Congressional Record, Volume 171 Issue 110 (Thursday, June 26, 2025)

[Congressional Record Volume 171, Number 110 (Thursday, June 26, 2025)]
[Senate]
[Pages S3552-S3554]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

U.S. GOVERNMENT ACCOUNTABILITY OFFICE LEGAL OPINION

Mr. DAINES. Mr. President, I ask unanimous consent to have printed in
the Record the Government Accountability Office opinion letter dated
June 25, 2025.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Decision

Matter of: U.S. Department of the Interior, Bureau of Land
Management--Applicability of the Congressional Review Act
to Miles City Field Office Record of Decision and
Approved Resource Management Plan Amendment
File: B-337163
Date: June 25, 2025

DIGEST

The U.S. Department of the Interior, Bureau of Land
Management (BLM) issued the Miles City Field Office: Record
of Decision and Approved Resource Management Plan Amendment
(Miles City RMPA). The Miles City RMPA guides the management
of BLM-administered lands in the Miles City Field Office and
designates which areas are available for coal leasing
consideration.
The Congressional Review Act (CRA) requires that before a
rule can take effect, an agency must submit the rule to both
the House of Representatives and the Senate, as well as the
Comptroller General. CRA adopts the definition of ``rule''
under the Administrative Procedure Act (APA) but excludes
certain categories of rules from coverage. We conclude that
the Miles City RMPA meets the APA definition of a rule, and
no CRA exception applies. Therefore, the Miles City RMPA is a
rule subject to CRA's submission requirements.

DECISION

On November 20, 2024, the U.S. Department of the Interior
(Interior), Bureau of Land Management (BLM) issued a record
of decision and resource management plan amendment titled,
Miles City Field Office: Record of Decision and Approved
Resource Management Plan Amendment (Miles City RMPA).\1\ We
received a request for a decision as to whether the Miles
City RMPA is a rule for purposes of the Congressional Review
Act (CRA).\2\ As discussed below, we conclude that the Miles
City RMPA is a rule for purposes of CRA.
Our practice when issuing decisions is to obtain the legal
views of the relevant agency on the subject of the
request.\3\ Accordingly, we reached out to Interior to obtain
the agency's legal views.\4\ We received Interior's response
on May 2, 2025.\5\

