A Guide to Federal Laws and Regulations PDF Print E-mail
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The United States has a rich body of Federal natural resource law that has developed over the years through all three branches of government:
  • Legislative Branch — laws passed by Congress
  • Judicial Branch — cases decided by the courts
  • Executive Branch — Executive orders and Federal agency regulations or rules.
Knowing the law is essential for participating in management of federal lands. Having easy access to that knowledge helps everyone to participate more effectively in collaborative processes.

Law used to be somewhat of a mystery because legal information was only available at the specialty law libraries and from expensive on-line services. Today, many of the laws, regulations and other federal policy documents that can help individuals understand issues and procedures are available on the internet. Some of these are easier to access than others, but if you know where to look, most everything is available.
A Guide to Federal Laws and Regulations

Key Concepts
Legislation - Congressional Bills and Public Laws
Statutes - The U.S. Code (USC)
Judicial Decisions - Case Law
Executive Orders
Agency Regulations
Agency Directives
Code of Federal Regulations (CFR)
Administrative Law Decisions
Controversies
Appropriation Bill Riders
Notice and Comment, Consultation and Compliance
Recess Appointments

Key Concepts

Legislation — Congressional Bills and Public Laws
Most federal laws start out as bills introduced in a session of Congress. These bills are assigned tracking numbers depending on where they are first introduced. Senate bills originate in the Senate and are designated "S" followed by a number (for example S 507); House bills are originally introduced in the House of Representatives and are designated HR followed by a number (for example, HR 1904). There may be separate Senate and House bills dealing with an issue, or one or the other body of Congress may just use the other chamber's bill. If both the Senate and House pass a bill and it is signed by the President (or vetoed and repassed by a two-thirds vote of both houses), the bill becomes a "public law" and is given a new number (for example P.L. 94-579). The first part of this number represents the number of the Congress; the second part of the number is simply a consecutive number assigned to the bill by Congress.

Federal Land Policy and Management Act (FLPMA) was introduced in 1974 in the 94th Congress as S 507. It became P.L. 94-579, the 579th bill signed into law from the 94th Congress.

Stewardship Contracting became law through a rider to the FY 02-03 Consolidated Appropriations Bill (P.L. 108-7)
The standard process for creating "authorizing" legislation includes consideration of a bill by a committee, amendments, hearings, debate and reports. Appropriations bills, also called "spending" bills, are developed in a similar process, but must originate in the House of Representatives and must be passed each year in order to fund the Federal government.

Outside the standard processes for authorizing and appropriating legislation, important natural resources legislation can be slipped into a much larger, totally unrelated piece of authorizing legislation, by an amendment, or into an appropriation bill by a "rider." Congress can also control the administration's actions by specifically cutting off funding in an appropriation bill for a particular program or agency action.

Power of the Purse v. The Administration
Congress can preclude the administration from developing or implementing controversial programs or policies — for example, developing rulemakings that will substantially change endangered species law — by specifically precluding the appropriate agency from spending money on the activity.

For more information, see "House appropriators urged to block ESA changes, drilling on public lands" Land Letter, May 3, 2007.
For more detail on every aspect of the legislative process, see "How Laws are Made."

For more information on the appropriations process, see "The Congressional Budget Process" or "The Federal Appropriations Process" Quick Guide."

Free, Online Sources for Bills and Public Laws
The best place to search for bills and public laws is Thomas, the official website of the Library of Congress. Bills of the current Congress and several previous years as well as public laws from 1973 (93rd congress) to the present are currently available. The Thomas site will give you the law as it was originally passed — essentially the final version of the House or Senate bill. It will not include any subsequent amendments to that law. For some of the earlier years, Thomas may only have a summary of the law rather than the full text. For copies of laws that have been amended through the years, see the appropriate section of the RLCH website, or go to a specialty site (like the web site of the agency that implements the law) or to the U.S. Code.
Statutes — The U.S. Code (USC)
USC Titles:
  • Title 43, Public Land Law, includes FLPMA from section 1701 to 1785 (43 USC sections 1701 to 1785)
  • Title 16, Conservation, includes laws related to the Park Service and the National Forest Management Act.
Once a law is passed, it is printed in the U.S. Code (USC) — the official compilation of federal statutes (laws). In the USC, statutes are organized, indexed and published in "titles." Each title covers a specific subject matter. The purpose of the USC is to present laws in a concise and usable form. So the USC is updated when a law is amended or repealed. The current version of the USC includes only laws that are currently in effect. Unfortunately — and this can be a frustrating problem — the official U.S. Code is not updated annually. For example, the most recent changes to the stewardship contracting legislation do not appear in the online USC. The most recent official version of the USC is from 2000. Some of the online services described here have unofficial updates from as recently as 2002, but many of the newest changes in law are not available through these free, online services. For the most up-to-date version, you have to look at the U.S. Code Annotated (USCA) at a law library or through an expensive, private on-line service (e.g., WESTLAW or LEXIS).

