PUBLIC LAND LAW
LAW 287
COURSE READER
Spring 2007
Holly Doremus, Professor of Law, UC Davis School of Law
Brian Gray, Professor of Law, UC Hastings College of the Law
© 2007 Brian E. Gray, Holly Doremus
CONTENTS
Assignment 1: Introduction and Themes. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Original Acquisition: Indian Conquest By Force and By Law. 3
Assignment 2: A Brief History of the Public Lands. . . . . . . . . . . . . . . . . 27
Assignment 3: Federal Land Ownership and Its Limits.. . . . . . . . . . . . . . 39
Assignment 4: Federal Regulatory Power. . . . . . . . . . . . . . . . . . . . . . . . . 64
Assignment 5/6: The Modern Property Power.. . . . . . . . . . . . . . . . . . . . . 83
Assignment 7: State Authority and Preemption . . . . . . . . . . . . . . . . . . . 123
Assignment 8: Delegation and Cooperative Governance. . . . . . . . . . . . 153
Assignment 9: Local Claims to Federal Lands. . . . . . . . . . . . . . . . . . . . 179
Assignment 10: Indian Sacred Sites.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Assignment 11:
The General Mining Law. . . . . . . . . . . . . . . . . . . . . . 235
Assignment 12:
Executive Power and Its Limits. . . . . . . . . . . . . . . . . 256
Assignment 13:
Patenting and Property Rights. . . . . . . . . . . . . . . . . . 275
Assignment 14:
Access Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
Assignment 15:
Environmental Regulation of Mining. . . . . . . . . . . . 321
Assignment 16:
Introduction to National Forest Management. . . . . . 338
Assignment 17:
Multiple Use Management: The Challenge of
Articulating Standards. . . . . . . . . . . . . . . . . . . . . . . . 356
Assignment 18:
Planning as a Substitute for Substance. . . . . . . . . . . 389
Assignment 19:
Roadless Areas.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
Assignment 20:
Fire Policy on National Forests. . . . . . . . . . . . . . . . . 454
Assignment 21:
Public Lands Grazing.. . . . . . . . . . . . . . . . . . . . . . . . 493
Assignment 22:
Rangeland Reform, Takes 1 and 2. . . . . . . . . . . . . . . 517
Assignment 23:
The Free Market and Public Lands Grazing. . . . . . . 546
Assignment 24:
The National Parks: Preservation and Enjoyment. . . 568
Assignment 25:
Current Park Management Conflicts: Snowmobiles in
Yellowstone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598
Assignment 26:
Wilderness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 622
Assignment 27:
Wilderness Study Areas. . . . . . . . . . . . . . . . . . . . . . . 646
Assignment 1: Introduction and Themes
Overview of the Course
The federal public lands comprise approximately one-third of the total
land mass of the United States. Federal lands are not evenly distributed; for
historic reasons, they are heavily concentrated in the western states. Nevada,
where the federal government owns more than 80% of the land, has the
highest proportion of public lands. By contrast, in most eastern and
midwestern states the federal government owns less than 5% of the land. As
a result, management and use of the federal lands and their resources has a
disproportionate influence on, and arouses disproportionate controversy in,
the western states. Discussion of public land history and management
therefore cannot be separated from discussion of the history and future of the
American west.
For much of American history, the public lands have been associated with
romantic images of pathfinders and fur trappers, pioneers and cowboys,
wilderness and rangeland, national parks and forests, and the abiding myth
of the frontier. As we shall see, the public lands of the West are also a
crucible of American environmental and natural resources policy in which
common understandings of rugged individualism, private property, free
marketism, states’ rights, federal power, economic subsidies, multiple use,
“wise use,” the public trust, preservation, ecosystem management, and
biological diversity are constantly tested and set against one other.
The class will begin with a quick foray into the history of the federal
lands. That history includes the dispossession of the native inhabitants of the
continent, the early policy of disposition of the public lands and resources,
and the ultimate decision to retain virtually all of the remaining public lands
in federal ownership. We will conclude that discussion with a snapshot of
the federal lands as they exist today, and the resources they provide.
Following this historical overview, we will turn to a detailed analysis of
ownership and sovereignty on the public lands, including the limits of federal
ownership, the extent of federal regulatory control over the public lands and
associated resources, tribal interests, and the role of states, local governments,
and citizen groups in public land management.
Next, we will take up a series of specific laws governing the management
of federal lands and resources. The General Mining Law of 1872 and the
laws providing for leasing of energy mineral rights on federal lands will
provide a window on the granting and application of private property rights
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on federal lands. The National Forest Management Act and Federal Land
Policy and Management Act will ground discussion of the challenges of
multiple-use land management. We will use the National Parks Organic Act,
Wilderness Act, and Refuge Improvement Act to understand the functions
and management challenges of preservation lands.
Finally, we will wrap the semester up with a look at the present and
potential futures of the public lands. Increasingly, in order to achieve
management goals, management of the federal lands must cross boundaries,
both between federal agency jurisdiction and between federal and state or
private control.
Several themes will run through these topics. A major theme will be the
transition from the emphasis on development and resource exploitation in the
federal land management laws of the 19th Century – what Charles Wilkinson
calls the “Lords of Yesterday” – to the more environmentally protective laws
and policies of the late 20th Century. In tension with this transition, though,
has been the power of history and the pull of the status quo. As a result, the
modernization of federal land law has been contentious, has spawned a
variety of legal and political responses, and remains incomplete and
contested.
We will see how the history of the federal lands has produced a
fragmented management system, left a legacy of uncertainty about the
allocation of public and private rights and responsibilities, and generated
fierce tensions between public and private, and between local and national
interests. We will look at the division of authority between the executive and
legislative branches of the federal government in the management of the
public lands and their resources. We will consider the extent to which, and
the pathways by which, state, local, and tribal interests are taken into account.
Finally, we will discuss the role of expertise and the challenges presented by
scientific uncertainty to public lands management and citizen oversight.
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Original Acquisition: Indian Conquest By Force and By Law
“For thousands of centuries – centuries in which human races were
evolving, forming communities, and building the beginnings of national
civilizations in Africa, Asia, and Europe – the continents we know as the
Americas stood empty of mankind and its works. . . . The story of this
new world . . . is a story of the creation of civilization where none
existed.”
Richard N. Current, T. Harry Williams & Alan Brinkley,
American History: A Survey (1987).
“When Europeans arrived, the Maya, Azteca, and Inca cultures had
already built great cities and vast networks of roads. Ancient prophecies
foretold the arrival of Europeans in the Americas. The ancient prophecies
also foretell the disappearance of all things European.”
Leslie Marmon Silko, The Almanac of the Dead (1991).
“The story of the United States is that of a series of frontiers which the
hand of man has reclaimed from nature and the savage, and which
courage and foresight have gradually transformed from desert waste to
virile commonwealth.”
Frederic L. Paxon, The Last American Frontier (1910).
“The history of the West is a study of a place undergoing conquest and
never fully escaping its consequences. Conquest basically involved the
drawing of lines on a map, the definition and allocation of ownership
(personal, tribal, corporate, state, federal, and international) and the
evolution of land from matter to property. . . . The conquest for property
and profit has been accompanied by a contest for cultural dominance.
Conquest also involved the struggle over languages, cultures and
religions; the pursuit of legitimacy in property overlapped with the
pursuit of legitimacy in way of life and point of view.”
Patricia Nelson Limerick,
The Legacy of Conquest: The Unbroken Past of the American West (1987).
3
4
Johnson v. M’Intosh
United States Supreme Court, 1823.
21 U.S. 543.
[The land in dispute lay in what is now the states of Illinois and Indiana.
Plaintiffs claimed as successors to the Illinois and Wabash Company, which
had purchased the lands from the Illinois and Piankeshaw Indians in 1775.
Virginia, which asserted enormous western land claims, claimed the area in
1778. It was subsequently ceded, with the state’s other land claims, to the
federal government. Shortly after 1800, a depleted band of Illinois Indians,
anxious for the protection of the United States, ceded this land to the United
States in a treaty. The United States also bought or obtained cessions of land
in the area from several other tribes. In 1818, the United States conveyed
lands in the area to defendant M’Intosh. Although the dispute rests on a
stipulation of the parties that the two claims overlapped, in fact it appears that
they were about fifty miles apart. The litigation may have been arranged by
counsel for plaintiffs in an attempt to confirm their claims. M’Intosh, by
some accounts a shady lawyer, may have been a willing participant because
his own claims were of doubtful legality. See Eric Kades, History and
Interpretation of the Great Case of Johnson v. M’Intosh, 19 Law & History
Review 67 (2001).]
O CHIEF JUSTICE MARSHALL delivered the opinion of the Court.
The plaintiffs in this cause claim the land, in their declaration mentioned,
under two grants, purporting to be made, the first in 1773, and the last in
1775, by the chiefs of certain Indian tribes, constituting the Illinois and the
Piankeshaw nations; and the question is, whether this title can be recognised
in the Courts of the United States?
The facts, as stated in the case agreed, show the authority of the chiefs
who executed this conveyance, so far as it could be given by their own
people; and likewise show, that the particular tribes for whom these chiefs
acted were in rightful possession of the land they sold. The inquiry,
therefore, is, in a great measure, confined to the power of Indians to give, and
of private individuals to receive, a title which can be sustained in the Courts
of this country.
As the right of society, to prescribe those rules by which property may be
acquired and preserved is not, and cannot be drawn into question; as the title
to lands, especially, is and must be admitted to depend entirely on the law of
the nation in which they lie; it will be necessary, in pursuing this inquiry, to
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examine, not singly those principles of abstract justice, which the Creator of
all things has impressed on the mind of his creature man, and which are
admitted to regulate, in a great degree, the rights of civilized nations, whose
perfect independence is acknowledged; but those principles also which our
own government has adopted in the particular case, and given us as the rule
for our decision.
On the discovery of this immense continent, the great nations of Europe
were eager to appropriate to themselves so much of it as they could
respectively acquire. Its vast extent offered an ample field to the ambition
and enterprise of all; and the character and religion of its inhabitants afforded
an apology for considering them as a people over whom the superior genius
of Europe might claim an ascendency. The potentates of the old world found
no difficulty in convincing themselves that they made ample compensation
to the inhabitants of the new, by bestowing on them civilization and
Christianity, in exchange for unlimited independence. But, as they were all
in pursuit of nearly the same object, it was necessary, in order to avoid
conflicting settlements, and consequent war with each other, to establish a
principle, which all should acknowledge as the law by which the right of
acquisition, which they all asserted, should be regulated as between
themselves. This principle was, that discovery gave title to the government
by whose subjects, or by whose authority, it was made, against all other
European governments, which title might be consummated by possession.
The exclusion of all other Europeans, necessarily gave to the nation
making the discovery the sole right of acquiring the soil from the natives, and
establishing settlements upon it. It was a right with which no Europeans
could interfere. It was a right which all asserted for themselves, and to the
assertion of which, by others, all assented.
Those relations which were to exist between the discoverer and the
natives, were to be regulated by themselves. The rights thus acquired being
exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original
inhabitants were, in no instance, entirely disregarded; but were necessarily,
to a considerable extent, impaired. They were admitted to be the rightful
occupants of the soil, with a legal as well as just claim to retain possession
of it, and to use it according to their own discretion; but their rights to
complete sovereignty, as independent nations, were necessarily diminished,
and their power to dispose of the soil at their own will, to whomsoever they
pleased, was denied by the original fundamental principle, that discovery
gave exclusive title to those who made it.
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While the different nations of Europe respected the right of the natives,
as occupants, they asserted the ultimate dominion to be in themselves; and
claimed and exercised, as a consequence of this ultimate dominion, a power
to grant the soil, while yet in possession of the natives. These grants have
been understood by all, to convey a title to the grantees, subject only to the
Indian right of occupancy.
The history of America, from its discovery to the present day, proves, we
think, the universal recognition of these principles.
Spain did not rest her title solely on the grant of the Pope. Her
discussions respecting boundary, with France, with Great Britain, and with
the United States, all show that she placed in on the rights given by discovery.
Portugal sustained her claim to the Brazils by the same title.
France, also, founded her title to the vast territories she claimed in
America on discovery. However conciliatory her conduct to the natives may
have been, she still asserted her right of dominion over a great extent of
country not actually settled by Frenchmen, and her exclusive right to acquire
and dispose of the soil which remained in the occupation of Indians. Her
monarch claimed all Canada and Acadie, as colonies of France, at a time
when the French population was very inconsiderable, and the Indians
occupied almost the whole country. He also claimed Louisiana,
comprehending the immense territories watered by the Mississippi, and the
rivers which empty into it, by the title of discovery. . . .
*****
No one of the powers of Europe gave its full assent to this principle more
unequivocally than England. The documents upon this subject are ample and
complete. So early as the year 1496, her monarch granted a commission to
the Cabots, to discover countries then unknown to Christian people, and to
take possession of them in the name of the king of England. Two years
afterwards, Cabot proceeded on this voyage, and discovered the continent of
North America, along which he sailed as far south as Virginia. To this
discovery the English trace their title.
In this first effort made by the English government to acquire territory on
this continent, we perceive a complete recognition of the principle which has
been mentioned. The right of discovery given by this commission, is
confined to countries “then unknown to all Christian people;” and of these
countries Cabot was empowered to take possession in the name of the king
of England. Thus asserting a right to take possession, notwithstanding the
occupancy of the natives, who were heathens, and, at the same time,
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admitting the prior title of any Christian people who may have made a
previous discovery.
The same principle continued to be recognised. [Chief Justice Marshall
recited a series of examples of English charters granting possession to the
English discoverer of lands in the new world, from 1578 to the late 1600s.]
Thus has our whole country been granted by the crown while in the
occupation of the Indians. . . . It has never been objected to [any of these
grants] that the title as well as possession was in the Indians when it was
made, and that it passed nothing on that account.
*****
Further proofs of the extent to which this principle has been recognised,
will be found in the history of the wars, negotiations, and treaties, which the
different nations, claiming territory in America, have carried on, and held
with each other.
The contests between the cabinets of Versailles and Madrid, respecting
the territory on the northern coast of the gulf of Mexico, were fierce and
bloody; and continued, until the establishment of a Bourbon on the throne of
Spain, produced such amicable dispositions in the two crowns, as to suspend
or terminate them.
Between France and Great Britain, whose discoveries as well as
settlements were nearly contemporaneous, contests for the country, actually
covered by the Indians, began as soon as their settlements approached each
other, and were continued until finally settled in the year 1763, by the treaty
of Paris.
Each nation had granted and partially settled the country, denominated by
the French, Acadie, and by the English, Nova Scotia. By the 12th article of
the treaty of Utrecht, made in 1703, his most Christian Majesty ceded to the
Queen of Great Britain, “all Nova Scotia or Acadie, with its ancient
boundaries.” A great part of the ceded territory was in the possession of the
Indians . . . [A protracted dispute between England and France over the
boundaries of that cession followed.]
These conflicting claims produced a long and bloody war, which was
terminated by the conquest of the whole country east of the Mississippi. In
the treaty of 1763, France ceded and guarantied to Great Britain, all Nova
Scotia, or Acadie, and Canada, with their dependencies; and it was agreed,
that the boundaries between the territories of the two nations, in America,
should be irrevocably fixed by a line drawn from the source of the
Mississippi, through the middle of that river and the lakes Maurepas and
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Ponchartrain, to the sea. This treaty expressly cedes, and has always been
understood to cede, the whole country, on the English side of the dividing
line, between the two nations, although a great and valuable part of it was
occupied by the Indians. Great Britain, on her part, surrendered to France all
her pretensions to the country west of the Mississippi. It has never been
supposed that she surrendered nothing, although she was not in actual
possession of a foot of land. She surrendered all right to acquire the country;
and any after attempt to purchase it from the Indians, would have been
considered and treated as an invasion of the territories of France.
By the 20th article of the same treaty, Spain ceded Florida, with its
dependencies, and all the country she claimed east or southeast of the
Mississippi, to Great Britain. Great part of this territory also was in
possession of the Indians.
By a secret treaty, which was executed about the same time, France ceded
Louisiana to Spain; and Spain has since retroceded the same country to
France. At the time both of its cession and retrocession, it was occupied,
chiefly, by the Indians.
Thus, all the nations of Europe, who have acquired territory on this
continent, have asserted in themselves, and have recognised in others, the
exclusive right of the discoverer to appropriate the lands occupied by the
Indians. Have the American States rejected or adopted this principle?
By the treaty which concluded the war of our revolution, Great Britain
relinquished all claim, not only to the government, but to the “propriety and
territorial rights of the United States,” whose boundaries were fixed in the
second article. By this treaty, the powers of government, and the right to soil,
which had previously been in Great Britain, passed definitively to these
States. We had before taken possession of them, by declaring independence;
but neither the declaration of independence, nor the treaty confirming it,
could give us more than that which we before possessed, or to which Great
Britain was before entitled. It has never been doubted, that either the United
States, or the several States, had a clear title to all the lands within the
boundary lines described in the treaty, subject only to the Indian right of
occupancy, and that the exclusive power to extinguish that right, was vested
in that government which might constitutionally exercise it.
Virginia, particularly, within whose chartered limits the land in
controversy lay, passed an act, in the year 1779, declaring her “exclusive right
of pre-emption from the Indians, of all the lands within the limits of her own
chartered territory, and that no person or persons whatsoever, have, or ever
had, a right to purchase any lands within the same, from any Indian nation,
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except only persons duly authorized to make such purchase; formerly for the
use and benefit of the colony, and lately for the Commonwealth.” The act
then proceeds to annul all deeds made by Indians to individuals, for the
private use of the purchasers.
Without ascribing to this act the power of annulling vested rights, or
admitting it to countervail the testimony furnished by the marginal note
opposite to the title of the law, forbidding purchases from the Indians, in the
revisals of the Virginia statutes, stating that law to be repealed, it may safely
be considered as an unequivocal affirmance, on the part of Virginia, of the
broad principle which had always been maintained, that the exclusive right
to purchase from the Indians resided in the government.
In pursuance of the same idea, Virginia proceeded, at the same session,
to open her land office, for the sale of that country which now constitutes
Kentucky, a country, every acre of which was then claimed and possessed by
Indians, who maintained their title with as much persevering courage as was
ever manifested by any people.
The States, having within their chartered limits different portions of
territory covered by Indians, ceded that territory, generally, to the United
States, on conditions expressed in their deeds of cession, which demonstrate
the opinion, that they ceded the soil as well as jurisdiction, and that in doing
so, they granted a productive fund to the government of the Union. The lands
in controversy lay within the chartered limits of Virginia, and were ceded
with the whole country northwest of the river Ohio. This grant contained
reservations and stipulations, which could only be made by the owners of the
soil; and concluded with a stipulation, that “all the lands in the ceded
territory, not reserved, should be considered as a common fund, for the use
and benefit of such of the United States as have become, or shall become,
members of the confederation,” &c. “according to their usual respective
proportions in the general charge and expenditure, and shall be faithfully and
bona fide disposed of for that purpose, and for no other use or purpose
whatsoever.”
The ceded territory was occupied by numerous and warlike tribes of
Indians; but the exclusive right of the United States to extinguish their title,
and to grant the soil, has never, we believe, been doubted.
After these States became independent, a controversy subsisted between
them and Spain respecting boundary. By the treaty of 1795, this controversy
was adjusted, and Spain ceded to the United States the territory in question.
This territory, though claimed by both nations, was chiefly in the actual
occupation of Indians.
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The magnificent purchase of Louisiana, was the purchase from France of
a country almost entirely occupied by numerous tribes of Indians, who are in
fact independent. Yet, any attempt of others to intrude into that country,
would be considered as an aggression which would justify war.
Our late acquisitions from Spain are of the same character; and the
negotiations which preceded those acquisitions, recognise and elucidate the
principle which has been received as the foundation of all European title in
America.
The United States, then, have unequivocally acceded to that great and
broad rule by which its civilized inhabitants now hold this country. They
hold, and assert in themselves, the title by which it was acquired. They
maintain, as all others have maintained, that discovery gave an exclusive right
to extinguish the Indian title of occupancy, either by purchase or by conquest;
and gave also a right to such a degree of sovereignty, as the circumstances of
the people would allow them to exercise.
The power now possessed by the government of the United States to grant
lands, resided, while we were colonies, in the crown, or its grantees. The
validity of the titles given by either has never been questioned in our Courts.
It has been exercised uniformly over territory in possession of the Indians.
The existence of this power must negative the existence of any right which
may conflict with, and control it. An absolute title to lands cannot exist, at
the same time, in different persons, or in different governments. An absolute,
must be an exclusive title, or at least a title which excludes all others not
compatible with it. All our institutions recognise the absolute title of the
crown, subject only to the Indian right of occupancy, and recognise the
absolute title of the crown to extinguish that right. This is incompatible with
an absolute and complete title in the Indians.
We will not enter into the controversy, whether agriculturists, merchants,
and manufacturers, have a right, on abstract principles, to expel hunters from
the territory they possess, or to contract their limits. Conquest gives a title
which the Courts of the conqueror cannot deny, whatever the private and
speculative opinions of individuals may be, respecting the original justice of
the claim which has been successfully asserted. The British government,
which was then our government, and whose rights have passed to the United
States, asserted title to all the lands occupied by Indians, within the chartered
limits of the British colonies. It asserted also a limited sovereignty over
them, and the exclusive right of extinguishing the title which occupancy gave
to them. These claims have been maintained and established as far west as
the river Mississippi, by the sword. The title to a vast portion of the lands we
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now hold, originates in them. It is not for the Courts of this country to
question the validity of this title, or to sustain one which is incompatible with
it.
Although we do not mean to engage in the defence of those principles
which Europeans have applied to Indian title, they may, we think, find some
excuse, if not justification, in the character and habits of the people whose
rights have been wrested from them.
The title by conquest is acquired and maintained by force. The conqueror
prescribes its limits. Humanity, however, acting on public opinion, has
established, as a general rule, that the conquered shall not be wantonly
oppressed, and that their condition shall remain as eligible as is compatible
with the objects of the conquest. Most usually, they are incorporated with the
victorious nation, and become subjects or citizens of the government with
which they are connected. The new and old members of the society mingle
with each other; the distinction between them is gradually lost, and they make
one people. Where this incorporation is practicable, humanity demands, and
a wise policy requires, that the rights of the conquered to property should
remain unimpaired; that the new subjects should be governed as equitably as
the old, and that confidence in their security should gradually banish the
painful sense of being separated from their ancient connexions, and united by
force to strangers.
When the conquest is complete, and the conquered inhabitants can be
blended with the conquerors, or safely governed as a distinct people, public
opinion, which not even the conqueror can disregard, imposes these restraints
upon him; and he cannot neglect them without injury to his fame, and hazard
to his power.
But the tribes of Indians inhabiting this country were fierce savages,
whose occupation was war, and whose subsistence was drawn chiefly from
the forest. To leave them in possession of their country, was to leave the
country a wilderness; to govern them as a distinct people, was impossible,
because they were as brave and as high spirited as they were fierce, and were
ready to repel by arms every attempt on their independence.
What was the inevitable consequence of this state of things? The
Europeans were under the necessity either of abandoning the country, and
relinquishing their pompous claims to it, or of enforcing those claims by the
sword, and by the adoption of principles adapted to the condition of a people
with whom it was impossible to mix, and who could not be governed as a
distinct society, or of remaining in their neighbourhood, and exposing
themselves and their families to the perpetual hazard of being massacred.
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Frequent and bloody wars, in which the whites were not always the
aggressors, unavoidably ensued. European policy, numbers, and skill,
prevailed. As the white population advanced, that of the Indians necessarily
receded. The country in the immediate neighbourhood of agriculturists
became unfit for them. The game fled into thicker and more unbroken
forests, and the Indians followed. The soil, to which the crown originally
claimed title, being no longer occupied by its ancient inhabitants, was
parceled out according to the will of the sovereign power, and taken
possession of by persons who claimed immediately from the crown, or
mediately, through its grantees or deputies.
That law which regulates, and ought to regulate in general, the relations
between the conqueror and conquered, was incapable of application to a
people under such circumstances. The resort to some new and different rule,
better adapted to the actual state of things, was unavoidable. Every rule
which can be suggested will be found to be attended with great difficulty.
However extravagant the pretension of converting the discovery of an
inhabited country into conquest may appear; if the principle has been asserted
in the first instance, and afterwards sustained; if a country has been acquired
and held under it; if the property of the great mass of the community
originates in it, it becomes the law of the land, and cannot be questioned. So,
too, with respect to the concomitant principle, that the Indian inhabitants are
to be considered merely as occupants, to be protected, indeed, while in peace,
in the possession of their lands, but to be deemed incapable of transferring the
absolute title to others. However this restriction may be opposed to natural
right, and to the usages of civilized nations, yet, if it be indispensable to that
system under which the country has been settled, and be adapted to the actual
condition of the two people, it may, perhaps, be supported by reason, and
certainly cannot be rejected by Courts of justice.
******
Another view has been taken of this question, which deserves to be
considered. The title of the crown, whatever it might be, could be acquired
only by a conveyance from the crown. If an individual might extinguish the
Indian title for his own benefit, or, in other words, might purchase it, still he
could acquire only that title. Admitting their power to change their laws or
usages, so far as to allow an individual to separate a portion of their lands
from the common stock, and hold it in severalty, still it is a part of their
territory, and is held under them, by a title dependent on their laws. The grant
derives its efficacy from their will; and, if they choose to resume it, and make
a different disposition of the land, the Courts of the United States cannot
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interpose for the protection of the title. The person who purchases lands from
the Indians, within their territory, incorporates himself with them, so far as
respects the property purchased; holds their title under their protection, and
subject to their laws. If they annul the grant, we know of no tribunal which
can revise and set aside the proceeding. We know of no principle which can
distinguish this case from a grant made to a native Indian, authorizing him to
hold a particular tract of land in severalty.
As such a grant could not separate the Indian from his nation, nor give a
title which our Courts could distinguish from the title of his tribe, as it might
still be conquered from, or ceded by his tribe, we can perceive no legal
principle which will authorize a Court to say, that different consequences are
attached to this purchase, because it was made by a stranger. By the treaties
concluded between the United States and the Indian nations, whose title the
plaintiffs claim, the country comprehending the lands in controversy has been
ceded to the United States, without any reservation of their title. These
nations had been at war with the United States, and had an unquestionable
right to annul any grant they had made to American citizens. Their cession
of the country, without a reservation of this land, affords a fair presumption,
that they considered it as of no validity. They ceded to the United States this
very property, after having used it in common with other lands, as their own,
from the date of their deeds to the time of cession; and the attempt now made,
is to set up their title against that of the United States.
*****
It has never been contended, that the Indian title amounted to nothing.
Their right of possession has never been questioned. The claim of
government extends to the complete ultimate title, charged with this right of
possession, and to the exclusive power of acquiring that right. . . .
*****
After bestowing on this subject a degree of attention which was more
required by the magnitude of the interest in litigation, and the able and
elaborate arguments of the bar, than by its intrinsic difficulty, the Court is
decidedly of opinion, that the plaintiffs do not exhibit a title which can be
sustained in the Courts of the United States; and that there is no error in the
judgment which was rendered against them in the District Court of Illinois.
14
NOTES AND QUESTIONS
1. The starting point. It is appropriate to begin at the beginning. See Lewis
Carroll, Alice’s Adventures in Wonderland 12 (1865):
“Where shall I begin, please your Majesty?” he asked. “Begin at the
beginning,” the King said gravely, “and go on till you come to the end:
then stop.”
The proper beginning for the history of U.S. public lands is with the native
peoples of the Americas, before the Europeans arrived and imposed their
laws of discovery, conquest, and land title on the indigenous tribes of the
continent. In that beginning, there were approximately 75 million inhabitants
of the western hemisphere, about 6 million of whom resided in what is now
the United States. Alvin M. Josephy, Jr., The Center of the Universe,
Introduction to America in 1492: The Word of the Indian Peoples Before the
Arrival of Columbus 6 (Knopf 1992). By the end of the 16th Century, after
only 100 years of European contact and conquest, about 90 percent of the
native population had perished from war, starvation, and disease. Ronald
Wright, Stolen Continents: The Americas Through Indian Eyes Since 1492
14 (Houghton Mifflin 1992). As Louise Erdrich and Michael Dorris have
written,
“The first European who stood on the North American continent and
sneezed probably indirectly killed more Indians than George
Armstrong Custer ever imagined in his favorite wet dream.”
Michael Dorris & Louise Erdrich, The Crown of Columbus 84 (Harper
Collins 1991).
The history of European/Native American Relations, as well as the study
of United States federal Indian law, are well beyond the scope of this course.
Because all of the land of the modern-day United States once belonged to the
hundreds of Tribes that inhabited the continent before contact, however, it is
necessary to ask how the original thirteen colonies, and later the United
States, came to acquire this land from the Indians. The most accurate answer
to this query is conquest – through military force and treaties negotiated
under the threat of annihilation. Once the United States had acquired
possession of (or dominion over) the land, the question of legal title
remained. For the answer to this, we must turn to the famous opinion of the
United States Supreme Court in Johnson v. M’Intosh.
2. Discovery and conquest. What precisely is the basis for the Supreme
Court’s holding that the land grants from the Illinois and Piankeshaw Tribes
to Johnson were invalid and that only the United States had the authority to
15
convey title to the land in question? How does the Court distinguish between
“discovery” and “conquest”? According to Chief Justice Marshall, was it
“discovery” of what became the Northwest Territory that gave England, and
later the United States, title to the land in question? Or, was it the United
States’ conquest of the Illinois and Piankashaw Tribes that created superior
title in federal government? If the former, how does the Court account for the
prior occupancy of the Indians? If the latter, how does the Court legitimize
its decision? In his classic article on Indian title, Felix Cohen concluded that
the Court incorporated into the prevailing customary international law of
discovery the concept of conquest. See Felix S. Cohen, Original Indian Title,
32 Minn. L. Rev. 28, 43-47 (1947). Do you agree that the Court blends the
law of discovery and the doctrine of conquest?
3. Indian or aboriginal title. What rights did the United States acquire over
land to which the Tribes retained aboriginal title? What rights did the Tribes
retain?
4. Indian lands today. Most tribes have conveyed the majority of their
traditional lands to the United States, reserving some to themselves. Legal
title to reservation lands is generally held by the United States, in trust for the
tribes. More than 50 million acres is currently held in trust for tribes and
individuals in the United States. These lands are overseen by the Bureau of
Indian Affairs in the Department of Interior.
4. Commentary on Johnson v. M’Intosh. Over the years, the Johnson
decision has been the subject of a great deal of commentary. Consider the
following excerpts from several influential discussions of the case:
a. Felix S. Cohen, Original Indian Title, 32 Minn. L. Rev. 28, 48-49
(1947):
It is perhaps Pickwickian to say that the Federal Government
exercised power to make grants of lands still in Indian possession as a
consequence of its “dominion” or “title.” A realist would say that Federal
“dominion” or “title” over land recognized to be in Indian ownership was
merely a fiction devised to get around a theoretical difficulty posed by
common law concepts. According to the hallowed principles of the
common law, a grant by a private person of land belonging to another
would convey no title. To apply this rule to the Federal Government
would have produced a cruel dilemma: either Indians had no title and no
rights or the Federal land grants on which much of our economy rested
were void. The Supreme Court would accept neither horn of this
dilemma, nor would it say, as a modern realist might say, that the Federal
Government is not bound by the limitations of common law doctrine and
16
is free to dispose of property that belongs to Indians or other persons as
long as such persons are paid for their interests before their possession is
impaired. But such a way of putting the matter would have run contrary
to the spirit of the times by claiming for the Federal Government a right
to disregard rules of real property law more sacred than the Constitution
itself. And this theoretical dilemma was neatly solved by Chief Justice
Marshall’s doctrine that the Federal Government and the Indians both had
exclusive title to the same land at the same time. Thus a federal grant of
Indian land would convey an interest, but this interest would not become
a possessory interest until the possessory title of the Indians was
terminated by the Federal Government. The Indians were protected. The
grantees were protected – assuming that the Federal Government went
ahead to secure a relinquishment of Indian title. The power of the Federal
Government was recognized. And the needs of feudal land tenure theory
were fully respected. Even if we are no longer interested in the niceties
of theory, the reconciliation of Indian rights and grantee rights which
Marshall worked out must command our respect.
b. Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L.
Rev. 73, 87-88 (1985):
At least some Indians professed bewilderment at the concept of
owning the land. Indeed they prided themselves on not marking the land
but rather on moving lightly through it, living with the land and with its
creatures as members of the same family rather than as strangers who
visited only to conquer the objects of nature. The doctrine of first
possession, quite to the contrary, reflects the attitude that human beings
are outsiders to nature. It gives the earth and its creatures over to those
who mark them so clearly as to transform them, so that no one else will
mistake them for unsubdued nature.
We may admire nature and enjoy wildness, but those sentiments find
little resonance in the doctrine of first possession. Its texts are those of
cultivation, manufacture, and development. We cannot have our fish
both loose and fast, as Melville might have said, and the common law of
first possession makes a choice. The common law gives preference to
those who convince the world that they have caught the fish and hold it
fast. This may be a reward to useful labor, but it is more precisely the
articulation of a specific vocabulary within a structure of symbols
approved and understood by a commercial people. It is this commonly
understood and shared set of symbols that gives significance and form to
what might seem the quintessentially individualistic act: the claim that
17
one has, by “possession,” separated for oneself property from the great
commons of unowned things.
c. Robert A. Williams, Jr., The American Indian in Western Legal
Thought: The Discourse of Conquest 315-16 (Oxford 1990):
Marshall’s judicial abdication to the title acquired by white
civilization’s “conquest” of the Indians was actually an acknowledgment
of the series of legal fictions supporting the Doctrine of Discovery. The
rights acquired by European discovery of infidel-held lands under the
doctrine were inchoate and anticipatory in nature. The Doctrine of
Discovery assumed that the European discoverer would eventually
establish its feudal prerogative rights of conquest over the infidel-held
lands, either by wars of expulsion or by treaties of cession contracting the
limits of the tribes. Thus in acknowledging “conquest” as the basis of the
United States’ superior title to the lands of America, Marshall specifically
incorporated into United States land law the Norman-derived feudal
fiction that discovery was the basis of the English Crown’s original
assertion of prerogative rights of conquest in America.
The acceptance of the Doctrine of Discovery into United States law
held profound implications for future relations between the federal
government and the Indians. The Doctrine of Discovery’s discourse of
conquest was now available to legitimate, energize, and constrain as
needed white society’s will to empire over the North American continent.
The doctrine confirmed the superior rights of a European-derived nation
to the lands occupied by “infidels, heathens, and savages,” encouraged
further efforts by white society to acquire the Indians’ “waste” lands, and
vested authority in a centralized sovereign to regulate the Indians’
dispossession according to national interest, security, and sometimes even
honor.
Perhaps most important, Johnson’s acceptance of the Doctrine of
Discovery into United States law preserved the legacy of 1,000 years of
European racism and colonialism directed against non-Western peoples.
White society’s exercise of power over Indian tribes received the sanction
of the Rule of Law in Johnson v. McIntosh. The Doctrine of Discovery’s
underlying medievally derived ideology – that normatively divergent
“savage” peoples could be denied rights and status equal to those
accorded to the civilized nations of Europe – had become an integral part
of the fabric of United States federal Indian law. The architects of an
idealized European vision of life in the Indians’ New World had
successfully transplanted an Old World form of legal discourse denying
18
all respect to the Indians’ fundamental human rights. While the tasks of
conquest and colonization had not yet been fully actualized on the entire
American continent, the ordinary legal rules and principles of federal
Indian law set down by Marshall in Johnson v. McIntosh and its discourse
of conquest ensured that future acts of genocide would proceed on a
rationalized, legal basis.
Like all the other great theorists and systematizers of the European
legal tradition, Marshall had performed a bold and reconciling act of
critical anamnesis in Johnson. He had articulated a conqueror’s legal
discourse that drew on the most ancient discursive traditions of Western
legal thought but was nonetheless capable of serving the contemporary
needs of his European-descended countrymen’s visions of progress. The
Doctrine of Discovery, the primordial mythic icon of Europe’s medieval,
feudal past, had been preserved and brought to readability in a modern
form that spoke with reassuring continuity to a nation that was about to
embark on its own colonizing crusade against the American Indians who
remained on the North American continent.
5. White-Indian land transactions. In theory, the holding in Johnson v.
M’Intosh that only the United States could abrogate Indian title might have
served to protect tribes against exploitation or even outright fraud by
unscrupulous land speculators. It could be very difficult to tease out which
tribes or bands had claims to particular lands, and which individuals had the
right to speak for the larger group or to surrender its claims. Add in the
possibilities of inadequate translation, and bribery or coercion of tribal
leaders, and the potential for one-sided deals or at the very least serious
misunderstandings should be obvious.
The history of the particular transactions in Johnson, however,
demonstrates that the United States itself was no less likely to engage in
exploitive dealings than private speculators. According to Eric Kades,
Johnson’s predecessors (at least by their own description), negotiated with all
the tribes with colorable claims to the land over a long period in order to get
consensus agreement on the terms, and kept the Indian negotiators from
having access to liquor during that time. The United States, on the other
hand, in its subsequent acquisition of Indian lands in Illinois and Indiana
seems to have been less scrupulous, exploiting the needs of dwindling bans
for government protection as a point of entry for negotiations. Eric Kades,
History and Interpretation of the Great Case of Johnson v. M’Intosh, 19 Law
& History Review 67, 81-85, 94-95 (2001).
19
6. Conquest and compensation. The amount of Indian land for which the
British, the Colonies, and the United States have paid compensation is
impressive. It has been argued that the United States, and the colonies before
it, rarely relied on conquest by force alone as a justification for taking Indian
lands. Purchase was far more common. See Felix S. Cohen, Original Indian
Title, 32 Minn. L. Rev. 28, 37 n.20, 46 (1947); Eric Kades, History and
Interpretation of the Great Case of Johnson v. M’Intosh, 19 Law & History
Rev. 67, 74 (2001). That argument, however, should not be overstated.
Virtually all of the 19th Century treaties and agreements by which the Tribes
ceded land to the United States were negotiated under threat of force or
imposed on the Indians following military conquest. More recent
acquisitions, such as the Alaska Native Claims Settlement Act of 1971, 43
U.S.C. §§ 1601-1628, have been the result of federal legislation. Few
transfers can be characterized as the products of “arms-length bargaining”
between the Tribes and the United States. Thus, the doctrine of “title by
conquest” laid down in Johnson was essential to the United States acquisition
of the public domain.
Whether compensation is required when the United States abrogates
Indian title was first addressed by the Supreme Court in 1946. In United
States v. Alcea Band of Tillamooks, 329 U.S. 40, 47 (1946), a plurality of the
Court ruled that “[t]he Indians have more than a merely moral claim for
compensation.” Nine years later, the Court revisited the issue.
In Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955), the TeeHit-Ton, a band of the Tlingit Tribe, sued the United States for compensation
for the value of timber taken from their ancestral lands. The United States
Forest Service sold the right to cut the timber to private lumber companies
pursuant to a 1947 joint resolution of Congress, which authorized the sale of
timber from the Tongass National Forest in the Alaska panhandle.
By a six-to-three vote, the Supreme Court held that Congress may abolish
Indian title without payment of compensation. Writing for the majority,
Justice Stanley Reed declared:
The nature of aboriginal Indian interest in land and the various rights
as between the Indians and the United States dependent on such interest
are far from novel as concerns our Indian inhabitants. It is well settled
that in all the States of the Union the tribes who inhabited the lands of the
States held claim to such lands after the coming of the white man, under
what is sometimes termed original Indian title or permission from the
whites to occupy. That description means mere possession not
specifically recognized as ownership by Congress. After conquest they
20
were permitted to occupy portions of territory over which they had
previously exercised “sovereignty,” as we use that term. This is not a
property right but amounts to a right of occupancy which the sovereign
grants and protects against intrusion by third parties but which right of
occupancy may be terminated and such lands fully disposed of by the
sovereign itself without any legally enforceable obligation to compensate
the Indians.
This position of the Indian has long been rationalized by the legal
theory that discovery and conquest gave the conquerors sovereignty over
and ownership of the lands thus obtained. 1 Wheaton’s International Law,
c. V. The great case of Johnson v. McIntosh, 8 Wheat. 543, denied the
power of an Indian tribe to pass their right of occupancy to another. It
confirmed the practice of two hundred years of American history “that
discovery gave an exclusive right to extinguish the Indian title of
occupancy, either by purchase or by conquest.” 8 Wheat. at 587.
******
No case in this Court has ever held that taking of Indian title or use
by Congress required compensation. The American people have
compassion for the descendants of those Indians who were deprived of
their homes and hunting grounds by the drive of civilization. They seek
to have the Indians share the benefits of our society as citizens of this
Nation. Generous provision has been willingly made to allow tribes to
recover for wrongs, as a matter of grace, not because of legal liability. 60
Stat. 1050.
*****
What has been heretofore set out deals largely with the Indians of the
Plains and east of the Mississippi. The Tee-Hit-Tons urge, however, that
their stage of civilization and their concept of ownership of property takes
them out of the rule applicable to the Indians of the States. They assert
that Russia never took their lands in the sense that European nations
seized the rest of America. The Court of Claims, however, saw no
distinction between their use of the land and that of the Indians of the
Eastern United States. That court had no evidence that the Russian
handling of the Indian land problem differed from ours. The natives were
left the use of the great part of their vast hunting and fishing territory but
what Russia wanted for its use and that of its licensees, it took.
*****
21
From all that was presented, the Court of Claims concluded, and we
agree, that the Tee-Hit-Tons were in a hunting and fishing stage of
civilization, with shelters fitted to their environment, and claims to rights
to use identified territory for these activities as well as the gathering of
wild products of the earth. We think this evidence introduced by both
sides confirms the Court of Claims’ conclusion that the petitioner’s use
of its lands was like the use of the nomadic tribes of the States Indians.
The line of cases adjudicating Indian rights on American soil leads to
the conclusion that Indian occupancy, not specifically recognized as
ownership by action authorized by Congress, may be extinguished by the
Government without compensation. Every American schoolboy knows
that the savage tribes of this continent were deprived of their ancestral
ranges by force and that, even when the Indians ceded millions of acres
by treaty in return for blankets, food and trinkets, it was not a sale but the
conquerors’ will that deprived them of their land.
*****
In the light of the history of Indian relations in this Nation, no other
course would meet the problem of the growth of the United States except
to make congressional contributions for Indian lands rather than to
subject the Government to an obligation to pay the value when taken with
interest to the date of payment. Our conclusion does not uphold
harshness as against tenderness toward the Indians, but it leaves with
Congress, where it belongs, the policy of Indian gratuities for the
termination of Indian occupancy of Government-owned land rather than
making compensation for its value a rigid constitutional principle.
348 U.S. at 279-91.
Nell Jessup Newton has offered the following critique of Tee-Hit-Ton:
The dicta in Johnson regarding extinguishment of Indian title by
conquest does not support Justice Reed’s conclusion that all Indian land
had been conquered. Authorities differ on whether Justice Marshall
actually recognized conquest as a valid method of extinguishment of
Indian title under American law. Regardless of how the passages in
Johnson are interpreted, however, it is evident that Johnson did not
establish that all Indian title had been extinguished by conquest, for
Johnson itself, as well as its progeny, recognized that purchase was the
primary method of extinguishment of Indian title. Had discovery itself
extinguished Indian title to land, most of the decisions in those cases
would have been unnecessary.
22
In addition, Justice Reed’s use of the term “conquest” is itself
questionable. Both at the time of Johnson and today, conquest has been
a narrow concept with clearly defined effects on the conquered people.
For example, conquest generally requires some sort of physical
possession by force of arms. Thus, the conclusion that all Indian land has
been conquered was as illogical as it was unprecedented. Even if Justice
Reed meant only that the congressional resolution at issue in Tee-Hit-Ton
was the functional equivalent of a declaration of war followed by
conquest, such a conclusion was not warranted by either the language of
the resolution or the rules of international law regarding conquest.
Finally, even if the federal government’s actions in the forty-eight
contiguous states could have been interpreted as examples of the
“conqueror’s will,” the Alaska natives had never fought a skirmish with
either Russia or the United States, but instead welcomed newcomers to
Alaska with open arms. To say that the Alaska natives were subjugated
by conquest stretches the imagination too far. The only sovereign act that
can be said to have conquered the Alaska native was the Tee-Hit-Ton
opinion itself.
Nell Jessup Newton, At the Whim of the Sovereign: Aboriginal Title
Reconsidered, 31 Hastings L.J. 1215, 1241-42 (1980).
7. Property rules and land use. One of the strongest historical
justifications for the dispossession of the indigenous peoples of the North
American continent was the argument that the Indians did not own or have
rights to the land because they did not use the land. Justice Reed alluded to
this in Tee-Hit-Ton when he stated that the Tlingit were nomadic hunters and
gathers (rather than farmers and industrialists).
A number of historians have debunked the notion that, at the time of
contact, the Indians did not use and shape the land to meet their economic
and commercial needs. For example, the eastern Tribes burned the forests to
facilitate the hunting of game and cultivated a variety of crops, including
corn, beans, and tobacco. The plains Indians burned the prairie grasses and
constructed traps and leaps to hunt buffalo and other game. The pueblo
Indians of the Southwest were primarily farmers and ranchers. And, in
addition to fishing for their own sustenance, the Northwest Tribes established
an extensive inter-tribal trading network for salmon, deer and elk, clothing
and other domestic items. See generally William Cronon, Changes in the
Land: Indians, Colonists, and the Ecology of New England (Hill & Wang
1983); Francis Jennings, The Founders of America (Norton 1993); Alvin M.
Josephy, ed., America in 1492: The World of the Indian Peoples Before the
23
Arrival of Columbus (Knopf 1992); Jack Weatherford, Indian Givers: How
the Indians of the Americas Transformed the World (Crown 1988).
8. The last word. Perhaps it is best to end on this note with the following
comments by the late Michael Dorris:
Maybe those Pilgrims and Wampanoags actually got together for a
November picnic, maybe not. It matters only as an ironical footnote.
For the former group, it would have been a celebration of a precarious
hurdle successfully crossed on the path to the political domination, first
of a continent and eventually of a planet. For the latter, it would have
been, at best, a naive extravaganza – the last meeting as equals with
invaders who, within a few years, would win King Philip’s War and
decorate the entrances to their towns with rows of stakes, each topped
with an Indian head.
The few aboriginal survivors of the ensuing violence were either sold
into Caribbean slavery by their better-armed, erstwhile hosts or ruthlessly
driven from their Cape Cod homes. Despite the symbolic idealism of the
first potluck, New England – from the emerging European point of view
– simply wasn’t big enough for two sets of societies.
An enduring benefit of success, when one culture clashes with
another, is that the victorious group controls the record. It owns not only
the immediate spoils but also the power to edit, embellish, and concoct
the facts of the original encounter for the generations to come. Events,
once past, reside at the small end of the telescope, the vague and hazy
antecedents to accepted reality.
Our collective modern fantasy of Thanksgiving is a case in point. It
has evolved into a ritual pageant that almost every once of us, as children,
either acted in or were forced to watch – a seventeenth-century vision that
we can conjure whole in the blink of an eye.
The cast of stock characters is as recognizable as those in any Macy’s
parade: dour-faced Pilgrim men, right-to-bear-arms muskets at their
sides, sitting around a rude outdoor table while their wives, dressed in
long dresses, aprons, and linen caps, bustle about lifting the lids off
steaming kettles – pater- and materfamilias of New World hospitality.
They dish out the turkey to a scattering of shirtless Indian invitees.
But there is no ambiguity as to who is in charge of the occasion, who
could be asked to leave, whose protocol prevails.
Only “good” Indians are admitted into this tableau, of course, as in
those who accept the Manifest Destiny of a European presence and are
24
prepared to adopt English dining customs and, by inference, English
everything else.
These compliant Hollywood extras are, naturally enough, among the
blessings the Pilgrims are thankful for – and why not? Holiday Indians
are colorful, bring the food, and vanish after dessert. They are something
exotic to write home about, like a visit to Frontierland. In the sound bite
of national folklore, they have metamorphosed into totems of America as
evocative, and ultimately as vapid, as a flag factory.
And members of this particular make-believe tribe did not all repair
to the happy hunting grounds during the first Christmas rush. They lived
on, smoking peace pipes and popping up at appropriate crowd-pleasing
moments.
They lost mock battles from coast to coast in Wild West shows. In
nineteenth-century art, they sat bareback on their horses and stoically
watched a lot of sunsets. Entire professional sports teams of them take
the home field every Sunday afternoon in Cleveland, Atlanta, or
Washington, D.C.
They are the sources of merit badges for Boy Scouts and the emblem
of purity for imitation butter. They are, and have been from the
beginning, predictable, manageable, domesticated inventions without
depth or reality apart from that bestowed by their creators.