BACKGROUND

BLM Public Land Management
Under the Federal Land Policy and Management Act of 1976,
as amended (FLPMA), BLM is responsible for developing,
maintaining, and, when appropriate, revising ``land use plans
which provide by tracts or areas for the use of the public
lands.'' \6\ BLM land use plans, referred to as ``resource
management plans'' (RMPs), establish goals and objectives to
guide future land and resource management actions implemented
by BLM.\7\ Pursuant to FLPMA, BLM established procedures for
the development, revision, and amendment of RMPs.\8\
The objective of resource management planning is to
maximize resource values for the public through a rational,
consistently applied set of regulations and procedures which
promote the concept of multiple use management.\9\ An RMP
generally establishes land use designations; allowable
resource uses; resource conditions, goals, and objectives;
program constraints and general management practices; areas
to be covered by more specific plans; and other related
information.\10\
BLM may amend an RMP to account for, among other things,
new data, new or revised policy, or a change in
circumstances.\11\ Amendments are to be made through an
environmental assessment of the proposed change or an
environmental impact statement, if needed, and must involve
public involvement and interagency coordination.\12\
Miles City Resource Management Plan
In 2015, BLM revised and combined two previously issued
RMPs into a new RMP for the Miles City Field Office.\13\ The
2015 Miles City RMP provided direction for approximately 2.75
million surface acres and 10.6 million acres of mineral
estate managed by BLM across 17 eastern Montana counties.\14\
It established goals, objectives, land use allocations, and
management direction for the BLM-administered surface and
mineral estate.\15\
Following its issuance, the 2015 Miles City RMP was
challenged in the United States District Court for the
District of Montana on the basis that BLM improperly approved
the plan in violation of the National Environmental Policy
Act (NEPA).\16\ The court found that BLM violated NEPA in its
final environmental impact statement and ordered BLM to
complete a new coal screening and remedial NEPA analysis.\17\
In response, BLM proposed an RMP amendment for the Miles
City Field Office in 2019.\18\ The 2019 Miles City RMP was
also challenged in court. Once again, the court found that
BLM violated NEPA. In its order, the court directed BLM to
consider no coal leasing and limited coal leasing
alternatives and to disclose the public health impacts, both
climate and non-climate, of burning fossil fuels from the
planning areas.\19\
On November 20, 2024, BLM approved the Miles City RMPA and
subsequently published a notice of its availability in the
Federal Register.\20\ The Miles City RMPA consists of the
Record of Decision and the RMP amendment, which is based on
Alternative D in the final environmental impact statement.
The Miles City RMPA provides specific coal screen
designations for the 11.7 million acres of subsurface federal
mineral coal estate for which BLM has authority to determine
its availability. It also addresses the NEPA deficiencies
identified by the court order.\21\
Additionally, the Miles City RMPA allocates 1,745,040 acres
as unavailable for further consideration for leasing in order
to reduce greenhouse gas emissions.\22\ As such, BLM will not
accept new coal lease applications. However, existing coal
leases may be developed in accordance with lease terms and
conditions.\23\ The Miles City RMPA does not modify other
resource allocation management decisions that were previously
made in the 2015 Miles City RMP.\24\
Congressional Review Act
CRA, enacted in 1996 to strengthen congressional oversight
of agency rulemaking, requires federal agencies to submit a
report on each new rule to both houses of Congress and to the
Comptroller General for review before a rule can take
