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110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-561

======================================================================



 
               NATIONAL LANDSCAPE CONSERVATION SYSTEM ACT

                                _______
                                

 April 1, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2016]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 2016) to establish the National Landscape 
Conservation System, and for other purposes, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``National Landscape Conservation System 
Act''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.
          (2) System.--The term ``system'' means the National Landscape 
        Conservation System established by section 3(a).

SEC. 3. ESTABLISHMENT OF THE NATIONAL LANDSCAPE CONSERVATION SYSTEM.

  (a) Establishment.--In order to conserve, protect, and restore 
nationally significant landscapes that have outstanding cultural, 
ecological, and scientific values for the benefit of current and future 
generations, there is established in the Bureau of Land Management the 
National Landscape Conservation System.
  (b) Components.--The system shall include each of the following areas 
administered by the Bureau of Land Management:
          (1) Each area that is designated as--
                  (A) a national monument;
                  (B) a national conservation area;
                  (C) a wilderness study area;
                  (D) a National Scenic Trail or National Historic 
                Trail designated as a component of the National Trails 
                System;
                  (E) a component of the National Wild and Scenic 
                Rivers System; or
                  (F) a component of the National Wilderness 
                Preservation System.
          (2) Any area designated by Congress to be administered for 
        conservation purposes, including--
                  (A) the Steens Mountain Cooperative Management and 
                Protection Area, as designated under section 101(a) of 
                the Steens Mountain Cooperative Management and 
                Protection Act of 2000 (16 U.S.C. 460nnn-11(a));
                  (B) the Headwaters Forest Reserve;
                  (C) the Yaquina Head Outstanding Natural Area; and
                  (D) any additional area designated by Congress for 
                inclusion in the system.
  (c) Management.--The Secretary shall manage the system--
          (1) in accordance with each applicable law (including 
        regulations) relating to each component of the system included 
        under subsection (b); and
          (2) in a manner that protects the values for which the 
        components of the system were designated.

SEC. 4. STATUTORY CONSTRUCTION.

  Nothing in this Act shall be construed to enhance, diminish, or 
modify any law or proclamation (or regulations related to such law or 
proclamation) under which the components of the system identified in 
section 3(b) were established, or are managed, including, but not 
limited to, the Alaska National Interest Land Conservation Act (43 
U.S.C. 1601 et seq.), the Wilderness Act (16 U.S.C. 1131 et seq.), the 
Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.), the National 
Trails System Act (16 U.S.C. 1241 et seq.), and the Federal Land Policy 
and Management Act of 1976 (43 U.S.C. 1701 et seq.).

                          PURPOSE OF THE BILL

    The purpose of H.R. 2016 is to establish the National 
Landscape Conservation System, and for other purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    The National Landscape Conservation System (NLCS) includes 
approximately 26 million acres, or about 10% of the land 
administered by the Bureau of Land Management (BLM). The System 
includes more than 800 units, including all National Scenic and 
Historic Trails, National Conservation Areas, National 
Monuments, wilderness areas, Wild and Scenic Rivers, and 
wilderness study areas managed by the BLM.
    Each NLCS unit was established by Congress or Presidential 
Proclamation and is managed according to its enabling 
authority, as well as the Wilderness Act, Wild and Scenic 
Rivers Act, Federal Land Policy and Management Act, or other 
laws applicable to specific units. Former Interior Secretary 
Babbitt established the NLCS administratively as a framework to 
tie each of these units together into a larger conservation 
system. The NLCS has never been established by statute, 
however.
    NLCS units include significant natural resources, including 
approximately 12% of the BLM-managed sage grouse habitat, as 
well as important cultural and scientific resources. For 
example, the Canyons of the Ancients National Monument in 
Colorado includes more than 6,000 archeological sites 
significant to Native American cultures. NLCS units provide 
unique recreational opportunities, with many located in or near 
heavily developed urban areas.
    H.R. 2016 establishes the NLCS, lists the components of the 
system, and specifies that any future additions must be 
authorized by Congress. The legislation makes clear that each 
NLCS unit is to be managed in accordance with all laws 
applicable to that unit and in ``a manner that protects the 
values for which the components of the system were 
designated.''
    In addition to the support of the Bush Administration, this 
legislation enjoys broad support from a diverse coalition which 
includes the American Hiking Society, National Council of 
Churches, Boone and Crockett Club, National Trust for Historic 
Preservation, National Wildlife Federation, and the Outdoor 
Industry Association.

