Petition for Writ of Certiorari — American Exploration & Mining Association, Petitioner v. Ryan Zinke, Secretary of the Interior, et al.

Supreme Court briefMar 9, 2018

Ask Donna

What actually matters in this document.

Text

App. 1a

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL MINING ASSOCIATION,

Plaintiff-Appellant,

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

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

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,

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

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

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

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.

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.

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

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

“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

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).

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).

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

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’

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.

The Counties comprised Garfield, Kane, San Juan, and

Washington Counties in Utah, and Mohave and Coconino Counties in Arizona.

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

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.

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

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.

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

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).

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

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.

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

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

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

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

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

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).

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.”

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

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.

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;

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.

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 EIS fully abided by these regulatory requirements. The final EIS consistently acknowledged that information was incomplete with respect

to a critical aspect of the withdrawal – namely, the

App. 57a

connection between uranium mining and increased

uranium concentrations in groundwater in the withdrawn area. The document included several subsections titled “Incomplete or Unavailable Information,”

which discussed the relevance of that missing information to its analysis. For example, BLM acknowledged in the final EIS that “more precise information

on the locations of exploration sites, mine sites, and

roads would be useful to better understand the . . . impacts to wildlife and fish species,” and that “[a] more

thorough quantitative data investigation of water

chemistry in the Grand Canyon region would be helpful to better understand groundwater flow paths,

travel times, and contributions from mining activities.”

As required, the EIS then summarized the scientific

evidence that was available and discussed foreseeable

environmental impacts.

Furthermore, the ROD concluded that the missing

information was not “essential to making a reasoned

choice among alternatives.” 40 C.F.R. 1502.22. The

ROD observed that there was data regarding dissolved

uranium concentrations near six previously mined

sites, and that a reasoned choice could be made using

that data. The ROD stated that collecting additional

data would be “helpful for future decisionmaking in the

area” (emphasis added). But as the withdrawal was not

permanent and would apply only to new mining

claims, the ROD noted, additional data could be collected during the withdrawal period and used to determine whether additional mines should be allowed in

the future.

App. 58a

Interior expressly stated that the missing information was non-essential only in the ROD, not in the

final EIS. We agree with the Seventh and Tenth Circuits that an agency is not required to state specifically

in the final EIS that relevant missing information was

non-essential. “[NEPA’s implementing] regulations do

not prescribe the precise manner through which an

agency must make clear that information is lacking.”

Habitat Educ. Ctr., Inc. v. U.S. Forest Serv., 673 F.3d

518, 532 (7th Cir. 2012); see also Colorado Envtl. Coal.

v. Dombeck, 185 F.3d 1162, 1172-73 (10th Cir. 1999). As

the final EIS complied with the requirements for essential information, thereby ensuring that interested

parties had notice that the agency’s information was

incomplete, the delay in determining that the missing

data was not essential is of no moment.

In short, the ROD concluded that any missing information was non-essential, and the final EIS identified that missing information, discussed its relevance,

weighed the available scientific evidence, and presented its conclusions regarding potential environmental impact based on the available data – exactly

what 40 C.F.R. § 1502.22(b) would have required if the

missing information had been essential information.31

“We will defer to the agency’s judgment about the appropriate level of analysis so long as the EIS provides

Metamin’s citation to Montana Wilderness Association v.

McAllister, 666 F.3d 549 (9th Cir. 2011), is unavailing. We held in

Montana Wilderness Association that the Forest Service erred in

failing to account for the relevance of missing information at all.

666 F.3d at 560-61.

App. 59a

as much environmental analysis as is reasonably possible under the circumstances, thereby providing sufficient detail to foster informed decision-making at the

stage in question.” Point Hope, 740 F.3d at 498 (citations and alterations omitted). Such deference is due

here.

B. Coordination with Counties

A second front of the NEPA challenge concerns requirements in FLPMA and NEPA regarding consultation with local government. As relevant here, FLPMA

requires that the Secretary shall, “to the extent consistent with the laws governing the administration of

the public lands, coordinate the land use inventory,

planning, and management activities of or for such

lands with the land use planning and management

programs” of the “local governments within which the

lands are located” and shall “provide for meaningful

public involvement of State and local government officials, both elected and appointed, in the development

of land use programs, land use regulations, and land

use decisions for public lands.” 43 U.S.C. § 1712(c)(9).

NEPA’s implementing regulations also require that

federal agencies “cooperate with State and local agencies to the fullest extent possible to reduce duplication

between NEPA and State and local requirements.” 40

C.F.R. § 1506.2(b). Metamin and the Counties contend

App. 60a

that the Secretary did not fulfill these overlapping obligations. They are wrong.32

Interior held public meetings, designated the

Counties as cooperating agencies, and met separately

with representatives from the Counties. It also considered public comments submitted by the Counties regarding the withdrawal.

Based in part on the comments it received from

the Counties, BLM ordered an expanded economic impact analysis for the region and consulted county representatives to determine what, if any, additional data

to include in its modeling. The final EIS contained extensive analysis (spanning more than fifty pages) of

the potential impact of withdrawal on the Counties

and other affected communities, including economic

impact, and observed that Mohave County passed a

resolution opposing the withdrawal. The record thus

demonstrates that Interior fully acknowledged and

considered the Counties’ concerns regarding the withdrawal, even though it chose in the end to proceed.

FLPMA and NEPA require no more. In particular, the

consent of state and local governments to a withdrawal

is in no way required – and with good reason, as regional environmental threats must always be balanced

against the economic gains the local governments

Interior notes that FLPMA’s local government coordination requirement applies to “land use plans,” 43 U.S.C. § 1712(c),

and that a withdrawal from mining claims is not a “land use plan”

within the meaning of the statute. We need not address this issue,

as we conclude that the agency complied with the consultation

requirements, assuming they apply.

App. 61a

could reap if no federal action were taken. NEPA does

not confer veto power on potentially affected state or

local governments, each with its own economic interests.

Finally, Appellants propose that Interior did not

comply with 40 C.F.R. § 1506.2(d), which requires

agencies to “discuss any inconsistency of a proposed action with any approved State or local plan and laws”

and, “[w]here an inconsistency exists . . . describe the

extent to which the agency would reconcile its proposed action with the plan or law.” Appellants maintain that the withdrawal is inconsistent with county

resolutions opposing the withdrawal. Those resolutions, however, are not “approved State or local plans

or laws.” The final EIS and ROD did consider approved

county plans and found no inconsistencies or conflicts.

IV. Forest Service Consent

The final arrow in Appellants’ very large quiver is

the contention that the Forest Service’s consent to the

withdrawal was arbitrary, capricious, or otherwise not

in accordance with law, because it did not comply with

the National Forest Management Act (“NFMA”) multiple-use mandate, 16 U.S.C. § 1604(e), or the terms and

conditions of the Kaibab National Forest Plan established under the NFMA. The area withdrawn included

approximately 355,874 acres in the South and East

Parcel managed by the Forest Service. Including that

land in the withdrawal area required the consent of the

Forest Service, which the Forest Service provided.

App. 62a

AEMA argues that the Kaibab Forest Plan, as of the

effective date of the withdrawal, expressly contemplated the withdrawal from mining only of four specific

areas within the forest, making the Forest Service’s

consent to a larger withdrawal area inoperative.

