Yount v. Salazar et al

Filing 130

ORDER, Plaintiffs' motions for partial summary judgment (Doc. 73 in 3:12-cv-8038-DGC) and 90 are denied; Defendants' cross motions for summary judgment 101 and 102 are granted; Defendants' motion for leave to file supplemental citations 128 is granted; the Clerk is directed to file the document lodged as 129 . Signed by Judge David G Campbell on 3/20/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory Yount,

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Plaintiff,
v.
Ken Salazar, et al.,

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Defendants.
National Mining Association,

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v.
Ken Salazar, et al.,
Defendants
Northwest Mining Association,

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v.
Ken Salazar, et al.,
Defendants.
Quaterra Alaska Incorporated, et al.,

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No. CV12-8042 PCT DGC

Plaintiff

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No. CV12-8038 PCT DGC

Plaintiff

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No. CV11-8171-PCT DGC
(Lead case)

Plaintiff
v.
Ken Salazar, et al.,
Defendants.

No. CV12-8075 PCT DGC

Plaintiffs

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National

Mining

Association

and

Nuclear

Energy

Institute

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(“NMA/NEI”) and Plaintiff Northwest Mining Association (“NWMA”) have filed

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motions for partial summary judgment in this consolidated action.

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Plaintiffs assert in counts one and seven of their respective complaints that the Secretary

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of the Department of the Interior’s withdrawal of more than one million acres from

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mining location and entry in Northern Arizona should be vacated because § 204(c) of the

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Federal Land Policy Management Act (“FLPMA”) is unconstitutional.

Docs. 73,1 90.

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Defendants Kenneth L. Salazar, Secretary of the Department of the Interior; the

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Department of the Interior (“DOI”); the Bureau of Land Management (“BLM”); the

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Forest Service; and the Department of Agriculture (collectively, “Federal Defendants”),

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and Defendant-Interveners Grand Canyon Trust et al. (“the Trust”) have filed cross

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motions for partial summary judgment on these counts. Docs. 101, 102.

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The motions and cross motions have been fully briefed (Docs. 101, 102, 110, 113,

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115, 117), and the Court held oral argument on March 1, 2013. For the reasons stated

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below, the Court finds that § 204(c)’s legislative veto, which provides that Congress can

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block withdrawals in excess of 5,000 acres through a resolution of both houses, is

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unconstitutional. The Court also finds, however, that this provision is severable from the

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grant of authority relied on by the Secretary in this case. The Court therefore will deny

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Plaintiffs’ motions for partial summary judgment and grant Federal Defendants’ and

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Defendant-interveners’ cross motions.

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I.

Background.

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On July 21, 2009, Secretary Salazar published notice of his intent “to withdraw

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approximately 633,547 acres of public lands and 360,002 acres of National Forest System

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lands for up to 20 years from location and entry under the Mining Law of 1872.” Notice

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of Proposed Withdrawal, 74 Fed. Reg. 35,887, (July 21, 2009). The 2009 Notice had the

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Document 73 is docketed under case number 3:12-cv-08038-DGC because it was
filed before the separate cases in this action were consolidated. Unless specifically noted,
all other documents have been docketed under the lead case number, 3:11-cv-08171DGC.
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effect of withdrawing the land from location and entry for up to two years to allow time

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for analysis, including environmental analysis under the National Environmental

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Protection Act (“NEPA”). Id.

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On August 26, 2009, the BLM, an agency within DOI, published notice of its

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intent to prepare an Environmental Impact Statement (“EIS”) addressing the proposed

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withdrawal, as required by NEPA. 74 Fed. Reg. 43,152 (Aug. 26, 2009). The purpose of

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the withdrawal as explained in the notice was “to protect the Grand Canyon watershed

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from adverse effects of locatable mineral exploration and mining, except for those effects

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stemming from valid existing rights.” Id. at 43,152-53.

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After soliciting public comments, the BLM issued a notice of availability of a

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Draft EIS on February 18, 2011. 76 Fed. Reg. 9,594 (Feb. 18, 2011). The Draft EIS

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considered four alternatives: a “No Action” alternative; the withdrawal of approximately

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1,010,776 acres for 20 years; the withdrawal of approximately 652,986 acres for 20

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years; and the withdrawal of 300,681 acres for 20 years. Id. at 9,595. After an extended

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opportunity for public comment, the BLM published a notice of availability of the Final

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EIS on October 27, 2011. 76 Fed. Reg. 66,747 (Oct. 27, 2011). The Secretary issued a

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Record of Decision on January 9, 2012, choosing to withdraw “approximately 1,006,545

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acres of federal land in Northern Arizona for a 20-year period.” See No. 3:12-cv-08042,

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Doc. 27-1 at 3.

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The Secretary made this withdrawal under the authority granted in § 204 of

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FLPMA. 77 Fed. Reg. 2,563-01, 2,563 (Jan. 18, 2012). Section 204(c) authorizes the

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Secretary to make withdrawals “aggregating five thousand acres or more . . . only for a

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period not more than 20 years.”2 43 U.S.C. § 1714(c)(1). It further provides that “[t]he

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Secretary shall notify both houses of Congress of such a withdrawal no later than its

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FLPMA defines a “withdrawal” as “withholding an area of Federal land from
settlement, sale, location, or entry, under some or all of the general land laws, for the
purpose of limiting activities under those laws in order to maintain other public values in
the area or reserving the area for a particular public purpose or program[.]” 43 U.S.C.
§ 1702(j).
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effective date[,] and the withdrawal shall terminate and become ineffective at the end of

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ninety days . . . if the Congress has adopted a concurrent resolution stating that such

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House does not approve the withdrawal.” Id. The Secretary submitted its notice and

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reports to Congress on January 9, 2012, and Congress did not pass a concurrent action

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within 90 days to block the withdrawal. See Doc. 101 at 72-88. The withdrawal

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therefore remains in effect.

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II.

Discussion.

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Plaintiffs argue that even though Congress did not exercise its authority to void the

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withdrawal, the legislative veto provision enabling it to do so is unconstitutional and so

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interwoven with the withdrawal authority given the Secretary in § 204(c) that the entire

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grant of authority must be struck down. See generally Docs. 73 & 90.3

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A.

The Legislative Veto.

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Plaintiffs contend, and Defendants do not dispute, that the provision permitting

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Congress to terminate a withdrawal by concurrent resolution is unconstitutional because

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it allows Congress to act without adhering to normal constitutional requirements. The

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Supreme Court in INS v. Chadha, 462 U.S. 919 (1983), found that where Congress

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delegates authority to an agency to make policy decisions that alter legal rights, thus

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enabling the agency to engage in “legislative action,” Congress must “abide by that

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delegation of authority until that delegation is legislatively altered or revoked.” Id. at

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955. Congress cannot alter a decision of such an agency merely through a resolution of

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one or both houses because Congress must act “in conformity with the express

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procedures of the Constitution’s prescription for legislative action: passage by a majority

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of both Houses and presentment to the President.” Id. at 958. Section 204(c), which

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allows Congress to void the Secretary’s decisions without presentment to the President, is

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clearly unconstitutional under Chadha.

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Because NMA/NEI and NWMA have joined in each other’s motions, the Court
will not separately identify which party asserts which arguments, but will instead refer to
these parties collectively as “Plaintiffs.” The Court will take this same approach with
Federal Defendants and Defendant-Intervenors, referring to them only as “Defendants.”
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B.

Severability.

