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Wilderness Management
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 14, 2000 (Volume 65, Number 241)]
[Rules and Regulations]
[Page 78357-78376]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14de00-21]
[[Page 78357]]
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Part III
Department of the Interior
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Bureau of Land Management
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43 CFR Parts 6300 and 8560
Wilderness Management; Final Rule
[[Page 78358]]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Parts 6300 and 8560
[WO-250-1220-PA-24 1A]
RIN: 1004-AB69
Wilderness Management
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: In this final rule, the Bureau of Land Management (BLM)
revises and updates the regulations for management of designated
wilderness areas. In February of 1985, BLM issued the existing
regulations. Since the original issuance of the regulations, BLM has
developed new policies, Congress has required new procedures, and
technologies have changed. The final rule meets the need for updated
regulations by adding new requirements based on changes in legislation
or agency objectives, clarifying what uses BLM allows and authorizes in
wilderness areas, what acts BLM prohibits, and explaining special uses
the Wilderness Act explicitly allows, and how BLM allows access to non-
Federal lands located within BLM wilderness areas.
EFFECTIVE DATE: January 16, 2001.
ADDRESSES: You should send any inquiries or suggestions to:
Department of the Interior, Bureau of Land Management, Mail Stop
WO-172, 1849 C St., NW., Attention: Jeff Jarvis, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Jeff Jarvis, Wilderness, Rivers and
National Trails Group, (202) 452-5189. Persons who use a
telecommunications device for the deaf (TDD) may contact him by calling
the Federal Information Relay Service (FIRS) at (800) 877-8339, 24
hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
I. Background
II. Responses to Comments
III. Final Rule as Adopted
IV. Procedural Matters
I. Background
The Federal Land Policy and Management Act of 1976 (FLPMA) (43
U.S.C. 1701-1785) and the Wilderness Act (16 U.S.C. 1131-1136) direct
BLM to manage wilderness areas for the public's use and enjoyment in a
manner that will leave these areas unimpaired for future use and
enjoyment as wilderness by providing for:
Protection of these areas,
Preservation of their wilderness character, and
The gathering and disseminating of information about their
use and enjoyment as wilderness.
Unless Congress specifies otherwise, BLM must ensure the
preservation of wilderness character in managing all activities
conducted within wilderness areas.
The proposed rule on Wilderness Management was published in the
Federal Register on December 19, 1996 (61 FR 66968). The proposed rule
covered the management of BLM wilderness areas outside Alaska. The rule
explained--
What wilderness areas are,
How BLM manages them, and
How you can use them.
The proposed rule also explained what activities BLM would not
allow in wilderness areas, the penalties for doing prohibited acts, and
the special provisions for some uses and access. When BLM has
management responsibility for wilderness areas in Alaska, we will
develop regulations for their management, if necessary.
The proposed rule, while it revised and redesignated the entire
part in the CFR, focused on the following five areas: (1) definitions,
(2) use of wilderness areas, (3) prohibited acts, (4) special use
provisions, and (5) access.
The period for public comment on the proposed rule originally
expired on February 18, 1997. In response to public requests, BLM
extended the comment period until April 21, 1997. BLM received nearly
1,600 public comment letters or other communications during this four-
month comment period.
II. Responses to Comments
A. General Comments
A number of comments addressed the proposed rule in general terms,
without addressing any specific provision or section. Some opposed or
supported the rule, others asked for general clarification, still
others questioned underlying authorities. We will address these general
comments in this section of the Supplementary Information.
One respondent asked BLM to clarify its authority over activities
on non-BLM lands adjacent to BLM wilderness areas. BLM has authority to
protect Federal lands and resources under its jurisdiction by virtue of
section 302(b) of FLPMA (43 U.S.C.1732(b)). This includes the authority
to regulate activities on adjacent private or State lands to protect
public lands, including BLM wilderness areas. The final rule does not
expand BLM's authority to manage wilderness areas in a way that will
affect activities on adjacent non-BLM lands.
Several respondents criticized the proposed rule for not covering
extensively enough the responsibility of BLM wilderness managers to
monitor and otherwise manage activities and land uses affecting
wilderness. Management of activities within wilderness are thoroughly
covered in BLM Manuals or handbooks and other internal guidance, which
are available to the public in any field office that manages
wilderness. The regulations need not explain these internal procedures
to BLM managers. The principal purpose of regulations is to provide
guidance and direction to the public and other regulated parties.
One comment asked for clarification of how the rule applies to
wilderness study areas. The regulations in this rule apply only to
congressionally-designated wilderness areas, not to wilderness study
areas.
One comment asked what regulations apply when specific provisions
in this rule refer to applicable management plans as allowing,
limiting, or prohibiting an activity, but BLM has not completed its
management plans for a particular area. The regulations in this final
rule apply regardless of the status of plans. The plans referred to in
these regulations include not just Resource Management Plans or Plan
Amendments covering large areas of public lands, but also local BLM
field office plans and other decision documents.
Some comments asserted that the proposed regulations were too
permissive or conflict with law, including the Wilderness Act, saying
they would diminish wildness, reduce challenge and risk, and increase
mechanization. The comments said that the language in the proposed rule
is ambiguous, allows for inconsistent interpretation and too much
discretion on the part of BLM managers. One respondent concluded that
the ``special provisions'' in the proposed rule provided loopholes for
uses incompatible with the preservation of wilderness character.
BLM believes that the proposed rule and the final rule are fully
consistent with the requirements of the Wilderness Act and other laws.
The Wilderness Act specifically provides for limited commercial use and
resource development in wilderness areas in the ``special provisions''
of the Act (16 U.S.C. 1133). A certain amount of discretion on the part
of local BLM managers is necessary because circumstances and conditions
vary from area to area, and no national regulation could cover every
situation. BLM has made every effort to see that these regulations will
ensure preservation of
[[Page 78359]]
the wilderness character of the subject lands while recognizing the
specific statutory protections for valid existing rights and the
specified uses.
Other comments stated, by contrast, that the regulations are too
restrictive, oppressive, or heavy-handed, that they have an adverse
effect on the rights of the general public, or that they are
unconstitutional. The comments stated that they would reduce the level
of enjoyment of wilderness, eliminate or restrict traditionally
acceptable uses, generate too much paperwork, and be overly complex or
unresponsive to public needs. One comment asserted that the proposed
rule gives BLM too much flexibility and reduces individual rights.
BLM does not agree with these assessments of the proposed rule. The
regulations are no more restrictive than necessary to carry out the
requirements in the Wilderness Act and FLPMA, including--
Managing wilderness so as to leave it unimpaired for
future use and enjoyment as wilderness;
Providing for its protection and the preservation of
wilderness character; and
Providing for the gathering and dissemination of
information regarding wilderness use and enjoyment.
One comment stated that the proposed rule did not consider the
special provisions of the California Desert Protection Act of 1994 (16
U.S.C. 410aaa et seq.). The special provisions of that Act apply only
to those BLM-managed areas designated as wilderness in the California
Desert Protection Act. It would be inappropriate for a regulation with
nationwide effect to implement these special provisions. These special
provisions in the Act stand alone, and do not need regulations to make
them effective. If any aspect of these regulations were inconsistent
with the special provisions of the California Desert Protection Act,
that Act would prevail over these regulations to the extent of the
inconsistency.
Some comments urged that National Environmental Policy Act of 1969
(NEPA) analysis of the proposed regulations be done. BLM prepared an
environmental assessment (EA) and found that the regulations cause no
significant impact (FONSI). Notwithstanding the statement in the
preamble of the proposed rule that the EA was still in draft form, BLM
approved the EA and FONSI on September 13, 1996. Also, BLM has updated
these documents in new versions approved June 19, 2000. These documents
are available for review in the administrative record of this rule.
One comment stated that BLM has no authority to enact these
regulations and that Federal laws must conform to State and local laws.
BLM has ample authority to issue these regulations (see sections 310
and 302(b) of FLPMA, 43 U.S.C. 1740 and 1732(b), for examples). Federal
law prevails over inconsistent State laws. The Constitution of the
United States provides at Article VI that the Constitution and the laws
enacted under it are the supreme law of the land.
Some comments maintained that the proposed rule unnecessarily
restricts wildlife management and public enjoyment of wildlife. Others
stated that the rule does not address fish and wildlife management
activities or hunting, or recognize State management authority for fish
and wildlife resources that is contained in Section 4(d) of the
Wilderness Act (16 U.S.C. 1133) and Section 302(b) of FLPMA. In this
rule, BLM does not alter the existing roles of Federal and State
governments in managing wildlife on any public lands, including
wilderness. As section 4(d)(8) of the Wilderness Act provides,
``Nothing in this Act shall be construed as affecting the jurisdiction
or responsibilities of the several States with respect to wildlife and
fish * * *.'' States will continue to have jurisdiction over fish and
wildlife management.
Comments stated that BLM's present and proposed regulations deny
aboriginal, traditional land rights, and urged that the rule should
require BLM to work with Native Americans for management of motorized
vehicle use, wood cutting, water, and archaeological sites. As stated
earlier, the regulations are no more restrictive of traditional
practices than necessary to carry out the requirements of law. There is
no authority in the Wilderness Act for public use of motor vehicles,
for example, or for cutting trees in wilderness areas. BLM does
cooperate with Native Americans and others in the management of
archaeological sites under other laws and regulations.
A number of comments expressed general support for the proposed
rule, saying that the regulations are necessary to protect the
character of wilderness for the long term, and that they are balanced,
reasonable, well-crafted, and faithfully implement Congressional
wilderness goals.
Several comments addressed the style of the proposed rule, either
opposing or supporting the question-and-answer format. We did not
change the basic format in the final rule because the style follows
current Federal Government policy. The final rule somewhat reorders and
reorganizes the regulations. We explain this in detail in the section
of this preamble discussing the final rule.
B. Specific Comments
In this discussion, section names and numbers refer to those in the
proposed rule. Where appropriate, we have inserted the new section
numbers in parentheses at the beginning of each section discussion. In
the final rule, many numbers have been changed both to improve the
organization of the regulations and to respond to public comments. We
will explain this reorganization and renumbering in Section III of this
preamble. If this portion of the Supplementary Information does not
discuss a particular section or paragraph, it means that no public
comments addressed the provision, and there is no other need to amend
it in the final rule.
Preamble of the Proposed Rule
Regarding the discussion of livestock grazing, one comment
questioned the reference to an appendix of a Report of the Committee of
Interior and Insular Affairs (H.Rept. 101-405, Appendix A) regarding
grazing in wilderness and urged that the Report be published in the
Federal Register. The proposed rule used the principles and findings in
the Report as the basis for the text of the livestock grazing section
of the rule. The Report itself is in the administrative record for the
rule and is published in the BLM wilderness management manual.
One comment suggested that either the preamble or the regulatory
text should refer to the International Association of Fish and Wildlife
Agencies document, ``Policies and Guidelines for Fish and Wildlife
Management in National Forest and Bureau of Land Management
Wildernesses.'' Such a reference is unnecessary because--
(1) neither the proposed nor the final rule alters the fish or
wildlife management roles of State and Federal Government, and
(2) guidance for BLM field managers for cooperating with State
wildlife management officers, including a reference to the document in
question, is in the BLM Manual.
Subpart 6301--Introduction
Section 6301.30 What is a BLM wilderness area? (Section 6301.3 in the
final rule)
One comment objected to this section as a subjective definition of
wilderness. BLM intends this section to be an objective, simple,
factual, and
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unobjectionable statement that wilderness is what Congress says it is,
with a reference added to the Wilderness Act itself for a detailed
definition.
Section 6301.50 What are the definitions of terms used in this part?
(Section 6301.5)
A few comments addressed the proposed definitions as a group. One
suggested that they were vague and overly broad and could lead to
inconsistent decisions. BLM's position is that our definitions are
similar to those of the other Federal wilderness managing agencies, and
that they are broad enough to illuminate terms in a set of regulations
with a nationwide effect. Nevertheless, in some instances we have
changed the definitions to make them clearer in light of specific
comments.
Other comments suggested that we define additional terms,
including: Primeval, natural condition, untrammeled, solitude,
wilderness character, commercial use, American Indian, religious
ceremony, emergency, unimpaired, motorized vehicles, permanent
improvement, and all non-pedestrian traffic. We have not added
definitions for any of these terms. Some of them do not appear at all
in the regulations. Others appear once, but with sufficient explanation
in their context to make a definition unnecessary. Others are familiar
enough that their dictionary definitions provide adequate description
of their meaning.
Access
Several comments criticized the definition of ``access,'' stating
that it did not make clear what constitutes adequate access. Others
stated that access should include R.S. 2477 rights-of-way, guarantee
landowners logical and appropriate methods of travel, or allow legal
access under Section 501 of FLPMA.
Section 501(a) of FLPMA expressly excludes designated wilderness
from land across which BLM may grant a right-of-way. Therefore, BLM is
forbidden by law to grant new rights-of-way across wilderness. BLM
recognizes valid R.S. 2477 rights-of-way in wilderness areas, as it
does all valid existing rights.
