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Monday, February 28, 2011

Issues Regarding a National Land Parcel Database


Peter Folger
Specialist in Energy and Natural Resources Policy

The federal government’s efforts to coordinate its geospatial activities, through the Federal Geographic Data Committee (FGDC) and the development of the National Spatial Data Infrastructure (NSDI), include a strong emphasis on land parcel data. Land parcel databases (or cadastres) describe the rights, interests, and value of property. Ownership of land parcels is an important part of the legal, financial, and real estate system of a society. The Department of the Interior’s Bureau of Land Management (BLM) is assigned the role of lead agency coordinating land parcel data for federal lands, and is responsible for performing cadastral surveys on all federal and Indian lands. According to BLM, “Cadastral surveys are the foundation for all land title records in the United States and provide federal and tribal land managers with information necessary for the management of their lands.”

Although BLM is steward of federal land parcel data and coordinator for cadastral data under the FGDC, a 2007 National Research Council (NRC) report found that a coordinated approach to federally managed parcel data did not exist. Legislation that would have addressed some of the issues for creating a national cadastre (H.R. 1520, the Federal Land Asset Inventory Reform Act of 2009) was introduced in the 111
th Congress but was not enacted. Coordinating all land parcel data, including that produced for local and regional needs on non-federal lands, remains a challenge.

Why a national land parcel database? The National Geospatial Advisory Committee (NGAC) observed that the federal government’s land parcel data is missing an arrangement for acquiring the detailed property-related data necessary to make decisions during times of emergency, such as a natural disaster. In addition to emergency response to disasters, other possible needs for a national land parcel database include responding to the home mortgage foreclosure crisis, dealing with wildfires, managing energy resources on federal lands, and dealing with the effects of climate change. Some individual federal programs could benefit from improved estimates of the number of acres of federal land, such as the Payments in Lieu of Taxes (PILT) program, which requires a precise tally of federal acres within counties in order to calculate federal payments to local governments.

Administrative options have also been proposed to achieve the vision for a land parcel database described in the 2007 NRC report: a distributed system of land parcel data housed with the appropriate data stewards but accessible through a Web-based interface. Some recommend that the Office of Management and Budget (OMB) and the Department of the Interior take a stronger hand in enforcing the requirements of OMB Circular A-16 and Executive Order 12906, which created the FGDC and instigated efforts to create the NSDI. NGAC also recommended a Geographic Information Officer within each federal department or agency, and a geospatial leadership and coordination function in the Executive Office of the President. The Obama Administration issued supplementary guidance to Circular A-16 on November 10, 2010, that could address some of the some of the issues raised in the NRC report, particularly regarding data sharing, coordination, and funding.

The NRC recommended both a federal land parcel coordinator and a national land parcel coordinator. The first would be responsible for federal lands and property; the second would coordinate parcel data from all sources, both public and private lands. A truly national land parcel cadastre would likely require strong partnerships between the federal government and state and local governments.



Date of Report: February 15, 2011
Number of Pages: 17
Order Number: R40717
Price: $29.95

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Wednesday, February 16, 2011

Administrative Appeals in the Bureau of Land Management and the Forest Service

Kristina Alexander
Legislative Attorney

Congress has expressed an interest in the appeals processes of the Bureau of Land Management (BLM) and the Forest Service because of its complexity, and because of allegations that the appeals processes have restricted the ability of the agencies to manage the resources under their care. Also, Congress has a continued interest in public participation in agency decision making, enacting two statutes (in 1992 and in 2003) that address administrative appeals in the Forest Service.

Administrative appeals are challenges to agency actions that agencies attempt to resolve themselves. Agencies set up hearing processes and regulations to meet the requirements guaranteed by the Fifth Amendment of the U.S. Constitution—that no person will be deprived of property without the due process of the law. This report describes the appeals processes of the BLM of the Department of the Interior (DOI), and the Forest Service of the Department of Agriculture. These appeals are not all formal adjudicatory proceedings under the Administrative Procedure Act (although some have similar procedures), but are defined primarily by agency regulation.

BLM has many different types of administrative appeals. The type of appeal depends, in large part, on the type of action taken by BLM. Decisions regarding land use plans have one type of review that differs slightly for challenges by governors. Decisions regarding minerals, oil and gas, forests, and grazing have a different appeals process, sometimes even having different processes within those categories. Many, but not all, BLM decisions have a final agency review by an appeals board under the Department of the Interior. Sometimes the final review is completed by an Administrative Law Judge.

The Forest Service also has multiple types of reviews, although it does not have an appeals board. For the most part, Forest Service administrative appeals are based on the type of decision being challenged. Forest plans have one process. However, projects implementing those plans have different types of administrative appeals depending on the underlying statute from which the project was authorized. Decisions regarding use and occupancy of forests have another appeals process, which differs depending on the level of employee who made the decision being challenged.



