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Friday, April 29, 2011

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; others want to use the areas in more developed ways.

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 halted implementation of the Nationwide Rule in 2001, but was reversed by the Ninth Circuit. In 2003, the federal District Court for Wyoming 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, a federal court in California enjoined the State Petition Rule, and held that the Nationwide Rule applied until the Forest Service complied with the National Environmental Policy Act and the Endangered Species Act. Instead, the Forest Service allowed governors to petition for a roadless area management rule for their states under the Administrative Procedure Act. 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. A proposed rule for Colorado roadless areas was issued on April 15, 2011, with the Forest Service proposing more than twice as many acres to be protected at the highest level—from 257,000 acres in the state’s petition to 562,200 acres in the proposed rule.

In the meantime, a new lawsuit in Wyoming led to a second injunction of the Nationwide Rule by that district court. In August 2009, the Ninth Circuit upheld the California district court ruling 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.

The Tongass National Forest has taken its own route. At first it was included in the Nationwide Rule, but then was temporarily exempted from the rule. That temporary exemption seemed moot when the State Petition Rule came into effect, but after the Ninth Circuit ruling that the Nationwide Rule applied, it was unclear whether the Tongass was still exempt. In March 2011, a federal court ruled it was not, and that the roadless areas in the Tongass National Forest were covered under the Nationwide Rule.



Date of Report: April 18, 2011
Number of Pages: 22
Order Number: RL30647
Price: $29.95

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The Endangered Species Act (ESA) in the112th Congress: Conflicting Values and Difficult Choices


Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney


The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§ 1531-1543) was enacted to increase protection for, and provide for the recovery of, vanishing wildlife and vegetation. Under ESA, species of plants and animals (both vertebrate and invertebrate) can be listed as endangered or threatened according to assessments of their risk of extinction. Habitat loss is the primary cause for listing species. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. Accordingly, when certain resources are associated with listed species—such as water in arid regions like California, old growth timber in national forests, or free-flowing rivers—ESA is seen as an obstacle to continued or greater human use of these resources. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline or conflicts. As a result, ESA is considered a primary driver of largescale ecosystem restoration issues.

The 112
th Congress may conduct oversight of the implementation of various federal programs and laws that address threatened and endangered species. This could range from addressing listing and delisting decisions under ESA to justifying funding levels for international conservation programs. The 112th Congress may also face specific resource conflicts involving threatened and endangered species, including managing water supplies and ecosystem restoration in San Francisco Bay and the Sacramento and San Joaquin Rivers Delta in California (i.e., Bay-Delta) and managing water supplies in the Klamath Basin. In the 112th Congress, resource-specific issues may be addressed independently, whereas oversight on the implementation of ESA may be addressed in debates about particular species (e.g., wolves, polar bears, and salmon). P.L. 112-10 (final appropriations for FY2011) included a legislative delisting of a portion of the reintroduced Rocky Mountain gray wolf population.

The 112
th Congress may consider legislation related to global climate change that includes provisions that would allocate funds to the Fish and Wildlife Service’s endangered species program and/or to related funds to assist species adaptation to climate change. Other major issues concerning ESA in recent years have included the role of science in decision-making, critical habitat (CH) designation, incentives for property owners, and appropriate protection of listed species, among others.

The authorization for spending under ESA expired on October 1, 1992. The prohibitions and requirements of ESA remain in force, even in the absence of an authorization, and funds have been appropriated to implement the administrative provisions of ESA in each subsequent fiscal year. Proposals to reauthorize and extensively amend ESA were last considered in the 109
th Congress, but none were enacted. No legislative proposals were introduced in the 110th or 111th Congresses to reauthorize ESA.

This report discusses oversight issues and legislation introduced in the 112
th Congress to address ESA implementation and management of endangered and threatened species.