Finally, the regulatory provisions on access in the final rule
(subpart 6305) are designed to provide inholders with logical and
appropriate access within the limitations of the Wilderness Act.
Definitions themselves are not intended to have regulatory content.
Inholding
A few comments addressed the definition of ``inholding,'' stating
that the definition is too narrow to include non-Federal lands
surrounded by other lands along with BLM wilderness. The additional
lands bounding the inholding might, for example, be national forest
lands or wilderness study areas. Some comments asked for clarification
of what constitutes an interest in land under the ``inholding''
definition. Others stated that this definition, as well as the
definitions of ``valid occupancy'' and ``mining operations,''
improperly limited access rights of owners.
The definition of ``inholding'' in the proposed rule is consistent
with definitions used by other Federal wilderness land managing
agencies. However, the concept of ``interest in land'' has been removed
from the definition in the final rule as unnecessary. We address the
effects of different degrees of ownership--fee simple ownership,
surface ownership only, mining claims, and so forth--in the access
provisions of the final rule, not in the definitions.
Mechanical Transport
A number of comments addressed the definition of ``mechanical
transport,'' particularly as it affects the use of game carriers. A
majority of these comments said that the definition should not include
game carriers, or only include motorized ones. They said that a
prohibition of game carriers in wilderness would be an unnecessary
hardship for hunters and would increase environmental impacts--due to
dragging big game--from hunting, would discriminate against the
elderly, and would limit the ability to retrieve downed game. They said
that animal carriers are traditional, compatible, and legitimate in
wilderness and could be considered the minimum tool, especially in
desert situations, and that prohibition may discourage legal hunting of
big game, limiting management efforts by State government agencies.
A few comments urged that the definition of ``mechanical
transport'' should not include wheelbarrows because they are necessary
for trail construction and maintenance work.
BLM's position is that we must include wheeled game carriers or
wheelbarrows in the definition of mechanical transport, or it will
conflict with the letter and spirit of the Wilderness Act. This
position is also consistent with Forest Service policy. Trail work is
an administrative function that is adequately addressed in section 4(c)
of the Wilderness Act. This section allows BLM to use the minimum tools
necessary for such administrative work.
A large number of comments stated that the definition of
``mechanical transport'' should not include horses and other pack
livestock like mules and llamas. BLM never intended to ban horses from
wilderness areas, and we have amended the definition specifically to
make it clear that horses and other pack stock are allowed in
wilderness. Horses are not mechanical transport, and neither are their
saddles and bridles and other tack.
A small number of comments raised other concerns about the
definition of ``mechanical transport.'' One asked for clarification of
the word ``contrivance'' as used in the definition. BLM used this term
to emphasize the human-origin aspect of the means of transportation by
relying on a dictionary definition of ``contrivance'' as ``a mechanical
device.'' We have expanded the definition by adding the words ``device
or vehicle'' to improve its clarity. Another comment stated that the
definition could be misinterpreted to include a number of devices such
as fishing and hunting equipment, and even persons such as land users
and administrative and law enforcement personnel. The intent of the
final rule is that mechanical transport refers to man-made devices with
moving parts and an internal or external power source (even if the
power source is environmentally benign, such as solar cells), that are
commonly used to carry people or cargo. It would be impractical, and
potentially misleading, to include an exhaustive list of inclusions and
exclusions, because questions may be raised as to items omitted from
the list.
Some comments urged that the definition of ``mechanical transport''
should not include horse-drawn wagons and carts. Another urged that the
definition should include canoes, rafts, bicycles, and travois, and
that unless the enabling legislation specifies otherwise, BLM must
prohibit all assisted transportation. Wagons, carts, and bicycles
clearly fall within the definition of mechanical transport and are
excluded from wilderness. Canoes, rafts, and travois, on the other
hand, are not included in the definition--they lack moving parts. There
is no authority in the Wilderness Act to disallow all assisted
transport.
One comment maintained that the definition of ``mechanical
transport'' violates the Americans with Disabilities Act (ADA). The
proposed rule excluded wheelchairs from the definition, but with the
qualification that a wheelchair
[[Page 78361]]
is allowed only as necessary medical equipment. BLM has amended the
definition in the final rule to remove this qualification. The final
rule specifically allows wheelchairs to be used in wilderness areas.
The definition of ``wheelchair'' in the proposed rule has also been
changed in the final rule to repeat the definition in the ADA.
One comment asserted that the definition of ``mechanical
transport,'' by including the reference to living power sources, is
more restrictive than the Arizona Desert Wilderness Act of 1990 and is
inconsistent with the Wilderness Act, and alleged that the definition
significantly affects recreation. The reference to a living power
source was designed to encompass bicycles and horse-carts and similar
mechanical means of transportation, and not backpackers and horse
packers, which, though they may employ living power sources, do not use
mechanical contrivances for transport. However, since the power source
itself is not a critical element in defining ``mechanical transport,''
we removed the reference to ``living power source'' in the final rule.
One comment urged that the rule should restrict the use of wheeled
devices to only those specifically permitted in the Wilderness Act. The
Wilderness Act makes no mention of wheeled vehicles or devices as such,
and it is unnecessary to amend the definition.
A couple of comments addressed a definition not in the proposed
rule, ``mechanized equipment,'' apparently confusing it with
``mechanical transport'' or ``motorized equipment.'' One asked whether
rock climbing hardware is mechanized equipment, and another urged that
rifles be considered mechanized equipment. Power drills for installing
bolts in support of climbing would be considered motorized equipment
and are banned from BLM wilderness areas, as are chainsaws and other
large power tools. Rifles and shotguns are not motorized, and are not
mechanical means of transportation. Therefore, they are not affected by
the restrictions on motorized equipment or mechanical transport in
section 6302.20(d) of the final rule.
Mining Operations and Valid Occupancy
A few comments stated that the proposed definitions of these terms
infringe on the access rights of owners. BLM has changed the definition
of ``mining operations'' to make it a cross reference to the definition
in the use and occupancy regulations in 43 CFR subpart 3715. Also, BLM
has added to the definition of ``valid occupancy'' a cross-reference to
the use and occupancy regulations in subpart 3715 of this title. These
definitions rely entirely on existing BLM regulatory definitions, and
therefore do not affect the rights of land owners or mining claimants.
Motorized Equipment
A small number of comments addressed this definition, most of them
listing devices that they thought should or should not be considered
motorized equipment and accordingly banned from or allowed in
wilderness. One comment urged that chain saws be allowed. Chain saws
are always motorized and therefore are banned specifically by the
Wilderness Act. One comment stated that the definition could be
interpreted to include battery-powered devices such as shavers,
watches, and the others specifically excluded in the definition. We do
not believe this to be a reasonable interpretation, and have not
changed the definition in the final rule.
A few comments asked for a more expansive definition of ``motorized
equipment,'' one that would include propane heaters, stoves, Global
Positioning Systems, Geiger counters, cellular telephones, metal
detectors, or radios. They maintained that such devices should have no
place in primitive or unconfined use of wilderness, that wilderness is
a place for primitive travel skills. The comment suggested that
technological advances represented by some of these devices would lead
to further mechanization of wilderness, and concluded that exemptions
should be limited to flashlights, wristwatches, cameras, and gas
stoves. While this view of wilderness may be shared by some, the
impacts of the devices proposed for inclusion in the definition by the
respondent do not warrant their prohibition in wilderness. We have made
no change in the final rule in response to this comment.
Wheelchair
A small number of comments criticized this definition as being too
restrictive, and urged that the term be defined as other agencies do.
In the final rule, we have amended the definition slightly to conform
it exactly to the definition found in Section 507 of the Americans with
Disabilities Act, 42 U.S.C. 12207(c)(2).
Temporary Structure
One comment suggested adding a definition for this term and offered
language: `` `Temporary structure' means any structure that can be
readily and completely dismantled and removed from the site between
periods of actual use, and must be removed at the end of each season of
use.'' We have not adopted this comment in the final rule. BLM
generally cannot allow permanent or temporary structures in wilderness,
so there is no need for a definition of this term. However, we have
added a cross reference to the use and occupancy regulations for mining
operations in 43 CFR part 3715, because you may erect structures under
certain circumstances on mining claims in wilderness areas. We have
also added language making it clear that you may use tents and other
such equipment for overnight camping.
Subpart 6302--Use of Wilderness Areas, Prohibited Acts, and Penalties
Section 6302.10 May I use wilderness areas? (Section 6302.11)
A small number of comments addressed this general section on use of
wilderness, most suggesting uses that should be specifically listed,
such as: education, conservation, scenic and historic appreciation,
ecology, philosophy, photography, art, spirituality, hunting, fishing,
trapping. Most of these uses are expressly mentioned or at least
implied in the Wilderness Act, and need not be recited in the
regulations. To avoid any appearance of excluding such recognized
wilderness uses by naming some uses and omitting others, we removed the
list of examples of allowable uses from this section in the final rule.
As for hunting, fishing, and trapping, these are managed by State
government, and BLM does not seek to change this management role in
these regulations.
One comment suggested that this section should emphasize that
wilderness is for non-motorized, non-mechanized use. This need not be
stated explicitly here; the regulations make this clear in other
sections.
Section 6302.20 Do I need and where do I obtain an authorization to
use a wilderness area? (Sections 6302.12 and 6302.13)
Several comments addressed this section. One objected to the
requirement for authorization if the BLM management plan for the
wilderness area involved requires it, arguing that BLM has no authority
to prepare management plans in the existing BLM wilderness regulations
or the regulations in 36 CFR 283.1. It continued that BLM therefore
cannot promulgate or enforce plans, or include
[[Page 78362]]
them in our budget. BLM's general land use planning authority may be
found in Section 202 of FLPMA (43 U.S.C. 1712). We have made no change
in the final rule in response to this comment.
One comment stated that the proposed rule contained no provision
for timely and efficient response to requests for authorizations.
Another comment asserted that the permitting process could be used to
restrict use unreasonably. A third comment requested clarification as
to the type(s) of authorization needed and who issues them, and
clarification that BLM requires a permit for any activity that is not
consistent with wilderness management.
This rule makes possession of an authorization a prerequisite for
certain activities, but does not itself provide for the issuance of
authorizations. If this rule requires you to have a permit or other
authorization, you must obtain it under the specific BLM regulation for
your use or activity. The authorization may be a general use permit
under 43 CFR part 2920, a notification of practices and procedures for
geophysical exploration under an existing fluid mineral lease under 43
CFR 3151.1, or a special recreation permit under subpart 8372, for
example. We have not changed the final rule.
One comment noted that designations of individual wilderness areas
by Congress may contain statutory provisions that supersede the
Wilderness Act or FLPMA. This is true, and in such a case the statutory
provision would also supersede these regulations. It is not our intent
to account for every such exception to the general requirements of the
Wilderness Act.
The comment went on to state that lands must be managed as provided
in the Multiple Use and Sustained Yield Act of 1960. The Wilderness Act
provides that its purposes are within and supplemental to the purposes
for which national forests and other units of Federal lands are
managed. Therefore, the Wilderness Act and these regulations are
consistent with the purposes of the Multiple Use and Sustained Yield
Act.
One comment urged that fees BLM charges for permits should be used
to pay for law enforcement rather than restoring user-caused damage. It
went on to say that users should pay for such restoration. There is no
need to change the regulation as a result of this comment, because it
neither provides for specific fees nor directs where specific fees are
to go. Other regulations provide for fees and their administration.
Section 6302.30 When and how does BLM close or restrict use of
wilderness areas? (Section 6302.19)
A few comments addressed this section of the proposed rule. One
noted that only Congress can alter the use of wilderness areas, and
stated that temporary closures should be for no more than one year.
Another urged that the regulation should clearly state that the law
permits BLM to restrict areas within wilderness without issuing an
order. We have amended this provision in the final rule to make it
clear that closures will affect the minimum area for the minimum amount
of time necessary, likely in most cases to be less than three months.
(A typical reason for such restrictions will be wildlife protection.)
Another comment stated that closure or restrictions on use of
public lands for mining, grazing, logging, recreation, and so forth,
would cause a significant economic impact on small communities if
wilderness guidelines are not carefully administered. BLM's intent is
that we will carefully administer the regulations, guidelines, and
handbooks relating to wilderness management.
Section 6302.40 May I gather information, do research, or collect
things such as rocks, animals, plants, or other types of natural or
cultural resources in wilderness areas? (Sections 6302.15 and 6302.16)
A number of comments addressed this section. Some challenged the
proposed language because of perceived undue effects on the wilderness
environment, asserting: uses that damage the environment should be
banned; fuel gathering for campfires should be prohibited; collection
should be limited to scientific research; commercial collection should
be prohibited; and the regulations should be as restrictive as possible
for uses inconsistent with the purposes of the Wilderness Act. Others
said that the section imposed restrictions on activities that are too
stringent or not authorized, maintaining: the rule should allow
``incidental use (surface collection with small hand tools)''; the rule
should not require a plan to be in place before collecting can be
allowed; the rule conflicts with State authority for wildlife
management and control of hunting and fishing; and the rule should
allow traditional aboriginal land uses, such as wood gathering and
pottery shard collection.