Date of Report: February 7, 2011
Number of Pages: 21
Order Number: R40131
Price: $29.95

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Monday, February 14, 2011

Gray Wolves Under the Endangered Species Act: Distinct Population Segments and Experimental Populations

Kristina Alexander
Legislative Attorney

M. Lynne Corn
Specialist in Natural Resources Policy


The wolf was among the first animals protected under the Endangered Species Preservation Act, a predecessor to the current Endangered Species Act of 1973 (ESA). In 1978 the gray wolf was listed as endangered in all of the conterminous 48 states except Minnesota, where it was listed as threatened. With the exception of experimental populations established in the 1990s, the protections for the gray wolf have been diminishing since that date, as wolf populations have increased in some areas—primarily in the Northern Rocky Mountains, but not in the Southwest. The use of distinct population segments (DPSs), a term created in the 1978 ESA amendments, has played a role in that reduced protection. DPSs allow vertebrate species to be divided into distinct groups, based on geography and genetic distinctions. This report analyzes the DPS designation process as it is applied to the gray wolf. It also examines experimental populations of wolves under the ESA and their protections.

ESA protection for wolf DPSs has changed back and forth since the first DPSs—Western and Eastern—were proposed in 2003. Each effort by FWS to delist the wolf or designate a DPS has been rejected by a court. In 2004, the U.S. Fish and Wildlife Service (FWS) determined that because of the population size, those DPSs no longer needed the protection of the ESA and so were delisted. The Western and Eastern DPS designations and delistings were nullified by courts. In 2007, FWS designated and delisted the Western Great Lakes DPS, and in early 2008, FWS designated and delisted the Northern Rocky Mountains DPS. However, courts found both delistings flawed and vacated both rulemakings. In December 2008 FWS returned the wolves in the Western Great Lakes and parts of the Northern Rocky Mountains areas to their former protected status, eliminating the DPSs. That same rulemaking redesignated wolves in southern Montana, southern Idaho, and all of Wyoming as “nonessential experimental populations,” which they were prior to the DPS efforts. In April 2009 FWS published notices establishing DPSs in the Western Great Lakes and the Northern Rockies and delisting both populations except for in Wyoming. FWS was sued regarding the Western Great Lakes delisting and settled the case, returning the population to its previous status (threatened and endangered). A court held in August 2010 that the Northern Rockies delisting violated the ESA, directing that the delisting be declared invalid. The Northern Rockies wolves were returned to their experimental population status, meaning they are treated as threatened in most circumstances.

The 112
th Congress responded to court nullification of the regulatory delistings by introducing legislation to eliminate all protections of the gray wolf nationwide under the ESA (H.R. 509— Rehberg; S. 249—Hatch), and to let states decide how to protect wolves found in Idaho and Montana (H.R. 510—Rehberg). If passed, they would be the first examples of Congress removing protections for a specific species under the ESA. The 111th Congress also had proposed legislation to restrict protection of the wolf. Three House bills would have reduced or eliminated ESA protections of the gray wolf: H.R. 6028 (Edwards—Texas), H.R. 6485 (Bishop—Utah), and H.R. 6486 (Bishop—Utah). Two Senate bills took more regional approaches addressing wolves in the Northwest: S. 3825 (Risch), and S. 3864 (Baucus).


Date of Report: February 3, 2011
Number of Pages: 21
Order Number: RL34238
Price: $29.95

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Friday, February 11, 2011

Deregulating Genetically Engineered Alfalfa and Sugar Beets: Legal and Administrative Responses


Tadlock Cowan
Analyst in Natural Resources and Rural Development

Kristina Alexander
Legislative Attorney


Monsanto Corporation, the developer of herbicide-tolerant varieties of genetically engineered (GE) alfalfa and sugar beet (marketed under the name of Roundup Ready alfalfa and Roundup Ready sugar beet), petitioned USDA’s Animal and Plant Health Inspection Service (APHIS) for deregulation of the items. Deregulation of GE plants is the final step in the commercialization process. Monsanto filed a petition for deregulation of its GE alfalfa in 2004, and for sugar beets in 2005.

As part of the deregulation process, APHIS conducts an environmental review under the National Environmental Policy Act (NEPA) to determine whether any significant environmental impacts will result from deregulating the item. APHIS conducted a limited review, known as an environmental assessment (EA), of the GE plants to assess the impacts of growing them on a commercial scale. For both GE alfalfa and sugar beets, APHIS issued a “finding of no significant impacts” (FONSI), in June 2005 and March 2005, respectively.

Lawsuits subsequently challenged the adequacy of the EAs as the basis of the FONSI. The courts agreed that APHIS should have prepared an environmental impact statement (EIS) for both deregulation decisions. APHIS was directed by the court to complete an EIS on the effects of deregulating both of the GE varieties.

The court in the GE alfalfa case halted planting of the genetically modified seed after May 3, 2007, and nullified the deregulation. The injunction was appealed to the U.S. Supreme Court, which held that the injunction was too broad and that the court should have considered partial deregulation. The Supreme Court did not discuss the appropriateness of the environmental review.