                            COMMITTEE ACTION

    H.R. 2016 was introduced on April 24, 2007, by National 
Parks, Forests, and Public Lands Subcommittee Chairman Raul 
Grijalva (D-AZ) along with a bipartisan group of 16 cosponsors. 
The bill currently has 65 bipartisan co-sponsors. The bill was 
referred to the Committee on Natural Resources, and within the 
Committee to the Subcommittee on National Parks, Forests, and 
Public Lands.\1\
---------------------------------------------------------------------------
    \1\ 1ACompanion legislation (S. 1139) was introduced by Senate 
Energy and Natural Resources Committee Chairman Jeff Bingaman. The 
Senate bill was ordered reported from the Energy and Natural Resources 
Committee on May 23, 2007 by voice vote.
---------------------------------------------------------------------------
    On June 6, 2007, the House Subcommittee on National Parks, 
Forests and Public Lands held a hearing on the bill, during 
which a representative from the Department of the Interior 
testified in support of the bill.
    On March 12, 2008, the subcommittee was discharged from 
further consideration of H.R. 2016 and the full Natural 
Resources Committee met to consider the bill. Subcommittee 
Chairman Grijalva offered an amendment in the nature of a 
substitute to H.R. 2016. In addition to technical changes, the 
substitute clarifies that enactment of H.R. 2016 will not alter 
existing authorities under which units of the NLCS are 
currently managed. Specifically, the substitute states that, 
``Nothing in this Act shall be construed to enhance, diminish, 
or modify any law or proclamation (or regulations related to 
such law or proclamation) under which the components of the 
system identified in section 3(b) were established, or are 
managed.''.
    Representative Jeff Flake (R-AZ) offered an amendment to 
the amendment in the nature of a substitute (Flake #1) 
prohibiting additional appropriations for the NLCS. The 
amendment was not agreed to by a rollcall vote of 12 yeas and 
16 nays, as follows:


    Representative Steve Pearce (R-NM) offered an amendment to 
the amendment in the nature of a substitute (Pearce #3) stating 
that inclusion in the NLCS would not affect grazing permits. 
The amendment was not agreed to by a roll call vote of 14 yeas 
and 21 nays, as follows:


    Representative Pearce then offered an amendment to the 
amendment in the nature of a substitute (Pearce #1) stating 
that inclusion in the NLCS would not affect eligibility for 
wind and solar energy development. The amendment was not agreed 
to by a roll call vote of 15 yeas and 22 nays, as follows:


    Representative Pearce then offered an amendment to the 
amendment in the nature of a substitute (Pearce #2) providing 
that no funds can be expended on the NLCS until the Bureau of 
Land Management Payment in Lieu of Taxes program is fully 
funded at authorized levels for that fiscal year. The amendment 
was not agreed to by a roll call vote of 13 yeas and 23 nays, 
as follows:


    Representative Chris Cannon (R-UT) offered an amendment to 
the amendment in the nature of a substitute (Cannon #1) stating 
that nothing in this Act creates a federal cause of action 
based on inclusion within the NLCS. The amendment was not 
agreed to by voice vote.
    Representative Cannon then offered an amendment to the 
amendment in the nature of a substitute (Cannon #2) providing 
that no county would be included in the NLCS if the county 
elects not to be included through passage of a resolution or 
similar statement. The amendment was not agreed to by voice 
vote.
    Representative Rob Bishop (R-UT) offered an amendment to 
the amendment in the nature of a substitute (Bishop #24) 
stating that existing multiple uses of the areas in the NLCS 
remain a high value. The amendment was not agreed to by voice 
vote.
    The Grijalva amendment in the nature of a substitute was 
then agreed to by voice vote.
    The bill, as amended, was then ordered favorably reported 
to the House of Representatives by a roll call vote of 24 yeas 
and 13 nays, as follows:


                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 entitles this Act ``The National Landscape 
Conservation System Act.''

Section 2. Definitions

    Section 2 defines the terms in this Act.