Neither the Forest Service nor the Department of

Agriculture (of which the Forest Service is a part) has

the authority to open or close public lands for mining.

That authority is delegated only to the Secretary of the

Interior. Section 202 of FLPMA specifies that public

lands “shall be removed from or restored to the operation of the Mining Law of 1872 . . . or transferred to

another department, bureau, or agency only by withdrawal action pursuant to [43 U.S.C. § 1714] or other

action pursuant to applicable law.” 43 U.S.C. § 1712(e)(3)

(emphasis added). The specified section of FLPMA, in

turn, delegates withdrawal authority to the Secretary

of the Interior and states that the Secretary may further delegate that authority only to other presidential

appointees within the Department of the Interior. 43

U.S.C. § 1714(a).

The NFMA does not confer withdrawal authority

on the Forest Service either. That statute concerns

the management of forests and their “renewable resources.” 16 U.S.C. § 1600(2). Minerals are not renewable resources and are not directly within the Forest

Service’s purview.

FLPMA does require that “[i]n the case of lands

under the administration of any department or agency

other than the Department of the Interior,” including

App. 63a

the Forest Service, “the Secretary shall make, modify,

and revoke withdrawals only with the consent of the

head of the department or agency concerned.” 43 U.S.C.

§ 1714(I). Congress may have included the consent

requirement within FLPMA in part to ensure that Interior would account for significant aboveground impacts on lands managed by the Forest Service, or to

forestall interagency squabbling concerning jurisdiction over withdrawn lands. But it decidedly did not

confer on the Forest Service (or the Department of Agriculture) the power independently to open or close federal lands to mining.

Further, the Forest Service’s consent to the Secretary’s withdrawal was not inconsistent with the governing forest plan. AEMA’s argument rests on a faulty

premise: that the Forest Plan’s recommendation that

certain discrete areas under its purview be withdrawn

from mining, so as to protect renewable above-ground

resources, impliedly granted mining rights throughout

the remainder of the Kaibab National Forest. Again,

the Forest Service has no authority to open or close

public lands to mining claims. And even if it did possess such authority, the Kaibab National Forest Plan

did not preclude withdrawals beyond the four discrete

areas recommended. No guidance or directives within

the Kaibab Forest Plan suggest that the Forest Service

meant to block all withdrawals within the Kaibab National Forest beyond the four identified sites.33

AEMA also suggests that even if the Forest Service could

have consented to the proposed withdrawal consistently with the

App. 64a

CONCLUSION

At its core, the merits question in this case is

whether the Secretary was allowed to adopt a cautious

approach in the face of some risk, difficult to quantify

based on current knowledge, to what he called “America’s greatest national wonder.” Appellants raise a

myriad of challenges but in the end identify no legal

principle invalidating the Secretary’s risk-averse approach. As Interior concluded, withdrawal of the area

from new mining claims for a limited period will permit more careful, longer-term study of the uncertain

effects of uranium mining in the area and better-informed decisionmaking in the future.

For the foregoing reasons, we AFFIRM the judgment of the district court.

Kaibab National Forest Plan, the Forest Service failed to provide

adequate justification for its consent. This argument is without

merit. The Forest Service’s joint statement of consent with BLM,

though brief, referenced the potential environmental impacts to

the Kaibab National Forest detailed at greater length in the final

EIS. The Forest Service also noted that it had been a cooperating

agency throughout the withdrawal process.

App. 65a

APPENDIX A:

ACRONYMS USED IN THIS OPINION

AEMA American Exploration & Mining Association

APA Administrative Procedure Act

BLM

Bureau of Land Management

EIS

environmental impact study

FDAMA

Food and Drug Administration Modernization Act

FDCA

Federal Food, Drug, and Cosmetic Act

FLPMA

Federal Land Policy and Management

Act

NEPA

National Environmental Policy Act

NFMA

National Forest Management Act

PLLRC

Public Land Law Review Commission

R-aquifer

Redwall-Muav aquifer

ROD

Record of Decision

SER

Supplemental Excerpts of Record

USGS

United States Geological Survey

App. 66a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Gregory Yount,

Plaintiff,

No. CV11-8171-PCT DGC

(Lead case)

Ken Salazar, et al.,

Defendants.

National Mining

Association,

No. CV12-8038 PCT DGC

Plaintiff

Ken Salazar, et al.,

Defendants

Northwest Mining

Association,

No. CV12-8042 PCT DGC

Plaintiff

Ken Salazar, et al.,

Defendants.

Quaterra Alaska

Incorporated, et al.,

No. CV12-8075 PCT DGC

Plaintiff

Ken Salazar, et al.,

Defendants.

(Filed Mar. 20, 2013)

App. 67a

Plaintiffs National Mining Association and Nuclear Energy Institute (“NMA/NEI”) and Plaintiff

Northwest Mining Association (“NWMA”) have filed

motions for partial summary judgment in this consolidated action. Docs. 73,1 90. Plaintiffs assert in counts

one and seven of their respective complaints that the

Secretary of the Department of the Interior’s withdrawal of more than one million acres from mining location and entry in Northern Arizona should be

vacated because § 204(c) of the Federal Land Policy

Management Act (“FLPMA”) is unconstitutional.

Defendants Kenneth L. Salazar, Secretary of the

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

(“BLM”); the Forest Service; and the Department of Agriculture (collectively, “Federal Defendants”), and Defendant-Interveners Grand Canyon Trust et al. (“the

Trust”) have filed cross motions for partial summary

judgment on these counts. Docs. 101, 102.

The motions and cross motions have been fully

briefed (Docs. 101, 102, 110, 113, 115, 117), and the

Court held oral argument on March 1, 2013. For the

reasons stated below, the Court finds that § 204(c)’s

legislative veto, which provides that Congress can

block withdrawals in excess of 5,000 acres through a

resolution of both houses, is unconstitutional. The

Document 73 is docketed under case number 3:12-cv08038-DGC because it was filed before the separate cases in this

action were consolidated. Unless specifically noted, all other documents have been docketed under the lead case number, 3:11-cv08171-DGC.

App. 68a

Court also finds, however, that this provision is severable from the grant of authority relied on by the Secretary in this case. The Court therefore will deny

Plaintiffs’ motions for partial summary judgment and

grant Federal Defendants’ and Defendant-interveners’

cross motions.

Background.

On July 21, 2009, Secretary Salazar published notice of his intent “to withdraw approximately 633,547

acres of public lands and 360,002 acres of National Forest System lands for up to 20 years from location and

entry under the Mining Law of 1872.” Notice of Proposed Withdrawal, 74 Fed. Reg. 35,887, (July 21, 2009).

The 2009 Notice had the effect of withdrawing the land

from location and entry for up to two years to allow

time for analysis, including environmental analysis

under the National Environmental Protection Act

(“NEPA”). Id.

On August 26, 2009, the BLM, an agency within

DOI, published notice of its intent to prepare an Environmental Impact Statement (“EIS”) addressing the

proposed withdrawal, as required by NEPA. 74 Fed.

Reg. 43,152 (Aug. 26, 2009). The purpose of the withdrawal as explained in the notice was “to protect the

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

effects stemming from valid existing rights.” Id. at 43,

152-53.