effect.\25\ The report must contain a copy of the rule, ``a
concise general statement relating to the rule,'' and the
rule's proposed effective date.\26\ CRA allows Congress to
review and disapprove rules issued by federal agencies for a
period of 60 days using special procedures.\27\ If a
resolution of disapproval is enacted, then the new rule has
no force or effect.\28\
CRA adopts the definition of a rule under the
Administrative Procedure Act (APA), which states that a rule
is ``the whole or a part of an agency statement of general or
particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or
describing the organization, procedure, or practice
requirements of an agency.'' \29\ However, CRA excludes three
categories of rules from coverage: (1) rules of particular
applicability; (2) rules relating to agency management or
personnel; and (3) rules of agency organization, procedure,
or practice that do not substantially affect the rights or
obligations of non-agency parties.\30\
Interior did not submit a CRA report to Congress or the
Comptroller General on the Miles City RMPA.\31\ In its
response to us, Interior provided additional information
about the Miles City RMPA but did not state a position as to
whether it is a rule under CRA.\32\

Discussion

To determine whether the Miles City RMPA is a rule subject
to review under CRA, we first address whether it meets the
APA definition of a rule. As explained below, we conclude
that it does. We then consider whether the Miles City RMPA
falls within any CRA exceptions. We conclude that it does
not. As such, the Miles City RMPA is subject to review under
CRA.
The Miles City RMPA is a Rule Under APA
Applying APA's definition of rule, the Miles City RMPA
meets all of the required elements. First, the Miles City
RMPA is an agency statement as it was issued by BLM, a
federal agency.\33\
Second, the Miles City RMPA is of future effect as it is to
be used prospectively to guide the management of the BLM
mineral coal estate administered by the Miles City Field
Office.\34\ Decisions made in the Miles City RMPA became
effective November 20, 2024, when the Record of Decision was
signed.\35\ As of that date, the Miles City RMPA replaces
decisions for coal resource leasing availability by making
certain acres of BLM-administered land unavailable for
leasing going forward. Therefore, the Miles City RMPA has
future effect.
Finally, the Miles City RMPA implements, interprets, or
prescribes law or policy, because it designates which areas
of BLM-administered land are available for coal leasing
consideration in accordance with BLM's responsibilities for
land use management under FLPMA. The Miles City RMPA also
sets policy by providing specific coal screen designations
for the 11.7 million acres of subsurface federal mineral coal
estate for which BLM has authority to determine its
availability.
Our conclusion here is consistent with our previous
decisions finding similar land use and RMPs implement,
interpret, or prescribe law or policy.\36\ For instance, in
B-238859, Oct. 23, 2017, we found that an amendment to the
Forest Service's Tongass Land and Resource Management Plan
(Tongass Amendment) implemented law by establishing new
criteria for the sale of timber to non-agency parties. We
explained that with the Tongass Amendment, the Forest Service
set forth its policy for timber sales and thus implemented
its statutory responsibility under the National Forest
Management Act.\37\
Similarly in B-329065, Nov. 15, 2017, we concluded that
four RMPs issued by BLM prescribed policy by establishing
available uses for the areas that each RMP covered. We noted
that each RMP implemented provisions of FLPMA and other
applicable statutory and regulatory provisions.\38\ The same
can be said of the Miles City RMPA at issue here. The Miles
City RMPA implements FLPMA and prescribes policy by
designating which areas of BLM-administered land are
available for coal leasing consideration. As such, the Miles
City RMPA meets the third