These appreciative Indians, as opposed to the pesky flesh and blood
native peoples on whom they are loosely modeled, did not question the
enforced exchange of their territories for a piece of pie. They did not
protest when they died by the millions from European diseases.
They did not resist – except for the “bad” ones, the renegades – when
solemn pacts made with them were broken or when their religions and
customs were declared illegal. They did not make a fuss in courts in
defense of their sovereignty. They never expected all the fixings anyway.
As for Thanksgiving 1988, the descendants of those first party-goers
sit at increasingly distant tables, the pretense of equity all but abandoned.
Against great odds, Native Americans have maintained political identity,
but, in a country so insecure about heterogeneity that it votes its dominant
language as “official,” this refusal to melt into the pot has been an
expensive choice.
A majority of reservation Indians reside in the most impoverished
counties in the nation. They constitute the ethnic group at the wrong
extreme of every scale: most undernourished, most short-lived, least
25
educated, least healthy. For them, Thanksgiving was perhaps their last
square meal.
Michael Dorris, For Indians, No Thanksgiving, in Paper Trail 228 (Harper
Collins 1994).
26
Assignment 2: A Brief History of the Public Lands
“Up to our own day American history has been in a large degree the
history of the colonization of the Great West. The existence of an area
of free land, its continuous recession, and the advance of American
settlement westward, explain American development.”
Frederick Jackson Turner,
The Significance of the Frontier in American History (1893).
“In the dominant ‘frontier’ interpretation of western American history, the
stars of the story were northern Europeans and white Americans, and all
the others were jumbled together into an unilluminating category, ‘the
other side of the frontier.’ What had been, in fact, a multi-sided
convergence of people from all over the planet went on record in both the
history books and the movies as a two-sided frontier: with the white
civilizers from the eastern United States on one side, and, on the other,
everybody else – Indians, French Canadians, Russians, Asians, and
Polynesians. . . . Reading history according to the frontier model was a
bit like reading Shakespeare in an edited version allowing only one
character per play.”
Patricia Nelson Limerick,
The Rendezvous Model of Western History (1990).
“Today, the American West is a battleground. The men and women
whose families settled the West, who have lived on the land for
generations, find themselves besieged by environmental elitists sitting in
their glass towers in New York City and San Francisco, their ivory towers
in prestigious colleges and universities, and their marble towers along the
corridors of power in Washington, D.C. These ‘strangers’ to the West
and to Westerners seek to turn everything from the 100th Meridian to the
Cascade Mountains into a vast park. . . . The War on the West is about
whether Westerners will have an economy, or property rights, or the
ability to engage in economic pursuits that sustained their forefathers and
that the nation still requires.”
William Perry Pendley, War on the West.
27
“A lot of people came to the West and found a secure life and saw their
values written into law, over generations. My father found an untouched
place; he got the first shot at it; he inherited an old story: Take charge,
make it pay. Our problems now are much more complex. We are
responsible for imagining our way into a just society, and an economy
based on our own labor and inventiveness rather than continued deep
plowing in the pastures of heaven.”
William Kittredge, Who Owns the West?
Some knowledge of the history of the public lands is essential to
understanding their current management. The growth of the law is always
path-dependent; the starting point can in many ways determine the endpoint.
The highly non-uniform distribution of federal lands across the map of the
United States, for example, is very much a product of history. Beyond that,
the particular history of the federally-owned lands is an important factor in
the breadth and depth of current federal land controversies.
An Abbreviated History of the Public Lands
The standard history of the public lands identifies four major eras, with
some overlap: 1) acquisition (roughly 1776-1867); 2) disposition (beginning
almost coincident with acquisition, and running through about 1935); 3)
retention (from the 1890s to 1976); and 4) management (beginning more or
less coincident with the era of retention, but becoming dominant in the
second half of the 20th century).
The period of acquisition of the public domain ran from the creation of
the nation to 1867. In addition to conquest and purchase from Native
Americans, the United States acquired land from the original thirteen
colonies and from European nations with North American claims.
The colonies gained dominion over what had been Crown lands within
their boundaries at the end of the Revolutionary War. Colonial land claims,
however, did not end at what are now the borders of the states. Several of the
colonies claimed lands running west as far as the Mississippi River. These
western claims became an issue in the formation of the new United States; for
the most part, they were ceded to the United States by the 1780s.
The young United States sought additional lands both for expansion and
to solidify control of the continent. In 1803, President Thomas Jefferson
accepted Napoleon’s offer to sell the Louisiana Territory, which France had
28
recently acquired from Spain. That purchase, for the bargain price of three
cents per acre, roughly doubled the size of the United States. Spain
subsequently ceded to the United States its claims in Florida and in the
Pacific Northwest. The nation’s northern boundary was fixed by agreement
with Great Britain in 1846, bringing the Oregon Territory into the United
States. Much of the Southwest was acquired from Mexico in the 1848 Treaty
of Guadalupe Hidalgo following a brief war. The southern portion of
Arizona was added a few years later through the Gadsen purchase. Finally,
in 1867, Alaska was purchased from Russia for just over $7 million. The
United States agreed to recognize land grants made by the prior sovereign for
all these acquired lands, but the vast majority of the lands were added to the
public domain.
The conspicuous exception to this history is Texas, where the United
States was never a major landowner. Texas joined the nation after a brief
period of independence from Mexico. It was allowed to retain possession of
its unsettled lands, but sold to the federal government nearly 80 million acres
west and north of its current boundaries.
As lands were acquired, they were explored by federally financed
expeditions, the best known of course being that of Lewis and Clark. These
expeditions had several overlapping purposes. They sought geographic
information, such as the sources of rivers and potential railroad routes;
political information, such as the locations and strengths of native and
European settlements; economic information, such as the availability of
exploitable resources like furs, and the possibilities for agriculture; and
scientific information, cataloguing the flora and fauna. They also sought to
establish and make apparent American sovereignty over these lands.
Along with exploration, this era brought the beginnings of both
systematization. The Land Ordinance of 1785 called for a systematic survey
of the lands of the nation, and their division into townships consisting of 36
numbered sections, each 1 mile square and containing 640 acres. (See Figure
1 below.) Because of logistical difficulties and competing demands for
resources, this survey was never ahead of the advancing frontier, and often
lagged well behind the transfer of lands out of federal ownership. Almost 2.5
billion acres have been surveyed and monumented, but even so the task is not
complete. New surveys continue under the auspices of the Bureau of Land
Management, primarily in Alaska, and resurveys are needed where markers
have been lost or obliterated.
Even before the Constitution was adopted, the federal government
asserted its authority to govern the public domain. The Northwest Ordinance
29
of 1787 forbade interference by the states in disposal of those lands, or “with
any regulations Congress may find necessary for securing the title in such soil
to the bona fide purchasers.” The Property Clause of the Constitution, which
we shall soon examine in detail, soon explicitly gave Congress “Power to
dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States.” Article IV, § 3,
cl. 2.
Once the public lands had been at least roughly explored, the US began
to dispose of them. No one thought at the time that the United States would
remain a major landowner indefinitely. Instead, it was assumed that the
public domain would be disposed of to provide revenue, to further social
goals such as the Jeffersonian vision of creating yeoman farmers, and to spur
economic development.
Disposal began as soon as the lands were in federal hands, but it was
particularly rapid from about 1860 to 1890, the period known as the “Great
Barbecue.” Initially, lands were supposed to be surveyed and then auctioned
off. People did not wait patiently for that process to be completed, however.
Squatters rushed to these lands and began to exploit their various resources.
The response was conflicted. Squatting interfered with orderly disposition
of the public domain, and with the use of federal lands to produce federal
revenues. At the same time, squatting consolidated Anglo control of
contested lands, settled the frontier, and promoted economic development of
30
the west. It could be seen as quintessentially American, rewarding those who
were willing to take risks and work hard. Furthermore, the federal
government was weak, strapped for cash, and distant. It was hardly in a
position to maintain close control of every acre of the public domain. In the
end, squatters repeatedly won confirmation of their rights to stay on the land
through a series of “preemption acts.” These gave settlers a preferential right
to purchase their claims at low prices.
The original vision of land disposal had been of auctions raising revenue
for the young nation, which had few other assets. Gradually, the government
began offering land on more and more generous terms. Eventually, vast
amounts of land were given away or sold much below market price with the
intent of rewarding or encouraging various activities. Land grants to veterans
of the nation’s wars began early in the 19th century, and continued until after
World War II. The Homestead Acts, beginning in 1862, offered up to 160
acres free to those who could live and farm there for five years. Settlers
could get the land even sooner if they were able to pay a small price.
West of the 100th meridian, the expectation that 160 acres could support
a family collided with the reality of an arid climate. As John Wesley Powell
had tried to tell Congress, that was too much land for a family to irrigate, but
not enough to support a ranch. People found various ways to circumvent the
160-acre limit, and eventually Congress increased it to 320 or 640 through a
series of laws specific to the arid lands of the west. Homesteading was
largely ended by the withdrawal of most federal lands from entry during
Franklin Roosevelt’s presidency, but continued in a few locations until the
1976 enactment of the Federal Land Policy and Management Act.
In addition to offering land to settlers, the federal government made
generous grants to the new states that were progressively carved out of the
frontier. Beginning in 1785, specific sections in every township surveyed
were reserved, for eventual conveyance to the states for the purpose of
supporting the public schools. Statehood acts frequently designated
additional sections to be given to newly admitted states for various purposes.
Since the designated sections were sometimes already in private hands by the
time the survey was completed, a process for states to select “in lieu” lands
of equivalent value. Litigation over in lieu selections continued well into the
1980s. Generous as these grants were, they did not satisfy western states,
which saw themselves as disadvantaged by the large remaining federal
landholdings within their boundaries.
Finally, the federal government provided massive land grants as
incentives to encourage the construction of railroads into the west. Markets
31
for western agriculture and resource extraction could not develop without
transportation, and railroads, which were capital-intensive to construct, could
not be profitable without cargo to transport. The United States, although
anxious for railroads to unite the country politically as well as economically,
did not have the cash resources to lay track itself. But it did have abundant
land, which would be more valuable if it was accessible by railroad. Using
that land to subsidize railroad construction appeared to offer something for
everyone.
Beginning in 1850, the United States granted odd-numbered sections of
non-mineral public lands along railroad routes, creating a checkerboard of
public and private ownership. These railroad grants covered swaths as wide
as forty miles. The resulting checkerboard pattern of ownership was not
expected to persist. It was thought that both the railroads and the United
States would liquidate their landholdings fairly quickly, making land
available to farmers and settlers as the railroads moved west.
Eventually, the excesses of the Great Barbecue, and the limits of the
nation’s landholdings, became sufficiently apparent that the political
landscape shifted. Beginning in the early 1800s, the United States had
decided to retain lands containing lead ore, which was a strategic resource,
leasing the mineral rights to private operators in return for royalties on the
lead extracted. That decision was challenged, with opponents arguing that
the Property Clause authorized Congress only to dispose of the federal lands,
and to make rules needed to facilitate that disposal, not to hold and manage
the lands. The Supreme Court rejected that argument in U.S. v. Gratiot, 39
U.S. 526 (1840).
Retention did not become a systematic federal policy until many years
later. In addition to the lead mines, there were scattered individual
reservations of lands recognized as special for aesthetic reasons. In the
1830s, when Arkansas was being liquidated, a handful of sections were
retained because they had valuable hot springs. In 1864, Yosemite Valley
was given to California on condition that it be held for public use and
recreation forever. It was later returned to the federal government. In 1872,
Yellowstone was withdrawn from all entry and reserved as a pleasuring
ground.
The first generalized retention policy, though, had a utilitarian basis. In
1864, George Perkins Marsh published Man and Nature, which decried the
rapid despoliation of the American continent in contrast with the orderly
forestry of Europe. Marsh was the original prophet of environmental doom
and gloom. He argued that the ongoing reckless destruction of the nation’s
32
forests threatened future human prosperity, and perhaps even survival.
Marsh’s book gave rise to the conservation movement, epitomized by Gifford
Pinchot, who warned against putting key natural resources in the hands of
private actors, who could not be trusted to look out for future demands.
Control of natural resources, he argued, was a prime duty of the state.
In 1891, Congress responded. A sentence added to the General Revision
Act in conference committee gave the President the authority to reserve any
public lands covered with timber, whether of commercial value or not. A
series of executive orders followed, creating the foundations of the current
National Forest system. Faced with a 1907 appropriations rider repealing the
presidential authority to create new forest reserves, Theodore Roosevelt put
his staff to work day and night drafting proclamations. Roosevelt issued
orders setting aside two dozen new reserves before, and enlarging nearly a
dozen others, before signing the bill.
Early in the 20th century, Congress began to set aside land for national
parks, and with the Antiquities Act authorized the President to withdraw
lands to protect any “objects of historic or scientific interest.” 16 U.S.C. §
431. Wholesale disposal of the public domain ended in the 1930s, when
Franklin Roosevelt, acting under the authority of the Taylor Grazing Act,
withdrew essentially all remaining public domain lands in the western states.
Finally, in 1976, the Federal Land Policy and Management Act explicitly
declared a national policy of retaining all public lands unless “it is determined
that disposal of a particular parcel will serve the national interest.” 16 U.S.C.
§ 1701(a)(1).
As decisions were made to retain some, and finally nearly all, of the
public lands in federal ownership, management became the dominant
paradigm, and it remains so today.
The Public Lands Today
At least on first impression, the extent of federal landholdings in the
American West is staggering. The United States owns approximately 662
million acres, just under 30% of all the land in the nation. The public lands
are heavily concentrated in the arid western states, beyond the 100th
meridian. To see just how unevenly the federal lands are distributed, follow
the link from the course web page to the National Atlas map of the federal
lands. Almost fifty percent of the land mass of the eleven states that
comprise the Pacific coast and intermountain west is owned by the United
States. Center of the American West, Atlas of the New West 58 (1997). As
33
Table 1 shows, there is considerable variability in the percentage of federal
land even in these states. In addition, approximately 68 % of the state of
Alaska is federal land.
Table 1. Percentage of federal land in the western states
State
Percent federal land
Arizona
47
California
45
Colorado
36
Idaho
62
Montana
28
Nevada
83
New Mexico
32
Oregon
52
Utah
64
Washington
28
The bulk of these lands is managed in four separate systems, overseen by
four different federal agencies. The Bureau of Land Management is in
responsible for the largest area, 272 million acres, but the least charismatic
lands. Its lands do not have their own distinctive name; they are referred to
generically as “public lands” or “BLM lands.” With a few exceptions, the
BLM lands are an accident of history. They are the remnants of the open
access public domain, the lands which were least desirable for private
settlement, which did not have significant timber resources, and which did
not have the striking aesthetic features that produced national parks. The
BLM lands are managed for “multiple use,” primarily under the authority of
FLPMA, 43 U.S.C. § 1701-1784. Livestock grazing and mining are the
primary extractive uses of these lands. Motorized and non-motorized
34
recreation are increasingly important, and conservation is becoming more
significant.
The National Forest Service, within the US Department of Agriculture,
manages about 191 million acres of national forests and grasslands. That
national forest system is the modern descendent of the forest reserves first
withdrawn beginning in 1891. Like the BLM lands, the national forests are
managed under a multiple use paradigm. The key statutes governing national
forest management are the Organic Administration Act of 1897 (also known
simply as the “Organic Act”), presently codified beginning at 16 U.S.C. §
473; the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. § 528-531
(MUSYA); and the National Forest Management Act of 1976, 16 U.S.C. §§
1600-1614 (NFMA). Important uses of the national forests include timber
production, livestock grazing, mining, recreation of many kinds, and fish and
wildlife conservation.
The United States Fish and Wildlife Service manages about 95 million
acres of national wildlife refuges. The refuge system is an eclectic mix of
more than 550 units, created at different times and for different purposes.
The refuge system is the most evenly distributed across the lower 48, with
every state having at least one National Wildlife Refuge. If Alaska is
included, however, that evenness disappears. Although the vast majority of
the system’s units are in the continental U.S., nearly 85% of its land area is
found in a few very large refuges in Alaska. Robert L. Fischman, The
Significance of National Wildlife Refuges in the Development of U.S.
Conservation Policy, 21 Journal of Land Use and Environmental Law 1
(2005). Unlike the BLM lands and National Forests, the National Wildlife
Refuges have a single dominant purpose. Under the National Wildlife
Refuge System Improvement Act of 1997, Pub. L. No. 105-57, 111 Stat.
1252 (1997) (codified at 16 U.S.C. § 668dd-ee), the purpose of the system is
conservation, primarily of wildlife. Hunting and fishing are traditional
recreational uses of the refuge system. Non-consumptive wildlife-dependent
recreation, such as birdwatching, is also important. Many other activities are
permitted on refuge lands to the extent compatible with conservation
objectives.
Finally, the National Park Service manages 77 million acres of parks,
monuments, national sea shores, and national recreation areas. The national
parks include the crown jewels of the federal lands, iconic landscapes such
as Yellowstone and Yosemite that draw millions of visitors annually. It
should be noted, however, that the national park system also includes many
smaller and lesser-known units, and areas with historic or cultural
35
significance as well as outstanding natural areas. Management of the national
parks is primarily governed by the National Park Service Organic Act, 16
U.S.C. §§ 1-18, which provides that the purpose of the parks “is to conserve
the scenery and the natural and historic objects and the wild life therein and
to provide for the enjoyment of the same in such manner and by such means
as will leave them unimpaired for the enjoyment of future generations.” 16
U.S.C. § 1.
Wilderness designation acts as an overlay to any of these land systems.
Congress can designate lands within any of the system as wilderness. The
Wilderness Act requires that lands so designated be managed “for the use and
enjoyment of the American people in such manner as will leave them
unimpaired for future use and enjoyment as wilderness.” 16 U.S.C. 1131(a).
Wilderness areas must, among other things, remain roadless. There are
currently 690 wilderness areas, containing a total of more than 106 million
acres, located in 44 states. Alaska has more than 50% of the nation’s total
wilderness
acreage.
See
Wilderness.net,
http://www.wilderness.net/index.cfm?fuse=NWPS&sec=fastFacts.
Other federal actors have important roles on the public lands. The
Department of Defense manages a substantial amount of land, although that
land is largely closed to public access. The Army Corps of Engineers, Bureau
of Reclamation, Fish and Wildlife Service, and National Marine Fisheries
Service all exercise important regulatory and management jurisdiction over
public lands and their water resources.
NOTES AND QUESTIONS:
1. Modern federal land issues. The modern era in federal land and resource
management has been dominated by a variety of legal, economic, and policy
issues. These include:
• Controversies over continuing federal ownership of the public lands
of the West. The “Sagebrush Rebellion” of the late 1970s and early
1980s has been transformed into the “Wise Use” and “County
Supremacy” movements of the 1990s.
• Recognition and criticism of the subsidies granted to mining
companies, public land ranchers, timber companies, and recipients of
water from the federal reclamation program.
• Concern about the environmental effects of extractive and
exploitative uses of the federal public lands. These environmental
36
problems include: air and water pollution; loss of riparian zones;
degradation of public rangeland; erosion and sedimentation of rivers
and lakes; loss of habitat; threats to endangered species; and
overcrowding of national parks and wilderness areas.
• Recognition of the complications caused by fragmented management
of ecosystems that may include five basic types of public lands
administered by four different federal agencies in two cabinet-level
departments; state lands also administered by multiple agencies;
unincorporated county lands; and private lands.
• Conflicts over the division of authority between federal and state
governments in the management and regulation of private uses of the
public lands.
• Conflicts over the durability and strength of the property rights of
users of the federal public lands and resources, and over the attention
due the reliance claims of individuals and communities that are
economically dependent upon the resources of the public lands.
2. Eastern federal lands. On the National Atlas map, notice that although
the public lands are concentrated in the west, they are found across the
country, including in the original thirteen states. Given that these states took
over Crown lands when they gained their independence, you might wonder
how they came to have any federal lands. The answer is that the federal
government purchased those lands in the 20th century. The Weeks Act of
1911, Pub. L. No. 61-435, 36 Stat. 961, authorized federal purchase of forest
reserves. That authority has been used to create the eastern National Forests.
The National Wildlife Refuge system has been created largely by land
acquisition, funded primarily through receipts from the sale of waterfowl
hunting licenses. A few national parks, including Everglades, Great Smoky
Mountains, Shenandoah, and Acadia have been created by acquisition of
lands in the eastern states. In some of these cases, notably for the creation of
Shenandoah National Park, much of the land was acquired through
condemnation, rather than voluntary sale, and some residents had to be
forcibly removed.
3. Public ownership. Should the United States retain in perpetuity
ownership of the western public lands? Could these lands and their attendant
resources be better managed by the states or by private owners? Does
permanent federal ownership of such large percentages of the lands of the
western states violate the state’s constitutional rights or prerogatives? We
will begin to explore the legal aspects of these questions in the next
assignment. They are explored in Sterling Brubaker, ed., Rethinking the
37
Federal Lands (Resources for the Future 1984), and in Public Resource
Management, a symposium issue of Hastings West-Northwest Journal of
Environmental Law and Policy, Vol 3, No. 2 (1996). The latter contains a
useful bibliography of other writings on these subjects. Id. at 265.
4. Additional reading. Obviously, we have covered this history much too
quickly. There is far more to know about the history of the American West
in general and of the public lands in particular. Excellent histories of the
American West include:
Richard White, “It’s Your Misfortune and None of My Own”: A New
History of the American West (University of Oklahoma Press 1991).
Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past
of the American West (Norton 1987).
William Cronon, George Miles & Jay Gitlin, Under an Open Sky:
Rethinking America’s Western Past (Norton 1992).
Clyde A. Milner II, Carol A. O’Conner & Martha Sandweiss, The Oxford
History of the American West (Oxford 1994).
Geoffrey C. Ward, The West: An Illustrated History (Little, Brown
1996).
The standard and best history of federal public land law is: Paul W.
Gates, History of Public Land Law Development (U.S. 1968). The only (and
excellent) treatise on the subject is George Cameron Coggins & Robert L.
Glicksman, Public Natural Resources Law (1990). Along with Charles
Wilkinson and John Leshy, Professor Coggins also has written a casebook
entitled Federal Public Land and Resources Law (Foundation 5th ed. 2001),
which is also a valuable reference. A readable, concise introduction to the
field is Marla E. Mansfield, A Primer of Public Land Law, 68 Wash. L. Rev.
801 (1993). Finally, the “nutshell” – Robert L. Glicksman & George
Cameron Coggins, Modern Public Land Law (West 1995) – is pretty good,
too.
To get a sense of what the public lands are like today, it is useful to
browse the web sites of the major federal land management agencies, the
Forest Service, Bureau of Land Management, National Park Service, and Fish
and Wildlife Service (which manages the National Wildlife Refuge system).
The Center of the American West’s Atlas of the New West (1997)
includes maps and graphs that illustrate the geography, hydrology, and
political and jurisdictional boundaries of the American West, as well as its
changing economics and demographics.
38
Assignment 3: Federal Land Ownership and Its Limits
Martin v. Waddell’s Lessee
Supreme Court of the United States, 1842.
41 U.S. 367.
O CHIEF JUSTICE TANEY delivered the opinion of the Court.
. . . The questions before us arise upon an action of ejectment, instituted
by the defendant in error, who was the plaintiff in the court below, to recover
one hundred acres of land, covered with water, situated in the township of
Perth Amboy, in the state of New Jersey. At the trial in the circuit court, the
jury found a special verdict, setting forth, among other things, that the land
claimed lies beneath the navigable waters of the Raritan river and bay, where
the tide ebbs and flows. And it appears, that the principal matter in dispute,
is the right to the oyster fishery in the public rivers and bays of East New
Jersey.
The plaintiff makes title under the charters granted by Charles II to his
brother, the Duke of York, in 1664 and 1674, for the purpose of enabling him
to plant a colony on this continent. . . .
The defendant in error claims the land covered with water, mentioned in
the declaration, by virtue of a survey made in 1834, under the authority of the
proprietors, and duly recorded in the proper office. And if they were
authorized to make this grant, he is entitled to the premises, as owner of the
soil, and has an exclusive right to the fishery in question. . . . The point in
dispute between the parties, therefore, depends upon the construction and
legal effect of the letters-patent to the Duke of York, and of the deed of
surrender subsequently made by the proprietors.
The letters-patent to the duke included a very large territory, extending
along the Atlantic coast from the river St. Croix to the Delaware bay . . .
The right of the king to make this grant, with all of its prerogatives and
powers of government, cannot, at this day, be questioned. But in order to
enable us to determine the nature and extent of the interest which it conveyed
to the duke, it is proper to inquire into the character of the right claimed by
the British crown, in the country discovered by its subjects, on this continent;
and the principles upon which it was parcelled out and granted.
*****
This being the principle upon which the charter in question was founded,
by what rules ought it to be construed? We do not propose to meddle with
39
the point which was very much discussed at the bar, as to the power of the
king, since Magna Charta, to grant to a subject a portion of the soil covered
by the navigable waters of the kingdom, so as to give him an immediate and
exclusive right of fishery, either for shell-fish or floating fish, within the
limits of his grant. The question is not free from doubt, and the authorities
referred to in the English books cannot, perhaps, be altogether reconciled. But
from the opinions expressed by the justices of the court of king’s bench, in
the case of Blundell v. Catterall, 5 Barn. & Ald. 287, 294, 304, 309; and in
the case of the Duke of Somerset v. Fogwell, 5 Barn. & Cres. 883-4, the
question must be regarded as settled in England, against the right of the king,
since Magna Charta, to make such a grant. The point does not, however,
arise in this case, unless it shall first be decided, that in the grant to the Duke
of York, the king intended to sever the bottoms of the navigable waters from
the prerogative powers of government conferred by the same charter; and to
convert them into mere franchises in the hands of a subject, to be held and
used as his private property. And we the more willingly forbear to express
an opinion on this subject, because it has ceased to be a matter of much
interest in the United States. For when the revolution took place, the people
of each state became themselves sovereign; and in that character hold the
absolute right to all their navigable waters, and the soils under them, for their
own common use, subject only to the rights since surrendered by the
constitution to the general government. A grant made by their authority must,
therefore, manifestly be tried and determined by different principles from
those which apply to grants of the British crown, when the title is held by a
single individual, in trust for the whole nation.
*****
The questions upon this charter are very different ones; they are –
Whether the dominion and propriety in the navigable waters, and in the soils
under them, passed, as a part of the prerogative rights annexed to the political
powers conferred on the duke? Whether, in his hands, they were intended to
be a trust for the common use of the new community about to be established;
or private property to be parcelled out and sold to individuals, for his own
benefit? And in deciding a question like this, we must not look merely to the
strict technical meaning of the words of the letters-patent. The laws and
institutions of England, the history of the times, the object of the charter, the
contemporaneous construction given to it, and the usages under it, for the
century and more which has since elapsed, are all entitled to consideration
and weight. It is not a deed conveying private property, to be interpreted by
the rules applicable to cases of that description. It was an instrument upon
40
which was to be founded the institutions of a great political community; and
in that light it should be regarded and construed.
Taking this rule for our guide, we can entertain no doubt as to the true
construction of these letters-patent. The object in view appears upon the face
of them. They were made for the purpose of enabling the Duke of York to
establish a colony upon the newly-discovered continent, to be governed, as
nearly as circumstances would permit, according to the laws and usages of
England; and in which the duke, his heirs and assigns, were to stand in the
place of the king, and administer the government according to the principles
of the British constitution. . . .
It is said by Hale, in his treatise de Jure Maris, Harg. Law Tracts 11,
when speaking of the navigable waters, and the sea on the coasts within the
jurisdiction of the British crown, “that although the king is the owner of this
great, coast, and as a consequent of his propriety, hath the primary right of
fishing in the sea, and creeks and arms thereof, yet the common people of
England have, regularly, a liberty of fishing in the sea, or creeks or arms
thereof, as a public common of piscary, and may not, without injury to their
right, be restrained of it, unless in such places, creeks or navigable rivers,
where either the king or some particular subject hath gained a propriety
exclusive of that common liberty.”
The principle here stated by Hale, as to “the public common of piscary”
belonging to the common people of England, is not questioned by any
English writer upon that subject. . . . And there is nothing in the charter
before us, indicating that a different and opposite line of policy was designed
to be adopted in that colony. . . . Whatever was held by the king, as a
prerogative right, passed to the duke in the same character. . . . [I]n the
judgment of the court, the lands under the navigable waters passed to the
grantee, as one of the royalties incident to the powers of government; and
were to be held by him, in the same manner, and for the same purposes, that
the navigable waters of England, and the soils under them, are held by the
crown.
This opinion is confirmed, by referring to similar grants for other tracts
of country upon this continent, made about the same period of time. Various
other charters for large territories on the Atlantic cost, were granted, by
different monarchs of the Stuart dynasty, to different persons, for the
purposes of settlement and colonization, in which the powers of government
were united with the grant of territory. Some of these charters very nearly
resembled in every respect the one now in controversy; and none of them, it
is believed, differed materially from it, in the terms in which the bays, rivers
41
and arms of the sea, and the soils under them, were conveyed to the grantees.
Yet, in no one of these colonies, has the soil under its navigable waters, and
the rights of fishery for shell-fish or floating fish, been severed by the
letters-patent from the powers of government. In all of them, from the time
of the settlement to the present day, the previous habits and usages of the
colonists have been respected, and they have been accustomed to enjoy in
common, the benefits and advantages of the navigable waters, for the same
purposes, and to the same extent, that they have been used and enjoyed, for
centuries, in England. Indeed, it could not well have been otherwise; for the
men who first formed the English settlements, could not have been expected
to encounter the many hardships that unavoidably attended their emigration
to the new world, and to people the banks of its bays and rivers, if the land
under the water at their very doors was liable to immediate appropriation by
another, as private property; and the settler upon the fast land thereby
excluded from its enjoyment, and unable to take a shell-fish from its bottom,
or fasten there a stake, or even bathe in its waters, without becoming a
trespasser upon the rights of another. The usage in New Jersey has, in this
respect, from its original settlement, conformed to the practice of the other
chartered colonies. And it would require very plain language in these
letters-patent, to persuade us that the public and common right of fishery in
navigable waters, which has been so long and so carefully guarded in
England, and which was preserved in every other colony founded on the
Atlantic borders, was intended, in this one instance, to be taken away. But
we see nothing in the charter to require this conclusion.
O THOMPSON , JUSTICE , dissenting.
The premises in question in this case are a mud-flat covered by the waters
of the bay of Amboy, in the state of New Jersey. . . .
*****
A majority of the court seem to have adopted the doctrine of Arnold v.
Mundy, decided in the supreme court of New Jersey, 1 Halst. 1, in which it
is held, that navigable rivers, where the tide ebbs and flows, and the ports,
bays and coasts of the sea, including both the waters and the land under the
water, are common to the people of New Jersey; and that, under the grant of
Charles II to the Duke of York, all the rights, which they call royalties, passed
to the duke, as governor of the province, exercising the royal authority, and
not as the proprietor of the soil; but that he held them as trustee for the
benefit of all settlers in the province, and that the proprietors did not acquire
any such right to the soil, that they would grant a several fishery; and that no
42
person who plants a bed of oysters in a navigable river, has such property in
the oysters as to enable him to maintain an action of trespass against any one
who encroaches upon it. And this rests on the broad proposition, that the title
to the land under the water did not, and could not, pass to the Duke of York,
as private property. To maintain this proposition, it must rest on the ground,
that the land under the water of a navigable river, is not the subject of a
private right; for if it can be conveyed by words, the grant in the present case
is broad enough to pass the title to the land in question.
*****
That the title to land under a navigable stream of water must be held
subject to certain public rights, cannot be denied. But the question still
remains, what are such public rights? Navigation, passing and repassing, are
certainly among those public rights. And should it be admitted, that the right
to fish for floating fish was included in this public right, it would not decide
the present question. The premises in dispute are a mud-flat; and the use to
which it has been and is claimed to be applied, is the growing and planting
of oysters. It is the use of land, and not of water, that is in question. For the
purpose of navigation, the water is considered as a public highway, common
to all; like a public highway on land. If land over which a public highway
passes, is conveyed, the soil passes, subject to that use; and the purchaser may
maintain an action for an injury to this soil, not connected with the use; and
whenever it ceases to be used as a public highway, the exclusive right of the
owner attaches; so with respect to the land under water, the public use for
passing and repassing, and all the purposes for which a public way may be
used, are open to the public; the owner, nevertheless, retaining all the rights
and benefits of the soil, that may not impede or interfere with the use as a
public highway. Should a coal-mine, for instance, be discovered under such
highway, it would belong to the owner of the soil, and might be used for his
benefit; preserving, unimpaired, the public highway. So, with respect to an
oyster-bed, which is local, and is attached to the soil. It is not the water that
is over the beds that is claimed; that is common, and may be used by the
public; but the use of the soil by the owner which is consistent with the use
of the water by the public, is reserved to the owner. Suppose, this mud-flat
should, by the wash from the shore, or the receding of the water, or in any
other manner, be filled up and become solid ground (which is by no means
an extravagant supposition); would not the proprietors be considered the
owners of this land, and have the exclusive right to the use and enjoyment of
it, if they had in no way parted with such right? This cannot be denied, if the
soil passed to and became vested in the proprietors, under the grant to them.
43
It surely would not be claimed by the state, it being no longer susceptible of
public use.
*****
44
Pollard’s Lessee v. Hagan
United States Supreme Court, 1845.
44 U.S. 212.
[Pollard claimed title to fill land below the mean high tide line in Mobile
Bay, Alabama pursuant to a patent from the United States in 1836. Hagan
claimed title to the same land pursuant to an earlier Spanish land grant. The
trial court ruled that the United States was divested of title to all land within
the state below the mean high tide mark in 1819 when Alabama became a
state and therefore entered judgment in favor of Hagan. The Alabama
Supreme Court affirmed.]
O JUSTICE MCKINLEY delivered the opinion of the Court.
The counsel for the plaintiffs insisted, in argument, that the United States
derived title to that part of Alabama, in which the land in controversy lies,
from the King of Spain; and that they succeeded to all his rights, powers, and
jurisdiction, over the territory ceded, and therefore hold the land and soil,
under navigable waters, according to the laws and usages of Spain; and by
those laws and usages the rights of a subject to land derived from the crown
could not extend beyond high water-mark, on navigable waters, without an
express grant; and that all alluvion belonged to the crown, and might be
granted by this king, together with all land between high water and the
channel of such navigable waters; and by the compact between the United
States and Alabama, on her admission into the union, it was agreed, that the
people of Alabama for ever disclaimed all right or title to the waste or
unappropriated lands lying within the state, and that the same should remain
at the sole disposal of the United States; and that all the navigable waters
within the state should for ever remain public highways, and free to the
citizens of that state and the United States, without any tax, duty, or impost,
or toll therefor, imposed by that state. That by these articles of the compact,
the land under the navigable waters, and the public domain above high water,
were alike reserved to the United States, and alike subject to be sold by them;
and to give any other construction to these compacts, would be to yield up to
Alabama, and the other new states, all the public lands within their limits.
We think a proper examination of this subject will show, that the United
States never held any municipal sovereignty, jurisdiction, or right of soil in
and to the territory, of which Alabama, or any of the new states were formed;
except for temporary purposes, and to execute the trusts created by the acts
of the Virginia and Georgia legislatures, and the deeds of cession executed
45
by them to the United States, and the trust created by the treaty with the
French republic, of the 30th of April, 1803, ceding Louisiana.
All that part of Alabama which lies between the thirty-first and thirty-fifth
degree of north latitude, was ceded by the state of Georgia to the United
States, by deed bearing date the 24th day of April, 1802, which is
substantially, in all its principles and stipulations, like the deed of cession
executed by Virginia to the United States, on the 1st day of March, 1784, by
which she ceded to the United States the territory north-west of the river
Ohio. . . .
. . . Taking the legislative acts of the United States, and the states of
Virginia and Georgia, and their deeds of cession to the United States, and
giving to each, separately, and to all jointly, a fair interpretation, we must
come to the conclusion that it was the intention of the parties to invest the
United States with the eminent domain of the country ceded, both national
and municipal, for the purposes of temporary government, and to hold it in
trust for the performance of the stipulations and conditions expressed in the
deeds of cession and the legislative acts connected with them. To a correct
understanding of the rights, powers, and duties of the parties to these
contracts, it is necessary to enter into a more minute examination of the rights
of eminent domain, and the right to the public lands. When the United States
accepted the cession of the territory, they took upon themselves the trust to
hold the municipal eminent domain for the new states, and to invest them
with it, to the same extent, in all respects, that it was held by the states ceding
the territories.
***
When Alabama was admitted into the union, on an equal footing with the
original states, she succeeded to all the rights of sovereignty, jurisdiction, and
eminent domain which Georgia possessed at the date of the cession, except
so far as this right was diminished by the public lands remaining in the
possession and under the control of the United States, for the temporary
purposes provided for in the deed of cession and the legislative acts
connected with it. Nothing remained to the United States, according to the
terms of the agreement, but the public lands. . . .
We will now inquire into the nature and extent of the right of the United
States to these lands, and whether that right can in any manner affect or
control the decision of the case before us. This right originated in voluntary
surrenders, made by several of the old states, of their waste and
unappropriated lands, to the United States, under a resolution of the old
Congress, of the 6th of September, 1780, recommending such surrender and
46
cession, to aid in paying the public debt, incurred by the war of the
Revolution. The object of all the parties to these contracts of cession, was to
convert the land into money for the payment of the debt, and to erect new
states over the territory thus ceded; and as soon as these purposes could be
accomplished, the power of the United States over these lands, as property,
was to cease.
Whenever the United States shall have fully executed these trusts, the
municipal sovereignty of the new states will be complete, throughout their
respective borders, and they, and the original states, will be upon an equal
footing, in all respects whatever. We, therefore, think the United States hold
the public lands within the new states by force of the deeds of cession, and
the statutes connected with them, and not by any municipal sovereignty
which it may be supposed they possess, or have reserved by compact with the
new states, for that particular purpose. The provision of the Constitution
above referred to shows that no such power can be exercised by the United
States within a state. Such a power is not only repugnant to the Constitution,
but it is inconsistent with the spirit and intention of the deeds of cession. The
argument so much relied on by the counsel for the plaintiffs, that the
agreement of the people inhabiting the new states, “that they for ever disclaim
all right and title to the waste or unappropriated lands lying within the said
territory; and that the same shall be and remain at the sole and entire
disposition of the United States,” cannot operate as a contract between the
parties, but is binding as a law. Full power is given to Congress “to make all
needful rules and regulations respecting the territory or other property of the
United States.” This authorized the passage of all laws necessary to secure
the rights of the United States to the public lands, and to provide for their
sale, and to protect them from taxation.
***
And this brings us to the examination of the question, whether Alabama
is entitled to the shores of the navigable waters, and the soils under them,
within her limits. The principal argument relied on against this right, is, that
the United States acquired the land in controversy from the King of Spain.
Although there was no direct reference to any particular treaty, we presume
the treaty of the 22d of February, 1819, signed at Washington, was the one
relied on, and shall so consider the argument. It was insisted that the United
States had, under the treaty, succeeded to all the rights and powers of the
King of Spain; and as by the laws and usages of Spain, the king had the right
to grant to a subject the soil under navigable waters, that, therefore, the
47
United States had the right to grant the land in controversy, and thereby the
plaintiffs acquired a complete title.
If it were true that the United States acquired the whole of Alabama from
Spain, no such consequences would result as those contended for. It cannot
be admitted that the King of Spain could, by treaty or otherwise, impart to the
United States any of his royal prerogatives; and much less can it be admitted
that they have capacity to receive or power to exercise them. Every nation
acquiring territory, by treaty or otherwise, must hold it subject to the
constitution and laws of its own government, and not according to those of
the government ceding it.
[Furthermore, the Court concluded, the United States did not acquire any
part of Mississippi or Alabama from Spain.]
***
Alabama is therefore entitled to the sovereignty and jurisdiction over all
the territory within her limits, subject to the common law, to the same extent
that Georgia possessed it before she ceded it to the United States. To
maintain any other doctrine, is to deny that Alabama has been admitted into
the union on an equal footing with the original states, the constitution, laws,
and compact, to the contrary notwithstanding. But her rights of sovereignty
and jurisdiction are not governed by the common law of England as it
prevailed in the colonies before the Revolution, but as modified by our own
institutions. In the case of Martin and others v. Waddell, 16 Pet., 410, the
present chief justice, in delivering the opinion of the court, said: “When the
Revolution took place, the people of each state became themselves sovereign;
and in that character hold the absolute right to all their navigable waters, and
the soils under them for their own common use, subject only to the rights
since surrendered by the Constitution.” Then to Alabama belong the
navigable waters, and soils under them, in controversy in this case, subject to
the rights surrendered by the Constitution to the United States; and no
compact that might be made between her and the United States could
diminish or enlarge these rights.
The declaration, therefore, contained in the compact entered into between
them when Alabama was admitted into the union, “that all navigable waters
within the said state shall for ever remain public highways, free to the citizens
of said state, and of the United States, without any tax, duty, impost, or toll
therefor, imposed by the said state,” would be void if inconsistent with the
Constitution of the United States. But is this provision repugnant to the
Constitution? By the 8th section of the 1st article of the Constitution, power
is granted to Congress “to regulate commerce with foreign nations, and
48
among the several states.” If, in the exercise of this power, Congress can
impose the same restrictions upon the original states, in relation to their
navigable waters, as are imposed, by this article of the compact, on the state
of Alabama, then this article is a mere regulation of commerce among the
several states, according to the Constitution, and, therefore, as binding on the
other states as Alabama.
In the case of Gibbons v. Ogden, 9 Wheat., 196, after examining the
preliminary questions respecting the regulation of commerce with foreign
nations, and among the states, as connected with the subject-matter there in
controversy, Chief Justice Marshall said:
We are now arrived at the inquiry: What is this power?
It is the power to regulate, that is, to prescribe the rule by which
commerce is to be governed. This power, like all others vested in
Congress, is complete in itself, may be exercised to its utmost extent,
and acknowledges no limitations other than are prescribed in the
Constitution. These are expressed in plain terms, and do not affect
the questions which arise in this case. If, as has been always
understood, the sovereignty of Congress, though limited to specified
objects, is plenary as to those objects, the power over commerce with
foreign nations, and among the several states, is vested in Congress
as absolutely as it would be in a single government having in its
constitution the same restrictions on the exercise of the power as are
found in the Constitution of the United States.
As the provision of what is called the compact between the United States
and the state of Alabama does not, by the above reasoning, exceed the power
thereby conceded to Congress over the original states on the same subject, no
power or right was, by the compact, intended to be reserved by the United
States, nor to be granted to them by Alabama.
This supposed compact is, therefore, nothing more than a regulation of
commerce, to that extent, among the several states, and can have no
controlling influence in the decision of the case before us. This right of
eminent domain over the shores and the soils under the navigable waters, for
all municipal purposes, belongs exclusively to the states within their
respective territorial jurisdictions, and they, and they only, have the
constitutional power to exercise it. To give to the United States the right to
transfer to a citizen the title to the shores and the soils under the navigable
waters, would be placing in their hands a weapon which might be wielded
greatly to the injury of state sovereignty, and deprive the states of the power
to exercise a numerous and important class of police powers. But in the
49
hands of the states this power can never be used so as to affect the exercise
of any national right of eminent domain or jurisdiction with which the United
States have been invested by the Constitution. For, although the territorial
limits of Alabama have extended all her sovereign power into the sea, it is
there, as on the shore, but municipal power, subject to the Constitution of the
United States, “and the laws which shall be made in pursuance thereof.”
By the preceding course of reasoning we have arrived at these general
conclusions: First. The shores of navigable waters, and the soils under them,
were not granted by the Constitution to the United States, but were reserved
to the states respectively. Secondly. The new states have the same rights,
sovereignty, and jurisdiction over this subject as the original states. Thirdly.
The right of the United States to the public lands, and the power of Congress
to make all needful rules and regulations for the sale and disposition thereof,
conferred no power to grant to the plaintiffs the land in controversy in this
case.
NOTES AND QUESTIONS:
1. Constitutional provisions. In addition to the commerce clause, the
taxing and spending power, the necessary and proper clause, and the
supremacy clause, two less familiar provisions of the United States
Constitution are germane to public land law:
First, the “enclave clause” of article I, section 8 confers on Congress the
power “[t]o exercise exclusive Legislation in all Cases whatsoever,” over the
District of Columbia and “over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for erection of Forts,
Magazines, Arsenals, dock-yards, and other needful Buildings.” This clause
chiefly has to do with background legislative authority. State law generally
applies on public lands unless it is displaced, but that is not true within
“federal enclaves.” Those places, which constitute only a small proportion
of the federal lands are effectively outside the legal jurisdiction of any state.
State law applies in enclaves only if and to the extent that Congress explicitly
adopts it. Enclaves can be created by purchase, in accordance with the terms
of the enclave clause, but they can also be created by state cession of
jurisdiction to the federal government. In either case, consent of the state is
essential. Without consent, the United States cannot generally displace state
jurisdiction.
50
The more important constitutional provision for public lands is the
“property clause” of article IV, section 3, which provides that:
The Congress shall have power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States . . . .
We will examine the property clause in detail shortly.
2. Roots of controversy. The United States was formed, of course, by the
original thirteen states. Thus, at the beginning of the Union, there was no
federal public land except for cessions made by the states to the federal
government. The roots of today’s battles over the public lands were firmly
planted even before adoption of the Constitution in 1787. According to Paul
Gates:
Philadelphia, the center of government in 1787, was host to the
Constitutional Convention which met in Independence Hall while,
simultaneously, the Congress of the Articles of Confederation was
meeting in Carpenters’ Hall writing the Northwest Ordinance to
provide government for the territory north of the Ohio. After many
disputes and petty jealousies had been composed, Virginia,
Massachusetts, and Connecticut had surrendered to the national
government all or parts of western land claims and the Congress had
provided in the Land Ordinance of 1785 a plan for the management
and sale of the land. Though the power to own, manage, grant, and
otherwise dispose of the public lands was to be one of the most
nationalizing factors in the life of the federal republic, that power
received slight attention in the new Constitution of 1787. It is
confined to twenty-six words in Article IV, section 3: “The Congress
shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other property belonging to
the United States . . .” But more detailed powers and restrictions had
previously been agreed to during the period of the Confederation.
Virginia had ceded her western-land claims in order to secure
Maryland’s accession to the Articles of Confederation. But Virginia
had imposed two restrictions. First, the lands were to be “considered
as a common fund for the use and benefit of such of the United States
as have become, or shall become members of the confederation or
federal alliance of the said States, Virginia included, according to
their usual respective proportions in the general charge and
expenditure, and shall be . . . disposed of for the purpose, and for no
other purpose whatsoever . . .” Second, the ceded territory should be
51
divided into states and admitted into the Union with “the same rights
of sovereignty, freedom and independence as the other States.” In
accepting Virginia’s act of cession, Congress resolved that it should
be “recorded and enrolled among the acts of the United States in
Congress assembled.” Thus it was established that the public lands
were the sole property of the United States, that any income derived
therefrom was to be shared by all the states in proportion to their
representation in Congress, and that the new states were to have the
same rights as the original states.
In the Northwest Ordinance of 1787 Congress declared: “The
legislatures of these districts or new States, shall never interfere with
the primary disposal of the soil by the United States . . . nor with any
regulations Congress may find necessary, for securing the title in such
soil, to the bona fide purchasers. No tax shall be imposed on lands .
. . of the United States; and in no case shall non-resident proprietors
be taxed higher than residents.” Despite these limitations upon the
sovereignty of the new states, and the greater one which barred
slavery, Congress stated in that same ordinance that the new states
should be admitted into the Union “on an equal footing with the
original States, in all respects whatever . . . .” These and other
inconsistencies and ambivalent positions respecting the public lands
were to have a major bearing on the question, Whose public lands?
The Congress of the Confederation had found it difficult to
resolve questions relating to the public lands over which it had thus
obtained jurisdiction because each of the thirteen original states had
retained such ungranted or forfeited lands as remained within their
boundaries as they exist today. In addition, Massachusetts had
retained ownership of present-day Maine and still held a large portion
of western New York; Connecticut retained its western reserve in
northeastern Ohio; New York still had many ungranted lands;
Virginia retained, until 1792, public land in present-day Kentucky;
and Georgia had the greatest amount of ungranted land within its
present boundaries and did not cede its western-land claims until
1802. Sovereignty was associated with the ownership of ungranted
lands within a state’s boundaries, yet this right was to be denied to
new states created out of the public lands. The public-land states
were never to forget this limitation upon their sovereignty, and their
representatives were to devote themselves to rectifying the situation
while the original states continued to maneuver to induce Congress
52
to carry out the pledge it had made to Virginia that the benefits
arriving from the public domain should be shared by all the states in
proportion to their federal ratio.
