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7
Areas of the Greatest Conflict in Values
Modern controversies over oil and gas leasing on federal lands have
often been associated with questions of managing areas of federal land for
such purposes as wilderness designation, protection of the critical habitat
of endangered species and other wildlife, and protection of large, relatively
undeveloped ecosystems. Each is considered below.
THE WILDERNESS REVIE:VV ANI)
DESIGNATION PROCESS
For a number of years, the BLM and the Forest Service have been
reviewing the lands under their respective jurisdictions for possible con-
gressional designation as part of the National Wilderness Preservation
System (NWPS) created by the Wilderness Act of 1964 (16 USC 1131-
1136~. Generally only tracts of land over 5000 acres in size, without roads,
and otherwise still in a relatively natural condition, qualify for wilderness
designation. Thus any significant and relatively lasting disturbance, such
as road building, that usually accompanies oil and gas exploration, tends
to disqualify an area (although Congress can choose to overlook previous
disturbances).
The decision to designate an area as wilderness is one that Congress
has reserved for itself, although Congress can be significantly influenced by
the recommendations of the managing federal agency. Especially in recent
years, oil and gas potential has been taken into account by the Forest Service
and the BLM in deciding whether to recommend that Congress designate
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areas under their respective jurisdictions as wilderness. It may also be
taken into account by Congress in making its decisions, and boundaries of
designated wilderness areas have sometimes been drawn with oil and gas
potential in mind.
However, such potential usually remains speculative in the absence of
actual drilling, and this creates a dilemma. Drilling (and accompanying
road building) to gain this information can alter the natural conditions
enough to disqualify the area from wilderness consideration. Therefore,
lack of certainty as to the presence or absence of commercial quantities
of oil and gas seems practically unavoidable at the time the wilderness
decision is made.
Once an area has been designated by Congress as wilderness, oil and
gas leasing is, under the terms of the Wilderness Act, no longer permitted.
Furthermore, the act prohibits structures or mechanized equipment in
designated wilderness, except pursuant to "valid existing rights" (16 USC
1133~. Such rights may be created by oil and gas leases in effect when the
area is designated. With this exception, wilderness designation generally
withdraws the land from oil and gas activity.
Although these restrictions apply only upon congressional designation
of an area as wilderness, in recent years Congress has also placed similar
limits on most lands that are under serious consideration for congressional
designation as wilderness, until it decides whether a particular area deserves
wilderness status. This leasing prohibition in so-called study areas was
included in almost every annual appropriation act in the early 1980s and
was made permanent by section 5112 of the Federal Onshore Oil and Gas
Leasing Reform Act of 1987 (101 Stat. 1330-256; 30 USC 22~3(a)~.
These prohibitions on oil and gas activity have helped to make the
wilderness review and designation process controversial in a number of
areas. The principal reasons underlying the controversy are the size of
the wilderness study tracts, the sharpness of the conflict of values between
wilderness advocates and those who want to extract the mineral resources
of the area, and the location of a number of these roadless lands in areas
where the oil and gas industry has high interest.
The practice of Congress in recent years has been to consider wilder-
ness designation on a statewide basis for each federal land management
agency. Congress has, for example, enacted separate statutes designating
certain tracts on the National Forests as wilderness in almost all of the west-
ern states. Congress is just beginning the process of considering wilderness
designation, on a state-by-state basis, for lands managed by the BLM. This
wilderness review for BLM lands was initiated by Congress in the Federal
Land Policy and Management Act of 1976 (43 USC 1701-1782), and BLM
must make its recommendations to Congress on all of its roadless areas by
1991.
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108
Congressional "Release" of Lands Not Designated Wilderness
Even if Congress decides against designating a specific roadless area
as wilderness in enacting a state wilderness bill, this often does not end
the conflict between wilderness potential and oil and gas leasing. Under
the practice Congress has usually followed in the past several years, spe-
cific areas not designated as wilderness are either "released" for ordinary
multiple-use management by the Forest Service (and presumably by the
BLM, if Congress uses the same approach to BLM wilderness study areas)
or designated for "further study" of their wilderness potential and suitability
for nonwilderness management goals.
The standard "release" approach used by Congress has been to include
a legislative finding that the agency's previous consideration of wilderness
suitability is adequate for the life of current plans. For example, in the
language of the Utah Wilderness Act of 1984 (98 Stat. 1657), which is
typical of 1980s legislation designating National Forest wilderness, the
agency "shall not be required to review the wilderness option prior to
revisions of the [current] plans, but shall review the wilderness option when
the plans are revised, which revisions will ordinarily occur on a ten-year
cycle, or at least every fifteen years, unless prior to such time the [agency]
finds that conditions in a unit have significantly changed" (98 Stat. 1657,
1659-1660~.
