Will A Four-Decade Old Law Limit Obama’s Land Powers?

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Mountain States Legal FoundationA “Sagebrush Rebellion” like the one that propelled Ronald Reagan (“Count me in as a [sagebrush] rebel.”) into the Oval Office is making national news because President Obama governs like President Carter.  Obama’s Interior Secretary, for example, threatens more unilateral land lockup decrees if westerners do not embrace legislation putting vast areas off-limits to “multiple [economic and recreational] use.”  In fact, Congress long ago tired of this abuse by the Executive of a power the Constitution gives Congress alone and enacted legislation to end it.  That law is headed to the Supreme Court.

Because the “Property Clause” vests solely in Congress the power to manage federal lands (“Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”), for the Executive to exercise power over federal lands Congress must delegate it that power.  For almost 200 years, no single act defined the Executive’s power over public lands; on occasion however, Congress passed legislation delegating power to withdraw federal lands to the Executive.

Not surprisingly, therefore—given that nature and the law abhor a vacuum—in the absence of statutory authority, the president often temporarily withdrew public lands from operation of federal lands laws, as to mining for example, in aid of legislation regarding those lands.  Perhaps unexpectedly, in 1915, the Supreme Court held that acquiescence by Congress to these withdrawals provided the president with implied authority to make them, but the Court acknowledged Congress could legislatively revoke that authority.

Meanwhile, in 1910, Congress passed legislation delegating to the Executive limited authority to make temporary withdrawals “for waterpower sites, irrigation, classification of lands, or other public purposes…,” but the Supreme Court declined to rule on whether that act repealed the Executive’s implied authority.  In 1941, FDR’s Attorney General opined that the Executive had implied authority to make any withdrawal, even beyond that authorized by the 1910 Act.  In 1958, Congress limited the Executive’s individual defense withdrawals to less than 5,000 acres each.  In 1964, Congress created the Public Land Law Review Commission, which reported in 1970 that Executive withdrawals were “uncontrolled and haphazard,” and proposed “Congress assert its constitutional authority by enacting legislation reserving unto itself exclusive authority to withdraw or otherwise set aside public land for specified limited-purpose uses.”

In 1976, with the Federal Land Policy and Management Act, Congress did just that.  It repealed 29 withdrawal statutes, overruled the Supreme Court’s 1915 ruling, and revoked any and all implied power the Executive may have had to withdraw public lands.  It delegated the Executive authority to make specific and limited withdrawals of less than 5,000 acres, but all larger withdrawals required that Congress be notified—with documentation as to the necessity for and impact of the withdrawal—and that the withdrawal survive a “one-House veto”—either a Senate or House concurrent resolution could kill it.  In 1983, however, the Supreme Court struck down a different “one-House veto” provision thus invalidating the check on Executive authority Congress sought to impose with its 1976 Act.

In 2012, then Secretary of the Interior Salazar withdrew over a million acres of uranium-rich federal lands in northwestern Arizona—Bureau of Land Management and U.S. Forest Service operated lands north of Grand Canyon National Park, the so-called Arizona Strip.  Its mineral value has been long known, which is why it was excluded from the Arizona Wilderness Act.  A 120-year old mining organization sued arguing the authority relied upon by the Obama administration would not have existed but for the “one-House veto” and that, with the veto’s unconstitutionality, the delegation of withdrawal authority is likewise null and void.  An Arizona federal district court held Congress would have delegated its power anyway and dismissed the case.  Now at the U.S. Court of Appeals for the Ninth Circuit, the lawsuit could yield one of most decisive constraints on unlimited Executive power in the Republic’s history.