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Plaintiffs argue that the legislative veto is not severable from the rest of § 204(c)

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and that the Court must therefore invalidate the entire section. The touchstone for

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determining whether a challenged statutory provision is severable from other provisions

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is the intent of Congress.

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(explaining that the test for severability is “What was the intent of the lawmakers?”);

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Chadha, 462 U.S. at 931-932 (noting that invalid portions of a statute are to be severed

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“[u]nless it is evident that the Legislature would not have enacted those provisions which

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are within its power, independently of that which is not.”) (internal quotation marks and

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citations omitted); City of New Haven v. Pierce, 809 F.2d 900, 903 (D.C. Cir. 1987)

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(“[T]he question whether the unconstitutional legislative veto provision in section 1012 is

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severable from the remainder of that section . . . [i]s purely one of congressional intent.”).

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Thus, the key question for the Court to decide is whether Congress would have conferred

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§ 204(c) withdrawal authority on the Secretary in the absence of a legislative veto.

Carter Coal Co. v. Carter, 298 U.S. 238, 312 (1936)

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Plaintiffs argue that Congress would have discarded all of § 204(c) rather than

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enact a grant of authority to make withdrawals of 5,000 acres or more (“large-tract

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withdrawals”) without a legislative veto. Plaintiffs point to the historical and political

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events leading up to the FLPMA, the language, structure, and context of § 204(c), and the

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legislative history of the FLPMA, all as showing that Congress would not have granted

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the Secretary large-tract withdrawal authority had it known it could not rely on the

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legislative veto to control that authority. Docs. 73 at 8-13; 90 at 17-21. The Court will

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address these arguments separately.

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Before doing so, however, the Court notes two legal principles that will bear on

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the decision in this case. First, a statute that contains an unconstitutional provision is

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presumed to be severable if Congress has included a severability clause in the statute.

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Chadha, 462 U.S. at 932. “A provision is further presumed severable if what remains

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after severance ‘is fully operative as a law.’” Id. at 934 (internal citation omitted).

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Second, when a presumption of severability arises, the party asking the Court to strike
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down a portion of the statute must present “strong evidence” that Congress would not

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have enacted the challenged portion of the statute in the unconstitutional provision.

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Alaska Airlines v. Brock, 480 U.S. 678, 686 (1987).

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The FLPMA includes a severability clause. Congress specifically stated that “[i]f

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any provision of the Act or the application thereof is held invalid, the remainder of the

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Act and application thereof shall not be affected thereby.” Act of Oct. 21, 1976, Pub. L.

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No. 94-579, § 707, 90 Stat. 2743; 43 U.S.C. § 1701, historical and statutory notes. This

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clause is similar in material respects to the severability clause in Chadha, where the

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Court emphasized that the clause applied to “‘any particular provision of [the] Act.’” 462

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U.S. at 932 (emphasis added by Chadha). The Court thus begins its analysis with a

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presumption that the legislative veto provision can be severed from the rest of § 204(c),

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leaving intact the Secretary’s authority to make the withdrawal at issue in this case.

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Plaintiffs can prevail in their quest to invalidate all of § 204(c) and the Secretary’s

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withdrawal only if they present “strong evidence” that Congress would not have granted

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the Secretary large-tract withdrawal authority in the absence of a legislative veto.

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B.

The Historical and Political Events Preceding the FLPMA.

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The authority to manage and regulate the use of public lands originates in the

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Property Clause of the U.S. Constitution, which vests in Congress the “power to dispose

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of and make all needful rules and regulations respecting . . . property belonging to the

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United States.” U.S. Const., Art. IV, § 3, cl. 2. The parties agree, however, that the

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Executive Branch historically exercised its own authority to withdraw public lands. In

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1915, the Supreme Court affirmed this authority in United States v. Midwest Oil

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Company, 236 U.S. 459 (1915), finding that Congress’s “acquiescence” in a multitude of

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executive land withdrawals over a long period of time had “readily operated as an

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implied grant of power.” Id. at 479. At various times Congress actually enacted statutes

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enabling the Executive to withdraw public lands for specific purposes. As the Supreme

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Court later summarized in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990),

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management of public lands under these many laws “became chaotic.” Id. at 876.
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Congress responded in 1964 by forming the bipartisan Public Land Law Review

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Commission (“the Commission”) “to study existing laws and procedures relating to the

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administration of the public lands.” Act of Sept. 19, 1964, Pub. L. No. 88-606, 78 Stat.

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982. After study, the Commission found that “[t]he lack of clear statutory direction for

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the use of the public lands has been the cause of problems ever since Congress started to

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provide for the retention of some of the public domain in permanent Federal ownership.”

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Pub. Land Law Review Comm’n, One Third of the Nation’s Land 43 (1970) (hereinafter

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Commission Report); see Doc. 102 at 36. The Commission found that “[t]he relative

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roles of the Congress and the Executive in giving needed direction to public land policy

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have never been carefully defined[,]” and that the Executive used its withdrawal authority

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in “an uncontrolled and haphazard manner.” Id. The Commission recommended that

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Congress “establish national policy in all public land laws by prescribing the controlling

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standards, guidelines, and criteria for the exercise of authority delegated to executive

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agencies.” Id. at 2; see Doc. 102 at 35. The Commission further suggested that

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Congress assert its constitutional authority by enacting
legislation reserving unto itself exclusive authority to
withdraw or otherwise set aside public lands for specified
limited purpose uses and delineating specific delegation of
authority to the Executive as to the types of withdrawals and
set asides that may be effected without legislative action.
Id.; see Doc. 102 at 35.

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Congress enacted the FLPMA in response to the Commission’s findings and

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recommendations. Plaintiffs rely on the first part of the Commission’s language quoted

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above – that “Congress assert its constitutional authority by enacting legislation reserving

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unto itself exclusive authority to withdraw or otherwise set aside public lands” – as

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evidence that Congress’s intent in passing the FLPMA was to reign in executive authority

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over public land withdrawals. Doc. 90 at 10-11. As Defendants point out, however, the

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full-text of the quoted language contains a two-part recommendation: First, that Congress

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spell out its own reserved authority “to withdraw or otherwise set aside public land for

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specified limited-purpose uses,” and second, that Congress make a “specific delegation of
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authority to the Executive as to the types of withdrawals and set asides that may be

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effected without legislative action.” Doc. 102 at 15. This two-part suggestion can also

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be seen in the Commission’s recommendation that “large scale limited or single use

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withdrawals of a permanent nature” should only be effectuated by an Act of Congress,

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while “[a]ll other withdrawal authority should be expressly delegated with statutory

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guidelines to insure proper justification for proposed withdrawals, provide for public

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participation in their consideration, and establish criteria for Executive action.”

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Commission Report at 54, Recommendation 8; see Doc. 102 at 40.

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The FLPMA adopted this two-part approach to managing public lands.

The

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statute specifically states that “it is the policy of the United States that . . . Congress

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exercise its constitutional authority to withdraw or otherwise designate or dedicate

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Federal lands for specified purposes and that Congress delineate the extent to which the

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Executive may withdraw lands without legislative action[.]” 43 U.S.C. § 1701(a)(4)

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(emphasis added).

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To accomplish the first part of this purpose, several sections of the FLPMA

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reserve to Congress exclusive authority over public land actions, including preventing the

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Executive from modifying Congressional withdrawals for national monuments and

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wildlife refuges and reserving to itself the authority to designate wilderness areas. See 43

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U.S.C. §§ 1714(j), 1782. To ensure that Congress alone could initiate action in these

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areas, the FLPMA expressly repealed all grants of authority to the Executive recognized

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in Midwest Oil and 29 prior statutory grants of authority. Act of Oct. 21, 1976, Pub. L.

