Petition for Writ of Certiorari — National Mining Association, Petitioner v. Ryan Zinke, Secretary of the Interior, et al.
Supreme Court briefMar 9, 2018
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No. _________
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In The
Supreme Court of the United States
-----------------------------------------------------------------NATIONAL MINING ASSOCIATION,
Petitioner,
v.
RYAN ZINKE,
SECRETARY OF THE INTERIOR, ET AL.,
Respondents.
-----------------------------------------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI
-----------------------------------------------------------------KATIE SWEENEY
General Counsel
NATIONAL MINING ASSOCIATION
101 Constitution Ave., NW
Washington, DC 20001
R. TIMOTHY MCCRUM
Counsel of Record
THOMAS A. LORENZEN
ELIZABETH B. DAWSON
CROWELL & MORING LLP
1001 Pennsylvania Ave., NW
Washington, DC 20004
(202) 624-2500
rmccrum@crowell.com
Counsel for National
Mining Association
March 9, 2018
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
In a provision of the Federal Land Policy and Management Act of 1976, Congress delegated to the United
States Department of the Interior authority to withdraw, for up to 20 years, large tracts of federal lands
from availability for mineral development under the
Mining Law of 1872, as amended. Congress included in
the same provision a right of legislative veto over any
large withdrawal, but all now agree the legislative veto
violates the Presentment Clause.
The question presented is:
Can Congress’s delegation to the Department of
the Interior of withdrawal authority over large tracts
of land survive without the legislative veto right that
Congress included as a check on the exercise of that
authority?
ii
PARTIES TO THE PROCEEDINGS
Petitioner National Mining Association was the
Appellant in Ninth Circuit No. 14-17350. The Arizona
Utah Local Economic Coalition and Metamin Enterprises USA, Inc. were Appellants in consolidated case
No. 14-17351. The American Exploration & Mining Association was Appellant in consolidated case No. 1417352. Gregory Yount was Appellant in consolidated
case No. 14-17374.
Respondents Ryan Zinke, Secretary of the Interior;
United States Department of the Interior; Michael
Nedd, Acting Director, Bureau of Land Management;
Bureau of Land Management; George E. Perdue, Secretary of Agriculture; United States Department of
Agriculture; and United States Forest Service were
Appellees in the consolidated appeals. Grand Canyon
Trust, Sierra Club, National Parks Conservation Association, Center for Biological Diversity, and Havasupai
Tribe were Intervenor-Appellees in the consolidated
appeals.
RULE 29.6 STATEMENT
The National Mining Association states that it has
no parent corporation, and there is no publicly held
company that owns 10% or more of its stock.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
PARTIES TO THE PROCEEDINGS ...................
ii
RULE 29.6 STATEMENT ....................................
ii
TABLE OF AUTHORITIES ................................. vii
OPINIONS BELOW.............................................
5
JURISDICTION ...................................................
5
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...........................................
5
STATEMENT .......................................................
6
I.
STATUTORY BACKGROUND ..................
6
II.
FACTUAL BACKGROUND .......................
8
III.
PROCEEDINGS BELOW .......................... 10
A. District Court Opinion ........................ 10
B. Ninth Circuit Opinion ......................... 10
REASONS FOR GRANTING THE PETITION ....
11
I.
THE NINTH CIRCUIT OVERLOOKED A
CRITICAL ELEMENT OF THIS COURT’S
ANALYTICAL FRAMEWORK FOR DETERMINING THE SEVERABILITY OF A
LEGISLATIVE VETO ................................ 14
II.
REVIEW IS WARRANTED TO CLARIFY
THE CORRECT SEVERABILITY STANDARD AND REVERSE THE NINTH CIRCUIT’S IMPERMISSIBLE RECRAFTING
OF FLPMA ................................................ 16
iv
TABLE OF CONTENTS – Continued
Page
A. The Ninth Circuit Ignored the Plain
Language of FLPMA Reflecting the
Careful Balance Congress Struck Between Executive and Legislative Power
in Delegating Limited Large-Scale
Withdrawal Authority ......................... 20
1. FLPMA Section 204 Prescribes the
Only Conditions Acceptable to Congress for Large-Scale Withdrawal
Authority, Including the Strong Congressional Oversight a Legislative
Veto Provides .................................. 20
2. Congress Legislated Its Intent in
FLPMA’s Policy Statement and Abrogation of Midwest Oil .................. 23
3. FLPMA’s Severability Clause Requires That the Entirety of the Relevant “Provision” Be Severed ......... 25
B. The Ninth Circuit Disregarded the
Structural Context of the Legislative
Veto That Demonstrates Congress Intended Large-Scale Withdrawal Authority to Stand or Fall with It ........... 26
C. The Ninth Circuit Misinterpreted
FLPMA’s Legislative History .............. 29
1. FLPMA – Including the Legislative
Veto – Was Congress’s Reaction to
an Executive Branch Riding Roughshod over the Property Clause ........ 30
v
TABLE OF CONTENTS – Continued
Page
2. The Ninth Circuit Erroneously
Attributed Conclusive Weight to
Statements Disagreeing with What
Ultimately Became the Law ........... 32
D. The Separation of Powers and Property Clause Concerns Implicated Here
Reinforce the Importance of Removing
Large-Scale Withdrawal Authority Along
with the Veto ....................................... 34
III.
THE NINTH CIRCUIT’S ERROR HAS
FAR-REACHING IMPLICATIONS FOR
THE MANAGEMENT OF FEDERAL LAND
IN THE UNITED STATES, WARRANTING THE COURT’S REVIEW ................... 37
CONCLUSION..................................................... 41
APPENDIX
Ninth Circuit Opinion ................................................1a
District Court Opinion .............................................66a
District Court Order Denying Plaintiffs’ Motion
for Reconsideration .............................................109a
District Court Order Denying Motion for Final
Judgment .............................................................128a
District Court Order on Summary Judgment
Motions ................................................................137a
District Court Order Denying Motions to Dismiss ......................................................................202a
vi
TABLE OF CONTENTS – Continued
Page
District Court Judgment ........................................271a
FLPMA Section 102 (43 U.S.C. § 1701) ..................272a
FLPMA Section 204 (43 U.S.C. § 1714) ..................275a
FLPMA Section 704(a) (90 Stat. 2792) ..................283a
FLPMA Section 707 (90 Stat. 2794).......................284a
Declaration of Dr. Karen Wenrich ..........................285a
vii
TABLE OF AUTHORITIES
Page
CASES
Ala. Power Co. v. U.S. Dep’t of Energy, 307 F.3d
1300 (11th Cir. 2002) ...............................................27
Alaska Airlines, Inc. v. Brock, 480 U.S. 678
(1987) ............................................................... passim
City of New Haven, Conn. v. United States, 809
F.2d 900 (D.C. Cir. 1987) ............................. 24, 33, 34
Cont’l Can Co. v. Chi. Truck Drivers Inc., 916
F.2d 1154 (7th Cir. 1990) .........................................29
Ctr. for Biological Diversity v. Salazar, 706 F.3d
1085 (9th Cir. 2013) .................................................39
Dorchy v. Kansas, 264 U.S. 286 (1924) .......................27
Hamad v. Gates, 732 F.3d 990 (9th Cir. 2013) ...........10
Havasupai Tribe v. Provencio, 876 F.3d 1242 (9th
Cir. 2017) .................................................................39
INS v. Chadha, 462 U.S. 919 (1983) ....... 2, 3, 10, 19, 27
Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998) .............29
Kidd v. U.S. Dep’t of Interior, 756 F.2d 1410 (9th
Cir. 1985) .................................................................35
Miller v. Albright, 523 U.S. 420 (1998) ................. 19, 22
Nat’l Mining Ass’n v. Zinke, 877 F.3d 845 (9th
Cir. 2017) ............................................................... 4, 5
Nguyen v. INS, 533 U.S. 53 (2001) ................. 21, 22, 23
Planned Parenthood of Ctr. Mo. v. Danforth, 428
U.S. 52 (1976) .................................................... 17, 26
viii
TABLE OF AUTHORITIES – Continued
Page
Thomas v. Union Carbide Agric. Products Co.,
473 U.S. 568 (1985) .................................................26
Union Station Assocs., LLC v. Puget Sound Energy, Inc., 238 F. Supp. 2d 1218 (W.D. Wash.
2002) ........................................................................20
United States v. California, 332 U.S. 19 (1947) .........35
United States v. Locke, 471 U.S. 84 (1985) ........... 34, 35
United States v. Midwest Oil Co., 236 U.S. 459
(1915) ............................................................... passim
United States v. Shumway, 199 F.3d 1093 (9th
Cir. 1999) .................................................................37
STATUTES
8 U.S.C. § 1421(d) ........................................................22
16 U.S.C. § 1531 et seq. ...............................................39
28 U.S.C. § 1254(1) ........................................................5
30 U.S.C. § 22 ................................................................8
30 U.S.C. § 612 ............................................................39
33 U.S.C. § 1251 et seq. ...............................................39
42 U.S.C. § 300f et seq. ................................................39
42 U.S.C. § 4332 et seq. ...............................................39
42 U.S.C. § 7401 et seq. ...............................................39
43 U.S.C. § 1701(a)(4) ...................................................7
43 U.S.C. § 1701 et seq. ....................................... passim
43 U.S.C. § 1712(e)(3) ..................................................38
ix
TABLE OF AUTHORITIES – Continued
Page
43 U.S.C. § 1714(c) .............................................. passim
43 U.S.C. § 1714(d)-(e) ........................................ passim
43 U.S.C. § 10222(a)(4) ...............................................27
54 U.S.C. § 300101 et seq. ...........................................39
Pub. L. No. 88-606, § 2, 78 Stat. 982 (1964) .................6
Pub. L. No. 94-579, § 704(a), 90 Stat. 2743 (1976).........7
Pub. L. No. 94-579, § 707, 90 Stat. 2743 (1976) .........21
Pub. L. No. 98-406, 98 Stat. 1485 (1984) ......................9
Pub. L. No. 414, § 406, 66 Stat. 163, 281 (1952) ........22
CONSTITUTIONAL PROVISIONS
Property Clause, U.S. Const. art. IV, § 3, cl. 2 .... 1, 5, 6, 35
OTHER AUTHORITIES
122 Cong. Rec. 23,436 (1976) .................... 18, 31, 32, 33
74 Fed. Reg. 35,887 (July 21, 2009) ..............................9
77 Fed. Reg. 22,563 (Jan. 18, 2012) ..............................9
80 Fed. Reg. 57,635 (Sept. 24, 2015)...........................38
Charles F. Wheatley, Jr., Withdrawals under the
Federal Land Policy Management Act of 1976,
21 Ariz. L. Rev. 311 (1979) ................................ 30, 35
David H. Getches, Managing the Public Lands:
The Authority of the Executive to Withdraw
Lands, 22 Nat. Resources J. 279 (1982) .................36
x
TABLE OF AUTHORITIES – Continued
Page
George Coggins & Robert Glicksman, The legislative veto in public natural resources law –
Severance, 1 Pub. Nat. Resources L. § 4:3 (2d
ed. 2011) ..................................................................37
H.R. Rep. No. 94-1163 (1976) ............................... 24, 31
Robert L. Glicksman, Severability and the Realignment of the Balance of Power over the Public Lands: The Federal Land Policy and Land
Management Act, 36 Hastings L.J. 1 (1984) ...........36
U.S. Public Land Law Review Comm’n, One
Third of the Nation’s Land: A Report to the
President and to Congress (1970) .............................6
1
PETITION FOR A WRIT OF CERTIORARI
This case presents an important question of law
affecting the availability of hundreds of millions of
acres of federal land for mineral and other development: whether the Ninth Circuit erred in applying the
test in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685
(1987), for determining when an unconstitutional legislative veto provision is severable from the remainder
of the statutory provision to which it attached, and
thus whether the remainder of that provision may
stand or must fall. Here, the effect of the lower court’s
misapplication of Alaska Airlines has been to revive an
implied, unlimited delegation of withdrawal authority
to the Executive flatly contrary to Congress’s express
rescission of all such implied delegations in the Federal
Land Policy and Management Act of 1976, 43 U.S.C.
§ 1701 et seq. (“FLPMA”). This Court’s review is imperative not only to reaffirm Alaska Airlines, but also to
effectuate Congress’s plain intent in FLPMA to rescind
any broad delegations of withdrawal authority to the
Executive and replace them with carefully circumscribed withdrawal authorities.
The U.S. Constitution’s Property Clause vests
Congress with power to dispose of and regulate federal
lands. All Executive Branch authority in that regard
devolves from Congress. In 1915, this Court acknowledged that much of Congress’s Property Clause power
had been implicitly delegated to the Executive due to
congressional inaction and acquiescence almost since
the Nation’s founding. See United States v. Midwest Oil
Co., 236 U.S. 459, 471 (1915) (recognizing Executive
2
Branch’s implied authority to withdraw federal lands
from availability for mineral and nonmineral development, subject to Congress’s right to disaffirm). Among
those implied delegations was the essentially unlimited authority of the Department of the Interior (“Interior”) to withdraw public lands from availability for
mineral resource development (“location,” in mining
parlance) under the Mining Law of 1872.
Sixty-one years later, Congress finally reasserted
its Property Clause power in a rather extraordinary
manner. In the text of FLPMA, Congress abrogated
Midwest Oil, expressly rescinded any implied delegations to the Executive of withdrawal authority over
federal lands, and enacted three carefully circumscribed delegations of authority to Interior: one for
emergency withdrawals for up to three years; another
for withdrawals of lands up to 5,000 acres indefinitely;
and the third for lands over 5,000 acres for up to 20
years. Unlike the first two, which Interior could exercise unilaterally, Congress subjected the third to strict
congressional oversight: within the statutory provision
effecting the delegation, FLPMA section 204(c), 43
U.S.C. § 1714(c), Congress required the Secretary to report any large withdrawals to Congress and specifically retained its authority to override any large
withdrawal through legislative veto. The era of unlimited Executive authority to withdraw public lands was
over.
Then, in INS v. Chadha, 462 U.S. 919 (1983), this
Court held that legislative veto provisions violate the
Constitution’s Presentment Clause. All now agree
3
that, under Chadha, the legislative veto in section
204(c) is unconstitutional. What, then, becomes of the
remainder of that provision, which but for the legislative veto – Congress’s chosen remedy against Executive impingement on Congress’s authority over federal
lands – seemingly grants Interior essentially unlimited and renewable authority to withdraw from location huge swaths of federal land?
The answer under Alaska Airlines is abundantly
clear: the delegation of withdrawal authority for lands
over 5,000 acres fails along with the legislative veto.
Alaska Airlines requires courts to “consider the nature
of the delegated authority that Congress made subject
to a veto,” to be attentive to instances where, as here,
“the absence of the veto necessarily alters the balance
of powers” between the branches of government, and to
remember that “[s]ome delegations of power to the Executive . . . may have been so controversial or so broad
that Congress would have been unwilling to make the
delegation without a strong oversight mechanism.”
480 U.S. at 685. Given that Congress specifically rescinded any implied delegation of withdrawal authority (expressly abrogating this Court’s decision in
Midwest Oil) and, for lands over 5,000 acres, expressly
conditioned its new delegation of authority upon retention of a legislative veto, it is hard to fathom how the
delegation language of section 204(c) can survive absent the veto.
The Ninth Circuit went another direction entirely,
reasoning that “the ordinary process of legislation” –
that is, Congress’s power to enact a new law any time
4
Interior makes a land withdrawal to which Congress
objects – is “an obvious substitute for the legislative
veto.” Nat’l Mining Ass’n v. Zinke, 877 F.3d 845, 862
(9th Cir. 2017). Were this true, it would always be true
for all laws containing unconstitutional legislative
veto provisions, obviating a need for an Alaska Airlines
inquiry. But the fallacy in the Ninth Circuit’s reasoning is evident: the legislative veto contemplated by section 204(c) would have required only a joint resolution
of disapproval passed by a majority vote of each house;
as the court acknowledged, a new law, on the other
hand, would necessarily be subject to the possibility of
a presidential veto, which could be overcome only by a
two-thirds vote of each house. Id. Thus, the “ordinary
process of legislation” is by no means an “obvious substitute for the legislative veto.” It simply requires
much more of Congress to set aside an objectionable
withdrawal without the veto.
Moreover, the Ninth Circuit’s decision “necessarily
alters the balance of powers” between the Legislative
and Executive Branches, shifting it decisively back toward the Executive notwithstanding Congress’s express intent in FLPMA to reclaim its powers under the
Property Clause and grant the Executive only limited
delegated authority subject to congressional oversight.
This Court should grant certiorari to reaffirm the
rule in Alaska Airlines for determining when a statutory provision may survive without the legislative veto
Congress required, to effectuate Congress’s clear intent in FLPMA to reclaim its power under the Property
Clause, and to ensure the availability of hundreds of
5
millions of acres of federal lands for valuable mineral
development under the laws enacted by Congress.
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OPINIONS BELOW
The opinion of the court of appeals is reported at
877 F.3d 845 (9th Cir. 2017), and reprinted in the Appendix (“App.”) at 1a. The opinion of the district court
is reported at 933 F. Supp. 2d 1215 (D. Ariz. 2013), and
reprinted at App. 66a.
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JURISDICTION
The judgment of the court of appeals was entered
on December 12, 2017. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
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CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The Property Clause of the U.S. Constitution, art.