Notwithstanding the restrictions imposed by the Virginia Act of
Cession, Congress had provided in the Land Ordinance of 1785 that
section sixteen in each township, or one thirty-sixth of the land,
should be reserved for schools. It thereby established a precedent for
the continued violation of the principle that the public lands were
being held for the benefit of all the states. When, subsequently,
Congress made one grant after another to the western states,
resentment in the older states intensified. The Virginia Act of
Cession was not the only basis for their claim that the benefits of the
public domain should be shared by all. Equally important was the
fact that the Revolution had been won by all thirteen original states
at much cost to themselves and that the cession of territory made by
Great Britain had been made to the United States.
Thus there developed two major divisions of opinion on publicland questions. The one concerned with the sharing of the land or its
benefits among the states became essentially an East-West conflict
between the thirteen original states, who were supported after a time
by some of the older public-land states. They were opposed by the
newer public-land states who felt that the land should be theirs and as
their resources produced income it should be reinvested within their
boundaries. The second division was similarly sectional, and even
more political, with the more conservative eastern states wishing to
prevent the public-land states of the West from drawing population
away from the East, thereby reducing its congressional representation
and also affecting land values and employment costs in the older area.
How was the public domain to be disposed of? In considering
this question the Congress of the Confederation and later Congresses
had the experience of the mother country and of the thirteen colonies
to draw upon. During this long period of 180 years, great estates of
millions of acres had been granted to the Penn, Calvert, Fairfax, and
Granville families and smaller holdings, ranging in size from a few
thousand to several hundred thousand – even a million – acres had
been bestowed on many more influential persons. These estates were
farmed by tenants who paid their landlords both rents and services.
By the close of the Revolution the largest of these estates had been
forfeited or confiscated, and there had been a considerable division
53
of properties into smaller holdings for sale, although these changes
were far from revolutionary. Some proprietors who had either evaded
taking a stand in the Revolution or who had wisely opted for
rebellion, managed, like the Schuylers, Livingstons, and Van
Rensselaers of New York, to retain their holdings. Despite the
radicalism of the Declaration of Independence and the agrarian
uprisings of the time, the period of the Confederation was marked by
the establishment of additional large private holdings, by
Massachusetts in its New York lands, by Virginia in Kentucky, and
by Tennessee and Georgia, which all distributed their lands in the
most profligate manner. However, estate making was paralleled in
the southern colonies by the headright system, and in New England
the proprietors’ grants were soon divided. Consequently freemen in
good standing with the authorities were able to acquire small tracts of
land, and, generally speaking, the larger holdings were interspersed
with small farms. The very liberality of the various land systems had
proved to be the principal attraction to settlers from the Old World.
By 1790 the population of the United States was already 40 percent
of that of Great Britain.
After the Revolution neither of these colonial precedents was at
first to be followed. The egalitarian ideas of the time, the growing
hostility between the owners of large estates and their tenants, and the
financial needs of the federal republic sufficiently account for the fact
that the United States did not make extensive grants of land to
influential people (it did make large sales to two influential groups),
but neither did it adopt the headright system with its free grants to
free men. The public domain was needed for other purposes.
Alexander Hamilton was anxious that the public lands should
provide revenues for the heavily indebted young nation. By an act of
1790 the income from land sales was pledged solely to payment of
the nation’s debts. Hamilton expected that speculators and land
companies would be the principal buyers and that they would then
retail the land to actual settlers. At the outset, then, Congress created
a wide-open land system with no limitation upon the amount of land
individuals could buy. Not until the mid-nineteenth century were any
limitations to be placed on purchases, and these proved quite
ineffective.
Questions concerning the pricing of land, the speed at which it
should be surveyed and opened for settlement, and the treatment to be
54
meted out to squatters who had helped themselves to the public
domain soon created that second fundamental division of opinion
between East and West previously referred to. Hamilton had hoped
for prompt sale of the public land in large blocks. Later, the
conservative attitude toward the public lands, favored by Henry Clay
and, during his early career, by Daniel Webster, was that the lands
should be surveyed and opened to settlement only when older areas
had been well taken up and improved and the land should be offered
at prices that would not tend to draw farmers away from these older
areas since their leaving might adversely affect land values and also
the wages of labor. Moreover, slow extension of surveys and opening
the land to settlement would facilitate compact growth, keep
management costs down, and ensure the early introduction of roads,
schools, churches, and local government, and mean good order. But
western pressure groups advocated the speedy opening of new land,
the conservative policy was breached, the thinly maintained barriers
were broken. The frontier of settlement advanced from Florida to
Louisiana, and up the Mississippi to Arkansas and Missouri, and from
Ohio to Illinois to Michigan, and new territories and states were
created. Soon population reached Utah territory, the Oregon country,
and California. Before long the Superintendent of the Census was
deploring, with a little less than accuracy, that the frontier was gone.
The Webster-Hayne argument about what section had done more for
the West was futile, for it was the new West, with its vigorous
restless representatives, that had demanded the reduction of all
barriers and the elimination of the Indians from any area attractive to
whites, and they had been successful in wresting from reluctant
representatives of the older states concessions in the price of land and
in the terms of purchase. They obtained a general prospective
Preemption Law for the protection of squatters and a Homestead Law,
subsequently supplemented by additional legislation that made free
homesteads of various sizes available to settlers who complied with
specific requirements.
Paul W. Gates, An Overview of American Land Policy, in Lawrence M.
Friedman & Harry N. Scheiber, eds., American Law and the Constitutional
Order 121, 121-24 (Harvard 1978).
3. The Northwest Ordinance. The Northwest Ordinance was perhaps the
most important and influential law of the antebellum period in United States
history. It applied to the territory northwest of the Ohio River, what is today
55
the states of Ohio, Indiana, Illinois, Michigan, Wisconsin and the part of
Minnesota located east of the Mississippi River. Article I guaranteed
freedom of religion to all persons (this before the adoption of the Bill of
Rights). Article II established protections for property and contract rights,
and provided a variety of rights of criminal procedure. Article III was
intended to protect the civil rights and property of the Indians within the
territory.
Article IV defined the rights and obligations of the inhabitants of the
Northwest Territory, and the states that would be created out of the territory,
as members of the United States. It also established two important principles
of federal public land law: First, that territorial and state legislatures “shall
never interfere with the primary disposal of the soil by the United States . .
. [or] with any regulations Congress may find necessary for securing the title
in such soil to bona fide purchasers.” Second, that the navigable waters of
the territory “shall be common highways, and forever free.” This was an
early articulation of the federal navigational servitude.
Article V laid out the boundaries and requirements for admission of new
states into the Union. It also set forth the principle that new states would be
admitted “on an equal footing with the original states.” The Supreme Court
derived the equal footing doctrine articulated in Pollard’s Lessee v. Hagan
from this principle.
Finally, and most extraordinarily, Article VI prohibited the practice of
slavery in the northwest territories and states. It also contained a fugitive
slave provision, however, that foreshadowed the Dred Scott crisis sixty years
later.
As explained in Pollard’s Lessee v. Hagan, Congress extended the
provisions of the Northwest Ordinance to the lands ceded by the southern
states below the Ohio River, except for the prohibition against involuntary
servitude.
4. Ownership of land under navigable waterways. In Martin v. Waddell’s
Lessee, 41 U.S. 367 (1842), the Supreme Court was asked to determine title
to the lands underlying navigable waters in New Jersey. The Court held that,
before the revolution, title to the beds and banks of navigable waters was held
by the Crown. “When the Revolution took place, the people of each state
became themselves sovereign, and in this character hold the absolute right to
all their navigable waters and soils under them for their own common use,
subject only to the rights surrendered by the Constitution to the general
government.” What was the rationale for this holding?
56
In Pollard, the Court was asked to determine whether the rule of Martin
was applicable to states other than the original thirteen. What is the precise
holding of Pollard? Despite the Court’s dicta that the United States had
authority under the property clause only to hold the lands ceded by Virginia
and Georgia temporarily for the purpose of creating the new states of
Mississippi and Alabama, and that “the United States have no constitutional
capacity to exercise municipal jurisdiction, sovereignty, or eminent domain,
within the limits of a state or elsewhere,” only the narrow holding of Pollard
has survived the intervening years. In Arizona v. California, 373 U.S. 546,
597-98 (1962), for example, the Court stated:
Arizona’s contention that the Federal Government had no power,
after Arizona became a State to reserve waters for the use and benefit
of federally reserved lands rests largely upon statements in Pollard v.
Hagan and Shively v. Bowlby, 152 U.S. 1 (1894). Those cases and
others that followed them gave rise to the doctrine that lands
underlying navigable waters within territory acquired by the
Government are held in trust for future States and that title to such
lands is automatically vested in the States upon admission to the
Union. But those cases involved only the shores of and lands beneath
navigable waters. They do not determine the problem before us and
cannot be accepted as limiting the broad powers of the United States
to regulate navigable waters under the Commerce Clause and to
regulate government lands under Art. IV § 3 of the Constitution.
5. Equal footing. What is the “equal footing doctrine”? In Pollard, the
Court stated that as an inherent aspect of its sovereignty Alabama could
“exercise all the powers of government, which belong to and may be
exercised by the original states of the union.” In subsequent cases, however,
the Court has held that the equal footing doctrine does not require complete
parity between new states and the original thirteen. See, e.g., United States
v. Texas, 339 U.S. 707, 716 (1950) (“The requirement of equal footing was
designed not to wipe out . . . diversities [in the economic aspects of the states]
but to create parity as respects political standing and sovereignty.”) If the
equal footing doctrine does not hold that the states are equal in all respects,
what does it require? One commentator, Eugene Gaetke, has observed that
the doctrine:
requires only that the sovereign powers of new states equal those of
the original states. It does not require that the factual context for the
application of federal power be the same within the states. The states
differ greatly in the extent to which certain federal powers actually are
57
used and usable within their boundaries. Some states, for example,
contain vast navigable waters rendering them more susceptible than
other states to the congressional exercise of the commerce clause
power. Similarly, some states have greater populations of Indians
than others, presenting a greater probability of congressional use of
its power over such persons in the former than in the latter.
Numerous other examples could be listed to illustrate that the states
were not and could never have been intended to be equal in the extent
to which the enumerated powers of the federal government would
apply within their boundaries. The mere existence of these
differences in the factual applicability of federal power among the
states in no way detracts from the degree or quality of the sovereignty
residing in each of the states. To the extent each state has
relinquished to the federal government only those powers enumerated
in the Constitution and has retained the remaining attributes of
sovereignty, each state’s sovereignty by definition is equal. The
Court’s use of the equal footing doctrine in Pollard merely precludes
the relinquishment of any further powers by new states and ensures
that they are “states” possessing all the attributes of sovereignty
enjoyed by the original states. That conclusion, of course, became the
rationale of a whole line of subsequent Supreme Court Cases denying
Congress the power to condition the admission of a new state on its
relinquishment of powers possessed by existing states.
Eugene Gaetke, Refuting the “Classic” Property Clause Theory, 63 N.C.L.
Rev. 617, 643-44.
6. Statehood and public lands. Beginning in 1787 with the Northwest
Ordinance, Congress has admitted new states into the Union subject to the
condition that the states disclaim title to the public lands within their
territorial boundaries. These statutes also reserve to the United States the
sole power to dispose of such lands. Texas and Hawaii are the only states
that were admitted to the Union without the imposition of similar conditions.
Despite these disclaimers of state title to public lands, the Supreme Court
adhered to the holding in Pollard that, upon admission into the Union, each
state obtains fee title to the bed and banks of all navigable inland waters.
This means that federal reservations such as national parks, national forests,
wilderness areas, and Indian reservations contain within them ribbons of
state-owned land. See Montana v. United States, 450 U.S. 544 (1981). What
rights and powers does the United States have over these state-owned inholdings? Can the state manage its submerged lands in a manner that
58
interferes with federal land management directives for the federal
reservation? For example, can a state allow oil exploration in the bed of a
navigable river that flows through a national wilderness area?
7. Defining “navigable” waters. Under Pollard, states hold title to land
under navigable waters. A number of disputes have arisen between the
United States and the states over the question of navigability for purposes of
title. The Supreme Court has consistently held that navigability for title is a
federal question that is governed by the following test:
Those rivers must be regarded as public navigable rivers in law which
are navigable in fact. And they are navigable in fact when they are
used, or are susceptible of being used, in their ordinary condition, as
highways for commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on water.
Utah v. United States, 403 U.S. 9 (1971).
8. The public trust doctrine. The Supreme Court declared in Pollard that
the states hold title to the beds and banks of navigable water in trust for the
people. In Illinois Central Railroad Company v. Illinois, 146 U.S. 387
(1892), the Court articulated how the public trust doctrine affects the states’
title to such lands. In 1869, the Illinois Legislature granted virtually all of the
waterfront of the City of Chicago, as well as the adjacent land underlying
Lake Michigan, to the Illinois Central Railroad. Four years later, the
Legislature repealed the grant and brought suit to have the original grant
declared invalid. The Court upheld the repeal, explaining:
That the state holds the title to the lands under the navigable
waters of Lake Michigan, within its limits, in the same manner that
the state holds title to soils under tide water, by the common law, we
have already shown; and that title necessarily carries with it control
over the waters above them, whenever the lands are subjected to use.
But it is a title different in character from that which the state holds
in lands intended for sale. It is different from the title which the
United States hold in the public lands which are open to pre-emption
and sale. It is a title held in trust for the people of the state, that they
may enjoy the navigation of the waters, carry on commerce over
them, and have liberty of fishing therein, freed from the obstruction
or interference of private parties.
The interest of the people in the navigation of the waters and in
commerce over them may be improved in many instances by the
erection of wharves, docks, and piers therein, for which purpose the
59
state may grant parcels of the submerged lands; and, so long as their
disposition is made for such purpose, no valid objections can be made
to the grants. It is grants of parcels of lands under navigable waters
that may afford foundation for wharves, piers, docks, and other
structures in aid of commerce, and grants of parcels which, being
occupied, do not substantially impair the public interest in the
adjudged cases as a valid exercise of legislative power consistently
with the trust to the public upon which such lands are held by the
state. But that is a very different doctrine from the one which would
sanction the abdication of the general control of the state over lands
under the navigable waters of an entire harbor or bay, or of a sea or
lake. Such abdication is not consistent with the exercise of that trust
which requires the government of the state to preserve such waters for
the use of the public.
The trust devolving upon the state for the public, and which can
only be discharged by the management and control of property in
which the public has an interest, cannot be relinquished by a transfer
of the property. The control of the state for the purposes of the trust
can never be lost, except as to such parcels as are used in promoting
the interests of the public therein, or can be disposed of without any
substantial impairment of the public interest in the lands and waters
remaining. It is only by observing the distinction between a grant of
such parcels for the improvement of the public interest, or which
when occupied do not substantially impair the public interest in the
lands and waters remaining, and a grant of the whole property in
which the public is interested, that the language of the adjudged cases
can be reconciled. General language sometimes found in opinions of
the courts, expressive of absolute ownership and control by the state
of lands under navigable waters, irrespective of any trust as to their
use and disposition, must be read and construed with reference to the
special facts of the particular cases. A grant of all the lands under the
navigable waters of a state has never been adjudged to be within the
legislative power; and any attempted grant of the kind would be held,
if not absolutely void on its face, as subject to revocation. The state
can no more abdicate its trust over property in which the whole
people are interested, like navigable waters and soils under them, so
as to leave them entirely under the use and control of private parties,
except in the instance of parcels mentioned for the improvement of
the navigation and use of the waters, or when parcels can be disposed
60
of without impairment of the public interest in what remains, than it
can abdicate its police powers in the administration of government
and the preservation of the peace. In the administration of
government the use of such powers may for a limited period be
delegated to a municipality or other body, but there always remains
with the state the right to revoke those powers and exercise them in
a more direct manner, and one more conformable to its wishes. So
with trusts connected with public property, or property of a special
character, like lands under navigable waters; they cannot be placed
entirely beyond the direction and control of the state.
Id. at 452-54.
What is the source of the public trust doctrine? Does it apply to federal
lands that underlie or are adjacent to navigable waters? Does it apply to other
federal lands and resources? For ruminations on these and other questions,
see Charles F. Wilkinson, The Headwaters of the Public Trust: Some
Thoughts on the Source and Scope of the Traditional Doctrine, 19 Envtl. L.
Rev. 425 (1989); and Charles F. Wilkinson, The Public Trust in Public Land
Law, 14 U.C. Davis L. Rev. 269 (1980). The classic exegesis of the public
trust doctrine is Joseph L. Sax, The Public Trust Doctrine in Natural
Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).
9. State title and the public trust. In the famous case of Shively v. Bowlby,
152 U.S. 1 (1894), which involved a dispute over title to riparian land near
the mouth of the Columbia River, the Supreme Court expressly linked
Pollard’s concept of state title to lands underlying navigable waters with the
public trust doctrine articulated in Illinois Central. After an extensive review
of its earlier cases, the court stated:
The congress of the United States, in disposing of the public
lands, has constantly acted upon the theory that those lands, whether
in the interior or on the coast, above high-water mark, may be taken
up by actual occupants, in order to encourage the settlement of the
country, but that the navigable waters and the soils under them,
whether within or above the ebb and flow of the tide, purposes of
commerce, navigation, and fishery, and for the improvements
necessary to secure and promote those purposes, shall not be granted
away during the period of territorial government, but, unless in case
of some international duty or public exigency, shall be held by the
United States in trust for the future states, and shall vest in the several
states, when organized and admitted into the Union, with all the
powers and prerogatives appertaining to the older states in regard to
61
such waters and soils within their respective jurisdictions; in short,
shall not be disposed of piecemeal to individuals, as private property,
but shall be held as a whole for the purpose of being ultimately
administered and dealt with for the public benefit by the state, after
it shall have become a completely organized community.
Id. at 49-50. What is the relationship between state title to the lands
underlying navigable waters and the public trust doctrine – i.e., how does
Illinois Central modify Pollard?
10. The navigation servitude. The federal interest in navigability also is
protected by a doctrine called the “federal navigational servitude.” This
doctrine holds that no state or private party may obstruct or impair
navigability without the permission of the United States. See United States
v. Willow River Power Co., 324 U.S. 499 (1945). Today, section 404 of the
Clean Water Act and section 10 of the Rivers and Harbors Act are the
primary mechanisms by which the U.S. authorizes obstructions that might
impair navigation.
11. The Submerged Lands Act. Once offshore oil development became
technologically possible, disputes developed over ownership of coastal
submerged lands. States argued that they held title to submerged lands within
three miles of their coasts, reasoning that the original colonies had succeeded
to the English crown’s claims to those lands, and that later admitted states
held the same rights under the equal footing doctrine. The Supreme Court
disagreed, ruling in 1947 that because of the important national interests at
stake in control of the marginal sea, the states did not hold title to coastal
submerged lands. United States v. California, 332 U.S. 19 (1947). Congress
effectively reversed that decision in party by passing the Submerged Lands
Act of 1953, 43 U.S.C. §§ 1301-1315, which recognized state title to land
beneath tidal waters from the mean high tide line to three miles offshore.
Title to submerged lands more than 3 miles from shore remains in the United
States. The principal of United States v. California, that federal interests in
offshore waters and submerged lands are paramount, remains alive. The
Ninth Circuit recently relied upon that principal to reject a claim by several
native villages in Alaska to exclusive hunting and fishing rights on the outer
continental shelf. Native Village of Eyak v. Trawler Diane Marie, 154 F.3d
1090 (9th Cir. 1998).
All state rights under the Submerged Lands Act remain subject to the
federal navigational servitude. In Phillips Petroleum Co. v. Mississippi, 484
U.S. 469 (1988), the Court held that the states gained title to all coastal land
below the mean high tide mark that is subject to tidal action, regardless of
62
whether the water is navigable in fact. The Court also held that such lands
are subject to the public trust.
63
Assignment 4: Federal Regulatory Power
United States Constitution, Article IV, section 3
The Congress shall have power to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the United
States . . .
Camfield v. United States
Supreme Court of the United States, 1897.
167 U.S. 518.
This was a bill in equity, originally filed by the United States in the circuit
court for the district of Colorado, to compel the removal and abatement of a
fence erected and maintained by the defendants, whereby about 20,000 acres
of public lands were inclosed and appropriated to the exclusive use and
benefit of the defendants.
The bill averred, in substance, that the defendants Daniel A. Camfield and
William Drury, with intent to encroach and intrude upon the lands of the
United States in an illegal manner, and to monopolize the use of the same for
their own special benefit, did on or about the 1st of January, 1893, construct
and maintain a fence which inclosed and included about 20,000 acres of the
public domain, that the effect of such inclosure was to exclude the United
States and all other persons except the defendants therefrom, and that the
lands thus wrongfully inclosed consisted of all of the even numbered sections
in townships numbered 7 and 8 N., of range 63 W., of the sixth principal
meridian. The bill further averred that said townships 7 and 8 lie within the
limits of the grant made by the government to the Union Pacific Railroad
Company; that the defendants had acquired from said railroad company the
right to use all the odd numbered sections of land which lie within said
townships 7 and 8, and outside thereof, immediately adjacent to the even
numbered sections lying within and on the margin of said townships; and
that, in building the fence complained of, the defendants had constructed it
entirely on odd numbered sections, either within or without townships 7 and
8, so as to completely inclose all of the government lands aforesaid, but
without locating the fence on any part of the public domain so included.
64
The subjoined diagram of one township will serve to illustrate the manner
in which the fence was constructed so as to inclose the even numbered
sections. The fence is indicated by the dotted lines.
The defendants admitted by their answer that they had constructed a fence
so as to inclose all of the even numbered sections in townships 7 and 8,
substantially as set out above in the plaintiff’s complaint, save and except that
at each section line a swinging gate had been placed to afford access to so
much of the public domain as was inclosed by the aforesaid fence. By their
answer the defendants sought to justify the erection of the fence in question
upon the ground that they owned all the odd numbered sections in townships
7 and 8, and that they were engaged in building large reservoirs for the
purpose of irrigating the land by them owned, and much other land in that
vicinity. They averred that, in carrying out such irrigation scheme, they found
it necessary to fence their lands in townships 7 and 8 in the manner above
described. They also denied that they had any intention of monopolizing the
even numbered sections inclosed by said fence, or to exclude the public
therefrom, and further averred, in substance, that the work in which they were
engaged was of great importance and utility, and would redound to the great
advantage of the United States and its citizens.
An exception was filed to the answer upon the ground that it was
insufficient to constitute a defense to the bill. This exception was sustained,
and, as the defendants declined to plead further, a decree was entered in favor
of the government, from which decree the defendants appealed to the court
of appeals, which affirmed the judgment of the circuit court. Whereupon
defendants appealed to this court.
O JUSTICE BROWN , after stating the facts in the foregoing language, delivered
the opinion of the court.
This case involves the construction and application of the act of congress
of February 25, 1885, entitled “An act to prevent unlawful occupancy of the
public lands.” 23 Stat. 321. The first section of the act reads as follows:
“That all enclosures of any public lands in any state or territory of the
United States, heretofore or to be hereafter made, erected or
constructed by any person, party, association or corporation, to any of
which land included within the enclosure the person, party,
association, or corporation making or controlling the enclosure had
no claim or color of title made or acquired in good faith, or an
asserted right thereto by or under claim, made in good faith with a
65
view to entry thereof at the proper land office under the general laws
of the United States at the time any such enclosure was or shall be
made, are hereby declared to be unlawful, and the maintenance,
erection, construction or control of any such enclosure is hereby
forbidden and prohibited; and the assertion of a right to the exclusive
use and occupancy of any part of the public lands of the United States
in any state or any of the territories of the United States, without
claim, color of title or asserted right, as above specified as to
enclosure, is likewise declared unlawful and hereby prohibited.”
***
Defendants are certainly within the letter of this statute. They did inclose
public lands of the United States to the amount of 20,000 acres, and there is
nothing tending to show that they had any claim or color of title to the same,
or any asserted right thereto under a claim made in good faith under the
general laws of the United States. The defense is, in substance, that, if the act
be construed so as to apply to fences upon private property, it is
unconstitutional.
There is no doubt of the general proposition that a man may do what he
will with his own, but this right is subordinate to another, which finds
expression in the familiar maxim, sic utere tuo ut alienum non laedas. His
right to erect what he pleases upon his own land will not justify him in
maintaining a nuisance, or in carrying on a business or trade that is offensive
to his neighbors. Ever since Aldred’s Case, 9 Coke, 48, it has been the
settled law, both of this country and of England, that a man has no right to
maintain a structure upon his own land, which, by reason of disgusting
smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of
machinery, or the unwarrantable collection of flies, renders the occupancy of
adjoining property dangerous, intolerable, or even uncomfortable to its
tenants. No person maintaining such a nuisance can shelter himself behind
the sanctity of private property.
It is true that a man may build a fence upon his own land as high as he
pleases, even though it obstructs his neighbor’s lights, and the weight of
authority is that his motives in so doing cannot be inquired into, even though
the fence be built expressly to annoy and spite his neighbor, and that in this
particular the law takes no account of the selfishness or malevolence of
individual proprietors, although there are many strong intimations to the
contrary.
But the injustice of the prevailing doctrine upon this subject, in its
practical operation, became so manifest that in 1887 the legislature of
66
Massachusetts passed a statute declaring that any fence “unnecessarily
exceeding six feet in height, maliciously erected or maintained for the
purpose of annoying the owners or occupants of adjoining property,” should
be deemed a private nuisance, and that any such owner or occupant who was
thereby injured in his comfort, or in the quiet enjoyment of his estate, might
have an action of tort for the damage. The constitutionality of this statute was
attacked in the case of Rideout v. Knox, 148 Mass. 368, 19 N. E. 390, but
upon full consideration the supreme judicial court was of opinion that the
statute was within the limits of the police power, and was constitutional, and,
although the fence was not directly injurious to the public at large, there was
a public interest to restrain this kind of aggressive annoyance of one neighbor
by another, and to mark a definite limit, beyond which it was not lawful to
go. The court also held the statute to be constitutional with reference to
fences already in existence when the act was passed; that although it
involved, to a certain extent, the taking of property without compensation,
yet, “having regard to the smallness of the injury, the nature of the evil to be
avoided, the quasi accidental character of the defendant’s right to put up a
fence for malevolent purposes, and also to the fact that police regulations may
limit the use of property in ways which greatly diminish its value,” the court
was of opinion that the act was constitutional to the full extent of its
provisions. The case is authority for the proposition that the police power is
not subject to any definite limitations, but is co extensive with the necessities
of the case and the safeguard of the public interests. Apparently, the principal
doubt entertained by the court was whether the maintenance of a private fence
could be said to be “injurious to the public at large,” but it seems to have
been of opinion that such a nuisance might give rise to disputes and
bickerings prejudicial to the peace and good order of the community.
While the lands in question are all within the state of Colorado, the
government has, with respect to its own lands, the rights of an ordinary
proprietor, to maintain its possession and to prosecute trespassers. It may
deal with such lands precisely as a private individual may deal with his
farming property. It may sell or withhold them from sale. It may grant them
in aid of railways or other public enterprises. It may open them to preemption or homestead settlement, but it would be recreant to its duties as
trustee for the people of the United States to permit any individual or private
corporation to monopolize them for private gain, and thereby practically drive
intending settlers from the market. It needs no argument to show that the
building of fences upon public lands with intent to inclose them for private
use would be a mere trespass, and that such fences might be abated by the
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officers of the government, or by the ordinary processes of courts of justice.
To this extent, no legislation was necessary to vindicate the rights of the
government as a landed proprietor.
But the evil of permitting persons who owned or controlled the alternate
sections to inclose the entire tract, and thus to exclude or frighten off
intending settlers, finally became so great that congress passed the act of
February 25, 1885, forbidding all inclosures of public lands, and authorizing
the abatement of the fences. If the act be construed as applying only to fences
actually erected upon public lands, it was manifestly unnecessary, since the
government, as an ordinary proprietor, would have the right to prosecute for
such a trespass. It is only by treating it as prohibiting all “inclosures” of
public lands, by whatever means, that the act becomes of any avail. The
device to which defendants resorted was certainly an ingenious one, but it is
too clearly an evasion to permit our regard for the private rights of defendants
as landed proprietors to stand in the way of an enforcement of the statute. So
far as the fences were erected near the outside line of the odd numbered
sections, there can be no objection to them; but, so far as they were erected
immediately outside the even numbered sections, they are manifestly
intended to inclose the government’s lands, though in fact erected a few
inches inside the defendants’ line. Considering the obvious purposes of this
structure, and the necessities of preventing the inclosure of public lands, we
think the fence is clearly a nuisance, and that it is within the constitutional
power of congress to order its abatement, notwithstanding such action may
involve an entry upon the lands of a private individual. The general
government doubtless has a power over its own property analogous to the
police power of the several states, and the extent to which it may go in the
exercise of such power is measured by the exigencies of the particular case.
If it be found to be necessary, for the protection of the public or of intending
settlers, to forbid all inclosures of public lands, the government may do so,
though the alternate sections of private lands are thereby rendered less
available for pasturage. The inconvenience, or even damage, to the individual
proprietor does not authorize an act which is in its nature a purpresture of
government lands. While we do not undertake to say that congress has the
unlimited power to legislate against nuisances within a state which it would
have within a territory, we do not think the admission of a territory as a state
deprives it of the power of legislating for the protection of the public lands,
though it may thereby involve the exercise of what is ordinarily known as the
“police power,” so long as such power is directed solely to its own protection.
68
A different rule would place the public domain of the United States
completely at the mercy of state legislation.
We are not convinced by the argument of counsel for the railway
company, who was permitted to file a brief in this case, that the fact that a
fence built in the manner indicated will operate incidentally or indirectly to
inclose public lands is a necessary result which Congress must have foreseen
when it made the grants of the policy of granting odd sections, and retaining
the even ones as public lands, and that, if such a result inures to the damage
of the United States, it must be ascribed to their improvidence and
carelessness in so surveying and laying off the public lands that the portion
sold and granted by the government cannot be inclosed by the purchasers
without embracing also in such inclosure the alternate sections reserved by
the United States. Carried to its logical conclusion, the inference is that,
because Congress chose to aid in the construction of these railroads by
donating to them all the odd numbered sections within certain limits, it
thereby intended incidentally to grant them the use for an indefinite time of
all the even numbered sections. It seems but an ill return for the generosity
of the government in granting these roads half its lands to claim that it
thereby incidentally granted them the benefit of the whole.
The government has the same right to insist upon its proprietorship of the
even numbered sections that an individual has to claim the odd sections; and
if such proprietor would have the right to complain of the government
fencing in his lands in the manner indicated, and leasing them for pasturage,
the government has the same right to complain of a similar action upon his
part. If there be any general impression that in dealing with public lands the
rights are altogether those of the individual proprietors, and that such rights
as the government has exist only by their sufferance, the act in question will
do much to rectify this misapprehension.
These grants were made in pursuance of the settled policy of the
government to reserve to itself the even numbered sections for sale at an
increased price; and if the defendants in this case chose to assume the risk of
purchasing the odd numbered sections of the railroad company for pasturage
purposes, without also purchasing, or obtaining the consent of the
government to use, the even numbered sections, and thereby failed to derive
a benefit from the odd numbered ones, they must call upon their own
indiscretion to answer for their mistake. The law and the practice of the
government were perfectly well settled, and, if it had chosen in the past to
permit by tacit acquiescence the pasturage of its public lands, it was a policy
which it might change at any moment, and which became the subject of such
69
abuses that congress finally felt itself compelled to pass the act of February
25, 1885. and thereby put an end to them. It was not intended, however, to
prohibit altogether the pasturage of public lands, or to reverse the former
practice of the government in that particular. Indeed, we know of no reason
why the policy, so long tolerated, of permitting the public lands to be
pastured, may not be still pursued, provided herdsmen be employed, or other
means adopted by which the fencing in and the exclusive appropriation of
such land shall be avoided. The defendants were bound to know that the
sections they purchased of the railway company could only be used by them
in subordination to the right of the government to dispose of the alternate
sections as it seemed best, regardless of any inconvenience or loss to them,
and were bound to avoid obstructing or embarrassing it in such disposition.
If practices of this kind were tolerated, it would be but a step further to claim
that the defendants, by long acquiescence of the government in their
appropriation of public lands, had acquired a title to them as against every
one except the government, and perhaps even against the government itself.
It is no answer to say that, if such odd numbered sections were separately
fenced in, which the owner would doubtless have the right to do, the result
would be the same as in this case, to practically exclude the government from
the even numbered sections, since this was a contingency which the
government was bound to contemplate in granting away the odd numbered
sections. So long as the individual proprietor confines his inclosure to his
own land, the government has no right to complain, since he is entitled to the
complete and exclusive enjoyment of it, regardless of any detriment to his
neighbor; but when, under the guise of inclosing his own land, he builds a
fence which is useless for that purpose, and can only have been intended to
inclose the lands of the government, he is plainly within the statute, and is
guilty of an unwarrantable appropriation of that which belongs to the public
at large. It may be added, however, that this is scarcely a practical question,
since a separate inclosure of each section would only become desirable when
the country had been settled, and roads had been built which would give
access to each section.
It is equally immaterial that the defendants have undertaken to build large
reservoirs for water to be supplied for the irrigation of its lands, or that they
have proceeded in accordance with the act of congress in acquiring the
necessary sites to be used in the construction of such reservoirs, or that they
have expended large sums of money in providing for this improvement. If
they have inclosed the public lands in violation of the statute, it is no answer
to say that they have inclosed them for irrigating as well as for pasturage
70
purposes. The violation of the statute is none the less manifest from the fact
that the defendants had an ulterior purpose, or a purpose other than that of
pasturage.
We are of opinion that, in passing the act in question, congress exercised
its constitutional right of protecting the public lands from nuisances erected
upon adjoining property, that the act is valid, and that the judgment of the
circuit court of appeals must be affirmed.
United States v. Grimaud
Supreme Court of the United States, 1911.
220 U.S. 506.
By the act of March 3, 1891 (26 Stat. at L. 1103, chap. 561, U. S. Comp.
Stat. 1901, p.1537), the President was authorized, from time to time, to set
apart and reserve, in any state or territory, public lands, wholly or in part
covered with timber or undergrowth, whether of commercial value or not, as
public forest reservations. And by the act of June 4, 1897 (30 Stat. at L. 35,
chap. 2, U. S. Comp. Stat. 1901, p. 1539), the purposes of these reservations
were declared to be “to improve and protect the forest within the reservation,
or for the purpose of securing favorable conditions of water flows, and to
furnish a continuous supply of timber for the use and necessities of citizens
of the United States. . . .” (30 Stat. at L. 36, chap. 2, U. S. Comp. Stat. 1901,
p. 1542.)
It is also provided that nothing in the act should “be construed as
prohibiting the egress or ingress of actual settlers residing within the
boundaries of such reservations, . . . nor shall anything herein prohibit any
person from entering upon such forest reservations for all proper and lawful
purposes, . . . provided that such persons comply with the rules and
regulations covering such forest reservations.”
*****
The original act provided that the management and regulation of these
reserves should be by the Secretary of the Interior; but in 1905 that power
was conferred upon the Secretary of Agriculture, and by virtue of those
various statutes he was authorized to “make provisions for the protection
against destruction by fire and depredations upon the public forests and forest
reservations . . .; and he may make such rules and regulations and establish
such service as will insure the objects of such reservations; namely, to
71
regulate their occupancy and use, and to preserve the forests thereon from
destruction; and any violation of the provisions of this act or such rules and
regulations shall be punished,” as prescribed in Rev. Stat. 5388, U. S. Comp.
Stat. 1901, p. 3649, which, as amended, provides for a fine of not more than
$500 and imprisonment for not more than twelve months, or both, at the
discretion of the court.
Under these acts, the Secretary of Agriculture, on June 12, 1906,
promulgated and established certain rules for the purpose of regulating the
use and occupancy of the public forest reservations and preserving the forests
thereon from destruction, and among those established was the following:
Regulation 45. All persons must secure permits before grazing any
stock in a forest reserve, except the few head in actual use by
prospectors, campers, and travelers, and milch or work animals, not
exceeding a total of six head, owned by bona fide settlers residing in
or near a forest reserve, which are excepted and require no permit.
The defendants were charged with driving and grazing sheep on a reserve,
without a permit. . . .
O JUSTICE LAMAR, after making the foregoing statement, delivered the
opinion of the Court.
The defendants were indicted for grazing sheep on the Sierra Forest
Reserve without having obtained the permission required by the regulations
adopted by the Secretary of Agriculture. They demurred on the ground that
the forest reserve act of 1897 [30 Stat. at L. 35, chap. 2, U. S. Comp. Stat.
1901, p. 1540] was unconstitutional, in so far as it delegated to the Secretary
of Agriculture power to make rules and regulations, and made a violation
thereof a penal offense. Their several demurrers were sustained. . . .
The Federal courts have been divided on the question as to whether
violations of those regulations of the Secretary of Agriculture constitute a
crime. . . .
From the various acts relating to the establishment and management of
forest reservations, it appears that they were intended “to improve and protect
the forest and to secure favorable conditions of water flows.” It was declared
that the act should not be “construed to prohibit the egress and ingress of
actual settlers” residing therein, nor to “prohibit any person from entering
upon such forest reservations for all proper and lawful purposes, including
that of prosecuting, locating, and developing mineral resources thereof:
provided that such persons comply with the rules and regulations covering
72
such forest reservations.” (Act of 1897, 30 Stat. at L. 36, chap. 2, U. S.
Comp. Stat. 1901, p. 1540.) It was also declared that the Secretary “may
make such rules and regulations and establish such service as will insure the
objects of such reservations; namely, to regulate their occupancy and use, and
to preserve the forests thereon from destruction; and any violation of the
provisions of this act or such rules and regulations shall be punished” [30
Stat. at L. 35, chap. 2, U. S. Comp. Stat. 1901, p. 1540], as is provided in §
5388 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3649), as amended.
Under these acts, therefore, any use of the reservation for grazing or other
lawful purpose was required to be subject to the rules and regulations
established by the Secretary of Agriculture. To pasture sheep and cattle on
the reservation, at will and without restraint, might interfere seriously with
the accomplishment of the purposes for which they were established. But a
limited and regulated use for pasturage might not be inconsistent with the
object sought to be attained by the statute. The determination of such
questions, however, was a matter of administrative detail. What might be
harmless in one forest might be harmful to another. What might be injurious
at one stage of timber growth, or at one season of the year, might not be so
at another.
In the nature of things it was impracticable for Congress to provide
general regulations for these various and varying details of management.
Each reservation had its peculiar and special features; and in authorizing the
Secretary of Agriculture to meet these local conditions, Congress was merely
conferring administrative functions upon an agent, and not delegating to him
legislative power. The authority actually given was much less than what has
been granted to municipalities by virtue of which they make by-laws,
ordinances, and regulations for the government of towns and cities. Such
ordinances do not declare general rules with reference to rights of persons and
property, nor do they create or regulate obligations and liabilities, nor declare
what shall be crimes, nor fix penalties therefor.
By whatever name they are called, they refer to matters of local
management and local police. They are “not of a legislative character in the
highest sense of the term; and as an owner may delegate to his principal agent
the right to employ subordinates, giving to them a limited discretion, so it
would seem that Congress might rightfully intrust to the local legislature
[authorities] the determination of minor matters.” Butte City Water Co. v.
Baker, 196 U. S. 126.
It must be admitted that it is difficult to define the line which separates
legislative power to make laws, from administrative authority to make
73
regulations. This difficulty has often been recognized, and was referred to by
Chief Justice Marshall in Wayman v. Southard, 10 Wheat. 42, 6 L. ed. 262,
where he was considering the authority of courts to make rules. He there
said: “It will not be contended that Congress can delegate to the courts, or to
any other tribunals, powers which are strictly and exclusively legislative. But
Congress may certainly delegate to others powers which the legislature may
rightfully exercise itself.” What were these nonlegislative powers which
Congress could exercise, but which might also be delegated to others, was not
determined, for he said: “The line has not been exactly drawn which
separates those important subjects which must be entirely regulated by the
legislature itself, from those of less interest, in which a general provision may
be made, and power given to those who are to act under such general
provisions to fill up the details.”
From the beginning of the government, various acts have been passed
conferring upon executive officers power to make rules and regulations, – not
for the government of their departments, but for administering the laws which
did govern. None of these statutes could confer legislative power. But when
Congress had legislated and indicated its will, it could give to those who were
to act under such general provisions “power to fill up the details” by the
establishment of administrative rules and regulations, the violation of which
could be punished by fine or imprisonment fixed by Congress, or by penalties
fixed by Congress, or measured by the injury done.
*****
It is true that there is no act of Congress which, in express terms, declares
that it shall be unlawful to graze sheep on a forest reserve. But the statutes
from which we have quoted declare that the privilege of using reserves for
“all proper and lawful purposes” is subject to the proviso that the person so
using them shall comply “with the rules and regulations covering said forest
reservation.” The same act makes it an offense to violate those regulations;
that is, to use them otherwise than in accordance with the rules established
by the Secretary. Thus the implied license under which the United States had
suffered its public domain to be used as a pasture for sheep and cattle,
mentioned in Buford v. Houtz, 133 U. S. 326, was curtailed and qualified by
Congress, to the extent that such privilege should not be exercised in
contravention of the rules and regulations.
If, after the passage of the act and the promulgation of the rule, the
defendants drove and grazed their sheep upon the reserve, in violation of the
regulations, they were making an unlawful use of the government’s property.
74
In doing so they thereby made themselves liable to the penalty imposed by
Congress.
It was argued that, even if the Secretary could establish regulations under
which a permit was required, there was nothing in the act to indicate that
Congress had intended or authorized him to charge for the privilege of
grazing sheep on the reserve. These fees were fixed to prevent excessive
grazing, and thereby protect the young growth and native grasses from
destruction, and to make a slight income with which to meet the expenses of
management. In addition to the general power in the act of 1897, already
quoted, the act of February 1st, 1905 [33 Stat. at L. 628, chap. 288, § 5, U. S.
Comp. Stat. Supp. 1909, p. 577], clearly indicates that the Secretary was
authorized to make charges out of which a revenue from forest resources was
expected to arise. For it declares that “all money received from the sale of
any products or the use of any land or resources of said forest reserves” shall
be covered into the Treasury, and be applied toward the payment of forest
expenses. This act was passed before the promulgation of regulation 45, set
out in the indictment.
*****
The Secretary of Agriculture could not make rules and regulations for any
and every purpose. As to those here involved, they all relate to matters
clearly indicated and authorized by Congress. The subjects as to which the
Secretary can regulate are defined. The lands are set apart as a forest reserve.
He is required to make provision to protect them from depredations and from
harmful uses. He is authorized “to regulate the occupancy and use and to
preserve the forests from destruction.” A violation of reasonable rules
regulating the use and occupancy of the property is made a crime, not by the
Secretary, but by Congress. The statute, not the Secretary, fixes the penalty.
The indictment charges, and the demurrer, admits that rule 45 was
promulgated for the purpose of regulating the occupancy and use of the
public forest reservation and preserving the forest. The Secretary did not
exercise the legislative power of declaring the penalty or fixing the
punishment for grazing sheep without a permit, but the punishment is
imposed by the act itself. The offense is not against the Secretary, but, as the
indictment properly concludes, “contrary to the laws of the United States and
the peace and dignity thereof.” The demurrers should have been overruled.
The affirmances by a divided court heretofore entered are set aside and the
judgments in both cases reversed.
75
Light v. United States
Supreme Court of the United States, 1911.
220 U.S. 523.
The Holy Cross Forest Reserve was established under the provisions of
the Act of March 3, 1891. By that and subsequent statutes the Secretary of
Agriculture was authorized to make provisions for the protection against
destruction by fire and depredations of the public forest and forest
reservations, and to “make such rules and regulations and establish such
service as will insure the objects of such reservations; namely, to regulate
their occupancy and use, and to preserve the forests thereon from
destruction.” 26 Stat. 1103, chap. 561 (1901). In pursuance of these statutes,
regulations were adopted establishing grazing districts on which only a
limited number of cattle were allowed. The regulations provided that a few
head of cattle of prospectors, campers, and not more than ten belonging to a
settler residing near the forest, might be admitted without permit; but, saving
these exceptions, the general rule was that “all persons must secure permits
before grazing any stock in a national forest.”
On April 7, 1908, the United States, through the district attorney, filed a
bill in the circuit court for the district of Colorado, reciting the matters above
outlined, and alleging that the defendant, Fred Light, owned a herd of about
500 cattle and a ranch of 540 acres, located 2 1/2 miles to the east, and 5
miles to the north, of the reservation. This herd was turned out to range
during the spring and summer, and the ranch then used as a place on which
to raise hay for their sustenance. That between the ranch and the reservation
was other public and unoccupied land of the United States; but, owing to the
fact that only a limited number of cattle were allowed on the reservation, the
grazing there was better than on this public land. For this reason, and
because of the superior water facilities and the tendency of the cattle to
follow the trails and stream leading from the ranch to the reservation, they
naturally went direct to the reservation. The bill charged that the defendant,
when turning them loose, knew and expected that they would go upon the
reservation, and took no action to prevent them from trespassing. That by
thus knowingly and wrongfully permitting them to enter on the reservation
he intentionally caused his cattle to make a trespass, in breach of the United
States property and administrative rights, and has openly and privately stated
his purpose to disregard the regulations, and without permit to allow, and, in
the manner stated, to cause, his cattle to enter, feed, and graze thereon.
***
76
O JUSTICE LAMAR, after making the foregoing statement, delivered the
opinion of the Court.
The defendant was enjoined from pasturing his cattle on the Holy Cross
Forest Reserve, because he had refused to comply with the regulations
adopted by the Secretary of Agriculture, under the authority conferred by the
act of June 4, 1897 (30 Stat. 35, chap. 2), to make rules and regulations as to
the use, occupancy, and preservation of forests. . . .
The bill alleged, and there was evidence to support the finding, that the
defendant, with the expectation and intention that they would do so, turned
his cattle out at a time and place which made it certain that they would leave
the open public lands and go at once to the reserve, where there was good
water and fine pasturage. When notified to remove the cattle, he declined to
do so, and threatened to resist if they should be driven off by a forest officer.
He justified this position on the ground that the statute of Colorado provided
that a landowner could not recover damages for trespass by animals unless
the property was inclosed with a fence of designated size and material.
Regardless of any conflict in the testimony, the defendant claims that unless
the government put a fence around the reserve, it had no remedy, either at law
or in equity, nor could he be required to prevent his cattle straying upon the
reserve from the open public land on which he had a right to turn them loose.
At common law the owner was required to confine his live stock, or else
was held liable for any damage done by them upon the land of third persons.
That law was not adapted to the situation of those states where there were
great plains and vast tracts of uninclosed land, suitable for pasture. And so,
without passing a statute, or taking any affirmative action on the subject, the
United States suffered its public domain to be used for such purposes. There
thus grew up a sort of implied license that these lands, thus left open, might
be used so long as the government did not cancel its tacit consent. Buford v.
Houtz, 133 U.S. 326. Its failure to object, however, did not confer any vested
right on the complainant, nor did it deprive the United States of the power of
recalling any implied license under which the land had been used for private
purposes.
It is contended, however, that Congress cannot constitutionally withdraw
large bodies of land from settlement without the consent of the state where
it is located; and it is then argued that the act of 1891 [26 Stat. 1103, chap.
561], providing for the establishment of reservations, was void, so that what
is nominally a reserve is, in law, to be treated as open and uninclosed land,
as to which there still exists the implied license that it may be used for
grazing purposes. But “the nation is an owner, and has made Congress the
77
principal agent to dispose of its property. . . . Congress is the body to which
is given the power to determine the conditions upon which the public lands
shall be disposed of.” Butte City Water Co. v. Baker, 196 U. S. “The
government has, with respect to its own lands, the rights of an ordinary
proprietor to maintain its possession and to prosecute trespassers. It may deal
with such lands precisely as a private individual may deal with his farming
property. It may sell or withhold them from sale.” Camfield v. United States,
167 U. S. 524. And if it may withhold from sale and settlement, it may also,
as an owner, object to its property being used for grazing purposes, for “the
government is charged with the duty and clothed with the power to protect
the public domain from trespass and unlawful appropriation.” United States
v. Beebe, 127 U. S. 342.
The United States can prohibit absolutely or fix the terms on which its
property may be used. As it can withhold or reserve the land, it can do so
indefinitely. It is true that the “United States do not and cannot hold property
as a monarch may, for private or personal purposes.” Van Brocklin v.
Anderson, 117 U.S. 158. But that does not lead to the conclusion that it is
without the rights incident to ownership, for the Constitution declares, § 3,
art. 4, that “Congress shall have power to dispose of and make all needful
rules and regulations respecting the territory or the property belonging to the
United States.” “The full scope of this paragraph has never been definitely
settled. Primarily, at least, it is a grant of power to the United States of
control over its property.” Kansas v. Colorado, 206 U.S. 89.
“All the public lands of the nation are held in trust for the people of the
whole country.” United States v. Trinidad Coal & Coking Co., 137 U.S. 160.