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No. 94-579, § 704(a), 90 Stat. 2743, 2792.

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To accomplish the second part of the Commission’s recommendation, the FLPMA

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includes express grants of withdrawal authority to the Executive.

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provides that “the Secretary is authorized to make, modify, extend, or revoke withdrawals

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but only in accordance with the provisions and limitations of this section.” 43 U.S.C.

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§ 1714(a). Section 204(b) sets forth the procedures the Secretary must follow, and the

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next three subsections set forth, respectively, the procedures applicable to executive
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Section 204(a)

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withdrawals over 5,000 acres, withdrawals less than 5,000 acres, and emergency

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withdrawals.

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recommended – it reserved certain land actions for Congress alone (national monuments,

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wildlife refuges, and wilderness areas), and it also expressly delegated authority to the

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Executive to take other land actions through specified procedures.

Id. at § 1714(c)-(e).

Thus, the FLPMA did what the Commission

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Plaintiffs repeatedly emphasize that the FLPMA sought to reign in executive

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authority over public lands and to place limits and statutory protections around executive

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withdrawal authority. That certainly is correct. But the question to be decided in this

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case is not whether Congress sought to reign in executive authority, but whether there is

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“strong evidence” that Congress would have chosen to give the Executive no large-tract

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withdrawal authority under § 204(c) if it was unable to limit that authority with a

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legislative veto. The recommendations of the Commission do not provide that strong

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evidence. Significantly, the Commission did not recommended a legislative veto. Nor

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did it suggest that Congress reserve large-tract withdrawal authority to itself.

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As discussed above, the Commission was equally concerned with enabling the

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Executive to act through controlled delegation as it was with preserving Congress’s

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reserved powers.

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Executive’s use of its implied withdrawal authority, the Commission recognized that such

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executive action stemmed from a need to manage public lands for which Congress had

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provided inadequate statutory guidance. Commission Report at 44; see Doc. 102 at 37.

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The Commission accordingly recommended that Congress “delineat[e] specific

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delegation of authority to the Executive as to the types of withdrawals and set asides that

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may be effected without legislative action.” Id. at 2; see Doc. 102 at 35. In short, the

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Commission recommended that Congress grant withdrawal authority to the Executive

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without a legislative veto. This does not constitute “strong evidence” that Congress

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would have withheld the authority absent such a veto.4

Even while noting the “increasing controversy” caused by the

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Plaintiffs argue that the fact that Congress enacted the veto provision even
though the Commission had not recommended it suggests that Congress must have found
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C.

The Language, Structure, and Context of § 204(c).
1.

Policy Language.

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Plaintiffs note that the language of the FLPMA repeatedly asserts legislative

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control over executive authority to withdraw public lands. Doc. 73 at 8. They point to

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the FLPMA’s statement in § 102 declaring that it is “the policy of the United States that

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. . . Congress exercise its constitutional authority to withdraw or otherwise designate or

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dedicate Federal lands for specified purposes and that Congress delineate the extent to

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which the Executive may withdraw lands without legislative action.” 43 U.S.C.

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§ 1701(a)(4). They also point to the FLPMA’s repeal of all implied authority to the

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Executive and argue that this provision “bluntly expresses Congress’s desire to reign in

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the withdrawal authority of the Executive Branch.” Doc. 73 at 8-9. As noted above,

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however, such provisions simply mirror the Commission’s two-part recommendation that

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Congress reserve for itself withdrawal authority in specified areas (an action that required

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eliminating any competing executive authority in those areas) and grant specific authority

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to the Executive in other areas. They say little about the importance of § 204(c)’s veto

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provision in achieving these overall purposes.

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2.

“Only.”

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Plaintiffs further point to § 204(a), which states that the “Secretary is authorized to

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make . . . withdrawals, but only in accordance with the provisions and limitations of this

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section.” 43 U.S.C. § 1714(a), cited in Doc. 73 at 9 (emphasis added). Plaintiffs argue

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that this language shows that Congress could not have intended the grant of authority in

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§ 204(c) to exist without all the provisions and limitations that pertain to it, including the

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legislative veto. Doc. 73 at 9. This language is repeated in § 202(e): “public lands shall

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be removed from or restored to the operation of the Mining Law of 1872 . . . only by

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withdrawal action pursuant to [§ 204] or other action pursuant to applicable law.” 43

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the Commission’s recommendations insufficient to reign in executive power. Doc. 110 at
13, n. 12. Given the key role the Commission Report played in the enactment of the
FLPMA, however, it is equally plausible that because the primary source guiding the
enactment of the FLPMA did not suggest a veto provision, Congress would have forgone
such a provision had it known the provision was unconstitutional.

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U.S.C. § 1712(e)(3) (quoted in Doc. 110 at 7-8).

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requirement, seen in tandem with the limiting language of § 204(a) and the veto provision

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in § 204(c)(1), shows that “Congress was willing to allow Interior to make long-term

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withdrawals of large acreage only if Congress could override that withdrawal itself,

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without presentment to the President.” Doc.110 at 8 (emphasis in Pl. brief).

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Plaintiffs maintain that this

Plaintiffs rely on Justice Scalia’s concurrence in Miller v. Allbright, 523 U.S. 420,

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457-58 (1998).

In Miller, an alien plaintiff had argued that two requirements for

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demonstrating one’s citizenship under the Immigration and Nationality Act (“INA”)

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violated the equal protection clause of the Constitution because they required proofs of

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parentage from those born of U.S. citizen fathers that were not required from those born

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of U.S. citizen mothers. 523 U.S. at 424. Justice Scalia opined that the Court could not

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sever the unconstitutional provisions and leave the rest of the statute intact because “the

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INA itself contains a clear statement of congressional intent: ‘A person may only be

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naturalized as a citizen of the United States in the manner and under the conditions

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prescribed in this subchapter and not otherwise.’” Id. at 457 (emphasis added by Scalia).

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He found that “reliance upon the INA’s general severability clause . . . is misplaced

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because the specific governs the general.” Id. In other words, Justice Scalia found that

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Congress’s direct statement that citizenship could be acquired in the manner specified in

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the statute “and not otherwise” overrode the severability clause’s suggestion that invalid

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provisions could be eliminated, leaving the rest of the statute’s requirements in place.

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Plaintiffs argue that the same analysis applies here – that because Congress stated

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that the Secretary could exercise his withdrawal authority “only” in compliance with the

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relevant subsections of § 204, none of the provisions can be severed without violating

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Congress’s intent. For several reasons, the Court is not persuaded.

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First, Miller did not find the challenged provisions unconstitutional, so the Court

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never ruled on severability. Justice Scalia’s comments are not only in a concurrence,

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they are dicta.

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Second, the INA provision in question included the word “only” as well as the
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words “and not otherwise.” Id. at 457 (“‘A person may only be naturalized as a citizen of

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the United States in the manner and under the conditions prescribed in this subchapter

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and not otherwise.’” (emphasis added)). Justice Scalia relied on the latter phrase – “and

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not otherwise” – for his conclusion. Section 204(a) of the FLPMA does not include that

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phrase, and the presence of the single word “only” is an insufficient basis, in the Court’s

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view, to disregard Congress’s clear statement that “[i]f any provision of the [FLPMA] or

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the application thereof is held invalid, the remainder of the [FLPMA] and application

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thereof shall not be affected thereby.” Act of Oct. 21, 1976, Pub. L. No. 94-579, 90 Stat.