Free, Online Sources for the U.S. Code:
Several web sites provide free access to the USC. One of the easiest to use is the Cornell University Legal Information Institute (LII) site.

You can access specific sections of a law searching by:
  • Code title and section (for example 43 USC 1701),
  • Name of the law ("Federal Land Policy and Management Act"), and
  • Keyword search ("advisory committee").
Judicial Decisions — Case Law
Free, Online Sources for Court Decisions:
While statutes and other materials contain "the law," the courts are charged with interpreting the law. Court cases are a useful way to see how a law has been interpreted, and are important sources of "precedent." Once a court decides that a law is interpreted a certain way, other courts will tend to follow this interpretation. This allows individuals, agencies, and companies to rely on a court decision and to shape their affairs around a stable body of decisions. "Lower" courts (Federal District courts) are required to follow a decision on a particular issue by a "higher" court (U.S. Court of Appeals) in their same circuit. The U.S. Supreme Court is our highest legal authority, and each decision made by this body binds all other courts to follow their interpretation of a law. Typically, the U.S. Supreme Court hears and decides cases where there is a difference of opinion between the Courts of Appeal for different circuits.

In recent years, more and more court decisions have made their way into free internet databases. A useful rule of thumb is that the more recent decision, the more likely it will be available for free on the internet. Beyond that, coverage is wildly inconsistent and depends on each particular court, but more on-line cases are available from the higher courts (Supreme Court, Courts of Appeal, State Supreme Courts).

map.federallaws.gif
To access Emory Law School's directory of federal courts, click on the map above.

Executive Orders
2007 Bush EO Adds Political Appointee Oversight of Agency Rulemakings
President Bush amended a 1993 Clinton EO to require political appointee oversight at "each stage of the regulatory process."
Executive orders issued by the President are usually intended to direct or guide government agencies and officials. There is no law defining the term. Some orders are binding; others are not. When issued pursuant to a statutory mandate or congressional delegation, these orders are binding as law. Otherwise, they serve more as a general guide to the executive branch.

Since 1936, all orders have been published in the Federal Register.

The online Federal Register archives contain information on Executive orders dating from 1937. The full text of executive orders is available for the more recent orders.
Agency Regulations
Public Participation in Rulemaking
Regulations.gov is a U.S. Government web site that makes it easier to participate in Federal rulemaking.

On this site, you can find and review federal documents that are open for comment and published in the Federal Register. The site makes it easy to submit comments electronically.
Congress gives agencies power to make rules to carry out the purposes of legislation. These rules are called regulations and they are enforceable as law. Regulations are created through a public rulemaking process, provided in the Administrative Procedures Act. The rulemaking process requires that the agency give notice of the new rule to the public by publishing proposed and final rulemakings in the Federal Register, which is the federal government's official daily "newspaper." After a regulation is finalized, it is published in the Code of Federal Regulations.
Agency Directives
Most agencies have internal handbooks, manuals or other documents (directives, memoranda, bulletins) that contain detailed guidelines for conducting agency business. Some of these are published in the Federal Register, but for many of these documents, the agencies' web sites are the best places to look.
U.S. Department of Agriculture, Forest Service
Agency Directives of Interest
Forest Service:
  • FSH 1909.12 — Land and Resource Management Planning Handbook
  • FSM 1950 — Environmental Policy and Procedures (NEPA implementation