App. 69a

After soliciting public comments, the BLM issued

a notice of availability of a Draft EIS on February 18,

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

considered four alternatives: a “No Action” alternative;

the withdrawal of approximately 1,010,776 acres for

20 years; the withdrawal of approximately 652,986

acres for 20 years; and the withdrawal of 300,681 acres

for 20 years. Id. at 9,595. After an extended opportunity for public comment, the BLM published a notice

of availability of the Final EIS on October 27, 2011. 76

Fed. Reg. 66,747 (Oct. 27, 2011). The Secretary issued

a Record of Decision on January 9, 2012, choosing to

withdraw “approximately 1,006,545 acres of federal

land in Northern Arizona for a 20-year period.” See No.

3:12-cv-08042, Doc. 27-1 at 3.

The Secretary made this withdrawal under the

authority granted in § 204 of FLPMA. 77 Fed. Reg.

2,563-01, 2,563 (Jan. 18, 2012). Section 204(c) authorizes the Secretary to make withdrawals “aggregating

five thousand acres or more . . . only for a period not

more than 20 years.”2 43 U.S.C. § 1714(c)(1). It further

provides that “[t]he 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

FLPMA defines a “withdrawal” as “withholding an area of

Federal land from settlement sale, location, or entry, under some

or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in

the area or reserving the area for a particular public purpose or

program[.]” 43 U.S.C. § 1702(j).

App. 70a

that such House does not approve the withdrawal.” Id.

The Secretary submitted its notice and reports to Congress on January 9, 2012, and Congress did not pass a

concurrent action within 90 days to block the withdrawal. See Doc. 101 at 72-88. The withdrawal therefore remains in effect.

II.

Discussion.

Plaintiffs argue that even though Congress did not

exercise its authority to void the withdrawal, the legislative veto provision enabling it to do so is unconstitutional and so interwoven with the withdrawal

authority given the Secretary in § 204(c) that the entire grant of authority must be struck down. See generally Docs. 73 & 90.3

A. The Legislative Veto.

Plaintiffs contend, and Defendants do not dispute,

that the provision permitting Congress to terminate a

withdrawal by concurrent resolution is unconstitutional because it allows Congress to act without adhering to normal constitutional requirements. The

Supreme Court in INS v. Chadha, 462 U.S. 919 (1983),

found that where Congress delegates authority to an

Because NMA/NEI and NWMA have joined in each other’s

motions, the Court will not separately identify which party asserts which arguments, but will instead refer to these parties collectively as “Plaintiffs.” The Court will take this same approach

with Federal Defendants and Defendant-Intervenors, referring to

them only as “Defendants.”

App. 71a

agency to make policy decisions that alter legal rights,

thus enabling the agency to engage in “legislative action,” Congress must “abide by that delegation of authority until that delegation is legislatively altered or

revoked.” Id. at 955. Congress cannot alter a decision

of such an agency merely through a resolution of one

or both houses because Congress must act “in conformity with the express procedures of the Constitution’s

prescription for legislative action: passage by a majority of both Houses and presentment to the President.”

Id. at 958. Section 204(c), which allows Congress to

void the Secretary’s decisions without presentment to

the President, is clearly unconstitutional under

Chadha.

B. Severability.

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

must therefore invalidate the entire section. The

touchstone for determining whether a challenged statutory provision is severable from other provisions is

the intent of Congress. Carter v. Carter Coal Co., 298

U.S. 238, 312 (1936) (explaining that the test for severability is “What was the intent of the lawmakers?”);

Chadha, 462 U.S. at 931-932 (noting that invalid portions of a 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.”) (internal quotation marks and

citations omitted); City of New Haven v. U.S., 809 F.2d

900, 903 (D.C. Cir. 1987) (“[T]he question whether the

App. 72a

unconstitutional legislative veto provision in section

1012 is severable from the remainder of that section

. . . [i]s purely one of congressional intent.”). Thus, the

key question for the Court to decide is whether Congress would have conferred § 204(c) withdrawal authority on the Secretary in the absence of a legislative

veto.

Plaintiffs argue that Congress would have discarded all of § 204(c) rather than enact a grant of authority to make withdrawals of 5,000 acres or more

(“large-tract withdrawals”) without a legislative veto.

Plaintiffs point to the historical and political events

leading up to the FLPMA, the language, structure, and

context of § 204(c), and the legislative history of the

FLPMA, all as showing that Congress would not have

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

to control that authority. Docs. 73 at 8-13; 90 at 17-21.

The Court will address these arguments separately.

Before doing so, however, the Court notes two legal

principles that will bear on the decision in this case.

First, a statute that contains an unconstitutional provision is presumed to be severable if Congress has included a severability clause in the statute. Chadha,

462 U.S. at 932. “A provision is further presumed severable if what remains after severance ‘is fully operative as a law.’ ” Id. at 934 (internal citation omitted).

Second, when a presumption of severability arises, the

party asking the Court to strike down a portion of the

statute must present “strong evidence” that Congress

would not have enacted the challenged portion of the

App. 73a

statute in the unconstitutional provision. Alaska Airlines v. Brock, 480 U.S. 678, 686 (1987).

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

Act or the application thereof is held invalid, the remainder of the Act and application thereof shall not be

affected thereby.” Act of Oct. 21, 1976, Pub. L. No. 94579, § 707, 90 Stat. 2743; 43 U.S.C. § 1701, historical

and statutory notes. This clause is similar in material

respects to the severability clause in Chadha, where

the Court emphasized that the clause applied to “ ‘any

particular provision of [the] Act.’ ” 462 U.S. at 932 (emphasis added by Chadha). The Court thus begins its

analysis with a presumption that the legislative veto

provision can be severed from the rest of § 204(c), leaving intact the Secretary’s authority to make the withdrawal at issue in this case. Plaintiffs can prevail in

their quest to invalidate all of § 204(c) and the Secretary’s withdrawal only if they present “strong evidence” that Congress would not have granted the

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

B. The Historical and Political Events

Preceding the FLPMA.

The authority to manage and regulate the use of

public lands originates in the Property Clause of the

U.S. Constitution, which vests in Congress the “power

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

App. 74a

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

however, that the Executive Branch historically exercised its own authority to withdraw public lands. In

1915, the Supreme Court affirmed this authority in

United States v. Midwest Oil Company, 236 U.S. 459

(1915), finding that Congress’s “acquiescence” in a

multitude of executive land withdrawals over a long

period of time had “readily operated as an implied

grant of power.” Id. at 479. At various times Congress

actually enacted statutes enabling the Executive to

withdraw public lands for specific purposes. As the Supreme Court later summarized in Lujan v. National

Wildlife Federation, 497 U.S. 871 (1990), management

of public lands under these many laws “became chaotic.” Id. at 876.

Congress responded in 1964 by forming the bipartisan Public Land Law Review Commission (“the Commission”) “to study existing laws and procedures

relating to the administration of the public lands.” Act

of Sept. 19, 1964, Pub. L. No. 88-606, 78 Stat. 982. After

study, the Commission found that “[t]he lack of clear

statutory direction for the use of the public lands has

been the cause of problems ever since Congress started

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

Law Review Comm’n, One Third of the Nation’s Land

43 (1970) (hereinafter Commission Report); see Doc.