To help address some of these comments, we have divided this
section into two sections in the final rule: section 6302.15 on
collecting or disturbing specimens, and section 6302.16 on scientific
information gathering. Thus, we have separated scientific from casual
collecting. In the final rule we have tried to minimize the impacts of
these activities, within the limits of the law.
This division of the proposed provision into two sections
recognizes that scientific research under section 6302.16 is generally
a more intensive use of lands and resources than casual or recreational
collecting or disturbance of resources, or even the mineral prospecting
authorized by the Wilderness Act. Scientific research may involve
surface disturbance, long-term use of the land, and larger numbers of
people. Of course, BLM will permit scientific research that does not
involve these elements as well, but not impose the reclamation and
other requirements stated in section 6302.16. Examples of this kind of
research would be wildlife population counts that do not involve
surface disturbance or lengthy stays in the wilderness.
Under section 6302.15, you may remove small mineral samples for
purposes of prospecting, or souvenir items such as pine cones or
attractive stones. This provision recognizes that such activities
conducted by persons without mechanized transportation or power tools
are likely to create considerably smaller impacts on the wilderness
environment than scientific research, which may involve base camps,
organized crews of scientists and staff, more extensive equipment, and
surface disturbance.
In the final rule we have also removed proposed paragraph
6302.40(b), which consisted of several lists of resources and materials
that may be collected in wilderness for non-commercial purposes. The
lists are not necessary and may have been misleading because most
collecting would require an authorization not provided for in the
wilderness management regulations. For such collecting, you would need
an authorization from other Federal agencies, State agencies, or from
BLM under other regulations.
The final rule provides that for scientific information gathering
(section 6302.16) in a wilderness area--
Similar research opportunities must not be reasonably
available elsewhere;
The activity must be compatible with wilderness
preservation and the pertinent BLM management plan;
You must minimize ground disturbance and use of motorized
equipment and mechanical transport, including the landing of aircraft;
and
The activity must be authorized by BLM before you may
begin.
[[Page 78363]]
For information gathering and resource collection or disturbance
not related to scientific research, section 6302.15 requires the
activity to be--
Non-commercial as required by section 4(c) of the
Wilderness Act;
Characterized by methods that preserve the wilderness
environment; and
Either in conformance with the pertinent BLM management
plan or specially authorized by BLM.
Also, information gathering related to minerals, including
prospecting under the mining laws, is specifically allowed under the
terms of section 4(d)(2) of the Wilderness Act (16 U.S.C. 1133(d)(2)).
Some measures suggested in comments were: to require campers to
carry campfire fuel with them; to limit collecting to education or
scientific research; and to require that information and specimen
gathering be for the purpose of benefitting wilderness. These
activities are not occurring at levels that are harmful to wilderness,
and there is no need at present to impose such limits. Some of the
activities that respondents suggested we allow in wilderness are
prohibited by law. For instance, section 6 of the Archaeological
Resources Protection Act of 1979, 16 U.S.C. 470ee(a), prohibits taking
pottery shards and similar artifacts from public lands without a
permit: ``No person may excavate, remove, damage, or otherwise alter or
deface, or attempt to excavate, remove, damage, or otherwise alter or
deface any archaeological resource located on public lands or Indian
lands unless such activity is pursuant to a permit. * * *''
Several comments addressed the specific issue of hobby mineral
collecting in the context of this section. They said that the proposed
rule would severely limit the hobby, and that collecting specimens
preserves them from erosion. One comment stated that closing public
lands to mineral collection is unfair when mining may still occur.
Another asserted that the proposed rule would impose an excessive
restriction of traditional family recreation activities. In response to
these comments, we have amended the final rule to allow hobby
collecting in BLM wilderness if it is compatible with wilderness
preservation and if either the activity conforms with the applicable
BLM plan or the hobbyist has an authorization from BLM. The proposed
rule would have required both plan conformance and an authorization.
Section 6302.41 Will BLM authorize me to use a motor vehicle,
motorized equipment, or mechanized transport to conduct research or
gather resource information? (Section 6302.16)
About 20 comments addressed this section. Respondents criticized
the provision, stating that it implied motor vehicles could be allowed
in wilderness, that it could be interpreted to preclude airborne
research over wilderness, and that it did not necessarily require a
bond in every case. One comment stated that the rule should clearly
prohibit motorized equipment and mechanical transport with certain
exceptions: access to valid mining claims, construction and maintenance
of wildlife watering devices, maintenance of range improvements, or
other uses that BLM cannot prohibit, and that research is not grounds
for allowing motorized equipment or mechanical transport. Another
comment asked for clarification of how BLM will determine reclamation
needs, and another asked whether BLM will give verbal or written
authorization for motorized or mechanical information gathering.
Many of these issues are addressed in either other BLM regulations
governing specific activities or uses of the public lands, or the BLM
Manual if they relate more to BLM internal procedure than to user
activity. The type of authorization required is usually covered in the
regulations dealing with the subject matter of the research or
information gathering. The Wilderness Act governs access to mining
claims. Such access need not be by mechanized transport in every case.
We have removed most of the section in the final rule because it is
unnecessary. The final sentence has been moved to section 6302.16(b).
It requires reclamation, but still provides for discretion on the part
of local BLM managers as to whether we will require a bond.
Most human activity in wilderness disturbs the surface in some way.
There is no need for bonding in a case where there is likely to be no
appreciable impact. The regulations give local managers the power and
discretion to require bonding.
Section 6302.50 May wheelchairs be used in a wilderness area? (Section
6302.17)
A few comments addressed this section. Some supported the notion,
with which we agree, that adventure and untrammeled nature should be
available to the wheelchair user. Another contended that the rule does
not meet the spirit of the Americans with Disabilities Act (ADA)
because it does not provide for additional facilities for wheelchair
users. We disagree with this comment. Special facilities are not
required for wheelchair users in wilderness under Section 507 of the
ADA (42 U.S.C. 12207(c)(1)).
Another comment stated that the regulation should permit motorized
wheelchairs. In the final rule, ``wheelchair'' is defined in the same
way as in Section 507 of the ADA (42 U.S.C. 12207(c)(2)). If a
motorized wheelchair meets this definition, so that it is suitable for
use in an indoor pedestrian area, it qualifies as a wheelchair under
the final rule and may be used in BLM wilderness. One comment asserted
that if wheelchairs are allowed in wilderness, game carriers should
also be allowed. However, wheelchair users are protected by statute
from exclusion, while wheeled game carriers, being mechanical
transport, are barred from wilderness by statute.
Section 6302.60 May wilderness areas be used for traditional religious
purposes? (Section 6302.18)
A number of comments addressed this section, some of them focusing
on the issue of temporary closure to protect privacy of American Indian
ceremonies, and others focusing on whether the regulations should even
address the issue of religious use of wilderness. We will discuss the
latter issue first.
Several comments objected to the provision for temporary closure to
the public of portions of wilderness areas being used by Native
Americans for religious practices. They stated that persons who engage
in such ceremonies on public land should accept the possibility of
public discovery of their ceremony. Others said that any closure in
support of religious activities is discriminatory, that it is a race-
based regulation, and that it violates the Establishment Clause of the
First Amendment. On the other hand, several comments supported
temporary closure for this purpose, saying that temporary closure is
compatible with wilderness values and is needed to protect privacy. One
comment tied closure to need, saying that if an area has a history of
ceremonies being consistently invaded, BLM should permit temporary
closure. Partly because of these comments, and partly because it is
unnecessary, BLM has removed this provision in the final rule. Such a
special provision for temporary closures to accommodate Indian
religious observances is unnecessary because, under 43 CFR subpart 8364
and the general land
[[Page 78364]]
management authority in Section 302 of FLPMA, the BLM local land
manager can temporarily close an area to protect or accommodate this or
any other use in appropriate circumstances.
The final rule allows American Indians to use wilderness areas for
traditional religious purposes, implementing the American Indian
Religious Freedom Act (42 U.S.C. 1996) (AIRFA), and other applicable
law. It does not specifically allow closure. However, it recognizes the
limits provided for in the Wilderness Act, so that Indians using
wilderness areas for traditional wilderness purposes may not use
motorized equipment or mechanical transportation, and must behave in
such a way as to minimize impacts on the wilderness environment.
Comments suggested that the rule should specifically allow
mechanical transport for Indian access; however, there is no authority
in the Wilderness Act or AIRFA to allow this use. One comment suggested
that BLM restrict the manner and degree of this religious activity to
that of such activities carried on before designation of the
wilderness. There is also no authority to restrict the manner and
degree of such Indian religious activity so long as it otherwise
comports with the Wilderness Act and these regulations.
One comment stated that the regulations should include the
provisions from Executive Order No. 13007 for access, ceremonial use,
protection and confidentiality of sacred sites, and notification of
proposed management actions potentially affecting these sites. The
Executive Order is binding on Federal agencies, and its provisions need
not be repeated in these regulations. One comment urged that the
regulations should ensure physical access into wilderness for Native
Americans for ceremonial, medicinal, cultural, and traditional
collecting. We address collecting of materials in wilderness areas in
section 6302.15 of the final rule. Native Americans wishing to collect
materials for these purposes must do so in a manner compatible with the
preservation of the wilderness environment, and the collection must
conform with the applicable management plan or be separately authorized
by BLM. One comment stated that the term ``American Indian'' should be
replaced by ``enrolled member of a federally recognized tribe.'' This
comment is not adopted in the final rule--the terms used in the rule
are those used in AIRFA.
Section 6302.70 What activities does BLM prohibit in wilderness areas?
(Sections 6302.20 and 6302.14)
Our discussion of the comments on this section will address each
paragraph separately, as did most of the comments. But first, a few
comments addressed the section as a whole. One comment asked for
clarification as to the applicability of the rule to individuals as
opposed to State agencies. The rule does not distinguish between States
and individuals. For example, State agencies may not use motor vehicles
to track wildlife in BLM wilderness any more than individual hunters
may, even though States have primary responsibility for wildlife
management. Another comment maintained that the treatment in the
proposed rule of Wilderness Act prohibitions was inadequate. We
disagree with this assessment: Each prohibition in the Wilderness Act
is thoroughly covered in this section, along with others that implement
the general authority of BLM to regulate public lands, including
wilderness. One comment stated that persons wishing to carry on
activities that are exceptions to prohibitions should be encouraged in
the regulations to use non-wilderness land, or their activities should
be narrowly delineated. This comment appears to be directed more to the
special provisions of the Act that were covered in subpart 6303 of the
proposed rule. Section 4(c) of the Wilderness Act provides for strictly
limited exceptions to wilderness prohibitions. BLM believes that
subpart 6304 of this final rule properly implements this statutory
authority.
Some comments supported the prohibited acts section as a whole,
stating that the restrictions imposed are consistent with the purpose
and preservation of wilderness, places that are quiet, pristine, and
unspoiled. One comment urged that we remove the language in the
introductory text giving BLM discretion to enforce these prohibitions
in favor of absolute prohibitions. BLM made this change in the final
rule.
A small number of comments addressed the issue of road closures, a
matter that is not covered in the proposed or final rule. Subject to
valid existing rights and special provisions in individual statutes
designating wilderness areas, wilderness designation closes jeep trails
and similar routes on public lands, but the wilderness management
regulations themselves do not close any roads. Wilderness designation
or these regulations do not affect roads that are outside wilderness,
even those adjacent to wilderness boundaries. If there are routes to
wildlife water developments within wilderness, they are closed to
mechanical transport except for administrative use. The Wilderness Act
prohibits four-wheel drive, off-highway, or other vehicle use of
wilderness.
The final rule contains a provision omitted from the proposed
rule--a protection of valid existing rights--that is necessary as a
matter of law. Section 4(c) of the Wilderness Act (16 U.S.C. 1133(c))
specifically preserves existing private rights.
Paragraph (a). This paragraph prohibits operating a commercial
enterprise in BLM wilderness. A small number of comments addressed this
provision. A few urged that BLM not prohibit commercial activities such
as outfitting and guiding for hunting, fishing, and recreational pack
trip. These activities are not prohibited. The rule excepts from the
prohibition those activities specifically provided for in the
Wilderness Act; Section 4(d)(6) of the Act allows commercial services
related to the recreational or other wilderness purposes of the
particular area.
One comment asked whether the use of helicopters for wildlife
management activities is a commercial activity. Whether such use of
helicopters is commercial or not is irrelevant, because BLM claims no
authority in this final rule to regulate activities in airspace.
Section 4(c) of the Wilderness Act, however, specifically prohibits the
landing of aircraft. This does not apply to emergency landing of
aircraft.
Paragraph (c). This paragraph prohibits landing strips and
helicopter landing facilities. A few comments supported this section,
and none objected to it. BLM has made no change in the final rule.