IV, § 3, cl. 2, provides in relevant part:
The 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. . . .
6
Relevant statutory provisions from the Federal
Land Policy and Management Act of 1976, 43 U.S.C.
§ 1701 et seq., are reproduced at App. 272a-284a.
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STATEMENT
I.
STATUTORY BACKGROUND
The Constitution’s Property Clause vests Congress with plenary authority over management and
regulation of the federal public lands. U.S. Const. art.
IV, § 3, cl. 2. Throughout the Nation’s early history,
though, the Executive Branch carried out “hundreds”
of withdrawals under what this Court described as
“implied” authority conferred through “the acquiescence of Congress.” Midwest Oil Co., 236 U.S. at 462,
478, 482.
Eventually, Congress commissioned a “comprehensive review” of the public land laws and agency implementation practices to “determine whether and to
what extent revisions thereof are necessary.” Pub. L.
No. 88-606, § 2, 78 Stat. 982 (1964); App. 10a-11a. The
Public Land Law Review Commission’s resulting report observed that the Executive used withdrawals “in
an uncontrolled and haphazard manner.” See Ninth
Circuit Excerpts of Record (“ER”) 94.1 The Commission
recommended that “Congress should not delegate
broad authority” for “withdrawals and reservations”
1
U.S. Public Land Law Review Comm’n, One Third of the
Nation’s Land: A Report to the President and to Congress (1970).
7
that “limit[ ] permissible types of uses on tremendous
acreages of public land in order to further administrative land policies.” ER93. Instead, as “an agent of Congress,” the Executive’s “authority should be clearly
defined,” “limited and exercised only within prescribed
statutory guidelines.” ER98-99.
Congress took these recommendations to heart in
1976 when passing FLPMA, constraining Executive
withdrawal authority in several ways. First, Congress
expressly sought to “delineate the extent to which the
Executive may withdraw lands without legislative action.” 43 U.S.C. § 1701(a)(4); App. 272a. FLPMA thus
“repeal[ed]” 29 statutes and expressly revoked the “implied authority of the President to make withdrawals
and reservations resulting from acquiescence of the
Congress (U.S. v. Midwest Oil Co., 236 U.S. 459).” Pub.
L. No. 94-579, § 704(a), 90 Stat. 2743, 2792 (1976); App.
283a. Instead, and “only in accordance with the provisions and limitations” provided, Congress allowed the
Secretary to make “emergency” withdrawals under certain circumstances for no more than three years, and
to withdraw lands of less than 5,000 acres without legislative oversight. 43 U.S.C. § 1714(d)-(e); App. 279a280a. For large withdrawals – those of more than 5,000
acres – Congress required the Secretary to report to
Congress, and Congress retained the authority to override the withdrawal through legislative veto. 43 U.S.C.
§ 1714(c); App. 276a-279a.
This withdrawal authority extends to lands subject to the Mining Law of 1872, as amended (the “general mining laws”), including not only land managed
8
by Interior’s Bureau of Land Management (“BLM”) but
also the U.S. Forest Service. The general mining laws
declare “all valuable mineral deposits in [federal
lands] . . . shall be free and open to exploration and
purchase. . . .” 30 U.S.C. § 22; see also App. 9a-10a (discussing Congress’s exercise of its Property Clause authority through the general mining laws).
Mineral withdrawals greatly restrict the permissible uses of federal lands. Given the vast amount of
federal land managed by BLM and the Forest Service,2
these withdrawals significantly reduce domestic mineral production and associated economic activity.
II.
FACTUAL BACKGROUND
This case concerns Interior’s withdrawal of over
one million acres of mineral lands in northern Arizona,
ostensibly pursuant to FLPMA section 204(c). See App.
8a-9a. Significantly, the withdrawal includes land “expected to be [the] major source of future uranium production within the United States.” Warren I. Finch,
Descriptive Model of Solution-Collapse Breccia Pipe
Uranium Deposits, in Developments in Mineral Deposit Modeling 33, 33 (James D. Bliss ed., 1992) (U.S.
Geological Survey Bulletin 2004), https://pubs.usgs.gov/
bul/2004/report.pdf. The uranium deposit’s characteristics allow development with a far smaller environmental footprint than alternatives. Congress has
2
See Carol Hardy Vincent, et al., Cong. Research Serv., Federal Land Ownership: Overview and Data Summary (Mar. 3,
2017), https://fas.org/sgp/crs/misc/R42346.pdf.
9
therefore repeatedly left this area open for development, while restricting other potential areas in the
vicinity of Grand Canyon National Park. See, e.g., Arizona Wilderness Act of 1984, Pub. L. No. 98-406, 98
Stat. 1485, 1488, 1490, 1494 (1984) (identifying certain
lands for Wilderness designation but specifically releasing for multiple-use management the federal lands
the Secretary withdrew here).
On July 21, 2009, Interior published a notice of intent to withdraw approximately one million acres of
federal land near the Grand Canyon from the location
and entry of new mining claims under the general mining laws for up to 20 years, subject to valid existing
rights. 74 Fed. Reg. 35,887. Interior then prepared an
Environmental Impact Statement under the National
Environmental Policy Act (“NEPA”). ER17-18. On January 9, 2012, the then-Secretary issued Public Land
Order 7787, withdrawing the lands for 20 years. ER6987; 77 Fed. Reg. 22,563 (Jan. 18, 2012). This withdrawal occurred over the objection of the BLM Advisory Committee established under FLPMA. ER161.
Contemporaneously, Interior provided Congress
notices and information intended to comply with
FLPMA sections 204(c)(1) and (2), initiating the 90-day
period for Congress to terminate the withdrawal
through legislative veto. See ER19. Lacking legislative
veto authority, the Chair of the U.S. House of Representatives Natural Resources Committee expressed
strong opposition to the withdrawal. Letter from Rep.
Doc Hastings & Rep. Rob Bishop to Kenneth Salazar,
Sec’y of the Interior, https://naturalresources.house.gov/
10
uploadedfiles/05_23_12_hastings_ltr_to_sec_salazar.pdf.
The withdrawal remains in effect.
III. PROCEEDINGS BELOW
A. District Court Opinion
Four lawsuits challenged Interior’s withdrawal.
Relevant here, the U.S. District Court for the District
of Arizona agreed with both parties that the FLPMA
legislative veto “permitting Congress to terminate a
withdrawal by concurrent resolution is unconstitutional” under this Court’s decision in Chadha. The
court ruled, however, that the legislative veto language
was severable from the remainder of the statutory provision, leaving the Secretary with unconstrained largescale withdrawal authority. App. 67a-68a, 70a-71a.
B. Ninth Circuit Opinion
The Ninth Circuit affirmed. It posed the question
presented as whether Congress would have preferred
“no statute at all” to the provision with the legislative
veto excised. App. 32a-33a (quoting Hamad v. Gates,
732 F.3d 990, 1001 (9th Cir. 2013)). In finding the answer to that question to be “no,” the appellate court relied upon FLPMA’s severability clause and what the
court perceived as Congress’s “recognized desire for executive authority for withdrawals of federal lands from
new mining claims.” Id. Further, the court cited the
ability of Congress to pass legislation “vacating the
withdrawal, presenting the proposed legislation to the
President, and (if necessary) overriding the President’s
11
veto.” App. 27a. The Ninth Circuit thus excised from
the provision, section 204(c)(1), only the sentence containing the legislative veto language; it left intact the
remainder of that provision, including the language
delegating large-scale withdrawal authority (now, of
course, without the constraint on excess previously
provided by the legislative veto).
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REASONS FOR GRANTING THE PETITION
The appellate court’s decision effectively restores
to the Executive the unlimited, large-scale withdrawal
authority Congress specifically rescinded in FLPMA.
The appellate court accomplished this by misapplying
this Court’s ruling in Alaska Airlines regarding the
severability of statutory legislative veto language from
the substantive provisions to which that language attaches. This case provides the Court its first opportunity to review the continued validity of the largescale withdrawal authority in FLPMA in the absence
of the undisputedly unconstitutional legislative veto
embedded within the delegation, the opportunity to reaffirm the rule of Alaska Airlines, and the opportunity
to ensure the beneficial public use of hundreds of millions of acres of federal lands in accord with Congress’s
express intent.
In the decision below, the Ninth Circuit never evaluated whether large-scale withdrawal authority unchecked by the legislative veto would “function in a
manner consistent with the intent of Congress” and
12
never considered both the “importance of the [legislative] veto in the original legislative bargain” and the
nature of the “delegated authority” at issue. Alaska
Airlines, 480 U.S. at 685. Instead, it applied a standard
without foundation in this Court’s precedent –
whether Congress could pass legislation undoing any
future objectionable withdrawal – and misapplied this
Court’s jurisprudence regarding the importance of congressional intent when considering the severability of
a legislative veto. First, the rationalization that the existence of a standard legislative remedy supports severability is nonsensical. Under that reasoning, no court
would ever find an unconstitutional legislative veto
unseverable. More troubling, that observation is akin
to stating that because Congress can always override
an ultra vires Executive action through legislation, the
Judiciary need never pass on the legality of that action.
Second, the analysis cannot simply turn on whether
Congress would have enacted a wide-ranging, multipurpose, foundational statute such as FLPMA without
a legislative veto applying only to one subsection; the
answer would almost always be “yes.” Rather, the relevant question is whether, knowing the legislative veto
is unconstitutional, Congress would have delegated
the particular large-scale land withdrawal authority
subject to it.3
3
Even with this withdrawal authority severed from FLPMA,
Interior would retain short-term large-scale withdrawal authority.
13
As all parties, the District Court, and the Ninth
Circuit agree, the legislative veto for large-scale withdrawals in FLPMA section 204(c)(1) is unconstitutional. ER19; App. 25a. The issue presented for the
Court’s consideration is the appropriate remedy:
should the Court strike the integrated text of section
204(c)(1) – which ties the authorization of large-scale
withdrawals to the unconstitutional option for congressional override – rather than segmenting that concise provision to fashion a new provision granting the
Secretary unfettered discretion over large-scale withdrawals? This Court’s jurisprudence and the text, context, legislative history, and policy of FLPMA all point
to the former. The entirety of the FLPMA section
204(c)(1) provision must be stricken. There is strong
evidence that Congress would never have granted section 204(c)(1) large-scale withdrawal authority without the ability to override withdrawals through
legislative veto, because doing so would eviscerate the
careful power balance Congress struck in delegating
that authority subject to a veto right.4
4
The unconstitutional restriction on Interior’s authority is
as follows: “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 adopted a concurrent resolution stating that such house does not approve the withdrawal.” App. 276a.
14
I.
THE NINTH CIRCUIT OVERLOOKED A
CRITICAL ELEMENT OF THIS COURT’S
ANALYTICAL FRAMEWORK FOR DETERMINING THE SEVERABILITY OF A LEGISLATIVE VETO.
When considering whether and how to sever an
unconstitutional statutory provision from the remainder of the statute courts ask whether, with the unconstitutional portion severed, “the statute will function
in a manner consistent with the intent of Congress.”
Alaska Airlines, 480 U.S. at 685 (emphasis in original).
Statutory language cannot be severed if “it is evident
that the Legislature would not have enacted those provisions which are within its power, independently of
that which is not.” Id. at 684 (internal quotation marks
and citations omitted). Although another element of
the analysis typically asks whether the remaining
language is “fully operative as a law,”5 this element
carries less weight when the stricken unconstitutional provision is a legislative veto, “which by its very
nature is separate from the operative provisions of the
5
Courts ordinarily apply a presumption of severability in
carrying out this analysis when a severability clause (providing
for excision of any provision held invalid) is triggered. Alaska Airlines, 480 U.S. at 686. This presumption of severability is rebuttable by “strong evidence” that Congress would not have enacted
other language in the statute in the absence of the offending provision. Id. FLPMA contains a severability clause. See App. 284a.
However, as discussed below, FLPMA’s severability clause does
not save the large-scale withdrawal authority from severance. In
fact, it supports severance of all of the section 204(c)(1) provision.
15
substantive provisions of a statute.” Id. at 684-85 (internal quotation marks and citations omitted).6
In Alaska Airlines, this Court evinced a particular
concern for how a statute would operate without a legislative veto, for “the absence of the veto necessarily
alters the balance of powers” between the branches of
government. Id. at 685.
Thus, it is not only appropriate to evaluate the
importance of the veto in the original legislative bargain, but also to consider the nature of
the delegated authority that Congress made
subject to a veto. Some delegations of power to
the Executive . . . may have been so controversial or so broad that Congress would have
been unwilling to make the delegation without a strong oversight mechanism.
Id. The Ninth Circuit wholly failed to acknowledge and
apply this last element when deciding that the words
comprising the unconstitutional legislative veto alone
could permissibly be severed, leaving in place the very
delegation of authority Congress sought to rein in
through FLPMA. Instead of taking care to scrutinize
the intent behind the delegation of authority and
the legislative veto, the Ninth Circuit flipped the analysis, reasoning that its finding “[t]hat the offending portion of FLPMA is a legislative veto provision further
strengthens the severability presumption.” App. 27a. A
6
“The independent operation of a statute in the absence of a
legislative-veto provision thus could be said to indicate little
about the intent of Congress regarding severability of the veto.”
Id. at 685.
16
faithful application of the Court’s ruling in Alaska Airlines, as discussed infra, makes plain the error of the
Ninth Circuit.
The Ninth Circuit also erred in focusing not on the
purpose of and power balance reflected in the legislative veto itself, but rather on the other requirements
attendant to the large-scale withdrawal authority. In
the Ninth Circuit’s estimation, the other procedural requirements for Interior’s exercise of large-scale withdrawal authority (primarily notice and reporting),
mitigated the excision of the legislative veto. App. 28a30a. But only the legislative veto among those conditions would have the substantive effect of reversing a
withdrawal and protecting Congress’s Property Clause
power. Only the legislative veto among those conditions would have given effect to Congress’s abrogation
of Midwest Oil and its rescission of all implied withdrawal authority. By justifying its decision with reference to other, inapposite statutory language, the Ninth
Circuit compounded its error.
II.
REVIEW IS WARRANTED TO CLARIFY THE
CORRECT SEVERABILITY STANDARD AND
REVERSE THE NINTH CIRCUIT’S IMPERMISSIBLE RECRAFTING OF FLPMA.
The Court should grant certiorari to correct the
Ninth Circuit’s mistaken interpretation of FLPMA’s
text, context, legislative history, and policy, and its application of this wrongheaded interpretation to its
17
even more wrongheaded articulation of the standard
for severability of legislative vetoes.
First, words matter. FLPMA’s text provides
“strong evidence” that the section 204(c)(1) legislative
veto was an indispensable element of Congress’s design to constrain the Executive’s large-scale withdrawal authority. Prior to FLPMA, this Court
recognized the implied – and unbounded – authority
the Executive Branch had enjoyed in the absence of
congressional action. Midwest Oil, 236 U.S. at 482-83.
FLPMA expressly repealed this unconstrained withdrawal authority, in its place carefully “delineat[ing]
the extent to which the Executive may withdraw lands
without legislative action.” App. 272a. For withdrawals
of 5,000 acres or more, Congress reserved to itself veto
power. App. 276a-277a. Congress further prohibited
any withdrawal not “in accordance with the provisions
and limitations” of section 204. App. 275a (emphasis
added). Severing only the unconstitutional legislative
veto sentence from section 204(c)(1) effectively would
reinstate the unbounded Executive authority that
Congress specifically meant to end.
Second, location matters. The legislative veto language resides in the very same subparagraph that delegates the withdrawal authority the veto was meant to
constrain. See App. 276a-277a. This identity of location
strongly indicates that the legislative veto and largescale withdrawal authority must “stand or fall as a
unit.” Planned Parenthood of Ctr. Mo. v. Danforth, 428
U.S. 52, 83 (1976).
18
Notably, Congress subjected neither section 204(d)
(small-tract withdrawal authority) nor section 204(e)
(emergency withdrawal authority) to a legislative veto.
If only the legislative veto power in FLPMA section
204(c) is severed (without the adjoined withdrawal authority), the Secretary would have such broad withdrawal authority under section 204(c) that sections
204(d) and (e) become largely superfluous; there would
have been no need for separate provisions. The structural anomalies resulting from severance of only the
legislative veto language, together with the consequent evisceration of FLPMA’s Midwest Oil repeal,
demonstrate that Congress would not have enacted
section 204(c)(1) authority without the legislative veto.
Further, FLPMA as a whole, and section 204(c)(1) in
particular, do not function in a “manner consistent
with the intent of Congress” if only the veto is severed.
Alaska Airlines, 480 U.S. at 685.
Third, purpose matters. FLPMA’s legislative history demonstrates Congress’s foremost intent to
sharply limit executive withdrawal authority. Members of the House spoke of the legislative veto as “[o]ne
of the most important” and “essential” parts of the bill.
122 Cong. Rec. 23,436-37 (1976). Congress’s ultimate
delegation of FLPMA large-scale withdrawal authority
reflects a compromise that turned on the precise limitations and oversight mechanisms embedded in the
statute. Congress would not have enacted the broader
large-scale withdrawal authority that would exist under section 204(c)(1) without the legislative veto, the
heart of the delicate compromise reached.
