variety of reasons. First, it was too comprehensive for practical legislative management: five House committees had jurisdiction over it. Second, it had too little support in Rep. Santini's Mines and Mining Subcommittee; he could not muster the votes to move the bill even from his own subcommittee to full committee. Third, some members of Congress reportedly viewed the bill as an aid to Mr. Santini's campaign for the Nevada senatorial nomination, and did not take it very seriously. Finally, despite industry urgings, the Administration never supported it, preferring instead the President's subsequently announced National Materials and Minerals Policy.

According to Congressional staff and mining industry sources, the bill is unlikely to be reintroduced in the 98th Congress.

National Materials and Minerals Program Plan

On April 5, 1982, the President released a National Materials and Minerals Program Plan and Report to Congress. The President announced that the Administration would, among other actions:

continue to inventory federal land to determine mineral availability and potential;

seek legislation "to preserve wilderness lands, to release … nonwilderness lands for multiple use, to ensure the availability of information regarding the mineral potential of wilderness areas, and to permit a reexamination of national wilderness policy in the year 2000;"

solicit from the public recommendations for making specific public lands available for mineral entry and focus "immediate attention" on these areas;

accelerate BLM's review of withdrawn lands and revoke obsolete withdrawal orders;

"continue a rapid withdrawal review program for Alaska;" and

"Open to mining those lands withdrawn from operation of the general mining laws but which are open to operation of the leasing laws."

Before and since issuance of the mineral policy statement, the Interior Department has revoked a considerable number of obsolete withdrawal orders affecting 22.6 million acres.²² Because most of these lands were generally already open to mineral entry, the revocations will not reopen significant acreage for mining. In addition, on December 3, 1982, BLM published a notice inviting nominations by March 7, 1983 of "areas of critical mineral potential" on withdrawn lands.²³ BLM will use the nominations to consider revising priorities for its withdrawn lands review under $204 of FLPMA.

Otherwise, the Administration has not been successful implementing the President's announced policy. There is no evidence that the department has undertaken a "rapid withdrawal review program" for Alaska or has opened to mining those areas closed to mineral location but open to mineral leasing. Secretary Watt's proposal to allow mineral exploration in wilderness and wilderness study areas²⁴ did not fare well in Congress. Finally, the Government Accounting Office (GAO) asserts.²⁵ that the BLM withdrawn lands review, discussed below, is limited in scope and unlikely to yield significant acreage for mineral entry. In short, the Administration has produced a "policy," but little behavior to implement it.

BLM Review of Withdrawn Lands

Section 204(1) of FLPMA²⁶ requires BLM to review by 1991 certain types of federal lands withdrawn by various [13 ELR 10021] agencies and 11 western states. The review was to cover about 63 million acres, roughly half administered by BLM and about half by other agencies. Congress placed special emphasis on reviewing land withdrawn from mineral exploration and development.

However, according to a recent GAO report,²⁷ BLM is giving review priority to lands not withdrawn from mineral exploration and development and to all lands under its own jurisdiction, including about 100 million acres Congress did not want reviewed. BLM's review will also exclude lands that are "de facto" withdrawn from mining by administrative action.²⁸

To date, BLM has revoked or modified use restrictions on 22.6 million acres of public lands, but most of this land was already relatively open to mining, according to the GAO.BLM has opened only one million acres of land to mineral location, and indications are that the pace of future review activity will be slow and subject to interruptions due to funding difficulties.

Wilderness Protection Act and Release of Nonwilderness Areas

On August 12, 1982 the House resoundingly passed by a vote of 340 to 58 H.R. 6542, the proposed Wilderness Protection Act of 1982.²⁹ The bill would withdraw from mineral leasing (1) designated wilderness areas; (2) national forest lands recommended by the Carter Administration for wilderness designation under RARE II, until Congress acts otherwise or until the Forest Service recommends them for other than wilderness designation; (3) wilderness study areas designated by act of Congress, for the period of interim wilderness protection prescribed in the designating statute, and (4) further planning areas in national forest lands identified by RARE II, until one year after final approval and implementation of an initial forest plan for each area, or if recommended for wilderness after further study, until Congress acts on the recommendation. The bill allows exploration in these withdrawn lands using certain techniques, but explicitly prohibits seismic activities using explosives. Rep. John Seiberling (D-Ohio), sponsor of the bill, successfully opposed any general release of wilderness study areas not yet designated wilderness or recommended for nonwilderness.

In the Senate, Sen. Henry Jackson (D-Wash.) reportedly has 54 cosponsors for a companion bill, S. 2801. Sen. James McClure (R-Idaho), Chairman of the Energy and Natural Resources Committee, opposed the Jackson bill because it did not release nonwilderness areas for multiple uses.