    BLM:
  • M-1601 — Land Use Planning Manual
  • H-1601 — Land Use Planning Handbook
  • IM-2007-118 — Oil and gas program enforcement policy
The Forest Service's manuals and handbooks include the agency's policies, practices, and procedures. Both the manuals and handbooks provide national level, regional level and forest specific guidance. New or revised continuing direction is issued by amendment; short-term direction is issued by interim directive; and direction supplementing that issued by an external or higher level is issued by supplement.
  • The Forest Service Manual (FSM) contains legal authorities, objectives, policies, responsibilities, instructions, and guidance needed on a continuing basis by Forest Service employees.
  • Forest Service Handbooks (FSH) are the principal source of specialized guidance and instruction for carrying out the direction issued in the FSM.
Department of the Interior, Bureau of Land Management
The BLM uses a variety of directives to guide its work. Access to these directives and other documents are available through the BLM Electronic Reading Room An overview of BLM's directives is also available on the agency website.
  • Manuals provide detailed information to agency employees on how to implement federal legislation.
  • Handbooks elaborate in more detail on the procedures and information provided in manuals.
  • Instruction Memoranda provide new policy or procedural instructions.
  • Information Bulletins are used to disseminate information of interest to Bureau employees. They do not contain BLM policy, directive, or instructional material.
Code of Federal Regulations (CFR)
Free, Online Sources for the CFR:
The Code of Federal Regulations (CFR) is a collection of agency regulations that were published as final rules in the Federal Register. When a proposed or final rule is published in the Federal Register, it indicates the title and section of the CFR that the new rule will create or modify. The CFR is organized into fifty titles, and each title covers a specific subject.

CFR Titles of particular interest:
  • Title 30: Mineral Resources
  • Title 36: Parks, Forest and Public Property
  • Title 40: Protection of Environment
  • Title 43: Public Lands: Interior
  • Title 50: Wildlife and Fisheries
Administrative Law Decisions
Free, Online Sources for Administrative Decisions:
Many natural resource and public lands disputes must be appealed through an administrative appeals process before being taken to court for judicial review. For more information on appeals processes, see
Department of the Interior
The Interior Board of Land Appeals (IBLA) is part of the Office of Hearings and Appeals, Office of the Secretary of the Department of the Interior (DOI), and is specifically authorized to review decisions of DOI agencies and DOI administrative law judges. In this capacity, the IBLA makes important decisions on resources law and operation of the agencies that govern public lands. Appeals from the Board are heard by the Federal District Court in the state where the dispute arose. Appeals from the U.S. District Court then head to the U.S. Court of Appeals and may eventually be appealed to the U.S. Supreme Court.
U.S. Department of Agriculture, Forest Service
Certain decisions by the U.S. Forest Service can be appealed to a higher agency authority for review. Special use permits, mining locations, mineral rights, grazing and livestock permits and other environmental decisions may be appealed. Several statutes, including the National Environmental Policy Act (NEPA) are used to guide the Forest Service when deciding an appeal. Personnel at a Regional Office review decisions made by a particular national forest. The Chief's Office in Washington, D.C., reviews appeals of decision by the Regional Office. Typically, all administrative processes must be exhausted before a person can bring a court action (litigation) to overturn an agency decision.

Controversies

Who makes the laws that govern the lands and resources of the West? Well, of course, we, the people of the United States, do through our legislative and executive branches of government. First, we elect our representatives in Congress. These men and women introduce bills to create new and to amend existing law. After listening to their constituents, the media and their colleagues in the halls of Congress, they pass bills to protect our lands and interests. When signed by the President, these bills become law to be administered by executive branch agencies. The executive branch agencies write regulations to implement these laws using the notice and comment rulemaking process required by the Administrative Procedures Act. Top managers of these agencies are appointed by the President and confirmed by the Senate to assure that regulations are consistent with applicable law, that one agency's regulations do not conflict with that of another, and that the laws are faithfully administered. When preparing major regulation, the agencies consult with Federal agencies that administer other environmental laws like the Endangered Species Act and listen to the citizenry in the public process of preparing an environmental impact statement under the National Environmental Policy Act (NEPA).

Well, almost. Through a few legal loopholes, questionable stretches of the rules, and outright violation of law, our lawmaking process appears to be losing some of its transparency and balance. A few recent examples follow.
Appropriation Bill Riders
Most of our law is created through a democratic process including introduction of a public bill in both the House of Representatives and the Senate, referral to appropriate committees or subcommittees where the bill is given its most intensive consideration, public hearings, markup by the committee, preparation of committee reports, consideration of the bill by the full chamber with opportunity for debate and amendments, and the final vote. While the rules and distribution of authority of the two chambers has traditionally favored hearing and passage of bills supported by the majority political party, one increasingly popular technique for passing substantive legislation seems most contrary to the democratic process — passage of law by a "rider" on an appropriation bill.