19
Fourth, policy matters. FLPMA section 204(c)(1)
represents a careful balancing of Executive authority
against Congress’s plenary power under the Property
Clause. FLPMA demonstrates Congress was unwilling
to delegate its Property Clause authority over largescale withdrawals without the strong oversight mechanism embodied in the legislative veto. Recrafting section 204(c) by simply excising the legislative veto
would be “incompatible with the plenary power of Congress” to control public-lands legislation under the
Property Clause. Miller v. Albright, 523 U.S. 420, 45657 (1998) (Scalia, J., concurring in judgment). Congress’s constitutional control over public lands is not
respected if the Judiciary severs only the legislative
veto and rewrites FLPMA to create broader executive
authority to withdraw large expanses of public lands
than that delegated, and is only honored if the largescale withdrawal authority falls with the unconstitutional legislative veto, leaving future legislation on
large-scale withdrawals to Congress.
In short, all of section 204(c)(1) must be severed.
It may well be that, in some circumstances, the
legislative veto is not integral to the authority Congress delegated – after all, Congress drafted over 200
statutes with one.7 But here, Congress commissioned a
report recommending limited delegation of authority;
Congress expressly repealed any implied authority of
the Executive; and Congress integrated the legislative
veto into the very subsection delegating the authority
7
Chadha, 462 U.S. at 968 (White, J., dissenting).
20
in question. Stronger evidence of intent not to delegate
absent the veto override would be hard to find.
A. The Ninth Circuit Ignored the Plain
Language of FLPMA Reflecting the
Careful Balance Congress Struck Between Executive and Legislative Power
in Delegating Limited Large-Scale
Withdrawal Authority.
The Ninth Circuit committed reversible error by
overlooking not only the plain language of FLPMA, but
also this Court’s instructions as to how the language
affects severability of an unconstitutional provision.
1. FLPMA Section 204 Prescribes the
Only Conditions Acceptable to Congress for Large-Scale Withdrawal
Authority, Including the Strong Congressional Oversight a Legislative
Veto Provides.
The Court need look no further than the plain text
of FLPMA section 204 to discern that the Ninth Circuit
erred in severing only the language comprising the
legislative veto from the delegation of large-scale withdrawal authority. Congress specified that “the Secretary is authorized to make . . . withdrawals . . . only in
accordance with the provisions and limitations of this
section.” App. 275a (emphasis added). Only means only.
Union Station Assocs., LLC v. Puget Sound Energy,
Inc., 238 F. Supp. 2d 1218, 1225 (W.D. Wash. 2002)
21
(interpreting statute providing “only the defenses set
forth” in a subsection as not countenancing additional
exceptions) (emphasis in original) (internal quotation
omitted). The legislative veto is unquestionably a “limitation,” which Congress imposed on Interior’s authority. As such, Congress intended the Executive’s largescale withdrawal delegation to rise and fall with the
legislative veto.
FLPMA does contain a severability clause, which
provides: “If any provision of this Act or the application
thereof is held invalid, the remainder of the Act and
the application thereof shall not be affected thereby.”
§ 707, 90 Stat. at 2794 (codified at notes to 43 U.S.C.
§ 1701); App. 284a. But even if this clause created any
presumption of severability with respect to section
204(c)(1)’s legislative veto language alone – a proposition contrary to the clause’s specification of severing a
“provision”8 – section 204(a)’s more specific prohibition
against any withdrawal not in accordance with the
limitations set forth in section 204 overcomes that presumption. The Ninth Circuit ignored entirely this express restriction on Congress’s delegation of authority,
reason enough to grant certiorari and reverse.
The Supreme Court’s precedent in Nguyen v. INS,
533 U.S. 53 (2001) – another case the Ninth Circuit ignored – confirms that severing all of section 204(c)(1)
from the statute is the only remedy in keeping with
Congress’s intent under section 204(a). In Nguyen, a
lawful permanent resident of the U.S. challenged the
8
See infra § II.A.3.
22
rejection of his claim to citizenship on the grounds that
one of the Immigration and Nationality Act’s (“INA”)
naturalization requirements was unconstitutional.
533 U.S. at 57-58. Like FLPMA, the INA contains a
general severability clause. Pub. L. No. 414, § 406, 66
Stat. 163, 281 (1952). In language equivalent to that
in FLPMA section 204(a), the INA limits naturalization to “the manner and under the conditions prescribed in this subchapter and not otherwise.” 8 U.S.C.
§ 1421(d).
In finding the naturalization requirement constitutional, the Court explained the difficulties inherent
in severing any unconstitutional portion of the statute,
given the limiting instruction in the INA:
Petitioners ask [the Court] to invalidate
and sever [the allegedly unconstitutional
conditions on citizenship], but it must be remembered that severance is based on the assumption that Congress would have intended
the result. In this regard, it is significant that,
although the [INA] contains a general severability provision, Congress expressly provided
. . . that “[a] person may only be naturalized
as a citizen of the United States and in the
manner and under the conditions prescribed
in this subchapter and not otherwise.”. . .
[Citizenship under s]ection 1409(a), then, is
subject to the limitation imposed by § 1421(d).
Nguyen, 533 U.S. at 72 (internal citations omitted) (emphasis added); accord Miller, 523 U.S. at 457-58 (Scalia,
23
J., concurring) (explaining the “specific” limiting language governs the “general” severability clause).
FLPMA section 204(a)’s limitation provides a parallel restriction to that in the INA. Section 204(a)’s delegation of withdrawal authority “only in accordance
with the provisions and limitations of . . . section [204]”
constitutes precisely the sort of restriction that this
Court found required broad severance of the authority
tethered to an unconstitutional limit on that authority.
App. 275a. Thus, Nguyen confirms that the Ninth Circuit erred in striking only the legislative veto without
the large-scale withdrawal authorization that it purported to limit.
2. Congress Legislated Its Intent in
FLPMA’s Policy Statement and Abrogation of Midwest Oil.
FLPMA’s opening declaration of policy expresses
Congress’s intent to exercise forceful oversight upon
Executive land management decisions and to precisely
delineate the scope of – and limits on – Executive withdrawal authority. In particular, FLPMA directs that:
the Congress exercise its constitutional authority to withdraw or otherwise designate or
dedicate Federal lands for specified purposes
and that Congress delineate the extent to
which the Executive may withdraw lands
without legislative action.
App. 272a (emphases added). This is the policy set forth
in FLPMA for “Congressional oversight of withdrawals,”
24
H.R. Rep. No. 94-1163 at 4 (1976), meant to constrain
executive withdrawal authority, confirming that Congress would not have granted unrestricted 20-year
large-scale withdrawal authority to the Secretary absent the now-unconstitutional legislative veto power.
The Ninth Circuit quoted this policy in the “Background” section of its opinion, App. 11a, but apparently
forgot about it by the time it analyzed the legislative
veto. Instead, the Ninth Circuit adopted the district
court’s framing of FLPMA as contemplating a “controlled delegation” of withdrawal authority. ER5,
ER24. However, Congress’s intent in FLPMA was to
rein in the Executive, not provide it unrestricted authority. See App. 272a-274a. That Congress desired a
“controlled delegation” means just that: Congress intended that it retain control over withdrawals implemented by the Executive, and Congress did so by
including a legislative veto over large-scale withdrawals. Compare City of New Haven, Conn. v. United
States, 809 F.2d 900, 908 (D.C. Cir. 1987) (in granting
executive authority subject to veto, Congress’s intent
was “to control rather than authorize” executive action)
(emphases in original). Severing the legislative veto
apart from the authority which it was meant to
constrain fails to give effect to this congressional intent.
Further, Congress reinforced the conviction expressed in its policy statement in FLPMA section 102
by repealing nearly all of the Executive’s prior withdrawal authority. Specifically, section 704(a) “repealed”
29 statutes on withdrawals and “the implied authority
25
of the President to make withdrawals and reservations
resulting from the acquiescence of the Congress (U.S.
v. Midwest Oil Co., 236 U.S. 459).” App. 283a. Thus, the
Legislative Branch wiped clean the slate such that
Congress could expressly “delineate,” and set specific
conditions on, any new executive withdrawal authority
granted – as stated in FLPMA section 102(a)(4).
If only the legislative veto in FLPMA section
204(c) is severed, this would restore, for 20 years at a
time (renewable indefinitely), the unfettered largescale executive withdrawal authority that FLPMA
section 704(a) expressly revoked. This would violate
Congress’s manifest intent and flout Congress’s repeal
of implied withdrawal authority.
3. FLPMA’s Severability Clause Requires
That the Entirety of the Relevant “Provision” Be Severed.
The severability clause Congress included in
FLPMA does not undermine the foregoing analysis. It
instructs that “[i]f any provision of this Act . . . is held
invalid, the remainder of the Act . . . shall not be
affected thereby.” App. 284a (emphasis added). The
Ninth Circuit erred in ruling that this requirement allows the severance of only the language within FLPMA
section 204(c)(1) comprising the legislative veto. App.
34a-35a. The legislative veto language enmeshed
within section 204(c) is not in a separate “provision” or
subsection; it is part of section 204(c)(1), along with the
delegation it constrained. The narrowest “provision” to
26
which the severability clause might refer, then, is section 204(c)(1) as a whole.
Congress acted with purpose when it opted to combine the large-scale withdrawal authority and legislative veto in a single subsection. Cf. Thomas v. Union
Carbide Agric. Products Co., 473 U.S. 568, 582 (1985)
(where scheme for pesticide use, registration, and compensation “is integrated in a single subsection that
explicitly ties the follow-on registration to the arbitration,” a finding that the arbitration requirement was
unconstitutional would support the remedy of enjoining follow-on registration entirely); see also Planned
Parenthood, 428 U.S. at 83 (sentences intertwined in
the same section of a statute “must stand or fall as a
unit”). Congress could have placed the legislative veto
in a separate subsection (for example, the veto language could have been designated as section 204(c)(2),
with the notice provisions following as section 204(c)(3));
it did not. Under the plain language of FLPMA’s severability clause, then, the entirety of the section
204(c)(1) “provision” must be severed. The Secretary’s
large-scale withdrawal authority must fall with the
veto.
B. The Ninth Circuit Disregarded the
Structural Context of the Legislative
Veto That Demonstrates Congress Intended Large-Scale Withdrawal Authority to Stand or Fall with It.
The structural choices Congress made in drafting
FLPMA reinforce that section 204(c)(1) large-scale
27
withdrawal authority cannot survive without the legislative veto.
The first structural choice is Congress’s decision
to integrate the Secretary’s large-scale withdrawal authority and the legislative veto within the very same
provision, subsection, and subparagraph. See App.
276a. Coupled with section 707’s instruction for severance of the entire unconstitutional “provision,” see supra § II.A.3, this structural choice is a powerful
indication that Congress saw the withdrawal authority
as “so interwoven with [the veto] that the section cannot
stand alone.” Dorchy v. Kansas, 264 U.S. 286, 290
(1924) (emphasis added). Moreover, this choice readily
distinguishes the section 204(c)(1) veto from legislative
vetoes held severable in other cases. See Chadha, 462
U.S. at 959 (severing stand-alone veto provision in section 244(c)(2) of the INA); Alaska Airlines, 480 U.S. at
682, 689-90 (unconstitutional veto at subparagraph
43(f )(3) of Airline Deregulation Act held severable
from authority subject to veto, separately located at
subparagraph 43(f )(1)); Ala. Power Co. v. U.S. Dep’t of
Energy, 307 F.3d 1300 (11th Cir. 2002) (severing veto
language in 43 U.S.C. § 10222(a)(4), concerning the
Secretary’s adjustment of fees, where the Secretary’s
ultimate authority to collect fees was contained in separate subparagraphs).
The second is Congress’s manifest intent to
exert direct oversight and control over large acreage
withdrawals in section 204(c), which stands in stark
contrast to Congress’s delegation of less restricted withdrawal authority under sections 204(d) and 204(e). See
28
supra Statement § I. The contrast between section
204(c)(1)’s legislative-veto limitation on long-term,
large-scale withdrawals and the imposition of less severe restrictions on less far-reaching withdrawals compels the conclusion that Congress was unwilling to
grant the Secretary unlimited long-term, large-scale
withdrawal authority. Except for the mere procedural
requirement for notice to Congress, which is no real
constraint, without the legislative veto Interior’s discretionary large-scale withdrawal authority would be
less restrictive than that for small-tract and emergency withdrawals. Limiting small-tract withdrawals,
while granting unfettered discretion on large-scale
withdrawals, thwarts congressional intent.
The Ninth Circuit completely disregarded the context in which the legislative veto appears, vis-à-vis
other withdrawal authority that Congress delegated.
Instead, the Ninth Circuit attributed unwarranted
weight to a general severability clause and to other
mere procedural requirements, to the exclusion of Congress’s careful exercise in power balancing reflected in
the legislative veto. Because “the statute created in
[the] absence [of the legislative veto] is legislation that
Congress would not have enacted,” the legislative veto
may not be severed alone. Alaska Airlines, 480 U.S. at
685. It cannot seriously be argued that the court’s task
was to evaluate whether Congress would not have enacted the entirety of FLPMA, a statute governing such
disparate issues as grazing, rights-of-way, and land acquisition, without the legislative veto over large-scale
withdrawals. Rather, in keeping with Alaska Airlines’s
29
focus on legislative intent and the power-shifting inherent in a legislative veto, a court must ask whether
Congress would have enacted the specific statutory text
subject to the veto. Severance of all of section 204(c)(1),
leaving intact the Secretary’s authority under sections
204(d) and (e), best allows FLPMA to “function in a
manner consistent with the intent of Congress.” Id.
C. The Ninth Circuit Misinterpreted FLPMA’s
Legislative History.
Ultimately, the best evidence of legislative intent
is the statutory text. See Kerr v. Puckett, 138 F.3d 321,
323 (7th Cir. 1998) (“[A] court should implement the
language actually enacted. . . .”); Cont’l Can Co. v. Chi.
Truck Drivers Inc., 916 F.2d 1154, 1157 (7th Cir. 1990)
(“Only the [statutory] text survived the complex process for proposing, amending, adopting and obtaining
the President’s signature. . . .”). As described above,
FLPMA’s plain text and structure instructs that largescale withdrawal authority exists only in conjunction
with the legislative veto that accompanied it. Nevertheless, precedent counsels looking to the impetus behind FLPMA’s enactment to inform the Court’s
evaluation of the power balance Congress struck when
including the legislative veto, and reveals that Congress’s overriding concern with respect to withdrawals
was how to rein in the Executive. Yet, the Ninth Circuit
turned legislative history on its head, looking to commentary about what did not become the law instead of
statements illuminating what did.
30
1. FLPMA – Including the Legislative
Veto – Was Congress’s Reaction to
an Executive Branch Riding Roughshod over the Property Clause.
Congress enacted FLPMA in response to the chaotic state of affairs that had arisen from Congress’s
own prior inaction and acquiescence to the Executive’s
“uncontrolled and haphazard” withdrawals of public
lands. App. 74a-75a. In enacting FLPMA, and section
204(c) specifically, Congress responded to the Public
Land Law Review Commission’s recommendation that
Congress “assert its constitutional authority by enacting legislation reserving unto itself exclusive authority
to withdraw or otherwise set aside public lands . . . 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.” App.
75a; see also Charles F. Wheatley, Jr., Withdrawals under the Federal Land Policy Management Act of 1976,
21 Ariz. L. Rev. 311, 319 (1979) (“The delineation by the
Act of the specific terms and conditions upon which
the Secretary of the Interior can exercise withdrawal
power and the persons to whom it may be delegated,
make clear that Congress intended to occupy the entire
field permitted under its constitutional authority over
the public lands and to control and direct the executive
use of withdrawal power.” (emphasis added)).
Congress intended FLPMA to replace “practically
all existing executive withdrawal authority” with a
design that imposed specific limits and conditions on
the Secretary’s withdrawal authority – including the
31
legislative veto. Conf. Rep. at 66; see also 122 Cong. Rec.
at 23,440 (1976) (Rep. Forsythe) (“[The House bill] repeals [preexisting] withdrawal authority and in its
place substitutes a congressional review procedure.”).
Thus, Congress viewed the legislative veto as a specific
replacement for, and safeguard against, the Executive’s prior exercise of unlimited withdrawal authority.
If only the unconstitutional legislative veto is severed,
this would return to the Secretary the sort of unfettered withdrawal authority that the legislative veto
was meant to replace.
The legislative history emphasizes Congress’s
need for strong oversight mechanisms and places special weight on the veto power. At the beginning of the
House Report, Congress expressed concern that “[t]he
Executive Branch of the Government has tended to fill
in missing gaps in the law, not always in a manner consistent with a system balanced in the best interests of
all the people.” H.R. Rep. No. 94-1163 at 1. The report
then sets out “major objectives” of the bill in response
to this problem, including the need to “[e]stablish procedures to facilitate Congressional oversight of public
land operations entrusted to the Secretary of the Interior.” Id. at 2. Accordingly, the bill included “referral to
Congress of withdrawals and extensions of withdrawals of 5,000 acres or more” in the form of a legislative
veto. Id. at 4.
Congressman Melcher, lead sponsor of the House
bill, highlighted how crucial the legislative veto was to
Congress’s limited delegation to the Secretary to make
large-scale withdrawals. For example, he explained
32
that the provision for Congress to terminate any withdrawal it disapproved of “is congressional oversight responsibility.” 122 Cong. Rec. 23,452 (1976). “Since there
is now no system of congressional review and congressional oversight of withdrawals, this is the first positive step that Congress has taken to make that
responsibility felt and to exercise that responsibility.”