Paragraph (d). This paragraph prohibits the use of motorized
equipment. Several comments addressed this prohibition, different
respondents raising different points:
objecting to any motorized and mechanized use of
wilderness,
stating that State wildlife management activities,
predator control, fire suppression, emergencies, trail work, delivery
of construction materials where delivery is not feasible without
mechanical transportation, all require use of mechanized vehicles,
motorized equipment, and low-level flights, and
stating that modern, efficient Native American range
management requires use of mechanized vehicles, motorized equipment,
and low-level flights.
In response, BLM does not assert authority to regulate overflights
of public land in this rule. The other mechanized uses urged in these
[[Page 78365]]
comments are prohibited by Section 4(c) of the Wilderness Act, except
in the event of emergencies involving the health and safety of persons
within the area.
Section 6303.1 of this final rule covers administrative use and
emergency situations. The Preamble discussion of that section addresses
the merits of allowing or prohibiting use of mechanical transportation
and motorized equipment for administrative purposes.
Paragraph (e). This paragraph prohibits landing aircraft, and the
dropping and picking up of persons or things by aircraft. A few
comments addressed this provision, some in opposition and some in
support. One said that the regulations should never allow the use or
landing of aircraft unless specifically authorized by Congress for
particular wilderness areas. One comment said that the regulations
should not restrict the use of aircraft for the administrative uses
listed in the discussion of paragraph (d), above, and another urged an
exception for search and rescue activities.
Again, BLM does not assert any regulatory authority over airspace.
The regulations do allow the landing of aircraft for administrative
purposes, and allow BLM to prescribe conditions in which aircraft, as
well as other modes of transportation, may be used in emergency
situations.
Paragraph (f). This paragraph prohibits structures and
installations in BLM wilderness. A few comments addressed this
provision, one saying that it did not go far enough and should also
specifically prohibit permanent corrals, tent frames, caches, spring
boxes, and piped water systems, new grazing structures other than
fences intended for wilderness protection, and maintenance of existing
dams and other water catchments, unless they are to benefit wilderness.
The comment also suggested the addition of ``transmission lines'' to
the list of examples of prohibited structures. Another comment asked
that we make our prohibition of structures consistent with that of the
U.S. Forest Service. We have added ``transmission lines'' and ``sheds''
to the prohibition, in part to be consistent with the policy of the
Forest Service, and also in response to the comments. Finally, one
comment asked that the regulations not prohibit milepost and trail
marker signs. This was not the intent of the proposed rule in
prohibiting structures, and milepost and trail signs are allowed in
BLM-managed wilderness.
Paragraph (g). This paragraph prohibits cutting trees in BLM
wilderness areas. A few comments addressed this prohibition. One
questioned whether the prohibition conflicted with section 6302.40(c)
of the proposed rule, which specifically allowed the gathering of
firewood in reasonable quantities for campfires. (This provision is
found at section 6302.15(b) of the final rule.) BLM intends a
distinction between gathering firewood and cutting trees. The
prohibition of tree cutting does not extend to dead fall and dead
branches in reasonable quantities to be used for firewood. One comment
stated that the regulations should include an exception for cutting
trees to improve habitat if provided for in applicable BLM management
plans or under BLM authorization. As a matter of policy, BLM does not
permit this kind of habitat management in the wilderness environment.
Paragraph (i). This paragraph prohibits competitive events in
wilderness areas. A few comments addressed this section. Some agreed
with the notion that the prohibition of competitive use is in keeping
with the spirit of the Wilderness Act. Some maintained that some
competitive events, such as Eco-Challenge, do not permanently harm the
character of wilderness land or reduce the opportunity for solitude,
and argued that the prohibition of such events is not consistent with
the special provisions section of the Wilderness Act and these
regulations. Some questioned the authority for the prohibition.
As a matter of policy, to carry out our responsibility to preserve
the wilderness character of the land under the Wilderness Act and
FLPMA, BLM does not allow competitive events such as races and time
trials in wilderness areas. This is not a change from the existing
wilderness management regulations.
Another comment asserted that hunting is a competitive event that
BLM should prohibit. In general, hunting is not a competitive sport,
but the regulations do prohibit organized competitive hunting events.
The regulations treat orienteering in the same way--prohibiting it only
if competitive.
Paragraph (j). This paragraph of the proposed rule prohibited
``physical alteration or defacement of a natural rock surface for any
purpose, including the use of any type of drill, permanent fixed anchor
or expansion bolt; construction of permanent artificial hand and
footholds; use of glues, epoxies, or other fixatives to facilitate
mountain climbing, rock climbing, or cave exploration,'' unless allowed
under the applicable BLM management plan or a BLM authorization. This
provision of the proposed rule attracted the most voluminous public
response, over 1,300 comments, most opposing what was perceived as a
ban on using existing or new fixed anchors for climbing, or a ban on
temporary fixed anchors such as slings on trees.
On June 1, 1998, the Forest Service issued a discretionary review
decision in separate letters to the Access Fund and Wilderness Watch,
finding that fixed anchors are ``installations'' prohibited by Section
4(c) of the Wilderness Act. On October 29, 1999, the Forest Service
published a notice of intent to establish a negotiated rulemaking
advisory committee to help develop regulations on the placement, use,
and removal of fixed anchors in national forest wilderness areas.
Pending the outcome of this Forest Service effort, BLM is reserving
paragraph (j) in this final rule. In light of this reservation, we also
withhold further discussion of the comments until such time as we
publish a final rule addressing the use of fixed anchors in BLM
wilderness.
As a point of clarification, climbers do not need authorization to
use existing fixed anchors. BLM will not prosecute anyone for using
them. However, the final rule also reaffirms the prohibition of power
drills used for climbing or any other purpose.
Section 6302.80 What penalties am I subject to if I commit one or more
of the prohibited acts? (Section 6302.30)
A few comments opposed this section, stating that penalties are not
expressly provided for in the Wilderness Act, or that we should have
used the penalties in FLPMA rather than the Sentencing Reform Act in
the U.S. Criminal Code (18 U.S.C. 3551-3586). As one of the comments
pointed out, FLPMA provides ample authority for penalizing those who
violate BLM regulations. The enforcement authority in Section 303(a) of
FLPMA (43 U.S.C. 1733(a)) establishes Federal criminal penalties,
including fines and imprisonment. The Sentencing Reform Act of 1984, as
amended, raises the upper limits on these and all Federal criminal
penalties. These new maximums automatically apply to all existing
criminal penalty statutes. Of course, magistrates and judges will not
necessarily impose the maximum penalties for minor infractions--the
penalties are neither mandates nor guidelines. They are the maximum
allowed. We have changed this provision in the final rule to make it
clear that the imprisonment penalty is based on FLPMA. We have removed
the reference to the Sentencing Reform Act.
[[Page 78366]]
Subpart 6303--Special Provisions (Subpart 6304)
One comment suggested that BLM add a provision to this subpart
specifically authorizing hunting, fishing, and trapping in BLM
wilderness areas, so long as the person doing so does it in accordance
with applicable State and Federal law. We have not added such a
provision in the final rule. These activities are managed by States,
not BLM or other Federal agencies, and are not specifically authorized
or prohibited by the Wilderness Act.
Section 6303.10 Are there special provisions for some uses of
wilderness areas?
The few comments addressing this section objected that the
activities--mining, grazing, development of mineral leases, and so
forth--allowed in these special provisions are not compatible with
wilderness. They asked that the regulations state that wilderness is a
place where such activities are prohibited to preserve wilderness
values.
BLM is obligated to allow these activities in wilderness areas
because they are specifically allowed by the ``special provisions'' of
Section 4(d) of the Wilderness Act. In most cases the regulations allow
the uses only if they pre-existed wilderness designation.
Section 6303.20 Are there special provisions for aircraft and
motorboat use within wilderness areas? (Section 6303.21)
A few comments addressed this section, some questioning the need
for regulations on aviation, others suggesting controls on aviation
noise, and others suggesting that low level flights by government
agencies for wildlife management, search and rescue, and so forth,
should not be prohibited. One comment asked for clarification as to how
the prohibition of motorized equipment relates to aviation. One comment
questioned the right of BLM to infringe on the regulatory authority of
the Department of Transportation and the Federal Aviation
Administration. Another questioned the need for regulations on
aviation, including lighter-than-air craft and skydiving. Still another
stated that the provision on military overflights should be expanded to
apply to private and commercial aviation.
BLM asserts no authority in this rule to regulate the use of
airspace or any form of aviation, including military, regardless of
altitude. The rule only prohibits the landing of aircraft in
wilderness, subject to various exceptions.
One comment asserted that BLM's proposed rule would be too
permissive and inconsistent with the Wilderness Act. It said that BLM
should use its regulatory authority to restrict these uses as the
Secretary of the Interior ``deems reasonable'' or desirable, not just
for protection of wilderness values. It concluded that the regulations
should not expand aircraft and motorboat use. The final rule retains,
in paragraph (a), a somewhat revised provision allowing BLM to impose
other reasonable restrictions necessary to protect wilderness values.
The rule includes an amendment, in new paragraph (b), requiring that
maintenance of existing wilderness airstrips be done without motorized
equipment.
One comment suggested that the regulations should provide that
existing but abandoned airstrips cannot be used or maintained after
wilderness designation. We have adopted this idea in the final rule.
Several comments addressed the issue of military overflights, most
suggesting that such flights should be regulated, reduced, or
eliminated. BLM has no authority in this regard, and paragraph (b) of
the proposed rule has been removed in the final rule to avoid any
suggestion that BLM is trying to regulate any kind of overflight.
Section 6303.30 What special provisions apply to operations under the
mining laws? (Section 6303.11)
A few comments addressed this section. One comment argued that
subordination of mining activities to the provisions of the Wilderness
Act violates section 102(b) of FLPMA (43 U.S.C. 1701(b)). Section
102(b) limits only the effectiveness of the policies of FLPMA, not any
other legislation, including the Wilderness Act. This provision has no
effect on the relationship between the Wilderness Act and the mining
laws.
One comment stated that either casual use (a term defined in 43 CFR
3809.0-5) in a wilderness area should not be exempt from having a plan
of operations under 43 CFR subpart 3809, or this rule should include a
requirement that casual use be conducted in a manner that preserves the
wilderness character of the land.
Amendment of the requirements of subpart 3809 is beyond the scope
of this rule. This rule has no effect on subpart 3809, except that it
imposes additional requirements on mining operations in wilderness.
However, the proposed rule at section 6303.30(b) and (d) required all
mining operations, which would include casual use, to be conducted
under the standards in the wilderness designation legislation, and to
comply with BLM's requirements imposed to protect wilderness values.
These provisions are renumbered and consolidated into one paragraph in
the final rule. We do not believe a special provision for casual use is
necessary.
One comment pointed out that the wording of paragraph (d) in the
proposed rule requiring compliance ``with all reasonable requirements
established by BLM'' implies that some BLM requirements may be
unreasonable and that miners need not comply with those. This paragraph
also raises the question of who determines reasonableness, to the
extent that it would provide a legal basis for appeals. BLM has removed
this provision in the final rule because paragraph (b)(1) makes it
redundant.
One comment asserted that paragraphs (a), (b), (c), and (f)
substantially restate the law and are not needed, that paragraphs (d)
and (e) may be considered a taking under Executive Order 12630, and
that paragraph (h) is unnecessary. BLM promulgates regulations to
implement the law. Consequently, all regulations reflect the laws on
which they are based, and these paragraphs are included for
completeness. Requiring that mining claimants protect wilderness values
consistent with use of a mining claim or site for mineral activities,
and requiring reclamation and removal of improvements within a
reasonable time after termination of mining activities, do not
constitute takings of private property under the cited Executive Order.
The information in subparagraph (h) was removed because it was
substantially covered in the sections on information gathering.
We have also amended this section in the final rule to consolidate
in paragraph (b) portions of paragraphs (b), (d), and (g) of the
proposed rule that duplicate each other. These three paragraphs address
how you must conduct your mining operations to protect wilderness.
One comment stated that the one-year deadline for removal of
equipment and improvements, and the six-month deadline for beginning
reclamation, may not be long enough, especially at high altitudes or
latitudes. It claimed that the reclamation and environmental protection
requirements are too vague, and asked for clarification as to time for
completion of activities, reclamation standards, ending operations, and
the relationship of the requirement that structures be removed with
historic preservation requirements.
To answer these concerns, we have amended paragraph (e) to link the
[[Page 78367]]
reclamation requirements in the final rule to the regulations in 43 CFR
subpart 3809. The final rule requires claimants and operators to remove
their equipment and structures and begin reclamation within the time
frames established in their plan of operations approved by BLM, but no
later than 18 months after they have ceased mining and extraction
operations. The regulatory provisions are somewhat flexible to
accommodate regional differences, keeping in mind the direction in the
Wilderness Act to restore the surface as soon as operations are ended.
We believe that the environmental protection requirements in the
regulations are appropriate for mining in a wilderness setting. As for
historic preservation and other legislative requirements, a mining
operator who is ready to reclaim must prepare a reclamation plan that
addresses such issues.