Date of Report: April 19, 2011
Number of Pages: 20
Order Number: R41608
Price: $29.95

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Wednesday, April 27, 2011

The Gray Wolf and the Endangered Species Act: A Brief Legal History

Kristina Alexander
Legislative Attorney

The wolf had all but disappeared from the lower 48 states when the Endangered Species Act (ESA) put it on its first list of protected species in 1973. Since then, the gray wolf (Canis lupus) has held every status of protection under the ESA at one time or another, in one place or another. Regulatory efforts have switched from increasing protections of the wolf—culminating in the reintroduction of wolves into three parts of the American West in the 1990s—to reducing protection of the wolf where its population has surged. Litigation has marked each step of the way. Where litigation and regulation have not succeeded, legislation has been tried. P.L. 112-10, § 1713, marks the first legislative delisting in the history of the ESA, removing federal protection of the gray wolf in Montana, Idaho, eastern Washington, eastern Oregon, and north-central Utah.

Two other changes to wolf protection are on the horizon. The Fish and Wildlife Service (FWS) announced that it would recognize a new species of wolf in the lower 48 states, the eastern wolf (Canis lycaon). It is possible that the eastern wolf will become listed under the ESA. Additionally, FWS announced plans to delist gray wolves in the Western Great Lakes area.

This report is a companion report to CRS Report RL34238, Gray Wolves Under the Endangered Species Act: Distinct Population Segments and Experimental Populations. It is intended to provide a brief history of the laws, regulations, and lawsuits related to the wolf’s protected status. Fuller analyses of the concepts discussed in this report can be found in that longer report.



Date of Report: April 21, 2011
Number of Pages: 13
Order Number: R41730
Price: $29.95

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Tuesday, April 26, 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


After near eradication of the gray wolf from the lower 48 states in the first half of the 20th century, the wolf was on the Endangered Species Act’s (ESA’s) first list of endangered species, divided into two subspecies—the Eastern Timberwolf and the northern Rocky Mountain wolf. In 1978 the wolf was listed at the species level (the gray wolf) 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, in which the U.S. Fish and Wildlife Service (FWS) reintroduced wolves to selected areas, protections for the gray wolf have diminished as wolf populations have increased in some areas—such as in the Northern Rocky Mountains. 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.

Experimental populations (Ex Pops) of wolves were reintroduced in three regions in the United States in the 1990s: Central Idaho, Yellowstone, and Blue Range (in Arizona and New Mexico, known as Mexican gray wolves). The Ex Pops in Central Idaho and Yellowstone have grown to over 1,650 wolves as of December 31, 2010, while the Mexican gray wolf population has not surpassed 59 wolves, and as of January 2011 totaled 50.

ESA protection for wolf DPSs has changed back and forth since the first DPSs—Western, Eastern, and Southwestern—were proposed in 2003. Each effort by FWS to delist the wolf or designate a DPS has been rejected by a court. In 2003, FWS determined that because of the population size, the Western and Eastern DPSs no longer needed the protection of the ESA and so those DPSs were downlisted from endangered to threatened. Courts nullified the rulemaking. In 2007, FWS designated and delisted the Western Great Lakes DPS, and in early 2008, FWS designated and delisted the Northern Rocky Mountain DPS. However, courts found both delistings flawed and vacated both rulemakings. In April 2009, FWS again established DPSs in the Western Great Lakes and the Northern Rockies and delisted both populations except for in Wyoming. FWS settled the suit regarding the Western Great Lakes delisting, returning the population to its previous status (threatened and endangered). In August 2010, a court ruled 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 but are endangered outside of the Ex Pop boundaries.

A March 2011 conditional settlement agreement would have ended lawsuits by the participating plaintiffs about Northern Rocky Mountains DPSs for at least five years, but it fell through when a court ruled it lacked the authority to reinstate part of the 2009 DPS rule. Also, Congress likely will address the status of the Northern Rocky DPS by statute. H.R. 1473, § 1713, part of the Full- Year Appropriations Act of 2011 introduced April 11, 2011, would require FWS to reissue the 2009 Northern Rockies DPS rule within 60 days. This bill would have the effect of ending federal control of the gray wolf in Montana and Idaho, but would continue the ESA protections of other wolves in the area, including those in Wyoming.