Id. Rep. Skubitz likewise urged that:
[o]ne of the most important reasons for adopting this bill is that it provides for Congressional oversight and control over an executive
agency which, at present, is free to act mostly
of its own accord. . . . We must end what often
has been a historic pattern of casual or even
reckless withdrawal of public lands. It is essential that Congress be informed of, and able
to oppose if necessary, withdrawals which it
determines not to be in the best interest of all
the people.
Id. at 23,436-37 (emphasis added). Congress rebalanced the scales of power between the Legislative
and Executive Branches when delegating large-scale
withdrawal authority in FLPMA. The Ninth Circuit ignored Congress’s will.
2. The Ninth Circuit Erroneously
Attributed Conclusive Weight to
Statements Disagreeing with What
Ultimately Became the Law.
Instead of crediting the explanations of what eventually became the law, the Ninth Circuit looked to
33
contrary statements to attempt to prove its point about
the irrelevance of the legislative veto – a provision that
Congress passed and the President signed. App. 31a32a. To be sure, some disagreed with the bill’s provisions for legislative vetoes over certain withdrawals.
ER14, ER37-38. Reps. Udall and Sieberling authored
dissenting minority opinions on the bill, collectively
writing on behalf of a total of nine representatives. Id.
But these nine representatives could not persuade
Congress even to raise the acreage threshold for veto
review, see 122 Cong. Reg. 23,436, 23,451, much less to
delegate withdrawal authority in the absence of the
veto.
FLPMA’s legislative history is most aptly compared to that in City of New Haven. There, the appellate court considered an unconstitutional legislative
veto on proposed deferrals of budgetary appropriations. The court found the legislative history “incontrovertible” as to unseverability:
When the numerous statements of individual
legislators urging the passage of legislation to
control presidential impoundments are . . .
considered, the evidence is incontrovertible
that the “basic purpose” of [the provision] was
to provide each House of Congress with a veto
power over deferrals. . . . As difficult (and precarious) as it may be at times to reconstruct
what a particular Congress might have done
had it been apprised of a particular set of
facts, we refuse to entertain th[e] remarkable
proposition [that Congress would have enacted the provision without the legislative
34
veto]. . . . [T]he “raison d’etre” of the entire legislative effort was to assert control over presidential impoundments.
City of New Haven, 809 F.2d at 907 (emphasis in original). As in City of New Haven, here we have a Congress
legislating to constrain the Executive Branch, and as
in City of New Haven, it was “remarkable” for the
Ninth Circuit to conclude that Congress would have
wanted the large-scale withdrawal authority delegation to remain absent the legislative veto that provided
the constraint.
D. The Separation of Powers and Property Clause Concerns Implicated Here
Reinforce the Importance of Removing
Large-Scale Withdrawal Authority Along
with the Veto.
Given that the Property Clause assigns to Congress, not the Executive, the exclusive control over
public-land withdrawals, the Judicial Branch cannot
and should not rewrite FLPMA section 204(c) to grant
the Secretary broader withdrawal authority than Congress was willing to expressly delegate in FLPMA. As
the Court explained in construing other FLPMA provisions, “the fact that Congress might have acted with
greater clarity or foresight does not give courts a carte
blanche to redraft statutes in an effort to achieve that
which Congress is perceived to have failed to do.”
United States v. Locke, 471 U.S. 84, 95 (1985). “Nor is
the Judiciary licensed to attempt to soften the clear
35
import of Congress’ chosen words whenever a court believes those words lead to a harsh result.” Id.
That the large-scale withdrawal authority subject
to legislative veto under section 204(c)(1) was delegated pursuant to Congress’s plenary power under the
Property Clause is no mere historical footnote. See, e.g.,
Wheatley, 21 Ariz. L. Rev. at 319. The Property Clause
textually commits control over federal lands to Congress, not to the Executive or Judicial Branches. U.S.
Const. art. IV, § 3, cl. 2; see United States v. California,
332 U.S. 19, 27 (1947) (regarding the Property Clause,
“neither the courts nor the executive agencies, could
proceed contrary to an Act of Congress in this congressional area of national power”); Kidd v. U.S. Dep’t of
Interior, 756 F.2d 1410, 1412 (9th Cir. 1985) (“Once
Congress has acted in . . . regard [to the public lands],
both the courts and the executive agencies have no
choice but to follow strictly the dictates of such statutes.”). The only corrective result for the unconstitutional legislative veto that honors the Constitution’s
vesting in Congress of all authority over management
of public lands is to sever the large-scale withdrawal
authority integrated with and conditioned on the veto.
Notably, leading public land law scholars agree that
the FLPMA section 204(c) legislative veto is integral to
Congress’s desire to exercise control under the Property Clause.
One of the principal legislative goals in enacting FLPMA was to limit the executive discretionary authority over the public lands. At the
same time, Congress felt a need to delegate
36
some of its own authority over the public
lands, to avoid being overly burdened with
making routine administrative decisions. Congress reconciled these potentially conflicting
objectives by delegating to the executive authority subject to various substantive and
procedural constraints. The legislative veto
provisions of the Act are the most significant
of those constraints.
Robert L. Glicksman, Severability and the Realignment of the Balance of Power over the Public Lands:
The Federal Land Policy and Land Management Act,
36 Hastings L.J. 1, 66 (1984) (emphasis added); see also
David H. Getches, Managing the Public Lands: The Authority of the Executive to Withdraw Lands, 22 Nat. Resources J. 279, 329 (1982) (“[W]hen [withdrawals] are
used the FLPMA surrounds the process with new procedures and ultimate congressional checks that can
undo executive actions swiftly in egregious cases.”).
Recognizing the importance of the legislative
veto’s constraint on executive withdrawal authority,
the leading treatise on public land law agrees that the
legislative intent in FLPMA is carried out only if the
entirety of FLPMA section 204(c)(1) is stricken:
It will be difficult to argue that the basic congressional intent underlying FLPMA can be
carried out simply by excising the legislative
vetoes, because Congress preeminently intended to reassert control over federal land
use and classification. Invalidation of the vetoes only would return unfettered and unsupervised discretion to the executive branch,
37
the very result that FLPMA was enacted to
prevent.
George Coggins & Robert Glicksman, The legislative
veto in public natural resources law – Severance, 1 Pub.
Nat. Resources L. § 4:3 (2d ed. 2011). Consistent with
these views, FLPMA’s text, structure, legislative history, and policy support severing all of section 204(c)(1)
from the remainder of FLPMA, not undermining Congress’s intent, the outcome resulting from the Ninth
Circuit’s decision.
III. THE NINTH CIRCUIT’S ERROR HAS FARREACHING IMPLICATIONS FOR THE
MANAGEMENT OF FEDERAL LAND IN
THE UNITED STATES, WARRANTING THE
COURT’S REVIEW.
The policy expressed by Congress in the general
mining laws that “the finder of valuable minerals on
government land is entitled to exclusive possession of
the land for mining and to all the minerals he extracts,
has been a powerful engine driving exploration and extraction of valuable minerals, and has been the law of
the United States since 1866.” United States v. Shumway, 199 F.3d 1093, 1098-99 (9th Cir. 1999). A mining
claimant “is not a mere social guest of the Department
of the Interior to be shooed out the door when the Department chooses.” Id. at 1103. And yet, with the Ninth
Circuit’s decision, mining claimants are relegated to
“social guest” status by virtue of Interior’s now-unchecked withdrawal authority. Indeed, unconstrained
large-scale withdrawals are no mere threat. Although
38
ultimately unconsummated due to a change in presidential administration, BLM had proposed to withdraw approximately ten million acres across six States
from location and entry, ostensibly for Greater SageGrouse habitat protection. 80 Fed. Reg. 57,635 (Sept.
24, 2015). The Court should take up this case and clarify the importance of Legislative control over largescale withdrawal authority, consistent with the Property Clause and this Court’s jurisprudence.
Under FLPMA section 202(e), “public lands shall
be removed from or restored to the operation of the
Mining Law of 1872 . . . only by withdrawal action pursuant to” section 204 or pursuant to another Act of
Congress. 43 U.S.C. § 1712(e)(3). This text further supports not allowing the withdrawal from the mining
laws of over one million acres of public lands, as this
action cannot lawfully be taken pursuant to all of
FLPMA’s section 204’s limitations (namely, the opportunity for legislative veto). Moreover, this provision
highlights the continuing importance of the general
mining laws and the availability of public land for
multiple-use purposes, spanning the century until
Congress’s enactment of FLPMA and beyond.
Interior’s withdrawal impermissibly interfered
with the general mining laws in a way Congress would
not have intended. It cut off the rights to work on and
to perfect previously located, but unperfected, mining
claims to important uranium deposits in the acres
withdrawn. Mining will be allowed only if the examination demonstrates that a valuable mining claim was
perfected before the date of this withdrawal and the
39
predecessor withdrawals (all of which are subject to
“valid existing rights”). Even then, mining is subject to
a suite of environmental protections and maintenance
fees.9 Accordingly, development of mining claims on
federal land occurs only after intensive environmental
review and under rigorous mitigation conditions. See,
e.g., Ctr. for Biological Diversity v. Salazar, 706 F.3d
1085, 1094 (9th Cir. 2013) (affirming ability of operator
to resume uranium mining pursuant to previously approved operations plan).
As the district court found below in recognizing
the standing of NMA and other plaintiffs, the “withdrawal has . . . imposed on NMA . . . members an expensive and years-long examination process that
rarely occurred before the withdrawal.” App. 212a; see
also Havasupai Tribe v. Provencio, 876 F.3d 1242, 1250
(9th Cir. 2017) (upholding Forest Service Mineral Report required to determine valid existing rights before
restarting mine in withdrawn area). The district court
also credited plaintiffs’ well-supported allegations that
“the withdrawal and the complications it presents for
location and development of mining claims has significantly reduced the value of existing [mining] claims
and the value of claim investments made to date.” App.
212a. BLM’s own estimate of the economic value of the
9
See, e.g., the Surface Resources Act of 1955, 30 U.S.C. § 612;
the National Environmental Policy Act, 42 U.S.C. § 4332 et seq.;
the Endangered Species Act, 16 U.S.C. § 1531 et seq.; the Clean
Water Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C.
§ 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f
et seq.; the National Historic Preservation Act, 54 U.S.C. § 300101
et seq.
40
uranium production that is largely precluded by the
one-million-acre withdrawal at issue here is “approximately $3.16 billion.” Appellees’ Supplemental Excerpts
of Record (“SER”) 358; see SER376, 378. To the rural
communities of northern Arizona, $3.16 billion of lost
economic activity means a great deal. Moreover, the
Nation loses the value of domestic uranium production. See generally Brief of the States of Utah, Arizona,
Montana, and Nevada as Amici Curiae, No. 14-17350,
Dkt. 29 at 5 (9th Cir. Apr. 17, 2015).
The withdrawal at issue here is particularly striking for its brazen refutation of congressional intent to
leave these lands open for mineral exploration and development under the general mining laws. Arizona
Wilderness Act of 1984, supra Statement § II; see also
Letter from Hastings & Bishop to Sec’y Salazar, supra
9, at 1 (noting that the withdrawal “voided a bipartisan
agreement partially codified in law that has been respected for nearly three decades”); Press Release, H.
Comm. On Nat. Resources, Government Scientist Believed Impacts from Arizona Uranium Mining “Grossly
Overestimated” in Obama Administration Document
(May 23, 2012), https://naturalresources.house.gov/
newsroom/documentsingle.aspx?DocumentID=296638
(noting National Park Service staff ’s acknowledgment
of lack of scientific rationale for withdrawal). With the
Ninth Circuit’s blessing of Interior’s abuse of FLPMA’s
withdrawal authority unchecked by legislative veto,
similar Executive actions are sure to recur.
------------------------------------------------------------------
41
CONCLUSION
Congress would not have delegated the Executive
Branch large-scale withdrawal authority absent the
legislative veto and would not have intended the authority to stand without it. Severing the Secretary’s
authority to withdraw broad swaths of public lands
along with the legislative veto that was an integral
part of Congress’s delegation of that authority, and accordingly setting aside the million-acre withdrawal at
issue here, is the only remedy that would respect the
balance of power Congress struck in FLPMA and leave
that statute functioning in a manner consistent with
Congress’s plain intent to reclaim its Property Clause
powers and constrain the Executive Branch’s future
exercises of those powers.
Respectfully submitted,
KATIE SWEENEY
General Counsel
NATIONAL MINING ASSOCIATION
101 Constitution Ave., NW
Washington, DC 20001
R. TIMOTHY MCCRUM
Counsel of Record
THOMAS A. LORENZEN
ELIZABETH B. DAWSON
CROWELL & MORING LLP
1001 Pennsylvania Ave., NW
Washington, DC 20004
(202) 624-2500
rmccrum@crowell.com
Counsel for National
Mining Association
APPENDIX
App. 1a
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL MINING ASSOCIATION,
Plaintiff-Appellant,
v.
RYAN ZINKE, Secretary of the
Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR;
GEORGE E. PERDUE, Secretary
of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE;
BUREAU OF LAND MANAGEMENT;
MICHAEL NEDD, acting director,
Bureau of Land Management;
UNITED STATES FOREST SERVICE,
Defendants-Appellees,
GRAND CANYON TRUST;
SIERRA CLUB; NATIONAL PARKS
CONSERVATION ASSOCIATION;
CENTER FOR BIOLOGICAL
DIVERSITY; HAVASUPAI TRIBE,
Intervenor-DefendantsAppellees.
No. 14-17350
D.C. Nos.
3:11-cv-08171-DGC
3:12-cv-08038-DGC
3:12-cv-08042-DGC
3:12-cv-08075-DGC
App. 2a
ARIZONA UTAH LOCAL ECONOMIC
No. 14-17351
COALITION, on behalf of member
D.C. Nos.
the Board of Supervisors,
3:11-cv-08171-DGC
Mohave County, Arizona;
3:12-cv-08038-DGC
METAMIN ENTERPRISES USA, INC.,
3:12-cv-08042-DGC
Plaintiffs-Appellants, 3:12-cv-08075-DGC
v.
RYAN ZINKE, Secretary of the
Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR;
GEORGE E. PERDUE, Secretary
of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE;
BUREAU OF LAND MANAGEMENT;
MICHAEL NEDD, acting director,
Bureau of Land Management;
UNITED STATES FOREST SERVICE,
Defendants-Appellees,
GRAND CANYON TRUST;
SIERRA CLUB; NATIONAL PARKS
CONSERVATION ASSOCIATION;
CENTER FOR BIOLOGICAL
DIVERSITY; HAVASUPAI TRIBE,
Intervenor-DefendantsAppellees.
App. 3a
AMERICAN EXPLORATION
No. 14-17352
& MINING ASSOCIATION,
D.C. Nos.
Plaintiff-Appellant, 3:11-cv-08171-DGC
v.
3:12-cv-08038-DGC
RYAN ZINKE, Secretary of the
3:12-cv-08042-DGC
Interior; UNITED STATES
3:12-cv-08075-DGC
DEPARTMENT OF THE INTERIOR;
GEORGE E. PERDUE, Secretary
of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE;
BUREAU OF LAND MANAGEMENT;
MICHAEL NEDD, acting director,
Bureau of Land Management;
UNITED STATES FOREST SERVICE,
Defendants-Appellees,
GRAND CANYON TRUST;
SIERRA CLUB; NATIONAL PARKS
CONSERVATION ASSOCIATION;
CENTER FOR BIOLOGICAL
DIVERSITY; HAVASUPAI TRIBE,
Intervenor-DefendantsAppellees
App. 4a
GREGORY YOUNT,
Plaintiff-Appellant,
v.
RYAN ZINKE, Secretary of the
Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR;
GEORGE E. PERDUE, Secretary
of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE;
BUREAU OF LAND MANAGEMENT;
MICHAEL NEDD, acting director,
Bureau of Land Management;
UNITED STATES FOREST SERVICE,
Defendants-Appellees,
No. 14-17374
D.C. Nos.
3:11-cv-08171-DGC
3:12-cv-08038-DGC
3:12-cv-08042-DGC
3:12-cv-08075-DGC
OPINION
GRAND CANYON TRUST;
SIERRA CLUB; NATIONAL PARKS
CONSERVATION ASSOCIATION;
CENTER FOR BIOLOGICAL
DIVERSITY; HAVASUPAI TRIBE,
Intervenor-DefendantsAppellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted December 15, 2016*
San Francisco, California.
Filed December 12, 2017
* Case No. 14-17351 was submitted on the briefs without
oral argument on the motion of the appellants in that case.
App. 5a
Before: Marsha S. Berzon and Mary H. Murguia,
Circuit Judges, and Frederic Block, District Judge.**
Opinion by Judge Berzon
COUNSEL
Robert Timothy McCrum (argued), Crowell & Moring
LLP, Washington, D.C., for Plaintiff-Appellant National Mining Association.
Jeffrey Wilson McCoy (argued) and Steven J. Lechner,
Mountain States Legal Foundation, Lakewood, Colorado, for Plaintiff-Appellant American Exploration &
Mining Association.
Constance E. Brooks, Danielle Hagen, and Cody Doig,
C. E. Brooks & Associates P.C., Denver, Colorado, for
Plaintiff-Appellant Arizona Utah Local Economic Coalition.
Gregory Yount, Chino Valley, Arizona, pro se PlaintiffAppellant.
Brian C. Toth (argued) and John C. Most, Attorneys;
John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Aaron G.
