United States Department of the Interior
OFFICE OF TifE SECRETARY
W .ASHINGTON, D.C. 20240
July 14, 1977
Memorandum
To: The Secretary From: Assitant Secretary-Land and Water Resources Subject: Wilderness Process Under P.L. 94-579 and the Applicability of Section 603(c)
Tbere fs a legal question and different consequences from deciding that question one way or the other which are described later on; however, let's start out by describing what the Sec. 603(c) restrictions mean.
Section 603(c) states that "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
As the Solicitor's opinion states, some other uses which would not impair suitability woudl be allowed; others clearly would not.
According to BLM, those activities which would not be allowed include:
-logging, clear cut or selective rights-of-way -in lieu selections by States - desert land entries
-special use
-reservoir construction
-animal control
-grazing, no increase in numbers of animals
-exchanges
-withdrawal for specific use
- Indian allotments
-permanent road construction
-mineral location
-revegetation, chemical/mechanical.
Activities that would be allowed include: -fencing -spring development -trails -salvage of timber -recreation
-fishing
-mineral leasing
If all lands are subject to the Sec. &03(c) restrictions, 174 million
acres would be involved, excluding Alaska, until some kind of
inventory fs completed.
If a first cut is made on roadless areas over 5,000 acres, 46-49 million
acres would be under these restrictions untfl excluded through the
identification of wilderness characteristics.
If a ffnt cut fs made on the basts of roadless area over 5,000 acres
wfth wilderness characterfstfcs, approximately 40,000,000 acres would
be under these restr:Jctions. untfl excluded in the actual wfldemess
eva1uati0J.1.,...,. ,
Approximat~lr 9 mfllion acres •ight be finally fdentffied as being
suitable for wilderness.
A11 these are very rough ffgures.
I. The Solicitor's office has held that Sec. 603(c) requfrfng the
Secretary •to manage such lands... so as not to fq~afr the suitability
of such areas for presentation as wilderness, subject to the
continuation of existing mining and grazing uses,• applies to all
BLM lands PRIOR to the completion of the inventory process. (Solicitor's memo attached.)
land and Water belteves a dffferent but reasonable legal opinion
fs possible: That Sec. 603(c) applies only to those lands that have
been fdentffied as having wilderness cbarac:terfstfcs through or after
the inventory process. (Gary WfckU liM!IIIO attached.)
In ftllll I, all land would be considered bavfng wfldemess potentfal until excluded and in item II, land would not be included for wilderness sutdy until the inventory required in Sec. 603(c) was completed
Altbough in the end we might .t up with the same rnulb, the
aueq,~~eiiCft. of getting to that pofnt are dfffaNnt enQ011t that the
Sac:retary needs to make a policy decision. This assumes, of course,
that the Wll opfnfons are reasonble, the statutes •ttow tile '
flexfbtlfty to go efthlr wa,y -- an asslJI1ltfon objecttd to by the
Solicitor.
1. The Solicitor's Opinion.
(a) POLITICAL CONSEQUENCES. No matter what process in finally adopted for completing the inventory, it is clear that a strong negative
reaction will result from adopting the Solicitor's opinion. Congress
did not intend such an interpretation; the user groups, already
concerned about the implementation of P.L. 94-579, would have perhaps
the strongest argument for attacking the whole Act as being unworkable.
There would be efforts to modify the Act and clarify the language, a
process that could take years and delay the process of getting the
appropriate lands into the wilderness system.
Even wilderness groups are concerned about the reaction to such an
interpretation, and at least some members do not believe the
interpretation helps them at all.
(b)LEGAL CONSEUQUENCES. The Solicitor's offices states that if a decision is made to adopt an interpretation different than theirs,
the likelihood of a suit being filed is great and the probability of
loss is at least 70 percent. But ff we proceed with the Solicitor's
opinion and allow new mineral leasing, for example, as BLM is proposing,
there is little doubt'that we will be sued for this also, and the
possibility of being tied up in numerous law suits on specific questions
appears more bothersome than having to decide one issue.
·(c) INVENTORY CONSEQUENCES. Obviously, the exclusion process
will need to be given the highest priority and expedited to free up
lands without wilderness characteristics for new or different uses
prohibited by Sec. 603(c). BLM maintains that this "first cut" or
exclusion process can be completed in two years, and that some cuts
can be made within three months of starting the process, now scheduled
for November. That means we will be engaged in a two year fire drill.
After the first cut, BLM believes that there would remain about 46
•1111on acres for wilderness study on the lower 48 States.