Date of Report: April 13, 2011
Number of Pages: 24
Order Number: RL34238
Price: $29.95

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Monday, April 25, 2011

The Gray Wolf and the Endangered Species Act: A Brief Legal History

Kristina Alexander
Legislative Attorney

The wolf had all but disappeared from the lower 48 states when the Endangered Species Act (ESA) put it on its first list of protected species in 1973. Since then, the wolf has held every status of protection under the ESA at one time or another, in one place or another. Regulatory efforts have switched from increasing protections of the wolf—culminating in the reintroduction of wolves into three parts of the American West in the 1990s—to reducing protection of the wolf where its population has surged. Litigation has marked each step of the way. Where litigation and regulation have not succeeded, legislation has been tried.

This report is a companion report to CRS Report RL34238, Gray Wolves Under the Endangered Species Act: Distinct Population Segments and Experimental Populations. It is intended to provide a brief history of the laws, regulations, and lawsuits related to the wolf’s protected status. Fuller analyses of the concepts discussed in this report can be found in that longer report.



Date of Report: April 13, 2011
Number of Pages: 12
Order Number: R41730
Price: $29.95

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Thursday, April 21, 2011

Carcieri v. Salazar: The Secretary of the Interior May Not Acquire Trust Land for the Narragansett Indian Tribe Under 25 U.S.C. § 465 Because That Statute Applies to Tribes “Under Federal Jurisdiction” in 1934

M. Maureen Murphy
Legislative Attorney

In Carcieri v. Salazar, ___ U.S. ___, 129 S.Ct. 1058 (2009), the U.S. Supreme Court ruled that a 1934 statute provides no authority for the Secretary of the Interior (SOI) to take land into trust for the Narragansett Indian Tribe (Tribe) because the statute applies only to tribes under federal jurisdiction when that law was enacted. Although the case involves only a small parcel of land in Rhode Island, the reach of the decision may be much broader because it relies on the major statute under which the SOI acquires land in trust for the benefit of Indians. The decision appears to call into question the ability of the SOI to take land into trust for any recently recognized tribe unless the trust acquisition has been authorized by legislation other than the 1934 Indian Reorganization Act (IRA) or the tribe can show that it was “under Federal jurisdiction” in 1934.

The case involves a parcel of land which the SOI had agreed to take into trust for the benefit of the Tribe, thereby presumably subjecting it to federal and tribal jurisdiction and possibly opening the way for gaming under the Indian Gaming Regulatory Act. The land is outside the Tribe’s current reservation, which is subject to the civil and criminal laws of Rhode Island according to the terms of the Rhode Island Indian Claims Settlement Act of 1974 (RIICSA). RIICSA does not explicitly address the possibility that lands other than the “settlement lands” could be placed in trust; nor does it specify what jurisdictional arrangement should apply should that occur. A sharply divided U.S. Court of Appeals for the First Circuit, sitting en banc, ruled in favor of the trust acquisition, with the majority relying predominantly on statutory construction of RIICSA. Dissents, however, criticized this method of resolving the case as mechanical, seeing the consequent elimination of Rhode Island jurisdiction over the land as directly conflicting with the overriding purpose of RIICSA and the State’s bargained-for-objective in agreeing to the settlement—ending all Indian claims to sovereign authority in Rhode Island.

The issues before the Supreme Court were (1) whether the authority under which the SOI has agreed to acquire the land, 25 U.S.C. § 465, a provision of the IRA of 1934, covers trust acquisitions by a tribe that was neither federally recognized nor under federal jurisdiction in 1934, and (2) whether the trust acquisition violated the terms of RIICSA. The Supreme Court’s decision is predicated on the Court’s finding that the definitions of “Indians” and “Indian tribe” in the 1934 legislation unambiguously restrict the beneficiaries for whom the SOI may take land into trust to tribes that, in 1934, were “under Federal jurisdiction.” The Court also held that the Narragansett Indian Tribe was not “under Federal jurisdiction” in 1934. It, therefore, ruled that the trust was not authorized by the statute and reversed the lower court.