Moody, Kendra Nitta, and Sonia Overholser, Office of
the Solicitor, United States Department of the Interior;
Pamela P. Henderson, Office of the General Solicitor,
** The Honorable Frederic Block, United States District
Judge for the Eastern District of New York, sitting by designation.
App. 6a
United States Department of Agriculture; for Defendants-Appellees.
Edward B. Zukoski (argued), Earthjustice Denver, Colorado; Roger Flynn, Western Mining Action Project,
Lyons, Colorado; Aaron M. Paul, Grand Canyon Trust,
Denver, Colorado; for Intervenor-Defendants-Appellees.
Anthony L. Rampton, Kathy A.F. Davis, and Roger R.
Fairbanks, Assistant Attorneys General; Bridget K.
Romano, Solicitor General; Sean D. Reyes, Attorney
General; Office of the Attorney General, Salt Lake City,
Utah; Mark Brnovich, Attorney General, Office of the
Attorney General, Phoenix, Arizona; Tim Fox, Attorney
General, Department of Justice, Helena, Montana;
Adam Paul Laxalt, Attorney General, Office of the Attorney General, Carson City, Nevada; for Amici Curiae
States of Utah, Arizona, Montana, and Nevada.
Heather Whiteman Runs Him and Matthew L. Campbell, Native American Rights Fund, Boulder, Colorado,
for Amici Curiae Paiute Indian Tribe of Utah, Hualapai Tribe of the Hualapai Reservation, Kaibab Band of
Paiute Indians, San Juan Southern Paiute Tribe,
Northwestern Band of the Shoshone Nation, Morning
Star Institute, and National Congress of American Indians.
Katherine Belzowski, Attorney; Ethel B. Branch, Attorney General; Navajo Nation Department of Justice,
Window Rock, Arizona; for Amicus Curiae Navajo Nation.
App. 7a
OPINION
BERZON, Circuit Judge:
We consider challenges to the decision of the Secretary of the Interior to withdraw from new uranium
mining claims, for up to twenty years, over one million
acres of land near Grand Canyon National Park. Determining the appropriate balance between safeguarding an iconic American natural wonder and permitting
extraction of a critically important mineral is at the
heart of the present dispute.
The fission of uranium atoms into smaller component parts releases a huge amount of energy – enough
to sustain a nuclear chain reaction, as scientists discovered in the first half of the last century. The design
and construction of nuclear reactors and weaponry followed. In the ensuing years, uranium became, at times,
highly valuable, though prices rose and fell dramatically in response to swings in demand. Uranium also
entered the cultural lexicon.1
In 1947, large quantities of uranium were discovered in Arizona near Grand Canyon National Park, a
1
For example, in the heyday of uranium mining, “Moab
changed the name of its annual rodeo from Red Rock Roundup to
Uranium Days Rodeo.” Stephanie A. Malin, The Price of Nuclear
Power: Uranium Communities and Environmental Justice 37
(1981). “In the 1950s, young women were crowned as Uranium
Queen and Miss Atomic Energy.” Id. Even now, uranium is the
subject of its own film festival – the International Uranium Film
Festival – featuring several films set in and around the American
Southwest. See Int’l Uranium Film Festival, http://www.uranium
filmfestival.org.
App. 8a
treasured natural wonder and World Heritage Site –
called, by John Wesley Powell, “the most sublime spectacle in nature.” John Wesley Powell, Canyons of the
Colorado 394 (1895). Northern Arizona saw limited
uranium mining until a spike in uranium prices in
the late 1970s led to a uranium mining surge in the
1980s and 1990s, when six new mines opened. But the
mining boom did not last. With the collapse of the Soviet Union and consequent decommissioning of large
numbers of nuclear warheads, demand for uranium
dropped dramatically in the 1990s. Uranium production in much of northern Arizona stopped.
Prices spiked again in 2007, and renewed interest
in mining operations in the region followed. With that
resurgence came concerns about the environmental
impact of the extraction of radioactive materials such
as uranium.
Reflecting those concerns, then-United States
Secretary of the Interior (“the Secretary”)2 Kenneth L.
Salazar published a Notice of Intent in the Federal
Register to withdraw from new uranium mining
claims, for a period of up to twenty years, a tract of
nearly one million acres of federally owned public land.
See Federal Land Policy and Management Act of 1976
(“FLPMA”)3 § 204(c), 43 U.S.C. § 1714 (authorizing the
2
Although it is the Secretary who has ultimate authority to
make a withdrawal, we occasionally refer to the Secretary as “the
Interior” to better reflect that the Secretary’s withdrawal decision
was informed by extensive analysis within the Department of the
Interior and its constituent agencies.
3
See Appendix A for a list of acronyms used in this opinion.
App. 9a
Secretary to make, revoke, or modify such withdrawals
subject to certain conditions).4 After an extended study
period, the Secretary issued a Record of Decision
(“ROD”) in January 2012 announcing the withdrawal
of 1,006,545 acres.
Several entities and one private individual opposed to the withdrawal challenged the Secretary’s decision in four separate actions filed in the District of
Arizona. Parties interested in supporting the withdrawal moved to intervene, including four environmental groups and the Havasupai Tribe. The district
court, in two well-crafted opinions, rejected the various
challenges to the withdrawal.
I.
Background
We begin with a brief history of the political and
legislative backdrop against which FLPMA was enacted in 1976.
The Property Clause of the U.S. Constitution vests
in Congress the “power to dispose of and make all
needful rules and regulations respecting . . . property
belonging to the United States,” including federally
owned public lands. U.S. Const., Art. IV, § 3, cl. 2. Congress has long used its authority under the Property
4
A “withdrawal” means “withholding [of ] 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).
App. 10a
Clause to permit the purchase of mining rights and exploration on federal lands, most notably in the General
Mining Act of 1872, 30 U.S.C. §§ 22-54. Under that Act,
“all valuable mineral deposits in lands belonging to the
United States, both surveyed and unsurveyed, shall be
free and open to exploration and purchase.” 30 U.S.C.
§ 22.
From early on, the executive branch has asserted
and exercised the authority to withdraw federally
owned lands from claims for mineral extraction. See
United States v. Midwest Oil Co., 236 U.S. 459, 469-72
(1915). As Midwest Oil recognized, although Congress
had delegated no “express statutory authority” to withdraw previously available land from mineral exploitation, the executive branch had made a “multitude” of
temporary such withdrawals, and Congress had “uniformly and repeatedly acquiesced in the practice.” Id.
at 469-71. That acquiescence, Midwest Oil held, constituted an “implied grant of power” from Congress to the
executive permitting withdrawal of public lands from
mineral extraction claims. Id. at 475. For decades after
Midwest Oil, Congress did little to restrain the executive’s withdrawal authority, and the executive branch
made liberal use of it.
After World War II, however, demand for the commercial use of public land increased considerably. To
address that increased demand, Congress in 1964 established the Public Land Law Review Commission
(“PLLRC”), composed of several members of Congress
and presidential appointees, to conduct a comprehensive review of federal land law and policy and propose
App. 11a
suggestions for more efficient administration of public
lands. After several years of study the PLLRC issued a
report making 137 specific recommendations to Congress concerning the use and governance of public
lands. PLLRC, One Third of the Nation’s Land ix-x, 9
(1970) (hereinafter “PLLRC Report”).
The PLLRC Report observed that the roles of
Congress and the executive branch with respect to
public land use had “never been carefully defined,” and
recommended that Congress pass new legislation specifying the precise authorities delegated to the executive for land management, including withdrawals. Id.
at 43, 44, 54-55. The Report also recommended that
“large scale limited or single use withdrawals of a
permanent or indefinite term” should be within Congress’s exclusive control, while “[a]ll other withdrawal
authority should be expressly delegated with statutory
guidelines to insure proper justification for proposed
withdrawals, provide for public participation in their
consideration, and establish criteria for Executive action.” Id. at 54 (emphasis added). The Report did not
recommend a legislative veto over any withdrawal authority delegated to the executive.
In response to the PLLRC’s recommendations,
Congress in 1976 enacted FLPMA. FLPMA declares as
the policy of the United States that “Congress exercise
its constitutional authority to withdraw or otherwise
designate or dedicate Federal lands for specified purposes and that Congress delineate the extent to which
the Executive may withdraw lands without legislative
action,” 43 U.S.C. § 1701(a)(4); that “in administering
App. 12a
public land statutes and exercising discretionary authority granted by them, the Secretary be required to
establish comprehensive rules and regulations after
considering the views of the general public[,] and to
structure adjudication procedures to assure adequate
third party participation, objective administrative review of initial decisions, and expeditious decisionmaking,” 43 U.S.C. § 1701(a)(5); that “goals and objectives
be established by law as guidelines for public land use
planning, and that management be on the basis of multiple use and sustained yield unless otherwise specified by law,” 43 U.S.C. § 1701(a)(7)5; and that “the
public lands be managed in a manner that will protect
the quality of scientific, scenic, historical, ecological,
environmental, air and atmospheric, water resource,
and archeological values; [in a manner] that, where
5
“Multiple use” is defined in the statute as “the management
of the public lands and their various resource values so that they
are utilized in the combination that will best meet the present
and future needs of the American people; making the most judicious use of the land for some or all of these resources or related
services over areas large enough to provide sufficient latitude for
periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a
combination of balanced and diverse resource uses that takes into
account the long-term needs of future generations for renewable
and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and
natural scenic, scientific and historical values; and harmonious
and coordinated management of the various resources without
permanent impairment of the productivity of the land and the
quality of the environment with consideration being given to the
relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the
greatest unit output.” 43 U.S.C. § 1702(c).
App. 13a
appropriate, will preserve and protect certain public
lands in their natural condition; [in a manner] that will
provide food and habitat for fish and wildlife and domestic animals; and [in a manner] that will provide for
outdoor recreation and human occupancy and use,” 43
U.S.C. § 1701(a)(8).
As relevant here, FLPMA eliminates the implied
executive branch withdrawal authority recognized in
Midwest Oil, and substitutes express, limited authority. See Pub. L. 94-579, § 704, Oct. 21, 1976, 90 Stat.
2743, 2792. It reserves to Congress the power to take
certain land management actions, such as making or
revoking permanent withdrawals of tracts of 5,000
acres or more (“large-tract” withdrawals) from mineral
extraction. 43 U.S.C. § 1714(c), (j). And it delegates to
the Secretary of the Interior the power to make withdrawals of tracts smaller than 5,000 acres (“smalltract” withdrawals), whether temporary or permanent,
43 U.S.C. § 1714(d), and to make temporary withdrawals of large-tract parcels of 5,000 acres or more, 43
U.S.C. § 1714(c).
For all withdrawals, whether small- or large-tract,
FLPMA requires that the Secretary publish notice of
the proposed withdrawal in the Federal Register; afford an opportunity for public hearing and comment;
and obtain consent to the withdrawal from any other
department or agency involved in the administration of the lands proposed for withdrawal. 43 U.S.C.
§ 1714(b), (h), (i). The statute also bars the Secretary
from further delegating his or her withdrawal authority to any individual outside the Department of the
App. 14a
Interior, or to any individual within the Department
who was not appointed by the President and confirmed
by the Senate. 43 U.S.C. § 1714(a).
FLPMA circumscribes the Secretary’s temporary
largetract withdrawal authority in three ways relevant
here. First, the Secretary may make large-tract withdrawals lasting no longer than twenty years. Second,
no later than the effective date of any withdrawal, the
Secretary must furnish a detailed report to Congress
addressing twelve specific reporting requirements.6 43
U.S.C. § 1714(c)(2). Third, FLPMA provides that Congress retains legislative veto power over any largetract withdrawal.7 43 U.S.C. § 1714(c)(1). FLPMA also
6
These reporting requirements include (1) a “clear explanation” of the proposed use of the land involved; (2) an inventory and
evaluation of the current natural resource uses of the site and the
impact of the proposed use, including potential environmental
degradation and anticipated economic impact; (3) a list of present
users of the land and the anticipated impact upon those users;
(4) an analysis of potential conflicts between current users and
the proposed use; (5) an analysis of the requirements for the proposed use; (6) an analysis of suitable alternative sites; (7) a statement of any consultation with other federal, state, and local
regulators; (8) a statement of the impact of proposed uses on state
and local government and the regional economy; (9) the time
needed for the withdrawal; (10) the time and place of public hearings; (11) the location of publicly accessible records; and (12) the
report of a qualified mining engineer. 43 U.S.C. § 1714(c)(2).
7
Specifically, “a withdrawal aggregating five thousand acres
or more may be made (or such a withdrawal or any other withdrawal involving in the aggregate five thousand acres or more
which terminates after such date of approval may be extended)
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
App. 15a
contains a severability clause: “If any provision of this
Act or the application thereof is held invalid, the remainder of the Act and the application thereof shall
not be affected thereby.” FLPMA § 707, 90 Stat. at 2794
(codified at notes to 43 U.S.C. § 1701).
Congress has never exercised its authority under
FLPMA to veto a large-tract withdrawal. In 1983, the
Supreme Court in I.N.S. v. Chadha, 462 U.S. 919, 959
(1983), declared one variety of legislative veto provision unconstitutional.8 Since Chadha, Congress has
not amended FLPMA to limit the Secretary’s withdrawal authority further.
a withdrawal no later than its effective date and the withdrawal
shall terminate and become ineffective at the end of ninety days
(not counting days on which the Senate or the House of Representatives has adjourned for more than three consecutive days)
beginning on the day notice of such withdrawal has been submitted to the Senate and the House of Representatives, if the Congress has adopted a concurrent resolution stating that such
House does not approve the withdrawal. If the committee to which
a resolution has been referred during the said ninety day period,
has not reported it at the end of thirty calendar days after its referral, it shall be in order to either discharge the committee from
further consideration of such resolution or to discharge the committee from consideration of any other resolution with respect to
the Presidential recommendation.” 43 U.S.C. § 1714(c)(1).
8
Chadha dealt with a one-house veto of the Attorney General’s discretionary decision to suspend deportation. Chadha, 462
U.S. at 927. FLPMA provides for a legislative veto by “concurrent
resolution” of both houses. 43 U.S.C. § 1714(c)(1).
App. 16a
A. The Northern Arizona Withdrawal
Uranium, often found within “breccia pipes” – cylinder-shaped deposits of broken sedimentary rock
stretching thousands of feet underground – was first
discovered near Grand Canyon National Park in 1947.
Only limited uranium mining occurred in Northern Arizona until uranium prices increased in the late 1970s.
After that, in the 1980s and 1990s, miners extracted
1,471,942 tons of uranium from six new mines. A second spike in the price of uranium in 2007 generated
renewed interest in mining operations near the Grand
Canyon, manifested in the submission of thousands of
new claims.9
The large volume of new claims sparked concerns
about the potential environmental impact of increased
uranium mining on the Grand Canyon watershed.
Uranium mining has been associated with uranium
and arsenic contamination in water supplies, which
may affect plant and animal growth, survival, and reproduction, and which may increase the incidence of
kidney damage and cancer in humans. See, e.g., National Primary Drinking Water Regulations, Radionuclides, 65 Fed. Reg. 76,708 (Dec. 7, 2000). In response
to local concerns, Arizona Congressman Raúl Grijalva
introduced legislation in March 2008 seeking permanently to withdraw over one million acres of federal
land abutting Grand Canyon National Park, on the
northern side (North Parcel), northeastern side (East
9
Within a few years, the price of uranium dropped sharply
once more, from $130 per pound to $40 per pound.
App. 17a
Parcel), and southern side (South Parcel) of the Park.
Rep. Grijalva’s proposed legislation was not enacted.
In 2009, Secretary Salazar published a Notice of
Intent in the Federal Register declaring that he proposed to withdraw from new uranium mining claims
an area nearly identical to that covered by the Grijalva
bill. Notice of Proposed Withdrawal and Opportunity
for Public Meeting, 74 Fed. Reg. 35,887 (July 21, 2009).
In compliance with FLPMA’s command, the Secretary
stipulated that any agency action would be “subject to
valid existing rights.” Id.; FLPMA § 701(h), 90 Stat. at
2786 (codified at notes to 43 U.S.C. § 1701). The Notice
of Intent had the immediate effect of withdrawing the
land from new uranium mining claims for two years
while the agency studied the anticipated impact of the
proposed withdrawal. 74 Fed. Reg. at 35,887.
In fulfillment of the Interior’s obligation under the
National Environmental Policy Act (“NEPA”), 42
U.S.C. § 4332, the Bureau of Land Management
(“BLM”), an agency within the Department of the Interior, prepared an Environmental Impact Statement
(“EIS”) examining the potential environmental impact
of the withdrawal. The EIS declared that the underlying purpose of the withdrawal was protecting the
“Grand Canyon watershed from adverse effects of . . .
mineral exploration and mining” other than those
“stemming from valid existing rights.” 74 Fed. Reg. at
43,152-53. To inform the EIS, BLM requested a full report from the United States Geological Survey
(“USGS”) analyzing soil, sediment, and water samples
in the proposed withdrawal area.
App. 18a
In response, USGS prepared Scientific Investigations Report 2010-5025 (the “USGS Report”). To
prepare its report, USGS examined 1,014 water samples from 428 different sites. It found that 70 samples
“exceeded the primary or secondary maximum containment levels” for certain ions and trace elements,
including uranium and other heavy metals. The
agency also analyzed soil and sediment samples from
six sites north of the Grand Canyon, including reclaimed uranium mines, approved mining sites where
mining had been suspended, and exploratory sites
(sites where there had been drilling but not mining).