102 at 36. The Commission found that “[t]he relative

roles of the Congress and the Executive in giving

needed direction to public land policy have never been

carefully defined[,]” and that the Executive used its

App. 75a

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

Congress “establish national policy in all public land

laws by prescribing the controlling standards, guidelines, and criteria for the exercise of authority delegated to executive agencies.” Id. at 2; see Doc. 102 at

35. The Commission further suggested that

Congress assert its constitutional authority

by enacting legislation reserving unto itself

exclusive authority to withdraw or otherwise

set aside public lands for specified limited

purpose uses and delineating specific delegation of authority to the Executive as to the

types of withdrawals and set asides that may

be effected without legislative action.

Id.; see Doc. 102 at 35.

Congress enacted the FLPMA in response to the

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

quoted above – that “Congress assert its constitutional

authority by enacting legislation reserving unto itself

exclusive authority to withdraw or otherwise set aside

public lands” – as evidence that Congress’s intent in

passing the FLPMA was to reign in executive authority over public land withdrawals. Doc. 90 at 10-11. As

Defendants point out, however, the full-text of the

quoted language contains a two-part recommendation:

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

specified limited-purpose uses,” and second, that Congress make a “specific delegation of authority to the

App. 76a

Executive as to the types of withdrawals and set asides

that may be effected without legislative action.” Doc.

102 at 15. This two-part suggestion can also be seen in

the Commission’s recommendation that “large scale

limited or single use withdrawals of a permanent nature” should only be effectuated by an Act of Congress,

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

The FLPMA adopted this two-part approach to

managing public lands. The statute specifically states

that “it is 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)

(emphasis added).

To accomplish the first part of this purpose, several sections of the FLPMA reserve to Congress exclusive authority over public land actions, including

preventing the Executive from modifying Congressional withdrawals for national monuments and wildlife refuges and reserving to itself the authority to

designate wilderness areas. See 43 U.S.C. §§ 1714(j),

1782. To ensure that Congress alone could initiate action in these areas, the FLPMA expressly repealed all

grants of authority to the Executive recognized in

App. 77a

Midwest Oil and 29 prior statutory grants of authority.

Act of Oct. 21, 1976, Pub. L. No. 94-579, § 704(a), 90

Stat. 2743, 2792.

To accomplish the second part of the Commission’s

recommendation, the FLPMA includes express grants

of withdrawal authority to the Executive. Section

204(a) provides that “the Secretary is authorized to

make, modify, extend, or revoke withdrawals but only

in accordance with the provisions and limitations of

this section.” 43 U.S.C. § 1714(a). Section 204(b) sets

forth the procedures the Secretary must follow, and the

next three subsections set forth, respectively, the procedures applicable to executive withdrawals over 5,000

acres, withdrawals less than 5,000 acres, and emergency withdrawals. Id. at § 1714(c)-(e). Thus, the

FLPMA did what the Commission recommended – it

reserved certain land actions for Congress alone (national monuments, wildlife refuges, and wilderness areas), and it also expressly delegated authority to the

Executive to take other land actions through specified

procedures.

Plaintiffs repeatedly emphasize that the FLPMA

sought to reign in executive authority over public

lands and to place limits and statutory protections

around executive withdrawal authority. That certainly

is correct. But the question to be decided in this case is

not whether Congress sought to reign in executive authority, but whether there is “strong evidence” that

Congress would have chosen to give the Executive no

large-tract withdrawal authority under § 204(c) if it

was unable to limit that authority with a legislative

App. 78a

veto. The recommendations of the Commission do not

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

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

As discussed above, the Commission was equally

concerned with enabling the Executive to act through

controlled delegation as it was with preserving Congress’s reserved powers. Even while noting the “increasing controversy” caused by the Executive’s use of

its implied withdrawal authority, the Commission recognized that such executive action stemmed from a

need to manage public lands for which Congress had

provided inadequate statutory guidance. Commission

Report at 44; see Doc. 102 at 37. The Commission accordingly recommended 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.” Id. at 2; see Doc.

102 at 35. In short, the Commission recommended that

Congress grant withdrawal authority to the Executive

without a legislative veto. This does not constitute

“strong evidence” that Congress would have withheld

the authority absent such a veto.4

Plaintiffs argue that the fact that Congress enacted the

veto provision even though the Commission had not recommended it suggests that Congress must have found the Commission’s recommendations insufficient to reign in executive power.

Doc. 110 at 13, n.12. Given the key role the Commission Report

played in the enactment of the FLPMA, however, it is equally

plausible that because the primary source guiding the enactment

of the FLPMA did not suggest a veto provision, Congress would

App. 79a

C. The Language, Structure, and Context

of § 204(c).

1. Policy Language.

Plaintiffs note that the language of the FLPMA repeatedly asserts legislative control over executive authority to withdraw public lands. Doc. 73 at 8. They

point to the FLPMA’s statement in § 102 declaring

that it is “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). They also

point to the FLPMA’s repeal of all implied authority to

the Executive and argue that this provision “bluntly

expresses Congress’s desire to reign in the withdrawal

authority of the Executive Branch.” Doc. 73 at 8-9. As

noted above, however, such provisions simply mirror

the Commission’s two-part recommendation that Congress reserve for itself withdrawal authority in specified areas (an action that required eliminating any

competing executive authority in those areas) and

grant specific authority to the Executive in other areas.

They say little about the importance of § 204(c)’s veto

provision in achieving these overall purposes.

have forgone such a provision had it known the provision was unconstitutional.

App. 80a

2. “Only.”

Plaintiffs further point to § 204(a), which states

that the “Secretary is authorized to make . . . withdrawals, but only in accordance with the provisions

and limitations of this section.” 43 U.S.C. § 1714(a),

cited in Doc. 73 at 9 (emphasis added). Plaintiffs argue

that this language shows that Congress could not have

intended the grant of authority in § 204(c) to exist

without all the provisions and limitations that pertain

to it, including the legislative veto. Doc. 73 at 9. This

language is repeated in § 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 [§ 204] or other action pursuant to applicable

law.” 43 U.S.C. § 1712(e)(3) (quoted in Doc. 110 at 7-8).

Plaintiffs maintain that this requirement, seen in tandem with the limiting language of § 204(a) and the

veto provision in § 204(c)(1), shows that “Congress was

willing to allow Interior to make long-term withdrawals of large acreage only if Congress could override that

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

Plaintiffs rely on Justice Scalia’s concurrence in

Miller v. Albright, 523 U.S. 420, 457-58 (1998). In Miller, an alien plaintiff had argued that two requirements for demonstrating one’s citizenship under the

Immigration and Nationality Act (“INA”) violated the

equal protection clause of the Constitution because

they required proofs of parentage from those born of

U.S. citizen fathers that were not required from those

born of U.S. citizen mothers. 523 U.S. at 424. Justice

App. 81a

Scalia opined that the Court could not sever the unconstitutional provisions and leave the rest of the statute

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

naturalized as a citizen of the United States in the

manner and under the conditions prescribed in this

subchapter and not otherwise.’ ” Id. at 457 (emphasis

added by Scalia). He found that “reliance upon the

INA’s general severability clause . . . is misplaced because the specific governs the general.” Id. In other

words, Justice Scalia found that Congress’s direct

statement that citizenship could be acquired in the

manner specified in the statute “and not otherwise”

overrode the severability clause’s suggestion that invalid provisions could be eliminated, leaving the rest

of the statute’s requirements in place.

Plaintiffs argue that the same analysis applies

here – that because Congress stated that the Secretary

could exercise his withdrawal authority “only” in compliance with the relevant subsections of § 204, none of

the provisions can be severed without violating Congress’s intent. For several reasons, the Court is not persuaded.