However, this kind of "release" does not constitute a congressional
decision that such "released" lands must be leased for oil and gas (or
developed to serve other commodity uses). "Release" lifts the statutory
ban on oil and gas leasing in "released" roadless areas, but it only makes
the land subject to multiple-use planning and decision making, which may
or may not authorize oil and gas activity. The agency still has the discretion
to decide not to lease the area in order to protect other values on these
lands. Again, according to the Utah Wilderness Act of 1984: ""Areas] . . .
not designated wilderness upon enactment of this Act shall be managed
for multiple use in accordance with land management plans . . . Provided,
That such areas need not be managed for the purpose of protecting their
suitability for wilderness designation prior to or during revision of the . . . land
management plan" (98 Stat. 1660, emphasis added).
The permissive character of this legislative approach allows the agency
to decide, prior to the following planning cycle, against oil and gas leasing
for any supportable reason, such as protecting wildlife habitat or the
area's potential for eventual designation as wilderness. It also allows the
agency to reconsider wilderness designation in subsequent planning cycles.
Furthermore, the-"release" of such nondesignated lands does not prevent
Congress from reconsidering at any time its decision not to designate the
area as wilderness.
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For all of these reasons, conflicts between wilderness potential and
oil and gas leasing do not end when wilderness candidate areas emerge
from congressional consideration without being designated as wilderness.
Wilderness advocates have often continued to oppose oil and gas leasing
in these areas, in order to keep the wilderness option open, an option that
would otherwise be jeopardized by oil and gas exploration and development.
"Release'' and the Planning Process
lb date, both the Forest Service and the BLM have conducted special,
systemwide reviews of the wilderness potential of their lands, outside their
ordinary planning processes. These reviews have been largely separate
from the agencies' multiple-use planning processes. The Forest Service's
review was in the form of successive nationwide Roadless Area Reviews and
Evaluations, RARE I and II, while the BLM is carrying out one systemwide
wilderness review that must be completed by 1991. These special reviews
sense up the initial designation decisions, with agency recommendations, to
Congress.
Congress's practice, in turn, has been to take a "first cut" at designa-
tions in statewide wilderness bills, designating some lands, calling for further
study of others, and releasing the remainder for multiple-use management.
Lands in this last category are henceforth addressed in the agency's ongoing
planning process. The net effect of this congressional practice is to make
the planning process the focal point for future wilderness evaluations. Prom
that process will emerge decisions whether these undesignated wilderness
candidate areas are to be managed in a way that retains their potential for
wilderness designation or are instead made available for oil and gas leasing.
The conflicts between petroleum activity and roadless area preservation
are an important part of the controversy that exists over onshore federal oil
and gas leasing. Much (although not all) of the litigation over such leasing
in recent years has involved areas with the potential for congressional
designation as wilderness. But it is important to note that the conflict
is not simply between wilderness values and production of oil and gas.
Instead, the road building that usually attends exploration for oil and gas
may disqualify an area from wilderness consideration.
The amount of acreage involved in the wilderness review, designation,
and "release" process is substantial. When considered in the context of oil
and gas leasing, however, acreage numbers alone may paint a misleading
picture. Many roadless lands lack oil and gas potential, or are so remote
and rugged as to make petroleum exploration, extraction and transportation
uneconomic. Still, the acreage figures do provide some rough indication of
the extent of the potential conflict.
The Forest Service's RARE II process, for example, reviewed about
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62 million acres of potential wilderness on the National Forests and rec-
ommended that about 15 million acres be designated wilderness, 36 million
acres be "released" for multiple-use management, and 11 million acres be
subject to further study. The BLM has determined that about 25 million
acres under its jurisdiction is roadless and has the potential for wilderness
designation. Many observers expect it to recommend about 10-15 million
acres for wilderness designation, with the rest "released" for multiple-use
management. Congress is not bound by these agency recommendations,
of course, so no firm figures on wilderness-potential acreage that might
eventually be subject to the multiple-use planning process can be provided.
WILDLIFE HABITAT PROTECTION
Similar and sometimes closely related questions about ultimate man-
agement goals for certain geographic areas have also complicated the oil
and gas leasing process in recent years. Efforts in some Rocky Mountain
states to preserve quality habitat for big game or other terrestrial and
aquatic species have frequently led to opposition to oil and gas leasing, es-
pecially for those species that are migratory and prized by hunters. In some
cases, relatively small land units may be crucial habitats, either seasonally
or continuously, for indigenous fauna.
Threatened and endangered species pose similar concerns, especially
for those species like the grizzly bear that have relatively large critical habi-
tats. The Endangered Species Act generally mandates full protection for
species that are formally listed as threatened or endangered, but identifying
the critical habitat and specifying the measures necessary for full protection
are often tasks that the agencies' land and resource planning process must
address.