Consistently high concentrations of uranium and arsenic were discovered at these sites. Water samples from
fifteen springs and five wells contained dissolved uranium levels beyond the maximum allowed by the Environmental Protection Agency (“EPA”) for drinking
water. The USGS Report observed that fractures,
faults, sinkholes, and breccia pipes occurred throughout the region and were potential pathways for contaminants, including uranium and arsenic, to migrate
through groundwater. The Report acknowledged, however, that the available data on these pathways was
“sparse . . . and often limited,” and that more investigation would be required fully to understand groundwater flow paths and the potential impact of uranium
mining.
BLM relied heavily on the USGS Report in preparing its EIS. It used the findings of the USGS Report, as
well as additional data gathered during its own twoyear study, to assess the risk to five different water
App. 19a
resources. These resources included springs and wells
connected to perched aquifers; springs and wells connected to the Redwall-Muav aquifer (“R-aquifer”), the
main deep aquifer within the Grand Canyon watershed10; and surface waters.
BLM issued a draft EIS in February of 2011; the
draft EIS remained open for public comment for 75
days. Interior received over 296,339 comment submittals, from which it extracted over 1,400 substantively
distinct comments. See Notice of Availability of the
Northern Arizona Proposed Withdrawal Final Environmental Impact Statement, 76 Fed. Reg. 66,747,
66,748 (Oct. 27, 2011). After reviewing these comments, Interior submitted its final EIS on October 27,
2011.
In addition to its public comment process, Interior
designated several affected counties in Arizona and
Utah (“the Counties”) as cooperating agencies,11 and
solicited their input.12 Based in part on the Counties’
10
The R-aquifer is the major source of groundwater within
the region. It is located roughly 2,000 feet below the surface.
Perched aquifers are generally much smaller and occur at much
shallower levels.
11
The Counties comprised Garfield, Kane, San Juan, and
Washington Counties in Utah, and Mohave and Coconino Counties in Arizona.
12
Most of the Counties opposed the withdrawal because of
its anticipated economic consequences. Coconino County did not;
its economy depends more on tourism than mining. Although the
area proposed for withdrawal was contained entirely within Arizona, the Utah counties’ residents have an economic interest in
App. 20a
public comments on the draft EIS, Interior requested
further analysis of the anticipated economic effect of
the withdrawal and consulted with county representatives. Interior also organized five meetings with cooperating agencies, including the Counties, as well as two
public meetings in the region.
The final EIS and ROD discussed four different
withdrawal alternatives. Alternative A was to take no
action at all, allowing new mining claims and development to proceed unhindered. Alternative B was to
withdraw the full tract of roughly one million acres
from new mining claims. Alternative C was to withdraw a substantially smaller tract of roughly 650,000
acres, which would have excluded 120,000 acres in the
North Parcel outside the Grand Canyon watershed, as
well as 80,000 additional acres in the North Parcel
where groundwater is believed to flow away from
Grand Canyon National Park. Alternative D was to
withdraw an even smaller area, roughly 300,000 acres.
The USGS Report, final EIS, and ROD all acknowledged substantial uncertainty regarding water
quality and quantity in the area, the possible impact of
additional mining on perched and deep aquifers (including the R-aquifer), and the effect of radionuclide
exposure on plants, animals, and humans. The USGS
Report, for example, recognized that “[a] more thorough investigation of water chemistry in the Grand
Canyon region is required to better understand
the decision, as they stand to derive some income from uranium
mining and ore processing.
App. 21a
groundwater flow paths, travel times, and contributions from mining activities, particularly on the north
side of the Colorado River. The hydrologic processes
that control the distribution and mobilization of natural uranium in this hydrogeologic setting are poorly
understood.” The ROD concluded, however, that there
was sufficient data regarding dissolved uranium concentrations in the USGS Report to “inform a reasoned
choice,” so the missing information was not essential
to its decision.
After weighing the data available, the ROD took a
measured approach. It observed that a “twenty-year
withdrawal will allow for additional data to be gathered and more thorough investigation of groundwater
flow paths, travel times, and radionuclide contributions from mining.” Because of the uncertainty regarding the movement of groundwater in the region, the
ROD explained, Interior could not risk contamination
of springs feeding into the Colorado River.13 The ROD
went on to explain that “the potential impacts estimated in the EIS due to the uncertainties of subsurface water movement, radionuclide migration, and
biological toxicological pathways result in low probability of impacts, but potential high risk. The EIS indicates that the likelihood of a serious impact may be
low, but should such an event occur, significant.”
The final EIS and ROD also stated justifications
for the withdrawal other than the risk of groundwater
13
The Colorado River is the primary source of drinking water for over 26 million people.
App. 22a
contamination. The ROD noted that “mining within
the sacred and traditional places of tribal peoples may
degrade the values of those lands to the tribes that use
them,” that certain tribes believe “repeated wounding
of the earth can kill their deities,” and that “damage to
traditional cultural and sacred places is irreversible.”
The ROD also observed that even if the proposed area
were withdrawn in its entirety, eleven new mines could
be developed during the twenty-year withdrawal period under valid existing rights. Given this potential
for development of new mines, the expected rate of
mining development over the ensuing twenty years
would roughly match the rate of development at the
time of the withdrawal. Any economic impact on local
communities would thus not be severe. While recognizing that the level of mining that would go forward in
the area during the withdrawal period itself posed a
risk of harm, the ROD concluded that additional mining presented a significant added threat to environmental safety and could endanger wildlife and human
health.
Finally, the agency stated that the “unique resources” within Northern Arizona, including the Colorado River, the Grand Canyon, and the “unique landscapes” of the region, support a “cautious and careful
approach.” The ROD observed that “[w]hile the lands
are withdrawn, studies can be initiated to help shed
light on many of the uncertainties identified by USGS
in [the USGS Report] and by BLM in the EIS.”
App. 23a
B. This Litigation
After the ROD issued, mining companies and local
governments concerned about the economic impact of
the withdrawal filed suit challenging the Secretary’s
action. These parties (collectively “Plaintiffs” or “Appellants”)14 filed four separate suits, one or more of
which maintained (1) that section 204(c)(1) of FLPMA,
43 U.S.C. § 1714, which confers on the Secretary of the
Interior the authority to make temporary large-tract
withdrawals, contains an unconstitutional legislative
veto provision not severable from the remainder of the
subsection; (2) that the Secretary’s withdrawal was arbitrary and capricious, inconsistent with the administrative record, or otherwise not in accordance with
FLPMA; (3) that the Secretary failed to comply with
NEPA in approving the withdrawal; (4) that the withdrawal violated the Establishment Clause of the First
Amendment; and (5) that the United States Forest Service acted arbitrarily and capriciously, or contrary to
law, in granting its consent to the withdrawal.
After the four cases were consolidated into a single
action, Plaintiffs moved for summary judgment on the
ground that the legislative veto provision within
FLPMA was both unconstitutional and not severable.
14
Appellants American Exploration & Mining Association
(“AEMA”) and National Mining Association are organizations
representing mining interests. Appellant Metamin Enterprises,
USA, is a mining company. Appellant Gregory Yount is an individual who owns mining claims in the withdrawal area. Appellant
Arizona Utah Local Economic Coalition is an organization representing several local governments.
App. 24a
As a result, Plaintiffs argued, there was no longer any
statutory basis for the Secretary’s twenty-year largetract withdrawal authority. Denying the motion, the
district court held the legislative veto provision unconstitutional, but severable, leaving the Secretary’s challenged withdrawal authority intact. Yount v. Salazar,
933 F. Supp. 2d 1215, 1243 (D. Ariz. 2013).
After discovery, the parties all cross-moved for
summary judgment. The district court granted summary judgment to Interior and Grand Canyon Trust,
upholding the withdrawal against each of the plaintiffs’ challenges. The evidence in the record, particularly the USGS Report, final EIS, and ROD, supported
the agency’s withdrawal decision, the district court
concluded, and the agency did not exceed its statutory
authority under FLPMA or NEPA. The district court
also rejected the plaintiffs’ Establishment Clause challenge and their claim that Interior’s consultation with
local counties and treatment of information gaps were
inadequate under NEPA. This appeal followed.
II.
FLPMA’s Legislative Veto Provision
The Supreme Court ruled definitively in Chadha
that Congress may invalidate an agency’s exercise of
lawfully delegated power in one way only: through bicameral passage of legislation followed by presentment to the President. 462 U.S. at 953-55. FLPMA
provides that Congress may invalidate a large-tract
withdrawal announced by the Secretary by passing a
concurrent resolution disapproving of the withdrawal
App. 25a
within 90 days of the withdrawal’s effective date; the
statute does not require presentment to the President.
43 U.S.C. § 1714(c)(1). We have little difficulty concluding that the legislative veto provision violates the presentment requirement, a conclusion with which all
parties agree.
Unlike in Chadha, the statutory legislative veto
was not exercised by Congress in this case. Appellants
maintain – and the government does not disavow –
that the severability issue is nonetheless properly before us, as the Secretary’s withdrawal authority is at
issue, and that authority would fall if the legislative
veto were not severable from Congress’s broader delegation of power to the executive.
Although not raised by the parties, there is an argument that because Congress did not invoke the legislative veto, the provision did not injure Appellants
even if constitutionally invalid, and so the Appellants
lack standing to challenge either it or the withdrawal
provision’s continuing validity. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); see, e.g., United States v.
City of Yonkers, 592 F. Supp. 570, 576 (S.D.N.Y. 1984).
That is, once the veto deadline passed, one could view
the situation as if there were no veto available, in
which case severability would not matter.
Nonetheless, we conclude that Appellants do have
standing to raise the severability issue. We are presented here with an unresolvable ambiguity as to
whether Congress declined to exercise its veto based
on the merits of the Secretary’s withdrawal or based
App. 26a
on the veto’s constitutional infirmity. Appellants’ merits argument is that the withdrawal authority would
not exist at all without the veto provision in place, exercised or not. Appellants’ alleged injury – primarily,
the inability to perfect new mining claims – is traceable to the exercise of that authority, and if their merits
argument succeeded, could be redressed by invalidating the Secretary’s withdrawal authority. Chadha, 462
U.S. at 936. We therefore turn to that merits argument.
Invalid portions of a federal statute are to be severed “ ‘[u]nless it is evident that the Legislature would
not have enacted those provisions which are within its
power, independently of that which is not.’ ” Chadha,
462 U.S. at 931-32 (quoting Buckley v. Valeo, 424 U.S.
1, 108 (1976)). “Generally speaking, when confronting
a constitutional flaw in a statute, we try to limit the
solution to the problem, severing any problematic portions while leaving the remainder intact.” Free Enter.
Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 508 (2010) (citation and internal quotation marks
omitted). We must retain any portion of a statute
which is (1) “constitutionally valid,” (2) “capable of
functioning independently” from any unconstitutional
provision, and (3) “consistent with Congress’ basic objectives in enacting the statute.” United States v.
Booker, 543 U.S. 220, 258-59 (2005) (citation and internal quotation marks omitted).
This general principle applies with greater force
when, as here, the statute in question contains a
App. 27a
severability clause.15 “[T]he inclusion of such a clause
creates a presumption that Congress did not intend
the validity of the statute in question to depend on the
validity of the constitutionally offensive provision.”
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).
That presumption can be overcome only by “strong evidence” that Congress intended the entire relevant portion of the statute to depend upon the unconstitutional
provision. Id.
That the offending portion of FLPMA is a legislative veto provision further strengthens the severability
presumption. There is an obvious substitute for the
legislative veto: the ordinary process of legislation.
Nothing (except the need to muster sufficient votes)
prevents Congress from revoking a large-tract withdrawal by passing legislation vacating the withdrawal,
presenting the proposed legislation to the President,
and (if necessary) overriding the President’s veto. Notably, none of the Appellants have cited any case holding that a legislative veto provision could not be
severed where the statute in question contained a severability clause, nor have we found one.16
15
Again, FLPMA provides that “[i]f any provision of this Act
or the application thereof is held invalid, the remainder of the Act
and the application thereof shall not be affected thereby.” FLPMA
§ 707, 90 Stat. at 2794.
16
Western States Medical Center v. Shalala, 238 F.3d 1090
(9th Cir. 2001) is not a contrary example. We noted in Western
States Medical Center that the inclusion of a severability clause
in the Federal Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C.
§§ 301-397, did not suggest that an unconstitutional provision of
a subsequent amendment to that statute, the Food and Drug
App. 28a
Moreover, the language and structure of FLPMA
and the legislative history underlying the statute do
not provide the requisite “strong evidence” that the
Secretary’s authority to make large-tract withdrawals
rises and falls with Congress’s veto power over those
withdrawals. To the contrary, the limited delegation of
large-tract withdrawal authority is fully “consistent
with Congress’ basic objectives” in enacting FLPMA
even if there is no legislative veto option. Booker, 543
U.S. at 259.
First, Congress in FLPMA imposed significant
limitations on the Secretary’s withdrawal authority
and provided for congressional oversight over executive withdrawals by means other than the legislative
veto. For example, Congress reserved to itself the
exclusive authority to make permanent large-tract
withdrawals, limiting the Secretary’s large-tract withdrawals to no more than twenty years. 43 U.S.C.
§ 1714(c)(1). Although large-tract withdrawals can be
renewed after the twenty-year term expires, the
twenty-year term ensures that the renewal decision
would necessarily have to be made by a different
Administration Modernization Act of 1997 (“FDAMA”), 21 U.S.C.
§ 353a, was severable from the remainder of the FDAMA. “Because Congress approved this severability clause before FDAMA’s
passage,” we held, “it is less compelling evidence of legislative intent than a clause enacted simultaneously with FDAMA. Congress may have intended the original provisions of the FDCA to
be severable, but meant for FDAMA’s provisions to stand or fall
together.” W. States Med. Ctr., 238 F.3d at 1097-98. Here, the relevant provisions of FLPMA were enacted simultaneously with the
severability clause.
App. 29a
presidential administration and, almost surely, a different Secretary of the Interior.
Congress in FLPMA also limited the Secretary’s
power to delegate withdrawal authority to subordinates, restricting that delegation to officers appointed
by the President and confirmed by the Senate. 43
U.S.C. § 1714(a). And for large-tract withdrawals,
FLPMA requires not only that the Secretary provide
timely notice to Congress (enabling Congress to address
the proposed withdrawal legislatively if it so chooses),
but mandates that the Secretary issue a detailed report addressing twelve specific issues of concern. 43
U.S.C. § 1714(c)(2).17 The statute also delineates specific requirements for public hearings concerning proposed withdrawals and requires publication in the
Federal Register of such proposals. 43 U.S.C. § 1714(b),
(h).18 The plethora of constraints on the Secretary’s
large-tract withdrawal authority – all of which remain
17
See supra note 6.
Regarding public hearings, FLPMA provides that “[a]ll
new withdrawals made by the Secretary under this section (except an emergency withdrawal . . . ) shall be promulgated after an
opportunity for a public hearing.” 43 U.S.C. § 1714(h). Regarding
publication, FLPMA provides that “[w]ithin thirty days of receipt
of an application for withdrawal, and whenever he proposes a
withdrawal on his own motion, the Secretary shall publish a notice in the Federal Register stating that the application has been
submitted for filing or the proposal has been made and the extent
to which the land is to be segregated while the application is being
considered by the Secretary. . . . The segregative effect of the application shall terminate upon (a) rejection of the application by
the Secretary, (b) withdrawal of lands by the Secretary, or (c) the
expiration of two years from the date of the notice.” 43 U.S.C.
§ 1714(b)(1).
18
App. 30a
in place – confirms that the legislative veto provision
was only one of many provisions enacted to advance
Congress’s broad oversight of the Secretary’s withdrawal
decisions. Severing the legislative veto provision would
leave the remaining limitations, and opportunity for
congressional oversight and involvement, in place.
The legislative history underlying FLPMA confirms this conclusion. As the district court observed,
the PLLRC Report, on which Congress relied in passing FLPMA, was “equally concerned with enabling the
Executive to act through controlled delegation as it
was with preserving Congress’s reserved powers.”
Yount, 933 F. Supp. 2d at 1223. For example, the Report
recommended, without mention of a legislative veto,
that Congress “delineat[e] specific delegation of authority to the Executive as to the types of withdrawals
and set asides that may be effected without legislative
action.” PLLRC Report, at 2. And the Report recommended that all withdrawal authority other than
“large scale limited or single use withdrawals of a permanent or indefinite term” be “expressly delegated.”
Id. at 55.
Similarly, the House Report identified among the
primary objectives of the legislation both establishing
“procedures to facilitate Congressional oversight of
public land operations entrusted to the Secretary of
the Interior,” and endowing BLM with “sufficient authority to enable it to carry out the goals and objectives
established by law for the public lands under its jurisdiction.” H.R. Rep. 94-1163, at 2 (1976). The House Report discussed the legislative veto only in the context
App. 31a
of several other mechanisms for congressional oversight and limitations on the Secretary’s authority: the
notice and reporting requirements, the limits on delegation, the consent requirement, the hearing requirement, and the temporal limitation. Id. at 9-10.
Nor does the Conference Report suggest that the
legislative veto was an essential component of the legislation. That Report referenced the legislative veto
only in the context of delineating where the House bill
(ultimately adopted) diverged from the Senate bill.19
And although several Members of Congress emphasized in their floor statements the importance of the
bill’s oversight provisions during the floor debates,20
19
The Senate bill did not include a legislative veto. See H.R.