First, Miller did not find the challenged provisions

unconstitutional, so the Court never ruled on severability. Justice Scalia’s comments are not only in a concurrence, they are dicta.

Second, the INA provision in question included the

word “only” as well as the words “and not otherwise.”

Id. at 457 (“ ‘A person may only be naturalized as a

App. 82a

citizen of the United States in the manner and under

the conditions prescribed in this subchapter and not

otherwise.’ ” (emphasis added)). Justice Scalia relied on

the latter phrase – “and not otherwise” – for his conclusion. Section 204(a) of the FLPMA does not include

that phrase, and the presence of the single word “only”

is an insufficient basis, in the Court’s view, to disregard

Congress’s clear statement that “[i]f any provision of

the [FLPMA] or the application thereof is held invalid,

the remainder of the [FLPMA] and application thereof

shall not be affected thereby.” Act of Oct. 21, 1976, Pub.

L. No. 94-579, 90 Stat. § 707; 43 U.S.C. § 1701, historical and statutory notes (emphasis added).

Third, Justice Scalia reaffirmed that courts have

“judicial power to sever the unconstitutional portion

from the remainder [of an Act], and to apply the remainder unencumbered.” Id. The operative question,

he maintained, is “whether Congress would have enacted the remainder of the law without the invalidated

provision.” Id. That is precisely the question addressed

in this order.

Finally, Justice Scalia’s concurrence does not in

any way eliminate the presumption of severability

raised by the severability clause or the requirement

that “strong evidence” must be presented to overcome

that presumption. Chadha, 462 U.S. at 932; Alaska Airlines, 480 U.S. at 686.

App. 83a

3. Structure.

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

alone.” Doc. 73 at 11. They first argue that the Secretary’s large-tract withdrawal authority and the legislative veto are integrated into the same provision,

showing that Congress intended them to remain

linked. Subsection 204(c)(1) states, in relevant part:

[A] withdrawal aggregating five thousand

acres or more may be made . . . only for a period of not more than twenty years by the Secretary on his own motion or upon request by

a department or agency head. The Secretary

shall notify both Houses of Congress of such a

withdrawal no later than its effective date

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

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

the withdrawal.

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

procedures for exercising the veto. Id.

It is undisputed that Congress intended the veto

to apply to large-tract withdrawals and not to other

grants of authority. Thus, it is unremarkable that

the veto provision and the delegation of large-tract

withdrawal authority appear in the same subsection.

As Defendants point out, “it only makes sense from the

standpoint of clarity that a veto relating solely to

the withdrawal authority appear in close textual

App. 84a

proximity to that authority.” Doc. 101 at 14. The relevant question, however, is not whether Congress intended the veto to serve as a potential check on

large-tract withdrawals – it clearly did – but whether

there is “strong evidence” that Congress would have

withheld the large-tract withdrawal authority had it

known the veto was unconstitutional. As Chadha instructs, mere “reluctance” to delegate authority in the

absence of a legislative veto is not enough to rebut the

presumption of severability that attaches when Congress includes a severability clause. 462 U.S. at 932

(“Although it may be that Congress was reluctant to

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

presumption of severability raised by [the severability

clause].”). Plaintiffs’ textual proximity argument

therefore does little to advance the view that Congress

would not have wanted the Court to sever the unconstitutional veto provision, leaving the remainder of

§ 204(c) intact, particularly where the severability

clause permits that Court to do just that and “it is the

duty of th[e] court . . . to maintain the act in so far as

it is valid.” Alaska Airlines, 480 U.S. at 686; see also

Ayotte v. Planned Parenthood of N. New England, 546

U.S. 320, 329 (2006) (the court tries “not to nullify more

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

people”) (internal quotation marks and citations omitted).

App. 85a

4. Notice and Reporting Requirements.

Plaintiffs next argue that severing the legislative

veto would leave the notice and reporting requirements in § 204(c)(1) and § 204(c)(2) with no purpose.

Doc. 73 at 11-12. As shown above, § 204(c)(1) requires

that the Secretary notify both houses of Congress of a

large-tract withdrawal on or before the date that that

withdrawal goes into effect. 43 U.S.C. § 1714(c)(1). Section 204(c)(2) further requires that “[w]ith the notices

required by subsection (c)(1) of this section and within

three months after filing the notice under subsection

(e) of this section, the Secretary shall furnish to the

committees” a detailed report containing twelve specific elements, collectively detailing the rationale for

the withdrawal and documenting the procedures used

for public consultation, data collection, and evaluation.

See 43 U.S.C. § 1714(c)(2).

Subsection 204(c)(2)’s explicit reference to the notice requirement in (c)(1), and the fact that the required reports are to go to the committees who may,

within 30 days, either make a motion to veto that action or be discharged from further consideration (see

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

recommend a veto. This does not resolve the question,

however, of whether the reporting requirements have

value without a legislative veto provision.

The Court concludes that the reporting requirements provide a meaningful limitation on executive action even if no legislative veto may be exercised. They

App. 86a

require the Secretary to explain the reasons for the

withdrawal (§ 204(c)(2)(1)); evaluate the environmental impact of the current uses and the economic impact

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

at (3)); explain what provisions will be made for continuation or termination of existing uses (id. at (4));

consult with local governments and other impacted individuals and groups, and report on the impact of the

withdrawal on these parties (id. at (7)-(8)); state the

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

withdrawal can be examined by interested parties (id.

at (11)); and submit a report prepared by a qualified

mining engineer, engineering geologist, or geologist

concerning general geology, known mineral deposits,

past and present mineral production, and present and

future market demands (id. at (12)). As Defendants argue, such requirements “not only impose a duty to present certain information to Congress; they also force

the Secretary to incorporate such considerations into

his decision-making process prior to making a largetract withdrawal.” Doc. 101 at 16. Defendants equate

the value of these requirements to that of preparing an

EIS under NEPA. Id., n. 11.

Beginning with Chadha, legislative veto cases

have recognized the value of reporting requirements

separate from the veto provisions to which they pertain. In Chadha, Congress gave the Attorney General

authority under the INA to suspend an alien’s deportation. 462 U.S. at 923. The Act required the Attorney

App. 87a

General to provide Congress with a detailed statement

of the facts, relevant law, and reasons for suspension,

and it allowed for one house of Congress to block the

suspension. Id. at 924-25. The Court struck down the

one-house veto as unconstitutional, but found it severable from the grant of authority. Id. at 959. The Court

reasoned, in part, that “Congress’ oversight of the exercise of this delegated authority is preserved” under

the Act’s reporting requirements. Id. at 935. The Supreme Court found it significant that Congress would

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

Id., n. 8.

In Alaska Airlines, Congress enacted an employee

protection program as part of the Airline Deregulation

Act of 1978 and granted the Secretary of Labor authority to write implementing regulations. 480 U.S. at 678.

Similar to the statute at issue in Chadha, the Act included a “report and wait” provision under which the

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

the regulations to become effective in 60 days unless

blocked by a resolution of either house. Id. at 682. The

Supreme Court recognized that eliminating the veto

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

that Congress retained significant oversight even

without the veto because it would receive reports of the

Secretary’s action, could attempt to influence the Secretary during the waiting period, and could enact

App. 88a

proper legislation to block the Secretary’s regulations

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

In Alabama Power Company v. United States Department of Energy, 307 F.3d 1300, 1307, n. 5 (11th Cir.