One comment said that mining should be prohibited in BLM
wilderness. As of midnight, December 31, 1983, the location of new
mining claims became statutorily prohibited in wilderness, but the
Wilderness Act specifically recognizes valid existing rights, including
the right to mine valid claims that existed at the time the wilderness
was designated and have been properly and continuously maintained since
that time. Another comment suggested that BLM require miners to use the
minimum tools necessary, in order to protect the land and wilderness
values. The Wilderness Act does not provide authority to impose this
requirement.
On May 22, 1998, the Solicitor of the Department of the Interior
issued an opinion entitled ``Patenting of Mining Claims and Mill Sites
in Wilderness Areas,'' M-36994. Consistent with established case law
interpreting comparable statutes restricting patenting, the Solicitor's
Opinion concludes that section 4(d)(3) of the Wilderness Act requires a
reservation of the surface estate to the United States in all patents
where the claimant had not established a right to a patent as of the
date the lands on which the claim is situated are designated as
wilderness. The Solicitor strongly recommended that BLM amend its
wilderness regulations to provide guidelines for patenting that comport
with the Opinion. Accordingly, BLM will publish shortly a new proposed
rule proposing to amend part 6300 as promulgated in today's final rule.
This new proposed rule would set forth the patenting limitation and
related requirements and clarify BLM's patenting procedures. This final
rule reserves a subparagraph in the mining law administration section
for this proposed subparagraph.
The final rule also reserves a subparagraph in the mining law
administration section for a proposed subparagraph on timber use for
mining activities. The proposed rule would have removed from the
regulations paragraph (i) of section 8560.4-6, which specified that
owners of patented mining claims located after the lands were included
in the National Wilderness Preservation System could use timber growing
on the patented claims only for mining and mineral extraction and
beneficiation purposes, and only if timber otherwise reasonably
available is insufficient for these needs. This provision appears in
the wilderness regulations in the 1997 edition of the Code of Federal
Regulations, but the proposed rule omitted it. No public comments
addressed its removal. Because the existing section 8560.4-6(i) could
be read to imply a conflict with the Solicitor's Opinion, BLM chose not
to incorporate the language from the existing regulations into this
final rule. Instead, we will propose, as part of the new rule mentioned
above, a revised timber provision that would address timber use for
mining operations on both patented and unpatented claims.
Section 6303.31 How will BLM determine the validity of unpatented
mining claims or sites? (Section 6304.12)
This section attracted few comments. One comment stated that
validity examinations should not be imposed on mining claimants because
they would interfere with valid existing rights. The Wilderness Act
allows mining under valid existing rights only, and thus by implication
authorizes determination by the appropriate administrative authority
whether the rights claimed are, in fact, valid.
Another comment requested that BLM make clear (1) whether existing
approved mining operations are allowed to continue during the validity
examination; (2) that BLM reserves the right to impose mitigation
measures; and (3) that BLM must verify the validity of all lode and
placer claims affected by a proposed plan of operations. In response to
the first concern, we have amended the final rule to allow BLM to
determine on a case-by-case basis whether operations may begin or
continue pending a validity examination. As to the second part of the
comment, operational standards are covered in 43 CFR subpart 3809.
Finally, as to the third part, the final rule requires BLM to make a
validity determination before approving a plan of operations.
One comment suggested re-wording paragraph (a) of this section to
make it clear that the claim must be valid when the area becomes
wilderness, not just on some date ``prior to'' the wilderness
designation. BLM adopts this comment, in part, in the final rule to
make it clear that the validity must be ``as of'' the date of
wilderness designation.
Section 6303.40 What special provisions apply to mineral leasing and
material sales? (Section 6304.23)
A few comments addressed this section. One asserted that the
proposed rule did not clearly recognize rights under valid existing
leases, licenses, and permits. It went on to say that such
authorizations should continue under existing legal requirements or the
government should compensate the owner. We disagree with the initial
premise of the comment: the regulatory text clearly recognizes valid
existing rights. There is no need to provide for compensation, since
the regulations allow development of valid existing rights.
One comment suggested that BLM should amend paragraph (b) to
provide that activities for which a lease, license, or permit was
issued may continue but must be conducted in a manner that preserves
the wilderness character of the land. There is no authority in the
Wilderness Act for such a provision.
Finally, we removed paragraph (c) of the proposed rule because
paragraph (a) renders it redundant.
Section 6303.50 What special provisions apply to water and power
resources? (Section 6304.24)
A few comments addressed this section, which deals with the
specific authority in the Wilderness Act for the President of the
United States to authorize certain water resource prospecting and
development. The comments raised issues relating to wildlife water
development and State government prerogatives. One comment said that
the provision should be removed from the proposed rule because its
implementation would damage public lands wilderness. Since the
regulation is based directly on a Wilderness Act provision, it is not
changed in the final rule except to substitute a codification of the
cite to the Act. The provision has no bearing on State water
development authority.
[[Page 78368]]
Section 6303.60 What special provisions apply to livestock grazing?
(Section 6304.25)
A number of comments addressed this section, some objecting to
grazing in wilderness, an activity specifically allowed by the
Wilderness Act, and others suggesting various limitations on grazing
and related developments. A few of the comments questioned BLM's
authority to restrict existing uses or to limit maintenance and
reconstruction of grazing support facilities. Under the Wilderness Act,
the Federal land managing agency with jurisdiction over a wilderness
area will permit you to continue grazing livestock, subject to
reasonable regulations, where your grazing authorization was already
established when Congress designated the wilderness and has continued
since. We consider it to be reasonable regulation to restrict livestock
increases, and to prohibit construction of additional facilities,
unless they can be shown necessary for purposes of protection and
improved management of wilderness resources.
One comment suggested that the regulations include provisions for
prevention and correction of resource damage and for allocation of
forage among livestock, wildlife, and pack stock. Another asked that
the regulations include authority for reduction of grazing levels if
resources are being damaged. These matters are covered in BLM's
regulations on range management. See 43 CFR subparts 4130 and 4180.
One comment asked for special accommodations for grazing by
livestock of Indian tribes, and recommended that the regulations
provide for tribal consultation as to grazing decisions on BLM lands
adjacent to tribal lands. It also addressed a specific development
concern in a wilderness study area.
The final rule has no bearing on wilderness study areas, and the
respondent's concern will have to be addressed in the wilderness study
process. As for consultation, it is often provided for in other laws
and regulations. There is no authority either in the Wilderness Act or
in BLM's range management regulations or other grazing authority for
special treatment for Indian tribes as to grazing in wilderness areas
or on any other public lands. We have not changed the final rule in
response to this comment.
One comment suggested that BLM remove the final sentence of the
section, allowing increases in grazing levels if they will not
adversely affect wilderness values. Removal of the provision would
leave no standard in the regulations for deciding whether to allow a
requested increase in grazing in wilderness. We believe that no
``adverse impact on wilderness values'' is a standard sufficiently
strict to apply in such cases.
Section 6303.70 What special provisions apply to other commercial
uses?
Fewer than 10 comments addressed this section. The Wilderness Act
provides that commercial services may be performed in wilderness to the
extent necessary for activities proper for realizing the recreational
and other wilderness purposes of the area (16 U.S.C. 1133(d)(5)). One
comment said that the regulations should require wilderness management
plans to include a needs assessment for such commercial activities. BLM
planning regulations, which apply to wilderness as well as other public
lands, already require a needs analysis. See 43 CFR 1610.4. Such a
provision is unnecessary in these regulations.
One comment suggested that the regulations should prohibit
permanent or seasonal structures or caches for recreation, or only
allow very primitive and ephemeral base camps. Another comment asked
that the regulations require NEPA analysis and public review for all
decisions on temporary structures. Again, this is covered in BLM's
planning regulations--see the previous paragraph. The final rule does
not allow temporary structures in BLM wilderness except under the
regulations in 43 CFR subpart 3715 on use and occupancy of mining
claims.
One comment asked that ``wilderness education'' or ``educational''
be added as one of the permissible purposes for commercial use of
wilderness. This addition is unnecessary--education is included in
``other wilderness purposes.''
One comment suggested that commercial hunting be prohibited. We
assume the comment refers to commercial guiding and outfitting for
hunters. Commercial outfitters often serve as guides for hunters, and
this activity is considered among the recreational purposes
contemplated in the Wilderness Act.
Upon reviewing these comments, and because the final rule does not
permit either permanent or temporary structures in BLM wilderness, we
have concluded that this section is unnecessary. We have removed it
from the final rule.
Section 6303.80 What special provisions apply to administrative and
emergency functions? (Subpart 6303 and Section 6304.22)
A few comments addressed this section, some saying the provision
was too restrictive, and others saying it was too permissive. Some said
that these provisions should include a minimum tool requirement, that
BLM should carry out administrative functions with the minimum tools
necessary to minimize damage to the wilderness. BLM has not adopted the
comment in the regulations. The standard is not appropriate for
emergencies, and BLM can apply it in other situations as a matter of
policy.
One comment stated that the regulations should not place sole
authority in the hands of BLM, States, and counties without imposing
more stringent and more detailed standards. We believe that the level
of detail in the regulations is appropriate for regulations with
national effect. The regulations provide local managers with the
discretion and flexibility they need to be effective wilderness
managers. Also, regulations are for the guidance and instruction of the
public, not BLM personnel. Internal guidance is found in the BLM
Manual, instruction memoranda, and other documents.
One comment stated that the regulations should require that motor
vehicles and aircraft be used for rescues, fire-fighting, fighting pest
infestations, and trail maintenance and construction. The regulations
allow such use, but it would be unnecessary and inappropriate to
require it in every case. Another comment, on the other hand, stated
that the regulations should include a preference for use of non-
motorized equipment. The regulations include no such preference, and
are silent on the matter. We do not believe it is appropriate to place
anything in regulations that may hamper emergency personnel and place
life and property at undue risk.
One comment asked whether the reference in proposed paragraph (c)
to ``property'' is to public or private property. BLM intends no
distinction between the two in the context of fire and pest
emergencies. In the final rule, we moved this paragraph to new section
6304.22, while the remainder of the section becomes a separate subpart
6303, which addresses BLM administrative functions.
The same comment asked for clarification on the application of the
rule to protection of wilderness users, to entry into wilderness by law
enforcement officers, and whether BLM will prescribe emergency measures
[[Page 78369]]
before or after the emergency. A separate comment opposed allowing
occupancy and use by non-BLM officials. Paragraph (d) in the proposed
rule clearly stated that emergency measures are to apply in cases of
danger to ``health and safety of persons.'' This clearly includes
wilderness users, and the meaning is made clearer by adding, from the
Wilderness Act itself, the phrase ``in the area'' to apply to
``persons.'' The rule also states that BLM may authorize occupancy and
use of wilderness by law enforcement officers. We have kept the
provision discretionary in order to maintain maximum flexibility in
protecting health and safety; there may be occasions where it would be
inappropriate to require BLM to give free rein to non-Federal agencies,
or to establish emergency measures and procedures in advance of the
emergency. On the other hand, the Wilderness Act does not prohibit BLM
from cooperating with officials of other agencies, and BLM policy is to
cooperate with State and local governments to the maximum extent
feasible and appropriate.
One comment urged that the regulations include provisions
authorizing BLM to use prescribed burns in appropriate situations. We
believe that paragraph (b) of this section (section 6303.1(c) of the
final rule) is broad enough to allow prescribed fire as a management
tool in BLM wilderness. This paragraph allows BLM to authorize Federal,
State, and local officials to occupy and use the wilderness areas in
order to carry out the purposes of the Wilderness Act or other law.
One comment suggested that feral species and cowbirds should be
included, along with fire, insects, and disease, as pests that BLM is
authorized to use aircraft to control. The comment is not adopted in
the final rule. The Wilderness Act specifies only fire, insects, and
disease.
Another comment stated that the provisions for administration,
fire, emergencies, insect and noxious weed control need to be more
restrictive. We believe that we allowed a level of discretion in the
proposed and final rule appropriate for a national regulation. However,
we have amended the provision to remove the requirement that control of
fire, insects, and disease be tied to threats to human life or
property. The Wilderness Act does not limit control of fire, insects,
and disease to situations where life or property is in danger. In order
to carry out our responsibility for preserving the wilderness character
of BLM wilderness areas, we have also added non-native invasive plants
to the list of problems to which BLM may apply control measures under
this section.
One comment stated that the rule should not provide for emergency
rescue. We did not adopt this comment because Section 4(c) of the Act
specifically provides for the use of aircraft, motor vehicles, and so
forth, in emergencies involving the health and safety of persons within
the area.
One comment stated that BLM's emergency actions that involve acts
that are otherwise prohibited, such as cutting trees or using a
motorized climbing drill, should not be considered a violation of the
regulations. We agree. Section 4(c) of the Wilderness Act states that
emergencies involving the health and safety of persons within the area
are exceptions to the prohibitions in the Act--and the rule should be
interpreted in this way.