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§ 707; 43 U.S.C. § 1701, historical and statutory notes (emphasis added).

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Third, Justice Scalia reaffirmed that courts have “judicial power to sever the

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unconstitutional portion from the remainder [of an Act], and to apply the remainder

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unencumbered.” Id. The operative question, he maintained, is “whether Congress would

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have enacted the remainder of the law without the invalidated provision.” Id. That is

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precisely the question addressed in this order.

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Finally, Justice Scalia’s concurrence does not in any way eliminate the

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presumption of severability raised by the severability clause or the requirement that

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“strong evidence” must be presented to overcome that presumption. Chadha, 462 U.S. at

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932; Alaska Airlines, 480 U.S. at 686.
3.

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Structure.

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Plaintiffs argue that “the structure of 204(c) further highlights the impossibility of

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severing the veto alone.” Doc. 73 at 11. They first argue that the Secretary’s large-tract

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withdrawal authority and the legislative veto are integrated into the same provision,

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showing that Congress intended them to remain linked. Subsection 204(c)(1) states, in

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relevant part:

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[A] withdrawal aggregating five thousand acres or more may
be made . . . only for a period of not more than twenty years
by the Secretary on his own motion or upon request by a
department or agency head. The Secretary shall notify both
Houses of Congress of such a withdrawal no later than its
effective date and the withdrawal shall terminate and become
ineffective at the end of ninety days . . . if the Congress has
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adopted a concurrent resolution stating that such House does
not approve the withdrawal.

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43 U.S.C. § 1714(c)(1) (emphasis added). The remainder of the subsection specifies the

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precise legislative procedures for exercising the veto. Id.

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It is undisputed that Congress intended the veto to apply to large-tract withdrawals

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and not to other grants of authority. Thus, it is unremarkable that the veto provision and

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the delegation of large-tract withdrawal authority appear in the same subsection. As

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Defendants point out, “it only makes sense from the standpoint of clarity that a veto

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relating solely to the withdrawal authority appear in close textual proximity to that

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authority.” Doc. 101 at 14. The relevant question, however, is not whether Congress

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intended the veto to serve as a potential check on large-tract withdrawals – it clearly did –

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but whether there is “strong evidence” that Congress would have withheld the large-tract

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withdrawal authority had it known the veto was unconstitutional. As Chadha instructs,

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mere “reluctance” to delegate authority in the absence of a legislative veto is not enough

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to rebut the presumption of severability that attaches when Congress includes a

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severability clause. 462 U.S. at 932 (“Although it may be that Congress was reluctant to

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delegate final authority over cancellation of deportations, such reluctance is not sufficient

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to overcome the presumption of severability raised by [the severability clause].”).

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Plaintiffs’ textual proximity argument therefore does little to advance the view that

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Congress would not have wanted the Court to sever the unconstitutional veto provision,

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leaving the remainder of § 204(c) intact, particularly where the severability clause

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permits that Court to do just that and “it is the duty of th[e] court . . . to maintain the act

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in so far as it is valid.” Alaska Airlines, 480 U.S. at 686; see also Ayotte v. Planned

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Parenthood of N. New England, 546 U.S. 320, 329 (2006) (the court tries “not to nullify

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more of a legislature’s work than is necessary,” lest it “frustrate[] the intent of the elected

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representatives of the people”) (internal quotation marks and citations omitted).

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4.

Notice and Reporting Requirements.

Plaintiffs next argue that severing the legislative veto would leave the notice and
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reporting requirements in § 204(c)(1) and § 204(c)(2) with no purpose. Doc. 73 at 11-12.

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As shown above, § 204(c)(1) requires that the Secretary notify both houses of Congress

3

of a large-tract withdrawal on or before the date that that withdrawal goes into effect. 43

4

U.S.C. § 1714(c)(1). Section 204(c)(2) further requires that “[w]ith the notices required

5

by subsection (c)(1) of this section and within three months after filing the notice under

6

subsection (e) of this section, the Secretary shall furnish to the committees” a detailed

7

report containing twelve specific elements, collectively detailing the rationale for the

8

withdrawal and documenting the procedures used for public consultation, data collection,

9

and evaluation. See 43 U.S.C. § 1714(c)(2).

10

Subsection 204(c)(2)’s explicit reference to the notice requirement in (c)(1), and

11

the fact that the required reports are to go to the committees who may, within 30 days,

12

either make a motion to veto that action or be discharged from further consideration (see

13

§ 204(c)(1)), shows that Congress envisioned the reports as aiding the committees in

14

deciding whether to recommend a veto. This does not resolve the question, however, of

15

whether the reporting requirements have value without a legislative veto provision.

16

The Court concludes that the reporting requirements provide a meaningful

17

limitation on executive action even if no legislative veto may be exercised. They require

18

the Secretary to explain the reasons for the withdrawal (§ 204(c)(2)(1)); evaluate the

19

environmental impact of the current uses and the economic impact of the change (id. at

20

(2)); identify present uses and users of the land, including how these will be affected (id.

21

at (3)); explain what provisions will be made for continuation or termination of existing

22

uses (id. at (4)); consult with local governments and other impacted individuals and

23

groups, and report on the impact of the withdrawal on these parties (id. at (7)-(8)); state

24

the time and location of public hearings or other public involvement (id. at (10)); state

25

where the records of the withdrawal can be examined by interested parties (id. at (11));

26

and submit a report prepared by a qualified mining engineer, engineering geologist, or

27

geologist concerning general geology, known mineral deposits, past and present mineral

28

production, and present and future market demands (id. at (12)). As Defendants argue,
- 14 -

1

such requirements “not only impose a duty to present certain information to Congress;

2

they also force the Secretary to incorporate such considerations into his decision-making

3

process prior to making a large-tract withdrawal.” Doc. 101 at 16. Defendants equate the

4

value of these requirements to that of preparing an EIS under NEPA. Id., n. 11.

5

Beginning with Chadha, legislative veto cases have recognized the value of

6

reporting requirements separate from the veto provisions to which they pertain. In

7

Chadha, Congress gave the Attorney General authority under the INA to suspend an

8

alien’s deportation. 462 U.S. at 923. The Act required the Attorney General to provide

9

Congress with a detailed statement of the facts, relevant law, and reasons for suspension,

10

and it allowed for one house of Congress to block the suspension. Id. at 924-25. The

11

Court struck down the one-house veto as unconstitutional, but found it severable from the

12

grant of authority. Id. at 959. The Court reasoned, in part, that “Congress’ oversight of

13

the exercise of this delegated authority is preserved” under the Act’s reporting

14

requirements. Id. at 935. The Supreme Court found it significant that Congress would

15

still maintain the ability to block any unwanted suspensions by means of the regular

16

legislative process. Id., n. 8.