2002), Congress authorized the Secretary of Energy to

make fee adjustments under the Nuclear Waste Policy

Act of 1982. The Act required the Secretary to conduct

annual reviews and evaluations of existing fees and to

transmit any proposed changes to Congress. Id. These

changes would go into effect in 90 days unless blocked

by resolution of either house of Congress. Id. The Eleventh Circuit found the reporting requirements significant even absent a veto because they would give

Congress the ability to “keep tabs on the Secretary’s

use of administrative discretion.” Id. at 1308.

These cases recognize that reporting requirements have oversight value even when severed from

the legislative veto to which they originally were attached. The detailed reporting requirements in

§ 204(c)(2) have similar value. They not only inform

Congress of the Secretary’s large-tract withdrawals so

that Congress can respond through the normal legislative process if warranted, they also ensure that the

Secretary will consider environmental and economic

impacts of the withdrawal, consider current uses of the

withdrawn land, consult with local governments and

other impacted individuals, hold public hearings, and

consult qualified experts about the known mineral deposits, past and present mineral production, and present and future market demands. See 43 U.S.C.

§ 1714(c)(2). These requirements will continue to have

App. 89a

significant meaning even after the legislative veto is

invalidated.

Plaintiffs argue that City of New Haven, 809 F.2d

900, is more applicable here. Doc. 110 at 8-9. In that

case, Congress granted the President authority to defer congressional appropriations to the end of the fiscal

year by sending a “special message” to Congress including the rationale for the deferral, its amount and

intended duration, and its probable fiscal consequences. 809 F.2d at 901. The presidential deferral was

to take effect automatically, but Congress could override it with a resolution of either house. Id., n. 1. The

D.C. Circuit acknowledged that Congress touched on

the need for effective notices during congressional debate, but agreed with the District Court’s findings

based on “overwhelming evidence of congressional intent” that “Congress – had it known that it could not

disapprove unwanted impoundments by means of a

legislative veto – would never have enacted a statute

that conceded impoundment authority to the President.” Id. at 903 (emphasis in original), 907, n. 19. As

the Court will discuss more fully below with respect to

legislative history, such “overwhelming evidence” is not

present here.

Plaintiffs further argue that cases that contain a

“report and wait” requirement are inapplicable because the FLPMA permits Executive Branch withdrawals to go into effect without a waiting period, so

that “without the veto, the notices contribute nothing.”

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

App. 90a

opportunity to influence an executive decision before it

takes effect, but this point does not help Plaintiffs. If

anything, the fact that the FLPMA allows executive

withdrawals to go into effect immediately suggests

that influencing executive action or attempting to

block it through a legislative veto was less important

to Congress in the FLPMA than in the “report and

wait” statutes.

5. Distinctions between Grants of Authority.

Plaintiffs argue that excising only the veto would

nullify the distinction Congress intended to make between small-tract withdrawals (less than 5,000 acres)

and large-tract withdrawals, as clearly evidenced by

the fact that Congress provided for this authority in

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

between § 204(c) and § 204(d), but the veto provision is

not the only important distinction between these sections. As discussed above, the reporting requirements

that attach to § 204(c) withdrawals remain and have

utility independent of the veto. Additionally, § 204(d)

allows for three separate kinds of withdrawals: one for

a “desirable resource use” that can be of unlimited duration, one for “any other use” that is limited to 20

years, and one for “a specific use then under consideration by the Congress” that is limited to 5 years. 43

U.S.C. § 1714(d)(1)-(3). Withdrawals under § 204(c), by

contrast, can be made only up to 20 years. Although a

large-tract withdrawal can be extended for the same

App. 91a

period as the original withdrawal, such extensions require review by the Secretary, a repeat of the notice

and reporting procedures for the original withdrawal,

and a determination that the extension is necessary to

achieve the original purposes. Id. at § 1714(f ). There is

no provision, as there is in § 204(d), for unlimited withdrawals. Nor does it appear that Congress intended

the Secretary to make large-tract withdrawals as a

way to effectuate uses under consideration by Congress as it envisioned the Secretary doing with smaller

withdrawals in § 204(d)(3). These distinctions remain

even without the veto provision. Thus, severing only

that provision would not collapse Congress’s separate

intentions with respect to § 204(c) and § 204(d).

6. Emergency Withdrawals.

Plaintiffs argue that elimination of the veto provision would effectively eliminate the need for § 204(e),

which permits emergency withdrawals for up to three

years, because the Secretary could use § 204(c) to withdraw the same land for up to 20 years. Doc. 110 at 11.

This overstates the case. Section 204(c)(2) imposes the

detailed reporting requirements described above for

large-tract withdrawals. 43 U.S.C. § 1714(c)(2). Although the same notice and reports are required for

emergency withdrawals, the Secretary may make

emergency withdrawals before preparing the reports.

Id. The fact that large-tract withdrawals made under

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

§ 204(c) could not be used to make withdrawals on the

App. 92a

same expedited basis as § 204(e) permits. Additionally,

public hearings, which are required for all other withdrawals, are not required under § 204(e). 43 U.S.C.

§ 1714(h). Thus, § 204(e) retains separate significance

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

Plaintiffs make a converse argument that elimination of only the veto provision in § 204(c) would render

the rest of that section superfluous because the Secretary could make large-tract withdrawals for up to 3

years in an emergency situation pursuant to § 204(e),

giving Congress time to enact proper legislation to extend those withdrawals for longer periods. Doc. 110 at

11. This argument is unpersuasive because § 204(e)

applies only “if an emergency situation exists and . . .

extraordinary measures must be taken to preserve values that would otherwise be lost.” 43 U.S.C. § 1741(e).

Absent § 204(c)’s delegation of authority, all non-emergency withdrawals of more than 5,000 acres would require an affirmative act of Congress. This is

inconsistent with Congress’s express delineation of

“the extent to which the Executive may withdraw

lands without legislative action,” particularly in light

of the dual purposes of the FLPMA as expressed in

§ 204(a) and embodied in the Commission Report. See

43 U.S.C. § 1701(a)(4); Doc. 102 at 35.

7. Other Arguments.

Plaintiffs’ remaining textual arguments are that

neither the 20-year limitation in § 204(c) nor Congress’s purported ability to reverse the Secretary’s

App. 93a

actions through the normal legislative process provides meaningful restraint on executive action absent

the veto. Doc. 110 at 8-9. Plaintiffs argue that the 20year limitation is “infinitely renewable,” and, even if

not renewed, is essentially a lifetime to those with current investments in the withdrawn area. Doc. 110 at 8.

Plaintiffs also argue that the possibility of reversing

the withdrawal through full legislative action is not a

viable alternative to a legislative veto because doing so

would require the President to agree to override actions of his own Secretary of the Interior. Id. at 9.

The Secretary’s ability under § 204(c) to withdraw

public lands for up to 20 years is, undeniably, a significant grant of power that would be made more pronounced absent an immediate mechanism for

legislative restraint. Any textual arguments that Congress would not have enacted this grant of authority

absent the legislative veto, however, are tempered by

the fact that Congress gave the Secretary unfettered

authority to make 20-year and other unlimited withdrawals under § 204(d) where public uses of smaller,

but still significant, acreage was at stake.5 The ability

The legislative history also shows that Congress increased

the duration of large-tract withdrawals from 5 to 20 years. House

members who commented in floor debates indicated that they did

not want Interior to be constantly saddled with paperwork or Congress to have the burden of frequent reviews. See, e.g., 122 Cong.