And it is not for the courts to say how that trust shall be administered. That
is for Congress to determine. The courts cannot compel it to set aside the
lands for settlement, or to suffer them to be used for agricultural or grazing
purposes, nor interfere when, in the exercise of its discretion, Congress
establishes a forest reserve for what it decides to be national and public
purposes. In the same way and in the exercise of the same trust it may
disestablish a reserve, and devote the property to some other national and
public purpose. These are rights incident to proprietorship, to say nothing of
the power of the United States as a sovereign over the property belonging to
it. Even a private owner would be entitled to protection against wilful
trespasses, and statutes providing that damage done by animals cannot be
recovered, unless the land had been inclosed with a fence of the size and
material required, do not give permission to the owner of cattle to use his
neighbor’s land as a pasture. They are intended to condone trespasses by
78
straying cattle; they have no application to cases where they are driven upon
unfenced land in order that they may feed there.
Fence laws do not authorize wanton and wilful trespass, nor do they
afford immunity to those who, in disregard of property rights, turn loose their
cattle under circumstances showing that they were intended to graze upon the
lands of another.
This the defendant did, under circumstances equivalent to driving his
cattle upon the forest reserve. He could have obtained a permit for
reasonable pasturage. He not only declined to apply for such license, but
there is evidence that he threatened to resist efforts to have his cattle removed
from the reserve, and in his answer he declares that he will continue to turn
out his cattle, and contends that if they go upon the reserve the government
has no remedy at law or in equity. This claim answers itself.
It appears that the defendant turned out his cattle under circumstances
which showed that he expected and intended that they would go upon the
reserve to graze thereon. Under the facts, the court properly granted an
injunction. The judgment was right on the merits, wholly regardless of the
question as to whether the government had inclosed its property.
*****
NOTES AND QUESTIONS
1. Executive branch power and discretion. At the time of the Grimaud
decision, the scope of Congressional authority to delegate power to
administrative agencies was unclear. Lower courts had split on the validity
of the regulations in question. The Supreme Court itself deadlocked the first
time it heard the case, but on rehearing unanimously upheld the regulations.
What was the Court’s rationale? Could Congress, as a practical matter, fill
in these details? Did Congress implicitly authorize the agency to impose a
permit requirement for use of the federal lands?
Today, the Court interprets the non-delegation doctrine to require that
Congress articulate “intelligible principles” to guide agency decisionmaking.
In Whitman v. American Trucking Associations, 531 U.S. 457 (2001), the
Supreme Court upheld the Clean Air Act’s direction to EPA to set air quality
standards “requisite to protect the public health” with an adequate margin of
safety. Justice Scalia explained for the Court:
The scope of discretion § 109(b)(1) allows is in fact well within
the outer limits of our nondelegation precedents. In the history of the
79
Court we have found the requisite “intelligible principle” lacking in
only two statutes, one of which provided literally no guidance for the
exercise of discretion, and the other of which conferred authority to
regulate the entire economy on the basis of no more precise a
standard than stimulating the economy by assuring “fair competition.”
See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495(1935). We
have, on the other hand, upheld the validity of § 11(b)(2) of the
Public Utility Holding Company Act of 1935, 49 Stat. 821, which
gave the Securities and Exchange Commission authority to modify
the structure of holding company systems so as to ensure that they are
not “unduly or unnecessarily complicate[d]” and do not “unfairly or
inequitably distribute voting power among security holders.”
American Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946). We
have approved the wartime conferral of agency power to fix the prices
of commodities at a level that “‘will be generally fair and equitable
and will effectuate the [in some respects conflicting] purposes of th[e]
Act.” Yakus v. United States, 321 U.S. 414, 420, 423-426 (1944).
And we have found an “intelligible principle” in various statutes
authorizing regulation in the “public interest.” In short, we have
“almost never felt qualified to second-guess Congress regarding the
permissible degree of policy judgment that can be left to those
executing or applying the law.” Mistretta v. United States, 488 U.S.
361, 416 (1989) (SCALIA, J., dissenting); see id., at 373 (majority
opinion).
It is true enough that the degree of agency discretion that is
acceptable varies according to the scope of the power congressionally
conferred. While Congress need not provide any direction to the EPA
regarding the manner in which it is to define “country elevators,”
which are to be exempt from new-stationary-source regulations
governing grain elevators, see 42 U.S.C. § 7411(i), it must provide
substantial guidance on setting air standards that affect the entire
national economy. But even in sweeping regulatory schemes we have
never demanded, as the Court of Appeals did here, that statutes
provide a “determinate criterion” for saying “how much [of the
regulated harm] is too much.”
Would the statute in Grimaud survive review under this standard?
Congress often delegates authority to federal land management agencies
with only vague indications of management goals, principles, or how the
80
agencies should resolve conflicts. Such delegations are no longer challenged
on constitutional grounds. Nonetheless, they can put agencies in difficult
political positions and lead to “policy whiplash” when presidential
administrations change. When we talk about specific land management
regimes we will ask whether there is a need for stronger restraints on agency
discretion.
2. The federal property power. Light was decided the same day as
Grimaud. What is the difference between Light’s dispute with the United
States and Grimaud’s?
Light is the earliest important judicial interpretations of the property
clause. How does the Court define the authority of the United States over the
federal public lands? Does the property clause grant the United States greater
power over the federal public lands than it would have under the commerce
clause, the taxing and spending power, the necessary and proper clause, and
the supremacy clause if the property clause did not exist? Does the United
States as proprietor have greater power over the federal public lands than it
has as sovereign?
To what extent does the outcome in Light rest on the Court’s conclusion
that the defendant intended that his cattle graze on the public lands? Would
the state’s estray law prevent the United States from obtaining damages or an
injunction against a neighboring landowner who simply did not build a fence,
and whose cattle roamed freely on (and consumed forage from) both his own
land and that of the United States? Does the United States as a proprietor
have more rights than other landowners? If so, what is the basis for those
enhanced rights?
3. Federal power beyond federal lands. Camfield focuses on the authority
of the United States to regulate activities on private land that threaten to
interfere with the management and protection of the federal public lands. As
we shall see next time, this issue continues to arise frequently. It has two
distinct aspects: first, how far do the constitutional powers of the United
States extend beyond the boundaries of the federal lands; and second do
specific statutes authorize or require land management agencies to regulate
nonfederal lands resources in order to accomplish the goals of federal land
management.
In Camfield, what is the constitutional basis for the application of the
Unlawful Inclosures Act to private land? Is it the property clause
(embellished by the Court’s nuisance theory)? Is it the commerce clause?
Or, is it the supremacy clause on the theory that the fencing of the private
81
tracts has frustrated the purposes for which Congress has directed the public
tracts to be managed?
Is the Court’s statement that Camfield’s fence was “within the letter of”
the statue correct? In other words, did Congress intend to apply the Unlawful
Inclosures Act to private land? Is the Court’s discussion of nuisance
principles an adequate justification of the extraterritorial application of the
Unlawful Inclosures Act? Note that section 4 of the Act, 43 U.S.C. § 1064,
provides criminal penalties for violations of the statute.
The Court states that “[s]o long as the individual proprietor confines his
inclosure to his own land, the government has no right to complain, since he
is entitled to the complete and exclusive enjoyment of it, regardless of any
detriment to his neighbor; but when, under the guise of inclosing his own
land, he builds a fence which is useless for that purpose, and can only have
been intended to inclose the lands of the government, he is plainly within the
statute, and is guilty of an unwarrantable appropriation of that which belongs
to the public at large.” Does this introduce a scienter requirement into the
analysis? If so, is it appropriate to apply a mens rea test in determining
whether an enclosure of private land violates the UIA?
How persuasive is the Court’s response to the argument raised by the
Union Pacific Railroad Company as amicus curiae? Congress certainly
should have foreseen that the granting of alternating sections of public land
in a checkerboard pattern inevitably would enclose the retained public land.
Why should not the United States be bound by its failure to protect its
interests at the time of conveyance?
82
Assignment 5/6: The Modern Property Power
Kleppe v. New Mexico
Supreme Court of the United States, 1976.
426 U.S. 529.
O JUSTICE MARSHALL delivered the opinion of the Court.
At issue in this case is whether Congress exceeded its powers under the
Constitution in enacting the Wild Free-Roaming Horses and Burros Act.
I
The Wild Free-Roaming Horses and Burros Act, 85 Stat. 649, 16 U.S.C.
§§ 1331 1340, was enacted in 1971 to protect “all unbranded and unclaimed
horses and burros on public lands of the United States,” § 2(b) of the Act, 16
U.S.C. § 1332(b), from “capture, branding, harassment, or death.” § 1, 16
U.S.C. § 1331. The Act provides that all such horses and burros on the
public lands administered by the Secretary of the Interior through the Bureau
of Land Management (BLM) or by the Secretary of Agriculture through the
Forest Service are committed to the jurisdiction of the respective Secretaries,
who are “directed to protect and manage [the animals] as components of the
public lands . . . in a manner that is designed to achieve and maintain a
thriving natural ecological balance on the public lands.” § 3(a), 16 U.S.C. §
1333(a). If protected horses or burros “stray from public lands onto privately
owned land, the owners of such land may inform the nearest Federal marshal
or agent of the Secretary, who shall arrange to have the animals removed.”1
§ 4, 16 U.S.C. § 1334.
Section 6, 16 U.S.C. § 1336, authorizes the Secretaries to promulgate
regulations and to enter into cooperative agreements with other landowners
and with state and local governmental agencies in furtherance of the Act’s
purposes. On August 7, 1973, the Secretaries executed such an agreement
with the New Mexico Livestock Board, the agency charged with enforcing
1
The landowner may elect to allow straying wild free roaming horses and
burros to remain on his property, in which case he must so notify the relevant
Secretary. He may not destroy any such animals, however. § 4 of the Act,
16 U.S.C. § 1334.
83
the New Mexico Estray Law, N.M. Stat. Ann. § 47-14-1 et seq. (1966).2 The
agreement acknowledged the authority of the Secretaries to manage and
protect the wild free-roaming horses and burros on the public lands of the
United States within the State and established a procedure for evaluating the
claims of private parties to ownership of such animals.
The Livestock Board terminated the agreement three months later.
Asserting that the Federal Government lacked power to control wild horses
and burros on the public lands of the United States unless the animals were
moving in interstate commerce or damaging the public lands and that neither
of these bases of regulation was available here, the Board notified the
Secretaries of its intent “to exercise all regulatory, impoundment and sale
powers which it derives from the New Mexico Estray Law, over all estray
horses, mules or asses found running at large upon public or private lands
within New Mexico . . . . This includes the right to go upon Federal or State
lands to take possession of said horses or burros, should the Livestock Board
so desire.”
The differences between the Livestock Board and the Secretaries came to
a head in February 1974. On February 1, 1974, a New Mexico rancher,
Kelley Stephenson, was informed by the BLM that several unbranded burros
had been seen near Taylor Well, where Stephenson watered his cattle. Taylor
Well is on federal property, and Stephenson had access to it and some 8,000
surrounding acres only through a grazing permit issued pursuant to § 3 of the
Taylor Grazing Act, 48 Stat. 1270, as amended, 43 U.S.C. § 315b. After the
BLM made it clear to Stephenson that it would not remove the burros and
after he personally inspected the Taylor Well area, Stephenson complained
to the Livestock Board that the burros were interfering with his livestock
operation by molesting his cattle and eating their feed.
2
Under the New Mexico law, an estray is defined as:
“Any bovine animal, horse, mule or ass, found running at large upon
public or private lands, either fenced or unfenced, in the state of New
Mexico, whose owner is unknown in the section where found, or
which shall be fifty (50) miles or more from the limits of its usual
range or pasture, or that is branded with a brand which is not on
record in the office of the cattle sanitary board of New Mexico . . . .”
N.M. Stat. Ann. § 47-14-1 (1966). It is not disputed that the animals
regulated by the Wild Free roaming Horses and Burros Act are estrays within
the meaning of this law.
84
Thereupon the Board rounded up and removed 19 unbranded and
unclaimed burros pursuant to the New Mexico Estray Law. Each burro was
seized on the public lands of the United States3 and, as the director of the
Board conceded, each burro fit the definition of a wild free roaming burro
under § 2(b) of the Act. On February 18, 1974, the Livestock Board,
pursuant to its usual practice, sold the burros at a public auction. After the
sale, the BLM asserted jurisdiction under the Act and demanded that the
Board recover the animals and return them to the public lands.
On March 4, 1974, appellees4 filed a complaint in the United States
District Court for the District of New Mexico seeking a declaratory judgment
that the Wild Free-Roaming Horses and Burros Act is unconstitutional and
an injunction against its enforcement. A three judge court was convened
pursuant to 28 U.S.C. § 2282.
Following an evidentiary hearing, the District Court held the Act
unconstitutional and permanently enjoined the Secretary of the Interior
(Secretary) from enforcing its provisions. The court found that the Act
“conflicts with . . . the traditional doctrines concerning wild animals,” New
Mexico v. Morton, 406 F. Supp. 1237, 1238 (1975), and is in excess of
Congress’ power under the Property Clause of the Constitution, Art. IV, § 3,
cl. 2. That Clause, the court found, enables Congress to regulate wild
animals found on the public land only for the “protection of the public lands
from damage of some kind.” 406 F. Supp. at 1239. Accordingly, this power
was exceeded in this case because “[t]he statute is aimed at protecting the
3
The record is somewhat unclear on this point, but appellees conceded at oral
argument that all the burros were seized on the public lands of the United
States.
4
Appellees are the State of New Mexico, the New Mexico Livestock Board,
the Board’s director, and a purchaser of three of the burros seized at Taylor
Well.
85
wild horses and burros, not at protecting the land they live on.” Ibid.6 We
noted probable jurisdiction, and we now reverse.
II
The Property Clause of the Constitution provides that “Congress shall
have Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States.”
U.S. Const., Art. IV, § 3, cl. 2. In passing the Wild Free-Roaming Horses
and Burros Act, Congress deemed the regulated animals “an integral part of
the natural system of the public lands” of the United States, § 1, 16 U.S.C. §
1331, and found that their management was necessary “for achievement of
an ecological balance on the public lands.” H.R. Conf. Rep. No.92-681, p.
5 (1971), U.S. Code Cong. & Admin. News 1971, p. 2159. According to
Congress, these animals, if preserved in their native habitats, “contribute to
the diversity of life forms within the Nation and enrich the lives of the
American people.” § 1, 16 U.S.C. § 1331. See Hearing on Protection of
Wild Horses and Burros on Public Lands before the Subcommittee on Public
Lands of the Senate Committee on Interior and Insular Affairs, 92d Cong., 1st
Sess., 69, 122, 128, 138, 169, 183 (1971). Indeed, Congress concluded, the
wild free roaming horses and burros “are living symbols of the historic and
pioneer spirit of the West.” § 1, 16 U.S.C. § 1331. Despite their importance,
the Senate committee found: “[These animals] have been cruelly captured
and slain and their carcasses used in the production of pet food and fertilizer.
They have been used for target practice and harassed for ‘sport’ and profit.
In spite of public outrage, this bloody traffic continues unabated, and it is the
firm belief of the committee that this senseless slaughter must be brought to
an end.” S. Rep. No.92-242, pp. 1-2 (1971), U.S. Code Cong. & Admin.
News 1971, p. 2149.
For these reasons, Congress determined to preserve and protect the wild
free roaming horses and burros on the public lands of the United States. The
6
The court also held that the Act could not be sustained under the Commerce
Clause because “all the evidence establishes that the wild burros in question
here do not migrate across state lines” and “Congress made no findings to
indicate that it was in any way relying on the Commerce Clause in enacting
this statute.” 406 F. Supp., at 1239. While the Secretary argues in this Court
that the Act is sustainable under the Commerce Clause, we have no occasion
to address this contention since we find the Act, as applied, to be a
permissible exercise of congressional power under the Property Clause.
86
question under the Property Clause is whether this determination can be
sustained as a “needful” regulation “respecting” the public lands. In
answering this question, we must remain mindful that, while courts must
eventually pass upon them, determinations under the Property Clause are
entrusted primarily to the judgment of Congress. United States v. San
Francisco, 310 U.S. 16, 29 30 (1940); Light v. United States, 220 U.S. 523,
537 (1911); United States v. Gratiot, 14 Pet. 526, 537 538 (1840).
Appellees argue that the Act cannot be supported by the Property Clause.
They contend that the Clause grants Congress essentially two kinds of power:
(1) the power to dispose of and make incidental rules regarding the use of
federal property; and (2) the power to protect federal property. According to
appellees, the first power is not broad enough to support legislation protecting
wild animals that live on federal property; and the second power is not
implicated since the Act is designed to protect the animals, which are not
themselves federal property, and not the public lands. As an initial matter,
it is far from clear that the Act was not passed in part to protect the public
lands of the United States7 or that Congress cannot assert a property interest
in the regulated horses and burros superior to that of the State.8 But we need
not consider whether the Act can be upheld on either of these grounds, for we
reject appellees’ narrow reading of the Property Clause.
Appellees ground their argument on a number of cases that, upon
analysis, provide no support for their position. Like the District Court,
appellees cite Hunt v. United States, 278 U.S. 96 (1928), for the proposition
that the Property Clause gives Congress only the limited power to regulate
wild animals in order to protect the public lands from damage. But Hunt,
which upheld the Government’s right to kill deer that were damaging foliage
in the national forests, only holds that damage to the land is a sufficient basis
for regulation; it contains no suggestion that it is a necessary one.
Next, appellees refer to Kansas v. Colorado, 206 U.S. 46, 89 (1907). The
referenced passage in that case states that the Property Clause “clearly . . .
does not grant to Congress any legislative control over the states, and must,
7
Congress expressly ordered that the animals were to be managed and
protected in order “to achieve and maintain a thriving natural ecological
balance on the public lands.” § 3(a), 16 U.S.C. § 1333(a). Cf. Hunt v. United
States, 278 U.S. 96 (1928).
8
The Secretary makes no claim here, however, that the United States owns
the wild free roaming horses and burros found on public land.
87
so far as they are concerned, be limited to authority over the property
belonging to the United States within their limits.” But this does no more
than articulate the obvious: The Property Clause is a grant of power only
over federal property. It gives no indication of the kind of “authority” the
Clause gives Congress over its property.
Camfield v. United States, 167 U.S. 518 (1897), is of even less help to
appellees. Appellees rely upon the following language from Camfield:
“While we do not undertake to say that congress has the unlimited power to
legislate against nuisances within a state which it would have within a
territory, we do not think the admission of a territory as a state deprives it of
the power of legislating for the protection of the public lands, though it may
thereby involve the exercise of what is ordinarily known as the ‘police
power,’ so long as such power is directed solely to its own protection.” Id.
at 525, 526. Appellees mistakenly read this language to limit Congress’
power to regulate activity on the public lands; in fact, the quoted passage
refers to the scope of congressional power to regulate conduct on private land
that affects the public lands. And Camfield holds that the Property Clause is
broad enough to permit federal regulation of fences built on private land
adjoining public land when the regulation is for the protection of the federal
property. Camfield contains no suggestion of any limitation on Congress’
power over conduct on its own property; its sole message is that the power
granted by the Property Clause is broad enough to reach beyond territorial
limits.
Lastly, appellees point to dicta in two cases to the effect that, unless the
State has agreed to the exercise of federal jurisdiction, Congress’ rights in its
land are “only the rights of an ordinary proprietor . . . .” Fort Leavenworth
R. Co. v. Lowe, 114 U.S. 525, 527 (1885). See also Paul v. United States,
371 U.S. 245, 264 (1963). In neither case was the power of Congress under
the Property Clause at issue or considered and, as we shall see, these dicta fail
to account for the raft of cases in which the Clause has been given a broader
construction.9
9
Indeed, Hunt v. United States, supra, and Camfield v. United States, 167
U.S. 518 (1897), both relied upon by appellees, are inconsistent with the
notion that the United States has only the rights of an ordinary proprietor with
respect to its land. An ordinary proprietor may not, contrary to state law, kill
game that is damaging his land, as the Government did in Hunt; nor may he
prohibit the fencing in of his property without the assistance of state law, as
the Government was able to do in Camfield.
88
In brief, beyond the Fort Leavenworth and Paul dicta, appellees have
presented no support for their position that the Clause grants Congress only
the power to dispose of, to make incidental rules regarding the use of, and to
protect federal property. This failure is hardly surprising, for the Clause, in
broad terms, gives Congress the power to determine what are “needful” rules
“respecting” the public lands. United States v. San Francisco, 310 U.S., at
29, 30; Light v. United States, 220 U.S., at 537; United States v. Gratiot, 14
Pet., at 537, 538. And while the furthest reaches of the power granted by the
Property Clause have not yet been definitively resolved, we have repeatedly
observed that “[t]he power over the public land thus entrusted to Congress is
without limitations.” United States v. San Francisco, supra, 310 U.S. at 29.
The decided cases have supported this expansive reading. It is the
Property Clause, for instance, that provides the basis for governing the
Territories of the United States. And even over public land within the States,
“[t]he general government doubtless has a power over its own property
analogous to the police power of the several states, and the extent to which
it may go in the exercise of such power is measured by the exigencies of the
particular case.” Camfield v. United States, supra, 167 U.S., at 525. We
have noted, for example, that the Property Clause gives Congress the power
over the public lands “to control their occupancy and use, to protect them
from trespass and injury, and to prescribe the conditions upon which others
may obtain rights in them . . . .” Utah Power & Light Co. v. United States,
243 U.S. 389, 405 (1917). And we have approved legislation respecting the
public lands “[i]f it be found to be necessary, for the protection of the public
or of intending settlers [on the public lands].” Camfield v. United States,
supra, 167 U.S. at 525. In short, Congress exercises the powers both of a
proprietor and of a legislature over the public domain. Although the Property
Clause does not authorize “an exercise of a general control over public policy
in a State,” it does permit “an exercise of the complete power which Congress
has over particular public property entrusted to it.” United States v. San
Francisco, supra, 310 U.S. at 30. In our view, the “complete power” that
Congress has over public lands necessarily includes the power to regulate and
protect the wildlife living there.10
10
Appellees ask us to declare that the Act is unconstitutional because the
animals are not, as Congress found, “fast disappearing from the American
scene.” § 1, 16 U.S.C. § 1331. At the outset, no reason suggests itself why
Congress’ power under the Property Clause to enact legislation to protect
wild free roaming horses and burros “from capture, branding, harassment, or
89
III
Appellees argue that if we approve the Wild Free roaming Horses and
Burros Act as a valid exercise of Congress’ power under the Property Clause,
then we have sanctioned an impermissible intrusion on the sovereignty,
legislative authority, and police power of the State and have wrongly
infringed upon the State’s traditional trustee powers over wild animals. The
argument appears to be that Congress could obtain exclusive legislative
jurisdiction over the public lands in the State only by state consent, and that
in the absence of such consent Congress lacks the power to act contrary to
state law. This argument is without merit.
Appellees’ claim confuses Congress’ derivative legislative powers, which
are not involved in this case, with its powers under the Property Clause.
Congress may acquire derivative legislative power from a State pursuant to
Art. I, § 8, cl. 17, of the Constitution by consensual acquisition of land, or by
nonconsensual acquisition followed by the State’s subsequent cession of
legislative authority over the land. Paul v. United States, 371 U.S. at 264;
Fort Leavenworth R. Co. v. Lowe, 114 U.S. at 541-42.11 In either case, the
death,” ibid., must depend on a finding that the animals are decreasing in
number. But responding directly to appellees’ contention, we note that the
evidence before Congress on this question was conflicting and that Congress
weighed the evidence and made a judgment. See Hearing on Protection of
Wild Horses and Burros on Public Lands before the Subcommittee on Public
Lands of the House Committee on Interior and Insular Affairs, 92d Cong., 1st
Sess., 1-2, 7, 11 14, 17, 26 32, 80, 87-88, 101, 103, 134 136, 139 141 (1971).
What appellees ask is that we reweigh the evidence and substitute our
judgment for that of Congress. This we must decline to do.
11
Article I, § 8, cl. 17, of the Constitution provides that Congress shall have
the power:
“To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of
Particular States, and the Acceptance of Congress, become the Seat
of the Government of the United States, and to exercise like Authority
over all Places purchased by the Consent of the Legislature of the
State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock Yards, and other needful Buildings . . . .”
The Clause has been broadly construed, and the acquisition by consent or
cession of exclusive or partial jurisdiction over properties for any legitimate
90
legislative jurisdiction acquired may range from exclusive federal jurisdiction
with no residual state police power, to concurrent, or partial, federal
legislative jurisdiction, which may allow the State to exercise certain
authority.
But while Congress can acquire exclusive or partial jurisdiction over
lands within a State by the State’s consent or cession, the presence or absence
of such jurisdiction has nothing to do with Congress’ powers under the
Property Clause. Absent consent or cession a State undoubtedly retains
jurisdiction over federal lands within its territory, but Congress equally surely
retains the power to enact legislation respecting those lands pursuant the
Property Clause. And when Congress so acts, the federal legislation
necessarily overrides conflicting state laws under the Supremacy Clause.
U.S. Const., Art. VI, cl. 2. As we said in Camfield v. United States, 167 U.S.
at 526, in response to a somewhat different claim: “A different rule would
place the public domain of the United States completely at the mercy of state
legislation.”
Thus, appellees’ assertion that “[a]bsent state consent by complete
cession of jurisdiction of lands to the United States, exclusive jurisdiction
does not accrue to the federal landowner with regard to federal lands within
the borders of the state,” is completely beside the point; and appellees’ fear
that the Secretary’s position is that “the Property Clause totally exempts
federal lands within state borders from state legislative powers, state police
powers, and all rights and powers of local sovereignty and jurisdiction of the
states,” is totally unfounded. The Federal Government does not assert
exclusive jurisdiction over the public lands in New Mexico, and the State is
free to enforce its criminal and civil laws on those lands. But where those
state laws conflict with the Wild Free roaming Horses and Burros Act, or
with other legislation passed pursuant to the Property Clause, the law is clear:
The state laws must recede.
*****
IV
In this case, the New Mexico Livestock Board entered upon the public
lands of the United States and removed wild burros. These actions were
contrary to the provisions of the Wild Free-Roaming Horses and Burros Act.
We find that, as applied to this case, the Act is a constitutional exercise of
governmental purpose beyond those itemized is permissible. Collins v.
Yosemite Park Co., 304 U.S. 518, 528-30 (1938).
91
congressional power under the Property Clause. We need not, and do not,
decide whether the Property Clause would sustain the Act in all of its
conceivable applications.
Appellees are concerned that the Act’s extension of protection to wild
free roaming horses and burros that stray from public land onto private land,
§ 4, 16 U.S.C. § 1334, will be read to provide federal jurisdiction over every
wild horse or burro that at any time sets foot upon federal land. While it is
clear that regulations under the Property Clause may have some effect on
private lands not otherwise under federal control, Camfield v. United States,
167 U.S. 518 (1897), we do not think it appropriate in this declaratory
judgment proceeding to determine the extent, if any, to which the Property
Clause empowers Congress to protect animals on private lands or the extent
to which such regulation is attempted by the Act. . . .
For the reasons stated, the judgment of the District Court is reversed, and
the case is remanded for further proceedings consistent with this opinion.
Leo Sheep Co. v. United States
Supreme Court of the United States, 1979.
440 U.S. 668.
O JUSTICE REHNQUIST delivered the opinion of the Court.
This is one of those rare cases evoking episodes in this country’s history
that, if not forgotten, are remembered as dry facts and not as adventure.
Admittedly the issue is mundane: Whether the Government has an implied
easement to build a road across land that was originally granted to the Union
Pacific Railroad under the Union Pacific Act of 1862 – a grant that was part
of a governmental scheme to subsidize the construction of the
transcontinental railroad. But that issue is posed against the backdrop of a
fascinating chapter in our history. As this Court noted in another case
involving the Union Pacific Railroad, “courts, in construing a statute, may
with propriety recur to the history of the times when it was passed; and this
is frequently necessary, in order to ascertain the reason as well as the meaning
of particular provisions in it.” United States v. Union Pacific R. Co., 91 U.S.
72, 79 (1875). In this spirit we relate the events underlying passage of the
Union Pacific Act of 1862.
I
92
The early 19th century – from the Louisiana Purchase in 1803 to the
Gadsden Purchase in 1853 – saw the acquisition of the territory we now
regard as the untapped resource, for the settlers on the eastern seaboard of the
United States did not keep pace with the rapidly expanding western frontier.
A vaguely delineated area forbiddingly referred to as the “Great American
Desert” can be found on more than one map published before 1850,
embracing much of the United States’ territory west of the Missouri River.
As late as 1860, for example, the entire population of the State of Nebraska
was less than 30,000 persons, which represented one person for every five
square miles of land area within the State.
With the discovery of gold at Sutter’s Mill in California in 1848, the
California gold rush began and with it a sharp increase in settlement of the
West. Those in the East with visions of instant wealth, however, confronted
the unenviable choice among an arduous 4-month overland trek, risking
yellow fever on a 35-day voyage via the Isthmus of Panama, and a better than
4-month voyage around Cape Horn. They obviously yearned for another
alternative, and interest focused on the transcontinental railroad.
The idea of a transcontinental railroad predated the California gold rush.
From the time that Asa Whitney had proposed a relatively practical plan for
its construction in 1844, it had, in the words of one of this century’s leading
historians of the era, “engaged the eager attention of promoters and
politicians until dozens of schemes were in the air.” The building of the
railroad was not to be the unalloyed product of the free-enterprise system.
There was indeed the inspiration of men like Thomas Durant and Leland
Stanford and the perspiration of a generation of immigrants, but animating it
all was the desire of the Federal Government that the West be settled. This
desire was intensified by the need to provide a logistical link with California
in the heat of the Civil War. That the venture was much too risky and much
too expensive for private capital alone was evident in the years of fruitless
exhortation; private investors would not move without tangible governmental
inducement.
In the mid-19th century there was serious disagreement as to the forms
that inducement could take. Mr. Justice Story, in his Commentaries on the
Constitution, described one extant school of thought which argued that
“internal improvements,” such as railroads, were not within the enumerated
constitutional powers of Congress. Under such a theory, the direct subsidy
of a transcontinental railroad was constitutionally suspect – an uneasiness
aggravated by President Andrew Jackson’s 1830 veto of a bill appropriating
93
funds to construct a road from Maysville to Lexington within the State of
Kentucky.
The response to this constitutional “gray” area, and source of political
controversy, was the “checkerboard” land-grant scheme. The Union Pacific
Act of 1862 granted public land to the Union Pacific Railroad for each mile
of track that it laid. Land surrounding the railway right-of-way was divided
into “checkerboard” blocks. Odd-numbered lots were granted to the Union
Pacific; even-numbered lots were reserved by the Government. As a result,
Union Pacific land in the area of the right-of-way was usually surrounded by
public land, and vice versa. The historical explanation for this peculiar
disposition is that it was apparently an attempt to disarm the “internal
improvement” opponents by establishing a grant scheme with “demonstrable”
benefits. As one historian notes in describing an 1827 federal land grant
intended to facilitate private construction of a road between Columbus and
Sandusky, Ohio:
“Though awkwardly stated, and not fully developed in the Act of
1827, this was the beginning of a practice to be followed in most
future instances of granting land for the construction of specific
internal improvements: donating alternate sections or one half of the
land within a strip along the line of the project and reserving the other
half for sale. . . . In later donations the price of the reserved sections
was doubled so that it could be argued, as the Congressional Globe
shows ad infinitum, that by giving half the land away and thereby
making possible construction of the road, canal, or railroad, the
government would recover from the reserved sections as much as it
would have received from the whole.” P. Gates, History of Public
Land Law Development 345-346 (1968).
In 1850 this technique was first explicitly employed for the subsidization
of a railroad when the Illinois delegation in Congress, which included
Stephen A. Douglas, secured the enactment of a bill that granted public lands
to aid the construction of the Illinois Central Railroad. The Illinois Central
and proposed connecting lines to the south were granted nearly three million
acres along rights of way through Illinois, Mississippi, and Alabama, and by
the end of 1854 the main line of the Illinois Central from Chicago to Cairo,
Ill., had been put into operation. Before this line was constructed, public
lands had gone begging at the Government’s minimum price; within a few
years after its completion, the railroad had disposed of more than one million
acres and was rapidly selling more at prices far above those at which land had
been originally offered by the Government.
94
The “internal improvements” theory was not the only obstacle to a
transcontinental railroad. In 1853 Congress had appropriated moneys and
authorized Secretary of War Jefferson Davis to undertake surveys of various
proposed routes for a transcontinental railroad. Congress was badly split
along sectional lines on the appropriate location of the route – so badly split
that Stephen A. Douglas, now a Senator from Illinois, in 1854 suggested the
construction of a northern, central, and southern route, each with connecting
branches in the East. That proposal, however, did not break the impasse.
The necessary impetus was provided by the Civil War. Senators and
Representatives from those States which seceded from the Union were no
longer present in Congress, and therefore the sectional overtones of the
dispute as to routes largely disappeared. Although there were no major
engagements during the Civil War in the area between the Missouri River and
the west coast which would be covered by any transcontinental railroad, there
were two minor engagements which doubtless made some impression upon
Congress of the necessity for being able to transport readily men and
materials into that area for military purposes.
*****
As is often the case, war spurs technological development, and Congress
enacted the Union Pacific Act in May 1862. Perhaps not coincidentally, the
Homestead Act was passed the same month.
The Union Pacific Act specified a route west from the 100th meridian,
between a site in the Platte River Valley near the cities of Kearney and North
Platte, Neb., to California. The original plan was for five eastern terminals
located at various points on or near the Missouri River; but in fact Omaha
was the only terminal built according to the plan.12
12
The choice of the 100th meridian as the eastern end of the rail line was not
without significance. The 100th meridian has been traditionally thought of
as the parallel west of which it was impossible to raise most crops without
irrigation. Omaha, for example, 300 miles to the east, receives an average of
25 inches of rainfall per year, while Sidney, Neb., west of the meridian and
near the Wyoming line, receives an average of only 16 inches of rainfall each
year. Thus, in a sense the 100th meridian represented, not only to travelers
but also to potential settlers, the eastern boundary of the amorphous “Great
American Desert.”
“In general, historians have been content to postulate that American
institutions, orientations, and habits of thought which developed east
95
The land grants made by the Union Pacific Act included all the oddnumbered lots within 10 miles on either side of the track. When the Union
Pacific’s original subscription drive for private investment proved a failure,
the land grant was doubled by extending the checkerboard grants to 20 miles
on either side of the track. Private investment was still sluggish, and
construction did not begin until July 1865, three months after the cessation
of Civil War hostilities.13 Thus began a race with the Central Pacific
Railroad, which was laying track eastward from Sacramento, for the
Government land grants which went with each mile of track laid. The race
of the 100th meridian maintained their form and retained their content
after reaching the West, whereas in fact a good many important ones
did not. In the second place, historians have generally been ignorant
of or incurious about natural conditions that determine life in the
West, differentiate it from other sections, and have given it different
orientations.”
Introduction of Bernard DeVoto to W. Stegner, Beyond the Hundredth
Meridian xviii-xix (1954).
13
Construction would not have begun then without the Credit Mobilier, a
limited-liability company that was essentially owned by the promoters and
investors of the Union Pacific. One of these investors, Oakes Ames, a
wealthy New England shovel maker, was a substantial investor in Credit
Mobilier and also a Member of Congress. Credit Mobilier contracted with
the Union Pacific to build portions of the road, and by 1866 several
individuals were large investors in both corporations. Allegations of
improper use of funds and bribery of Members of the House of
Representatives led to the appointment of a special congressional
investigatory committee that during 1872 and 1873 looked into the affairs of
Credit Mobilier. These investigations revealed improprieties on the part of
more than one Member of Congress, and the committee recommended that
Ames be expelled from Congress. The investigation also touched on the
career of a future President. See M. Leech & H. Brown, The Garfield Orbit
(1978).
In 1872 the House of Representatives enacted a resolution condemning
the policy of granting subsidies of public lands to railroads. Of course, the
reaction of the public or of Congress a decade after the enactment of the
Union Pacific Act to the conduct of those associated with the Union Pacific
cannot influence our interpretation of that Act today.
96
culminated in the driving of the golden spike at Promontory, Utah, on May
10, 1869.
II
This case is the modern legacy of these early grants. Petitioners, the Leo
Sheep Co. and the Palm Livestock Co., are the Union Pacific Railroad’s
successors in fee to specific odd-numbered sections of land in Carbon
County, Wyo. These sections lie to the east and south of the Seminoe
Reservoir, an area that is used by the public for fishing and hunting. Because
of the checkerboard configuration, it is physically impossible to enter the
Seminoe Reservoir sector from this direction without some minimum
physical intrusion upon private land. In the years immediately preceding this
litigation, the Government had received complaints that private owners were
denying access over their lands to the reservoir area or requiring the payment
of access fees. After negotiation with these owners failed, the Government
cleared a dirt road extending from a local county road to the reservoir across
both public domain lands and fee lands of the Leo Sheep Co. It also erected
signs inviting the public to use the road as a route to the reservoir.
Petitioners initiated this action pursuant to 28 U.S.C. § 2409a to quiet title
against the United States. The District Court granted petitioners’ motion for
summary judgment, but was reversed on appeal by the Court of Appeals for
the Tenth Circuit. The latter court concluded that when Congress granted
land to the Union Pacific Railroad, it implicitly reserved an easement to pass
over the odd-numbered sections in order to reach the even-numbered sections
that were held by the Government. Because this holding affects property
rights in 150 million acres of land in the Western United States, we granted
certiorari, and now reverse.
The Government does not claim that there is any express reservation of
an easement in the Union Pacific Act that would authorize the construction
of a public road on the Leo Sheep Co.’s property. Section 3 of the 1862 Act
sets out a few specific reservations to the “checkerboard” grant. The grant
was not to include land “sold, reserved, or otherwise disposed of by the
United States,” such as land to which there were homestead claims. Mineral
lands were also excepted from the operation of the Act. Given the existence
of such explicit exceptions, this Court has in the past refused to add to this
list by divining some “implicit” congressional intent. In Missouri, K. & T.
R. Co. v. Kansas Pacific R. Co., 97 U.S. 491, 497 (1878), for example, this
Court in an opinion by Mr. Justice Field noted that the intent of Congress in
making the Union Pacific grants was clear: “It was to aid in the construction
of the road by a gift of lands along its route, without reservation of rights,
97
except such as were specifically mentioned . . . .” The Court held that,
although a railroad right-of-way under the grant may not have been located
until years after 1862, by the clear terms of the Act only claims established
prior to 1862 overrode the railroad grant; conflicting claims arising after that
time could not be given effect. To overcome the lack of support in the Act
itself, the Government here argues that the implicit reservation of the asserted
easement is established by “settled rules of property law” and by the
Unlawful Inclosures of Public Lands Act of 1885.
Where a private landowner conveys to another individual a portion of his
lands in a certain area and retains the rest, it is presumed at common law that
the grantor has reserved an easement to pass over the granted property if such
passage is necessary to reach the retained property. These rights-of-way are
referred to as “easements by necessity.” There are two problems with the
Government’s reliance on that notion in this case. First of all, whatever right
of passage a private landowner might have, it is not at all clear that it would
include the right to construct a road for public access to a recreational area.15
More importantly, the easement is not actually a matter of necessity in this
case because the Government has the power of eminent domain.
Jurisdictions have generally seen eminent domain and easements by necessity
as alternative ways to effect the same result. For example, the State of
Wyoming no longer recognizes the common-law easement by necessity in
cases involving landlocked estates. It provides instead for a procedure
whereby the landlocked owner can have an access route condemned on his
behalf upon payment of the necessary compensation to the owner of the
servient estate. For similar reasons other state courts have held that the
“easement by necessity” doctrine is not available to the sovereign.
The applicability of the doctrine of easement by necessity in this case is,
therefore, somewhat strained, and ultimately of little significance. The
pertinent inquiry in this case is the intent of Congress when it granted land to
the Union Pacific in 1862. The 1862 Act specifically listed reservations to
the grant, and we do not find the tenuous relevance of the common-law
15
It is very unlikely that Congress in 1862 contemplated this type of
intrusion, and it could not reasonably be maintained that failure to provide
access to the public at large would render the Seminoe Reservoir land
useless. Yet these are precisely the considerations that define the scope of
easements by necessity.
98
doctrine of ways of necessity sufficient to overcome the inference prompted
by the omission of any reference to the reserved right asserted by the
Government in this case. It is possible that Congress gave the problem of
access little thought; but it is at least as likely that the thought which was
given focused on negotiation, reciprocity considerations, and the power of
eminent domain as obvious devices for ameliorating disputes.18 So both as
matter of common-law doctrine and as a matter of construing congressional
intent, we are unwilling to imply rights-of-way, with the substantial impact
that such implication would have on property rights granted over 100 years
18
The intimations that can be found in the Congressional Globe are that there
was no commonly understood reservation by the Government of the right to
enter upon granted lands and construct a public road. Representative
Cradlebaugh of Nevada offered an amendment to what became the Union
Pacific Act of 1862 that would have reserved the right to the public to enter
granted land and prospect for valuable minerals upon the payment of
adequate compensation to the owner. The proposed amendment was
defeated. The only Representative other than Cradlebaugh who spoke to it,
Representative Sargent of California, stated:
“The amendment of the gentleman proposes to allow the public to
enter upon the lands of any man, whether they be mineral lands or
not, and prospect for gold and silver, and as compensation proposes
some loose method of payment for the injuries inflicted. Now, sir, it
may turn out that the man who thus commits the injuries may be
utterly insolvent, not able to pay a dollar, and how is the owner of the
property to be compensated for tearing down his dwellings, rooting
up his orchards, and destroying his crops?” Cong. Globe, 37th Cong.,
2d Sess., 1910 (1862).
In debates on an earlier Pacific Railroad bill it was explicitly suggested that
there be “a reservation in every grant of land that [the Government] shall
have a right to go through it, and take it at proper prices to be paid hereafter.”
The author of this proposal, Senator Simmons of Rhode Island, lamented the
lack of such a reservation in the bill under consideration. Cong. Globe, 35th
Cong., 2d Sess., 579 (1859). Apparently the intended purpose of this
proposed reservation was to permit railroads to obtain rights-of-way through
granted property at the Government’s behest. Senator Simmons’ comments
are somewhat confused, but they certainly do not evince any prevailing
assumption that the Government implicitly reserved a right-of-way through
granted lands.
99
ago, in the absence of a stronger case for their implication than the
Government makes here.
The Government would have us decide this case on the basis of the
familiar canon of construction that, when grants to federal lands are at issue,
any doubts “are resolved for the Government not against it.” Andrus v.
Charlestone Stone Products Co., 436 U.S. 604, 617 (1978). But this Court
long ago declined to apply this canon in its full vigor to grants under the
railroad Acts. In 1885 this Court observed:
“The solution of [ownership] questions [involving the railroad grants]
depends, of course, upon the construction given to the acts making
the grants; and they are to receive such a construction as will carry
out the intent of Congress, however difficult it might be to give full
effect to the language used if the grants were by instruments of
private conveyance. To ascertain that intent we must look to the
condition of the country when the acts were passed, as well as to the
purpose declared on their face, and read all parts of them together.”
Winona & St. Peter R. Co. v. Barney, 113 U.S. 618, 625 (1885).
The Court harmonized the longstanding rule enunciated most recently in
Andrus, supra, with the doctrine of Winona in United States v. Denver & Rio
Grande R. Co., 150 U.S. 1, 14 (1893) when it said:
“It is undoubtedly, as urged by the plaintiffs in error, the well-settled
rule of this court that public grants are construed strictly against the
grantees, but they are not to be so construed as to defeat the intent of
the legislature, or to withhold what is given either expressly or by
necessary or fair implication. . . .
“. . . When an act, operating as a general law, and manifesting clearly
the intention of Congress to secure public advantages, or to subserve
the public interests and welfare by means of benefits more or less
valuable, offers to individuals or to corporations as an inducement to
undertake and accomplish great and expensive enterprises or works
of a quasi public character in or through an immense and
undeveloped public domain, such legislation stands upon a somewhat
different footing from merely a private grant, and should receive at
the hands of the court a more liberal construction in favor of the
purposes for which it was enacted.”
Thus, invocation of the canon reiterated in Andrus does little to advance the
Government’s position in this case.
100
Nor do we find the Unlawful Inclosures of Public Lands Act of 1885 of
any significance in this controversy. That Act was a response to the “range
wars,” the legendary struggle between cattlemen and farmers during the last
half of the 19th century. Cattlemen had entered Kansas, Nebraska, and the
Dakota Territory before other settlers, and they grazed their herds freely on
public lands with the Federal Government’s acquiescence. To maintain their
dominion over the ranges, cattlemen used homestead and pre-emption laws
to gain control of water sources in the range lands. With monopoly control
of such sources, the cattlemen found that ownership over a relatively small
area might yield effective control of thousands of acres of grassland. Another
exclusionary technique was the illegal fencing of public lands which was
often the product of the checkerboard pattern of railroad grants. By placing
fences near the borders of their parts of the checkerboard, cattlemen could
fence in thousands of acres of public lands. Reports of the Secretary of the
Interior indicated that vast areas of public grazing land had been pre-empted
by such fencing patterns. In response Congress passed the Unlawful
Inclosures Act of 1885.
*****
The Government argues that the prohibitions of this Act should somehow
be read to include the Leo Sheep Co.’s refusal to acquiesce in a public road
over its property, and that such a conclusion is supported by this Court’s
opinion in Camfield v. United States, 167 U.S. 518 (1897). We find,
however, that Camfield does not afford the support that the Government
seeks. That case involved a fence that was constructed on odd-numbered lots
so as to enclose 20,000 acres of public land, thereby appropriating it to the
exclusive use of Camfield and his associates. This Court analyzed the fence
from the perspective of nuisance law, and concluded that the Unlawful
Inclosures Act was an appropriate exercise of the police power.
There is nothing, however, in the Camfield opinion to suggest that the
Government has the authority asserted here. In fact, the Court affirmed the
grantee’s right to fence completely his own land.
“So long as the individual proprietor confines his enclosure to his
own land, the Government has no right to complain, since he is
entitled to the complete and exclusive enjoyment of it, regardless of
any detriment to his neighbor; but when, under the guise of enclosing
his own land, he builds a fence which is useless for that purpose, and
can only have been intended to enclose the lands of the Government,
he is plainly within the statute, and is guilty of an unwarrantable
appropriation of that which belongs to the public at large.”
101
Id., at 528.
Obviously, if odd-numbered lots are individually fenced, the access to
even-numbered lots is obstructed. Yet the Camfield Court found that this
was not a violation of the Unlawful Inclosures Act. In that light we cannot
see how the Leo Sheep Co.’s unwillingness to entertain a public road without
compensation can be a violation of that Act. It is certainly true that the
problem we confront today was not a matter of great concern during the time
the 1862 railroad grants were made. The order of the day was the open range
– barbed wire had not made its presence felt – and the type of incursions on
private property necessary to reach public land was not such an interference
that litigation would serve any motive other than spite. Congress obviously
believed that when development came, it would occur in a parallel fashion on
adjoining public and private lands and that the process of subdivision,
organization of a polity, and the ordinary pressures of commercial and social
intercourse would work itself into a pattern of access roads.23 The Camfield
case expresses similar sentiments. After the passage quoted above conceding
the authority of a private landowner to fence the entire perimeter of his oddnumbered lot, the Court opined that such authority was of little practical
significance “since a separate enclosure of each section would only become
desirable when the country had been settled, and roads had been built which
would give access to each section.” Ibid. It is some testament to common
23
This expectation was fostered by the general land-grant scheme. Each block
in the checkerboard was a square mile – 640 acres. The public lots were open
to homesteading, with 160 acres the maximum allowable claim under the
Homestead Act. Act of May 20, 1862, 12 Stat. 392. The Union Pacific was
required by the 1862 Act to sell or otherwise dispose of the land granted to
it within three years after completion of the entire road, with lands not so
disposed of within that period subject to homesteading and pre-emption.
Thus, in 1862, the process of subdivision was perceived, to a great degree, as
inevitable.
During the 1850 debates concerning the Illinois Central Railroad, Senator
Cass of Michigan outlined the dynamics that were presumed to underlie the
system of checkerboard grants: “In all the new portions of the United States
this Government owns a large proportion of the property. They sell it. They
offer it for sale. It is surveyed, thrown into market, and emigration is invited.
Tract after tract is sold, roads are made, villages and towns are built up, and
all the improvements that can be of value to a country go on and increase the
value of the lands . . . .” Cong. Globe, 31st Cong., 1st Sess. 846 (1850).
102
sense that the present case is virtually unprecedented, and that in the 117
years since the grants were made, litigation over access questions generally
has been rare.