The court in the GE sugar beet case did not formally prohibit planting sugar beet, but it voided APHIS’s deregulation decision in August 2010. This decision undoes the five-year-old approval of GE sugar beet, from which nearly half of U.S. sugar is derived. APHIS announced on September 1, 2010, that the agency is evaluating a request to partially deregulate GE sugar beets, which would permit planting and harvesting sugar beets under certain restrictions. APHIS issued four permits authorizing seedling production that would not allow flowering or transplanting without additional authorization. In December, a judge ordered those seedlings pulled from the ground, holding that APHIS had violated NEPA in issuing the permits. This ruling was put on hold by the Ninth Circuit.

APHIS anticipates that the draft EIS for sugar beet will be publicly available May 2011, and the final EIS in May 2012. A draft EIS for alfalfa was released to the public on December 14, 2009. The final EIS was released on December 16, 2010, and contained three options: full deregulation, continued regulation, and partial deregulation. On January 27, 2011, Secretary Vilsack announced that APHIS was granting GE alfalfa full deregulation. The basis of the decision was that GE alfalfa did not pose a greater plant pest risk than other conventional alfalfa varieties.

The cases of GE alfalfa and sugar beet highlight continuing policy questions about the adequacy of APHIS’s deregulation protocol, particularly regarding the environmental review process. In their suits against APHIS, plaintiff lawyers cited the EAs’ failure to assess the impact on non-GE alfalfa growers (particularly those who export to Japan, Korea, and Taiwan) and on producers of commercial table beet and chard seeds (species that can cross-pollinate with GE sugar beet).



Date of Report:
February 1, 2011
Number of Pages: 18
Order Number: R41395
Price: $29.95

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National Forest System (NFS) Roadless Area Initiatives


Kristina Alexander
Legislative Attorney

Ross W. Gorte
Specialist in Natural Resources Policy


Roadless areas in the National Forest System (NFS) have received special attention for decades. Many want to protect their relatively pristine condition—to provide habitat for wildlife, to protect water quality and aesthetics, and to retain their value for dispersed recreation. Others want to use the areas in more developed ways—to explore for and develop minerals (including oil and gas), to harvest timber, and to provide opportunities for motorized recreation or developed recreation.

Two different roadless area policies have been offered in the last decade. On January 12, 2001, the Clinton Administration’s roadless area policy established a nationwide approach to managing roadless areas in the National Forest System to protect their pristine conditions. The Nationwide Rule, as it will be called in this report, generally prohibited road construction and reconstruction and timber harvesting in 58.5 million acres of inventoried roadless areas, with significant exceptions.

The Bush Administration initially postponed the effective date of the Nationwide Rule, then issued its own rule that allowed states to plan how roadless areas were managed. It issued a new rule on May 13, 2005. The State Petition Rule allowed governors to petition the Secretary of Agriculture for a special rule for managing the inventoried roadless areas in their states.

Both rules were heavily litigated, with the Ninth Circuit ultimately holding that the Nationwide Rule should be in place, and the Tenth Circuit still considering an appeal as to whether that rule is valid. The first action was a preliminary injunction in 2001, which halted implementation of the Nationwide Rule, but was reversed by the Ninth Circuit. In 2003, the federal District Court for Wyoming permanently enjoined implementation of the Nationwide Rule. This holding was dismissed as moot by the Tenth Circuit in light of the 2005 State Petition Rule. In 2006, the federal District Court for Northern California enjoined the State Petition Rule, and directed the Administration to apply the Nationwide Rule until it had complied with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). Instead, the Forest Service allowed governors to petition for a roadless area management rule for their states under the Administrative Procedure Act (APA). Idaho and Colorado filed petitions under this process. The Idaho petition was approved in October 2008, and upheld by a federal court in 2011. Colorado filed and then twice amended its petition, which is still pending.

In the meantime, a new lawsuit in Wyoming led to a second injunction of the Nationwide Rule by that district court. To avoid conflicting rulings, the California district court limited its 2006 holding (that the Nationwide Rule applied) to certain states. In August 2009, the Ninth Circuit upheld the lower court finding that the State Petition Rule was invalid and that the Nationwide Rule should be in place nationwide. The appeal of the Wyoming injunction, pending in the Tenth Circuit, could lead to a conflict between the circuits, potentially creating an issue for the U.S. Supreme Court or Congress, unless the Forest Service initiates a new rule.

Following the Ninth Circuit decision, the Secretary of Agriculture reserved decisions related to timber harvesting and road construction in roadless areas to the Secretary. Much of that authority was subsequently delegated to the Chief of the Forest Service.

Legislation was introduced in the 111
th Congress to codify the Nationwide Rule by prohibiting building roads in or harvesting timber from areas designated on maps as roadless, with certain exceptions (H.R. 3692/S. 1738).


Date of Report:
February 2, 2011
Number of Pages: 22
Order Number: RL30647
Price: $29.95

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