Rec. 23,438 (1976) (statement of Rep. Mink) (“[I]f withdrawals are

restricted to a maximum duration of 5 years, the Secretary will

be overwhelmed with almost endless paperwork and field studies

to justify, and continually rejustify, land management decisions.”);

id. at 23,436 (statement of Rep. Seiberling) (“This provision [requiring review of large-tract withdrawals subject to a veto every

App. 94a

to extend withdrawals made under § 204(c) is also not

unlimited. As noted above, the procedures required for

such an extension are substantial.

The argument that Congress would lack a viable

means to reverse a large-tract Executive Branch withdrawal through proper legislation requiring presentment to the President, and therefore would not have

granted the Secretary this authority absent the legislative veto, is also unpersuasive. The fact that Congress clearly wanted the ability to take legislative

action without presentment does not mean that, faced

with the unconstitutionality of that approach, Congress would have withheld its delegation of power even

when a proper legislative check on that power would

still be available.6 Withholding large-tract withdrawal

authority from the Executive would have saddled Congress with the responsibility for managing and

five years] is burdensome, time consuming, and counterproductive.”).

As noted in the legislative history section below, the House

Committee that reviewed and approved the House version of the

FLPMA contemplated that Congress could reverse large-tract executive withdrawals through the normal legislative process in

cases where the veto had not been utilized. The Committee noted

“each House will have, for a period of 90 days, the opportunity to

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

if the Secretary does not do so.” H.R. Rep. No. 94-1163, at 6,183

(1976). At least one Representative also recognized in floor debate

that for certain, irrevocable decisions, a veto may be more essential, but “if land is set aside by the Secretary and exempt from the

Mining Act . . . the land will still be there and Congress at any

time can open them up.” 122 Cong. Rec. at 23,454 (statement of

Rep. Seiberling).

App. 95a

enacting – through the full legislative process – all

withdrawals of land over 5,000 acres. The legislative

history discussed below suggests that Congress was

not eager to assume such a burden.

Moreover, provisions of the FLPMA other than the

legislative veto provide meaningful checks on executive authority. These include § 204(a), which restricts

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

large-tract withdrawals to 20 years, and § 204(c)(2),

which establishes the detailed notice and reporting requirements discussed above. The Court cannot conclude that Congress would have viewed these

restrictions as so lacking in substance that it would

have reserved all large-tract withdrawal authority to

itself if it could not impose the one additional restriction of a legislative veto.

D. Legislative History.

Congress enacted the FLPMA as Public Law 94579 on October 21, 1976. 43 U.S.C. § 1714, historical

and statutory notes. The legislation came about as a

result of bills passed in both the House (H.R. 13777)

and the Senate (S. 507) that were brought together by

the Committee of Conference. H.R. Rep. No. 94-1724,

at 6228 (Conf. Rep.) (1976). The Senate bill was put forward and enacted in lieu of the House bill, but its language was amended to contain most of the text of the

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

App. 96a

Additionally, only the House bill provided for repeal of

all existing executive withdrawal authority. Id. at

6,237. The conferees adopted both of these provisions,

but revised the House’s one-house legislative veto to

require a concurrent resolution of both houses. Id., id.

at 6,229, sec. 4(d).

In support of their argument that Congress would

not have enacted § 204(c) without the veto provision,

Plaintiffs point to the House Report endorsing the original House Bill, the Conference Report, and the statements of various House members during floor debates.

See Docs. 73 at 9; 110 at 14-16; 113 at 20-23. The Court

will address each of these sources of legislative history.

1. House Report.

Plaintiffs argue that the House Report indicates

that “providing for control over large-tract withdrawals was a ‘major objective’ of FLPMA.” Doc. 113 at 20.

The House Report was issued on May 15, 1976, by the

House Committee on Interior and Insular Affairs to

which the original House bill had been referred. H.R.

Rep. No. 94-1163, at 6175 (1976). The House Committee stated that one of the “major objectives” of the bill

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

the Secretary of Interior.” Id. at 6,176, sec. (4). It also

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

excessive restrictions on the other is reflected in the

inclusion of requirements for referral of certain types

App. 97a

of actions to the Congress for review,” including “withdrawals and extensions of withdrawals of 5,000 acres

or more.” Id. at 6,177. Commenting on the veto provision, the Committee noted that upon receiving notice

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

period of 90 days, the opportunity to terminate all such

withdrawals,” and “[a]bsent such timely action, it will

take an Act of Congress to terminate the withdrawal if

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

Defendants argue, and the Court agrees, that the

House Report does not provide “strong evidence” that

the veto was a major objective of the FLPMA. Doc. 115

at 13. The Report provides some evidence that the

House would have been averse to a final version of the

FLPMA that did not include the veto provision approved in its own bill, but the strength of this evidence

is reduced by the fact that the Report does not state

that the veto is a major objective of the bill, only that

“[e]stablish[ing] procedures to facilitate Congressional

oversight of public land operations entrusted to the

Secretary” is such an objective. H.R. Rep. No. 94-1163

at 6,176. Where the Report discusses the veto provision

specifically, it does so in the context of a number of

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

with this notice other information as specified in the

bill, must promulgate the withdrawal on the record

and provide an opportunity for hearings, may segregate lands only for one year before taking definitive action, and may act only through the Secretary and

App. 98a

“policy officers in the Office of the Secretary appointed

by the President with the advice and consent of the

Senate.” Id. at 6,183-84. As noted above, these provisions, independent of the veto, provide strong congressional control on large-tract withdrawals. Taken as a

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

the House’s approval of the delegation of authority in

§ 204(c).

The separate and dissenting views of House Committee members Udall and Seiberling cast further

doubt on the centrality of the veto. Representative

Udall expressed general approval of the bill’s “long

overdue” statutory guidelines for federal land management, but opined that the bill contained “serious

flaws.” H.R. Rep. No. 94-1163, at 221, reprinted in

Legis. Hist. of the Fed. Land Policy and Mgmt. Act of

1976, at 650 (1978) [hereinafter FLPMA Legis. Hist.];

see Doc. 117-3 at 2. “Most specifically,” he stated,

I disagree with those sections of the bill which

set forth new procedures for Congressional review of Executive withdrawals of public lands.

While I have always been strongly in favor of

additional oversight of the Department of Interior by the Congress and this Committee,

the simple fact is that the mechanism of

“withdrawal” of public lands from mineral entry is currently the only defense we have

against mining activity on the public domain.

Id. Representative Seiberling, dissenting on behalf of

himself and five other House members, similarly took

App. 99a

issue with the bill’s limitations on executive withdrawals which he favorably cited as providing needed protection of public lands. Id. at 231, reprinted in FLPMA

Legis. Hist., 658; see Doc. 117-3 at 5. He stated “[w]e do

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

veto provision and the requirement imposed on the

Committee “to examine every proposed new withdrawal over 5,000 acres” would be overly burdensome

to Congress and the Interior. Id.