The bill died in the 97th Congress due to a stalemate between the House Interior and Senate Energy Committees. Rep. Seiberling wanted the Wilderness Protection Act, but opposed any general release language because the bill designated no wilderness areas. He prefers individual bills for each state which designate wilderness areas and release nonwilderness areas for multiple uses. Congress has passed such bills for Alaska (P.L. 96-487), Colorado (P.L. 96-560), and New Mexico (P.L. 96-550). Bills for four other states — California (H.R. 4083, S. 1584), Montana (S. 2110, 2111, 2112), Wyoming (S. 2118, H.R. 5625), and West Virginia (H.R. 5161) — died with adjournment.

Sen. McClure, apparently frustrated with the slow pace of state by state legislation, favors instead a "national RARE II release" bill (S. 842), which would make available for multiple use (1) lands recommended as not suitable for wilderness, (2) after 1985, recommended wilderness areas on which Congress has not acted and further planning areas not recommended for wilderness, and (3) after 1988, further planning areas recommended for wilderness on which Congress has not acted. However, Sen. McClure was unable to gather enough votes to report the bill favorably out of his committee.

The stalemate between the authorizing committees spilled over into the appropriations process. Although the 1964 Wilderness Act allows mineral leasing in wilderness areas until December 31, 1983, prohibitions in appropriations legislation for the Department of the Interior effectively amend the Act and preclude mineral leasing until October 1, 1983, three months before the Wilderness Act deadline.

All of this legislation — the Wilderness Protection Act, the RARE II review bill, and the state wilderness designation/nonwilderness release acts and bills — involves mineral leasing, but also affects mineral location. Entry to areas not designated wilderness is permitted, subject to the administrative restrictions discussed earlier which in many cases practically revoke the permission. The enactment of a RARE II "national release" bill or of state by state wilderness bills with release provisions would loosen administrative restrictions on nonwilderness lands. On the other hand, additions to the wilderness system will increase the acreage closed to mineral location after December 31, 1983 to the extent the designating statutes do not close the areas immediately.

Conclusion

The Administration, the natural resource industries, Congress, and conservationists have so far battled to a high stakes stalemate over RARE II lands and BLM wilderness study areas. Popular sentiment appears strongly to oppose mineral development in wilderness areas causing otherwise development-minded members of Congress to oppose mineral leasing there³⁵ and portending preservation as the long-term outcome. As various vehicles grind forward, both sides should eventually emerge with something to show for their efforts, most likely long-term protection for wilderness [13 ELR 10022] areas and eventual release of RARE II and FLPMA § 603 lands not recommended for wilderness designation.

Resource development industries, Congress, and the Administration should not lose sight of the fact that substantial withdrawn acreage is not involved in the RARE II/§ 603 wilderness debate and could contain valuable mineral deposits. Withdrawal categories which conservationists care much less about — petroleum and oil shale reserves (27.4 million acres), Federal Energy Regulatory Commission lands (15.2 million acres), reclamation sites (9.1 million acres), and military reservations (13.9 million acres) — represent a substantial acreage where mining is generally not now permitted. Moreover, some of the guardians of these lands, such as the Department of Defense and the Armed Services Committees, may sympathize, for strategic reasons, with the importance of improving the quality of ore reserves available to the domestic mining industry. Furthermore, some precedent exists for joint uses; oil and production coexists with missile testing in the Gulf of Mexico south of Elgin Air Force Base for example.

Now, however, no process is available for learning whether there are valuable deposits on these lands and whether mining is compatible with the purposes of the withdrawals. Instead of preoccupying themselves almost exclusively with disagreements, industry and conservationists may be able to make faster progress by targeting lands where the value conflicts are not as sharp. Given the slow pace of activity affecting RARE II and § 603 lands, some real progress would be welcome.

1. The term "withdraw" means 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 under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program ….

Federal Land Policy and Management Act (FLPMA) § 103(j), 43 U.S.C. § 1702(j) (1976) ELR STAT. 41460; see C. Wheatley, Jr., Withdrawals Under the Federal Land Policy and Management Act, 21 ARIZ. L. REV. 311 (1979).