Nonetheless, the present times are litigious ones and the 37th Congress
did not anticipate our plight. Generations of land patents have issued without
any express reservation of the right now claimed by the Government. Nor
has a similar right been asserted before.24 When the Secretary of the Interior
has discussed access rights, his discussion has been colored by the
assumption that those rights had to be purchased.25 This Court has
traditionally recognized the special need for certainty and predictability where
land titles are concerned, and we are unwilling to upset settled expectations
to accommodate some ill-defined power to construct public thoroughfares
24
This distinguishes the instant case from Buford v. Houtz, supra. The
appellants there were a group of cattle ranchers seeking, inter alia, an
injunction against sheep ranchers who moved their herds across oddnumbered lots held by the appellants in order to graze their sheep on evennumbered public lots. This Court denied the requested relief because it was
contrary to a century-old grazing custom. The Court also was influenced by
the sheep ranchers’ lack of any alternative.
“Upon the whole, we see no equity in the relief sought by the
appellants in this case, which undertakes to deprive the defendants of
this recognized right to permit their cattle to run at large over the
lands of the United States and feed upon the grasses found in them,
while, under pretence of owning a small proportion of the land which
is the subject of controversy, they themselves obtain the monopoly of
this valuable privilege.”
133 U.S., at 332.
Here neither custom nor necessity supports the Government.
25
In 1887 the Secretary of the Interior recommended that Congress enact
legislation providing for a public road around each section of public land to
provide access to the various public lots in the checkerboard scheme. The
Secretary also recommended that to the extent building these roads required
the taking of property that had passed to private individuals, “the bill should
provide for necessary compensation.” 1 Report of the Secretary of the
Interior for Fiscal Year Ending June 30, 1887, p. 15 (1887); see also 1 Report
of the Secretary of the Interior for Fiscal Year Ending June 30, 1888, p. xvii
(1888).
103
without compensation. The judgment of the Court of Appeals for the Tenth
Circuit is accordingly
Reversed.
Mr. Justice WHITE took no part in the consideration or decision of this case.
United States ex rel. Bergen v. Lawrence
Tenth Circuit, 1988.
848 F.2d 1502.
O STEPHEN H. ANDERSON , Circuit Judge.
Taylor Lawrence appeals from a final order of the United States District
Court for the District of Wyoming, ordering him to remove from his lands a
fence which enclosed public lands contrary to the Unlawful Inclosures of
Public Lands Act, 43 U.S.C. §§ 1061 to 1066. We affirm.
I
Lawrence constructed a twenty-eight mile fence enclosing over twenty
thousand acres of private, state and federal lands in an area of south central
Wyoming known as the Red Rim. The land in this area is owned in the
familiar “checkerboard” pattern as the result of the federal land grant to the
Union Pacific Railroad. Lawrence has fee title or permission to fence from
the title owner of the private sections and has grazing permits on the federal
and state sections. The fence enclosed 15 sections, or approximately 9,600
acres of unreserved public domain. However, the fence was constructed
entirely on private lands, except where it crosses the common corners of state
and federal sections.
Lawrence grazes his cattle on the Red Rim during the spring and summer
months for about 60 days. But during the winter, portions of the Red Rim
provide critical range for Wyoming pronghorn antelope. The fence Lawrence
constructed, however, was antelope-proof, denying antelope access to this
critical winter range. The winter of 1983 was unusually severe (even for
Wyoming) and the testimony to the district court indicated that antelope
collected against the fence and starved in an unsuccessful attempt to reach the
Red Rim.
The government brought this action under a statute adopted by Congress
in 1885, the Unlawful Inclosures of Public Lands Act, 43 U.S.C. §§ 1061 to
1066 (“UIA”), seeking an order compelling removal of the fence or
modification to allow free and unrestricted access by pronghorn antelope to
104
the enclosed public lands. The Wyoming and National Wildlife Federations
were joined as intervenors and moved for a preliminary injunction to have
portions of the fence removed before the winter of 1985. . . . At the
conclusion of the hearing, the court orally granted the preliminary injunction,
ordering Lawrence to remove certain portions of the fence within 10 days and
to remove the entire fence or modify it to conform with Bureau of Land
Management (“BLM”) standards4 within 60 days. A few days later, the
district court entered a final judgment and order directing that the entire fence
be removed or modified. Lawrence appeals from the district court’s order.
II
The district court concluded that this case was controlled by Camfield v.
United States, 167 U.S. 518 (1897) which dealt with a “virtually identical”
situation. . . .
Lawrence was unsuccessful in his attempts to distinguish his fence from
the fence in Camfield. He renews those attempts on appeal, challenging the
district court’s interpretation of the applicable law. . . .
Initially, however, we must address Lawrence’s characterization of the
issue in this case. He argues that the order of the district court directing that
the fence be removed or modified to allow passage by antelope imposes a
“servitude” on his land, or grants the antelope an “easement” across them.
Lawrence then argues that he must be compensated for this “taking.” We
disagree with Lawrence’s description of the district court’s order. In
declaring that the fence must be removed, the district court did not grant the
antelope any easement across Lawrence’s private lands, nor do we. That
question is simply not at issue here. Instead, the issue in this case is merely
whether the fence constructed and maintained by Lawrence unlawfully
encloses federal lands. Federal law declares such fences to be nuisances
which must be removed.
In arguing that the district court’s order creates an implied easement for
antelope, Lawrence relies on Leo Sheep Co. v. United States, 440 U.S. 668
(1979), but we find that decision inapplicable here. [As the district court
stated:]
“[Lawrence] concludes that the Supreme Court held . . . that the
UIA’s purpose was to prevent the continuation of ‘range wars,’ and
4
Pursuant to the Taylor Grazing Act, BLM has promulgated standards for
fences for cattle operations on federal lands. The “BLM-approved” fence is
designed to allow antelope to go under and over the fence.
105
that it should not be extended beyond this purpose. That is not what
the Court meant. The UIA indeed was a response to the range wars,
but nothing in the act or its history limits its application in such a
manner. If the UIA was only meant for such a limited purpose, the
Court would have said so in Camfield, and Congress should have
repealed it in 1934 when the Taylor Grazing Act was passed to end
public land disputes. . . .
“Because Leo Sheep involved the Government’s claim to an implied
easement at the common corners of a checkerboard tract, the Court
only concluded that Camfield and the UIA did not ‘suggest that the
Government had the authority asserted here.’ Leo Sheep, at 683.
That does not mean that Camfield now has no applicability in this
matter. As the Leo Sheep Court stated, ‘[t]hat case [Camfield ]
involved a fence that was constructed on odd-numbered lots so as to
enclose 20,000 acres of public land. . . .’ Id. at 683. [Lawrence] has
erected the same type of fence. Certainly Camfield is not applicable
to a road question, but it clearly has much to say on the subject of
defendant’s fence.”
Bergen, 620 F. Supp. at 1419-20.
We find the district court’s reasoning persuasive. In contrast, under
Lawrence’s reasoning, the UIA became superfluous as early as 1934 when the
Taylor Grazing Act put an end to the open public range, or at the latest in
1976 when the last of the homesteading acts was repealed by the Federal
Land Policy and Management Act (“FLPMA”). Yet the UIA remains federal
law, and was amended in 1984 when Congress modified a procedural
provision.5 We refuse to repeal the UIA by implication, and therefore, must
give effect to its provisions. The UIA declares enclosures of federal lands to
be unlawful and orders that such enclosures be removed. It creates no
easements or servitudes. Thus, Lawrence’s central argument, that the
antelope have no easement across his lands, is not relevant to our decision.
We conclude with the district court that “while Leo Sheep has no
applicability in this matter, Camfield is dispositive of it.”
5
In 1984, Congress deleted the provision from 43 U.S.C. § 1062 that any suit
brought under the UIA had precedence for hearing and trial over other cases
on the civil docket of the court and had to be tried and determined at the
earliest possible date.
106
In a related argument, Lawrence claims that the district court’s ruling
effects an impermissible and unconstitutional taking:
“The imposition of a public servitude on private property for antelope
without payment of compensation violates the Fifth Amendment of
the United States. If a statute should provide that one person may be
compelled to allow antelope to use property privately owned without
any requirement that compensation be paid to the owner, the statute
would be unconstitutional.”
We reject this argument for several reasons.
First, of course, we have already explained that the district court’s
decision did not impose a servitude for antelope, but rather, abated a nuisance
proscribed by federal law. The government’s power to act in this regard was
settled by Camfield. . . .
[The federal government’s power to protect its property recognized in
Camfield] is not diminished where Congress acts to protect antelope rather
than people. Camfield’s characterization of the federal property power was
recently reaffirmed with regard to wildlife by the Supreme Court in Kleppe
v. New Mexico, 426 U.S. 529, 538 (1976) where the Court upheld the
constitutionality of the Wild Free-roaming Horses and Burros Act.
Second, we can find nothing of Lawrence’s that has been “taken.”
Certainly, his federal grazing leases are not damaged as a portion of the
animal unit months (“AUMs”) for those leases is reserved for wildlife,
presumably including antelope. Moreover, evidence at the trial indicated that
competition between antelope and cattle was minimal. . . . There is also
evidence in the record suggesting that foraging by antelope may actually
improve the range for cattle. Even if there is some conflict, this court has
already held that foraging by wildlife in the federal/private checkerboard in
Wyoming is not a taking. Mountain States Legal Foundation v. Hodel, 799
F.2d 1423, 1429-32 (10th Cir.1986).
Finally, Lawrence retains the right to exclude antelope from his own lands
if he can accomplish that exclusion without at the same time effecting an
enclosure of the public lands.7 Again, Camfield states the law:
7
Lawrence retains the right to exclude the antelope at this time because the
district court did not find any implied easement for antelope. If Lawrence
attempts such an exclusion, an action might be brought claiming such an
easement or servitude. At that time, this question would be proper for
judicial consideration. We also recognize, as did the Camfield Court, that a
107
“So long as the individual proprietor confines his enclosure to his
own land, the Government has no right to complain, since he is
entitled to the complete and exclusive enjoyment of it, regardless of
any detriment to his neighbor; but when, under the guise of enclosing
his own land, he builds a fence which is useless for that purpose, and
can only have been intended to enclose the lands of the Government,
he is plainly within the statute, and is guilty of an unwarrantable
appropriation of that which belongs to the public at large.”
Camfield, 167 U.S. at 528.8 All that Lawrence has lost is the right to exclude
others, including wildlife, from the public domain – a right he never had.
We now turn to Lawrence’s efforts to distinguish his fence from the
unlawful fence in Camfield. The heart of Lawrence’s argument is that the
UIA is simply inapplicable to antelope. The UIA provisions at issue provide
as follows:
“All inclosures of any public lands in any State or Territory of the
United States, heretofore or to be hereafter made, erected, or
constructed by any person, party, association, or corporation, to any
of which land included within the inclosure the person, party,
association, or corporation making or controlling the inclosure had no
claim or color of title made or acquired in good faith, . . . are hereby
declared to be unlawful, and the maintenance, erection, construction,
or control of any such inclosure is hereby forbidden and prohibited;
. . .”
separate enclosure for each of the square-mile sections of land owned by
Lawrence is “scarcely a practical question.” Camfield, 167 U.S. at 528.
8
Lawrence relies on this language, and other cases applying the UIA, to argue
that the intent of the fence builder “is of paramount importance.” We are not
persuaded that intent is a controlling factor, or that it would matter here if it
was. First, we note that Camfield was not concerned with the landowner’s
intent. See Camfield, 167 U.S. at 528; see also Homer v. United States, 185
F. 741, 745 (8th Cir. 1911) (“The statute itself . . . makes no mention of any
specific intent. It condemns ‘all inclosures.’ “). Camfield focused on the
effect of the fence, not the landowner’s intent. In this case, the effect of the
fence is to exclude antelope from the public lands. In addition, the district
court found that the intent of the fence was to exclude antelope. That finding
is not clearly erroneous. Thus, whether Lawrence’s intent in building the
fence is relevant or not, the fence is unlawful under the UIA.
108
43 U.S.C. § 1061.
“No person, by force, threats, intimidation, or by any fencing or
inclosing, or any other unlawful means, shall prevent or obstruct, . .
. any person from peaceably entering upon or establishing a
settlement or residence on any tract of public land subject to
settlement or entry under the public land laws of the United States, or
shall prevent or obstruct free passage or transit over or through the
public lands. Provided, This section shall not be held to affect the
right or title of persons, who have gone upon, improved, or occupied
said lands under the land laws of the United States, claiming title
thereto, in good faith.”
43 U.S.C. § 1063.
The district court relied on the emphasized clause in section 3 to conclude
that the UIA prohibition against enclosing public lands was not limited to
people. According to the district court, “[t]hat clause does not contain the
word ‘person,’ and neither does the Court believe that ‘person’ from the
preceding clause should be read into it. Had Congress intended only to
protect people, the first clause would have accomplished that purpose without
necessity of the second clause.” Bergen, 620 F. Supp. 1417.
We agree with the district court, but find additional reasons to extend the
UIA to these circumstances. First, the language in section 1 is even more
emphatic and absolute than that of section 3. According to the statute, “all
inclosures of any public lands . . . are . . . declared to be unlawful.” Lawrence
points to the legislative history of the UIA, and finding no mention of
wildlife, asks us to narrow the applicability of the statute. Because the
language of the statute is clear, however, we do not have that option.
We also find support to extend the UIA beyond people in the early
interpretations of the statute. In Mackay v. Uinta Development Co., 219 F.
116 (8th Cir. 1914) the court relied on the UIA and Camfield to find that
livestock may not be denied access to federal lands in the Union Pacific
checkerboard. Even more instructive is the language of Stoddard v. United
States, 214 F. 566 (8th Cir. 1914). In Stoddard, as here, the defendant argued
that section 3 of the UIA referred to “the obstruction of free passage or transit
over the public lands of persons only.” Id. at 568. The Stoddard court
ordered removal of a fence on private land that obstructed the free range of
livestock to public land, and, like the district court here, refused to read the
limitation to “persons” into that clause, and concluded that the UIA “was
intended to prevent the obstruction of free passage or transit for any and all
lawful purposes over public lands.” Id. at 568-69.
109
Thus, the question becomes whether winter forage by antelope is a lawful
purpose of public lands. Any doubt may be resolved by reference to FLPMA,
where Congress directed that “the public lands be managed in a manner . . .
that will provide food and habitat for fish and wildlife and domestic animals.”
43 U.S.C. § 1701(a)(8).
Lawrence objects to the reliance on FLPMA to ascertain the limits of the
UIA: “It is absurd to suppose that 1976 declarations of Congress regarding
public land administration could be construed to amend by implication the
language and purpose of the UIA enacted in 1885.” This criticism misses the
point of the analysis. Neither this court nor the district court rely on FLPMA
to amend the UIA. The UIA proscribes unlawful enclosures; enclosures are
unlawful when they deny access to public lands for “lawful purposes”;
Congressional guidance in FLPMA is relevant to assist the court in
determining what uses of the public lands are lawful, and therefore protected
under the UIA. Obviously, lawful uses of the public lands will change over
time. For example, as Lawrence notes, the primary purpose of the UIA in the
early part of this century was to prevent the exclusion of homesteaders from
the public lands. With the repeal of the homesteading laws, that is no longer
a “lawful purpose.” The district court did not look to FLPMA to determine
the intent of Congress in 1885, but rather, to determine what “lawful
purposes” were protected by the UIA in 1985. That was both appropriate and
necessary.
*****
Finding no error in the district court’s final judgment, that order is
AFFIRMED.
110
State of Minnesota v. Block
Eighth Circuit, 1981.
660 F.2d 1240.
O BRIGHT , CIRCUIT JUDGE.
These appeals arise from three consolidated cases involving multiple
challenges to provisions of the Boundary Waters Canoe Area Wilderness Act
of 1978, Pub.L.No. 95-495, 92 Stat. 1649 (BWCAW Act or the Act). . . .
[A]ppellants allege that Congress unconstitutionally applied federal controls
on the use of motorboats and snowmobiles to land and waters not owned by
the United States. . . .
The State of Minnesota, joined by the National Association of Property
Owners (NAPO) and numerous individuals, businesses, and organizations,
brought suit against the United States, challenging the constitutionality of the
BWCAW Act as applied to lands and waters that the federal government does
not own. A group of organizations concerned with the environmental and
wilderness aspects of the boundary waters intervened in support of the United
States.
The challenged portion of the statute, section 4, prohibits the use of
motorboats in the BWCAW in all but a small number of lakes. The Act also
limits snowmobiles to two routes. The United States owns ninety percent of
the land within the borders of the BWCAW area. The State of Minnesota, in
addition to owning most of the remaining ten percent of the land, owns the
beds of all the lakes and rivers within the BWCAW.
Appellants assert that Congress had no power to enact the motor vehicle
restriction as applied to nonfederal lands and waters. We reject this
contention and conclude that Congress, in passing this legislation, acted
within its authority under the property clause of the United States
Constitution . . . Accordingly, we affirm.
I. Background.
The Boundary Waters Canoe Area Wilderness (BWCAW), a part of the
Superior National Forest, consists of approximately 1,075,000 acres of land
and waterways along the Minnesota-Canadian border. A sponsor of this
legislation described the area in introducing the BWCAW Act on the House
floor:
The Boundary Waters Canoe Area is the largest wilderness area east
of the Rocky Mountains and the second largest in our wilderness
system. It is our Nation’s only lakeland canoe wilderness a network
111
of more than 1,000 lakes linked by hundreds of miles of streams and
short portages which served as the highway of fur traders who
followed water routes pioneered by Sioux and Chippewa Indians.
Despite extensive logging, the BWCA still contains 540,000 acres of
virgin forests, by far the largest such area in the eastern United States.
This last remnant of the old “north-woods” is remarkable not only for
its lakes and virgin forests, but also for its wildlife. * * * (M)any
western wilderness areas lack such complete food chains. This
natural ecosystem is a valuable educational and scientific resource; it
has been the focal point of important research in wildlife behavior,
forest ecology, nutrient cycles, lake systems, and vegetation history.
The BWCA is complemented on the Canadian side of our border by
the Quetico Provincial Park of Ontario where commercial logging
and nearly all motorized recreational activity are prohibited.
Together, these areas encompass an area the size of Yellowstone
National Park and constitute one of the finest wilderness areas on our
continent. Not surprisingly, the BWCA is the most heavily used unit
in the national wilderness system, drawing people from throughout
the country who seek the solitude of a wilderness experience. (123
Cong.Rec. H621-22 (daily ed. Jan. 31, 1977), reprinted in Legislative
History of the Boundary Waters Act of 1978, at 1-2.)
Beginning with the federal government’s first reservation of forest land in
1902, up to the present, both the United States and the State of Minnesota
have sought to protect the boundary waters area. Increasingly through the
century, the governments have sought to preserve the primitive character of
the area. These efforts resulted in the designation of the boundary waters as
part of the national wilderness system established under the Wilderness Act
of 1964, as amended, 16 U.S.C. ss 1131-36 (1976).
The Wilderness Act of 1964 prohibited use of motorized vehicles in any
national wilderness area. That Act, however, provided a specific exception
for the Boundary Waters Canoe Area:
Other provisions of this chapter to the contrary notwithstanding, the
management of the Boundary Waters Canoe Area * * * shall be in
accordance with regulations established by the Secretary of
Agriculture in accordance with the general purpose of maintaining,
without unnecessary restrictions on other uses, including that of
timber, the primitive character of the area, particularly in the vicinity
of lakes, streams, and portages: Provided, That nothing in this
112
chapter shall preclude the continuance within the area of any already
established use of motorboats.8 (16 U.S.C. s 1133(d)(5) (1976).)
In response to the confusion and litigation generated by the proviso, as
well as in reaction to threatened deterioration of the wilderness from
excessive use, Congress enacted the Boundary Waters Canoe Area
Wilderness Act of 1978. At issue here are portions of section 4 of the Act,
the provision barring the use of motorized craft in all but designated portions
of the wilderness. Section 4(c) limits motorboat use to designated lakes and
rivers, allowing a maximum of either ten or twenty-five horsepower motors
on these waters. Section 4(e) permits certain limited mechanized portages.
Section 4(e) restricts the use of snowmobiles to two designated trails. With
these exceptions, the Act as construed by the federal government and by the
district court, prohibits all other motorized transportation on land and water
falling within the external boundaries of the wilderness area.
The boundaries of the BWCAW circumscribe a total surface area of
approximately 1,080,300 acres – 920,000 acres of land and 160,000 of water.
The United States owns approximately 792,000 acres of land surface, while
the State of Minnesota owns approximately 121,000 acres of land,12 in
addition to the beds under the 160,000 acres of navigable water. Congress
recognized that Minnesota would retain jurisdiction over the waters, but
provided that the State could not regulate in a manner less stringent than that
mandated by the Act.
Minnesota brought this action against the United States on December 27,
1979, challenging the application of section 4 to land and waterways under
state jurisdiction that fall within the boundaries of the BWCAW. The district
court rejected the State’s claim, holding that section 4, as applied to
nonfederal property, constituted a valid exercise of Congress’ legislative
power under the property clause of the United States Constitution.
On appeal, Minnesota and the intervening plaintiffs renew their assertions
(1) that Congress acted in excess of its authority under the property clause by
8
Pursuant to this mandate, the Secretary of Agriculture issued a management
plan for the area, establishing an Interior Zone free from logging activity and
designating 19 motorized routes, covering 60 percent of the surface water.
Minnesota likewise banned motor use except in those areas designated by the
United States Secretary of Agriculture. In 1976, the United States Secretary
of Agriculture banned all snowmobiling within the wilderness area.
12
Private parties own approximately 7,300 acres of land.
113
curtailing the use of motor-powered boats and other motorized vehicles on
lands and waters not owned by the United States; and (2) that the tenth
amendment of the United States Constitution bars the application of section
4 to “state-owned” lands and waters.15
II Property Clause.
The property clause provides: “The Congress shall have Power to dispose
of and make all needful Rules and Regulations respecting the Territory or
other Property belonging to the United States * * *.” U.S. Const. art. IV, s
3, cl. 2. In a recent unanimous decision, the Supreme Court upheld an
expansive reading of Congress’ power under the property clause. See Kleppe
v. New Mexico, 426 U.S. 529 (1976). The Court concluded that
the Clause, in broad terms, gives Congress the power to determine
what are “needful” rules “respecting” the public lands. * * * And
while the furthest reaches of the power granted by the Property
Clause have not yet been definitively resolved, we have repeatedly
observed that “(t)he power over the public lands thus entrusted to
Congress is without limitations.” (Id. at 539, 96 S.Ct. at 2291.)
15
Minnesota also asserts that § 4 of the Act, when properly construed, does
not apply to lands and waters under state jurisdiction within the boundaries
of the BWCAW. Appellants’ argument contradicts the plain language as well
as the purpose and legislative history of the Act. Inasmuch as all navigable
waters within the area fall under state jurisdiction, Congress’ clear intent to
ban motorboats from waters necessarily demonstrates an intent to ban them
from state waters. The entire focus of the debate before Congress concerned
which lakes would be designated motor-free. Section 2 specifically provides:
It is the purpose of this Act to
(6) provide for the orderly and equitable transition from motorized
recreational uses to nonmotorized recreational uses on those lakes,
streams, and portages in the wilderness where such mechanized uses
are to be phased out under the provisions of this Act.
(92 Stat. 1649.)
In addition, the exemptions provided by § 4 of the Act make no sense unless
Congress intended to ban motorized use on all nonexempt lakes. Finally, §
15 authorizes the Secretary to issue regulations “that limit or prohibit the use
of motorized equipment on or relating to waters located within the wilderness
* * *.” Thus, we find this argument without merit.
114
With this guidance, we must decide the question left open in Kleppe, the
scope of Congress’ property clause power as applied to activity occurring off
federal land. Without defining the limits of the power, the Court in Kleppe,
relying on its decision in Camfield v. United States, 167 U.S. 518,
acknowledged that “it is clear the regulations under the Property Clause may
have some effect on private lands not otherwise under federal control.” 426
U.S. at 546. In Camfield, the Court concluded that Congress possessed the
power to control conduct occurring off federal property through its “power
of legislating for the protection of the public lands, though it may thereby
involve the exercise of what is ordinarily known as the police power, so long
as such power is directed solely to (the public lands’) own protection.”
Camfield v. United States, supra, 167 U.S. at 526.
Under this authority to protect public land, Congress’ power must extend
to regulation of conduct on or off the public land that would threaten the
designated purpose of federal lands. Congress clearly has the power to
dedicate federal land for particular purposes. As a necessary incident of that
power, Congress must have the ability to insure that these lands be protected
against interference with their intended purposes. As the Supreme Court has
stated, under the property clause “(Congress) may sanction some uses and
prohibit others, and may forbid interference with such as are sanctioned.”
McKelvey v. United States, 260 U.S. 353, 359 (1922).
This court has previously held that Congress, under the property clause,
could prohibit hunting on waters within the boundaries of the Voyagers
National Park in Minnesota, even though the waters were subject to state
jurisdiction. United States v. Brown, 552 F.2d 817, 821 (8th Cir. 1977). In
Brown, the purpose of the challenged regulations extended beyond the mere
protection of the federal land from physical harm. This court, in effect,
affirmed the district court’s approval of the regulations as necessary because
“hunting on the waters in the park could ‘significantly interfere with the use
of the park and the purposes for which it was established.’ “ Id. at 822.
Having established that Congress may regulate conduct off federal land
that interferes with the designated purpose of that land, we must determine
whether Congress acted within this power in restricting the use of motorboats
and other motor vehicles in the BWCAW. In reviewing the appropriateness
of particular regulations, “we must remain mindful that, while courts must
eventually pass upon them, determinations under the Property Clause are
entrusted primarily to the judgment of Congress.” Kleppe v. New Mexico,
supra, 426 U.S. at 536. Thus, if Congress enacted the motorized use
restrictions to protect the fundamental purpose for which the BWCAW had
115
been reserved, and if the restrictions in section 4 reasonably relate to that end,
we must conclude that Congress acted within its constitutional prerogative.
Congress passed the BWCAW Act with the clear intent of insuring that
the area would remain as wilderness and could be enjoyed as such.20
20
Section 2 of the Act sets out congressional purposes:
Sec. 2. It is the purpose of this Act to provide for such measures
respecting the areas designated by this Act as the Boundary Waters
Canoe Area Wilderness and Boundary Waters Canoe Area Mining
Protection Area as will
(1) provide for the protection and management of the fish and
wildlife of the wilderness so as to enhance public enjoyment
and appreciation of the unique biotic resources of the region,
(2) protect and enhance the natural values and environmental
quality of the lakes, streams, shorelines and associated forest
areas of the wilderness,
(3) maintain high water quality in such areas,
(4) minimize to the maximum extent possible, the
environmental impacts associated with mineral development
affecting such areas,
(5) prevent further road and commercial development and
restore natural conditions to existing temporary roads in the
wilderness, and
(6) provide for the orderly and equitable transition from
motorized recreational uses to nonmotorized recreational uses
on those lakes, streams, and portages in the wilderness where
such mechanized uses are to be phased out under the
provisions of this Act. (92 Stat. 1649.)
In addition, the BWCAW remains part of the National Wilderness
Preservation System, and thus regulations affecting the BWCAW may also
be said to advance the purposes of the Wilderness Act. 16 U.S.C. § 1131(a)
states:
(a) In order to assure that an increasing population, accompanied by
expanding settlement and growing mechanization, does not occupy
and modify all areas within the United States and its possessions,
leaving no lands designated for preservation and protection in their
natural condition, it is hereby declared to be the policy of the
Congress to secure for the American people of present and future
generations the benefits of an enduring resource of wilderness. For
116
Specifically concerning the motor use regulations, Congressman Fraser, in
introducing the 1978 Act, stated:
The bill has four major thrusts. First, and most important, it seeks to
end those activities that threaten the integrity of the BWCA’s
wilderness character by expressly prohibiting the following uses:
Recreational uses of motorized watercraft and snowmobiles * * *.
(123 Cong.Rec. H621 (daily ed. Jan. 31, 1977), reprinted in Legislative
History of the Boundary Waters Act of 1978, at 1.)
*****
Hearings and other evidence provided ample support for Congress’
finding that use of motorboats and snowmobiles must be limited in order to
preserve the area as a wilderness. Testimony established that the sight, smell,
and sound of motorized vehicles seriously marred the wilderness experience
of canoeists, hikers, and skiers and threatened to destroy the integrity of the
wilderness.
As a result of considerable testimony and debate and a series of
compromises, Congress enacted section 4 in an attempt to accommodate all
interests, determining the extent of motorized use the area might tolerate
without serious threat to its wilderness values.22
this purpose there is hereby established a National Wilderness
Preservation System to be composed of federally owned areas
designated by Congress as “wilderness areas”, and these shall be
administered for the use and enjoyment of the American people in
such manner as will leave them unimpaired for future use and
enjoyment as wilderness, and so as to provide for the protection of
these areas, the preservation of their wilderness character, and for the
gathering and dissemination of information regarding their use and
enjoyment as wilderness; and no Federal lands shall be designated as
“wilderness areas” except as provided for in this chapter or by a
subsequent Act.
22
We find no merit in appellants’ argument that Congress should have
banned all motorized travel if it were serious about protecting the wilderness.
Congress retains the freedom, as well as the obligation and ability, to balance
competing interests. Courts should not lightly set aside the resulting
compromises.
117
The motor use restrictions form only a small part of an elaborate system
of regulation considered necessary to preserve the BWCAW as a wilderness.
The United States owns close to ninety percent of the land surrounding the
waters at issue. Congress concluded that motorized vehicles significantly
interfere with the use of the wilderness by canoeists, hikers, and skiers and
that restricted motorized use would enhance and preserve the wilderness
values of the area. From the evidence presented, Congress could rationally
reach these conclusions. We hold, therefore, that Congress acted within its
power under the Constitution to pass needful regulations respecting public
lands.
*****
NOTES AND QUESTIONS:
1. The property clause redux. Does Kleppe expand Congress’ property
clause authority beyond the scope recognized in Camfield? Does the
interpretation of the property clause in Kleppe add anything to Congress’
other powers? Would the commerce clause sustain the Wild Free-Roaming
Horses and Burros Act?
2. The scope of the property clause. How important was it to the outcome
in Kleppe that the state had rounded up wild horses on federal land? Suppose
animals protected under the statute strayed onto private land. Could the Act
constitutionally be applied to prevent private landowners from excluding or
harming them animals?
3. Harmony or dissonance? Is Leo Sheep consistent with Camfield? Are
you persuaded by the Court’s statement that the Unlawful Inclosures Act is
inapplicable to the Leo Sheep and Palm Livestock Companies’ denial of
access to the public domain sections of the checkerboard? Is Leo Sheep
consistent with Buford v. Houtz (described in Leo Sheep, at footnote 24). Is
United States ex rel. Bergen v. Lawrence consistent with Leo Sheep? How
can the two be distinguished?
4. Easements for access to public land. Should the existence of the
eminent domain power prevent the United States from ever asserting an
easement by necessity? On the facts of Leo Sheep, would it be possible for
the United States to establish an implied easement or an easement based on
preexisting use? Are these questions of federal or state law?
5. Remedies. If the Court had decided that the Leo Sheep and the Palm
Livestock Companies had violated the Unlawful Inclosures Act, could the
118
United States have completed the road and obtained access to the reservoir
without payment of just compensation? In answering this question, is it
significant that the Unlawful Inclosures Act was enacted twenty-three years
after the grants of the land to the Union Pacific Railroad?
6. Congressional intent. The Tenth Circuit’s opinion in Leo Sheep stated
that, in its 1862 grant to the Union Pacific Railroad, Congress must have
intended implicitly to reserve a right of access across the odd numbered
sections. “To hold to the contrary,” the Court reasoned, “would be to ascribe
to Congress a degree of carelessness or lack of foresight which in our view
would be unwarranted.” Leo Sheep Co. v. United States, 570 F.2d 881, 885
(10th Cir. 1977). This passage inspired Clyde Martz, the attorney for the
Leo Sheep Company, to seek a writ of certiorari from the United States
Supreme Court, even though only a few square feet of land were at issue. He
reasoned that “the Supreme Court sits in Washington and has a much closer
and realistic view of the carelessness of which Congress is capable.” George
Cameron Coggins, Charles F. Wilkinson & John D. Leshy, Federal Public
Land and Resources Law 103-04 (4th ed. 2001).
7. Protecting the public lands by extraterritorial regulation. Was the
Eighth Circuit right, in Block, to hold that the United States had the authority
to prohibit the use of motorboats and snowmobiles on the navigable waters
of the Boundary Waters Canoe Area, given that the state owns the land under
those waters? Does Camfield (as modified or embellished by other cases
such as Buford, Leo Sheep, and Kleppe), support the outcome in Block?
Would the result in Block change if the lands in question were merely
adjacent to, rather than criss-crossing, the federal land area?
Based on the readings in this and the previous assignment, evaluate the
authority of the United States in the following situations:
a. The United States Forest Service seeks to ban motorized boats and
other watercraft from a navigable lake within the Deschutes National
Forest in Oregon. Plaintiffs, who wish to use motorized boats on this
lake, own property along its shore.
b. The United States Park Service proposes to restrict the type and size
of buildings constructed on a private inholding within the Wawona
area of Yosemite National Park.
c. The United States objects to the New World Gold Mine, which is
operated by Noranda Minerals, Inc. and is located at the northeast
corner of Yellowstone National Park in the Gallatin National Forest.
The National Park Service fears that mine tailings and sodium
119
cyanide from the mine will spill into several rivers that flow into the
park.
8. Wildlife and takings. In Kleppe, is the ownership of the wild horses and
burros relevant to the resolution of the case? Would the United States be
liable for trespass or property damage caused by protected horses or burros
grazing on private land? The Tenth Circuit addressed this question in
Mountain States Legal Foundation v. Hodel, 799 F.2d 1423 (10th Cir. 1986)
(en banc). The plaintiffs claimed inter alia that the passage of wild horses
from federal land to private land within the checkerboard area surrounding
Rock Springs, Wyoming, was a taking of private property. The Court of
Appeals rejected this claim, holding that horses protected under the Wild
Free-Roaming Horses and Burros Act are not the property of the United
States. Rather, they “are instead a sort of common property whose control
and regulation are to be exercised as a trust for the benefit of the people.” Id.
at 1426.
Similarly in Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988), the Ninth
Circuit affirmed a civil penalty assessed under the Endangered Species Act
against a Montana rancher who killed a grizzly bear that was attacking his
livestock. Christy claimed that the Act denied “his fundamental right to
possess and protect his property,” and therefore “deprived him of his property
and liberty without just compensation or due process.” The Court of Appeals
“decline[d] plaintiffs’ invitation to construe the fifth amendment as
guaranteeing the right to kill federally protected wildlife in defense of
property” and therefore rejected Christy’s due process claim. It also held that
the United States “does not ‘own’ the wild animals it protects, nor . . . control
the conduct of such animals.” Accordingly, the Court concluded that the
federal government’s protection of the grizzly bear did not take Christy’s
property.
Justice White dissented from the Supreme Court’s denial of certiorari,
Christy v. Lujan, 490 U.S. 1114 (1989):
Petitioner is a herder who grazed his sheep on leased land near
Glacier National Park. Between July 1 and July 9, 1982, grizzly bears
from the park killed 20 of petitioner’s sheep. Requests for assistance
from park rangers yielded no results, and efforts to frighten away the
bears were unsuccessful. On July 9, when two grizzlies emerged
from the forest and approached petitioner’s sheep, he shot and killed
a bear. Grizzlies, however, are “endangered species;” petitioner’s
killing of the bear thus violated the Endangered Species Act, which
makes it unlawful to “harass, harm pursue, hunt, shoot, wound, kill,
120
trap, capture, or collect” grizzlies and other animals protected by the
statute. 16 U. S. C. § 1538(a)(1). Petitioner was consequently
assessed a $ 2,500 penalty for shooting the bear.
*****
I would grant the petition for certiorari to consider petitioner’s
constitutional claims. Petitioner’s claim of a constitutional right to
defend his property is not insubstantial. A man’s right to defend his
property has long been recognized at common law, see W.
Blackstone, Commentaries 138-140, and is deeply-rooted in the legal
traditions of this country, see, e.g., Beard v. United States, 158 U.S.
550, 555 (1895). Having the freedom to take actions necessary to
protect one’s property may well be a liberty “deeply rooted in this
Nation’s history and tradition,” Moore v. East Cleveland, 431 U.S.
494, 503 (1977) (opinion of Powell, J.), and therefore, entitled to the
substantive protection of the Due Process Clause. In any event,
petitioner’s claim to such protection presents an interesting and
important question – the proper resolution of which is not altogether
clear – that merits plenary review.
Even more substantial is petitioner’s claim that the Endangered
Species Act operates as a governmental authorization of a “taking” of
his property; leaving him uncompensated for this taking violates the
Fifth Amendment, petitioner contends. There can be little doubt that
if a federal statute authorized park rangers to come around at night
and take petitioner’s livestock to feed the bears, such a governmental
action would constitute a “taking.” The Court of Appeals below, and
the United States in its submission here, distinguish such a case from
this one, by noting that the United States “does not ‘own’ the wild
animals it protects, nor does the government control the conduct of
such animals.”
Perhaps not; but the government does make it unlawful for
petitioner to “harass, harm, [or] pursue” such animals when they
come to take his property – and perhaps a government edict barring
one from resisting the loss of his property is the constitutional
equivalent of an edict taking such property in the first place. Thus, if
the government decided (in lieu of the food stamp program) to enact
a law barring grocery store owners from “harassing, harming, or
pursuing” people who wish to take food off grocery shelves without
paying for it, such a law might well be suspect under the Fifth
Amendment. For similar reasons, the Endangered Species Act may
121
be suspect as applied in petitioner’s case.
In sum, sustaining grizzly bears is a worthwhile and important
governmental objective. But it “is axiomatic that the Fifth
Amendment’s just compensation provision is designed to bar
Government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a
whole.” First English Evangelical Lutheran Church v. County of Los
Angeles, 482 U.S. 304, 318-319 (1987). Here, petitioner has been
asked to bear the burden of feeding endangered grizzlies – or at the
least, has been estopped from taking measures necessary to prevent
the use of his property for this purpose. Thus, it seems quite possible
that petitioner has been denied the Fifth Amendment’s protection
against uncompensated takings.
Because I think that petitioner’s constitutional claims present
interesting and important questions that merit our attention, I dissent
from the Court’s denial of review in this case.
122
Assignment 7: State Authority and Preemption
Omaechevarria v. Idaho
Supreme Court of the United States, 1918.
246 U.S. 343.
O JUSTICE BRANDEIS delivered the opinion of the Court.
For more than forty years the raising of cattle and sheep have been
important industries in Idaho. The stock feeds in part by grazing on the
public domain of the United States. This is done with the government’s
acquiescence, without the payment of compensation, and without federal
regulation. Buford v. Houtz, 133 U. S. 320, 326. Experience has
demonstrated, says the state court, that in arid and semi-arid regions cattle
will not graze, nor can they thrive, on ranges where sheep are allowed to
graze extensively; that the encroachment of sheep upon ranges previously
occupied by cattle results in driving out the cattle and destroying or greatly
impairing the industry; and that this conflict of interests led to frequent and
serious breaches of the peace and the loss of many lives. Efficient policing
of the ranges is impossible; for the state is sparsely settled and the public
domain is extensive, comprising still more than one-fourth of the land
surface. To avert clashes between sheep herdsmen and the farmers who
customarily allowed their few cattle to graze on the public domain near their
dwellings, the territorial Legislature passed in 1875 the so-called “Two Mile
Limit Law.” It was enacted first as a local statute applicable to three
counties, but was extended in 1879 and again in 1883 to additional counties,
and was made a general law in 1887. After the admission of Idaho to the
Union, the statute was re-enacted and its validity sustained by this court in
Bacon v. Walker, 204 U. S. 311. To avert clashes between the sheep
herdsmen and the cattle rangers, further legislation was found necessary; and
in 1883 the law (now section 6872 of the Revised Codes) was enacted which
prohibits any person having charge of sheep from allowing them to graze on
a range previously occupied by cattle.4 For violating this statute the plaintiff
4
Revised Codes of Idaho 1908, § 6872:
“Any person owning or having charge of sheep, who herds, grazes, or
pastures the same, or permits or suffers the same to be herded, grazed
or pastured, on any cattle range previously occupied by cattle, or upon
any range usually occupied by any cattle grower, either as a spring,
123
in error, a sheep herdsman, was convicted in the local police court and
sentenced to pay a fine. . . . On writ of error to this court the validity of the
statute is assailed on the ground that the statute is inconsistent both with the
Fourteenth Amendment and with the act of Congress of February 25, 1885,
c. 149, 23 Stat. 321, “An act to prevent unlawful occupancy of the public
lands.”
First. It is urged that the statute denies rights guaranteed by the Fourteenth
Amendment, namely: Privileges of citizens of the United States, in so far as
it prohibits the use of the public lands by sheep owners; and equal protection
of the laws, in that it gives to cattle owners a preference over sheep owners.
These contentions are, in substance, the same as those made in respect to the
“Two Mile Limit Law” in Bacon v. Walker, supra; and the answer made there
is applicable here. The police power of the state extends over the federal
public domain, at least when there is no legislation by Congress on the
subject. We cannot say that the measure adopted by the state is unreasonable
or arbitrary. It was found that conflicts between cattle rangers and sheep
herders on the public domain could be reconciled only by segregation. In
national forests, where the use of land is regulated by the federal government,
the plan of segregation is widely adopted. And it is not an arbitrary
discrimination to give preference to cattle owners in prior occupancy without
providing for a like preference to sheep owners in prior occupancy. For
experience shows that sheep do not require protection against encroachment
by cattle, and that cattle rangers are not likely to encroach upon ranges
previously occupied by sheep herders. The propriety of treating sheep
differently than cattle has been generally recognized. That the interest of the
sheep owners of Idaho received due consideration is indicated by the fact that
in 1902 they opposed the abolition by the government of the free ranges.
*****
Third. It is further contended that the statute is in direct conflict with the
Act of Congress of February 25, 1885. That statute which was designed to
prevent the illegal fencing of public lands, contains at the close of section 1
the following clause with which the Idaho statute is said to conflict:
“And the assertion of a right to the exclusive use and occupancy of
summer or winter range for his cattle, is guilty of a misdemeanor; but
the priority of possessory right between cattle and sheep owners to
any range, is determined by the priority in the usual and customary
use of such range, either as a cattle or sheep range.”
124
any part of the public lands of the United States in any state or any of
the territories of the United States, without claim, color of title, or
asserted right as above specified as to inclosure, is likewise declared
unlawful, and hereby prohibited.”
An examination of the federal act in its entirety makes it clear that what
the clause quoted from section 1 sought to prohibit was merely the assertion
of an exclusive right to use or occupation by force or intimidation or by what
would be equivalent in effect to an inclosure. That this was the intent of
Congress is confirmed by the history of the act. The reports of the Secretary
of the Interior upon whose recommendation the act was introduced, the
reports of the committees of Congress, and the debates thereon indicate that
this alone was the evil sought to be remedied, and to such action only does
its prohibition appear to have been applied in practice. Although Idaho had,
by statute, excluded sheep from portions of the public domain since 1875, no
reference to the fact has been found in the discussion which preceded and
followed the enactment of the federal law, nor does any reference seem to
have been made to the legislation of other states which likewise excluded
sheep, under certain circumstances, from parts of the public domain. And no
case has been found in which it was even urged that these state statutes were
in conflict with this act of Congress.
The Idaho statute makes no attempt to grant a right to use public lands.
The state, acting in the exercise of its police power, merely excludes sheep
from certain ranges under certain circumstances. Like the forcible entry and
detainer act of Washington, which was held in Denee v. Ankeny, 246 U. S.
208, not to conflict with the homestead laws, the Idaho statute was enacted
primarily to prevent breaches of the peace. The incidental protection which
it thereby affords to cattle owners does not purport to secure to any of them,
or to cattle owners collectively, “the exclusive use and occupancy of any part
of the public lands.” For every range from which sheep are excluded remains
open not only to all cattle, but also to horses, of which there are many in
Idaho. This exclusion of sheep owners under certain circumstances does not
interfere with any rights of a citizen of the United States. Congress has not
conferred upon citizens the right to graze stock upon the public lands. The
government has merely suffered the lands to be so used. It is because the
citizen possesses no such right, that it was held by this court that the
Secretary of Agriculture might, in the exercise of his general power to
regulate forest reserves, exclude sheep and cattle therefrom. United States v.
Grimaud, 220 U. S. 506; Light v. United States, 220 U. S. 523.
All the objections urged against the validity of the statute are unsound.
125
The judgment of the Supreme Court of Idaho is
Affirmed.
O JUSTICE VAN DEVANTER
opinion).
AND
JUSTICE MCREYNOLDS dissent (without
Ventura County v. Gulf Oil Corp.
Ninth Circuit, 1980.
601 F.2d 1080 (aff’d, 445 U.S. 947).
O HUFSTEDLER, CIRCUIT JUDGE.
The question on appeal is whether the County of Ventura (“Ventura”) can
require the federal Government’s lessee, Gulf Oil Corporation (“Gulf”), to
obtain a permit from Ventura in compliance with Ventura’s zoning
ordinances governing oil exploration and extraction activities before Gulf can
exercise its rights under the lease and drilling permits acquired from the
Government. The district court denied Ventura’s motion for a preliminary
injunction, and dismissed Ventura’s second amended complaint. Ventura
appeals. We uphold the district court because the local ordinances
impermissibly conflict with congressional regulation of Gulf’s activities on
government land.
On January 1, 1974, the Department of the Interior, Bureau of Land
Management, pursuant to the Mineral Lands Leasing Act of 1920 (30 U.S.C.
§§ 181 et seq.), leased 120 acres located within the Los Padres National
Forest in Ventura for purposes of oil exploration and development. A
subsequent assignment of this lease to Gulf was approved by the Department
of the Interior, effective April 1, 1974. On February 25, 1976, the United
States Department of the Interior, Geological Survey, issued a permit
approving Gulf’s proposal to drill an oil well pursuant to its lease. On March
8, 1976, and April 15, 1976, the United States Department of Agriculture,
Forest Service, also granted its permission, and on March 8, 1976, the
California Resources Agency, Division of Oil and Gas, approved the
proposed exploration. After drilling operations were commenced on April
28, 1976, Gulf pursued activities related to oil exploration and extraction on
the leased property, and it intends to continue development of both its present
and other drill sites.
Throughout this period the leased property has been zoned Open Space
(“O-S”) by Ventura. Under its zoning ordinance, oil exploration and
126
extraction activities are prohibited on O-S property unless an Open Space Use
Permit is obtained from the Ventura County Planning Commission in
accordance with Articles 25 and 43 of the Ventura County Ordinance Code.
The O-S Use Permits are granted for such time and upon such conditions as
the Planning Commission considers in the public interest. The permits
contain 11 mandatory conditions and additional conditions are committed to
the Planning Board’s discretion.
On May 5, 1976, Ventura advised Gulf that it must obtain an O-S Use
Permit if it wished to continue its drilling operations. Gulf refused to
comply, and on May 20, 1976, Ventura brought suit in the California
Superior Court seeking a declaratory judgment that Gulf’s activities are
subject to Ventura’s zoning ordinances. The case was removed to the district
court. . . .
Ventura contends that the district court erred in concluding that the
Supremacy Clause of the Constitution precludes enforcement of the zoning
ordinances against Gulf both because Congress lacked the power to preempt
local regulation and because, even assuming Congress had such power, its
enactments provide no basis for finding preemption, either express or
implied.
Although Ventura and amicus argue extensively that congressional
enactments under the Property Clause generally possess no preemptive
capability, we believe that Kleppe v. New Mexico (1976) 426 U.S. 529, is
dispositive. . . . In light of Kleppe, the renewed attempt to restrict the scope
of congressional power under the Property Clause in the present case is
legally frivolous.
Ventura next contends that even if Congress had the power to enact
overriding legislation, there is no evidence of either a congressional intent to
preempt local regulation or a conflict between local and federal law that can
be resolved only by exclusion of local jurisdiction. We need not consider the
extent to which local regulation of any aspect of oil exploration and
extraction upon federal lands is precluded by federal legislation; the local
ordinances impermissibly conflict with the Mineral Lands Leasing Act of
1920 and on this basis alone they cannot be applied to Gulf.