[[Page S3553]]

element of the APA definition of rule. Having satisfied all
the required elements, the Miles City RMPA meets the APA
definition of rule.
CRA Exceptions
We must next determine whether any of CRA's three
exceptions apply. CRA provides for three types of rules that
are not subject to its requirements: (1) rules of particular
applicability; (2) rules relating to agency management or
personnel; and (3) rules of agency organization, procedure,
or practice that do not substantially affect the rights or
obligations of non-agency parties.\39\
(1) Rule of Particular Applicability
Consistent with our previous decisions, the Miles City RMPA
is a rule of general applicability, rather than particular
applicability. In B-238859, Oct. 23, 2017, the Forest Service
proffered that its Tongass Amendment was a rule of particular
applicability because it applied to a single national forest.
We disagreed, noting that the Tongass Amendment governed all
natural resource management activities, all projects approved
to take place, and all persons or entities using the forest.
As such, it was a rule of general applicability.\40\
Likewise, the Miles City RMPA establishes land use
designations that govern any coal activities by any person or
entity within the Miles City Field Office, making it a rule
of general applicability.
(2) Rule of Agency Management or Personnel
The Miles City RMPA is not a rule of agency management or
personnel. We have previously held that rules that fall into
this category relate to purely internal agency matters.\41\
Because the Miles City RMPA is concerned with public use of
the areas it governs rather than management of BLM itself or
its personnel, it does not meet CRA's second exception.
(3) Rule of Agency Organization, Procedure, or Practice That
Does Not Substantially Affect Non-Agency Parties
Lastly, the Miles City RMPA is not a rule of agency
organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency
parties.\42\
We have previously explained that this exception was
modeled on the APA exception to notice-and-comment rulemaking
requirements for ``rules of agency organization, procedure,
or practice[.]'' \43\ The purpose of the APA exception is to
ensure ``that agencies retain latitude in organizing their
internal operations,'' so long as such rules do not have a
substantial impact on non-agency parties.\44\
Following this interpretation in the CRA context, we have
only applied CRA's third exception to rules that primarily
focus on the internal operations of an agency.\45\ For
instance, in B-329926, Sept. 10, 2018, we found that updates
to a Social Security Administration (SSA) hearings manual
governing SSA adjudicators' use of information from the
internet qualified as a rule of agency organization,
procedure, or practice. There, the manual outlined procedures
for SSA employees to follow in processing and adjudicating
benefits claims. Because the manual was directed to and
binding only on SSA officials without imposing new burdens on
claimants, we concluded that the manual met CRA's third
exception.\46\
In contrast, rules that are directed at and primarily
concerned with the behavior of non-agency parties do not fall
within this category.\47\ Thus, in B-274505, Sept. 16, 1996,
we declined to apply CRA's third exception to a Forest
Service memorandum on the Emergency Salvage Timber Sale
Program, because it was not limited to the Forest Service's
methods of operations. Instead, the memorandum established
the standards by which program determinations would be made,
thus directly affecting the area for and number of timber
sales that would result in contracts. In essence the
memorandum went beyond how the Forest Service organized its
internal operations.\48\ Similarly, in B-238859, Oct. 23,
2017, we declined to apply CRA's third exception to the
Tongass Amendment, because it was directed at land and
resource use by non-agency parties.\49\
Here, the Miles City RMPA does entail some changes to
agency procedure in that BLM will no longer consider coal
leasing applications for the acres designated as unavailable
for further consideration. However, like the Forest Service
memorandum in B-274505 and the Tongass Amendment in B-238859,
the Miles City RMPA is not limited to changes in internal
agency operations. Instead, the Miles City RMPA is directed
at, and concerns itself primarily with, the behavior of non-
agency parties. Therefore, the Miles City RMPA does not
qualify as a rule of agency organization, procedure or
practice.
We must also consider whether the Miles City RMPA
substantially affects the rights or obligations of non-agency
parties. When analyzing this aspect of CRA's third exception,
``the critical question is whether the agency action alters
the rights or interests of the regulated entities.'' \50\
Along similar lines, courts have determined that ``[a]n
agency rule that modifies substantive rights and obligations
can only be nominally procedural, and the exemption for such
rules of agency procedure cannot apply.'' \51\
In previous decisions, we have consistently concluded that
where an RMP designates use by non-agency parties in the
areas it governs, it has a substantial effect.\52\ For
instance, in B-275178, July 3, 1997, we reached this
conclusion by noting that the Forest Service's RMP provided a
``management prescription'' giving general direction on what
may occur within an area allocated to a particular land use
designation. Similarly, in B-329065, Nov. 15, 2017, we
concluded that four BLM RMPs had a substantial effect on non-
agency parties where the plans limited the use of public land
and prohibited mining and operation of off-highway vehicles
in the areas they governed.
Consistent with our caselaw on other RMPs, the Miles City
RMPA has a substantial effect on non-agency parties. Its
purpose is to ``provide additional analysis for land use
planning, specifically for analyzing coal'' in the Miles City
Field Office.\53\ The Miles City RMPA makes unavailable
1,745,040 acres of BLM-administered coal from further
consideration for leasing. As a result, BLM has foreclosed
non-agency parties from new federal coal leasing in those
designated areas, thereby altering their substantive rights
and obligations. Accordingly, the Miles City RMPA fails to
meet CRA's third exception