2. The Department of Agriculture initiated a second Roadless Area Review and Evaluation (RARE II) of national forest lands in 1977, after a federal court found the first review legally defective. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 3 ELR 20830 (10th Cir. 1973). The Forest Service inventories 62 million acres of roadless areas, recommending 15.5 million acres for wilderness designation, 10.8 million acres for "further planning" for potential wilderness designation, and the remainder for other uses. The Administration sent these recommendations to Congress for action in 1979. See Mountain States Legal Foundation v. Andrus, 499 F. Supp. 383, 387-88, 11 ELR 20044, 20045 (D. Wyo. 1980); Nelson, Oil and Gas Leasing in Forest Service Lands: A Question of NEPA Compliance, 3 PUB. LAND L. REV. 1, 40-43 (1982). The Ninth Circuit recently affirmed a district court decision that the final environmental impact statement for RARE II lands in California is inadequate. California v. Block, 690 F.2d 753, 13 ELR 20092 (9th Cir. 1982).

3. "Release" is the opposite of withdrawal. Releasing withdrawn public lands makes them once again available for multiple uses under the public land laws. Withdrawn lands can be released for certain uses and remain closed for others. See e.g., Alaska National Interest Lands Conservation Act (ANILCA) § 1322, 16 U.S.C. § 3209 (Supp. IV 1980), which rescinds various administrative withdrawals and substitutes a different set of congressional withdrawals in Alaska.

4. G. F. Joklik, "Miner's View of Wilderness," remarks delivered at 1982 American Mining Congress International Mining Show, Oct. 12, 1982.

5. OFFICE OF TECHNOLOGY ASSESSMENT, MANAGEMENT OF FUEL AND NONFUEL MINERALS IN FEDERAL LAND, OTA-M-88, at 77-99 (1979) (hereinafter "OTA Study").

6. The OTA Study concluded that 244 million acres of public domain land was formally closed to mining and an additional 48 million acres was highly restricted. Thus, in 1975, mining was excluded or highly restricted on just over 39 percent of the public domain. Id. at 338. The President's NATIONAL MATERIALS AND MINERALS PROGRAM PLAN AND REPORT TO CONGRESS, submitted April 5, 1982, suggests that between 40 percent and 68 percent of federal land is currently closed to mining. A third study, based on BLM's inventory of withdrawn land, notes that although as many as 336 million acres of federal land have been estimated to be withdrawn from mining, the BLM's 1980 inventory of withdrawals showed that 165 million acres of federal land were withdrawn from certain uses. BLM's survey, however, excluded much federal land, most notably Alaska. GENERAL ACCOUNTING OFFICE, INTERIOR'S PROGRAM TO REVIEW WITHDRAWN FEDERAL LANDS — LIMITED PROGRESS AND RESULTS, GAO/RCED-83-26, at 1, 6 (Oct. 7, 1982) (hereinafter "GAO Report").

7. ENVIRONMENT POLICY CENTER, AN ANALYSIS OF STRATEGIC MINERAL ISSUES AND PUBLIC LANDS POLICY 66 (Oct. 1981) (hereinafter "EPC Study").

8. FLPMA § 603(c), 43 U.S.C. § 1782(c), ELR STAT. 41475 (1976). See Comment, Tenth Circuit Approves Interior's Wilderness Protection Policies in Energy-Rich Rocky Mountain Region, 13 ELR 10004 (Jan. 1983).

9. See Rocky Mt. Oil & Gas Ass'n v. Watt, 13 ELR 20038 (10th Cir., Nov. 30, 1982); Utah v. Andrus, 486 F. Supp. 995, 10 ELR 20570 (D. Utah 1979); Due, Access, RARE II, and Other Fables, 25 ROCKY MTN. MIN. LAW INST. 10-1 (1979); GAO Report, supra n.6, 30-39; OTA Study, supra n.5, 107-108.

10. 43 U.S.C. § 1714(1) (1976), ELR STAT. 41458.

11. "De facto" withdrawals are administrative actions which so severely restrict mineral access to or operations on public lands that development becomes impractical or uneconomic. See Mountain States Legal Foundation v. Andrus, 499 F. Supp. 383, 11 ELR 20044 (D. Wyo. 1980); GAO Report, supra n.6, 30-37; Due, supra n.9.

12. No comprehensive, accurate and official data exist on withdrawals. Different compilations of withdrawals vary considerably in their estimates of land withdrawn for different purposes. The figures given are primarily from the GAO Report, supra, n.6. This report appears to be the most current and comprehensive statement of federal withdrawals outside of Alaska. The table reflects supplementary data provided by officials in the Department of the Interior and the Department of Agriculture.

In some instances, the figures in the table overstate the amount of acreage withdrawn since the same land may be subject to several types of withdrawals. Thus, the same acreage may appear as withdrawn under several categories. No available data isolate multiple withdrawals of the same lands and provide reliable estimates of the gross acreage of the public domain withdrawn from entry under the general mining laws.