The extensive regulation of oil exploration and drilling under the Mineral
Leasing Act is evident from the present record. The basic lease assigned to
Gulf in 1974 contains approximately 45 paragraphs including requirements
of diligence and protection of the environment as well as reservation of a oneeighth royalty interest in the United States. Because the lands lie within a
National Forest, the lease requires Gulf’s acceptance of additional
127
Department of Agriculture conditions designed to combat the environmental
hazards normally incident to mining operations. Specific drilling permits
were also required from the Department of the Interior, Geological Survey,
and the Department of Agriculture, Forest Service. The Geological Survey,
which has formalized its procedures in accordance with the National
Environmental Policy Act of 1969 (42 U.S.C. §§ 4321 et seq.), approved the
proposed drilling on February 25, 1976, subject to 10 conditions which assure
continued and detailed supervision of Gulf’s activities. And on March 8, and
April 15, 1976, the Forest Service issued a drilling permit subject to
conditions focusing upon protection of the National Forest. Finally, Gulf is
subject to the extensive regulations governing oil and gas leasing (43 C.F.R.,
Part 3100) and both sub- surface and surface operations (30 C.F.R., Part 221)
promulgated by the Secretary of the Interior under his authority “to prescribe
necessary and proper rules and regulations to do any and all things necessary
to carry out and accomplish the purposes” of the act. (30 U.S.C. § 189.) And
since the lease concerns lands within a National Forest, Secretary of
Agriculture regulations governing oil and gas development are also
applicable. (36 C.F.R., Part 252.)
Despite this extensive federal scheme reflecting concern for the local
environment as well as development of the nation’s resources, Ventura
demands a right of final approval. Ventura seeks to prohibit further activity
by Gulf until it secures an Open Space Use Permit which may be issued on
whatever conditions Ventura determines appropriate, or which may never be
issued at all. The federal Government has authorized a specific use of federal
lands, and Ventura cannot prohibit that use, either temporarily or
permanently, in an attempt to substitute its judgment for that of Congress.
The present conflict is no less direct than that in Kleppe v. New Mexico,
supra. Like Kleppe, our case involves a power struggle between local and
federal governments concerning appropriate use of the public lands. That the
New Mexico authorities wished to engage in activity that Congress
prohibited, while the Ventura authorities wish to regulate conduct which
Congress has authorized is a distinction without a legal difference.
*****
Federal Power Commission v. Oregon (1955) 349 U.S. 435, presented a
similar question. In that case, the Federal Power Commission issued a license
to construct and operate a private hydroelectric plant on reserved lands of the
United States. The license included permission to construct a dam across the
Deschutes River. Oregon challenged the exclusive jurisdiction of the
Commission and contended that the licensee must acquire a state as well as
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a federal permit. The Court held that the Commission’s jurisdiction over the
reserved lands of the United States was proper under the Property Clause, and
that this jurisdiction was exclusive: “To allow Oregon to veto such use, by
requiring the State’s additional permission, would result in the very
duplication of regulatory control precluded by the First Iowa decision (First
Iowa Hydro-Electric Co-op. v. F.P.C.) 328 U.S. 152, 177-79. No such
duplication of authority is called for by the Act.” (Id. at 445. See Federal
Power Act, 16 U.S.C. §§ 791a-825r.)
Ventura attempts to distinguish Federal Power Commission v. Oregon on
the basis of reservations of local jurisdiction contained in sections 30 and 32
of the Mineral Lands Leasing Act (30 U.S.C. §§ 187, 189).5 It contends that
5
Before its 1978 amendment, section 30 provided in pertinent part:
“Each lease shall contain provisions for the purpose of insuring the
exercise of reasonable diligence, skill, and care in the operation of
said property; a provision that such rules for the safety and welfare of
the miners and for the prevention of undue waste as may be
prescribed by said Secretary shall be observed, including a restriction
of the workday to not exceeding eight hours in any one day for
underground workers except in cases of emergency; provisions
prohibiting the employment of any boy under the age of sixteen or the
employment of any girl or woman, without regard to age, in any mine
below the surface; provisions securing the workmen complete
freedom of purchase; provisions requiring the payment of wages at
least twice a month in lawful money of the United States, and
providing proper rules and regulations to insure the fair and just
weighing or measurement of the coal mined by each miner, and such
other provisions as he may deem necessary to insure the sale of the
production of such leased lands to the United States and to the public
at reasonable prices, for the protection of the interests of the United
States, for the prevention of monopoly, and for the safeguarding of
the public welfare. None of such provisions shall be in conflict with
the laws of the states in which the leased property is situated.”
Section 32 provides:
“The Secretary of the Interior is authorized to prescribe necessary and
proper rules and regulations and to do any and all things necessary to
carry out and accomplish the purposes of this chapter, also to fix and
determine the boundary lines of any structure, or oil or gas field, for
the purposes of this chapter. Nothing in this chapter shall be
129
although preemption was perhaps appropriate in light of the narrow
reservations of local jurisdiction in the Federal Power Act, a similar finding
in the present case is unwarranted given the broad savings provisions
contained in the Mineral Lands Leasing Act.
The proviso in § 187 provides that “[n]one of such provisions shall be in
conflict with the laws of the states in which the leased property is situated.”
(30 U.S.C. § 187.) But, as Gulf points out, by the use of the language “such
provisions,” the proviso relates only to the provisions of the preceding
sentence. These provisions relate to employment practices, prevention of
undue waste and monopoly, and diligence requirements. There is no mention
of land use planning controls. Moreover, the proviso assures only that the
Secretary of the Interior shall observe state standards in drafting the lease’s
terms. It is not a recognition of concurrent state jurisdiction.
Nor is the savings clause in § 189 of any avail. After delegating to the
Secretary of the Interior broad authority to prescribe rules and regulations
necessary to effect the purposes of the act, the section continues:
“Nothing in this chapter shall be construed or held to affect the rights
of the States or other local authority to exercise any rights which they
may have, including the right to levy and collect taxes upon
improvements, output of mines, or other rights, property, or assets of
any lessee of the United States.” (30 U.S.C. § 189.)
The proviso preserves to the states only “any rights which they may
have.” While this is an express recognition of the right of the states to tax
activities of the Government’s lessee pursuant to its lease, and has been relied
upon in part to uphold forced pooling and well spacing of federal mineral
lessee operations, the proviso cannot give authority to the state which it does
not already possess. Although state law may apply where it presents “no
significant threat to any identifiable federal policy or interest” (Texas Oil &
Gas Corp. v. Phillips Petroleum Co., supra, at 371), the states and their
subdivisions have no right to apply local regulations impermissibly
conflicting with achievement of a congressionally approved use of federal
lands and the proviso of § 189 does not alter this principle.
Finally, we are reassured in the correctness of our decision by policy
construed or held to affect the rights of the States or other local
authority to exercise any rights which they may have, including the
right to levy and collect taxes upon improvements, output of mines,
or other rights, property, or assets of any lessee of the United States.”
130
considerations implicitly reflected in the structure and operation of the
Mineral Lands Leasing Act of 1920 and the National Environmental Policy
Act of 1969. As Ventura recognized in filing its second amended complaint,
the National Environmental Protection Act (“NEPA”) and the guidelines,
regulations, and Executive Orders issued in pursuance of that act, mandate
extensive federal consideration and federal-local cooperation concerning the
local, environmental impact of federal action under the Mineral Lands
Leasing Act. If federal officials fail to comply with these requirements,
Ventura has a remedy against those officials.
Our decision does not mean that local interests will be unheard or
unprotected. In rejecting a local veto power while simultaneously guarding
local concerns under NEPA, local interests can be represented, the integrity
of the federal leases and drilling permits reconciling national energy needs
and local environmental interests can be protected, and the ultimate lessee
will be responsible to a single master rather than conflicting authority.
Although we recognize that federal incursions upon the historic police
power of the states are not to be found without good cause, we must affirm
because “under the circumstances of this particular case, [the local
ordinances] stand as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.” (Hines v. Davidowitz (1941) 312
U.S. 52, 67. “[W]here those state laws conflict . . . with other legislation
passed pursuant to the Property Clause, the law is clear: The state laws must
recede.” (Kleppe v. New Mexico, supra, 426 U.S. at 543.)
AFFIRMED.
California Coastal Commission v. Granite Rock Co.
Supreme Court of the United States, 1987.
480 U.S. 572.
O JUSTICE O’CONNOR delivered the opinion of the Court.
This case presents the question whether Forest Service regulations,
federal land use statutes and regulations, or the Coastal Zone Management
Act of 1972 (CZMA), 16 U.S.C. § 1451 et seq., pre-empt the California
Coastal Commission’s imposition of a permit requirement on operation of an
unpatented mining claim in a national forest.
I
131
Granite Rock Company is a privately owned firm that mines chemical and
pharmaceutical grade white limestone. Under the Mining Act of 1872, 17
Stat. 91, as amended, 30 U.S.C. § 22 et seq., a private citizen may enter
federal lands to explore for mineral deposits. If a person locates a valuable
mineral deposit on federal land, and perfects the claim by properly staking it
and complying with other statutory requirements, the claimant “shall have the
exclusive right of possession and enjoyment of all the surface included within
the lines of their locations,” 30 U.S.C. § 26, although the United States
retains title to the land. The holder of a perfected mining claim may secure
a patent to the land by complying with the requirements of the Mining Act
and regulations promulgated thereunder, see 43 C.F.R. § 3861.1 et seq.
(1986), and, upon issuance of the patent, legal title to the land passes to the
patent holder. Granite Rock holds unpatented mining claims on federally
owned lands on and around Mount Pico Blanco in the Big Sur region of Los
Padres National Forest.
From 1959 to 1980, Granite Rock removed small samples of limestone
from this area for mineral analysis. In 1980, in accordance with federal
regulations, see 36 C.F.R. § 228.1 et seq. (1986), Granite Rock submitted to
the Forest Service a 5-year plan of operations for the removal of substantial
amounts of limestone. The plan discussed the location and appearance of the
mining operation, including the size and shape of excavations, the location
of all access roads, and the storage of any overburden. The Forest Service
prepared an Environmental Assessment of the plan. The Assessment
recommended modifications of the plan, and the responsible Forest Service
Acting District Ranger approved the plan with the recommended
modifications in 1981. Shortly after Forest Service approval of the modified
plan of operations, Granite Rock began to mine.
Under the California Coastal Act (CCA), Cal. Pub. Res. Code Ann. §
30000 et seq. (West 1986), any person undertaking any development,
including mining, in the State’s coastal zone must secure a permit from the
California Coastal Commission. §§ 30106, 30600. According to the CCA,
the Coastal Commission exercises the State’s police power and constitutes
the State’s coastal zone management program for purposes of the federal
CZMA. In 1983 the Coastal Commission instructed Granite Rock to apply
for a coastal development permit for any mining undertaken after the date of
the Commission’s letter.
Granite Rock immediately filed an action in the United States District
Court for the Northern District of California seeking to enjoin officials of the
Coastal Commission from compelling Granite Rock to comply with the
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Coastal Commission permit requirement and for declaratory relief under 28
U.S.C. § 2201. Granite Rock alleged that the Coastal Commission permit
requirement was pre-empted by Forest Service regulations, by the Mining Act
of 1872, and by the CZMA. Both sides agreed that there were no material
facts in dispute. . . .
*****
III
Granite Rock does not argue that the Coastal Commission has placed any
particular conditions on the issuance of a permit that conflict with federal
statutes or regulations. Indeed, the record does not disclose what conditions
the Coastal Commission will place on the issuance of a permit. Rather,
Granite Rock argues, as it must given the posture of the case, that there is no
possible set of conditions the Coastal Commission could place on its permit
that would not conflict with federal law – that any state permit requirement
is per se pre-empted. The only issue in this case is this purely facial
challenge to the Coastal Commission permit requirement.
The Property Clause provides that “Congress shall have Power to dispose
of and make all needful Rules and Regulations respecting the Territory or
other Property belonging to the United States.” U.S. Const., Art. IV, § 3, cl.
2. This Court has “repeatedly observed” that “[t]he power over the public
land thus entrusted to Congress is without limitations.” Kleppe v. New
Mexico, 426 U.S. 529, 539 (1976). Granite Rock suggests that the Property
Clause not only invests unlimited power in Congress over the use of federally
owned lands, but also exempts federal lands from state regulation whether or
not those regulations conflict with federal law. In Kleppe, 426 U.S., at 543,
we considered “totally unfounded” the assertion that the Secretary of the
Interior had even proposed such an interpretation of the Property Clause. We
made clear that “the State is free to enforce its criminal and civil laws” on
federal land so long as those laws do not conflict with federal law. Ibid. The
Property Clause itself does not automatically conflict with all state regulation
of federal land. . . .
We agree with Granite Rock that the Property Clause gives Congress
plenary power to legislate the use of the federal land on which Granite Rock
holds its unpatented mining claim. The question in this case, however, is
whether Congress has enacted legislation respecting this federal land that
would pre-empt any requirement that Granite Rock obtain a California
Coastal Commission permit. To answer this question we follow the preemption analysis by which the Court has been guided on numerous occasions:
133
“[S]tate law can be pre-empted in either of two general ways. If
Congress evidences an intent to occupy a given field, any state law
falling within that field is pre-empted. * * * If Congress has not
entirely displaced state regulation over the matter in question, state
law is still pre-empted to the extent it actually conflicts with federal
law, that is, when it is impossible to comply with both state and
federal law, * * * or where the state law stands as an obstacle to the
accomplishment of the full purposes and objectives of Congress.”
Silkwood v. Kerr-McGee Corp., supra, 464 U.S. at 248.
A
Granite Rock and the United States as amicus have made basically three
arguments in support of a finding that any possible state permit requirement
would be pre-empted. First, Granite Rock alleges that the Federal
Government’s environmental regulation of unpatented mining claims in
national forests demonstrates an intent to pre-empt any state regulation.
Second, Granite Rock and the United States assert that indications that state
land use planning over unpatented mining claims in national forests is preempted should lead to the conclusion that the Coastal Commission permit
requirement is pre-empted. Finally, Granite Rock and the United States
assert that the CZMA, by excluding federal lands from its definition of the
coastal zone, declared a legislative intent that federal lands be excluded from
all state coastal zone regulation. We conclude that these federal statutes and
regulations do not, either independently or in combination, justify a facial
challenge to the Coastal Commission permit requirement.
Granite Rock concedes that the Mining Act of 1872, as originally passed,
expressed no legislative intent on the as yet rarely contemplated subject of
environmental regulation. In 1955, however, Congress passed the Multiple
Use Mining Act, 69 Stat. 367, 30 U.S.C. § 601 et seq., which provided that
the Federal Government would retain and manage the surface resources of
subsequently located unpatented mining claims. 30 U.S.C. § 612(b).
Congress has delegated to the Secretary of Agriculture the authority to make
“rules and regulations” to “regulate [the] occupancy and use” of national
forests. 16 U.S.C. § 551. Through this delegation of authority, the
Department of Agriculture’s Forest Service has promulgated regulations so
that “use of the surface of National Forest System lands” by those such as
Granite Rock, who have unpatented mining claims authorized by the Mining
Act of 1872, “shall be conducted so as to minimize adverse environmental
impacts on National Forest System surface resources.” 36 C.F.R. §§ 228.1,
228.3(d) (1986). It was pursuant to these regulations that the Forest Service
134
approved the Plan of Operations submitted by Granite Rock. If, as Granite
Rock claims, it is the federal intent that Granite Rock conduct its mining
unhindered by any state environmental regulation, one would expect to find
the expression of this intent in these Forest Service regulations. As we
explained in Hillsborough County v. Automated Medical Laboratories, Inc.,
471 U.S. 707, 718 (1985), it is appropriate to expect an administrative
regulation to declare any intention to pre-empt state law with some
specificity:
“[B]ecause agencies normally address problems in a detailed manner
and can speak through a variety of means, . . . we can expect that they
will make their intentions clear if they intend for their regulations to
be exclusive. Thus, if an agency does not speak to the question of
pre-emption, we will pause before saying that the mere volume and
complexity of its regulations indicate that the agency did in fact
intend to pre-empt.”
Upon examination, however, the Forest Service regulations that Granite
Rock alleges pre-empt any state permit requirement not only are devoid of
any expression of intent to pre-empt state law, but rather appear to assume
that those submitting plans of operations will comply with state laws. The
regulations explicitly require all operators within the national forests to
comply with state air quality standards, 36 C.F.R. § 228.8(a) (1986), state
water quality standards, § 228.8(b), and state standards for the disposal and
treatment of solid wastes, § 228.8(c). The regulations also provide that,
pending final approval of the plan of operations, the Forest Service officer
with authority to approve plans of operation “will approve such operations
as may be necessary for timely compliance with the requirements of Federal
and State laws. . . .” § 228.5(b). Finally, the final subsection of § 228.8,
“[r]equirements for environmental protection,” provides:
“(h) Certification or other approval issued by State agencies or other
Federal agencies of compliance with laws and regulations relating to
mining operations will be accepted as compliance with similar or
parallel requirements of these regulations.”
It is impossible to divine from these regulations, which expressly
contemplate coincident compliance with state law as well as with federal law,
an intention to pre-empt all state regulation of unpatented mining claims in
national forests. Neither Granite Rock nor the United States contends that
these Forest Service regulations are inconsistent with their authorizing
statutes.
Given these Forest Service regulations, it is unsurprising that the Forest
135
Service team that prepared the Environmental Assessment of Granite Rock’s
plan of operation, as well as the Forest Service officer that approved the plan
of operation, expected compliance with state as well as federal law. The Los
Padres National Forest Environmental Assessment of the Granite Rock plan
stated that “Granite Rock is responsible for obtaining any necessary permits
which may be required by the California Coastal Commission.” The
Decision Notice and Finding of No Significant Impact issued by the Acting
District Ranger accepted Granite Rock’s plan of operation with
modifications, stating:
“The claimant, in exercising his rights granted by the Mining Law of
1872, shall comply with the regulations of the Departments of
Agriculture and Interior. The claimant is further responsible for
obtaining any necessary permits required by State and/or county laws,
regulations and/or ordinance.”
B
The second argument proposed by Granite Rock is that federal land
management statutes demonstrate a legislative intent to limit States to a
purely advisory role in federal land management decisions, and that the
Coastal Commission permit requirement is therefore pre-empted as an
impermissible state land use regulation.
In 1976 two pieces of legislation were passed that called for the
development of federal land use management plans affecting unpatented
mining claims in national forests. Under the Federal Land Policy and
Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq.,
the Department of the Interior’s Bureau of Land Management is responsible
for managing the mineral resources on federal forest lands; under the
National Forest Management Act (NFMA), 90 Stat. 2949, 16 U.S.C. §§
1600-1614, the Forest Service under the Secretary of Agriculture is
responsible for the management of the surface impacts of mining on federal
forest lands. Granite Rock, as well as the Solicitor General, point to aspects
of these statutes indicating a legislative intent to limit States to an advisory
role in federal land management decisions. For example, the NFMA directs
the Secretary of Agriculture to “develop, maintain, and, as appropriate, revise
land and resource management plans for units of the National Forest System,
coordinated with the land and resource management planning processes of
State and local governments and other Federal agencies,” 16 U.S.C. §
1604(a). The FLPMA directs that land use plans developed by the Secretary
of the Interior “shall be consistent with State and local plans to the maximum
extent [the Secretary] finds consistent with Federal law,” and calls for the
136
Secretary, “to the extent he finds practical,” to keep apprised of state land use
plans, and to “assist in resolving, to the extent practical, inconsistencies
between Federal and non-Federal Government plans.” 43 U.S.C. §
1712(c)(9).
For purposes of this discussion and without deciding this issue, we may
assume that the combination of the NFMA and the FLPMA pre-empts the
extension of state land use plans onto unpatented mining claims in national
forest lands. The Coastal Commission asserts that it will use permit
conditions to impose environmental regulation. See Cal. Pub. Res. Code
Ann. § 30233 (West 1986) (quality of coastal waters); § 30253(2) (erosion);
§ 30253(3) (air pollution); § 30240(b) (impact on environmentally sensitive
habitat areas).
While the CCA gives land use as well as environmental regulatory
authority to the Coastal Commission, the state statute also gives the Coastal
Commission the ability to limit the requirements it will place on the permit.
The CCA declares that the Coastal Commission will “provide maximum state
involvement in federal activities allowable under federal law or regulations.
. . .” Cal. Pub. Res. Code Ann. § 30004 (West 1986). Since the state statute
does not detail exactly what state standards will and will not apply in
connection with various federal activities, the statute must be understood to
allow the Coastal Commission to limit the regulations it will impose in those
circumstances. In the present case, the Coastal Commission has consistently
maintained that it does not seek to prohibit mining of the unpatented claim
on national forest land. Defendants’ Memorandum of Points and Authorities
in Opposition to Plaintiff’s Motion for Summary Judgment in No. C-83-5137
(ND Cal.), pp. 41-42. (“Despite Granite Rock’s characterization of Coastal
Act regulation as a ‘veto’ or ban of mining, Granite Rock has not applied for
any coastal permit, and the State . . . has not indicated that it would in fact
ban such activity. . . . [T]he question presented is merely whether the state
can regulate uses rather than prohibit them. Put another way, the state is not
seeking to determine basic uses of federal land: rather it is seeking to regulate
a given mining use so that it is carried out in a more environmentally
sensitive and resource-protective fashion”).
The line between environmental regulation and land use planning will not
always be bright; for example, one may hypothesize a state environmental
regulation so severe that a particular land use would become commercially
impracticable. However, the core activity described by each phrase is
undoubtedly different. Land use planning in essence chooses particular uses
for the land; environmental regulation, at its core, does not mandate particular
137
uses of the land but requires only that, however the land is used, damage to
the environment is kept within prescribed limits. Congress has indicated its
understanding of land use planning and environmental regulation as distinct
activities. As noted above, 43 U.S.C. § 1712(c)(9) requires that the Secretary
of the Interior’s land use plans be consistent with state plans only “to the
extent he finds practical.” The immediately preceding subsection, however,
requires that the Secretary’s land use plans “provide for compliance with
applicable pollution control laws, including State and Federal air, water,
noise, or other pollution standards or implementation plans.” § 1712(c)(8).
Congress has also illustrated its understanding of land use planning and
environmental regulation as distinct activities by delegating the authority to
regulate these activities to different agencies. The stated purpose of part 228,
subpart A of the Forest Service regulations, 36 C.F.R. § 1 (1986), is to “set
forth rules and procedures” through which mining on unpatented claims in
national forests “shall be conducted so as to minimize adverse environmental
impacts on National Forest System surface resources.” The next sentence of
the subsection, however, declares that “[i]t is not the purpose of these
regulations to provide for the management of mineral resources; the
responsibility for managing such resources is in the Secretary of the Interior.”
Congress clearly envisioned that although environmental regulation and land
use planning may hypothetically overlap in some instances, these two types
of activity would in most cases be capable of differentiation. Considering the
legislative understanding of environmental regulation and land use planning
as distinct activities, it would be anomalous to maintain that Congress
intended any state environmental regulation of unpatented mining claims in
national forests to be per se pre-empted as an impermissible exercise of state
land use planning. Congress’ treatment of environmental regulation and land
use planning as generally distinguishable calls for this Court to treat them as
distinct, until an actual overlap between the two is demonstrated in a
particular case.
Granite Rock suggests that the Coastal Commission’s true purpose in
enforcing a permit requirement is to prohibit Granite Rock’s mining entirely.
By choosing to seek injunctive and declaratory relief against the permit
requirement before discovering what conditions the Coastal Commission
would have placed on the permit, Granite Rock has lost the possibility of
making this argument in this litigation. Granite Rock’s case must stand or
fall on the question whether any possible set of conditions attached to the
Coastal Commission’s permit requirement would be pre-empted. As noted
in the previous section, the Forest Service regulations do not indicate a
138
federal intent to pre-empt all state environmental regulation of unpatented
mining claims in national forests. Whether or not state land use planning
over unpatented mining claims in national forests is pre-empted, the Coastal
Commission insists that its permit requirement is an exercise of
environmental regulation rather than land use planning. In the present
posture of this litigation, the Coastal Commission’s identification of a
possible set of permit conditions not pre-empted by federal law is sufficient
to rebuff Granite Rock’s facial challenge to the permit requirement. This
analysis is not altered by the fact that the Coastal Commission chooses to
impose its environmental regulation by means of a permit requirement. If the
Federal Government occupied the field of environmental regulation of
unpatented mining claims in national forests – concededly not the case – then
state environmental regulation of Granite Rock’s mining activity would be
pre-empted, whether or not the regulation was implemented through a permit
requirement. Conversely, if reasonable state environmental regulation is not
pre-empted, then the use of a permit requirement to impose the state
regulation does not create a conflict with federal law where none previously
existed. The permit requirement itself is not talismanic.
*****
IV
Granite Rock’s challenge to the California Coastal Commission’s permit
requirement was broad and absolute; our rejection of that challenge is
correspondingly narrow. Granite Rock argued that any state permit
requirement, whatever its conditions, was per se pre-empted by federal law.
To defeat Granite Rock’s facial challenge, the Coastal Commission needed
merely to identify a possible set of permit conditions not in conflict with
federal law. The Coastal Commission alleges that it will use its permit
requirement to impose reasonable environmental regulation. Rather than
evidencing an intent to pre-empt such state regulation, the Forest Service
regulations appear to assume compliance with state laws. Federal land use
statutes and regulations, while arguably expressing an intent to pre-empt state
land use planning, distinguish environmental regulation from land use
planning. Finally, the language and legislative history of the CZMA
expressly disclaim an intent to pre-empt state regulation.
Following an examination of the “almost impenetrable maze of arguably
relevant legislation,” Justice Powell concludes that “[i]n view of the Property
Clause . . . , as well as common sense, federal authority must control . . . .”
As noted above, the Property Clause gives Congress plenary power over the
federal land at issue; however, even within the sphere of the Property Clause,
139
state law is pre-empted only when it conflicts with the operation or objectives
of federal law, or when Congress “evidences an intent to occupy a given
field,” Silkwood v. Kerr-McGee Corp., 464 U.S. at 248. The suggestion that
traditional pre-emption analysis is inapt in this context can be justified, if at
all, only by the assertion that the state regulation in this case would be
“duplicative.” The description of the regulation as duplicative, of course, is
based on Justice Powell’s conclusions that land use regulation and
environmental regulation are indistinguishable, and that any state permit
requirement, by virtue of being a permit requirement rather than some other
form of regulation, would duplicate federal permit requirements. Because we
disagree with these assertions, we apply the traditional pre-emption analysis
which requires an actual conflict between state and federal law, or a
congressional expression of intent to pre- empt, before we will conclude that
state regulation is pre-empted.
Contrary to the assertion of Justice Powell that the Court today gives
States power to impose regulations that “conflict with the views of the Forest
Service,” we hold only that the barren record of this facial challenge has not
demonstrated any conflict. We do not, of course, approve any future
application of the Coastal Commission permit requirement that in fact
conflicts with federal law. Neither do we take the course of condemning the
permit requirement on the basis of as yet unidentifiable conflicts with the
federal scheme.
The judgment of the Court of Appeals is reversed, and the case is
remanded for further proceedings consistent with this opinion.
O JUSTICE POWELL, with whom JUSTICE STEVENS joins, concurring in part
and dissenting in part.
***
II
The second part of the Court’s analysis considers both the NFMA and the
FLPMA. The Court assumes, that these statutes “pre-emp[t] the extension
of state land use plans onto unpatented mining claims in national forest
lands.” But the Court nevertheless holds that the Coastal Commission can
require Granite Rock to secure a state permit before conducting mining
operations in a national forest. This conclusion rests on a distinction between
“land use planning” and “environmental regulation.” In the Court’s view, the
NFMA and the FLPMA indicate a congressional intent to pre-empt state land
use regulations, but not state environmental regulations. I find this analysis
140
unsupportable, either as an interpretation of the governing statutes or as a
matter of logic.
The basis for the alleged distinction is that Congress has understood land
use planning and environmental regulation to be distinct activities. The only
statute cited for this proposition is § 202(c)(8) of the FLPMA, 43 U.S.C. §
1712(c)(8), that requires the Secretary of the Interior’s land use plans to
“provide for compliance with applicable pollution control laws, including
State and Federal air, water, noise, or other pollution standards or
implementation plans.” But this statute provides little support for the
majority’s analysis. A section mandating consideration of environmental
standards in the formulation of land use plans does not demonstrate a general
separation between “land use planning” and “environmental regulation.”
Rather, § 202(c)(8) recognizes that the Secretary’s land use planning will
affect the environment, and thus directs the Secretary to comply with certain
pollution standards.
Nor does this section support the Court’s ultimate conclusion, that
Congress intended the Secretary’s plans to comply with all state
environmental regulations. . . . [O]ther federal statutes require compliance
with the listed standards. Also, because the FLPMA requires compliance
only with “applicable” standards, it is difficult to treat this one section as an
independent and controlling command that the Secretary comply with all state
environmental standards. Rather, viewing the complex of statutes and
regulations as a whole, it is reasonable to view § 202(c)(8) simply as a
recognition that the Secretary’s plans must comply with standards made
applicable to federal activities by other federal laws.
The only other authority cited by the Court for the distinction between
environmental regulation and land use planning is a Forest Service regulation
stating that the Forest Service’s rules do not “provide for the management of
mineral resources,” 36 C.F.R. § 228.1 (1986). From this, the Court concludes
that the Forest Service enforces environmental regulation but does not engage
in land use planning. This conclusion misunderstands the division of
authority between the BLM and the Forest Service. . . . [T]he BLM’s
management of minerals does not entail management of surface resources or
the evaluation of surface impacts. Indeed, the Court acknowledges that the
Forest Service is “responsible for the management of the surface impacts of
mining on federal forest lands.” The Forest Planning Act and the NFMA
direct the Secretary of Agriculture and the Forest Service to develop
comprehensive plans for the use of forest resources. Similarly, the Organic
Administration Act commands the Secretary of Agriculture to promulgate
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regulations governing the “occupancy and use” of national forests, 16 U.S.C.
§ 551. These regulations are integral to the Forest Service’s management of
national forests. To view them as limited to environmental concerns ignores
both the Forest Service’s broader responsibility to manage the use of forest
resources and the federal policy of making mineral resources accessible to
development.5 The Coastal Commission has no interest in the matters within
the jurisdiction of the BLM; the regulations that it seeks to impose concern
matters wholly within the control of the Forest Service. Thus, this regulation
does not support the Court’s distinction between environmental regulation
and land use planning.
The most troubling feature of the Court’s analysis is that it is divorced
from the realities of its holding. The Court cautions that its decision allows
only “reasonable” environmental regulation and that it does not give the
Coastal Commission a veto over Granite Rock’s mining activities. But if the
Coastal Commission can require Granite Rock to secure a permit before
allowing mining operations to proceed, it necessarily can forbid Granite Rock
from conducting these operations. It may be that reasonable environmental
regulations would not force Granite Rock to close its mine. This misses the
point. The troubling fact is that the Court has given a state authority – here
5
The lack of statutory support for the Court’s distinction is not surprising,
because – with all respect – it seems to me that the distinction is one without
a rational difference. As the Court puts it: “Land use planning in essence
chooses particular uses for the land; environmental regulation, at its core,
does not mandate particular uses of the land but requires only that, however
the land is used, damage to the environment is kept within prescribed limits.”
This explanation separates one of the reasons for Forest Service decisions
from the decisions themselves. In considering a proposed use of a parcel of
land in the national forest, the Forest Service regulations consider the damage
the use will cause to the environment as well as the federal interest in making
resources on public lands accessible to development. The Forest Service may
decide that the proposed use is appropriate, that it is inappropriate, or that it
would be appropriate only if further steps are taken to protect the
environment. The Court divides this decision into two distinct types of
regulation and holds that Congress intended to pre-empt duplicative state
regulation of one part but not the other. Common sense suggests that it
would be best for one expert federal agency, the Forest Service, to consider
all these factors and decide what use best furthers the relevant federal
policies.
142
the Coastal Commission – the power to prohibit Granite Rock from
exercising the rights granted by its Forest Service permit. This abdication of
federal control over the use of federal land is unprecedented.
III
Apart from my disagreement with the Court’s characterization of the
governing statutes, its pre-emption analysis accords little or no weight to both
the location of the mine in a national forest, and the comprehensive nature of
the federal statutes that authorized Granite Rock’s federal permit.
One important factor in pre-emption analysis is the relative weight of the
state and federal interests in regulating a particular matter. The Court
recognizes that the mine in this case is located in a national forest, but
curiously attaches no significance to that fact. The Property Clause
specifically grants Congress “Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to the
United States.” U.S. Const., Art. IV, § 3, cl. 2. This provision may not of its
own force pre-empt the authority of a State to regulate activities on federal
land, but it clearly empowers Congress to limit the extent to which a State
may regulate in this area. In light of this clear constitutional allocation of
power, the location of the mine in a national forest should make us less
reluctant to find pre-emption than we are in other contexts.
The state regulation in this case is particularly intrusive because it takes
the form of a separate, and duplicative, permit system. As the Court has
recognized, state permit requirements are especially likely to intrude on
parallel federal authority, because they effectively give the State the power
to veto the federal project. See International Paper Co. v. Ouellette, 479 U.S.
481, 495; First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S. 152, 164
(1946). Although the intrusive effect of duplicative state permit systems may
not lead to a finding of pre-emption in all cases, it certainly is relevant to a
careful pre-emption analysis.
The dangers of duplicative permit requirements are evident in this case.
The federal permit system reflects a careful balance between two important
federal interests: the interest in developing mineral resources on federal land,
and the interest in protecting our national forests from environmental harm.
The Forest Service’s issuance of a permit to Granite Rock reflects its
conclusion that environmental concerns associated with Granite Rock’s mine
do not justify restricting mineral development on this portion of a federal
forest. Allowing the Coastal Commission to strike a different balance
necessarily conflicts with the federal system.
143
Furthermore, Congress already has provided that affected States must be
afforded an opportunity to communicate their concerns to the federal
regulators charged with deciding how federal lands should be used. Because
Congress has ensured that any federal decision will reflect the environmental
concerns of affected States, a duplicative system of permits would serve no
purpose. Indeed, the potential for conflict between state and federal decisions
has obvious disadvantages.
IV
In summary, it is fair to say that, commencing in 1872, Congress has
created an almost impenetrable maze of arguably relevant legislation in no
less than a half-dozen statutes, augmented by the regulations of two
Departments of the Executive. There is little cause for wonder that the
language of these statutes and regulations has generated considerable
confusion. There is an evident need for Congress to enact a single,
comprehensive statute for the regulation of federal lands.
Having said this, it is at least clear that duplicative federal and state
permit requirements create an intolerable conflict in decisionmaking. In view
of the Property Clause of the Constitution, as well as common sense, federal
authority must control with respect to land “belonging to the United States.”
Yet, the Court’s opinion today approves a system of twofold authority with
respect to environmental matters. The result of this holding is that state
regulators, whose views on environmental and mineral policy may conflict
with the views of the Forest Service, have the power, with respect to federal
lands, to forbid activity expressly authorized by the Forest Service. I dissent.
O JUSTICE SCALIA , with whom JUSTICE WHITE joins, dissenting.
. . . In my view, the merits of this case must be decided on simpler and
narrower grounds than those addressed by the Court’s opinion. It seems to
me ultimately irrelevant whether state environmental regulation has been preempted with respect to federal lands, since the exercise of state power at issue
here is not environmental regulation but land use control. The Court errs in
entertaining the Coastal Commission’s contention that “its permit
requirement is an exercise of environmental regulation,” and mischaracterizes
the issue when it describes it to be whether “any state permit requirement,
whatever its conditions, [is] per se pre-empted by federal law.” We need not
speculate as to what the nature of this permit requirement was. We are not
dealing with permits in the abstract, but with a specific permit, purporting to
require application of particular criteria, mandated by a numbered section of
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a known California law. That law is plainly a land use statute, and the permit
that statute requires Granite Rock to obtain is a land use control device. Its
character as such is not altered by the fact that the State may now be
agreeable to issuing it so long as environmental concerns are satisfied. Since,
as the Court’s opinion quite correctly assumes, state exercise of land use
authority over federal lands is pre-empted by federal law, California’s permit
requirement must be invalid.
The permit at issue here is a “coastal development permit,” required by
the California Coastal Act, Cal. Pub. Res. Code Ann. § 30000 et seq. (West
1986). It is provided for by § 30600 of Chapter 7 of that Act (entitled
“Development Controls”), which states that a person wishing to undertake
any “development” in the coastal zone – a term defined to include
construction, mining, and “change in the density or intensity of use of land,”
§ 30106 – must obtain a coastal development permit from a local government
or the California Coastal Commission. The permit is to be granted if the
proposed development is in conformity with a state-approved local coastal
program or, where no such program yet exists, if the proposed development
“is in conformity with the provisions of Chapter 3 . . . and . . . will not
prejudice the ability of the local government to prepare a local coastal
program that is in conformity with Chapter 3.” § 30604. The “local coastal
programs” to which these provisions refer consist of two parts: (1) a land use
plan, and (2) zoning ordinances, zoning maps, and other implementing
actions. §§ 30511(b), 30512, 30513. Chapter 3 of the Act, with which these
local coastal programs must comply, consists largely of land use prescriptions
– for example, that developments providing public recreational opportunities
shall be preferred, § 30213; that oceanfront land suitable for recreational use
shall be protected for recreational use and development, § 30221; that
commercial recreational facilities shall have priority over private residential,
general industrial, or general commercial development, but not over
agriculture or coastal-dependent industry, § 30222; that oceanfront land
suitable for coastal-dependent aquaculture shall be protected for that use, §
30222.5; that facilities serving the commercial fishing and recreational
boating industries shall be protected and, where feasible, upgraded, § 30234;
that the maximum amount of prime agricultural land shall be maintained in
agricultural production, § 30241; that all other lands suitable for agricultural
use shall not be converted to nonagricultural use except in specified
circumstances, § 30242; that conversions of coastal commercial timberlands
in units of commercial size to other uses shall be limited to providing for
necessary timber processing and related facilities, § 30243; that the location
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and amount of new development should maintain and enhance public access
to the coast, § 30252; that coastal-dependent developments shall have priority
over other developments on or near the shoreline, § 30255; and that coastaldependent industrial facilities shall be encouraged to locate or expand within
existing sites, § 30260.
It could hardly be clearer that the California Coastal Act is land use
regulation. . . .
. . . Even if, as the State has argued before us and as the Court has been
willing to postulate, California intended to employ the land use permit in this
case only as a device for exacting environmental assurances, the power to
demand that permit nevertheless hinges upon the State’s power to do what the
statutory permitting requirements authorize: to control land use. The legal
status of the matter is that Granite Rock, having received land use approval
from the Federal Government, has been requested to obtain land use approval
from the State of California. If state land use regulation is in fact pre-empted
in this location, there is no justification for requiring Granite Rock to go
through the motions of complying with that ultra vires request on the chance
that permission will be granted with no more than environmental limitations.
. . . As the Ninth Circuit said in a similar case that we summarily affirmed:
“The issue is whether [the State] has the power of ultimate control
over the Government’s lessee, and this issue persists whether or not
a use permit would eventually be granted.” Ventura County v. Gulf
Oil Corp., 601 F.2d 1080, 1085 (1979), summarily aff’d, 445 U.S.
947 (1980).
Even on the assumption, therefore, that California was only using its land
use permit requirement as a means of enforcing its environmental laws,
Granite Rock was within its rights to ignore that requirement – unless
California has land use authority over the federal lands in question.
*****
On any analysis, therefore, the validity of California’s demand for permit
application, and the lawfulness of Granite Rock’s refusal, depend entirely
upon whether California has authority to regulate land use at Pico Blanco.
The Court is willing to assume that California lacks such authority on account
of the National Forest Management Act of 1976 (NFMA), 16 U.S.C. § 1600
et seq., and the Federal Land Policy and Management Act of 1976 (FLPMA),
43 U.S.C. § 1701 et seq. I believe that assumption is correct. Those statutes,
as well as the CZMA, require federal officials to coordinate and consult with
the States regarding use of federal lands in order to assure consistency with
146
state land use plans to the maximum extent compatible with federal law and
objectives. 16 U.S.C. §§ 1456(c)(3)(A), 1604(a); 43 U.S.C. § 1712(c).
Those requirements would be superfluous, and the limitation upon federal
accommodation meaningless, if the States were meant to have independent
land use authority over federal lands. . . .
*****
Any competent lawyer, faced with a demand from the California Coastal
Commission that Granite Rock obtain a § 30600 coastal development permit
for its Pico Blanco operations, would have responded precisely as Granite
Rock’s lawyers essentially did: Our use of federal land has been approved
by the Federal Government, thank you, and does not require the approval of
the State. We should not allow California to claim, in the teeth of the plain
language of its legislation, and in violation of the assurance it gave to the
Federal Government by designating its Coastal Act as a coastal management
program under the CZMA, that it would use the permitting requirement to
achieve, not land use management, but only environmental controls. We
should particularly not give ear to that claim since it was not the
representation made to Granite Rock when application for the permit was
demanded. If environmental control is, as California now assures us, its
limited objective in this case, then it must simply achieve that objective by
means other than a land use control scheme. If and when it does so, we may
have occasion to decide (as we need not today) whether state environmental
controls are also pre-empted. More likely, however, the question will not
arise in the future, as it has not arisen in the past, because of the Federal
Government’s voluntary accommodation of state environmental concerns –
an accommodation that could not occur here only because California
neglected to participate in the proceedings.
*****
NOTES AND QUESTIONS
1. Application of state law on federal land. Do you agree with the
Supreme Court’s decision in Omaechevarria? Would a decision that state
law does not apply to activities that occur on the federal public lands have
negative ramifications? What precisely is the holding of Omaechevarria?
May a state enforce its criminal and civil laws, including taxation and
regulatory statutes, on the federal public lands only where Congress has
specifically allowed for the application of state law, or in all cases where
147
Congress has not specifically prohibited the application of state law? Does
the answer to this question depend on the character of the state law and the
nature of the activity governed by the state law? For example, absent
congressional legislation on the subject, can a state tax the gross receipts of
oil and gas extracted from the public lands pursuant to a lease granted by the
United States?
2. Enclosures. Do you agree with the Court’s conclusion that the Idaho
statute challenged in Omaechevarria did not violate the Unlawful Inclosures
Act? In resolving preemption claims in the federal public lands area, should
the courts presume that Congress intended to regulate narrowly or
expansively? For example, the Idaho law created an absolute right based on
prior occupancy for cattle owners to exclude sheepherders from the federal
public lands within the state. This appears to violate section 3 of the
Unlawful Inclosures Act, 43 U.S.C. § 1063. Yet, the Supreme Court
construed the Act narrowly to apply only to exclusions that result from
fencing or other type of enclosure. Was this narrow interpretation of the
statute justified?
3. Congressional accommodation and preemption. The Supremacy
Clause is the basis for federal preemption of state laws. Historically, the
scope of federal power to supersede or to invalidate state laws rarely became
an issue in the public land context, because Congress did not often seek to
exercise that power. As Omaechevarria indicates, during the nineteenth and
early twentieth centuries state law was commonly used to resolve disputes
between parties on federal public lands. Another prominent example is Irwin
v. Phillips, 5 Cal. 140 (1855), in which the California Supreme Court adopted
the miners’ custom of prior appropriation as the law of California to govern
disputes over water on the public lands. The Court observed that neither
Congress nor the California legislature had spoken to the question.
In the last several decades, however, Congress has enacted numerous
environmental and land use statutes that govern the federal public lands.
When these federal laws intersect with state laws, the courts often have to
resolve perceived conflicts.
4. The basics of preemption. Congressional intent is the main criterion for
resolving preemption cases. Congress (or an administrative agency acting
under delegated authority) can preempt state law in several ways. First, a
statute or regulation may include explicit preemptive language. Second,
preemption may occur either when it is impossible to comply with both state
and federal law, see, e.g., Kleppe v. New Mexico, 426 U.S. 529, or when the
state law stands as an obstacle to accomplishment of federal goals. Hines v.
148
Davidowitz, 312 U.S. 52, 73-74 (1941). Third, the courts have found an
implicit congressional intent to preempt state law if the federal regulatory
scheme is so pervasive, and the federal interest so overriding, that there is no
room even for state laws that are consistent with the federal law. See, e.g.,
Pacific Gas & Electric Co. v. State Energy Resources Conservation and
Development Commission, 416 U.S. 190, 203-04 (1983); Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947). While courts are willing to find
implied preemption when there is a clear indication of Congressional intent,
the Supreme Court has stated that the “exercise of federal supremacy is not
lightly to be presumed,” Schwartz v. Texas, 344 U.S. 199, 203 (1952), and
that a court should “start with the assumption that the historic police powers
of the States [are] not superseded by the Federal Act unless that was the clear
and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp, 435
U.S. at 230.
5. Preemption on federal lands. Marla Mansfield has provided a useful
framework for analysis of federal-state relations in the field of federal public
land law:
Unlike the federal government, which is one of enumerated powers,
states have a general police power, which enables them to legislate
for the general welfare and safety of their citizens. State and federal
spheres of influence sometimes overlap, making choice of law an
issue. Within enclaves, the search for applicable law begins with the
presumption that federal law is exclusive; state law will operate only
if there is a reservation of jurisdiction, assimilation by statute, or
sovereignty transfer. On non-enclave public lands, the interpretive
process is reversed. State law operates unless federal usurpation
exists. In that case, federal law may preempt generally applicable
state law.
Marla E. Mansfield, A Primer of Public Land Law, 68 Wash. L. Rev. 801,
813 (1993). Professor Mansfield also has lamented that Congress seldom
provides clear directives as to how conflicts between state and federal law
should be resolved:
Congress does address preemption or federal-state relationships,
but it often creates more question than it answers. The Federal Land
Policy and Management Act (“FLPMA”), the organic act for the
BLM, provides several examples. In section 701, it states that
“[n]othing in this Act shall be construed as . . . expanding . . . or
diminishing . . . Federal or State jurisdiction . . . in water resources
development or control.” This provision does not clarify the
149
respective spheres of the two jurisdictions. In another section,
Congress directs the BLM to specify conditions for rights-of-way, but
also requires compliance with two sets of standards: “applicable air
and water quality standards established by or pursuant to applicable
. . . State law” and state standards on environmental and safety
matters “if those standards are more stringent than applicable Federal
standards.” Obviously, these formulations create new questions,
namely what laws are “applicable” and what standards are more
stringent. At another point in FLPMA, Congress requires BLM
planning to be consistent with state and local land use plans, but only
to the extent that federal purposes are not thwarted. These last two
express provisions on federal-state relationships only give guidance
on congressional priorities, whereas express preemption would
clearly mandate that federal law prevail.
Id. at 815.
6. Judicial confusion. Granite Rock and Ventura offer contrasting visions
of the proper role for state regulation of federally licensed uses of the federal
public lands. Can the two decisions be reconciled? Note, as Justice Scalia
points out in dissent, that the Supreme Court summarily affirmed the Ninth
Circuit’s decision in Ventura.
7. The meaning of Granite Rock. Precisely what is the holding of Granite
Rock?
What is the Court’s rationale for distinguishing between
environmental and land use regulation? The Court assumes, without
deciding, that FLPMA and the NFMA preempt “the extension of state land
use plans onto unpatented mining claims in national forest lands.” On the
basis of the excerpts from these statutes reproduced in the opinion, do you
agree with the Court’s assumption?
Can environmental and land use regulation be effectively distinguished?
Suppose that the California Coastal Commission granted Granite Rock a
permit to mine, but imposed a condition requiring that the company restore
the land to its approximate original contour and condition at the conclusion
of its mining activities. Would you describe such a condition as
“environmental” or “land use” regulation? Under the Court’s decision,
would that condition be permissible? Would it make a difference to your
conclusion if Granite Rock were able to show that the state’s condition would
make mining on the site economically infeasible?
Under the Granite Rock standard, which (if any) of the following state
regulations would be preempted?
150
a) The California Coastal Commission requires Granite Rock to
locate its mine-tailings piles at least 200 yards from any stream
and to build a containment barrier around the tailings sites. The
purpose of this requirement is to prevent erosion and the
discharge of debris into streams that flow through or are adjacent
to the site, which eventually discharge to the Pacific Ocean.
b) The Coastal Commission includes in Granite Rock’s permit a
debris discharge limit of 100 cubic yards per month. The United
States Forest Service’s regulations permit the company to
discharge 200 cubic yards per month.
c) Same facts as Hypothetical No. 2, except Granite Rock produces
evidence that it cannot profitably operate the mine in compliance
with the state’s 100 cubic yard per month discharge limitation.
8. Striking the balance. Should states generally be permitted to regulate
federally licensed activities that occur on the federal public lands? What is
the value of concurrent federal-state regulation? What are the dangers?
In California v. United States, 438 U.S. 645 (1978), the Supreme Court
held that state law generally governs the appropriation and use of water
supplied by federal reclamation projects unless the application of state law
would be inconsistent with congressional directives regarding the operation
of the project. The Court based its decision on section 8 of the Reclamation
Act of 1902, 43 U.S.C. §§ 372, 383, which provides:
[N]othing in this Act shall be construed as affecting or intended to
affect or to in any way interfere with the laws of any State or Territory
relating to the control, appropriation, use, or distribution of water
used in irrigation, or any vested right acquired thereunder, and the
Secretary of the Interior, in carrying out the provisions of this Act,
shall proceed in conformity with such laws, and nothing herein shall
in any way affect any right of any State or of the Federal Government
or of any landowner, appropriator, or user of water in, to, or from any
interstate stream or the waters thereof . . . .