Some of the uses that would be precluded are, as described before,
logg.ing, clean cut and select rights-of-way, in lieu selections by
States, desert l~nd entries, withdrawal for specific use, reservoir .
construction, animal control, etc. These ones would not be allowed
on any land until specifically excluded. Somewhat incongrously, new
mineral leasing would be allowed •
(d) BUDGETARY CONSEQUENCES. BLM fs reconmending that 10 million
dollars needs to be added to the FY 1979 budget because of the need
'to accelerate the whole wilderness process and to allow the expedited
· inventory necessary •
II. LAND AND WATER APPROACH
. (a) Public Reaction Consequences. Although sane groups may object,
· · the public reaction and certainly the Congressional response will be
less ff this policy fs adopted.
en en
(b) Legal Consequences. Although the Solicitor agrees that a law
suit will ensue if we decide not to adopt their opinion and that we
will loose in the end, the advantages of demonstrating that we are
taking a common sense approach until prohibited by the courts far
outweighs the consequences of losing the suit. If we do lose, we
start back where we are now and the burden is on Congress to change
the courts interpretation of the law.
(c) Inventory Consequences. The inventory required in Sec. 603(c)
would not be done on an expedited basis. Instead, wilderness would
become a resource, although one that deserves special care, which is
identified through the BLM planning process. The decision to include
areas for wilderness study would be done carefully, a "proceed
slowly" approach as mentioned in the Solicitor's opinion. Areas
which the existing process has already identified as primitive would
be given the highest priority for wilderness study so a report could
be made by July 1, 1980, statutory deadline.
To protect any area from being excluded for wilderness study through
new actions on uses, the proposal for such action would examine its
affect on the wilderness potential of the land involved through an
EAR or EIS process .
If the environmental analysis showed that the land involved has
1 wilderness characteristics as specified in Sec. 603(a) and the
Wilderness Act, then the action would not be allowed if inappropriate.
I (d) Budgetary Consequences. Would not have to be the same as I.
The extra burden could 6e simply thrust upon BLM; however, Land and
Water strongly believes money should be requested and directed toward
improvement of the existing process, incorporating the wilderness
requirements an,d hopefully ending up with better overall resource
decisions. ·
To sum up, the advantages of adopting the policy that Sec. 603(c) does not apply to all BLM lands are:
! (1) Less Congressional and public reaction, less probability that
the whole Act will be subjected to modification;
(2) Litigation, perhaps, but litigation where it does not hurt to
be wrong;
(3) A "slow, careful process• to determine what lands should or
' should not be studied for wilderness suitability -- which means being
i in a better position to defend the exclusions or inclusions -- accomplished
' outside the pressure to quickly exclude areas; (4) An improved system for identifying resource values of all lands;
· and, most importantly, (5) A more certain path to achieving wtlderness status for 1.1ppropriate
't public lands.
United States Department of the Interior
Vernon Hoven
In Reply Refer To:
D4219-St. Joe River
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
APR 8- 1911
OFFICIAL
FILE COPY
Honorable Max Baucus House of Representatives
Washington, D.C. 20515
Dear Mr. Baucus
We are pleased to respond to your letter of February 22, 1977, eclosing correspondence from Mr. Vernon Hoven, with respect to mining interests associated with the St. Joe River in Idaho
Mr. Hoven's clients' interest int he preservation of the river is commendable. It should be noted, however, that hte study of the St. Joe River is the responsibility of the Forest Service, Department of Agriculture. We understand that the study is complete and that a recommendation with respect to the river will be made to the President shortly. Your attention is directed to sention 9 of the Wild and Scenic Rivers Act (copy enclosed). You will note that the Act addresses the applicability of Federal mining and mineral leasing lawas when there are existing valid rights or perfected claims. Mr. Hoven's clients should consult with the Forest Service to determine the regulations under which mining activities could be undertaken and the treasures which would have to be met to safeguard the river resource. The problems encountered by property owners during these extended studies are recognized. You may be assured that we intend to press for timely submission to Congress of those studies for which we have reponsibility. Sincerely Cecil D. Andrus
Enclosure
cc: Secretary's File/Secretary's Reading File
AS/FW--FOR Files/RAS(2)/Chron
Mr. Cooksy /CL/Forest Service
PNQRO
ABUCK:c1f:3-10-77 ESI/13901
COPY FOR THE SECRETARY'S OFFICE
UNITED States Department of the Interior OFFICE OF THE SECRETARY
.WASHINGTON, D.C. 20240
July 28, 1977
Honorable John V. Evans
Governor of Idaho
State Capitol
Boise, Idaho 83720
Dear John
In his Environmental Protection Message, the President announced that he was preparing legislation to designate 8 rivers or segments of rivers as components of the National Wild and Scenic Rivers System. The Bruneau River from Black Rock Crossing to Hot Creek (71 miles) together with its tributaries, the Jarbridge River from the juction of its East and West Froks to its confluence with the Bruneau (29 miles) and Sheep Creek from Mary's Creek downstream to its confluence with the Bruneau (21 miels), was one of the 8 proposals.
We are plased to forward for your information and use copies of the (1) draft legislative proposal, (2) study report, and (3) letter transmitting the report and legislative proposal to the President. Thes materials have been furnished to the appropriate congressional committees for consideration.
If there are any questions, please contact us or Mr. Maurice H. Lundy, Regional Director, Bureau of Outdoor Recreation, Federal Building, 915 Second Avenue, Seattle, Washington 98174, telephone 206-442-4706
Sincerely Yours,
(sgd) Cece