Several comments offered specific suggestions for rewording certain
provisions. BLM adopted some suggestions: adding references to
temporary roads, motor vehicles, structures, and landing aircraft in
paragraph (a), and, to conform with the Wilderness Act, adding the
phrase ``in the area'' to paragraph (d). We rejected other suggestions
as overly restricting administrative discretion. One such comment
suggested that the final rule should prohibit most of the
administrative measures that the proposed rule sanctioned. We did not
adopt this suggestion, because to do so would be contrary to the
Wilderness Act.
Subpart 6304 Access to State and Private Lands Within Wilderness Areas
(Subpart 6305)
This subpart is renumbered 6305 in the final rule to accommodate
new subpart 6303 on BLM administrative functions.
Section 6304.20 How will BLM give access to State and private land
within wilderness areas when the access is affected by wilderness
designation? (Sections 6305.10, 6305.20, and 6305.30)
Several comments addressed this section, which provides for access
to inholdings. ``Inholdings'' in these regulations are State and
private lands completely surrounded by designated wilderness. Several
comments addressed matters that are covered in other regulations,
primarily 43 CFR part 2920 on general leases, permits, and easements.
The regulations in part 2920 authorize, among other things, ``uses that
cannot be authorized under Title V of the Federal Land Policy and
Management Act . . .'' (43 CFR 2920.1-1(a)). Title V of FLPMA (43
U.S.C. Chapter 35, Subchapter V, Sections 1761-1771) expressly excludes
wilderness from those lands across which BLM may grant rights-of-way
under Title V. For this reason, part 2920, which provides for legal
mechanisms other than Title V rights-of-way, is the actual authority
used to provide access to wilderness inholdings.
Where valid existing rights to access do not exist, BLM may give
access to inholdings by permit under existing part 2920, using its
administrative discretion under this final rule to determine what
access is adequate and causes the briefest and most limited impacts on
wilderness character. BLM is preparing a revised version of part 2920
that would provide specific mechanisms for authorizing access to
inholdings.
In accordance with these final wilderness management regulations,
BLM will only approve the kind and degree of access that you enjoyed
immediately before the wilderness area across which you must travel to
reach your inholding was designated as wilderness and BLM determines
will serve the reasonable purposes for which the non-Federal lands are
held or used and cause the least impact on wilderness character. By
providing for BLM land managers to approve only access routes that were
in existence at the time of wilderness designation, the final rule in
many cases effectively ratifies the inholder's original choice of route
and mode of travel. If no access (other than travel by foot, horseback,
or packstock) existed at the date of wilderness designation, BLM will
only approve that combination of routes and non-motorized modes of
travel to non-Federal inholdings that BLM determines will serve the
reasonable purposes for which the non-Federal lands are held or used
and cause the least impact on wilderness character. If you have a valid
existing access right that is greater than the access BLM provides
under this rule, we will ensure your reasonable use and enjoyment of
your inholding. However, we may impose reasonable restrictions on your
access to protect wilderness values.
One comment maintained that rights of access exist independently
and are not granted by BLM authority, and that BLM does not have
authority to tell private land owners what mode of travel they must
use. Section 4(c) of the Wilderness Act (16 U.S.C. 1133(c)) recognizes
that valid rights of access may exist in designated wilderness. BLM may
nevertheless regulate such existing rights to access in order to
protect wilderness resources. Section
[[Page 78370]]
302(b) of FLPMA directs the Secretary of the Interior, ``by regulation
or otherwise, [to] take any action necessary to prevent unnecessary or
undue degradation of the lands.'' The final regulations specifically
implement this authority by providing at section 6305.10 that such
rights are subject to reasonable regulation.
One comment stated that, for areas surrounded on only three sides
by wilderness but where access on the non-wilderness side may not be
possible, the regulations should allow access via the wilderness.
Section 5 of the Wilderness Act does not apply to private or State land
that is near or adjacent to wilderness, or only partly surrounded by
wilderness. Section 5 provides for access only to State and private
land that ``is completely surrounded by'' public land ``within areas
designated by this Act as wilderness...'' (16 U.S.C. 1134(a)). Private
or State land that is near or adjacent to wilderness would not be an
inholding as defined in these regulations, and we cannot adopt the
comment in the final rule.
One comment asked whether BLM will use written or verbal
authorization to grant access to inholdings. The authorization must be
in writing, and we have added this clarification in the final rule. The
same comment asked for clarification of ``means that are customarily
being used'' for determining the type of access allowed, and for
assurance that new roads will not be allowed except for mining claims
with valid existing rights. The final rule does not allow construction
of new roads. You may maintain existing access routes to the degree you
or your predecessors maintained them at the time of wilderness
designation. BLM will not allow you to upgrade your access routes
beyond the condition that existed on the date Congress designated the
area as wilderness, unless the improvement would protect wilderness
resources from degradation. Further, the customary usage language in
section 5 (b) of the Wilderness Act pertains only to mining claims and
other valid occupancies, not to access to State and private inholdings
provided for in Section 5(a).
One comment stated that the regulations need to acknowledge State
and local government jurisdiction over R.S. 2477 rights-of-way. The
regulations are silent on how such rights may be recognized. BLM is
forestalled by a 1997 statute from promulgating regulations on R.S.
2477 rights-of-way without Congressional consent (Pub. L. 104-208, 110
Stat. 3009-181, 3009-200).
One comment stated that the regulations should use the term
``inholding,'' as defined in the definitions section, and provide that
inholdings do not include unpatented mining claims and grazing leases,
but should state that these uses have special rights to access under
the Wilderness Act. In response, we divided the access section to show
more clearly the rights of mining claimants and persons with other
valid occupancies.
Two comments criticized the proposed rule's use of the term
``customarily used'' as a standard for permitting means of access to
mining claims and other valid occupancies within wilderness, asserting
this standard would not protect wilderness. In the final rule, we have
substituted the term ``customarily enjoyed.'' Section 5(b) of the
Wilderness Act contains that standard and we may not use a different
one.
One comment stated that, according to the United States Attorney
General's Opinion of June 23, 1980, BLM need not provide access under
the Wilderness Act to inholdings if the owner of the inholding has
refused a reasonable offer of exchange. The Attorney General's Opinion
addressed the authorities of the Forest Service. It has not yet been
determined if the 1980 opinion applies to BLM acquisition of inholdings
by exchange. In the event the opinion is determined applicable to BLM,
this final rule allows for that possibility. Even so, however, BLM's
policy will be to exercise that authority only in unusual or extreme
circumstances. The final rule, therefore, allows BLM to acquire land or
interests in land from a landowner by exchange, by accepting donation
of the inholding or, if the landowner agrees, by purchase. Further, we
encourage inholders to seek a fair exchange of their inholding for
other public land in the same State (as provided by Sec. 5(a) of the
Wilderness Act), and we expect BLM local land managers to explore this
possibility in all wilderness inholding cases. Before issuing any
authorization allowing access to State-owned or privately owned land,
BLM will discuss with the property owner the possibility of selling or
donating the inholding to BLM, or exchanging it for other public land.
III. Final Rule as Adopted
The following table shows how BLM redesignated sections in the
proposed rule or created new sections in the final rule.
------------------------------------------------------------------------
Proposed rule Final rule
------------------------------------------------------------------------
Part 6300.............................. Part 6300
Subpart 6301........................... Subpart 6301
Sec.................................... Sec.
6301.10................................ 6301.1
6301.30................................ 6301.3
6301.50................................ 6301.5
Subpart 6302........................... Subpart 6302
Sec.................................... Sec.
6302.10................................ 6302.11
6302.20(a)............................. 6302.12(a)
6302.20(b)............................. 6302.12(b)
6302.20(c)............................. 6302.13
6302.30................................ 6302.19
6302.40(a)............................. 6302.16
6302.40(b)............................. 6302.15(a)
6302.40(c)............................. 6302.15(b)
6302.41................................ 6302.15
6302.50................................ 6302.17
6302.60................................ 6302.18
6302.70................................ 6302.20
6302.70(j)............................. 6302.14, 6302.20(j)
6302.80................................ 6302.30
Subpart 6303........................... Subpart 6304
Sec.................................... Sec.
[[Page 78371]]
6303.10................................ removed
6303.20................................ 6304.21
6303.30................................ 6304.11
6303.31................................ 6304.12
6303.40................................ 6304.23
6303.50................................ 6304.24
6303.60................................ 6304.25
6303.70................................ 6302.20(f)
6303.80................................ Subpart 6303
6303.80(c)............................. 6304.22
Subpart 6304........................... Subpart 6305
Sec.................................... Sec.
6304.20(a)............................. 6305.10, 6505.11
6304.20(b)............................. 6305.20
6304.20(c)............................. 6305.30
------------------------------------------------------------------------
We have tried in this renumbering to make the organization more
logical and the regulations flow better and be more informative. We
divided a few of the longer sections in the proposed rule into two or
more shorter sections with informative headings.
Also, we have arranged subject matter so that major subject matter
headings (with section numbers ending in zero (0) and often with no
regulatory content themselves), lead into two or more subordinate
sections, with numbers ending in other than 0, providing detailed
information and guidance. For example, sections 6304.11 and 6304.12 are
subordinate to section 6304.10, and section 6304.20 immediately
thereafter leads into a separate series of sections. We have also
simplified some of the section headings, and minimized the use of ``yes
or no'' questions.
Subpart 6301 contains general information, a statement of purpose
in section 6301.1, a reference to the statutory definition of
wilderness in section 6301.3, and definitions in section 6301.5.
Subpart 6302 discusses use of wilderness areas, when you need and
how you get a permit, what you can do in wilderness without a permit
(including rock climbing), and what acts the regulations totally
prohibit. It concludes with a section on criminal and civil penalties
for violating the prohibited acts.
Subpart 6303 describes the administrative and emergency functions,
except for fire, insect, and disease control, that BLM performs in
wilderness.
Subpart 6304 deals with the ``special provisions'' in Section 4(d)
of the Wilderness Act. It contains the regulations for mining,
prospecting and information gathering, mineral leasing, control of
fire, insects, and disease, water development, livestock grazing, and
commercial services related to recreation and other wilderness uses.
Subpart 6305 covers access to wilderness inholdings, both those
held as private property in fee simple by individuals, or as State
land, and those legally occupied, such as mining claims.
IV. Procedural Matters
The principal author of this final rule is Jeff Jarvis, Senior
Wilderness Specialist, Wilderness, Rivers and National Trails Group,
Office of the National Landscape Conservation System, assisted by Rob
Hellie of the National Monuments and National Conservation Areas Group,
and Ted Hudson of the Regulatory Affairs Group, all in the Washington,
D.C., office. David Porter of the Colorado State Office, Ken Mahoney of
the Arizona State Office, and Paul Brink of the California State
Office, BLM, also assisted.
National Environmental Policy Act
BLM has performed and documented an environmental assessment (EA),
and has found that the rule is not a major Federal action significantly
affecting the quality of the human environment under section 102(2)(C)
of the National Environmental Policy Act of 1969, 42 U.S.C.
4332(2)(C)(NEPA). Therefore, BLM is not required to write a detailed
statement on the environmental impacts of the rule under NEPA. BLM has
placed the EA and the Finding of No Significant Impact (FONSI), dated
June 19, 2000, on file in the BLM Administrative Record. You may review
these documents by contacting us at the address listed above (see
ADDRESSES).
Executive Order 12866
Following the criteria listed in section 3(f) of Executive Order
12866, BLM has found that the rule is not a significant regulatory
action. Therefore, this rule is not subject to review by the Office of
Management and Budget under section 6(a)(3) of the Executive Order.
Executive Order 12630
This rule does not represent a governmental action capable of
interference with constitutionally protected property rights or result
in a taking of private property under Executive Order 12630. It does
not provide for the taking of any property rights or interests.
One public comment suggested that the access provisions in subpart
6305 may require a takings assessment under this Executive Order.
Section 1(b) of the Executive Order states, in part, ``Executive
departments * * * should account in decision-making for those takings
that are necessitated by statutory mandate.'' The only non-Federal
property directly affected by the rule is non-Federal land surrounded
by designated wilderness, and the rule establishes procedures
regulating access to such inholdings.
There are fewer than 1,000 State and private inholdings in BLM
wilderness areas in California and Arizona. These two States contain
the great bulk of BLM designated wilderness. This is the approximate
number of inholdings that may be affected by this provision of the
rule. The rule establishes acquisition by BLM as the remedy of
preference for resolving inholding problems. Inholders for whom an
exchange or other acquisition arrangement will not work will likely
need to apply for access under 43 CFR part 2920. Under BLM policy, we
will grant access to such inholders appropriate for their level of use
of the affected property and equivalent to that which they enjoyed
before wilderness designation.
Regulatory Flexibility Act
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), 5
U.S.C. 601-612, to ensure that Government regulations do not
unnecessarily or disproportionately burden small entities. The RFA
requires a regulatory
[[Page 78372]]
flexibility analysis if a rule would have a significant economic
impact, either detrimental or beneficial, on a substantial number of
small entities. BLM has determined under the RFA that this rule will
not have a significant economic impact on a substantial number of small
entities.