The figures in the table somewhat understate the amount of acreage because the table itemizes only the major categories of withdrawals. The table omits a host of withdrawals involving smaller areas of the public domain for purposes such as government administrative activities or geothermal areas.

One cannot determine whether the overstatement exceeds the understatement because one cannot estimate, without painstaking review of individual withdrawals, the extent of double counting.

13. See GAO Report, supra, n.6, at 33. A federal agency initiates a withdrawal of land from the public domain by filing an application for withdrawal with BLM. BLM immediately "segregates" or sets aside the land administratively pending completion of the withdrawal process — issuance of a Secretarial or an Executive Order of withdrawal or revocation by the requesting agency of its withdrawal application. FLPMA § 204, 43 U.S.C. § 1714, ELR STAT. 41462 (1976). For applications filed before FLPMA, BLM's policy is to hold the land in this segregated state until 1991. About 5.8 million acres are in this class. For applications filed after FLPMA, BLM segregates the land for two years. About 4.8 million acres are currently the subject of post-FLPMA withdrawal applications.

14. See EPC Report, supra n.7, at 64, 66. This acreage includes 55.9 million acres in Alaska closed to mining under ANILCA as wilderness study areas, 16 U.S.C. § 3209 (Supp. IV 1980). See GAO Report, supra n.6, at 31.

15. See EPC Report, supra n.7, at 65, 66. 8.6 million acres of wilderness areas in national forests in Alaska are closed to mineral entry under ANILCA, 16 U.S.C. § 3209 (Supp. IV 1980). All other wilderness areas are open to mineral entry until December 31, 1983, after which they will close. Wilderness Act § 4(d)(3), 16 U.S.C. § 1133(d)(3), ELR STAT. 41415 (1976). In the meantime, the land managing agencies generally restrict access and operations severely enough to warrant classifying these lands as de facto withdrawals. See generally Parker v. U.S., 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); GAO Report, supra n.6, 34-35.

16. See EPC Report, supra n.7 at 65. Since they are not formally withdrawn, national forest wilderness study areas under RARE II remain open to entry until designated by Congress as wilderness areas. Mountain States Legal Foundation v. Andrus, 499 F. Supp. 383, 11 ELR 20044 (D. Wyo. 1980). Even so, administrative restrictions on access to and development of mining claims and leases in many instances effectively preclude mineral development. See Parker v. U.S., 309 F. Supp. 593, 1 ELR 20522 (D. Colo. 1970), aff'd, 448 F.2d 793, 1 ELR 20489 (10th Cir. 1971), GAO Report, supra n.6, 34-35.

17. See EPC Report, supra n.7, at 65. BLM wilderness study areas under § 603 of FLPMA are open to mineral entry unless the Secretary of the Interior withdraws them under § 204 for reasons other than preserving their wilderness character. 43 U.S.C. § 1782(c), ELR STAT. 41475 (1976). Even though these areas are formally open to mineral entry, administrative restrictions on access to and development of mining claims in many instances effectively preclude mineral development. See Rocky Mt. Oil & Gas Ass'n v. Watt, 13 ELR 20038 (10th Cir., Nov. 30, 1982); Utah v Andrus, 486 F. Supp. 995, 10 ELR 20570 (D. Utah 1979); GAO Report, supra n.6, 34-35.

18. Estimate by BLM officials. The figure in the table represents lands selected by the State of Alaska under ANILCA. Ultimately, 104 million acres of these state selection lands will be transferred to the state. Approximately 60 million acres of state selections have been tentatively approved by the federal government and are now essentially under state control. The state may, of course, open its selected lands to mining under state law.

19. Estimate by BLM officials. The figure in the table represents lands withdrawn for native selections under ANILCA, under which 44 million acres ultimately will be transfered to Alaskan natives control. Although native selections are largely complete, all lands segregated for those selections remain withdrawn.

20. H.R. 3364, 97th Cong., 1st Sess. (1981).

21. 16 U.S.C. § 1133(d)(3), ELR STAT. 41415 (1976).

22. GAO Report, supra n.6, at 13.

23. 47 Fed. Reg. 54557 (Dec. 3, 1982).

24. H.R. 5603, 97th Cong., 2d Sess. (1980).

25. GAO Report, supra n.6, at ii-iii, 8-10.

26. 43 U.S.C. § 1714(1), ELR STAT. 41463 (1976).

27. Supra n.6.

28. Id. at 30.37.

29. H.R. 6542, 97th Cong., 2d Sess; 128 CONG. REC. H5784 (Aug. 12, 1982.)

35. See, e.g., 7 PUB. LAND NEWS, No. 4, at 2 (Feb. 4, 1982), No. 13, at 2 (June 24, 1982).