conclusion

The Miles City RMPA is a rule for purposes of CRA because
it meets the definition of a rule under APA and no CRA
exception applies. Therefore, the Miles City RMPA is subject
to CRA's requirement that it be submitted to Congress and the
Comptroller General before it can take effect.
Edda Emmanuelli Perez,
General Counsel.

endnotes

1. BLM, Miles City Field Office: Record of Decision and
Approved Resource Management Plan Amendment (Nov. 20, 2024),
available at https://eplanning.blm.gov/eplanning-ui/project/
2021155/510 (last visited June 11, 2025).
2. Letter from Senator Steve Daines, Senator Tim Sheehy,
Representative Troy Downing, and Representative Ryan K. Zinke
to Comptroller General (Feb. 14, 2025).
3. GAO, GAO's Protocols for Legal Decisions and Opinions,
GAO-24-107329 (Washington, D.C.: Feb. 21, 2024), available at
https://www.gao.gov/products/gao-24-107329.
4. Letter from Assistant General Counsel, GAO, to Acting
Solicitor, Interior (Mar. 4, 2025).
5. Letter from Acting Associate Solicitor, Division of
General Law, Interior, to Assistant General Counsel, GAO (May
2, 2025) (Response Letter).
6. Pub. L. No. 94-579, title II, Sec. 202(a), 90 Stat.
2743, 2747 (Oct. 21, 1976), 43 U.S.C. Sec. 1712(a).
7. Resource Management Planning, 81 Fed. Reg. 89580 (Dec.
12, 2016).
8. See 43 U.S.C. Sec. 1712(f); 43 C.F.R. part 1600.
9. 43 C.F.R. 1601.0-2. FLPMA defines ``multiple use'' as
``the management of the public lands and their various
resource values so that they are utilized in the combination
that will best meet the present and future needs of the
American people . . .'' This objective aims to ensure ``a
combination of balanced and diverse resource uses that takes
into account the long-term needs of future generations for
renewable and nonrenewable resources, including, but not
limited to, recreation, range, timber, minerals, watershed,
wildlife and fish, and natural scenic, scientific and
historical values . . .'' 43 U.S.C. Sec. 1702(c).
10. Response Letter, at 2; see also 43 C.F.R. Sec. 1601.0-
5(n).
11. 43 C.F.R. Sec. 1610.5-5.
12. Id.
13. BLM, Miles City Field Office Approved Resource
Management Plan (Sept. 15 2015), at BA-1, available at
https://eplanning.blm.gov/eplanning-ui/project/59042/510
(last visited June 11, 2025) (2015 Miles City RMP).
14. 2015 Miles City RMP, at 1-1.
15. Id.
16. NEPA requires agencies to prepare an environmental
impact statement for ``major Federal actions'' that
``significantly'' affect the ``quality of the human
environment . . .'' 42 U.S.C. Sec. 4332(C).
17. Western Organization of Resource Councils, et al. v.
BLM, Docket No. CV 16-21-GF-BMM (D. Mont. Mar. 26, 2018).
18. BLM, Miles City Field Office: Final Supplemental
Environmental Impact Statement and Proposed Resource
Management Plan Amendment (Oct. 4, 2019), available at
https://eplanning.blm.gov/eplanning-ui/project/116998/570
(last visited June 11, 2025) (2019 Miles City RMP).
19. Western Organization of Resource Councils, et al. v.
BLM, Docket No. CV 20-76-GF-BMM (D. Mont. Aug. 3, 2022).
20. Notice of Availability of the Record of Decision and
Approved Resource Management Plan Amendment for the Miles
City Field Office, Montana, 89 Fed. Reg. 93650 (Nov. 27,
2024).
21. See generally Miles City RMPA.
22. Miles City RMPA, at 1-4.
23. Miles City RMPA, at 1-4.
24. Miles City RMPA, at 2-3.
25. 5 U.S.C. Sec. 801(a)(1)(A).
26. Id.
27. 5 U.S.C. Sec. 802.
28. 5 U.S.C. Sec. 801(b)(1).
29. 5 U.S.C. Sec. Sec. 551(4), 804(3).
30. 5 U.S.C. Sec. 804(3).
31. Response Letter, at 1.
32. See Response Letter. However, Interior did state that
an RMP ``is not a final implementation decision on actions
that require further plans, process, or decisions''. Id. at
2.
33. See B-329065, Nov. 15, 2017 (finding a similar RMP
issued by BLM to be an agency statement).
34. Miles City RMPA, at 1-1.
35. See Miles City RMPA, at 1-4, 1-12.
36. See, e.g., B-238859, Oct. 23, 2017; B-275178, July 3,
1997; B-274505, Sept. 16, 1996.
37. B-238859, Oct. 23, 2017.

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38. B-329065, Nov. 15, 2017.
39. 5 U.S.C. Sec. 804(3).
40. B-238859, Oct. 23, 2017.
41. See, e.g., B-335142, May 1, 2024; B-334411, June 5,
2023.
42. See 5 U.S.C. Sec. 804(3)(C).
43. 5 U.S.C. Sec. 553(b)(A); see B-329926, Sept. 10, 2018.
44. Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir.
1980).
45. See, e.g., B-329916, May 17, 2018.
46. B-329926, Sept. 10, 2018.
47. B-335629, July 8, 2024.
48. B-274505, Sept. 16, 1996.
49. B-238859, Oct. 23, 2017.
50. B-329926, Sept. 10, 2018.
51. United States Department of Labor v. Kast Metals Corp.,
744 F.2d 1145, 1153 (5th Cir. 1984).
52. See, e.g., B-329065, Nov. 15, 2017; B-238859, Oct. 23,
2017; B-275178, July 3,1997.
53. Miles City RMPA, at 2-1.

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