17

In Alaska Airlines, Congress enacted an employee protection program as part of

18

the Airline Deregulation Act of 1978 and granted the Secretary of Labor authority to

19

write implementing regulations. 480 U.S. at 678. Similar to the statute at issue in

20

Chadha, the Act included a “report and wait” provision under which the Secretary was

21

required to submit the proposed regulations to committees of both houses of Congress,

22

with the regulations to become effective in 60 days unless blocked by a resolution of

23

either house. Id. at 682. The Supreme Court recognized that eliminating the veto would

24

alter the Act’s balance of power between Congress and the Executive Branch (id. at 685),

25

but found that Congress retained significant oversight even without the veto because it

26

would receive reports of the Secretary’s action, could attempt to influence the Secretary

27

during the waiting period, and could enact proper legislation to block the Secretary’s

28

regulations from going into effect. Id. at 689-90.
- 15 -

1

In Alabama Power Company v. United States Department of Energy, 307 F.3d

2

1300, 1307, n. 5 (11th Cir. 2002), Congress authorized the Secretary of Energy to make

3

fee adjustments under the Nuclear Waste Policy Act of 1982. The Act required the

4

Secretary to conduct annual reviews and evaluations of existing fees and to transmit any

5

proposed changes to Congress. Id. These changes would go into effect in 90 days unless

6

blocked by resolution of either house of Congress. Id. The Eleventh Circuit found the

7

reporting requirements significant even absent a veto because they would give Congress

8

the ability to “keep tabs on the Secretary’s use of administrative discretion.” Id. at 1308.

9

These cases recognize that reporting requirements have oversight value even when

10

severed from the legislative veto to which they originally were attached. The detailed

11

reporting requirements in §204(c)(2) have similar value. They not only inform Congress

12

of the Secretary’s large-tract withdrawals so that Congress can respond through the

13

normal legislative process if warranted, they also ensure that the Secretary will consider

14

environmental and economic impacts of the withdrawal, consider current uses of the

15

withdrawn land, consult with local governments and other impacted individuals, hold

16

public hearings, and consult qualified experts about the known mineral deposits, past and

17

present mineral production, and present and future market demands. See 43 U.S.C.

18

§ 1714(c)(2). These requirements will continue to have significant meaning even after

19

the legislative veto is invalidated.

20

Plaintiffs argue that City of New Haven, 809 F.2d 900, is more applicable here.

21

Doc. 110 at 8-9.

In that case, Congress granted the President authority to defer

22

congressional appropriations to the end of the fiscal year by sending a “special message”

23

to Congress including the rationale for the deferral, its amount and intended duration, and

24

its probable fiscal consequences. 809 F.2d at 901. The presidential deferral was to take

25

effect automatically, but Congress could override it with a resolution of either house. Id.,

26

id., n. 1. The D.C. Circuit acknowledged that Congress touched on the need for effective

27

notices during congressional debate, but agreed with the District Court’s findings based

28

on “overwhelming evidence of congressional intent” that “Congress – had it known that
- 16 -

1

it could not disapprove unwanted impoundments by means of a legislative veto – would

2

never have enacted a statute that conceded impoundment authority to the President.” Id.

3

at 903 (emphasis in original), 907, n. 19. As the Court will discuss more fully below with

4

respect to legislative history, such “overwhelming evidence” is not present here.

5

Plaintiffs further argue that cases that contain a “report and wait” requirement are

6

inapplicable because the FLPMA permits Executive Branch withdrawals to go into effect

7

without a waiting period, so that “without the veto, the notices contribute nothing.”

8

Doc. 73 at 12, n. 10. Plaintiffs are correct that the absence of a waiting period gives

9

Congress less opportunity to influence an executive decision before it takes effect, but

10

this point does not help Plaintiffs. If anything, the fact that the FLPMA allows executive

11

withdrawals to go into effect immediately suggests that influencing executive action or

12

attempting to block it through a legislative veto was less important to Congress in the

13

FLPMA than in the “report and wait” statutes.

14

5.

Distinctions between Grants of Authority.

15

Plaintiffs argue that excising only the veto would nullify the distinction Congress

16

intended to make between small-tract withdrawals (less than 5,000 acres) and large-tract

17

withdrawals, as clearly evidenced by the fact that Congress provided for this authority in

18

separate sections. Doc. 110 at 10-11. It is true that removal of the veto provision negates

19

a key distinction between § 204(c) and § 204(d), but the veto provision is not the only

20

important distinction between these sections.

21

requirements that attach to § 204(c) withdrawals remain and have utility independent of

22

the veto. Additionally, § 204(d) allows for three separate kinds of withdrawals: one for a

23

“desirable resource use” that can be of unlimited duration, one for “any other use” that is

24

limited to 20 years, and one for “a specific use then under consideration by the Congress”

25

that is limited to 5 years. 43 U.S.C. § 1714(d)(1)-(3). Withdrawals under § 204(c), by

26

contrast, can be made only up to 20 years. Although a large-tract withdrawal can be

27

extended for the same period as the original withdrawal, such extensions require review

28

by the Secretary, a repeat of the notice and reporting procedures for the original
- 17 -

As discussed above, the reporting

1

withdrawal, and a determination that the extension is necessary to achieve the original

2

purposes. Id. at § 1714(f). There is no provision, as there is in § 204(d), for unlimited

3

withdrawals. Nor does it appear that Congress intended the Secretary to make large-tract

4

withdrawals as a way to effectuate uses under consideration by Congress as it envisioned

5

the Secretary doing with smaller withdrawals in § 204(d)(3). These distinctions remain

6

even without the veto provision. Thus, severing only that provision would not collapse

7

Congress’s separate intentions with respect to § 204(c) and § 204(d).
6.

8

Emergency Withdrawals.

9

Plaintiffs argue that elimination of the veto provision would effectively eliminate

10

the need for § 204(e), which permits emergency withdrawals for up to three years,

11

because the Secretary could use § 204(c) to withdraw the same land for up to 20 years.

12

Doc. 110 at 11.

13

reporting requirements described above for large-tract withdrawals.

14

§ 1714(c)(2).

15

withdrawals, the Secretary may make emergency withdrawals before preparing the

16

reports. Id. The fact that large-tract withdrawals made under § 204(c) become effective

17

only after the Secretary furnishes detailed reports to Congress means that § 204(c) could

18

not be used to make withdrawals on the same expedited basis as § 204(e) permits.

19

Additionally, public hearings, which are required for all other withdrawals, are not

20

required under § 204(e).

21

significance even if the veto provision is severed from § 204(c).

This overstates the case.

Section 204(c)(2) imposes the detailed
43 U.S.C.

Although the same notice and reports are required for emergency

43 U.S.C. § 1714(h).

Thus, § 204(e) retains separate

22

Plaintiffs make a converse argument that elimination of only the veto provision in

23

§ 204(c) would render the rest of that section superfluous because the Secretary could

24

make large-tract withdrawals for up to 3 years in an emergency situation pursuant to

25

§ 204(e), giving Congress time to enact proper legislation to extend those withdrawals for

26

longer periods. Doc. 110 at 11. This argument is unpersuasive because § 204(e) applies

27

only “if an emergency situation exists and . . . extraordinary measures must be taken to

28

preserve values that would otherwise be lost.” 43 U.S.C. § 1741(e). Absent § 204(c)’s
- 18 -

1

delegation of authority, all non-emergency withdrawals of more than 5,000 acres would

2

require an affirmative act of Congress. This is inconsistent with Congress’s express

3

delineation of “the extent to which the Executive may withdraw lands without legislative

4

action,” particularly in light of the dual purposes of the FLPMA as expressed in § 204(a)

5

and embodied in the Commission Report. See 43 U.S.C. § 1701(a)(4); Doc. 102 at 35.
7.

6

Other Arguments.