Rep. No. 94-1724, at 57 (1976) (Conf. Rep.), 1976 U.S.C.C.A.N.
6227, 6229.
20
Rep. Samuel Steiger stated that “[t]here were those of us
– and I include myself – who felt that the Secretary should have
the opportunity of making no withdrawals without the review of
Congress,” and that granting small-tract withdrawal authority
“already represent[s] a very strong compromise.” 122 Cong. Rec.
23,451 (1976). Rep. Joe Skubitz stated that it was essential that
Congress “be . . . able to oppose[,] if necessary, withdrawals which
it determines not to be in the best interests of all the people.” Id.
at 23,437. Rep. John Melcher, the chief sponsor of the legislation
in the House, stated that the veto was a component of the bill’s
general objective of adding “congressional oversight responsibility” to land management. Id. at 23,452. He stated that “[s]ince
there is now no system of congressional review and congressional
oversight of withdrawals, [the legislative veto provision] is the
first positive step that Congress has taken to . . . exercise that responsibility.” Id. But Rep. Melcher also opined on the House floor,
somewhat in contradiction, that the bill would “not in any way
limit or interfere with” the Secretary’s authority to make withdrawals. Id. at 23,453.
App. 32a
many other members, including several who voted for
the legislation, expected the legislative veto to prove
overly burdensome for Congress.21
At best, the legislative history of FLPMA is inconclusive as to whether a majority of the House would
have opposed delegating large-tract withdrawal authority without the legislative veto. As with most legislation, FLPMA’s legislative veto provision represented a
compromise between groups of lawmakers with divergent and sometimes competing interests. It is possible
– perhaps even likely – that had Congress known in
1976 that the legislative veto provision was unconstitutional, a somewhat different legislative bargain
would have been struck. Congress might, for example,
have shortened the twenty-year term for temporary
withdrawals, or decreased the acreage required to trigger FLPMA’s large-tract withdrawal provisions.
But the question before us is not whether Congress would have drafted the statute differently in the
absence of the unconstitutional provision. The question is whether “the statute’s text or historical context
makes it evident that Congress . . . would have
21
Rep. John Seiberling called the congressional oversight
provisions “[some] of the most objectionable provisions in the legislation.” 122 Cong. Rec. 23,436. Rep. Patsy Mink opposed several
of the limitations on the Secretary’s withdrawal discretion, believing, as Rep. Seiberling did, that the legislation would place an unworkable burden on both Congress and the Department of the
Interior. Id. at 23,438. The Conference Report adopted the House’s
version of the bill with respect to the Secretary’s withdrawal authority but barely discussed the legislative veto. H.R. Rep. No. 941724.
App. 33a
preferred no statute at all.” Hamad. v. Gates, 732 F.3d
990, 1001 (9th Cir. 2013) (internal quotation marks
omitted); see Free Enter. Fund, 561 U.S. at 481; Alaska
Airlines, 480 U.S. at 685-86. Given the recognized desire for executive authority over withdrawals of federal
lands from new mining claims – and given Congress’s
preference regarding survival of that authority, as expressed in the severability clause – there is no indication, let alone “strong evidence,” Alaska Airlines, 480
U.S. at 686, that Congress would have preferred “no
statute at all” to a version with the legislative veto provision severed. As in Chadha, “[a]lthough it may be
that Congress was reluctant to delegate final authority
. . . , such reluctance is not sufficient to overcome the
presumption of severability raised by [a severability
clause].” 462 U.S. at 932.
Notably, given FLPMA’s notice and report provision, Congress has the opportunity to pass timely and
informed legislation reversing any withdrawal – legislation that would then be submitted for presidential
approval (or veto, followed by a potential override).
Since the passage of FLPMA, the Secretary has exercised large-tract withdrawal authority 82 times without
Congress ever attempting to override that authority.22
22
See, e.g., California: Withdrawal for New Melones Dam and
Reservoir Project, 44 Fed. Reg. 70,467 (Dec. 7, 1979); Certain
Lands in Alaska: Public Land Order Withdrawals, 45 Fed. Reg.
9,562 (Feb. 12, 1980); New Mexico: Withdrawal of Lands, 45 Fed.
Reg. 29,295 (May 2, 1980); Idaho: Withdrawal of Snake River
Birds of Prey Area, 45 Fed. Reg. 78,688 (Nov. 26, 1980); Oregon:
Withdrawal of Lands for Diamond Craters Geologic Area, 46 Fed.
Reg. 6,947 (Jan. 22, 1981).
App. 34a
See Interior-SER 637-38. Nor, since Chadha was decided more than three decades ago, has Congress
amended the relevant section of the statute to enhance
congressional oversight or limit the Secretary’s withdrawal authority. That history further undermines the
Appellants’ contention that the legislative veto was an
essential and indispensable component of FLPMA
without which Congress would never have delegated
large-tract withdrawal authority.
Appellants make one final, technical argument
in support of severability: They observe that the legislative veto provision is contained entirely within the
subsection of the statute delegating large-tract withdrawal authority to the Secretary, section 204(c)(1) of
FLPMA. Appellants propose that the legislative veto
and the delegation of large-tract withdrawal authority
are therefore part of the same “provision.” As the statute’s severability clause mandates severance of any
unconstitutional “provision,” Appellants contend, the
entirety of section 204(c)(1) must be severed. Not so.
There is no support for the proposition that a statutory subsection, like section 204(c)(1), is the smallest
unit that can be characterized as a “provision” subject
to a severability clause. And no reason occurs to us why
a sentence within a subsection is not a “provision” of
the statute. See Black’s Law Dictionary 1420 (10th ed.
2014) (defining “provision” as “clause”). Indeed, courts
have severed legislative vetoes within single sentences. See Alabama Power Co. v. U.S. Dep’t of Energy,
307 F.3d 1300, 1306-08 (11th Cir. 2002) (severing a dependent clause containing a legislative veto from a
App. 35a
statutory subsection because that clause was an unconstitutional “provision”). Were we to accept Appellants’ argument, the result would be to require courts
to sever more of a statute that contains a severability
clause referring to a “provision” than one that does not.
Absent a clear command, we cannot imagine that Congress intended such a peculiar result.
We therefore hold that the unconstitutional legislative veto embedded in section 204(c)(1) of FLPMA is
severable from the large-tract withdrawal authority
delegated to the Secretary in that same subsection. Invalidating the legislative veto provision does not affect
the Secretary’s withdrawal authority.
III. FLPMA
A. Appellants’ FLPMA Claims
We turn next to the merits of the FLPMA claims.
We review challenges to agency actions such as those
here under the Administrative Procedure Act (“APA”),
5 U.S.C. § 706. Under the APA, a reviewing court may
set aside only agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). “This
standard of review is “highly deferential, presuming
the agency action to be valid and affirming the agency
action if a reasonable basis exists for its decision.” Nw.
Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475
F.3d 1136, 1140 (9th Cir. 2007) (internal quotation
marks omitted). A court may not “substitute its judgment for that of the agency,” Citizens to Preserve
App. 36a
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971),
abrogated on other grounds by Califano v. Sanders, 430
U.S. 99, 105 (1977), and an agency’s interpretation of
its organic statute, as well as of its own regulations, is
entitled to deference. Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 844 (1984); Auer v.
Robbins, 519 U.S. 452, 461-63 (1997).
The ROD listed four rationales for the withdrawal:
(1) It would protect water resources in the Grand Canyon watershed and the Colorado River from possible
contamination; (2) it would preserve cultural and tribal
resources throughout the withdrawn area; (3) it would
protect natural resources, including wildlife and wilderness areas; and (4) because existing claims could
still be mined, the economic benefits of uranium mining could still be realized by local communities. Appellants challenge each of the Secretary’s rationales for
the withdrawal,23 but focus on the first. Appellants contend that the final EIS and ROD exaggerated the risk
23
AEMA maintains that the Secretary was precluded from
proposing any additional rationales for the withdrawal in the
ROD beyond the primary justification stated in BLM’s 2009 application for the withdrawal – the potential threat to groundwater
in the Grand Canyon watershed. AEMA contends that the additional justifications rendered the Secretary’s decision arbitrary
and capricious because they allegedly violated regulations “requir[ing] the Secretary to make a determination based on the
application for withdrawal.” But nothing in FLPMA or its implementing regulations requires that the scope of the ROD be limited
to the purposes stated in the initial application for the withdrawal. Indeed, it would defeat the very purpose of allowing public comment on a proposed withdrawal if the Secretary were
unable to incorporate new evidence or concerns raised by commenters into his decisionmaking.
App. 37a
of water contamination from uranium mining in the
affected area, and that the administrative record suggests that existing laws and regulations were sufficient to achieve the aim of water protection.
1. Potential Impact on Water Resources
The crux of Appellants’ FLPMA argument is that
the scientific evidence in the record does not justify the
Secretary’s decision to withdraw this large tract of
land to protect water resources. In support, Appellants
characterize several segments of the final EIS, ROD,
and administrative record as indicating that the risk
of groundwater contamination from uranium mining
was low and the scientific rationale for the withdrawal
weak.
Congress defined the Secretary’s “withdrawal”
power as the power to withhold federal lands from
mining or settlement, “in order to maintain other public values in the area or reserv[e] the area for a particular public purpose or program.” 43 U.S.C. § 1702(j).
The terms “public values” and “public purpose” are not
defined in the statute.
Congress’s stated objectives in enacting FLPMA
provide clues to the meaning of those words. Congress’s
objectives included ensuring that “the public lands
[would] be managed in a manner that [would] protect
the quality of scientific, scenic, historical, ecological,
environmental, air and atmospheric, water resource,
and archeological values; that, where appropriate,
[would] preserve and protect certain public lands in
App. 38a
their natural condition; that [would] provide food and
habitat for fish and wildlife and domestic animals; and
that [would] provide for outdoor recreation and human
occupancy and use.” 43 U.S.C. § 1701(a)(8). That broad
language encompasses the Secretary’s justifications
for the withdrawal here challenged.24
The USGS Report and the final EIS establish that
Interior did have evidence that additional uranium
mining could present a risk of contamination. The
USGS Report analyzed over 1,000 water samples from
428 different locations within the region, and found
that 70 sites exceeded the EPA’s primary or secondary
heavy metal contaminant levels. Samples from fifteen
springs and five wells indicated uranium concentrations exceeding the EPA’s maximum contaminant levels. The USGS Report acknowledged that the evidence
was “inconclusive” regarding a connection between
24
Metamin contends that “FLPMA limits the Secretary’s authority to withdraw lands to instances when the proposed use will
cause environmental degradation or where existing and potential
uses are incompatible with or [in] conflict with the proposed use”
(emphases added). The section of the statute Metamin cites concerns the requirements for the Secretary’s report to Congress, not
the basis of the Secretary’s authority to make a withdrawal. See
43 U.S.C. § 1714(c)(2). The contents of the Secretary’s report to
Congress are not subject to judicial review. See FLPMA § 701(i),
90 Stat. at 2786 (codified at notes to 43 U.S.C. § 1701). Moreover,
the section says “might” cause environmental degradation, not
“will.” 43 U.S.C. § 1714(c)(2)(2). Metamin’s argument thus rests
on a misapplication, a misreading, and, in part, an erroneous paraphrasing of the statute. Uses can undoubtedly be incompatible
based on risk of harm rather than the certainty of it.
App. 39a
those findings and mining activity, but could not rule
out such a connection.
The final EIS and ROD further indicate that the
full-withdrawal alternative was expected to reduce
substantially the potential environmental impact from
continued mining operations. The final EIS concluded
that under Alternative A (“no action”) the projected
water quality impact to R-aquifer springs was “none to
moderate” in the entirety of the North Parcel and East
Parcel, and “none to major” for part of the South Parcel;
the anticipated impact was “none to negligible” only for
two springs in the South Parcel. The potential impact
on surface water quality was assessed as at least “negligible to moderate” in all three parcels under Alternative A. Under Alternative B (the full withdrawal), the
final EIS assessed the risk to water quality as “negligible to moderate” only for surface waters in the North
Parcel, and “none to major” only for R-aquifer wells in
the South Parcel.
The final EIS, the USGS Report, and the ROD acknowledge considerable uncertainty regarding whether
and how mining contributes to groundwater contamination in the Grand Canyon watershed. The USGS
Report, for example, found that “[t]he hydrologic processes that control the distribution and mobilization of
natural uranium in this hydrogeologic setting are
poorly understood,” and that available information regarding any correlation between mining and groundwater contamination was “limited and inconclusive.”
Both the final EIS and the ROD recognized that the
risk to water quality in the R-aquifer was likely low,
App. 40a
but that significant uncertainty existed regarding
travel times and hydrogeologic conditions within particular breccia pipes. In both documents, Interior observed that the Bureau would benefit from continued
study, which a temporary withdrawal would allow.
But after acknowledging the uncertainties and
need for further study, the ROD concluded that unfettered mining presented a small but significant risk of
dangerous groundwater contamination – a risk that
would be substantially mitigated by the withdrawal.
The final EIS supports this conclusion.
Some analysts within the Department of the Interior disagreed. They believed the scientific data presented
in the EIS insufficient to justify the withdrawal.25 But
the existence of internal disagreements regarding the
potential risk of contamination does not render the
agency’s ultimate decision arbitrary and capricious.
Scientific conclusions reached by the agency need not
reflect the unanimous opinion of its experts. “[A] diversity of opinion by local or lower-level agency representatives will not preclude the agency from reaching a
contrary decision, so long as the decision is not arbitrary and capricious and is otherwise supported by the
record.” WildEarth Guardians v. Nat’l Park Serv., 703
25
In particular, some BLM employees expressed skepticism
about withdrawal of the 120,000 acres outside the Grand Canyon
watershed. One analyst stated via email that he “ha[d] not seen
any written criteria which justif[y] the withdrawal” for that portion of the tract. Another observed that large areas within the
North Parcel “have low resource value” and recommended that
the agency consider excepting them from the withdrawal.
App. 41a
F.3d 1178, 1186-87 (10th Cir. 2013); see also Nat’l Ass’n
of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 65859 (2007).
Again, we must uphold the agency’s choice so
long as it is “supported by reasoned analysis.” Ecology
Ctr. v. Castaneda, 574 F.3d 652, 665 (9th Cir. 2009). The
record demonstrates that the Secretary conducted a
carefully reasoned analysis, considered the available
scientific data, weighed diverse opinions from Interior
experts and public commenters, recognized the limitations of the available scientific evidence, and concluded
that a cautious approach was necessary to forestall
even a low probability of contamination in excess of
EPA thresholds – thresholds developed in response to
serious concerns about human health. See 65 Fed. Reg.
76,708. The Secretary stressed that the withdrawal
was not permanent, affording the opportunity to collect
additional data about the hydraulic patterns in the
area and the impact of uranium mines on water resources. We cannot say that the withdrawal decision
was arbitrary, capricious, or not in accordance with the
law.
2. Cultural and Tribal Resources
Appellants next contend that the Secretary lacked
the authority to withdraw such a large tract of land for
the purpose of protecting cultural or tribal resources,
and that even if it had the authority, it acted arbitrarily and capriciously in exercising it. We do not agree
with either proposition.
App. 42a
FLPMA permits the Secretary to premise a withdrawal of public lands from new mining claims on the
protection of cultural and tribal resources. The congressional policy statement included in FLPMA contemplates that Interior will manage public lands in
part for the protection of “historical” and “archaeological” values. 43 U.S.C. § 1701(a)(8). Consistent with that
mandate, Interior’s regulations require that an EIS,
prepared in compliance with NEPA, include a full report on “the identification of cultural resources” possibly impacted by agency action. 43 C.F.R. § 2310.32(b)(3)(I).
Appellants argue that the withdrawal was overbroad because it was not “based on particular sites or
sacred areas,” but rather covers a large tract of federal
land that includes multiple sites. But the final EIS explained that the withdrawn area as a whole is of profound significance and importance to Native American
tribes. The entirety of the North and East Parcels falls
within the traditional territory of the Southern Paiute,
while the Southern Parcel is a traditional use area for
the Navajo, the Hopi, the Hualapai and the Havasupai
tribes. Many tribes, including the Hopi, view the whole
territory as sacred and regard any drilling and mining
as inflicting irreparable harm. Moreover, the final EIS
also identified a host of specific sites, trails, hunting
areas, springs, and camps which are of traditional importance to several tribes and are cultural and archeological treasures in their own right.
Nothing in FLPMA or our case law indicates that
the Secretary may not withdraw large tracts of land in
App. 43a
the interest of preserving cultural and tribal resources.
Nor is there any reason to believe that a withdrawal
must be restricted to narrow carveouts tracing the perimeter of discrete cultural and historical sites, as opposed to a larger area containing multiple such sites.26
Courts have previously upheld large-tract withdrawals justified in part by the protection of tribal resources
and “areas of traditional religious importance to Native Americans.” See, e.g., Mount Royal Joint Venture v.
Kempthorne, 477 F.3d 745, 752 (D.C. Cir. 2007).
26
Metamin and AEMA contend that the Secretary’s independent decision to withdraw large tracts of federal lands from
mining based in part on the protection of tribal resources essentially grants the tribes veto power over mining on traditional
tribal lands. That argument rests on an erroneous reading of our
case law. Metamin cites a line of cases in which we have held that
Native American tribes could not block a federal agency’s approval of mining or other commercial activities on large tracts of
particular cultural or religious value to the tribes. See S. Fork
Band Council of W. Shoshone Indians of Nev. v. U.S. Dep’t of the
Interior, 588 F.3d 718, 724 (9th Cir. 2009); Navajo Nation v. U.S.