Several public comments maintained that section 6302.70(j) of the
proposed rule would have a serious impact on small businesses. This
argument was based on two premises: (1) that paragraph (j) would
prohibit the use of fixed anchors and thereby virtually prohibit
climbing, and (2) that the rule would affect many climbing areas.
In Part II of this preamble, we explained that the Forest Service
has begun a negotiated rulemaking. This process must be concluded
before BLM can promulgate regulations on this matter. Therefore, we
reserve a discussion of the supposed impacts of the rule on small
business until such time as we publish a final rule containing a
provision affecting climbing.
None of the other provisions of the proposed rule attracted
comments alleging negative effects on small business.
The Small Business Administration established the Small Business
and Agricultural Regulatory Enforcement Ombudsman and ten Regional
Fairness Boards to receive comments from small businesses about Federal
agency enforcement actions. The Ombudsman annually evaluates these
enforcement activities and rates each agency's responsiveness to small
business. If you wish to comment on enforcement aspects of this rule,
you may call 1-888-734-4247.
Paperwork Reduction Act
This final rule does not contain information collection
requirements that require approval by the Office of Management and
Budget under the Paperwork Reduction Act, 44 U.S.C. 3501-3520.
Unfunded Mandates Reform Act
This rule will not result in any unfunded mandate to State, local,
or tribal governments in the aggregate, or to the private sector, of
$100 million or more in any one year. The rule will not establish a
Federal mandate that may result in expenditures of $100 million or more
in any one year by State, local, and tribal governments in the
aggregate, or by the private sector. Therefore, BLM need not prepare a
written statement of the anticipated costs and benefits of the rule in
accordance with the Unfunded Mandates Reform Act (25 U.S.C. 1501-1571).
The rule requires that State agencies comply with the Wilderness
Act in carrying out their activities in BLM wilderness areas. For
example, States will not be allowed to use motorized equipment or
mechanical transport, or to land aircraft, in managing wildlife. This
degree of limitation does not cross the financial threshold
contemplated in the Unfunded Mandates Reform Act, and is required by
Federal law.
Executive Order 12988
The Department has determined that this rule meets the applicable
standards provided in sections 3(a) and 3(b)(2) of Executive Order
12988.
Executive Order 13132
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. The rule does not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. The rule does
not preempt State law. Several comments on the proposed rule questioned
whether the rule would affect State management of fish and wildlife.
This was the only arena where the public perceived potential conflict
between BLM and the States. As stated several times earlier in this
preamble, and as directed by both FLPMA and the Wilderness Act, this
rule has no effect on the respective roles of Federal and State
government in this area.
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated possible
effects on Federally recognized Indian tribes and have determined that
there are no adverse effects on the tribes. The regulations
specifically allow Indian use of BLM wilderness for religious
ceremonies. Limitations imposed on Indians for the use of BLM
wilderness in this rule are no different from limitations imposed on
other groups, and are required by the Wilderness Act and FLPMA. The
regulations have no effect on Indian governmental affairs, Indian
reservations, or other Indian lands.
List of Subjects in 43 CFR Parts 6300 and 8560
Penalties, Public lands, Reporting and recordkeeping requirements,
Wilderness areas.
For the reasons explained in the preamble, and under the authority
of 43 U.S.C. 1740, chapter II, subtitle B of title 43 of the Code of
Federal Regulations is amended as follows:
Dated: November 28, 2000.
Sylvia V. Baca,
Assistant Secretary of the Interior.
1. Subchapter F, consisting of Part 6300, is added to read as
follows:
Subchapter F--Preservation and Conservation (6000)
Part 6300--Management of Designated Wilderness Areas
Subpart 6301--Introduction
Sec.
6301.1 Purpose.
6301.3 What is a BLM wilderness area?
6301.5 Definitions.
Subpart 6302--Use of Wilderness Areas, Prohibited Acts, and Penalties
Use of Wilderness Areas
6302.10 Use of wilderness areas.
6302.11 How may I use wilderness areas?
6302.12 When do I need an authorization and to pay a fee to use a
wilderness area?
6302.13 Where do I obtain an authorization to use a wilderness
area?
6302.14 What authorization do I need to climb in BLM wilderness?
6302.15 When and how may I collect or disturb natural resources
such as rocks and plants in wilderness areas?
6302.16 When and how may I gather scientific information about
resources in BLM wilderness?
6302.17 When may I use a wheelchair in BLM wilderness?
6302.18 How may American Indians use wilderness areas for
traditional religious purposes?
6302.19 When may BLM close or restrict use of wilderness areas?
Prohibited Acts
6302.20 What is prohibited in wilderness?
Penalties
6302.30 What penalties apply if I commit one or more of the
prohibited acts?
Subpart 6303--Administrative and Emergency Functions
6303.1 How does BLM carry out administrative and emergency
functions?
Subpart 6304--Uses Addressed in Special Provisions of the Wilderness
Act
Mining Under the General Mining Laws
6304.10 Mining law administration.
6304.11 What special provisions apply to operations under the
mining laws?
6304.12 How will BLM determine the validity of unpatented mining
claims or sites?
[[Page 78373]]
Other Uses Specifically Addressed by the Wilderness Act
6304.20 Other uses addressed in special provisions of the
Wilderness Act.
6304.21 What special provisions cover aircraft and motorboat use?
6304.22 What special provisions apply to control of fire, insects,
and diseases?
6304.23 What special provisions apply to mineral leasing and
material sales?
6304.24 What special provisions apply to water and power
resources?
6304.25 What special provisions apply to livestock grazing?
Subpart 6305--Access to State and Private Lands Or Valid Occupancies
Within Wilderness Areas
Access to Non-Federal Inholdings
6305.10 How will BLM allow access to State and private land within
wilderness areas?
6305.11 What alternatives to granting access will BLM consider in
cases of State and private inholdings?
Access to Other Valid Occupancies
6305.20 How will BLM allow access to valid mining claims or other
valid occupancies within wilderness areas?
Access Procedures for Valid Occupancies
6305.30 What are the steps BLM must take in issuing an access
authorization to valid occupancies?
Authority: 16 U.S.C. 1131 et seq.; 43 U.S.C. 1733, 1740, 1782.
Subpart 6301--Introduction
Sec. 6301.1 Purpose.
This part governs the management of BLM wilderness areas outside of
Alaska. It tells you what wilderness areas are, how BLM manages them,
and how you can use them. These regulations also tell you what
activities BLM does not allow in wilderness areas, the penalties for
performing prohibited acts, and the special provisions for some uses
and access that the Wilderness Act explicitly allows.
Sec. 6301.3 What is a BLM wilderness area?
A BLM wilderness area is an area of public lands that Congress has
designated for BLM to manage as a component of the National Wilderness
Preservation System in accordance with the Wilderness Act of 1964. The
Wilderness Act provides a detailed definition of wilderness that
applies to BLM wilderness areas. See 16 U.S.C. 1131(c) and 43 U.S.C.
1702(i).
Sec. 6301.5 Definitions.
Terms used in this part have the following meanings:
Access means the physical ability of property owners and their
successors in interest to have ingress to and egress from State or
private inholdings, valid mining claims, or other valid occupancies. It
does not include rights-of-way or permits under section 501 of the
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761) (FLPMA)
or parts 2800 and 2880 of this chapter.
Inholding means State-owned or privately owned land that is
completely surrounded by Congressionally designated wilderness.
Mechanical transport means any vehicle, device, or contrivance for
moving people or material in or over land, water, snow, or air that has
moving parts. This includes, but is not limited to, sailboats,
sailboards, hang gliders, parachutes, bicycles, game carriers, carts,
and wagons. The term does not include wheelchairs, nor does it include
horses or other pack stock, skis, snowshoes, non-motorized river craft
including, but not limited to, drift boats, rafts, and canoes, or
sleds, travois, or similar devices without moving parts.
Mining operations is defined in subpart 3715 of this chapter.
Motor vehicle means any vehicle that is self-propelled.
Motorized equipment means any machine that uses or is activated by
a motor, engine, or other power source. This includes, but is not
limited to, chainsaws, power drills, aircraft, generators, motorboats,
motor vehicles, snowmobiles, tracked snow vehicles, snow blowers or
other snow removal equipment, and all other snow machines. The term
does not include shavers, wrist watches, clocks, flashlights, cameras,
camping stoves, cellular telephones, radio transceivers, radio
transponders, radio signal transmitters, ground position satellite
receivers, or other similar small hand held or portable equipment.
Primitive and unconfined recreation means non-motorized types of
outdoor recreation activities that do not require developed facilities
or mechanical transport.
Public lands means any lands and interests in lands owned by the
United States and administered by the Secretary of the Interior through
BLM without regard to how the United States acquired ownership.
Valid occupancy means an occupancy under a current permit, lease,
or other written authorization from BLM to occupy public lands. For a
definition of occupancy related to development of locatable minerals,
see subpart 3715 of this chapter.
Wheelchair means a device that is designed solely for use by a
mobility-impaired person for locomotion, and that is suitable for use
in an indoor pedestrian area.
Subpart 6302--Use of Wilderness Areas, Prohibited Acts, and
Penalties
Use of Wilderness Areas
Sec. 6302.10 Use of wilderness areas.
Sec. 6302.11 How may I use wilderness areas?
Unless otherwise provided by BLM, the Wilderness Act, or the Act of
Congress designating the area as wilderness, all wilderness areas will
be open to uses consistent with the preservation of their wilderness
character and their future use and enjoyment as wilderness. In subpart
6304 you will find provisions implementing the special provisions of
the Wilderness Act that allow specific uses of wilderness areas. In
Sec. 6302.20 you will find a list of acts that are explicitly
prohibited within wilderness areas.
Sec. 6302.12 When do I need an authorization and to pay a fee to use a
wilderness area?
(a) In general, you do not need an authorization to use wilderness
areas.
(b) BLM may require an authorization and charge fees for some uses
of wilderness areas. You must obtain authorization from BLM and pay
fees to use a wilderness area when required by:
(1) The regulations in this part (see Sec. 6302.15 on collecting
natural resource materials, Sec. 6302.16 on gathering scientific
information, and subpart 6305 on access to inholdings and valid
occupancies);
(2) Regulations in this chapter II--Bureau of Land Management,
Department of the Interior--governing the specific activities in which
you are engaged;
(3) The management plan for the wilderness area; or
(4) A BLM closure or restriction under Sec. 6302.19 of this part.
(c) To determine whether you need an authorization under paragraph
(b)(2) of this section, you should refer to the applicable BLM
regulations for your particular activity.
Sec. 6302.13 Where do I obtain an authorization to use a wilderness
area?
You may request an authorization to use a wilderness area from the
BLM field office with jurisdiction over the wilderness area you want to
use.
Sec. 6302.14 What authorization do I need to climb in BLM wilderness?
(a) You do not need a permit or other authorization to climb in BLM
wilderness.
(b) [Reserved]
(c) You must not use power drills for climbing. See
Sec. 6302.20(d).
[[Page 78374]]
Sec. 6302.15 When and how may I collect or disturb natural resources
such as rocks and plants in wilderness areas?
(a) You may remove or disturb natural resources for non-commercial
purposes in wilderness areas, including prospecting, provided--
(1) You do it in a manner that preserves the wilderness
environment, using no more than non-motorized hand tools and causing
minimal surface disturbance; and
(2) (i) Your proposed activity conforms to the applicable
management plan; or
(ii) You have a BLM authorization if one is required by statute or
regulation.
(b) Where BLM allows campfires in a wilderness, you may gather a
reasonable amount of wood for use in your campfire.
Sec. 6302.16 When and how may I gather scientific information about
resources in BLM wilderness?
(a) You may conduct research, including gathering information and
collecting natural or cultural resources in wilderness areas, using
methods that may cause greater impacts on the wilderness environment
than allowed under Sec. 6302.15(a), if--
(1) Similar research opportunities are not reasonably available
outside wilderness;
(2) You carry out your proposed activity in a manner compatible
with the preservation of the wilderness environment and conforming to
the applicable management plan;
(3) Any ground disturbance or removal of material is the minimum
necessary for the scientific purposes of the research; and
(4) You have an authorization from BLM.
(b) You must reclaim disturbed areas, and BLM may require you to
post a bond.
Sec. 6302.17 When may I use a wheelchair in BLM wilderness?
If you have a disability that requires the use of a wheelchair, you
may use a wheelchair in a wilderness. Consistent with the Wilderness
Act and the Americans with Disabilities Act of 1990 (42 U.S.C. 12207),
BLM is not required to facilitate such use by building any facilities
or modifying any conditions of lands within a wilderness area.
Sec. 6302.18 How may American Indians use wilderness areas for
traditional religious purposes?
In accordance with the American Indian Religious Freedom Act (42
U.S.C. 1996), American Indians may use wilderness areas for traditional
religious purposes, subject to the provisions of the Wilderness Act,
the prohibitions in Sec. 6302.20, and other applicable law.
Sec. 6302.19 When may BLM close or restrict use of wilderness areas?