7

Plaintiffs’ remaining textual arguments are that neither the 20-year limitation in

8

§ 204(c) nor Congress’s purported ability to reverse the Secretary’s actions through the

9

normal legislative process provides meaningful restraint on executive action absent the

10

veto.

Doc. 110 at 8-9.

Plaintiffs argue that the 20-year limitation is “infinitely

11

renewable,” and, even if not renewed, is essentially a lifetime to those with current

12

investments in the withdrawn area.

13

possibility of reversing the withdrawal through full legislative action is not a viable

14

alternative to a legislative veto because doing so would require the President to agree to

15

override actions of his own Secretary of the Interior. Id. at 9.

Doc. 110 at 8.

Plaintiffs also argue that the

16

The Secretary’s ability under § 204(c) to withdraw public lands for up to 20 years

17

is, undeniably, a significant grant of power that would be made more pronounced absent

18

an immediate mechanism for legislative restraint. Any textual arguments that Congress

19

would not have enacted this grant of authority absent the legislative veto, however, are

20

tempered by the fact that Congress gave the Secretary unfettered authority to make 20-

21

year and other unlimited withdrawals under § 204(d) where public uses of smaller, but

22

still significant, acreage was at stake.5 The ability to extend withdrawals made under

23
5

24
25
26
27
28

The legislative history also shows that Congress increased the duration of largetract withdrawals from 5 to 20 years. House members who commented in floor debates
indicated that they did not want Interior to be constantly saddled with paperwork or
Congress to have the burden of frequent reviews. See, e.g., 122 Cong. Rec. 23,438
(1976) (statement of Rep. Mink) (“[I]f withdrawals are restricted to a maximum duration
of 5 years, the Secretary will be overwhelmed with almost endless paperwork and field
studies to justify, and continually rejustify, land management decisions.”); id. at 23,436
(statement of Rep. Seiberling) (“This provision [requiring review of large-tract
withdrawals subject to a veto every five years] is burdensome, time consuming, and
counterproductive.”).
- 19 -

1

§ 204(c) is also not unlimited. As noted above, the procedures required for such an

2

extension are substantial.

3

The argument that Congress would lack a viable means to reverse a large-tract

4

Executive Branch withdrawal through proper legislation requiring presentment to the

5

President, and therefore would not have granted the Secretary this authority absent the

6

legislative veto, is also unpersuasive. The fact that Congress clearly wanted the ability to

7

take legislative action without presentment does not mean that, faced with the

8

unconstitutionality of that approach, Congress would have withheld its delegation of

9

power even when a proper legislative check on that power would still be available.6

10

Withholding large-tract withdrawal authority from the Executive would have saddled

11

Congress with the responsibility for managing and enacting – through the full legislative

12

process – all withdrawals of land over 5,000 acres. The legislative history discussed

13

below suggests that Congress was not eager to assume such a burden.

14

Moreover, provisions of the FLPMA other than the legislative veto provide

15

meaningful checks on executive authority. These include § 204(a), which restricts large-

16

tract withdrawals to the Secretary or other Senate-approved appointees, § 204(c)(1),

17

which limits large-tract withdrawals to 20 years, and § 204(c)(2), which establishes the

18

detailed notice and reporting requirements discussed above. The Court cannot conclude

19

that Congress would have viewed these restrictions as so lacking in substance that it

20

would have reserved all large-tract withdrawal authority to itself if it could not impose

21
22
23
24
25
26
27

6

As noted in the legislative history section below, the House Committee that
reviewed and approved the House version of the FLPMA contemplated that Congress
could reverse large-tract executive withdrawals through the normal legislative process in
cases where the veto had not been utilized. The Committee noted “each House will have,
for a period of 90 days, the opportunity to terminate all such withdrawals,” and, “[a]bsent
such timely action, it will take an Act of Congress to terminate the withdrawal if the
Secretary does not do so.” H.R. Rep. No. 94-1163, at 6,183 (1976). At least one
Representative also recognized in floor debate that for certain, irrevocable decisions, a
veto may be more essential, but “if land is set aside by the Secretary and exempt from the
Mining Act . . . the land will still be there and Congress at any time can open them up.”
122 Cong. Rec. at 23,454 (statement of Rep. Seiberling).

28
- 20 -

1

the one additional restriction of a legislative veto.

2

D.

Legislative History.

3

Congress enacted the FLPMA as Public Law 94-579 on October 21, 1976. 43

4

U.S.C. § 1714, historical and statutory notes. The legislation came about as a result of

5

bills passed in both the House (H.R. 13777) and the Senate (S. 507) that were brought

6

together by the Committee of Conference. H.R. Rep. No. 94-1724, at 6,228 (Conf. Rep.)

7

(1976). The Senate bill was put forward and enacted in lieu of the House bill, but its

8

language was amended to contain most of the text of the House bill. Id. Significantly,

9

only the House bill contained a legislative veto. Id. at 6,229, sec. 4(d). Additionally,

10

only the House bill provided for repeal of all existing executive withdrawal authority. Id.

11

at 6,237. The conferees adopted both of these provisions, but revised the House’s one-

12

house legislative veto to require a concurrent resolution of both houses. Id., id. at 6,229,

13

sec. 4(d).

14

In support of their argument that Congress would not have enacted § 204(c)

15

without the veto provision, Plaintiffs point to the House Report endorsing the original

16

House Bill, the Conference Report, and the statements of various House members during

17

floor debates. See Docs. 73 at 9; 110 at 14-16; 113 at 20-23. The Court will address each

18

of these sources of legislative history.

19

1.

House Report.

20

Plaintiffs argue that the House Report indicates that “providing for control over

21

large-tract withdrawals was a ‘major objective’ of FLPMA.” Doc. 113 at 20. The House

22

Report was issued on May 15, 1976, by the House Committee on Interior and Insular

23

Affairs to which the original House bill had been referred. H.R. Rep. No. 94-1163, at

24

6,175 (1976). The House Committee stated that one of the “major objectives” of the bill

25

was to “[e]stablish procedures to facilitate Congressional oversight of public land

26

operations entrusted to the Secretary of Interior.” Id. at 6,176, sec. (4). It also noted that

27

“[p]ublic concern over the possibility of excessive disposals of public lands on the one

28

hand and excessive restrictions on the other is reflected in the inclusion of requirements
- 21 -

1

for referral of certain types of actions to the Congress for review,” including

2

“withdrawals and extensions of withdrawals of 5,000 acres or more.” Id. at 6,177.

3

Commenting on the veto provision, the Committee noted that upon receiving notice from

4

the Secretary of withdrawals or extensions totaling 5,000 acres or more, “each House will

5

have, for a period of 90 days, the opportunity to terminate all such withdrawals,” and

6

“[a]bsent such timely action, it will take an Act of Congress to terminate the withdrawal

7

if the Secretary does not do so.” Id. at 6,183.

8

Defendants argue, and the Court agrees, that the House Report does not provide

9

“strong evidence” that the veto was a major objective of the FLPMA. Doc. 115 at 13.

10

The Report provides some evidence that the House would have been averse to a final

11

version of the FLPMA that did not include the veto provision approved in its own bill,

12

but the strength of this evidence is reduced by the fact that the Report does not state that

13

the veto is a major objective of the bill, only that “[e]stablish[ing] procedures to facilitate

14

Congressional oversight of public land operations entrusted to the Secretary” is such an

15

objective.