For most bills in Congress, there is no requirement that proposed amendments be germane to the subject matter of the bill, resulting in totally unrelated matters being joined in one bill. The exception to this is the case of a general appropriation (funding) bill or where "cloture" has been invoked. Under congressional rules, a "rider", an amendment proposing substantive legislation to an appropriation bill, is generally prohibited. Nevertheless, substantive environmental law is often made, and more often attempted, by attaching new environmental restrictions or, more often, eliminating environmental protections, through amendments to appropriation bills. These riders sometimes give agencies discretion to ignore environmental and natural resource statutes, while denying the public the ability to challenge the actions through administrative and judicial channels. Recent examples of riders include stewardship contracting, the salvage timber rider, and proposals to reauthorize the Secure Rural Schools and PILT programs and to delay potential oil and gas leasing of the Roan Plateau in Colorado.

Most egregious flaunting of the democratic process are amendments to emergency appropriation bills — for example, the emergency appropriation bill following the 1995 Oklahoma City federal building bombing (which included the salvage timber rider) and the Iraq war emergency appropriation bill (including the PILT and Secure Rural Schools rider) which are more likely to be passed without concern for the presence of riders and usually not as likely to be vetoed by the President. Obviously, riders can foster legislation from both sides of the aisle, from both sides of the community, from both sides of the environment. It isn't necessarily the content that is the problem, it is the underhanded process.

For more on riders, see "The Congressional Appropriations Process: An Introduction."

For several examples of anti-environmental riders, see "Environment and the 106th Congress" on the NRDC website.
Notice and Comment, Consultation and Compliance
Example: The Clean Air Act, Section 301(a), provides that:
1. The [EPA] Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this Act...
2. Not later than one year after the date of enactment of this paragraph, the Administrator shall promulgate regulations...
Various environmental and natural resources laws explicitly or implicitly give Federal agencies the authority to write regulations to implement the laws. Agencies promulgate these regulations or "rules" through a notice and comment process outlined in the Administrative Procedures Act and its implementing regulations. These rules are designed to give the public an opportunity to help shape the rules that will ultimately govern their actions and protect their environment. In addition, agencies are required by NEPAconsult

Agencies do not, however, always follow the rules. Following long court battles, Federal courts finally stopped controversial Bush administration attempts to forego EISs and Section 7 consultations in development of their State Petitioning Roadless Rule and Forest Service planning rules.

For more information on court actions involving the Roadless Rule, see "Judge reinstates Clinton-era roadless rule."

For more information on March 2007 court rulings on Forest Service planning, see "Judge forbids Forest Service from using 2005 planning regs."
Recess Appointments
Under Article 2 of the U.S. Constitution, the President has power to appoint executive branch administrators with the advice and consent of the Senate. This constitutional provision allows the President to appoint agencies' top managers to assure faithful administration of the law while implementing his domestic agenda. At the same time, our legislative representative in the Senate oversee the quality of major administrative appointments. At a time when Congress had relatively short sessions and long recesses, the same section of the Constitution gave the President power to make appointments during a recess. These appointments expire at the end of the next session of Congress.

Office of Regulatory and Information Affairs
The ORIA coordinates review of agency rulemaking to ensure that regulations are:
  • consistent with applicable law and the President's priorities, and that
  • decisions made by one agency do not conflict with the policies or actions taken or planned by another agency.
In early 2007, President Bush amended the Clinton executive order requiring that each agency install a presidential appointee as its "regulatory policy officer," reporting to the agency head and involved "at each stage of the regulatory process." Under the executive order, agencies need approval of these political appointees before developing rules.
Throughout the nation's history, Presidents have used this power for political purposes, waiting to make appointments during a recess if the candidate is controversial and not likely to be confirmed by the Senate. President Bush, for example, appointed Susan Dudley in early 2007 to the Office of Management and Budget's top regulatory post, the Office of Regulatory and Information Affairs (OIRA), with an intrasession recess appointment (an appointment made during a recess within a session). The Senate had refused to vote on her nomination in the previous session of Congress. Congress established the OIRA in the 1980 Paperwork Reduction Act, but its purpose, tasks and process were fleshed out by Clinton in Executive Order 12866. Environmental groups and others oppose the appointment arguing that Dudley has an anti-regulatory bias.

For more information on recess appointments, see "Recess Appointments, Frequently Asked Questions"

For more information on the Dudley appointment, see "Bush bypasses Senate for controversial recess appointment."
Last Updated ( Thursday, 28 February 2008 )
 

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