Forest Serv., 535 F.3d 1058, 1070-74 (9th Cir. 2008) (en banc);
Havasupai Tribe v. United States, 752 F. Supp. 1471, 1484-86 (D.
Ariz. 1990), aff ’d sub nom. Havasupai Tribe v. Robertson, 943 F.2d
32 (9th Cir. 1991). Those cases hold that federal agencies are not
compelled to withdraw large tracts of public land from particular
uses because of the potential impact on tribal resources. Nothing
in our case law suggests that an agency is barred from doing so
based on its own judgment. To the contrary, those cases reaffirm
the federal government’s right to make what it deems to be appropriate use of its land. See Navajo Nation, 535 F.3d at 1072 (citing Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,
451-53 (1988)).
App. 44a
3. Other Resources
Appellants also challenge the Secretary’s third
reason for the withdrawal: to protect “other resources,”
including visual resources and wildlife. This challenge
fails as well.
The record supports the conclusion that there
would be a significant impact on visual resources and
a risk of significant harm to wildlife absent the withdrawal. The final EIS concluded that if new mining
claims proliferated, the impact on visual resources
would range from minor to major, depending on the
area, but would likely be “moderate” overall. The ROD
found that mining-related emissions, dust, and haze
would be dramatically higher absent the withdrawal,
with a consequent risk to air quality and visibility.
Although some of the effects of increased uranium
mining – such as the effects of increased levels of radionuclides on wildlife – were unknown or difficult to
project, the final EIS concluded that the relative impact of mining on wildlife would be “significantly less”
if the proposed area were withdrawn. Fewer roads and
power lines would be built, and trucking would be significantly decreased. And the final EIS explained that
even a minimal degree of water contamination could
have considerable impact on aquatic species.
4. Economic Benefits
Appellants propose that Interior violated both
FLPMA and NEPA by miscalculating the amount of
uranium in the withdrawn area and thus failed
App. 45a
accurately to weigh the economic impact of the withdrawal. Specifically, Appellants argue that the USGS
Report used outdated information from a 1990 USGS
study, and that BLM failed to account for “hidden”
breccia pipes (pipes not exposed above ground) in its
analysis of the economic impact of precluding new mining claims. Appellants proffer their own analyses of the
quantity of uranium in the withdrawn area, which
they project to be five times larger than the USGS Report’s estimate of 162,964 tons. These challenges fail
for several reasons.
First, Appellants offer no basis for concluding that
the methodology of the 1990 Report was unsound. Further, the 2010 USGS Report did not in fact incorporate
the 1990 Report wholesale. It incorporated some of the
findings of the 1990 Report, but made several adjustments and recalculations in a peer-reviewed update.
The 2010 Report also relied on several peer-reviewed
papers published before and after the 1990 Report, including one authored by an expert, Karen Wenrich,
who opposed the withdrawal.
Additionally, BLM reviewed and reasonably responded to Appellants’ proposed alternative calculations, made in comments on the proposed withdrawal.
The agency concluded that the alternative proposals
had not been sufficiently developed or peer-reviewed
and so declined to accord them significant weight. With
regard to Appellants’ contention that BLM failed to account for “hidden” breccia pipes in its economic analysis, BLM stated in response to NMA’s public comments
App. 46a
that those pipes were in fact incorporated into BLM’s
numerical estimates.
In sum, the agency’s findings regarding the quantity of uranium in the withdrawn area were not arbitrary or capricious, as the agency relied on peerreviewed data and reasonably explained why it did not
adopt Appellants’ alternative version.
B. Boundaries
Opening up another front, Appellants maintain
that two subsections of the withdrawn area – roughly
120,000 acres in the western section of the North Parcel, which are part of the Virgin River watershed rather than the Grand Canyon watershed, and an
additional 80,000 acres in the northeast section of the
North Parcel, where groundwater is believed to flow
away from the Colorado River and Grand Canyon National Park – should not have been included even if the
withdrawal was otherwise proper (which, of course,
they dispute). Observing that the withdrawn area has
essentially the same boundaries included in Rep. Grijalva’s unsuccessful legislation, Appellants contend
that the Secretary did not make an independent determination that withdrawal of those discrete areas was
merited. Inclusion of those 200,000 acres, Appellants
maintain, is inconsistent with both (1) the stated purpose of the withdrawal as expressed in the BLM’s 2009
application for the withdrawal (to protect “the Grand
Canyon watershed”), and (2) the guidance of Interior
manuals directing that withdrawals “be kept to a
App. 47a
minimum consistent with the demonstrated needs of
the applicants.”27 Department of the Interior, 603 DM
1.1(A) (Aug. 1, 2005).
The principal flaw in this partial challenge is that
protection of the Grand Canyon watershed was not the
only basis for the withdrawal. As the district court
noted, the three other bases for the withdrawal are
fully applicable to the disputed 200,000 acres. In particular, in including the North Parcel in the withdrawal
area, Interior relied not just on water or air contamination, but also on the anticipated impact mining
would have on wildlife, cultural, tribal, and visual resources.
For example, BLM observed in the final EIS that
the “no action” alternative could increase wildlife mortality and reduce viability – particularly across the
North Parcel – due to “noise and visual intrusions,” the
development of new roads and power lines, and “chemical and radiation hazards.” The final EIS also observed that several tribes considered some or all of the
North Parcel an ancestral homeland with significant
cultural value. The entire North Parcel overlaps with
Southern Paiute band territories, which, according to
a University of Arizona ethnographic report commissioned by Grand Canyon National Park and cited in
the final EIS, “remain important in the cultural life
and history of Southern Paiute tribes.”
27
We note that Interior’s manuals do not carry the force of
law and are not binding. McMaster v. United States, 731 F.3d 881,
888-89 (9th Cir. 2013).
App. 48a
Alternative C would not have withdrawn areas
“with isolated or low concentrations of [biological] resources” that could be adversely affected by mineral
exploration and development, such as the area outside
the Grand Canyon watershed. But the final EIS considered and rejected Alternative C because it still
risked a number of adverse consequences. Interior anticipated a harmful impact to wildlife under Alternative C – though of a lesser magnitude – as well as a
“very high” potential for disturbance “of places of cultural importance to American Indians within the
North Parcel.”28 Full withdrawal had “the greatest potential of all alternatives . . . to not change the existing
wilderness characteristics.”
The upshot is that arguments concerning the disputed 200,000 acres (and Alternative C) are myopically
– and, so, incorrectly – focused solely on an asserted
disconnect between that area and the Grand Canyon
watershed. The Department of the Interior’s assigned
role is administering public lands in a manner “that
will protect the quality of scientific, scenic, historical,
ecological, environmental, air and atmospheric, water
resource, and archeological values.” 43 U.S.C. § 1701(a)(8).
That responsibility goes well beyond particular groundwater areas or watersheds. The Secretary appropriately included the full North Parcel in the withdrawal
area after considering all relevant environmental and
28
The northeast and west portions of the North Parcel include several specific sites of cultural significance identified in the
final EIS, albeit fewer than the rest of the North Parcel.
App. 49a
cultural impacts. The decision to do so was not arbitrary and capricious.
Importantly, we note also that although Interior’s
analysts concluded that the hydrological basis for withdrawing the disputed 200,000 acres was not especially
strong, they also observed that, within that acreage,
underground fault zones conveyed some groundwater
“south toward the Grand Canyon.”29 Interior’s cautious
assessment of the possible impact of any groundwater contamination in the North Parcel reflected the
agency’s recognition that the hydrology of the North
Parcel was not particularly well studied or understood.
C. Multiple-Use Mandates
Somewhat opaquely, Appellants raise yet another
challenge to the Secretary’s withdrawal decision – that
it contravened the principle that land management
under FLPMA “be on the basis of multiple use and sustained yield.” 43 U.S.C. § 1701(a)(7). This argument
lacks merit.
29
For example, a National Parks Service hydrologist, Larry
Martin, stated in an internal email that “[t]he [draft EIS] goes to
great lengths in an attempt to establish impacts to water resources from uranium mining. It fails to do so, but instead creates
enough confusion and obfuscation of hydrogeologic principles to
create the illusion that there could be adverse impacts if uranium
mining occurred.” Martin’s manager, Bill Jackson, observed that
“the hard science doesn’t strongly support a policy position,” but
also observed that the prevailing uncertainty as to the risk of contamination was itself a possible reason for withdrawal.
App. 50a
FLPMA defines “multiple use” as “the management of the public lands and their various resource
values so that they are utilized in the combination that
will best meet the present and future needs of the
American people,” and specifically contemplates “the
use of some land for less than all of the resources” and
the long-term preservation of “natural scenic, scientific
and historical values.” 43 U.S.C. § 1702(c). Accordingly,
FLPMA cautions the Secretary to give consideration to
“the relative values of the resources and not necessarily to the combination of uses that will give the
greatest economic return or the greatest unit output.”
Id.
As the Supreme Court has observed, “multiple
use” is a “deceptively simple term that describes the
enormously complicated task of striking a balance
among the many competing uses to which land can be
put.” Norton v. S. Utah Wilderness Alliance, 542 U.S.
55, 58 (2004). It does not, as Appellants suggest, require the agency to promote one use above others. Nor
does it preclude the agency from taking a cautious approach to assure preservation of natural and cultural
resources. The agency must weigh competing interests
and, where necessary, make judgments about incompatible uses; a particular parcel need not be put to all
feasible uses or to any particular use. See New Mexico
ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d
683, 710 (10th Cir. 2009). Consequently, the principle
of multiple use confers broad discretion on an implementing agency to evaluate the potential economic
App. 51a
benefits of mining against the long-term preservation
of valuable natural, cultural, or scenic resources.
Here, Interior engaged in a careful and reasoned
balancing of the potential economic benefits of additional mining against the possible risks to environmental and cultural resources. This approach was fully
consonant with the multiple-use principle.
D. Sufficiency of Existing Laws and Regulations
Launching yet another line of attack, Metamin
and AEMA maintain that the Interior did not adequately consider whether existing laws and regulations were sufficient to protect the resources identified
in the ROD, undermining the justification for the withdrawal. Alternatively, and to some degree in contraiction, Metamin and AEMA represent that Interior
found existing laws and regulations sufficient but did
not draw the proper conclusion – that withdrawal was
unjustified. Neither argument is persuasive.
The final EIS repeatedly acknowledged that some
applicable laws and regulations mitigate the impact of
uranium mining on environmental, cultural, and visual resources, as well as wildlife and human health.
But the final EIS does not suggest that simply enforcing existing laws and regulations would suffice to meet
the purposes of the withdrawal.
For example, the final EIS examined the relative
impacts of Alternative A (wherein the agency would
App. 52a
take no action and existing laws and regulations would
be left in place) and Alternative B (the full withdrawal)
at great length. The final EIS concluded that the potential negative impact on water resources would be
significantly greater under Alternative A, a comparison that expressly accounted for the applicable regulatory schemes. With respect to cultural and tribal
resources, the final EIS concluded that (1) under the
existing regulatory regimes, “it may not be possible to
reduce all such adverse effects in the long term, especially impacts to the character, association and feeling
of the setting”; (2) mitigation of the expected damage
to tribal resources, in particular, “may be difficult or
impossible in many cases”; and (3) “the preferred mitigation method is avoidance.” Limiting the withdrawal
to 600,000 acres – still a sizeable area – would, the final EIS concluded, have resulted in a “very high” impact on cultural and tribal resources. With respect to
wildlife and visual resources, the final EIS’s comparison of Alternatives A and B demonstrated that the existing regulatory scheme would be “significantly” less
effective without the withdrawal, and that taking no
action would result in a moderate impact on those resources.
In short, the final EIS did take existing legal regimes into account but reasonably concluded that they
were inadequate to meet the purposes of the withdrawal.
App. 53a
IV. The Establishment Clause
Appellant Gregory Yount alone challenges the Secretary’s withdrawal as violating the Establishment
Clause of the First Amendment.
The Secretary observed in the ROD that uranium
mining “within the sacred and traditional places of
tribal peoples may degrade the values of those lands to
the tribes that use them.” According to Yount, precluding new mining claims on federal land out of concern
that the area has sacred meaning to Indian tribes violates the Establishment Clause.
In general, state action does not violate the Establishment Clause if it (1) has a secular purpose, (2) does
not have a principal or primary effect of advancing or
inhibiting religion, and (3) does not foster excessive
government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The withdrawal easily satisfies this test.
Preservation of “cultural and tribal resources” was
one of four rationales for the withdrawal identified in
the ROD. And although some of the tribal resources in
question had sacred meaning and uses for tribe members, many did not. The final EIS identified “sacred
sites” as just one of several varieties of important tribal
resources: others included “tribal homelands, places of
traditional importance, traditional use areas, trails,
springs and waterways.” Accordingly, as just part of
four reasons for action, preserving tribes’ religious use
of disputed lands was neither a motivating purpose for
nor a principal or primary effect of the withdrawal.
App. 54a
Furthermore, preservation of areas of cultural or
historic value area may constitute a “secular purpose”
justifying state action even if the area’s significance
has, in part, a religious connection. See Access Fund v.
U.S. Dep’t of Agric., 499 F.3d 1036, 1043-44 (9th Cir.
2007). California’s missions, Alaska’s Russian-era Orthodox churches, and Ancient Hawaii’s heiau carried
religious significance to those who built them, and may
carry religious connotations to some of those who visit
today. So, too, “the National Cathedral in Washington,
D.C.; the Touro Synagogue, America’s oldest standing
synagogue, dedicated in 1763; and [the] numerous
churches that played a pivotal role in the Civil Rights
Movement, including the Sixteenth Street Baptist
Church in Birmingham, Alabama.” Cholla Ready Mix,
Inc. v. Civish, 382 F.3d 969, 976 (9th Cir. 2004).
“[B]ecause of the central role of religion in human societies, many historical treasures are or were sites of
religious worship.” Id. But that does not negate the
value of these sites as a part of our secular cultural
inheritance. The American Indian sacred land at issue
here is no different.30 Access Fund, 499 F.3d at 1044-45;
30
Yount’s reliance on Lyng v. Northwest Indian Cemetery
Protective Association is misplaced for much the same reason as
Metamin’s and AEMA’s reliance on the Lyng line of cases. See supra note 26. Lyng held that the Free Exercise Clause did not compel the government to defer to tribal religious interests when
managing public land. 485 U.S. at 453-54. It in no way held that
the Establishment Clause compelled the government to disregard
tribes’ interests in their sacred sites. See, e.g., id. at 454 (“The Government’s rights to the use of its own land . . . need not and should
not discourage it from accommodating religious practices like
those engaged in by the Indian respondents.”).
App. 55a
Cholla Ready Mix, 382 F.3d at 976. For that reason as
well, the withdrawal had a secular purpose and did not
have as a primary effect advancing religion.
Finally, there is no colorable contention that the
Secretary’s withdrawal fosters “excessive government
entanglement with religion.” Lemon, 403 U.S. at 613.
Yount has suggested that a withdrawal premised on
the protection of areas associated with “archaic religious dogma” that “few currently follow” somehow
inserts the federal government into a debate over
American Indian religious life. But again, even with
respect to tribal resources, the reasons for and effect of
the Secretary’s withdrawal were primarily secular. The
withdrawal in no way “involves comprehensive, discriminating, and continuing state surveillance of religion.” Nurre v. Whitehead, 580 F.3d 1087, 1097 (9th Cir.
2009) (citation omitted). Nor is there any evidence that
it “divides citizens along political lines” for reasons related specifically to American Indian religious practice. Id. at 1097 (citation omitted); see Lemon, 403 U.S.
at 622. Thus, the Establishment Clause challenge fails
under Lemon.
V.
NEPA
A. Essential Information
Appellants also contend that the final EIS regarding the withdrawal violated NEPA. Appellants propose, first, that by ignoring missing data essential to
its analysis, BLM failed to consider an important aspect of the problem facing the agency. We do not agree.
App. 56a
The EIS is “[t]he centerpiece of environmental
review . . . , in which the responsible federal agency describes the proposed project and its impacts, alternatives to the project, and possible mitigation for any
impacts.” Oregon Nat. Desert Ass’n v. Jewell, 840 F.3d
562, 568 (9th Cir. 2016). NEPA’s implementing regulations require that “[w]hen an agency is evaluating
reasonably foreseeable significant adverse effects on
the human environment in an environmental impact
statement and there is incomplete or unavailable information, the agency shall always make clear that
such information is lacking.” 40 C.F.R. § 1502.22. When
that information is deemed “essential to a reasoned
choice among alternatives,” the agency must either obtain it or, if the information is not obtainable, include
in the EIS (1) a statement identifying relevant unavailable or incomplete information; (2) a discussion of
the relevance of that information to potential environmental impacts; (3) a summary of the available credible scientific evidence which is relevant to evaluating
foreseeable environmental impacts; and (4) the agency’s
evaluation of those impacts based upon generally accepted scientific approaches. 40 C.F.R. § 1502.22(a), (b);
see Native Vill. of Point Hope v. Jewell, 740 F.3d 489,
497 (9th Cir. 2014) (holding that the steps specified by
§ 1502.22(b) are required if the agency finds “`essential’ information to be unobtainable”).
Here, the final
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