16

provision specifically, it does so in the context of a number of other “procedural

17

controls,” including that the Secretary must provide notice to Congress, must include

18

with this notice other information as specified in the bill, must promulgate the withdrawal

19

on the record and provide an opportunity for hearings, may segregate lands only for one

20

year before taking definitive action, and may act only through the Secretary and “policy

21

officers in the Office of the Secretary appointed by the President with the advice and

22

consent of the Senate.” Id. at 6,183-84. As noted above, these provisions, independent

23

of the veto, provide strong congressional control on large-tract withdrawals. Taken as a

24

whole, the House Report does not provide “strong evidence” that the veto provision alone

25

was essential to the House’s approval of the delegation of authority in § 204(c).

26

H.R. Rep. No. 94-1163 at 6,176.

Where the Report discusses the veto

The separate and dissenting views of House Committee members Udall and

27

Seiberling cast further doubt on the centrality of the veto.

28

expressed general approval of the bill’s “long overdue” statutory guidelines for federal
- 22 -

Representative Udall

1

land management, but opined that the bill contained “serious flaws.” H.R. Rep. No. 94-

2

1163, at 221, reprinted in Legis. Hist. of the Fed. Land Policy and Mgmt. Act of 1976, at

3

650 (1978) [hereinafter FLPMA Legis. Hist.]; see Doc. 117-3 at 2. “Most specifically,”

4

he stated,

5
6
7
8
9

I disagree with those sections of .the bill which set forth new
procedures for Congressional review of Executive
withdrawals of public lands. While I have always been
strongly in favor of additional oversight of the Department of
Interior by the Congress and this Committee, the simple fact
is that the mechanism of “withdrawal” of public lands from
mineral entry is currently the only defense we have against
mining activity on the public domain.

10

Id. Representative Seiberling, dissenting on behalf of himself and five other House

11

members, similarly took issue with the bill’s limitations on executive withdrawals which

12

he favorably cited as providing needed protection of public lands. Id. at 231, reprinted in

13

FLPMA Legis. Hist., 658; see Doc. 117-3 at 5. He stated “[w]e do not suggest that

14

Congress should not exercise oversight over this withdrawal authority[,]” but that the

15

veto provision and the requirement imposed on the Committee “to examine every

16

proposed new withdrawal over 5,000 acres” would be overly burdensome to Congress

17

and the Interior. Id.

18

2.

Conference Report.

19

Plaintiffs argue that the sentiments of the House Committee are echoed in the

20

Conference Report, but this Report contains even less evidence from which to infer that

21

the veto was an absolute prerequisite to Congress’s delegation of large-tract withdrawal

22

authority. The only mention the Report makes of the veto is to note that the conferees

23

adopted it as part of the House amendments to the Senate Bill and that they revised it to

24

require action from both houses. H.R. Rep. No. 94-1724, at 6,229 (Conf. Rep.). There is

25

no further discussion of the veto from which to conclude that Congress would not have

26

passed § 204(c) without it.

27

The Staff Recommendations of both houses, prepared at the request of the

28

Committee of Conference, shed slightly more light on the analysis surrounding the
- 23 -

1

inclusion of the veto in the revised Senate bill that ultimately became the FLPMA. Staff

2

of Comm. on Conf. of S. 507, 94th Cong., Fed. Land Policy and Mgmt. Act & Natural

3

Res. Lands Mgmt. Act (Comm. Print 1976), reprinted in FLPMA Legis. Hist., at 747-

4

869; see Doc. 117-2 at 2-14. The Staff identified provisions it found consistent with both

5

the House and Senate bills in roman text, provisions it found consistent with the

6

objectives of both houses in italics, and provisions of one house for which it had no clear

7

recommendation in bold. Id., Explanatory Note, reprinted in FLPMA Legis. Hist., at

8

748; see Doc. 117-2 at 3. With the exception of the nine lines containing the veto, the

9

Staff placed all of proposed § 204 in italics, denoting that it was consistent with the

10

objectives of both houses. Id. at 19-22, reprinted in FLPMA Legis. Hist., at 767-770; see

11

Doc. 117-2 at 6-14. The veto provision was printed in bold type, showing that the Staff

12

found § 204(c)’s grant of authority and its various procedural limitations, including the

13

notice and reporting requirements, consistent with the objectives of both houses, but did

14

not reach the same conclusion with respect to the veto. Thus, while the Committee of

15

Conference adopted the House version of § 204(c) that subsequently passed into law,

16

there is no evidence of a strong consensus of both houses that the veto was inextricable

17

from the grant of large-tract withdrawal authority.

18

3.

House Floor Debates.

19

Plaintiffs rely heavily on statements of House members during floor debates held

20

on July 22, 1976, to show that Congress would not have granted the Secretary large-tract

21

withdrawal authority apart from the veto. Representative Melcher, chief sponsor of the

22

House bill, described the veto as “congressional oversight responsibility” and stated that

23

“[s]ince there is now no system of congressional review and congressional oversight of

24

withdrawals, this is the first positive step that Congress has taken to . . . exercise that

25

responsibility.” 122 Cong. Rec. 23,452 (1976); see Doc. 73 at 9. When debating an

26

amendment to raise the acreage for withdrawals triggering congressional review from

27

5,000 to 50,000 acres, and the duration from 5 to 25 years (id. at 23,440), Representative

28

Steiger stated even more strongly that “there were those of us – and I include myself –
- 24 -

1

who felt that the Secretary should have the opportunity of making no withdrawals

2

without the review of Congress” and that “5,000 acres already represents a strong

3

compromise.” Id. at 23,452. These sentiments were echoed by Representative Santini: “I

4

think it is a fair and rational compromise to set a 5,000-acre ceiling. . . . I think it is

5

imperative that the position of the [drafting] committee be maintained.” Id. at 23,453.

6

Similarly, Representative Skubitz stated that “[o]ne of the most important reasons for

7

adopting this bill is that it provides for congressional oversight and control over an

8

executive agency which, at present, is free to act mostly of its own accord,” and that “[i]t

9

is essential that Congress be informed of, and able to oppose if necessary, withdrawals

10

which it determines not to be in the best interests of all the people.” Id. at 23,437.

11

Other House members were less supportive of placing constraints on executive

12

withdrawals, in general. Representative Forsythe expressed the view that the House bill

13

“bends too far” and would result in reluctance on the part of Interior to make withdrawals

14

as well as open up the possibility that “the mining industry will descend on Congress

15

every time a withdrawal is proposed to urge that it be disapproved.” Id. at 23,440.

16

Representative Fenwick expressed the view that “[s]ince the purpose of withdrawals is to

17

protect the lands that belong to the people of this country, it would seem to me that the

18

granting of permission to use the land ought to be the area where Congress raises

19

questions, and that the protection and preservation of those lands should be encouraged

20

. . . and not made difficult.”

21

recognized that “a withdrawal is basically a protective mechanism” and called the review

22

provisions in § 204 one of the “most objectionable provisions in the legislation.” Id. at

23

23,436. Representative Mink, who proposed the above-cited amendment, opposed both

24

the 5,000 acre limit and the then-proposed time duration of five years because she

25

believed these would place an unworkable burden both on the Secretary and on the House

26

and Senate Interior Committees. Id. at 23,438.

Id. at 23,452.

Representative Sieberling similarly

27

Plaintiffs point out that Representative Mink and the supporters of her amendment

28

who generally espoused less oversight never directly opposed the veto provision or
- 25 -

1

recommended removing it. Doc. 113 at 23, n. 15. They quote Representative Mink as

2

saying “I most certainly do not object to congressional oversight in withdrawal matters,”

3

and to Representative Seiberling as saying that, under the proposed amendment,

4

“withdrawals would still be subject to disapproval by a resolution of either House.” Id.