ECOSYSTEM MANAGEMENT
1
Concerns are also emerging about what some call ``ecosystem manage-
ment,9, and the fact that jurisdictional and management lines do not follow
ecosystem boundaries. Certain ecosystem characteristics such as wildlife
and hydrology, some argue, require broader management coordination be-
tween adjacent planning units of the same agency and between adjacent
lands managed by different agencies. This need occasionally leads to pro-
posals to expand national parks (where oil and gas development is generally
prohibited) to include some adjacent multiple use lands or to manage the
latter in ways that provide "buffer zones" for the parks. State, tribal, and
private land may often be involved as well. Here too, the planning process
will usually provide the vehicle for addressing such issues of coordination
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and can add complexity to the consideration of oil and gas leasing in this
process.
IMPLICATIONS FOR- THIS REPORT
The continuing existence of the wilderness issue, concerns about
wildlife, and emerging debate over ecosystem management have some
important implications for any assessment of oil and gas leasing policy in
relation to planning and NEPA requirements.
Issues like wilderness pose basic questions of values upon which
the relevant agencies and the general public (nationally and in local com-
munities most directly affected) can be deeply divided. ~ be sure, the
planning process often addresses conflicts among values and land manage-
ment goals, but wilderness in particular tends to pose conflicts of a more
fundamental character, on which opportunities for compromise may be
limited. Wilderness character may be prized for its own sake, in addition
to serving other ends like watershed and wildlife protection, and providing
some forms of recreation. On the other hand, wilderness candidate lands
can often be highly sought after by petroleum explorers, because such lands
are unexplored almost by definition and because in some cases seismic work
has indicated the presence of geological structures favorable to petroleum
occurrence.
· Wilderness protection is sometimes difficult to separate from other
concerns in the planning and environmental assessment processes. A road
proposed to provide access to oil and gas development may disqualify an
area from further consideration as wilderness, but it may affect wildlife,
water quality, and nonwilderness recreational opportunities as well. It may
open the area to access by vehicles, facilitate timber harvesting, and reduce
opportunities for small businesses that provide outfitting and guide services.
· These broader wilderness issues are not raised on most of the
federal lands now available for oil and gas leasing. That is, despite the
fact that the wilderness issue is a focal point for controversy over oil and
gas leasing, it is actually a live concern on only a fraction of the federal
lands available for, or now subject to, oil and gas leasing. Therefore, in the
judgment of this committee, there are risks and costs in trying to design
planning, environmental assessment, and oil and gas leasing processes that
would operate uniformly across the country, when the nature of some of
the underlying issues is region-specific. Stated another way, it would be
a mistake to design and uniformly implement procedures for oil and gas
planning and leasing that are aimed primarily at dealing with wilderness/oil
and gas conflicts.
· More broadly, probably nothing that the agencies or the Congress
can do will totally resolve the conflict and controversy over oil and gas
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leasing in relation to wilderness designation. Well- documented Forest and
Resource Management Plans and updated data bases enable the agencies
and the public to better define areas of conflict and potentially establish
workable alternatives. While Congress could make decisions, tract by tract,
that roadless federal lands not designated as wilderness should be leased
for oil and gas, it has not done so. Nor has Congress chosen to make "hard
release" designations for wilderness study areas. Moreover, the committee
believes that it is impractical and ultimately unwise for Congress to attempt
to do so. As difficult as it may sometimes be for the planning process to
deal with fundamental conflicts among the multiple uses, the process is
a useful one characterized by openness, interdisciplinary and interagency
consultation, and public participation.
The nation has made considerable progress in the last 25 years in
settling the wilderness question. Most candidate tracts of federal land have
already been reviewed by the BLM and the Forest Service. Many of them
have already gone through the congressional designation process once, and
the remainder (mostly BLM lands) will do so in the next few years. Some
of the lands not designated by Congress as wilderness have been, and will
continue to be, subject to road building, oil and gas leasing, and other
activities inconsistent with wilderness preservation. Others will likely be
designated wilderness as Congress continues to legislate on the subject.
Over time, then, the number of acres of land with wilderness potential
that the federal agencies can make available for oil and gas leasing has
been steadily shrinking. This fact does not minimize the degree of conflict
on the roadless lands that remain available for oil and gas leasing, but it
does suggest that these conflicts will gradually become much less important
in the overall context of federal land management.
It is not clear whether the same can be said about the other is-
sues discussed wildlife concerns and ecosystem management that may at
times resemble wilderness conflicts in their effects on oil and gas leasing
and the planning process. These questions pose more ongoing problems of
management.
Representative terms from entire chapter:
wilderness designation