Should Congress insert similar preemption language into FLPMA and other
land management statutes?
9. Intermingled land holdings. As a practical matter, many projects
proposed for federal lands also require the use of nearby privately-owned
lands for support facilities to be economically viable. In 2001, for example,
BLM approved the plans of Oil-Dri Corp., reportedly the world’s largest
producer of kitty litter, to develop an open-pit clay mine on BLM lands in
151
Washoe County, Nevada, just outside of Reno. The company proposed to
process the clay into kitty litter and other projects at a plant it would construct
on private land nearby. Washoe County commissioners rejected the
company’s application for a permit for the processing plant, required by the
applicable local zoning regulations, based on concerns about both air
pollution from the plant and water pollution from tailings at the mine site.
Could the company successfully argue that federal law preempts that county
decision? Suppose Oil-Dri found an alternative site for the processing plant
on BLM land. Could the County demand that Oil-Dri apply for a county
permit, and could County commissioners successfully deny that permit?
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Assignment 8: Delegation and Cooperative Governance
National Parks and Conservation Association v. Stanton
District of the District of Columbia, 1999.
53 F. Supp. 2d 7.
O KESSLER, DISTRICT JUDGE.
Plaintiffs National Parks and Conservation Association (“NPCA”), Barry
Harper, and the American Canoe Association (“ACA”) bring this suit against
Robert Stanton, Director of the National Park Service (“NPS”), and Bruce
Babbitt, Secretary of the Department of the Interior (“Secretary”), challenging
Defendants’ plan for management of the Niobrara National Scenic River
(“Niobrara”), located in Nebraska. The challenged management plan, under
which NPS delegates all its responsibilities for managing the Niobrara to an
independent local council over which NPS has virtually no control, is the first
of its kind. . . .
*****
I. Background
The Niobrara, a unique river with abundant resources that runs through
north-central Nebraska, is known for its historical, paleontological,
archaeological, and ecological treasures. Its forests abound with ponderosa
pine, American elm, but oak, green ash, basswood, hackberry, and black
walnut trees. There is striking bio-diversity among the vegetation, where
160 plant species from eastern, western, and northern forest ecosystems
intermingle along the River valley. The Niobrara provides shelter and homes
for bald eagles, turkeys, grouse, quails, doves, pheasants, ducks, and geese.
It is also home to several threatened and endangered species, including the
peregrine falcon, the interior least tern, the piping plover, and the whooping
crane. Palaeontologists find a wealth of artifacts on the fossil beds along the
Niobrara, including deposits from eighty species of extinct vertebrates. In
one fossil excavation site, at least 146 vertebrate species were found. Id. of
the 164 cataloged fossil excavation sites, 15 were rated as internationally
significant, and 37 were rated nationally significant. The River was named
one of the 10 best canoeing rivers in the nation by Backpacker magazine, and
one of the eight special camping areas in the nation by Outside magazine.
One of the Niobrara’s unique features is that it runs largely through
private land. In 1991, Congress, despite local opposition, designated portions
153
of the Niobrara to become components in the pre-existing national Wild and
Scenic Rivers system.Recognizing that the area along the River was largely
privately-held, Congress limited the amount of land the federal government
could acquire, and encouraged state and local involvement in the
administration and management of the River locale. Congress also created
the eleven member Niobrara Scenic River Advisory Commission (“Advisory
Commission”), an advisory group representing local interests, for the purpose
of aiding NPS in developing a management plan for the area.
As the agency responsible for overseeing the administration of the
Niobrara, NPS developed, with the help of the Advisory Commission, a
General Management Plan and Environmental Impact Statement
(“GMP/EIS”). The GMP/EIS outlined four management alternatives for
administering the Niobrara: Alternative A, which called for no action, was
the baseline against which to compare the other plans; Alternative B provided
for management by a local council, which would include members from
various county and state agencies, as well as local landowners and business
people; Alternative C provided for partnership management between NPS
and local entities, where any necessary services needed in managing the River
would be provided by local entities; and Alternative D provided for NPS
management with involvement of local entities. . . .
NPS chose Alternative B as the preferred strategy for managing the
Niobrara, and that decision was memorialized in the Record of Decision
(“ROD”), as was the general management plan and final EIS for the Niobrara.
In July of 1997, NPS entered into the Interlocal Cooperative Agreement
(“Interlocal Agreement”) with local Nebraska governmental entities. The
Interlocal Agreement established the Niobrara Council (“Council”), and
outlined the Council’s duties, which included: enter into agreements with
NPS or the U.S. Fish and Wildlife Service (“FWS”); obtain and use funds
from any source to perform its functions; coordinate management of the
Niobrara with the responsible agencies; assist the four cooperating counties
in developing zoning and other land protection methods; review county
zoning ordinances and actions for consistency with the GMP; provide a
forum for landowner/government conflict; work with landowners and provide
technical assistance where there is no zoning; manage law enforcement,
public access sites, visitor use levels, and other operational functions; retain
the services of professionals as necessary to perform its duties; retain staff
members to perform its functions; and acquire and manage real and personal
property for staff office purposes only. The Interlocal Agreement also noted
154
that the Council should attempt to find outside sources of money, to avoid
having NPS “dictate the decisions of the council.”
The Council may only be dissolved by act of the four cooperating
counties, or by termination of the Interlocal Agreement by NPS. Any of the
four counties may withdraw from the Interlocal Agreement upon 60 days
notice, but the withdrawal of any county does not terminate the agreement.
The Council consists of fifteen members: four county commissioners
(one from each participating county); four landowners (one from each
participating county) two representatives of local Natural Resource Districts;
one timber industry representative; one recreational business representative;
one representative of the Nebraska Game and Parks Commission; one FWS
representative; and one NPS representative. Decisions are reached through
simple majority vote.
On August 6, 1997, the Council entered into a Cooperative Agreement
with NPS, as called for in the ROD. The Cooperative Agreement can be
terminated by either party upon sixty days notice, and can be modified by
mutual written agreement. If the Council fails to manage and protect the
Niobrara as set forth in the GMP/EIS, NPS has the authority to terminate the
Agreement and implement one of the other Alternatives for managing the
Niobrara. Under the GMP/EIS, the Council must carry out its activities to
meet standards acceptable to NPS. Under the Cooperative Agreement, NPS
must “consider for consistency with the GMP the advice and
recommendations of the Council during and upon completion of its activities
identified above.”
Plaintiffs allege that although it has been over one and a half years since
the Council was established, nothing has been done to protect or manage the
Niobrara’s resources. Plaintiffs challenge the decision to adopt Alternative
B, [and] the duties that have been delegated to the Council . . . . Plaintiffs
seek an injunction requiring NPS to administer the Niobrara itself . . .
*****
Plaintiffs argue that NPS’ decision to adopt Alternative B for
management of the Niobrara was an unlawful delegation of its
responsibilities and authority. The Court must first examine the extent of
NPS’ existing statutory obligations before reaching the delegation issue.
Congress created the National Park Service in 1919, and gave it the
mission “to conserve the scenery and the natural and historic objects and the
wild life therein and to provide for the enjoyment of the same in such manner
and by such means as will leave them unimpaired for the enjoyment of future
155
generations.” National Park Service Organic Act, 16 U.S.C. § 1 (1999). As
Congress noted, the areas included within the protection of the National Park
Service “derive increased national dignity and recognition of their superb
environmental quality through their inclusion jointly with each other in one
national park system preserved and managed for the benefit and inspiration
of all the people of the United States.” 16 U.S.C. § 1a-1 (1999).
In 1968, Congress passed the Wild and Scenic Rivers Act to “preserve
[the] selected rivers or sections thereof in their free-flowing condition to
protect the water quality of such rivers and to fulfill other vital national
conservation purposes.” 16 U.S.C. § 1271 (1999). In 16 U.S.C. § 1274,
Congress enumerated the rivers that would compose the Wild and Scenic
Rivers system, and further indicated which agencies would manage those
rivers. [Segments of the Niobrara have been designated as “scenic” and
“recreational,” to be managed by the Secretary of Interior.] The duties of the
Secretary of the Interior are further explained in 16 U.S.C. § 1281(c) (1999)
(emphasis added): The Secretary of the Interior, in his administration of any
component of the national wild and scenic rivers system, may utilize such
general statutory authorities relating to areas of the national park system and
such general statutory authorities otherwise available to him for recreation
and preservation purposes and for the conservation and management of
natural resources as he deems appropriate to carry out the purposes of this
chapter.
These statutes give the Secretary of the Interior sole responsibility for
administering the lands included in the National Parks system and the
National Wild and Scenic Rivers system. Basic rules of statutory
construction provide that “absent ambiguity or unreasonable result, the literal
language of the statute controls.” United States v. Lin, 101 F.3d 760, 765
(D.C. Cir. 1996), aff’d, 924 F.2d 1086 (D.C. Cir. 1991). The meaning of
“administer” is perfectly clear in this context: it means “to manage . . . to
direct or superintend the execution, use, or conduct of . . . to manage or
conduct affairs.” Webster’s Third New International Dictionary at 27 (1993).
Thus, the Secretary, who is specifically charged with administering these
lands and rivers, cannot wholly delegate his responsibility to a local entity
which is not bound by the statutory obligations set forth above.
The creation of the Advisory Commission does not abrogate the
Secretary’s duties. The extensive legislative history shows that Congress was
aware of the unique situation in the Niobrara (i.e., largely privately owned
land), and strongly encouraged local participation in the management of the
area. In recognition of this situation, Congress created the Advisory
156
Commission to deflect local opposition to national designation and to aid
NPS in developing a management plan for the area. But it is clear that in
creating the Advisory Commission, Congress did not intend to undermine the
Secretary’s duties or shift them to any other entity.4
In light of NPS’ unambiguous statutory obligation to manage the
Niobrara, it must be determined whether NPS’ choice of Alternative B,
allowing the Council to administer and manage the Niobrara, was
permissible.
NPS cannot, under the unlawful delegation doctrine, completely shift its
responsibility to administer the Niobrara to a private actor, particularly a
private actor whose objectivity may be questioned on grounds of conflict of
interest. “The relevant inquiry in any delegation challenge is whether
Congress intended to permit the delegatee to delegate the authority conferred
by Congress.” United States v. Widdowson, 916 F.2d 587, 592 (10th Cir.
1990). There is no indication in the relevant statutes or the legislative history
that Congress intended any variation on the doctrine of unlawful delegation.5
Delegations by federal agencies to private parties are, however, valid so
long as the federal agency or official retains final reviewing authority. The
relevant inquiry in this case therefore becomes whether, in delegating its
responsibility to the Council to administer the Niobrara, NPS retained
sufficient final reviewing authority over Council actions to prevent a
violation of the unlawful delegation doctrine.
4
Plaintiffs argue that Congress created the Advisory Commission as the
“primary channel” for local input regarding the administration of the
Niobrara, and that the creation of a local managing council violates the intent
of Congress. Defendants point out that Plaintiffs’ contention would render
meaningless the statutes authorizing the creation of cooperative agreements.
While Defendants are correct that the Advisory Commission was meant to be
primarily an advisory body for aiding NPS in the creation of the management
plan, the Advisory Commission’s recommendation for the creation of a local
council can not shield NPS from the finding that by following that
recommendation it may have unlawfully delegated its duties to the council.
5
The doctrine is referred to as the doctrine of unlawful sub delegation in the
relevant caselaw (the original delegation is from Congress to the agency, and
the delegation from the agency to a third party is deemed a subdelegation).
For purposes of simplicity, however, the doctrine will be referred to herein
as the doctrine of unlawful delegation.
157
According to the GMP, the Interlocal Agreement, and the Cooperative
Agreement, Alternative B calls for management of the Niobrara by a local
council, with NPS merely serving as liaison and providing technical support
as needed. The Council is responsible for hiring staff, monitoring the River
resources, evaluating access sites and land protection needs, providing
educational and information services, providing law enforcement and
emergency services, and maintaining roads, bridges, and other river access
sites. These are all duties which fall squarely within the Secretary’s
responsibilities for managing the Niobrara. The Interlocal Agreement is,
however, clear that it is the Council which shall manage the River. Moreover,
the Council is encouraged to seek outside sources of funding to avoid having
its decisions “dictated” by NPS. To further ensure that NPS does not
“dictate” the decisions of the Council, NPS has only one voting member on
the Council, and all decisions are made by majority vote. In short, it is clear
that NPS retains virtually no final authority over the actions – or inaction –
of the Council.
In their defense, Defendants argue that the relevant statutes encourage and
authorize NPS to cooperate with local governments, and enter into
cooperative agreements, in administering the Niobrara:
The Federal agency charged with the administration of any
component of the national wild and scenic rivers system may enter
into written cooperative agreements with the Governor of a State, the
head of any State agency, or the appropriate official of a political
subdivision of a State for State or local governmental participation
in the administration of the component. The States and their political
subdivisions shall be encouraged to cooperate in the planning and
administration of components of the system which include or adjoin
State- or county-owned lands.
16 U.S.C. § 1281(e) (1999) (emphasis added).
The Secretary of the Interior, the Secretary of Agriculture, or the head
of any other Federal agency, shall assist, advise, and cooperate with
States or their political subdivisions, landowners, private
organizations, or individuals to plan, protect, and manage river
resources. Such assistance, advice, and cooperation may be through
written agreements or otherwise. This authority applies within or
outside a federally administered area and applies to rivers which are
components of the National Wild and Scenic Rivers System and to
other rivers. Any agreement under this subsection may include
provisions for limited financial or other assistance to encourage
158
participation in the acquisition, protection, and management of river
resources.
16 U.S.C. § 1282(b)(1) (1999) (emphasis added).
Although NPS is given the authority to enter into cooperative agreements
with local governments, there is nothing in any of the statutes or legislative
history cited by either party to suggest that Congress wished to change the
traditional role of NPS in managing lands and rivers under its stewardship.
Furthermore, there is no precedent for the extent to which NPS has delegated
its responsibilities to the Council. This is the first such agreement of its kind
in NPS’ history.
The relevant statutes and legislative history are clear that NPS retains its
statutory obligation to manage and administer the Niobrara. Even though
NPS is required to consider the recommendations of the Advisory
Commission, and NPS may enter into cooperative agreements with local
entities in carrying out its obligations, the fact remains that the administration
of such areas is still the responsibility of NPS. Nothing in the statutes or
legislative history gives NPS the discretion to completely abdicate its
responsibilities to a local entity.
The Court concludes that Defendants’ delegation of its statutory
management duties to the Council violates the unlawful delegation doctrine
because NPS retains no oversight over the Council, no final reviewing
authority over the council’s actions or inaction, and the Council’s dominant
private local interests are likely to conflict with the national environmental
interests that NPS is statutorily mandated to represent. NPS lacks the
authority to: appoint or remove members of the Council, aside from its own
representative; determine which interests will be represented; select Council
officers; establish Council sub-committees; determine the term limit for
Council members; veto Council decisions which are contrary to the GMP;
independently review Council decisions prior to implementation; and control
Council funding. The delegation is also unlawful because the Council, made
up almost wholly of local commercial and land-owning interests, does not
share NPS’ national vision and perspective. NPS controls only one of the 15
Council members, and is the only member, besides FWS, who represents
national environmental concerns.
The only power NPS retains is the extreme remedy of totally terminating
the Cooperative Agreement if the Council is not managing the Niobrara
consistent with the GMP. Use of such a draconian weapon is highly unlikely,
especially since NPS claims that without local participation, it could not
159
effectively meet its goals and objectives because of local opposition to federal
management.
Defendants argue at length that they have supervisory power over the
Council, that they are not bound by Council decisions, that they retain
ultimate accountability and authority over management of the Niobrara, that
they can review the Council’s actions for consistency with the GMP, and that
they can evaluate the Council’s progress. Defendants offer no specifics to
support their argument, and in fact, the exact nature and scope of the
relationship between the Council and NPS remains vague and unclear.
Defendants claim they have ultimate accountability and authority “for
protection and management of the Niobrara” through the GMP/EIS, the
ROD, and the Cooperative Agreement, but they provide no explanation of
how they can exercise this authority, aside from terminating the Cooperative
Agreement. Defendants argue that the Council is guided in its work by the
GMP/EIS, but do not explain how the NPS will supervise the Council’s work
to achieve compliance with these documents.
Defendants argue that the Council’s actions are “subject to NPS review
at all times”, yet offer no specifics as to what this “review” consists of, and
whether it would actually prevent the Council from taking any action if NPS
disapproved. Defendants say that the NPS “intends” the Cooperative
Agreement to require the Council to carry out its activities to “standards
acceptable to the National Park Service”, yet can cite to no provision in the
Interlocal Agreement or the Cooperative Agreement manifesting such NPS
“intention”. Defendants claim that NPS “retains authority to consider for
consistency with the GMP the advice and recommendations of the Council
during and upon completion of its activities identified above,” yet do not say
whether this “retained” authority allows them to prevent the Council from
undertaking any activity inconsistent with the GMP. Defendants do not even
indicate what actions by the Council would move NPS to terminate the
Cooperative Agreement.
The tenuous relationship between the Council and NPS raises additional
questions as to how exactly NPS intends to ensure compliance with all
applicable federal laws (such as the APA; NEPA; the Freedom of Information
Act, 5 U.S.C. § 552; Land and Water Conservation Fund Act, 16 U.S.C. §
460l-4, et seq.; National Historical Preservation Act, 16 U.S.C. § 470, et seq.,
etc.), considering that the Council is not a federal entity and thus not
obligated to comply with these laws. Although NPS claims that it will ensure
that all federal statutes are complied with, Defendants have offered no
specifics, and presented no evidence, to support their argument that they
160
would be able to ensure compliance, especially given that compliance would
require extensive and voluntary participation by the Council.
In the end, Defendants’ only authority over the Council appears to be its
ability to terminate the Cooperative Agreement, a draconian remedy that NPS
would be unlikely to exercise except in an extreme situation. This does not
constitute the “final reviewing authority” required to prevent an unlawful
delegation. Since it is clear that NPS has no “final reviewing authority” over
the Council, the selection of Alternative B violates the unlawful delegation
doctrine, constitutes an abuse of discretion, is not in accordance with the law,
and is in excess of the Secretary’s and NPS’ statutory jurisdiction.
*****
Cooperative Conservation: the Federalism Underpinnings to
Public Involvement in the Management of Public Lands
Robert D. Comer
75 University of Colorado Law Review 1133 (2004).
Copyright © 2004 University of Colorado Law Review; Robert D. Comer
There is a move afoot to re-engineer one form of public participation in
public land management by forming “cooperative conservation” groups to aid
federal land managers in the management, analytic and decision processes.
Public participation has always been a major feature of modern
environmental and natural resource law. But, because the extended public
participation that typically accompanies the federal land management
decision process is often so expensive and time consuming, some might scoff
at the suggestion that more public participation is warranted. Yet, if there is
a trend other than increased litigation in natural resource management, it is
the expenditure of public tax dollars to increase the avenues, time, and
resources devoted to collaboration and enhanced public involvement.
Despite the expansive forums for public participation of all types, there does
not appear to be a concurrent reduction in conflicts or litigation over federal
resource management decisions. This is particularly disheartening given that
a primary goal of public participation, to reduce litigation, has been little
realized in many federal land management decisions.
Cooperative conservation groups have long existed, both formally and
informally, to assist federal land managers. They can be as simple as groups
161
that come together to seek issue resolution through collaboration or to
advance a common interest by providing comments during the scoping
process for an Environmental Impact Statement (“EIS”), or as formal as
advocacy organizations whose mission is to feed information into the
decision process in an attempt to influence the outcome. Other functions that
have been served by cooperative conservation groups include developing data
for the decision process, coordinating community meetings, and making
recommendations to federal resource managers. The degree of actual
collaboration can vary greatly.
To foster this spirit of public involvement, President Bush recently issued
an Executive Order to ensure that the Departments of the Interior,
Agriculture, Commerce, and Defense and the Environmental Protection
Agency implement laws relating to the environment and natural resources in
a manner that promotes cooperative conservation.2 The Executive Order
defines cooperative conservation as “actions that relate to use, enhancement,
and enjoyment of natural resources, protection of the environment, or both,
and that involve collaborative activity among Federal, State, local, and tribal
governments, private for-profit and nonprofit institutions, other
nongovernmental entities and individuals.”
*****
There are many benefits that can result from incorporating cooperative
conservation groups in federal land management endeavors. These
collaborative groups may attempt to develop real consensus among local
citizen, environmental, commercial and government interests; enhance
federal conservation dollars through private participation, assistance, and
donation; and create a participatory, decision-oriented process to supplant a
bureaucratic process that feeds on itself and leads to litigation and more
process, without decisions or outcomes.
Consistent with this desire for bigger voices, in their recent evolution,
many cooperative conservation groups seek a more active role in managing
public lands. In addition to having the more traditional window-in to the
process that assures an opportunity to offer public comment, today’s
emerging concept involves more direct participation from inside the decision
process. However, in the course of examining the potential for cooperative
conservation in public land management, the question arises as to how much
2
Exec. Order No. 13352, 69 Fed. Reg. 52,989 (Aug. 26, 2004), available at
http://www.whitehouse.gov/news/releases/2004/08/20040826-11.html.
162
control over the decision process may be delegated outside the federal
government, or stated in the converse, how much control over the decision
process must be retained by the federal land management agency? . . .
*****
. . . Perhaps the constitutional principle most analyzed in reviewing
federal delegations of authority is separation of powers between the three
branches of government. . . .
The Constitution vests legislative authority in the Congress and
empowers the Executive Branch to execute those laws. Yet, Congress often
leaves “gaping holes in its legislative pronouncements.”17 As a result, while
the Constitution precludes Congress from delegating its legislative power to
the Executive or Judicial Branches of government, “its legislative handiwork”
frequently requires the de facto exercise of legislative authority by the
Executive Branch. In American Trucking, Justice Scalia recognized that
while Article I of the Constitution does not permit the delegation of
legislative power, it does allow Congress to delegate decision-making
authority provided it is accompanied by an intelligible principle. Although
protection of the constitutionally-crafted tripartite system of government
drives decisions of the Court, the Court generally has given wide latitude to
congressional delegations of authority.
*****
. . . Although not precisely the same, the principles embodied in the
congressional delegation cases form the predicate for review of cooperative
federalism through agency delegations of authority to cooperative
conservation groups interested in public land management.
*****
Although it has occurred infrequently, Congress occasionally has vested
significant authority over federal resources in private entities, including the
complete transfer of decision-making authority over federal lands. Perhaps
the most well known experiment in cooperative federalism is California
Senator Dianne Feinstein’s Quincy Library Group Forest Recovery Act.45
The Act establishes an alternative management strategy and grants the
Quincy Library Group responsibility to “protect trees and forests and wood
17
Field v. Clark, 143 U.S. 649, 692 (1892).
45
Quincy Library Group Forest Recovery Act, Pub. L. No. 105-277, div. A
§ 101(e), 112 Stat. 2681 (1998).
163
products, stored wood, and wood in use directly on [2.5 million acres of] the
National Forest System [in Northern California] and, in cooperation with
others, on other lands in the United States, from natural and man-made
causes.” Specific statutory delegations to the Group include fuel break
construction, group and individual tree selection, and riparian management.
The Quincy Library Group developed the “Quincy Library Group Community
Stability Plan” to achieve desired management objectives. Membership in
the Group is strictly voluntary, and while the Quincy Library Group has no
enforcement authority, the Act mandates that the Secretary of Agriculture
must implement the recommendations of the Group.
Similarly, the purpose of the Valles Caldera Preservation Act48 is to
preserve, through an experimental management regime, a national monument
and surrounding forest land on the Baca Ranch in New Mexico. The Act
seeks to incorporate elements of public and private administration to promote
long-term financial sustainability for management of the Valles Caldera
landscape. The Act instituted cooperative conservation through a Board of
Trustees, which is charged with a broad grant of authority to (1) provide
management and administrative services for the area; (2) establish and
implement policies that serve the purposes of the Act; (3) collect and disperse
funds; and (4) work with others, including state, tribal, and federal entities,
to advance the Preserve’s management objectives. The Secretary of
Agriculture may assess performance of the Trustees’ efforts, but if
dissatisfied, may only make recommendations to Congress. The Secretary
may not act directly on the management activities of the Trustees, although
she may suspend any Trustee decision found to be inconsistent with the
purposes for which the Preserve was established.
The Presidio Trust was established to manage a former military base near
the Golden Gate Bridge and Golden Gate National Park in California.
Portions of these lands remain subject to federal management while other
lands have been designated for management by the Trust. The statute
provides generalized management direction and policy statements for the
Board of Directors and grants broad management discretion to the Trustees.
There is no federal involvement in management of the lands subject to the
Trust.
48
Valles Caldera Preservation Act, Pub. L. No. 106-248, 114 Stat. 598
(2000).
164
The Columbia River Gorge National Scenic Area Act (“Columbia Gorge
Act”) established a National Scenic Area and created the Columbia River
Gorge Commission to manage and administer the waterway. The Columbia
Gorge Act also established a “partnership between the Federal Government,
the states of Oregon and Washington, and the nearly 50 units of local
government within the Columbia River Gorge for the purpose of protecting
and enhancing” the property and resources within the Gorge. The Act also
ratified an interstate compact between the states of Oregon and Washington
– a solution seen by one court as an “innovative solution to a difficult land
preservation problem.” Similar to the situation in the Niobrara River case,
little federal land borders the Columbia River Gorge in the Scenic Area,
although the private land along much of the Columbia River is surrounded
by National Forest System lands and is within the Forest boundary. The
congressionally chartered Commission consists of several members from
each state, with only a single, nonvoting Forest Service representative.
Congress specifically mandated that the Commission prepare resource
inventories and other studies and conduct land use planning and zoning for
the Scenic Area. Congress also funded the Commission’s activities, including
appropriations for land use acquisition, local government payments to offset
tax revenue losses resulting from formation of the scenic area, economic
development grants, and appropriations for the development of recreational
and interpretive facilities. The legislation obligates the Secretary of
Agriculture to develop guidelines, in consultation with the Commission, for
management of the Scenic Area lands by the Commission. All land use
within the Columbia River Gorge Scenic Area, whether private, federal, or
local, must be consistent with the management plan developed by the
Commission, which also conducts the management plan consistency reviews.
If the Commission disagrees with any recommendations of the Secretary, it
may override that recommendation by a two-thirds vote.
The Columbia River Gorge Commission is one of the few examples of
cooperative federalism that has been challenged on constitutional grounds.
In Columbia River Gorge United v. Yeutter,62 individual property owners
organized “Columbia Gorge United-Protecting People and Property” and
challenged the constitutionality of the Columbia Gorge Act under the
Commerce, Property, Compact, and Equal Protection Clauses and the Tenth
Amendment to the Constitution. The Court of Appeals for the Ninth Circuit
62
960 F.2d 110 (9th Cir. 1992).
165
held that the Act did not violate the authority granted to Congress under any
of the constitutional claims.
*****
These examples of congressional delegations explore a breadth of options
available in the establishment of cooperative conservation groups and are
consistent with the authority granted to Congress by the Property Clause of
the Constitution. Congress enjoys plenary authority over management of
federal lands and there is no explicit constitutional requirement that the
Executive Branch must be the entity responsible for their management.
However, delegation of authority is not necessarily unlimited and may be
constrained by constitutional separation of powers principles, especially the
nondelegation and intelligible principle doctrines. In those limited instances
where Congress has delegated management authority to a cooperative
conservation group, it also has established both a management policy and an
intelligible principle for managing federal resources, which often contain
limitations as well. In each instance, Congress provided clear management
objectives to the managing entity, thereby providing a standard for carrying
forward its legislative intent. However, the issue is somewhat more
complicated when delegations based on cooperative federalism are initiated
by the Executive Branch and the courts have more aggressively scrutinized
these actions.
In United States Telecom Ass’n v. FCC,71 the United States Circuit Court
for the District of Columbia examined the question of permissible delegations
by the Executive Branch to nonfederal entities. . . . [I]n invalidating [a
delegation by the Federal Communications Commission to state commissions
of authority to determine whether telecommunications companies would have
to make parts of their networks available to their competitors], the court
stated that:
The presumption that subdelegations are valid absent a showing
of contrary congressional intent applies only to . . . [congressional
delegations to the Executive Branch]. There is no such presumption
covering subdelegations to outside parties. Indeed, if anything, the
case law strongly suggests that subdelegations to outside parties are
assumed to be improper absent an affirmative showing of
congressional authorization.78
71
359 F.3d 554 (D.C. Cir. 2004).
78
Id. at 565.
166
*****
The court did, however, identify several opportunities for nonfederal
input in agency decision-making short of agency subdelegation of
decision-making authority. By way of example, in dicta, the court
specifically recognized three instances where input into the FCC
decision-making process can occur without the need for an explicit
congressional mandate. These include: (1) where a federal agency establishes
a reasonable condition for granting federal approval, as when a federal agency
entrusted with broad discretion may condition its grant of permission on the
decision of another entity, such as a state, local, or tribal government, so long
as there is a reasonable connection between the outside entity’s decision and
the federal agency’s determination; (2) where a federal agency uses a
nonfederal entity, such as a state agency or a private contractor, to provide the
agency with factual information; and (3) where a federal agency receives
advice and policy recommendations from an outside entity, provided the
agency itself makes the final decision. The court noted, however, that an
agency may not simply “rubber-stamp” determinations of others made under
the guise of seeking their advice, nor may vague or inadequate assertions of
final review authority save an unlawful subdelegation.
Thus, U.S. Telecom announces a standard that any potential for
cooperative federalism in public land management is dependent on some
form of congressional authorization. However, U.S. Telecom should not be
read so narrowly as to preclude appropriate delegations to nonfederal entities,
especially where congressional authorization is explicit. . . .
*****
The limited case law suggests that delegation by an agency to a third party
appears to require that the delegation be authorized by statute and perhaps
also that the agency retain ultimate decision-making authority. The cases
have not delved into whether decision-making authority can be delegated if
a decision framework is provided to the nonfederal entity charged with
management responsibility. Presumably, an intelligible principle also must
accompany the delegation to guide the delegee’s actions. Despite these
principles, instances of executive delegation to a third party have been upheld
less frequently than legislative delegations. Typically, these delegations are
found defective for deviating from the statutory purpose or where potential
bias has been inferred. No true evaluation of an agency delegation of
decision-making authority under a statute as broadly permissive as FLPMA
has yet been subject to judicial scrutiny employing the analytic considerations
identified by this paper.
167
*****
If the intelligible principle standard of the congressional delegation
doctrine applies, a relatively simple standard emerges: any executive
delegation of a cooperative federalism nature must articulate an intelligible
principle standard for the delegation. Similarly, if the U.S. Telecom standard
applies, the delegation also must be authorized by the relevant statute. These
rules are rational and protect the tripartite system of government as defined
by the delegation case law; Congress legislates and the agency implements
pursuant to its granted authority, even where authority is exercised through
a third party delegation in accordance with statutory parameters. Although
U.S. Telecom strongly suggests explicit statutory authorization for executive
delegations is required, it is not inconceivable that U.S. Telecom goes too far,
and that an executive delegation could be valid provided it is “not
inconsistent” with guiding statutory authority.
Evaluation of these issues in light of the statutory authority of FLPMA
may provide some guidance. FLPMA grants broad authority for a
cooperative federalism approach to public land management. It provides that
“the Secretary may enter into contracts and cooperative agreements involving
the management, protection development, and sale of public lands.”117 The
subject matter of the eligible “contracts and cooperative agreements” is quite
encompassing, and includes an array of activities on BLM-administered
public lands. FLPMA provides for six primary uses of BLM land, which
include grazing, recreation, mining, and wildlife. In addition, the Secretary
may conduct investigations, studies, and experiments, on her own initiative
or in cooperation with others, involving the management, protection,
development, acquisition, and conveying of the public lands.
Application of the intelligible principle standard may open an avenue for
decision-making by the collaborative partner where BLM provides a
management framework. In other words, it is conceivable that the agency
may identify a management or decision-making framework and then allow
the collaborative group to make land management decisions consistent with
that framework. For instance, the agency could provide criteria for
management of a fuels-thinning project to control wildfires by cooperative
conservation groups. This approach is consistent with the intelligible
principle standard identified for congressional delegation to the Executive
Branch. It is possible that a court would also require BLM to retain
117
43 U.S.C. § 1737(b) (2000). . . .
168
enforcement authority and to assure that decisions are consistent with the
intelligible principles identified to guide the delegation.
However, there may be a further limitation on whether an Executive
Branch delegation is a permissible action and more questions exist than do
answers. In day-to-day management of the federal government, a somewhat
different limitation on delegation often is applied to guide federal contracting
activities. The “inherently governmental function” concept takes its contours
from the Supreme Court’s decision in Buckley v. Valeo.121 An inherently
governmental function is “so intimately related to the public interest as to
mandate performance by government personnel . . . [and] requires the
exercise of substantial discretion in applying government authority and/or in
making decisions for the government.”122 The Department of Justice, Office
of Legal Counsel (“OLC”), has stated that:
[U]nder Buckley private individuals may not determine the policy
of the United States, or interpret and apply Federal law in any way
that binds the United States or affects the legal rights of third parties.
Nor can any private individuals make funding decisions. . . . Properly
appointed Federal officials must maintain both legal and effective
control over the direction of United States Policy in this area as well
as control over the allocation of Federal funds.123
Examples of inherently governmental functions include: criminal
investigations; prosecutions and other judicial functions; ultimate control
over the acquisition, use or disposition of United States property;
management of government programs requiring value judgments; and
selection of program priorities and actions that significantly affect the life,
liberty or property of private citizens. Establishment of permit conditions and
121
424 U.S. 1 (1976).
122
Office of Management and Budget, Office of Federal Procurement Policy
Letter 92-1 (Sept. 23, 1992), http:// www.whitehouse.gov/omb/circulars/
a076/a076sa5.html (purporting to define inherently federal function from a
policy, but not legal, perspective). Although OMB Policy Letter 92-1 has
been superceded, this provision has not changed. See Office of Management
and Budget, OMB Cir. No. 1-76, Rev. (May 29, 2003).
123
United States Dept. of the Interior, Memorandum by the Associate
Solicitor dated December 16, 1994.
169
permit issuance to private parties could be an inherently governmental
function under the Buckley v. Valeo standard.
*****
V. Cooperative Federalism Implications for Conservation
The President of the United States and the Department of the Interior
have recognized the benefits of enhanced public involvement, particularly
local involvement, in advancing the purposes of conserving the nation’s
natural resources and the environment. In fact, each of the cooperative
federalism initiatives advanced by Congress attempts to improve resource
management by reaching out to the people directly affected by federal land
management activities. Cooperative conservation groups have drawn upon
their local knowledge and experience to advance the legislative purposes
identified for federal lands.
Much of the literature discussing cooperative federalism themes is
decidedly political in tone and suspicious in nature. The perspective of those
who approach the issue from an academic orientation is critical, suggesting
that cooperative conservation is an “ideological fad,” constitutes abdication
of federal land management responsibility and is “inconsistent with the laws
governing public lands,” serving as a means of “avoid[ing] compliance with
environmental regulations and to continue business as it used to be,
regardless of environmental impact.”129 Those critical of cooperative
conservation often are opposed to significant local involvement in multiple
use management of natural resources, particularly when that use involves
traditional, commodity-based resource values. These critics frequently cloak
a preservation-oriented resource philosophy, as distinguished from a
conservation philosophy, in terminology equating their perspectives with the
“national” or “public” interests. The effect is to marginalize the sustainable
nature of western landscapes and the scientific predicate for federal and state
land and water resource management activities.
In contrast, individuals actively involved with on-the-ground public land
management issues in the West are calling for more local involvement in the
federal land management decision process. Even those who might be
characterized as being on opposite sides of the philosophical spectrum have
argued forcefully for approaches to conservation that recognize and
129
Karin P. Sheldon, How Did We Get Here? Looking to History to
Understand Conflicts in Public Land Governance Today, 23 Publ. Land &
Resources L. Rev. 1, 2 (2002).
170
incorporate local cooperative conservation processes. Advocates of
cooperative conservation are hopeful that these decision processes will break
through the paralysis and litigation borne of the current conflicts in federal
land and water resource management to yield improved resource decisions
informed by local knowledge. In essence, they see value in local involvement
and seem not to share the fear that the local interests will dominate the
process, make unlawful decisions, or unduly influence federal land managers.
Cooperative conservation group involvement in federal land management is
considered to be “an experiment in new governance, a revival in Jeffersonian
democracy.”135
Thus, cooperative conservation should not be viewed as a political effort
when advanced administratively. Some may view these broad grants of
authority to invoke cooperative federalism as diminishing the authority of the
Secretary and abdicating federal management responsibilities. However,
these grants provide more latitude in the exercise of discretion and create
potentially important options in public land management and decision
processes. Congress and the courts have provided guidance on permissible
delegations of authority, the contours of which may be more limited when
undertaken through executive discretion rather than through legislation. But,
the underlying concept remains the same. Cooperative conservation is one
of many tools available to federal land managers, a tool that should be used
when it will serve the essential purpose of better conserving our land, water,
and wildlife resources.
Regulating Federal Natural Resources: a Summary Case
Against Devolved Collaboration
George C. Coggins
25 Ecology Law Quarterly 602 (1999)
Copyright © 1999 George C. Coggins
135
Sydney F. Cook, Revival of Jeffersonian Democracy or Resurgence of
Western Anger? The Emergence of Collaborative Decision Making, 2000
Utah L. Rev. 575, 577 (2000).
171
The general question is: Who should make the decisions allocating or
protecting the federally owned lands and natural resources? The more
specific question is: Should such authority be “devolved” upon private
“collaborative” groups? This essay answers the latter question with an
emphatic no.
The appropriate level of management decisionmaking concerning public
resources is a policy or political problem, not a legal question, because the
law is settled. The Constitution of the United States delegates exclusively to
Congress the power to make needful rules governing federal property. The
United States Code is equally clear: Congress has delegated regulatory
power, together with substantive and procedural limitations, to four main
federal land management agencies. Those agencies are required by law to
invite public participation in the deliberative and regulatory processes, but
Congress has stated plainly that in each case final decisions are to be made
by the agencies. Those agency decisions ordinarily are subject to judicial
review and can be overridden by the legislature. But, no federal statute
purports to delegate (or “devolve”) powers of decision over federal natural
resources to unelected, unappointed local citizens councils. Nor do any of
those laws instruct the agencies to abdicate their powers in that fashion.
Nevertheless, devolved collaboration has become the latest ideological
fad in federal land management. The Quincy Library Group and the
Applegate Partnership are only the most notorious of the consensus-building
organizations springing up all over the West. Their immediate cause is
dissatisfaction with the workings of the Forest Service, the Bureau of Land
Management (BLM), the National Park Service, or the Fish and Wildlife
Service for a multitude of real and perceived shortcomings. The underlying
theory is that a self-selected group of local people who promise to be civil
with one another can do a better job of allocating federal natural resources
than the duly constituted federal authorities. Many federal bureaucrats are
enthusiastic about this kind of private process because it is an all-purpose
method of passing the buck on difficult and controversial allocation issues.
Collaboration, consensus, civility, cooperation, and community of course
are not bad attributes or characteristics in themselves. They are entirely
appropriate for resolving local issues over use of private property.
Confrontation, controversy, and litigation usually are best avoided.
Consensual transactions, such as Nature Conservancy land purchases, serve
many public and private values. But national lands are not private lands, and
allocation of national resources is not a local issue. Ownership does matter.
172
When the subject is every American’s natural heritage, devolved local
collaborationism is entirely inappropriate.
The reasons for this contrarian conclusion span a wide spectrum. As a
legal matter, devolution, or collaboration, as currently envisioned is simply
abdication of responsibility and as such is unlawful. As an historical matter,
the method has been tried and found wanting. As a theoretical matter, nearly
all the premises underlying local superiority are false or unproven. As a
policy matter the process lends itself to co-optation and has the potential for
severely interfering with national priorities. Devolution in the end only adds
more layers of complication and irresponsibility to an already complicated
arena, and it should be jettisoned.
The notion of devolving decisionmaking authority over federal resources
down to local citizens’ groups is anything but novel. From the birth of the
Nation, local citizens have banded together, usually at the expense of the
general public and often with the connivance of federal and local officials.
“Claims clubs” were formed locally to dissuade outsiders, usually by illegal
means, from bidding on lands the members wanted for themselves.
Similarly, local citizens assisted one another in stealing federal timber and
lead mines in the Midwest.
Local collaboration has been a favored technique in this century as well.
Irrigators have organized to cheat the government out of reclamation
subsidies. Logging companies, loggers’ unions, and timber dependent
communities long have agreed on how the Forest Service should subsidize
them. The most egregious example are the grazing advisory councils
composed of ranchers who dictated the winners and losers in federal forage
allocation. They won; small ranchers, nomadic sheepherders, and rangeland
health lost.
Very few positive results from devolved collaboration/consensus can be
identified. Much local decisionmaking has been narrow, greedy, and
shortsighted, resulting in price-fixing, collusion, corruption, and
subsidization. Perhaps the worst aspect of devolution is the utter
irresponsibility of all of the parties, notably the federal agencies who abdicate
their legal functions.
All four of the main federal land management agencies have been guilty
of abdication at one time or another. The National Park Service eradicated
predators in parks at the behest of local ranchers. The Fish and Wildlife
Service elevated expediency over principle to appease local recreationists.
The Forest Service often abandoned scientific forestry to serve local
173
demands. The BLM long was the model for the capture phenomenon in
administrative law.
Most of these abdications were not held illegal by the courts, in part
because irresponsibility is common in federal public land law. In 1911, the
United States Supreme Court upheld a broad delegation of management
authority to the Forest Service. Since that time, Congress again and again has
ducked hard allocation questions by delegating nearly standardless
management powers to the Forest Service and the BLM. The courts too have
invented and embellished mechanisms allowing themselves to avoid difficult
substantive issues. The most pernicious mechanism is the doctrine of
deference to agency interpretations of law. The courts so deferring ignore
Chief Justice Marshall’s dictum that it is “most emphatically the province and
duty of the judicial department to say what the law is”25 and the similar
command in the Administrative Procedure Act. Deference, coupled with
other judge-made doctrines (such as standing and ripeness) that are designed
to avoid judicial decision of the merits of the case, has resulted in such truly
awful decisions as the Reno District Grazing case.29 These instances of
abdicative irresponsibility are legal because the Court says they are.
Fortunately, courts have also sketched out a few lines beyond which
agencies cannot go in abdicating administrative functions. . . .
Devolved collaboration as currently advocated crosses the line at which
judicial deference insulates agency irresponsibility from reversal. Every
pertinent statute says that the Secretary or an agency, not local citizens, shall
decide the allocation questions. No statute authorizes abdication of the
authority. It is illegal. Period.
History and illegality are not the only reasons to oppose devolved
collaborative processes. The notion rests on false and unproven premises.
Devolution proponents assume, without stating, that all participants are
reasonable people who will see all sides of an issue and reach appropriate,
mutually acceptable compromises. This assumption is demonstrably false.
The West is home to a disproportionate number of every kind of obdurate
extremist, demagogue, and outright crook. Reasoned discourse with them
will be unavailing.
25
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
29
NRDC v. Hodel, 819 F.2d 927 (9th Cir. 1987).
174
In addition, the premise that compromise is possible is often dead wrong.
Interests and ideologies are too strong on all sides. The assumption that all
parties will be winners is usually false as well. Distribution of losses is a
more likely outcome, especially when resource damage is the cause of the
collaborative effort. Further, not all participants will come to the table with
equally clean hands or equal powers, as proponents must presume. Finally,
the premise that all legitimate voices will be heard is also clearly false. Some
current groups are intentionally exclusionary, barring participation by outside
interests. When the nation’s lands and resources are at stake, there are no
outside interests.
National conservation organizations increasingly oppose local
collaborative processes. Their objections go beyond complaining about
exclusion. They argue that the interminable meetings are unnecessarily
time-wasting and futile. These organizations also believe that the results set
no precedents.
Some environmentalists further contend that the collaboration movement
is essentially reactionary, springing primarily from a desire to defend the
West’s peculiar caste systems from the onslaught of modern reality.
Certainly, the main western commodity interests have never sought consensus
from or collaboration with the conservationists when production was the
dominant mode on the federal lands.
Collaboration protagonists’ emphasis on concepts such as lifestyle,
community, western way of life, custom and culture, and so forth buttresses
the surmise that the movement is reactionary. This approach has already
spawned the silly and dangerous “county supremacy” movement. Most of
the subsidies, preferences, privileges, and related benefits that characterize
federal land law have no modern justifications. The rest of the country has
no obligation whatsoever to continue to prop up the “lifestyles” of
westerners. The welfare cowboys should compete like everybody else.
Devolved collaboration threatens to undo important elements of federal
procedural law, federal substantive law, and emerging national priorities.
Procedurally, federal law calls for regulation promulgation, public
participation, environmental evaluation, state and local cooperation, and
endangered species consultation, among other things. Congress in its wisdom
also has decreed that land management agencies must comply with various
land use planning procedures in their decisionmaking. The intentional
inefficiency of these arrangements tempts agencies to cut corners and
exasperates local citizens. While the latter may wish to “cut red tape,” local
collaboration in fact adds another level of complication. In any event, the
175
seeming labyrinth of federal procedural requirements, however burdensome,
is legally required.
Substantively, local consensus builders have little incentive to abide by
federal law. For better or worse, Congress over the past several decades has
dictated a variety of environmental and other safeguards in public land
decisionmaking. The pollution laws set national standards. The National
Forest Management Act and Federal Land Policy and Management Act
require formal planning, public participation, and multiple-use,
sustained-yield management. The Endangered Species Act contains strict
rules for wildlife protection. Abdicating management authority to local
citizens councils would be the functional equivalent of repealing those laws
by implication, a highly disfavored construction. The Environmental
Protection Agency has a better idea of the magnitude of wetlands destruction
nationally than the Quincy Library Group, and the Fish and Wildlife Service
is far more devoted to preserving endangered butterflies than the Applegate
Partnership.
The critical fact is that the national lands and resources are, indeed,
national. Congress has determined that the remaining federal lands have
sufficient national value to retain them in federal ownership under federal
management.
Federal land management is in the process of becoming broader and more
inclusive. Large scale regional plans, such as the Pine Barrens in New Jersey,
the Tahoe Basin in California and Nevada, and the Columbia River Gorge in
Washington and Oregon are growing in popularity and complexity. The
concept of a Greater Yellowstone Ecosystem plan is gradually coming to
fruition. Popper’s idea of a Buffalo Commons on the High Plains has no
visible political support, but nevertheless makes considerable sense. Some
recently have advocated creation of a wildlife supercorridor running from
Yellowstone to beyond Lake Louise in Canada. Others are promoting a
National Heritage Trust to increase and consolidate preservation holdings.
All of these are national proposals of national magnitude; all would suffer if
subjected to parochial local concerns.
Local collaboration cannot deal with problems or issues of national scope.
Land use planning for federal tracts must embrace more than local opinion.
Devolution and collaboration are merely forms of abdication. Abdication
is the biggest problem in federal land management; it certainly is not the
solution. Failure to carry out responsibilities by public officials and private
citizens alike has been far too common in this arena. Congress often has
refused to make the hard political choices, instead delegating broad
176
management discretion to land management agencies without clear standards
of decision. The courts too have abdicated a basic judicial function by
deferring to those agencies’ choices and interpretations. The instances of
agency abdication in the face of local political pressure are too numerous to
list. Devolution to local citizens’ councils takes irresponsibility to the
maximum because, with the inevitable dissolution of the local group, no one
is responsible for anything.
Worthwhile reform will not come about by delegating decisions to
transient, legally irresponsible, local groups. The legal system we have
evolved, for all its faults, is fundamentally sound; most decisions emerging
from it, however slowly, are consistent with law and public preference.
Anyone who wants to can have a say. All interests will be better off if
Congress actually decides the political resource allocation questions; the
executive carries out the letter and spirit of the law; and the courts make sure
the executive does just that.
NOTES AND QUESTIONS
1. Congressional “sub-delegation” to non-federal entities. Is there any
limit on the authority of Congress to delegate governmental decisions to state
or local governments? To private entities? Are limits needed? Are the
issues raised by delegation beyond federal agencies equivalent to those raised
by delegation to the executive branch?
2. Executive branch sub-delegation. If Congress does not explicitly
delegate land management decisions, to what extent does the executive
branch have the authority to do so? Precisely what is the holding of National
Parks & Conservation Association v. Stanton? Note that the decision is only
that of a district court. In your view, is the decision correct? If not, is it too
restrictive on executive sub-delegation or too generous? In High Country
Citizens’ Alliance v. Norton, 448 F. Supp. 2d 1235 (D. Colo. 2006), the court
ruled that the National Park Service could not lawfully delegate responsibility
to produce instream flows needed to preserve the Black Canyon of the
Gunnison River, a national monument, to the state water conservation board.