5

(citing 122 Cong. Rec. 23,436, 23,438).

6

members would have opposed the delegation of large-tract withdrawal authority had they

7

foreseen the need to remove the veto as constitutionally impermissible. It appears,

8

instead, that they were attempting to appease those who would disfavor any less restricted

9

delegation of authority while still trying to raise their own objections. This is clear from

10

Representative Mink’s statement that “[i]f Congress absolutely deems it necessary to

11

exercise control over the withdrawal system, I suggest that we limit review to

12

withdrawals involving 25,000 acres or more, and establish a duration period of 15 years.”

13

122 Cong. Rec. 23,438. Ultimately the House adopted a compromise in which it kept the

14

5,000 acre limit, but extended the permissible withdrawal period to 20 years.

This does not mean, however, that these

15

The floor debates clearly show that some members of the House were unwilling to

16

consider allowing the Secretary to make withdrawals of more than 5,000 acres without

17

some form of meaningful oversight and, presumably, would not have consented to a

18

delegation of such authority absent the veto provision, while other members, such as

19

Representative Seiberling, expressed the value of allowing the Secretary to make such

20

withdrawals for the protection of public lands and saw this as a more efficient and

21

effective means of federal land management than relying on Congress to enact full

22

legislation. See, e.g., 122 Cong. Rec. at 23,453 (statement of Rep. Seiberling) (“The

23

purpose of withdrawal by the Secretary, without waiting for the lengthy process of

24

legislation, is to be able to act promptly to set aside lands.”). Whether these members, or,

25

more accurately, whether a majority of the House, would have found this delegation too

26

important to eliminate cannot be answered from these isolated comments.

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The statements of individual representatives ultimately carry less weight than

28

Committee Reports in analyzing Congress’s intent. Garcia v. United States, 469 U.S. 70,
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1

76 (1984) (“[W]e have repeatedly stated that the authoritative source for finding the

2

Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the

3

considered and collective understanding of those Congressmen involved in drafting and

4

studying proposed legislation.’”) (internal citations omitted). Here, however, the House

5

Report is not particularly helpful in isolating the significance of the veto provision in

6

relation to the other limitations contained in the FLPMA and in § 204 in particular. The

7

Conference Report merely reflects that the conferees adopted the House amendments that

8

included the legislative veto, but provides no discussion from which to conclude that

9

elimination of the veto alone would have caused Congress to withhold large-tract

10

withdrawal authority. See Gulf Oil Corp. v. Dyke, 734 F.2d 797, 804 (Temp. Emer. Ct.

11

App. 1984) (stating that the mere reference to and description of vetoes in legislative

12

reports is “not helpful in determining what Congress would have intended had it known

13

the legislative vetoes were invalid.”).

14

Plaintiffs argue that this case is like City of New Haven in which the D.C. Circuit

15

took into account the “numerous statements of individual legislators urging the passage

16

of legislation to control presidential impoundments” and agreed with the lower court that

17

the “‘raison d’etere’ of the entire legislative effort was to assert control over presidential

18

impoundments.” 809 F.2d at 907 (emphasis in original). Here, however, the evidence

19

from the pre-FLPMA Commission Report, the text and structure of the FLPMA, the

20

statements of House members, and the Committee Reports all reflect that the FLPMA

21

was equally concerned with granting withdrawal authority to the Executive as it was with

22

setting proper limits and procedural safeguards on the exercise of that authority.

23

Additionally, unlike City of New Haven, in which the court noted that “[n]owhere in the

24

legislative history is there the slightest suggestion that the President be given statutory

25

authority to defer funds without the possible check of at least a one-House veto” (id. at

26

908), several House members addressing the FLPMA spoke of the need to support rather

27

than limit the Executive’s ability to withdraw public lands, and the Senate put forth its

28

own bill that neither repealed the Executive’s existing authority nor included a legislative
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1

veto. Upon this evidence, the Court cannot conclude, as the court did with respect to the

2

veto in City of New Haven, that the veto in § 204(c) of FLPMA is inseparable from the

3

remainder of that section.

4

E.

Whether § 204(c) is Fully Operative without the Veto.

5

As stated in Chadha, the presumption of severability attaches not only where there

6

is a severability clause, but also where “what remains after severance ‘is fully operative

7

as a law.’” 462 U.S. at 932 (internal citation omitted). Plaintiffs argue that § 204(c)

8

would not function in the manner Congress intended but for the veto. See, e.g., Doc. 73

9

at 10.

Plaintiffs argue that allowing the Secretary to make large-tract withdrawals

10

without the legislative veto would fundamentally conflict with Congress’s intent by

11

eliminating the FLPMA’s “most significant” constraint on executive withdrawals. See,

12

e.g., Doc. 73 at 8 (quoting Prof. Robert L. Glicksman, Severability and the Realignment

13

of the Balance of Power over the Public Lands: The Federal Land Policy and

14

Management Act, 36 Hastings L.J. 1, 36 (1984)). The Court does not agree.

15

The FLPMA will remain fully operative absent the legislative veto. As courts

16

have found in other severability cases, the notice and reporting requirements of the

17

FLPMA will continue to function and provide both substantive and procedural restraints

18

on executive action. As discussed above, the various provisions of the FLPMA will

19

continue to have distinct meaning after the veto is invalidated. Indeed, as Defendants

20

note, the Secretary has exercised large-tract withdrawal authority at least 82 times in the

21

35 years since the FLMPA was enacted and Congress has never exercised the veto once,

22

confirming that the FLPMA functions effectively with no veto. Doc. 101 at 25; see Decl.

23

of Jeffrey O. Holdren, Doc. 101 at 90-92, ¶¶ 4, 6.

24

III.

Summary and Conclusion.

25

Given the FLPMA’s severability clause and the fact that the statute remains fully

26

operative without the legislative veto, the Court presumes that the veto is severable from

27

the remainder of § 204(c). Chadha, 462 U.S. at 932. Plaintiffs have not presented the

28

“strong evidence” required to overcome this presumption. Alaska Airline, 480 U.S. at
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1

686. The Court therefore holds that the veto is severable, and that the Secretary’s large-

2

tract withdrawal authority remains in place even after invalidation of the legislative veto.

3

“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit

4

the solution to the problem . . . [and] to enjoin only the unconstitutional applications of a

5

statute while leaving other applications in force.” Ayotte, 546 U.S. at 328-29.

6

The Court invalidates only the lines of § 204(c)(1) beginning with the statement:

7

“and the withdrawal shall terminate and become ineffective at the end of ninety days . . .

8

if the Congress has adopted a concurrent resolution stating that such House does not

9

approve the withdrawal. . . .” The preceding part of that section, which grants the

10

Secretary large-tract withdrawal authority, and all of § 204(c)(2), setting forth detailed

11

reporting requirements, remain in effect.

12
13

IT IS ORDERED:
1.

DGC) and Doc. 90) are denied.

14
15

2.

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19

Defendants’ cross motions for summary judgment (Docs. 101 and 102) are
granted.

16
17

Plaintiffs’ motions for partial summary judgment (Doc. 73 (3:12-cv-08038

3.

Defendants’ motion for leave to file supplemental citations (Doc. 128) is
granted. The Clerk is directed to file the document lodged as Doc. 129.

Dated this 20th day of March, 2013.

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