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Summary Judgment

On Land Powers: Trump Must Tell His Lawyers “Stand Down”

Jan 01, 2018 | by William Perry Pendley

A recent ruling by the notorious U.S. Court of Appeals for the Ninth Circuit provides President Trump an opportunity to strengthen the Republic’s system of checks and balances.  He should order federal lawyers to end their defense of a million-acre federal land lockup by the Obama administration and instead to acknowledge:  the Property Clause gives Congress exclusive power over federal lands; Congress reasserted its unilateral power in 1976; and Obama’s land grab is unconstitutional, illegal, and ill-advised.  Thus, Trump will restore constitutional equilibrium, ensure America’s uranium supply, and save jobs in the West.       

The Property Clause gives Congress sole 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.”).  Thus, the Executive has only the power delegated by Congress.  For almost 200 years, no single act defined the Executive’s power over public lands; however, on occasion, Congress enacted legislation delegating the Executive authority to withdraw federal lands.

Not surprisingly given that nature and the law abhor a vacuum, over the decades even in the absence of statutory authority, presidents often temporarily withdrew public lands from operation of federal lands laws, as to mining, for example.  As a result, in 1915, the Supreme Court of the United States held that acquiescence by Congress to these withdrawals provided the president with implied authority to make them.  The Court did acknowledge that Congress could legislatively revoke that implicit 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classification of lands, or other public purposes...,” but the Supreme Court declined to rule on whether that act repealed the Executive’s implied authority.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, not just those allowed by the 1910 Act.  In 1958, Congress limited the Executive’s 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 urged that “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.”

Finally, in 1976, with the Federal Land Policy and Management Act, Congress did just that.  It repealed 29 withdrawal statutes, overruled the Court’s 1915 ruling, and revoked all implied powers the Executive may have had to withdraw public lands.  Then it delegated authority to the Executive to make specific and limited withdrawals of less than 5,000 acres; but, larger withdrawals required that Congress be notified—with documentation of the withdrawal’s necessity and impact—and that the withdrawal survive a “one-House veto.”  In 1983, however, the Supreme Court struck down a different “one-House veto” provision, thus apparently undoing the check on Executive authority Congress imposed with its 1976 Act.

In 2012, Secretary of the Interior Salazar—over the objections of federal land experts but to the delight of environmental extremists—withdrew over a million acres of uranium-rich federal lands in northwestern Arizona, uranium that could power Los Angeles for 154 years.  The American Exploration & Mining Association (AEMA) challenged the withdrawal for its small miner members with valuable claims in the area.  AEMA argued Congress would not have given the Executive the withdrawal authority used by the Obama administration if it did not have the power to “veto” any abuse of that authority.  Thus, if the “one-House veto” is unconstitutional, the withdrawal authority is null and void. 

An Arizona federal district court ruled the “veto” unconstitutional, but upheld the withdrawal authority as severable.  Days ago, a Ninth Circuit panel ruled perversely—after all Congress intended to limit Executive power— that Congress was so determined to give the Executive land withdrawal authority, it would have done so without the “one-House veto.”

Over to you Mr. President.

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