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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 106

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107 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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109 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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110 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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111 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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112 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.