2. Conference Report.

Plaintiffs argue that the sentiments of the House

Committee are echoed in the Conference Report, but

this Report contains even less evidence from which to

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

The only mention the Report makes of the veto is to

note that the conferees adopted it as part of the House

amendments to the Senate Bill and that they revised

it to require action from both houses. H.R. Rep. No. 941724, at 6,229 (Conf. Rep.). There is no further discussion of the veto from which to conclude that Congress

would not have passed § 204(c) without it.

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

shed slightly more light on the analysis surrounding

the inclusion of the veto in the revised Senate bill that

ultimately became the FLPMA. Staff of Comm. on

Conf. of S. 507, 94th Cong., Fed. Land Policy and Mgmt.

App. 100a

Act & Natural Res. Lands Mgmt. Act (Comm. Print

1976), reprinted in FLPMA Legis. Hist., at 747-869; see

Doc. 117-2 at 2-14. The Staff identified provisions it

found consistent with both the House and Senate bills

in roman text, provisions it found consistent with the

objectives of both houses in italics, and provisions of

one house for which it had no clear recommendation in

bold. Id., Explanatory Note, reprinted in FLPMA Legis.

Hist., at 748; see Doc. 117-2 at 3. With the exception of

the nine lines containing the veto, the Staff placed all

of proposed § 204 in italics, denoting that it was consistent with the objectives of both houses. Id. at 19-22,

reprinted in FLPMA Legis. Hist., at 767-770; see Doc.

117-2 at 6-14. The veto provision was printed in bold

type, showing that the Staff found § 204(c)’s grant of

authority and its various procedural limitations, including the notice and reporting requirements, consistent with the objectives of both houses, but did not

reach the same conclusion with respect to the veto.

Thus, while the Committee of Conference adopted the

House version of § 204(c) that subsequently passed

into law, there is no evidence of a strong consensus of

both houses that the veto was inextricable from the

grant of large-tract withdrawal authority.

3. House Floor Debates.

Plaintiffs rely heavily on statements of House

members during floor debates held on July 22, 1976, to

show that Congress would not have granted the Secretary large-tract withdrawal authority apart from the

veto. Representative Melcher, chief sponsor of the

App. 101a

House bill, described the veto as “congressional oversight responsibility” and stated that “[s]ince there is

now no system of congressional review and congressional oversight of withdrawals, this is the first positive step that Congress has taken to . . . exercise that

responsibility.” 122 Cong. Rec. 23,452 (1976); see Doc.

73 at 9. When debating an amendment to raise the

acreage for withdrawals triggering congressional review from 5,000 to 50,000 acres, and the duration from

5 to 25 years (id. at 23,440), Representative Steiger

stated even more strongly that “there 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 “5,000 acres

already represents a strong compromise.” Id. at 23,452.

These sentiments were echoed by Representative Santini: “I think it is a fair and rational compromise to set

a 5,000-acre ceiling. . . . I think it is imperative that

the position of the [drafting] committee be maintained.” Id. at 23,453. Similarly, Representative Skubitz stated 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,” and that “[i]t is essential that Congress be informed of, and able to oppose if necessary, withdrawals

which it determines not to be in the best interests of

all the people.” Id. at 23,437.

Other House members were less supportive of

placing constraints on executive withdrawals, in general. Representative Forsythe expressed the view that

App. 102a

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

as well as open up the possibility that “the mining industry will descend on Congress every time a withdrawal is proposed to urge that it be disapproved.” Id.

at 23,440. Representative Fenwick expressed the view

that “[s]ince the purpose of withdrawals is to protect

the lands that belong to the people of this country, it

would seem to me that the granting of permission to

use the land ought to be the area where Congress

raises questions, and that the protection and preservation of those lands should be encouraged . . . and not

made difficult.” Id. at 23,452. Representative Seiberling similarly recognized that “a withdrawal is basically a protective mechanism” and called the review

provisions in § 204 one of the “most objectionable provisions in the legislation.” Id. at 23,436. Representative Mink, who proposed the above-cited amendment,

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

these would place an unworkable burden both on the

Secretary and on the House and Senate Interior Committees. Id. at 23,438.

Plaintiffs point out that Representative Mink and

the supporters of her amendment who generally espoused less oversight never directly opposed the veto

provision or recommended removing it. Doc. 113 at 23,

n. 15. They quote Representative Mink as saying “I

most certainly do not object to congressional oversight

in withdrawal matters,” and to Representative Seiberling as saying that, under the proposed amendment,

App. 103a

“withdrawals would still be subject to disapproval by a

resolution of either House.” Id. (citing 122 Cong. Rec.

23,436, 23,438). This does not mean, however, that

these members would have opposed the delegation of

large-tract withdrawal authority had they foreseen the

need to remove the veto as constitutionally impermissible. It appears, instead, that they were attempting to

appease those who would disfavor any less restricted

delegation of authority while still trying to raise their

own objections. This is clear from Representative

Mink’s statement that “[i]f Congress absolutely deems

it necessary to exercise control over the withdrawal

system, I suggest that we limit review to withdrawals

involving 25,000 acres or more, and establish a duration period of 15 years.” 122 Cong. Rec. 23,438. Ultimately the House adopted a compromise in which it

kept the 5,000 acre limit, but extended the permissible

withdrawal period to 20 years.

The floor debates clearly show that some members

of the House were unwilling to consider allowing the

Secretary to make withdrawals of more than 5,000

acres without some form of meaningful oversight and,

presumably, would not have consented to a delegation

of such authority absent the veto provision, while other

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

such withdrawals for the protection of public lands and

saw this as a more efficient and effective means of federal land management than relying on Congress to enact full legislation. See, e.g., 122 Cong. Rec. at 23,453

(statement of Rep. Seiberling) (“The purpose of

App. 104a

withdrawal by the Secretary, without waiting for the

lengthy process of legislation, is to be able to act

promptly to set aside lands.”). Whether these members, or, more accurately, whether a majority of the

House, would have found this delegation too important

to eliminate cannot be answered from these isolated

comments.

The statements of individual representatives ultimately carry less weight than Committee Reports in

analyzing Congress’s intent. Garcia v. United States,

469 U.S. 70, 76 (1984) (“[W]e have repeatedly stated

that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill,

which ‘represen[t] the considered and collective understanding of those Congressmen involved in drafting

and studying proposed legislation.’ ”) (internal citations omitted). Here, however, the House Report is not

particularly helpful in isolating the significance of the

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

Conference Report merely reflects that the conferees

adopted the House amendments that included the legislative veto, but provides no discussion from which to

conclude that elimination of the veto alone would have

caused Congress to withhold large-tract withdrawal

authority. See Gulf Oil Corp. v. Dyke, 734 F.2d 797, 804

(Temp. Emer. Ct. App. 1984) (stating that the mere reference to and description of vetoes in legislative reports is “not helpful in determining what Congress

would have intended had it known the legislative vetoes were invalid.”).

App. 105a

Plaintiffs argue that this case is like City of New

Haven in which the D.C. Circuit took into account the

“numerous statements of individual legislators urging

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

“ ‘raison d’etere’ of the entire legislative effort was to

assert control over presidential impoundments.” 809

F.2d at 907 (emphasis in original). Here, however, the

evidence from the pre-FLPMA Commission Report, the

text and structure of the FLPMA, the statements of

House members, and the Committee Reports all reflect

that the FLPMA was equally concerned with granting

withdrawal authority to the Executive as it was with

setting proper limits and procedural safeguards on the

exercise of that authority. Additionally, unlike City of

New Haven, in which t

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.