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clas­si­fi­ca­tion of lands, or oth­er pub­lic pur­pos­es…,” but the Supreme Court declined to rule on whether that act repealed the Executive’s implied author­i­ty.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.