Section 3. Establishment

    Section 3(a) establishes the National Landscape 
Conservation System within the Bureau of Land Management in 
order to conserve, protect, and restore nationally significant 
landscapes that have outstanding cultural, ecological, and 
scientific values, for the benefit of current and future 
generations.
    Section 3(b) identifies and lists the components, 
administered by the Bureau of Land Management, which shall be 
included within the National Landscape Conservation System:
    Subsection (1) provides that the NLCS shall include each 
area that is designated as: (A) a national monument; (B) a 
national conservation area; (C) a wilderness study area; (D) a 
National Scenic Trail or National Historic Trail designated as 
a component of the National Trails System; (E) a component of 
the National Wild and Scenic Rivers System; or (F) a component 
of the National Wilderness Preservation System.
    Subsection (2) provides that the NLCS shall also include 
any area designated by Congress to be administered for 
conservation purposes, including: (A) the Steens Mountain 
Cooperative Management and Protection Area as designated under 
section 101(a) of the Steens Mountain Cooperative Management 
and Protection Act of 2000 (16 U.S.C. 460nnn-11(a)); (B) the 
Headwaters Forest Reserve; (C) the Yaquina Head Outstanding 
Natural Area; and (D) any additional area designated by 
Congress for inclusion in the system. These areas are listed 
specifically because they are currently part of the NLCS but 
are not covered by the broad categories in subsection (1).
    Section 3(c) provides that the Secretary of the Interior 
shall manage the NLCS, (1) in accordance with each applicable 
law (including regulations) relating to each component of the 
system included in this Act; and (2) in a manner that protects 
the values for which the components of the system were 
designated.

Section 4. Statutory construction

    Section 4 ensures and guarantees that nothing in this Act 
shall be construed to alter, enhance, diminish or modify any 
law or proclamation (or regulations related to such law or 
proclamation) under which the components of the NLCS, 
identified in section 3(b), were established, or are managed. 
This specifically includes, but is not limited to, the Alaska 
National Interest Land Conservation Act (43 U.S.C. 1601 et 
seq.), the Wilderness Act (16 U.S.C. 1131 et seq.), the Wild 
and Scenic Rivers Act (16 U.S.C. 1271 et seq.), the National 
Trails System Act (16 U.S.C. 1241 et seq.), and the Federal 
Land Policy and Management Act of 1976 (43 U.S.C. 1701 et 
seq.).

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8 and Article IV, section 3, of the 
Constitution of the United States grants Congress the authority 
to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to establish the National Landscape 
Conservation System.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 2016--National Landscape Conservation System Act

    H.R. 2016 would provide a statutory basis for the National 
Landscape Conservation System (NLCS), which was established 
administratively in 2000. The NLCS encompasses about 20 million 
acres of land administered by the Bureau of Land Management 
(BLM). Based on information provided by that agency, CBO 
estimates that enacting H.R. 2016 would have no effect on the 
BLM budget (which currently includes about $50 million a year 
for the NLCS) because BLM already has permanent authority to 
manage the lands in the system, subject to amounts provided 
annually in appropriations acts. Enacting H.R. 2016 would not 
affect direct spending or revenues.
    The bill contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    On June 6, 2007, CBO transmitted a cost estimate for S. 
1139, the National Landscape Conservation System Act, as 
ordered reported by the Senate Committee on Energy and Natural 
Resources on May 23, 2007. S. 1139 and H.R. 2016 are similar, 
and the CBO cost estimates for the two pieces of legislation 
are the same.
    The CBO staff contact for this estimate is Deborah Reis. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
for Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                           EARMARK STATEMENT

    H.R. 2016 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                     DISSENTING VIEWS ON H.R. 2016