When necessary to carry out the provisions of the Wilderness Act
and other Federal laws, BLM may close or restrict the use of lands or
waters within the boundaries of a BLM wilderness area, using the
procedures in Sec. 8364.1 of this chapter. BLM will limit any such
closure to affect the smallest area necessary for the shortest time
necessary.
Prohibited Acts
Sec. 6302.20 What is prohibited in wilderness?
Except as specifically provided in the Wilderness Act, the
individual statutes designating the particular BLM wilderness area, or
the regulations of this part, and subject to valid existing rights, in
BLM wilderness areas you must not:
(a) Operate a commercial enterprise;
(b) Build temporary or permanent roads;
(c) Build aircraft landing strips, heliports, or helispots;
(d) Use motorized equipment; or motor vehicles, motorboats, or
other forms of mechanical transport;
(e) Land aircraft, or drop or pick up any material, supplies or
person by means of aircraft, including a helicopter, hang-glider, hot
air balloon, parasail, or parachute;
(f) Build, install, or erect structures or installations, including
transmission lines, motels, vacation homes, sheds, stores, resorts,
organization camps, hunting and fishing lodges, electronic
installations, and similar structures, other than tents, tarpaulins,
temporary corrals, and similar devices for overnight camping;
(g) Cut trees;
(h) Enter or use wilderness areas without authorization, where BLM
requires authorization under Sec. 6302.12;
(i) Engage or participate in competitive use as defined in section
8372.0-5(c) of this chapter, including those activities involving
physical endurance of a person or animal, foot races, water craft
races, survival exercises, war games, or other similar exercises;
(j) [Reserved]; or
(k) Violate any BLM regulation, authorization, or order.
Penalties
Sec. 6302.30 What penalties apply if I commit one or more of the
prohibited acts?
(a) If you commit a prohibited act listed in Sec. 6302.20 in a BLM
wilderness area, you are subject to criminal prosecution on each
offense. If convicted, you may be fined not more than $100,000 under 18
U.S.C. 3571. In addition, you may be imprisoned for not more than 12
months, as provided for by 43 U.S.C. 1733(a).
(b) At the request of the Secretary of the Interior, the United
States Attorney General may institute a civil action in any United
States district court for an injunction or other appropriate order to
prevent you from using public lands in violation of the regulations of
this part.
Subpart 6303--Administrative and Emergency Functions.
Sec. 6303.1 How does BLM carry out administrative and emergency
functions?
As necessary to meet minimum requirements for the administration of
the wilderness area, BLM may:
(a) Use, build, or install temporary roads, motor vehicles,
motorized equipment, mechanical transport, structures or installations,
and land aircraft, in designated wilderness;
(b) Prescribe conditions under which other Federal, State, or local
agencies or their agents may use, build, or install such items to meet
the minimum requirements for protection and administration of the
wilderness area, its resources and users;
(c) Authorize officers, employees, agencies, or agents of the
Federal, State, and local governments to occupy and use wilderness
areas to carry out the purposes of the Wilderness Act or other Federal
statutes; and
(d) Prescribe measures that may be used in emergencies involving
the health and safety of persons in the area, including, but not
limited to, the conditions for use of motorized equipment, mechanical
transport, aircraft, installations, structures, rock drills, and fixed
anchors. BLM will require any restoration activities that we find
necessary to be undertaken concurrently with the emergency activities
or as soon as practicable when the emergency ends.
Subpart 6304--Uses Addressed in Special Provisions of the
Wilderness Act
Mining Under the General Mining Laws
Sec. 6304.10 Mining law administration.
Sec. 6304.11 What special provisions apply to operations under the
mining laws?
The general mining laws apply to valid existing mining claims and
mill sites within BLM wilderness, except as provided in this section.
[[Page 78375]]
(a) After the date on which the general mining laws cease to apply
to a specific wilderness area--
(1) You cannot locate a mining claim or establish any right to or
interest in any mineral deposits discovered in that wilderness area;
and
(2) You cannot locate a mill site in that wilderness area.
(b) If you hold a valid existing mining claim or mill site within a
wilderness area--
(1) You must conduct any mining operations following the applicable
standards provided in--
(i) The Wilderness Act;
(ii) The legislation designating the wilderness;
(iii) Your approved plan of operations;
(iv) Subpart 3809 of this chapter; and
(v) Subpart 3715 of this chapter;
(2) You must minimize impairment of wilderness characteristics to
the extent BLM determines practicable, consistent with the use of a
valid claim or site for mineral activities; and
(3) Your temporary structures used in mining operations are subject
to the use and occupancy regulations in subpart 3715 of this chapter.
(4) You must post a financial guarantee under subpart 3809 of this
chapter in order to ensure completion of reclamation.
(c) If you hold a valid mining claim, mill site, or tunnel site
located in any BLM wilderness area before the general mining laws
ceased to apply to that area, you may maintain your mining claim or
site, so long as you comply with the general mining laws, the
regulations in part 3830 of this chapter, and the Act of Congress
designating the wilderness.
(d) As required in your approved plan of operations, when you
complete mining operations in a wilderness area--
(1) You must remove all structures, equipment, and other facilities
and begin reclamation as soon as feasible after mining operations end.
However, you must start reclamation no later than 18 months after
mining operations end.
(2) You must restore the surface as near as practicable to the
appearance and contour of the surface before mining operations began,
following the regulations in subpart 3809 of this chapter.
(e) [Reserved]
(f) [Reserved]
Sec. 6304.12 How will BLM determine the validity of unpatented mining
claims or sites?
(a) BLM will conduct a mineral examination to determine whether
your claim or site was valid as of the date that lands within the
wilderness area were withdrawn from appropriation under the mining
laws. We also will determine whether your claim or site remains valid
at the time of the examination.
(1) If you do not have an approved plan of operations, BLM must
complete this validity determination before approving your plan of
operations.
(2) If you have a plan of operations that was approved before the
wilderness designation, BLM will determine whether operations may begin
or continue while we conduct the validity determination.
(b) If BLM concludes that your mining claim lacks a discovery of a
valuable mineral deposit or your claim or site is invalid for any other
reason, we will disapprove your application for a plan of operations.
For an existing approved operation, BLM may issue a notice ordering
suspension or cessation of operations. We will begin contest
proceedings to determine the validity of your mining claim or site
under subpart E of part 4 of this title. However, you may take samples
and gather other evidence to confirm or corroborate mineral exposures
that were physically disclosed on the claim before the date the
wilderness area was withdrawn.
(c) If the Department of the Interior issues a final administrative
decision declaring your claim or site null and void, you must cease all
operations and complete all reclamation required under subpart 3809 of
this chapter and Sec. 6304.11(d) of this part.
Other Uses Specifically Addressed by the Wilderness Act
Sec. 6304.20 Other uses addressed in special provisions of the
Wilderness Act.
Sec. 6304.21 What special provisions cover aircraft and motorboat use?
(a) Subject to such restrictions as BLM determines necessary to
protect wilderness values, we may authorize you to land aircraft and
use motorboats at places within any wilderness area if these uses were
established and active at the time Congress designated the area as
wilderness.
(b) BLM may also authorize you to maintain, utilizing non-motorized
means, aircraft landing strips, heliports or helispots that existed and
were in active use when Congress designated the area as wilderness.
Sec. 6304.22 What special provisions apply to control of fire,
insects, and diseases?
BLM may prescribe measures to control fire, noxious weeds, non-
native invasive plants, insects, and diseases. BLM may require
restoration concurrent with or as soon as practicable upon completion
of such measures.
Sec. 6304.23 What special provisions apply to mineral leasing and
material sales?
(a) After Congress designates any area of public lands as
wilderness, BLM will not issue mineral or geothermal leases, licenses,
or permits under the mineral or geothermal leasing laws, or sales
contracts or free use permits under the Materials Act (30 U.S.C. 601 et
seq.)
(b) You may continue to hold and operate mineral or geothermal
leases, licenses, contracts, or permits under their original terms and
conditions after Congress designates the affected BLM lands as
wilderness.
Sec. 6304.24 What special provisions apply to water and power
resources?
If the President specifically authorizes you under 16 U.S.C.
1133(d)(4)(1), BLM will permit you to prospect for water resources and
establish new reservoirs, water-conservation works, power projects,
transmission lines, and other facilities needed in the public interest,
and to maintain such facilities.
Sec. 6304.25 What special provisions apply to livestock grazing?
(a) If you hold a BLM grazing permit or grazing lease for land
within a wilderness area, you may continue to graze your livestock
provided that you or your predecessors began such use under a permit or
lease before Congress established the wilderness area.
(b) Your grazing activities within wilderness areas, including the
construction, use, and maintenance of livestock management
improvements, must comply with the livestock grazing regulations in
part 4100 of this chapter.
(c) If the management plan for the area allows, you may maintain or
reconstruct grazing support facilities that existed before designation
of the wilderness area. BLM will not authorize new support facilities
for the purpose of increasing your number of livestock. The
construction of new livestock management facilities must be for the
purposes of protection and improved management of wilderness resources.
(d) BLM may authorize an increase in livestock numbers only if you
demonstrate that the additional use will not have an adverse impact on
wilderness values.
[[Page 78376]]
Subpart 6305--Access to State and Private Lands Or Valid
Occupancies Within Wilderness Areas
Access to Non-Federal Inholdings
Sec. 6305.10 How will BLM allow access to State and private land
within wilderness areas?
(a) If you own land completely surrounded by wilderness, BLM will
only approve that combination of routes and modes of travel to your
land that--
(1) BLM finds existed on the date Congress designated the area
surrounding the inholding as wilderness, and
(2) BLM determines will serve the reasonable purposes for which the
non-Federal lands are held or used and cause the least impact on
wilderness character.
(b) If you own land completely surrounded by wilderness, and no
routes or modes of travel to your land existed on the date Congress
designated the area surrounding the inholding as wilderness, BLM will
only approve that combination of routes and non-motorized modes of
travel to non-Federal inholdings that BLM determines will serve the
reasonable purposes for which the non-Federal lands are held or used
and cause the least impact on wilderness character.
(c) If BLM approves your access route under paragraph (a) or (b) of
this section, we will authorize it under part 2920 of this chapter.
(d) BLM will not allow construction of new access routes to State
and private inholdings in wilderness.
(e) BLM will not allow improvement of access routes to a condition
more highly developed than that which existed on the date Congress
designated the area as wilderness, except such improvements BLM
determines are necessary to protect wilderness resources from
degradation.
(f) If you own land completely surrounded by wilderness and you
have a valid existing right of access which is greater than the access
described in paragraph (a) or (b) of this section, BLM may manage such
access to protect wilderness resources while ensuring your reasonable
use and enjoyment of the inholding.
Sec. 6305.11 What alternatives to granting access will BLM consider in
cases of State and private inholdings?
To reduce or eliminate the need to use wilderness areas for access
to State and private land, BLM may--
(a) Accept donation of the inholding, or
(b) Acquire the inholding from the owner by an exchange for
federally owned land in the same State of approximately equal value or,
if the owner concurs, by purchase.
Access to Other Valid Occupancies
Sec. 6305.20 How will BLM allow access to valid mining claims or other
valid occupancies within wilderness areas?
If you hold a valid mining claim or other valid occupancy wholly
within a wilderness area, BLM will allow you access by means that are
consistent with the preservation of the area as wilderness and that
have been or are being customarily enjoyed with respect to other mining
claims or similar occupancies surrounded by wilderness.
(a) BLM approves plans of operation under subpart 3809 of this
chapter. The plan of operation will prescribe the routes of travel that
you may use for access to claims or sites surrounded by wilderness.
These plans will also identify the mode of travel, and other conditions
reasonably necessary to preserve the wilderness area.
(b) BLM issues written authorizations under part 2920 of this
chapter. Your authorization will prescribe the routes of travel that
you may use for access to occupancies surrounded by wilderness. The
authorizations will also identify the mode of travel and other
conditions reasonably necessary to minimize adverse impacts on the
natural resource values of the wilderness area.
Access Procedures for Valid Occupancies
Sec. 6305.30 What are the steps BLM must take in issuing an access
authorization to valid occupancies?
(a) Before issuing an access authorization to mining claims or
other valid occupancies wholly surrounded by wilderness, BLM will make
certain that:
(1) You have demonstrated a lack of any existing access rights or
alternate routes of access available by deed or under applicable State
or common law and that access by non-federally owned routes is not
reasonably obtainable;
(2) Your combination of routes and modes of travel, including non-
motorized modes, will cause the least impact on the wilderness but, at
the same time, will permit the reasonable use of the non-Federal land,
valid mining claim, or other valid occupancy; and
(3) The location, construction, maintenance, and use of the access
route that BLM approves will be as consistent as possible with the
management of the wilderness area.
(b) After issuing an access authorization, BLM will make certain
that you situate and build the route that BLM approves to minimize
adverse impacts on the natural resource values of the wilderness area.
Subchapter H--Recreation Programs
PART 8560 [Removed]
2. Group 8500, part 8560, and subpart 8560 are removed.
[FR Doc. 00-31656 Filed 12-13-00; 8:45 am]
BILLING CODE 4310-84-P