A number of tribes have obtained federal recognition since 1934. As a December 2010 trust acquisition for the Cowlitz Indian Tribe may indicate, the Department of the Interior (DOI) may continue to take land into trust for recently recognized tribes, provided an extensive exploration of the particular history of the tribe and its relations with the federal government demonstrates to the satisfaction of DOI that the tribe was “under Federal jurisdiction” in 1934. In the 111
th Congress, there were several bills aimed at amending the IRA; none, however, were enacted. A provision amending the IRA retroactively and ratifying past trust acquisitions was included in the continuing appropriations bill for FY2011, H.R. 3082, as passed by the House of Representatives. In the Senate, S. 1703, as reported by the Senate Committee on Indian Affairs (S.Rept. 111-247), sought to address the issue.

In the 112
th Congress, three bills have been introduced: H.R. 1234, H.R. 1291, and S. 676 (which was reported by the Senate Committee on Indian Affairs on April 7, 2011).


Date of Report: April 15, 2011
Number of Pages: 19
Order Number: RL34521
Price: $29.95

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Effects of Radiation from Fukushima Daiichi on the U.S. Marine Environment


Eugene H. Buck
Specialist in Natural Resources Policy

Harold F. Upton
Analyst in Natural Resources Policy


The massive Tohoku earthquake and tsunami of March 11, 2011, caused extensive damage in northeastern Japan, including damage to the Fukushima Daiichi nuclear power installation, which resulted in the release of radiation. Some have called this incident the biggest manmade release ever of radioactive material into the oceans. Concerns have arisen about the potential effects of this released radiation on the U.S. marine environment and resources.

Both ocean currents and atmospheric winds have the potential to transport radiation over and into marine waters under U.S. jurisdiction. It is unknown whether marine organisms that migrate through or near Japanese waters to locations where they might subsequently be harvested by U.S. fishermen (possibly some tuna in the western Pacific and, less likely, salmon in the North Pacific) might be exposed to radiation in or near Japanese waters, or might consume prey that have accumulated radioactive contaminants.

High levels of radioactive iodine-131 (with a half-life of about 8 days), cesium-137 (with a halflife of about 30 years), and cesium-134 (with a half-life of about 2 years) have been measured in seawater adjacent to the Fukushima Daiichi site.

EPA rainfall monitors in California, Idaho, and Minnesota have detected trace amounts of radioactive iodine, cesium, and tellurium consistent with the Japanese nuclear incident, with current concentrations below any level of concern. It is uncertain how precipitation of radioactive elements from the atmosphere may affect radiation levels in the marine environment.

Scientists have stated that radiation in the ocean will very quickly become diluted and should not be a problem beyond the coast of Japan. The same is true of radiation carried by winds. Barring a major unanticipated release, radioactive contaminants from Fukushima Daiichi should become sufficiently dispersed over time that they will not prove to be a serious health threat elsewhere, unless they bioaccumulate in migratory fish or find their way directly to another part of the world through food or other commercial products.

Currently, it appears that radioactive contamination of seafood from the recent nuclear disaster in Japan is not a food safety problem for consumers in the United States. According to the U.S. Food and Drug Administration (FDA), the damage to infrastructure in Japan has limited food production and associated exports from areas near the Fukushima nuclear facility. Food products from the areas near the Fukushima nuclear facility, including seafood, are also to be tested by FDA before they can enter the U.S. food supply.

Based on computer modeling of ocean currents, debris from the tsunami produced by the Tohoku earthquake is projected to spread eastward from Japan in the North Pacific Subtropical Gyre. In three years, the debris plume likely will reach the U.S. West Coast, dumping debris on California beaches and the beaches of British Columbia, Alaska, and Baja California. Although much of the radioactive release from Fukushima Daiichi is believed to have occurred after the tsunami, there is the possibility that some of the tsunami debris might also be contaminated with radiation.



Date of Report: April 15, 2011
Number of Pages: 9
Order Number: R41751
Price: $19.95

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