    We strongly oppose H.R. 2016. The true purpose of H.R. 2016 
is to prevent many locally popular, wholesome family 
recreational opportunities and almost all economic activities 
from taking place on 26 million acres of BLM land. H.R. 2016 
will create a two-tiered system within the BLM under which some 
BLM land can be carefully managed for multiple use while other 
vast tracts would be walled off from almost all human use and 
managed for ``preservation'' or in layman's terms, no use. 
While well- meaning, few supporters of this bill live in the 
areas most affected by the legislation and fewer still ever 
truly get know first hand the rural communities of farmers, 
ranchers, and others whose ability to provide for their 
families can be devastated by decisions we so cavalierly make 
from afar. More that one third of the land in the United States 
is federally managed, but in much of the West, that ratio is 
reversed and doubled. To those of us who live in the public 
land states, multiple use means having the opportunity to 
practice conservation as it was defined by Teddy Roosevelt's 
mentor, Gifford Pinchot, ``conservation means the wise use of 
natural resources.'' It means having the opportunity to obtain 
the many compatible esthetic and economic benefits well managed 
resources can provide. Properly managed, public lands can 
simultaneously contribute to energy independence, timber for 
affordable housing, needed food and fiber, wildlife 
conservation, outdoor recreation and the advancement of science 
and technology. We can choose to remove land from multiple us, 
but that choice is not cost-free; indeed, it will be impossible 
to meet any of these vital needs domestically if more and more 
public land is locked up every year.
    Rep. Grijalva has contended both during the hearing that 
took place in June of 2007 and during the March 12, 2008 markup 
session of H.R. 2016 that this legislation just codifies the 
existence of a division within the BLM that has already been 
administratively created. Putting aside for a moment our 
objections to ``just,'' the language in H.R. 2016 goes well 
beyond a codification of what already exists. Section 3(c)(2) 
states the Secretary (of the Interior) shall manage the system 
(NLCS) ``in a manner that protects the values for which the 
components of the system were designated''. The term ``values'' 
is a wholly new concept to the BLM and this would be the first 
time legislation directing the management and operation of BLM 
interjects this nebulous, malleable term. This is not an 
accidental or trivial insertion of verbiage in the legislation; 
it was specifically plucked from the National Park Service's 
organic act in order to purposefully mandate broad and vague 
new management practices. What are some ``values'' to the 
National Park Service that allow the iron-fisted ``no-
impairment standard'' of enforcement to protect them? They 
include such things as ``viewscapes,'' ``soundscapes,'' and 
``smellscapes.'' It happens that many times these wonderfully 
indefinable concepts are enforced laxly within the park but 
used with draconian severity against the park's neighbors. This 
is a particularly poor model for BLM lands which, unlike 
National Parks, are more often part of a mixed checkerboard of 
private, state and federal land.
    When asked how the term ``values'' is defined, proponents 
point to the assortment of declarations made when the units 
were added to the NLCS system. What happens when it is unclear 
if the Secretary is managing the system in a manner that 
protects the values for which a component was designated? Many 
of the designations of units within the NLCS consist of 
wonderful prose and lofty platitudes but have very little in 
the way of management direction or substance. The Secretaries 
of the Interior who make these declarations range from Bruce 
Babbitt to James Watt and it may be noted that their values and 
the language they used to describe the ideal use of federal 
land have not always coincided exactly. Are we in Congress not 
then abdicating our responsibility as the policy setting branch 
of government if we simply punt this issue to whatever team is 
currently at the other end of Pennsylvania Avenue? NLCS 
Director Elena Daly testified that today ninety percent of NLCS 
lands are potentially open to grazing with much currently 
taking place. How does grazing fit into the concept of 
``smellscapes''? Not too well we suspect, based on our 
observations of city folks experiencing their first encounter 
with the grand smellscape provided by cattle. How do shooting 
ranges and hunting activities, which are currently part of 
several NLCS units, fit into the concept of ``soundscapes''? 
How does OHV use, mining, oil exploration, horseback riding, 
camping, and numerous other activities that are currently part 
of most NLCS units square with the new concept of ``values''? 
The fact that this is even debatable shows that the ultimate 
arbiter will be the Courts. Far-fetched? Not hardly. Take for 
example one of the strongest advocates of this bill, The 
Wilderness Society, who testified in support of H.R. 2016 and 
has a history of using litigation to stop activities on federal 
lands. The Wilderness Society in its 18 page packet in support 
of the NLCS lists road building, energy exploration and mining, 
recreational use, off road vehicle use and boundary adjustments 
as ``immediate threats to the units of the NLCS'' that must be 
stopped. The Wilderness Society and their contingent of special 
interest allies, who are disdainful of people who work 
outdoors, and have sued federal land management agencies 
several times before to stop such activities on federal lands 
and this vague new management directive of ``values'' is a 
perfect entree for more lawsuits. Not to just single out The 
Wilderness Society, numerous other supporters of H.R. 2016 such 
as the Center for Biological Diversity, National Parks 
Conservation Association and the Defenders of Wildlife have 
used the courts to drive off ranchers and destroy the 
livelihood of timber workers in the United States. We also view 
the inclusion of Wilderness Study Areas (WSA) in H.R. 2016 as a 
way to congressionally lock in the administratively created and 
released WSA, turning them into de facto wilderness areas. This 
is especially problematic given the fact that over half of 
BLM's WSA's do not meet even the minimum acreage requirement 
and should be released immediately.
    H.R. 2016 at best would codify a division of BLM (NLCS) 
that performs work that can better be performed by other agency 
officials and creates a duplicative agency without a clear 
mission or structure. H.R. 2016 would also bestow Congressional 
recognition on over a dozen BLM monuments that we still cannot 
identify as having met the three criteria that must be met in 
the Antiquities Act. We remain unsatisfied and troubled with 
the Administration's answers when asked about the scope, 
structure and powers of the NLCS and specifically its 
Washington, D.C. office. It is even fair to say that something 
mischievous is afoot when one compares what has been said 
before the Committee with what has been reported in the press 
and proclaimed in BLM's own documents. In testifying before the 
Committee (in two separate hearings) NLCS Director Daly and 
Deputy Director (BLM) Henri Bisson gave the impression that the 
NLCS had no binding authority, no ability to supersede or 
interfere with the longstanding BLM organizational structure at 
any level, and had no real way to implement policy or 
management changes or recommendations and ability to appoint 
staff. ``The NLCS is more or less a policy office, is what it 
is. It doesn't exactly manage the system,'' is what Deputy 
Director Bison stated during a budget hearing. Yet according to 
the BLM's own organizational structure chart located on their 
website the NLCS office is one of four departments directly 
underneath the Director and above the state offices.
    Former Secretary of the Interior Babbitt was forthright 
from the beginning when he by fiat created the NLCS and set 
forth what he envisioned it to be: a new way of managing BLM 
lands (he estimated up to 100 million acres someday) through 
the NLCS system so that ``the old bureaucratic mule will awaken 
to a new future as an environmental steward right up there with 
the National Park Service and the National Wildlife Refuge 
System. The day is coming, I believe, when the BLM so often 
stereotyped and dismissed as the Bureau of Livestock and Mining 
will be better known as the Bureau of Landscape and 
Monuments.'' Rep. Grijalva, when asked if H.R. 2016 would lead 
to NLCS lands receiving more regulation stated candidly, 
``You've got to establish the system.. .and then you go to step 
2.'' NLCS Director Daly, not exactly invoking images of a 
policy shop, was quoted in the Arizona Republic stating, ``This 
is like being part of a birthing. I think we are all about to 
witness the next major conservation system in the United 
States.'' BLM's 2007 ``National Landscape Conservation System 
Science Strategy'' clearly sets up a system for the NLCS apart 
from the rest of the BLM. Despite assurances that the field 
offices (overseen by BLM State Directors) will continue to 
operate freely and will only get guidance from the NLCS, the 
Science Strategy document directs the NLCS to develop and 
implement (using ``leverage'' i.e. the millions in subactivity 
budget accounts the Administration is proposing the NLCS 
control). NLCS official Jeff Jarvis outlined very clearly in a 
report titled ``National Landscape Conservation System: A New 
Approach to Conservation'' that the purpose behind the NLCS is 
to shed the old, burdensome role of ``developing commodities'' 
that Congress gave the BLM and to move into conservation, 
assuming the two concepts were incompatible. We find this 
troublesome given how much and how irreplaceably BLM lands 
contribute to our nation's economy and security. Many of us 
have districts whose viability is dependent on ongoing multiple 
uses of BLM land. And the country as a whole has a continuing 
vital need to ensure that our local and national economies grow 
stronger, more resilient and have access to vital resources 
from secure domestic sources. One thing is certain: there are 
no more zealous and knowledgeable guardians of environmental 
and recreational ``values'' of these lands than the local 
people who hunt, fish, ride, hike, camp, raise their kids and, 
yes, try to earn a living on and around these lands.
    Many and imperfect are the federal laws that set the course 
for the management of our public land. But they are duly 
enacted laws passed by Congress and signed by a President and 
they can be changed the same way they were adopted. For us to 
pass legislation delegating to the Secretary of the Interior of 
the moment and unelected bureaucrats within a federal land 
management agency a mandate to create a management regime to 
enforce legislatively undefined ``values'' on a vast, resource 
rich part of the country is an unacceptable abdication of our 
responsibility as the policy setting branch of the government.
                                   Don Young.
                                   Rob Bishop.
                                   Steve Pearce.
                                   Cathy McMorris Rodgers.
                                   Henry Brown.
                                   Bill Sali.
                                   Jeff Flake.
                                   Doug Lamborn.
                                   Louie Gohmert.
                                   Jimmy Duncan.
                                   Adrian Smith.
                                   Tom Tancredo.
                                   Chris Cannon.
                                   Mary Fallin.
                                   Tom Cole.
                                   Luis Fortuno.
                                   Elton Gallegly.
                                   Bill Shuster.