Relying on U.S. Telecom, the court explained that a federal agency may not
subdelegate to an outside entity, including a state, without affirmative
evidence of congressional intent to authorize such subdelegation. Is that a
sensible requirement?
177
3. Devolution choices. Assuming that either Congress or the land
management agencies have a wide range of choices about the extent of subdelegation, what are the pros and cons of conferring power on local groups
to make decisions about federal land management? If sub-delegation is
desirable, how should local decisionmaking groups be identified or
constituted?
178
Assignment 9: Local Claims to Federal Lands
United States v. Gardner
Ninth Circuit, 1997.
107 F.3d 1314.
O CHOY , CIRCUIT JUDGE
Defendants-appellants Clifford and Bertha Gardner (“Gardners”) appeal
the summary judgment granted in favor of plaintiff-appellee United States.
Gardners claim that the state of Nevada, not the United States, is the rightful
owner of the public lands within Nevada. The district court granted the
United States’ request for an injunction against Gardners’ unauthorized
grazing of livestock upon federal forest land, and also ordered Gardners to
pay a fee for the unauthorized grazing. We affirm.
Factual and Procedural Background
Clifford and Bertha Gardner own the Dawley Creek Ranch in Nevada,
near the Humboldt National Forest. The Humboldt National Forest is part of
the National Forest System, which includes sections of “federally owned
forest, range, and related lands” reserved or withdrawn from the public
domain of the United States. 16 U.S.C. § 1609(a). The administration of the
national forests is vested in the Secretary of Agriculture. 16 U.S.C. § 472.
The Granger-Thye Act provides independent authority for the Secretary of
Agriculture to issue permits for grazing on national forest land. 16 U.S.C. §
5801. Under the regulations of the Secretary of Agriculture, the grazing of
livestock without Forest Service authorization on national forest lands is
subject to the assessment of an “unauthorized grazing use” fee. 36 C.F.R. §
222.50(h).
In 1988, the Forest Service issued a ten-year grazing permit to Gardners,
which allowed a portion of Gardners’ cattle to graze on certain allotments of
the Humboldt National Forest subject to the terms and conditions of the
permit. A clause in the permit stated:
It is fully understood and agreed that this permit may be suspended or
canceled, in whole or in part, after written notice, for failure to
comply with any of the terms and conditions specified in Parts 1, 2,
and 3 hereof, or any of the regulations of the Secretary of Agriculture
on which this permit is based, or the instructions of Forest officers
issued thereunder. . . . .
179
Immediately above the signature line on the permit are the words: “I HAVE
REVIEWED AND ACCEPT THE TERMS OF THIS PERMIT.” Cliff
Gardner signed the permit.
In August of 1992, a fire burned over 2,000 acres of the Mica C & H and
Mica Creek Addition Allotments. The Forest Service and the Nevada
Department of Wildlife reseeded the majority of the burned area in October
and November of 1992. The Humboldt National Forest Land and Resource
Management Plan specifies that reseeded areas must not be grazed by
livestock for a two year period, to give the vegetation time to grow.
Accordingly, in September 1992, the Forest Service advised Gardners that the
burned area would be closed to grazing during 1993 and 1994. Gardners did
not graze livestock in the affected area during 1993.
On May 13, 1994, Gardners sent a letter to the Forest Service stating that
they intended to resume grazing on the burned area within 3 days. On May
18, 1994, the Forest Service observed Gardners’ livestock grazing on the
burned area. On May 19, 1994, the Forest Service hand-delivered a letter to
Gardners advising that they were violating the terms and conditions of the
permit by grazing cattle in the burned area, and requiring that the livestock
be removed from the burned area by May 22, 1994. Gardners did not remove
the livestock.
The Forest Service subsequently revoked Gardners’ permit, and told
Gardners that they would be billed for the unauthorized grazing at a rate of
$6.12 per “head month.” Additionally, the Forest Service informed Gardners
that the cancellation decision could be contested through an administrative
appeal. Gardners opted not to administratively appeal the decision.
Gardners continued to graze livestock on the burned area throughout the
1994 grazing season. Gardners also refused to pay the fee for the
unauthorized grazing, assessed at $4,473.72, to the Forest Service.
On May 23, 1995, the United States filed a complaint seeking an
injunction against Gardners to prevent further unauthorized grazing of
Gardners’ livestock in the Humboldt National Forest. The United States also
sought damages based on Gardners’ unauthorized use of the national forest
for grazing. On October 4, 1995, the district court granted the United States’
motion for summary judgment. The district court enjoined Gardners from
further unauthorized grazing and ordered them to remove their livestock from
the forest area. The court also ordered Gardners to pay $7,030.41 to the
United States as a fee for unauthorized grazing as of September 8, 1995.
Analysis
180
Gardners do not contest that they grazed livestock on forest land without
a permit or other authorization from the Forest Service, nor do they contest
the amount of the fee assessed. Instead, Gardners assert that the
unappropriated lands in the state of Nevada, of which the Humboldt National
Forest is a part, are not territory or other property belonging to the United
States, and that therefore the Forest Service does not have jurisdiction to
regulate use of the forest land or to levy fees for unauthorized activities
within it.
This court reviews a grant of summary judgment de novo.
I. The United States’ Title to Federal Land in Nevada1
Gardners argue that grazing their livestock in the Humboldt National
Forest without a permit does not constitute trespass because the federal
government does not have title to the land on which the grazing took place.
Gardners contend that, while the United States may have received the land in
question from Mexico in the Treaty of Guadalupe Hidalgo in 1848, the
United States was entitled only to hold the land in trust for the creation of
future states, and was not authorized to retain the land for its own purposes.
After Nevada became a state, Gardners argue, all of the public lands within
the state boundaries reverted to the state of Nevada.2
The United States and Mexico signed the treaty of Guadalupe Hidalgo in
1848. In that treaty, Mexico ceded land that includes the present-day state of
Nevada to the United States. The language of the Treaty itself refers to the
land ceded by Mexico to the United States as “territories previously
belonging to Mexico, and which remain for the future within the limits of the
1
An amicus Brief was filed on behalf of the states of New Mexico, Alaska,
Maine, Montana, Oregon, Vermont, and, significantly, Nevada supporting the
position of the United States in this case. Additionally, a federal district court
in Nevada has held that title to the public lands within Nevada’s boundaries
rests in the United States. United States v. Nye County, 920 F. Supp. 1108 (D.
Nev. 1996).
2
Gardners point out that Nevada recently passed a statute claiming ownership
over all public lands within its boundaries, Nev. Rev. Stat. 321.5973.
Gardners claim that the passage of this law further demonstrates that title to
the public lands in Nevada properly rests in the state, not the federal,
government. Gardners fail to note, however, that the Nevada statute by its
own terms excludes national forest lands from the public lands claimed by
Nevada. See Nev. Rev. Stat. § 321.5963.
181
United States.” 9 Stat. 922, 929 (1848). Courts in the United States have
uniformly found that title to the land first passed to the United States through
the Treaty. See, e.g., United States v. California, 436 U.S. 32, 34 n.3 (1978)
(stating that, under the Treaty, “all nongranted lands previously held by the
Government of Mexico passed into the federal public domain”); Cappaert v.
United States, 426 U.S. 128, 131 (1976) (stating that a limestone cavern
located in Nevada is “situated on land owned by the United States since the
Treaty of Guadalupe Hidalgo in 1848”).
The claim by Gardners that it is the duty of the United States to hold
public lands in trust for the formation of future states is founded on a case
dealing with land acquired by the United States from the thirteen original
states. In that case, Pollard’s Lessee v. Hagan, 44 U.S. 212 (1845), the
Supreme Court discussed the extent of the United States’ authority over lands
ceded to it from Virginia and Georgia to discharge debt incurred by those
states during the Revolutionary War. The Court stated that the United States
held this land in trust for the establishment of future states. Once those new
states were established, the United States’ authority over the land would
cease. This decision was based on the terms of the cessions of the land from
Virginia and Georgia to the United States. Before becoming a state, however,
Nevada had no independent claim to sovereignty, unlike the original thirteen
states. Therefore, the same reasoning is not applicable to this case, in which
the federal government was the initial owner of the land from which the state
of Nevada was later carved.
Thus, as the United States has held title to the unappropriated public lands
in Nevada since Mexico ceded the land to the United States in 1848, the land
is the property of the United States. The United States Constitution provides
in the Property Clause that Congress has the power “to dispose of and make
all needful Rules and Regulations respecting the Territory or other Property
belonging to the United States.” U.S. Const. art. IV, § 3, cl. 2. The Supreme
Court has consistently recognized the expansiveness of this power, stating
that “the power over the public land thus entrusted to Congress is without
limitations.” Kleppe v. New Mexico, 426 U.S. 529, 539 (1976) . Moreover,
the Supreme Court has noted that Congress “may deal with [its] lands
precisely as an ordinary individual may deal with his farming property. It may
sell or withhold them from sale.” Light v. United States, 220 U.S. 523, 536
(1911). Indeed, the establishment of a forest reserve by Congress is a “right[]
incident to proprietorship, to say nothing of the power of the United States as
a sovereign over the property belonging to it.” Id. at 537.
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The United States, then, was not required to hold the public lands in
Nevada in trust for the establishment of future states. Rather, under the
Property Clause, the United States can administer its federal lands any way
it chooses, including the establishment of a national forest reserve.
II. The Equal Footing Doctrine
Gardners argue that, under the Equal Footing Doctrine, a new state must
possess the same powers of sovereignty and jurisdiction as did the original
thirteen states upon admission to the Union. Because the federal government
owns over eighty percent of the land in the state of Nevada, Gardners argue,
Nevada is not on an equal footing with the original thirteen states.3 Gardners
claim that Nevada must have “paramount title and eminent domain of all
lands within its boundaries” to satisfy the Equal Footing Doctrine.
The meaning of the Equal Footing Doctrine is discussed in Pollard’s
Lessee v. Hagan, 44 U.S. 212 (1845). In that case, the Supreme Court held
that the shores of and land beneath navigable waters were reserved to the
states, and were not granted by the Constitution to the federal government.
Id. at 229. New states, the Court reasoned, have the same “rights,
sovereignty, and jurisdiction” over the shores of and land beneath navigable
waters as do the original states. Id.4
However, the Supreme Court has declined to extend the Equal Footing
Doctrine to lands other than those underneath navigable waters or waters
affected by the ebb and flow of the tides. In Scott v. Lattig, 227 U.S. 229,
244 (1913), the Supreme Court held that title to an island within a stream did
not pass to the state of Idaho, but instead was retained by the United States.
The Court stated that because the island “was not part of the bed of the
stream or land under the water . . . its ownership did not pass to the State or
come within the disposing influence of its laws.” Id. The Court went on to
3
For example, in New Hampshire the federal government owns just under
thirteen percent of the land. The federal government owns between two and
seven percent of the land within the borders of nine of the other original
thirteen states. In Connecticut, New York and Rhode Island, less than one
percent of the land is owned by the federal government. Bureau of Land
Management, U.S. Department of the Interior, Public Land Statistics 1993,
at 5, Table 3 (September 1994).
4
The Supreme Court later described the Equal Footing Doctrine as applicable
to “all lands beneath waters subject to the tide’s influence.” Phillips
Petroleum Co. v Mississippi, 484 U.S. 469, 484 (1988).
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note that the island was “fast dry land, and therefore remained the property
of the United States and subject to disposal under its laws . . . .” Id. Sixty
years later, the Supreme Court characterized its decision in Scott as holding
that the rule in Pollard’s Lessee “does not reach islands or fast lands located
within such waters. Title to islands remains in the United States, unless
expressly granted along with the stream bed or otherwise.” Texas v.
Louisiana, 410 U.S. 702, 713 (1973). The Equal Footing Doctrine, then, does
not operate to reserve title to fast dry lands to individual states.
Moreover, Supreme Court has long held that the Equal Footing Doctrine
refers to “those attributes essential to [a state’s] equality in dignity and power
with other States.” Coyle v. Oklahoma, 221 U.S. 559, 568 (1911). The
Court has noted that a new state enters the Union “in full equality with all the
others,” and that this equality may forbid a compact between a new state and
the United States “limiting or qualifying political rights and obligations.”
Stearns v. Minnesota, 179 U.S. 223, 245 (1900). However, “a mere
agreement in reference to property involves no question of equality of status.”
Id. The Court has observed that “some States when they entered the Union
had within their boundaries tracts of land belonging to the Federal
Government; others were sovereigns of their soil.” United States v. Texas,
339 U.S. 707, 716 (1950). While these disparities may cause economic
differences between the states, the purpose of the Equal Footing Doctrine is
not to eradicate all diversity among states but rather to establish equality
among the states with regards to political standing and sovereignty.
The Equal Footing Doctrine, then, applies to political rights and
sovereignty, not to economic or physical characteristics of the states.
Moreover, the Equal Footing Doctrine applies primarily to the shores of and
lands beneath navigable waters, not to fast dry lands. Therefore, the Equal
Footing Doctrine would not operate, as Gardners argue, to give Nevada title
to the public lands within its boundaries.
III. The Validity of Nevada’s “Disclaimer Clause”
When Congress invited Nevada to join the Union in 1864, it mandated
that the Nevada constitutional convention pass an act promising that Nevada
would “forever disclaim all right and title to the unappropriated public lands
lying within said territory, and that the same shall be and remain at the sole
and entire disposition of the United States . . . .” Nevada Statehood Act of
March 21, 1864, 13 Stat. 30, 31 § 4. The state constitutional convention did
so. Ordinance of the Nevada Constitution.
Gardners claim that this clause is invalid and unconstitutional as an
attempt to divest Nevada of its title to the unappropriated lands within its
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boundaries. Gardners cite to Van Brocklin v. Tennessee, 117 U.S. 151, 167
(1886) for the premise that such disclaimer clauses “are but declaratory, and
confer no new right or power upon the United States.” Therefore, Gardners
argue, Nevada could not have given the United States title to the public lands
within its boundaries through the disclaimer clause.
Gardners are correct in their argument that the disclaimer is declaratory.
However, the United States did not need the disclaimer clause to gain title to
the public lands in Nevada. The United States already had title to those lands
through the Treaty of Guadalupe Hidalgo, and the disclaimer clause was
merely a recognition of the preexisting United States title, as opposed to a
grant of title from Nevada to the United States.
As aforementioned, Congress’ power under the Property Clause to
administer its own property is virtually unlimited. See, e.g., Kleppe, 426 U.S.
at 539. Indeed, the United States retains title to the public lands within states
such as Nevada not due to “any agreement or compact with the proposed new
State,” but rather “solely because the power of Congress extends to the
subject.” Coyle, 221 U.S. at 574. The disclaimer clause, then, is declaratory
of the right already held by the United States under the Constitution to
administer its property, and as such is valid under the United States
Constitution.
IV. The Tenth Amendment
Gardners argue that federal ownership of the public lands in Nevada is
unconstitutional under the Tenth Amendment. Such ownership, they argue,
invades “core state powers reserved to Nevada,” such as the police power.
Federal ownership of the public lands within a state does not completely
divest the state from the ability to exercise its own sovereignty over that land.
The state government and the federal government exercise concurrent
jurisdiction over the land. In Kleppe v. New Mexico, the Supreme Court held
that the Wild Free-roaming Horses and Burros Act was not an impermissible
intrusion on the sovereignty of New Mexico. 426 U.S. 529 (1976). In so
doing, the Court noted:
Absent consent or cession a State undoubtedly retains jurisdiction
over federal lands within its territory, but Congress equally surely
retains the power to enact legislation respecting those lands pursuant
to the Property Clause. [citations omitted] And when Congress so
acts, the federal legislation necessarily overrides conflicting state laws
under the Supremacy Clause.
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Id. at 543. Indeed, a state may enforce its criminal and civil laws on federal
land “so long as those laws do not conflict with federal law.” California
Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 580. The state of
Nevada, then, is not being unconstitutionally deprived of the ability to govern
the land within its borders. The state may exercise its civil and criminal
jurisdiction over federal lands within its borders as long as it exercises its
power in a manner that does not conflict with federal law.
V. Guarantee Clause, Equal Protection, and Political Accountability Claims
Gardners argue that the retention by the United States of the
unappropriated public lands within the state of Nevada violates the Guarantee
Clause of the United States Constitution. Gardners also contend that federal
ownership of the public lands in Nevada denies them equal protection of the
laws under the Fifth Amendment and fails the “political accountability test.”
As it does not appear that these issues were raised before the district court,
this court will not consider them.
*****
“Hold It! This Is My Land”
Gary Andrew Poole, L.A. Times Magazine
December 28, 1995, p. 28
Dick Carver stood just outside Room 300 at the U.S. District Courthouse
in Las Vegas, Nev., admiring the travertine marble walls. Nervously he
tugged at his Wranglers and then removed his straw cowboy hat. You could
see that the July heat – or maybe it was the pressure – was causing him to
sweat. John Wayne Howard, his attorney, turned to him and whispered a
private joke into Carver’s sunburned ear. They chuckled. But the laugh
wasn’t from down deep. It came out like a dry cough. Carver – who has
thick, calloused hands, sparkling blue eyes, a prosperous gut and a passing
resemblance to Mickey Rooney – licked his lips. Three hundred supporters
stood behind him and gave a whispered cheer. “Good luck, Dick!” “Go get
‘em, Carver!” The voices hummed an encouraging ode for nearly a minute,
and he twisted and twitched, not knowing where to look. “I’m nervous –
Whoa! – I don’t want to lose,” he stammered. “I can’t lose.”
A few hours earlier, at 9 in the morning, Carver had been flush with
confidence. He and his ranching buddies, who had driven from Nye County,
just 200 miles north of Las Vegas, were relaxing in a dingy casino lounge
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called the Turf Club. The air conditioners went pushhhhh and cooled them
from the 115-degree heat outside. The conversation turned to whiskey.
“We’ll party tonight,” said one friend, taking off his cowboy hat and
scratching his freshly barbered hair. “I’ll buy a round a whiskey ‘cause we’re
gonna win! 99.99%!” “We’re not gonna give up as long as there’s a drop of
blood in us!” hooted Carver. But now, about 1 p.m., Dick Carver – Nye
County Commissioner, tribune of the county supremacy movement and
nemesis to the federal government – took a deep breath and, trying to look
assured, walked into the courtroom with his wife, Midge, by his side. He and
his buddies and the 300 people cheering him were on a mission, he said, “to
end apartheid in the West.”
Dick Carver was in court because the federal government is suing Nye
County. In 1993, Carver had persuaded his fellow commissioners to pass
resolutions 93-48 and 93-49, which demanded ownership and usurped control
of “all public lands” within Nye’s borders. In effect, Nye County officials
claimed that they had the right to arrest federal agents for “trespassing” if
they were on National Forest Service land or, for that matter, on a U.S.
interstate. As many as 35 other counties in the West, most notably Catron
County, N.M., have passed similarly militant legislation. But when Carver,
on July 4, 1994, took a rusty D-7 Caterpillar bulldozer and plowed open a
road that the National Forest Service had declared closed, he became a
beacon for the county supremacy movement. Carver says he was trying to
prove a point, “to fire a shot heard ‘round the world.”
Carver and his supporters claim that the federal government’s ownership
of 93% of the land in Nye County is illegal. The third-largest county in the
country, Nye is 18,064 square miles – about the size of Vermont and New
Hampshire – of arid scrub and timber whose population of 20,000 is heavily
dependent on ranching and mining on National Forest and Bureau of Land
Management lands. Since the end of World War II, Nye has been angry with
the federal government for its intrusive presence. The county is the home of
the Nuclear Test Site, where more than 900 nuclear blasts have gone off since
1951. It also has Nellis Air Force Bombing and Gunnery Range within its
borders; soldiers from Nellis run maneuvers with tanks and regularly stage
mock battles, and Nellis pilots fly over in jets, creating omnipresent sonic
booms. What’s more, Congress recently declared Nye’s Yucca Mountain as
the first disposal site for the country’s radioactive waste.
Carver’s notoriety increased last spring when the Justice Department sued
Nye County. Attorneys there make no secret that the bulldozing incident is
the principal reason they have targeted Nye. “We’re working on county
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supremacy cases across the West,” says Caroline M. Zander, a Department
of Justice attorney, “but Nye County is our most high-profile and serious
case. Carver really challenged us to a fight.” When informed about the
lawsuit, Carver responded with characteristic bravado. “Those jackasses in
Washington,” he told reporters, “are going to have the surprise of their life.”
It would be easy to paint Carver, 50, as a common kook or even as a foot
soldier in the militia movement. But he’s not so easy to pigeonhole. He
doesn’t brandish guns. He is not holed up in a cult. He is proud that his
ancestors raised George Washington Carver, the great African American
scientist and leader. He ran for commissioner as a Democrat, talks about how
badly society treats the poor, and he says things should be changed through
the courts and Congress. But there is something – what is it? – that creates
mixed emotions about Carver. Was it the “48 Hours” TV appearance in
which he claimed there are microchips in $100 bills? Was it his concern
about being followed by mysterious government agents? Or was it his speech
to a conference linked with the Christian Identity, a group that mixes
fundamentalist theology with white supremacist dogma? (Carver says the
speech was a “big mistake.”)
When Carver sat down in the front row of Chief Judge Lloyd D. George’s
courtroom, he was, he would later admit, not nearly as confident as he made
out. For luck – or to make sure he didn’t lose it – he tapped his shirt pocket,
which held a miniature copy of the U.S. Constitution. He likes to tell
everyone he never goes anywhere without it. So when the courtroom filled,
Carver desperately wanted vindication for himself and the movement, both
of which he believes are misunderstood. We’re standing up to the Feds, he
told himself: “Those men who know nothing about me and my land manage
my life like Dictatorial Bureaucrats from afar – from an office in Washington,
D.C., where they don’t know how the green brush grows in May and the night
hawks swoop down through my fields devouring mosquitoes. I’m here to stop
them because I am a citizen and I live by the Constitution and nothing else.
I hope the great Americans in the audience stay calm. I am scared they will
cause trouble.”
Carver has reasons to be concerned. Six months earlier, someone had
hurled a rock through a truck windshield at the Bureau of Land Management
office in Tonopah, in central west Nye County. Someone threw a satchel full
of explosives onto the roof of the Reno BLM office on Halloween night,
1994. The blast blew a 15-foot hole through the building and was heard for
miles. No one was hurt. A bomb blew out four windows in the Carson City,
Nev., office of the Toiyabe National Forest on March 30, the headquarters for
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Forest Service Ranger Guy Pence, who happened to have worked in Nye
County in the mid-1980s. And on Aug. 4, 1995, a bomb exploded under a
van at Pence’s home, narrowly missing his wife and two of his daughters.
Although investigators have not directly tied those incidents to the county
supremacy movement – Carver denounces acts of violence – they have raised
the stakes of the trial. No one realizes this more than the two men sitting to
Carver’s right: John Wayne Howard, the principal legal advocate for Nye
County, and Roger J. Marzulla, the former head of the Environment and
Natural Resources Division of the Justice Department under President Ronald
Reagan. In contrast to Carver’s cowboy duds, they wear somber suits and
monogrammed shirts. “The federal government is inherently despotic,” says
Howard. “The federal government owns the land, and the local government
has no say out here. It’s unconstitutional.”
Facing Marzulla and Howard are Peter Coppelman and four other federal
attorneys. Short-haired and intense, Coppelman is the Department of
Justice’s deputy assistant attorney general. He worked on the spotted owl
case for the federal government and was the legal counsel for the Wilderness
Society for nine years. He says Nye is asking the court to “redraw the map
of the United States and to rewrite 150 years of American history. Under
Nye’s theory, there would be almost no national parks, national forests,
national wildlife refuges and wilderness areas.”
Carver rises when Judge George strides into the courtroom. A Reagan
appointee, George, 65, is a former U.S. Air Force fighter pilot and a graduate
of Brigham Young University and UC Berkeley. He shuffles his notes and
looks up from the bench. He appears to be pleasantly shocked by the crowd
behind Carver, who feels that George radiates “justice.” George, Carver is
convinced, will help rescue Nye from “tyranny.”
The Incident
Within an hour, maybe two – it depends on what the person was doing
July 4th, 1994 – everyone in Nye had heard about it. Two hundred lucky
people had even witnessed it. The calls started about 5 in the afternoon.
“Ted, did you hear?” “Ted, you know what happened?” “Did you hear that
they almost killed him!” “There were men aiming shotguns, Ted . . . Hey,
Ted, you there, Ted?” After a while, Ted Angle stopped answering the
phone. He just sat in his house in Tonopah, Nev., thinking about what would
happen next. He had been warned to stay away from the July 4th gettogether. And he did. His wife, Sharron, had been worried all week. She
kept hearing at school board meetings and at church groups about the
potential for armed conflict.
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The day before, on Sunday, the Angles had attended the First Baptist
Church, a peach-colored building that overlooks Tonopah, a dusty town of
3,500. A mustachioed man with an ambling stride, Angle wore a new pair
of cowboy boots to the service. They pinched his feet. But he didn’t
complain. Angle, a 24-year veteran of the Bureau of Land Management,
prides himself on “being a Westerner.” Which, for him, means weathering
pain without complaint. Bowing his head and clasping his hands, he sank his
head between his brown polyester Wranglers and prayed that nothing would
happen – and that if something did, no one would get hurt. And here it was
on Monday afternoon, two hours after the end of the Independence Day
cookout, and his prayers had been partially answered. A sense of relief –
“Thank God, no one was murdered!” – poured over him. But he was darn
mad about what had happened in Jefferson Canyon. Even though it was a
Forest Service employee who had been threatened, Angle understood that
Carver’s shenanigans were aimed at him as well. As the area manager in the
Tonopah Resource Area in Nye County for the BLM, Angle enforces federal
land-use policy, including mining and grazing privileges. Ranchers say that
he is from the “Big City,” by which they mean Reno; they say he’s “smart
mouthed” and “rank,” a term for particularly nasty bulls. Ranchers have been
known to intimidate his workers by following them into restaurants and
staring them down while they eat; or stalking them in their trucks. “It can get
crazy out there,” says Angle, with typical reserve.
When Dick Carver presented the land resolutions on Dec. 7, 1993, four
Nye County Commissioners supported him. The fifth commissioner, Joe
Maslach, raised some concern about Resolution 93-48, which recognized that
the state of Nevada owns all public lands within the borders of the state. “If
the state owns the land,” asked Maslach, “who controls the state?” Maslach
abstained from the vote. As a political statement, the resolution made a
minor ripple in the county. Most residents didn’t think anything would really
happen because similar resolutions had been passed in other counties to little
effect. So, Carver knew he had to make a statement.
The Jefferson Canyon incident could hardly have been more explicit.
Jefferson Canyon, 80 miles north of Tonopah, sits in the geographic center
of the state and in the middle of the 6.1 million acres that Angle regulates.
The canyon carves its way into 11,949-foot-high Mt. Jefferson. Back in July,
1874, the canyon boasted 100 houses, two stores, seven saloons, one butcher
shop, one brewery, one barbershop, one lumberyard, three restaurants, two
stables, one blacksmith shop and two bakeries – all built in six months. Three
months later, the city claimed 185 registered voters: most of the men were
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silver miners. Like many mining towns, Jefferson went bust, and by
September, 1875, the place was almost empty. No one lives in Jefferson
anymore, but the remnants of the town remain. With its juniper trees,
willows and greensward next to the river, Jefferson is a favorite spot for
picnics. For 30 years, Nye County residents have driven their four-wheelers
into the canyon for the annual 4th of July fest. Throughout the afternoon,
women cook local specialties such as venison, rabbit, rainbow trout. Kids get
in water fights and men get in fistfights. It’s a hazy, drunken, messy, wet,
tiring, bloody, relaxing day. But 1994’s picnic was the most unforgettable.
With a couple hundred people shouting support, some carrying guns,
Dick Carver climbed aboard a bulldozer and punched open a long-closed road
in the Toiyabe National Forest. The Forest Service had closed the area to
eliminate overgrazing. To Carver and the crowd cheering him on, though, the
no trespassing sign by the road symbolized not just unwarranted federal
regulation, but unwanted federal presence. They wanted to take the land back
and intimidate the federal workers. Backpedaling, and just keeping clear of
the advancing bulldozer’s blade, Dave Young, a hapless agent with the U.S.
National Forest Service retreated up the canyon, still holding a sign that
informed Carver that he was trespassing. As Carver sat aboard the Cat, he
worried – he says – that someone would kill Young, and he prayed that the
man wouldn’t draw a gun on him. “My friends would have drilled him,” he
says now. “I didn’t want that.”
Many Nevada politicians, including Democratic Gov. Bob Miller,
denounced Carver’s action. But in Nye County Carver was a hero. When
Carver drives around Nye, he says he feels needed. Even this year, a nonelection year, innumerable posters declare CARVER FOR
COMMISSIONER. He remembers the November, 1992 election with pride.
He won by a 2-1 margin.
With his sweaty face and his jaws chomping on gum, Carver doesn’t
seem inspirational. Most of his learning came from his dad. He loved his
daddy. When he was a kid, just like a young pup, tongue aloll, the young
Carver would follow him. He liked the old man’s dusty smell, greasy
clothing, laughter and his stories of cowboys and Indians. And he got
chicken skin when his father talked about the Carver family. In 1850, the
Carvers drove 800 head of cattle from Salt Lake City to Placerville, Calif., to
feed Gold Rush miners. Little Dick Carver liked it when his dad told him
about the Carvers being the first non-Indians to graze cattle in what is now
Yosemite National Park. He beamed when his dad told him that his ancestors
– Moses and Susan Carver – raised George Washington Carver.
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Carver was 11 when his dad died. “I just went into a cocoon and started
working,” he says. “I just rode horses on the range. Never stopped. Seven
days a week I worked. Tried to forget my dad.” Carver now owns 850 acres
and runs 90 head of cattle in the remote Big Smoky Valley. (John C.
Fremont, the Western explorer, in 1845 so named the valley because of a blue
haze resembling smoke that hangs over the area.) He lives with his wife in
a house that consists of two trailers and a dining-room extension made of
Douglas Fir plywood. When he drives his Chevrolet Custom Deluxe – his
dog Bruiser beside him – past Midge’s garden and toward his fields, he sees
the land he grew up on. He talks about the people who live in Nye and say
he feels lucky for what he has. Surrounding him are button sage plants with
their gray-brown leaves and woolly pubescence. “I’ve been here all my life
and we just want the power in our hands because people should control their
destiny.”
What would his daddy have said about the trial? After he died, Carver
promised that he would honor the old man’s memory. What better way than
preserving the independence of the Cowboy Way?
The Radicalization
The hour advances toward 4 o’clock. Skook Berg cradles his brimming
teacup with both hands. He clenches the cup tighter. Tighter. His fingers
change from pink to a chalky white. Then it starts. The tobacco-colored
liquid in his cup ripples. During the first few seconds, the ripples look as if
a sugar cube was lowered into his tea. Tiny ripples. But after five seconds,
the tea appears to be an uncontrollable tsunami. Deep troughs. Skook’s
hands shake. Arleen Berg, Skook’s wife, tries to ignore the trembling books
and china and the tea droplets cascading onto Skook’s khaki pants. The
house shakes. The rumbling is so violent that Arleen’s wheelchair rocks back
and forth. With her emaciated body, she sits in her chair looking
frighteningly fragile. They keep talking about their granddaughter. A
perfectly normal conversation. “She’s such a good kid, right, Skook?”
“Yeah, she’s a great kid.” Didn’t they feel the earth move? Apparently not.
Finally, after about six seconds, the house is motionless once again. Skook
places his half-empty cup on an end table and, with a napkin, dabs at his
pants. “It’s 4 o’clock,” he says, not even bothering to look at a timepiece.
Arleen nods. They exchange a glance for probably the eight-zillionth time.
A mine explosives team has detonated dynamite a half-mile from where
they live in Round Mountain, Nev., 60 miles north of Tonopah, and the blast
sent the wavy vibration. The daily blast is just another reminder to the Bergs
that Echo Bay Mines Ltd. is threatening to destroy their home. Outside,
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caramel-colored grit rains down on their home like a furious cloudburst. As
the wind passes, the sagebrush flutters. Blackbirds fly by, the tips of their
wings looking as if they had been dipped in ketchup. Mining officials once
asked Skook how much money it would take for him to leave. “I told them,
‘I can’t be bought. There’s not enough gold in that hill to get me to leave.’ “
The Bergs live in a house built 80 years ago by Skook’s father. They’ve
farmed, ranched, built businesses, battled sickness and raised five children in
Round Mountain. The cellar is made from mud and 22,000 old liquor bottles.
The walls are a double row of bottles with the bottoms facing outward. The
dead airspace in each bottle provides insulation, keeping the fruits and
vegetables in the cellar cool. They own a piano, and their bookshelves are
lined with hard-covered “Harvard Classics” of Socrates, Plato and such. The
house smells of freshly baked bread and wood polish. Skook, 72, has a shock
of white, silken hair. He plays classical and boogie-woogie on the piano for
Arleen, 65. Ten years ago, she stepped on her nightgown and tumbled down
a staircase and broke her neck. She has no use of her legs and her skin has
the texture of a green olive. Arleen’s hands are gnarled, making it difficult
to imagine her riding horses and bailing hay as she once did. Still, her eyes,
filtered by gray-tinted glasses, reveal her feistiness. As Skook talks about the
mine, she punctuates his sentences with sudden fillips: “They’re cowards!”
Her eyes gleam with hatred. The mine? “No, no, no!” she says. “Worse than
the mine. Them.” When she talks about the mysterious “them,” an
exuberance enters her. Exuberance and rage. Them.
For many citizens of Nye County, “them” is urban recreationalists, huge
corporations and Washington D.C. politicians. It’s Secretary of the Interior
Bruce Babbitt, who “sold them out.” It’s the Sierra Club, which “cares more
about animals than people.” It’s the U.S. government that’s “betraying” them
in varied and sullied ways. It’s a way of life that’s being taken away as more
and more people migrate to the West and urban areas, like Vegas and Reno,
sprawl out. “There’s something striking and heroic about folks working the
land,” says Patricia Nelson Limerick, a professor of history at the University
of Colorado. “The West has seen waves of conquerors. Native Americans,
Conquistadors, cowboys and, now, mountain bikes.”
For the Bergs, “them” is the Bureau of Land Management. Less than a
mile from their house is one of the largest open pit gold mines in North
America, owned and operated by the Canadian-owned Echo Bay Ltd. A fleet
of 190-ton trucks roar 24 hours-a-day, carrying ore to a leach pad. At the
pad, the rocks soak in sodium cyanide and then are stripped for gold. Under
an 1872 law, anyone can stake a mining claim for a few dollars. William H.
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Berg, Skook’s father, came to Round Mountain with his three brothers in
1906. They had spent seven years searching for gold in the Yukon (which is
where he stumbled upon his son’s name: Skook is short for “Skookum,” an
Eskimo word for good). According to Skook, Will bought a few acres of
land from the Round Mountain Mining Co.,and though the mine soon left,
Bergs have lived there ever since, building up the hamlet of Round Mountain.
In 1970, the Copper Range Co. started exploring its claims at the mine.
Ten years later, by a title action, Copper Range reaffirmed its position as
owner of the patented claims and holder of unpatented claims in the Round
Mountain area. That means it owned the mining rights to the land of Round
Mountain. Then in 1985, Copper Range sold out to Echo Bay. Soon, there
were 1,000 people working at the mine, and the explosions forced out the 100
residents or so of Round Mountain. Except for the Bergs. But as the mine
crept toward their town, threatening to dump tailings onto their house, the
Bergs decided to stop it. They were convinced they had an easy case. They
were sure they owned the land. William Berg had practically built the town.
Because Round Mountain was under the BLM’s jurisdiction, the Bergs asked
the agency to do something. The BLM report was bureaucratically curt:
“Townspeople argue that (the mining company’s) unpatented claims are not
on ‘vacant’ land as required by the mining law. However, it has been
explained to them that the land is indeed ‘vacant’ in that it is
‘unappropriated,’ as its use for a townsite has never been authorized.”
Meaning? The Bergs had no rights to the land. The town had never been
incorporated. The BLM told them that Round Mountain didn’t exist. The
BLM told the Bergs they had no case. It gave their town away. It gave the
mining rights to Echo Bay Ltd. “I feel bad,” says Ted Angle, who couldn’t
override the 1872 Mining Law, “but I can’t do anything about it.”
“They’ve taken away our land,” says Arleen. “It’s them, the Washington
bureaucrats. They don’t understand us.” Them.
After Dick Carver heard the Bergs’ story, he decided to “do something.”
And so when he ran for commissioner in 1988 and started making his stump
speeches at the local rodeo and when he came to the Bergs’ house, wanting
their vote – desperately seeking it – he struck a chord. “Common sense says
the town shouldn’t be destroyed for a mining claim. The Bergs have
historical and emotional rights to their house. The federal government claims
ownership of one-third of the nation’s land! If the reality of state ownership
can be implemented, our God-given rights to life, liberty and the pursuit of
happiness will be in much less danger from violations by the federal
government!”
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Carver portrayed the BLM as a bunch of Eastern bureaucrats. His
speeches didn’t always portray reality – most of the people who worked for
the BLM were Westerners, for instance – but he did capture something
bigger: frustration. When the Bergs talked to Ted Angle, he just threw up his
hands. Dick Carver, though, listened to their problems and did something.
He got those resolutions passed. He opened that darn road. And the federal
government’s lawsuit against Nye gives the Bergs hope. If Nye wins and the
land is shifted into local hands, the mining law could be abolished. The town
could be saved.
The Hated
So that is why Ted Angle waves. He waves at a highway crewman, a
trucker, another highway workman and a driver in a pickup. He waves at
everyone. In the general absence of kindness around these parts, he is trying
to fill the void. He is on a Nice Crusade. “Our mission is to be hated, you
know? “he says, meaning the government. “So I like being friendly.” He
winks, steps on the gas and the Ford Bronco lurches to 70 m.p.h. and he looks
through the moth-splattered windshield at the Amargosa Valley. “Pretty.”
His voice fills with the twangy inflection of his native Nevada. “Awful
pretty.” He smiles. He smiles a lot. Sometimes it seems as if its sole
purpose is to cover up his anxiety.
Ted Angle wears Wranglers, a dust-covered blue golf shirt, hiking boots
and a cowboy hat. The day before was his 46th birthday, and the hat was a
present. As the area manager for the Bureau of Land Management, Angle,
along with 20 employees, oversees 6.1 million acres of mostly high desert.
He has an annual budget of about $750,000. He is known as a “critter lover,”
an “enemy to ranching,” a “liar” and an “agent for the Sierra Club.” People
blame Angle for creating the tension in Nye County. Ranchers say he is
putting them out of business with “his” environmental policies.
The dust bowl brought on the Taylor Grazing Act in 1934, which
mandated a federal regulatory program to “stop injury to the public grazing
lands by preventing overgrazing and soil deterioration.” It’s the BLM’s
mandate to carry out this task, and since its formation in 1946 to the 1990s,
the agency and ranchers had an amicable relationship. Ranchers would file
for a grazing permit and they would get it at a dirt-cheap price. But last year,
Interior Secretary Babbitt, a former rancher himself, introduced regulations
called Rangeland Reform which, among other things, limited overgrazing;
ranchers don’t just have permits handed over to them anymore, and the
officials who often turn them down are field agents from the BLM.
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Angle waves again at someone passing by, but soon the Nice Crusade
turns serious. He crunches a Sam’s Choice Cola can in his hand and puts it
into the cardboard box next to him. The box contains a pair of pliers, a
screwdriver, a hand broom, a Nevada map, a greasy rag, a bottle of Windex
and a tuna fish sandwich. He looks ahead, but his mind turns backward.
“You know something?” he asks. “I understand them. I understand why
they’re mad and how things eat up inside of you, and it makes me feel sad
because I was like that once. Didn’t listen to other people. Didn’t want to
compromise. Didn’t want to work with people.”
When Angle was a boy in Reno, he refused to do anything on Saturday
mornings until he watched “Nevada Outdoors” on television. He dreamed
about being a Man Alone on the Range. When he was old enough, he hunted
and fished and hiked. After he earned a bachelor’s degree in wildlife
management from the University of Nevada, Reno, he started working for the
Bureau of Land Management. He had made it. Looking back now, however,
Angle says he was never really happy. Outwardly he appeared to love his
work, and people told him he was doing a good job, but that was also the
problem. He lived for other people’s approval. He was also silently upset
that his wife put so much energy into the church. He refused to attend. “I
always thought men who went to church were effeminate,” he says. “Real
men go chukar huntin’.” But 19 years ago, he became friends with a man
who did go to church. Someone he admired. So he started attending
services, and it helped. The Baptist Church gave him an “inner peace.” The
anger disappeared, and he became more committed to helping others and he
recently became a member of the Promise Keepers, the popular
fundamentalist Christian men’s group.
It is with all of this inner peace that he drives to Indian Springs. He looks
over the land like a hawk – shaking his head and scratching his thin
mustache. “I like this land,” he says, pointing to some gray-green, fourwinged salt brush, which looks like it’s covered with dandruff. “I’m proud
of this,” he says, arriving at Indian Springs, a meadow full of willows, rabbit
brush and yellow monkey flower. He looks for the Amargosa toad, which is
as large as a newborn’s hand. The Amargosa toad has a yellow stripe down
its back, and when it’s turned over, it looks as if it’s wearing jeans.
“Hummmm, where are you?” he sings. He can’t find one. “Usually come
out at night.” He says that if the federal government wasn’t here, the meadow
and the Amargosa toad wouldn’t have a chance. “This is my land; it’s your
land. It’s the little ol’ lady in tennis shoes in Mississippi’s land. You know
what local control means? The federal government gets out. I’m strong on
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the Constitution. I don’t want special rights for homosexuals. I’m for
balancing the budget. I’m a card-carrying Republican. We need to save this
land or it will be gone.” Although uplands in his district have improved,
many riparian, or lowland areas with water, have been degraded, he says,
because of cattle. Without riparian areas, wildlife and vegetation die. “Many
ranchers’ attitude?” asks Angle. “If it’s not a dust bowl, it’s not a problem.”
Ted Angle searches for a toad, still unable to find one. “Many people
think the land in the East and the West are the same, but you can’t find the
Amargosa Toad in a garden in L.A.,” he says. “It’s unique to this land. Ah,
here’s one!” He lifts it into the air. “Hi, there.” The toad jumps away. We
drive another hour north and then west on Highway 774 toward Goldpoint,
a “trespass” mining town. A trespass town is one that people form around
mining claims. They often don”t do any mining, and they often don’t pay
property taxes. “Look at this crap! Look at it!” Angle says as he drives up.
Trash blows in the wind. Rusted out cars are everywhere. Battery acid seeps
into the ground. “As a taxpayer, I’m upset by this,” he says. “These people
don’t pay any taxes, and they destroy the land. We just don’t have the
resources to get ‘em out of here. A bunch of flops.” Ted Angle is mad.
We drive to Pigeon Springs, which is full of piñon pines, cows and a
pathetic trickle of a stream. Angle jumps out of the Bronco. “This is a real
mess,” he says, motioning with his freckled arm. “There used to be grass up
to my shoulder! This used to be a thriving meadow! Now it’s brush. The
cows have destroyed the topsoil. The good soil is going down the stream.
See?” He is right, the soil does go down the stream. “Stewards of the land?”
he asks sarcastically. “How about destroyers of the land? We’re fighting
over leftovers here. What a waste.” He looks at the cows on the hill and
calls them “political trespass” cattle, which are cows that graze on federal
land. Ranchers put them on the land as a political protest. Angle looks
disappointed and hurt.
When he awoke at 6 a.m. to study his Bible, he had hoped that he
wouldn’t get this kind of punch to his nose. For Angle, a creationist,
destroying the land is like punching God in the snout. “I’m in awe of
creation. Do I love this land? Nah. But there is a simplicity to it. I like
coming out here. The plants don’t care about the budget. The horned toads
don’t care about Congress. Just look around at the outdoors. There is
stability out here.” The piñons rustle in a gentle breeze, and Ted Angle looks
out at the rolling hills. A pine nut falls to the ground, slashing the pristine air.
“This was created by God almighty,” he says. “And man can destroy it.”
Right then, an orange dragonfly goes for his head. He waves it away as if it
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were an abusive rancher. But it comes back and circles Angle, unwilling to
leave him alone.
The Aftermath
Five months after the first court hearing, nothing has been resolved. Ted
Angle has left Nye County. (He moved to Reno, the state BLM office, partly
because he “couldn’t stand the pressure in Nye.”) Dick Carver is still making
the county supremacy speech circuit. (He’s more popular than ever.) At 4
o’clock every afternoon, Echo Bay Ltd. still sets off explosions at its gold
mine at Round Mountain, and the Bergs are still adamant about staying put.
Both legal teams have filed numerous briefs. Following the oral arguments,
Judge George ordered the two sides to submit a brief concerning the state of
Nevada’s legal interest in the ownership and management of public lands.
In response, the United States asked the court to join Nevada in the lawsuit.
George granted the request and the state filed a brief saying that the federal
government has title to the land. Whichever way George rules, the lawyers
agree that they will appeal, and both sides believe the case could reach the
Supreme Court, because key constitutional questions are at issue.
Nye’s attorneys, Howard and Marzulla, contend that under the equal
footing doctrine, which gave new states entering the union the same powers
and authorities of the original 13 states, Nevada should be able to control all
the lands within its borders. By retaining so much of the land in the West, the
federal government denied Western states equal footing. When the state of
Nevada entered the union in 1874, the state “forever disclaimed” control of
the land. Howard and Marzulla say this kind of “authoritarian control” is
unconstitutional.
Peter Coppelman, the Justice Department attorney, argues: “The Property
Clause of the Constitution authorizes the federal government to retain and
manage lands within the states for the benefit of all citizens.” Without the
property clause, areas holding national parks, national wildlife refuges and
millions of acres of public land in the West could come into private hands,
into fiefdoms not necessarily for the use of every citizen.
Most legal scholars believe 150 years of legal precedent won’t be
overturned. “A lot is at stake,” says Sally Fairfax, a professor at UC
Berkeley’s Department of Environmental Sciences, Policy and Management.
“But the outcome isn’t in doubt.” Others insist the county supremacists have
already gained. “Behind this case is a conservative agenda,” says Karl Hess
Jr., author of “Vision Upon the Land: Man and Nature on the Western
Range” and a fellow at the Cato Institute, the leading libertarian think tank.
“It’s brought about a kind of respectability to county supremacists.”
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The cynical might argue that the federal government and the county
supremacy movement deserve each other: For every upright rancher, there
is one who destroys the land; for every riparian area restored by a BLM agent,
there is a tank destroying flora and fauna. Maybe Hegel was correct after all:
the definition of tragedy is when both sides are right. What’s unlikely is the
innovative solution of having boards made up of local citizens and experts
advising the government. After all, this was the recommendation that John
Wesley Powell made to Congress after he explored and mapped the West in
1878.
For all the talk of cheap grazing fees and denied permits, the issue goes
beyond economics in Nye County. It’s why there is always an air of
desperation when you talk to Dick Carver, Skook and Arleen Berg – and Ted
Angle. They will lose no matter what the outcome of the case. They worry
that they have already lost. The land, which runs through their hearts, is
being irrevocably altered. No matter who wins this, and succeeding cases, it
is debatable that future generations will know this Nevada desert.
And this might never happen again: a mother and daughter bound to Los
Angeles from Philadelphia drive right by Dick Carver’s ranch, through Nye
County’s Big Smoky Valley, in a beat-up green Oldsmobile. The little girl
rolls down her window and gasps at the wide open spaces and the snow
above the timberline on Mt. Jefferson, just glistening in the July wind.
“Look!” she says, with awe. “Look at that purple mountain.” Look now.
NOTES AND QUESTIONS
1. Same battle, different names. United States v. Gardner was the product
of a concerted effort by the state of Nevada and several of its counties to
claim title to the federal public lands. This effort, in turn, was part of a
broader movement that began in the late 1970s, when it was known as the
Sagebrush Rebellion, and which continues today under various names,
including Wise Use and County Supremacy. The Ninth Circuit’s decision
should have (but did not) put an end to the contention that the United States
does not own the public lands and to claims to state title based on the Treaty
of Guadalupe Hidalgo, the Equal Footing Doctrine, the Tenth Amendment,
the Guarantee Clause, or any other constitutional theory.
2. Asserting county land use authority. A county in Idaho tried a slightly
different approach. The Boundary County Interim Land Use Plan of 1992
attempted to subject federal land management decisions to approval of the
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Boundary County Board of Commissioners. The ordinance provided inter
alia:
Federal and state agencies proposing actions that will impact [the
plan] shall prepare and submit in writing, and in a timely manner,
report(s) on the purposes, objectives and estimated impacts of such
actions, including economic, to [the board]. These report(s) shall be
provided to [the board] for review and coordination prior to federal
or state initiation of action. . . . .
Federal land agencies shall not acquire any private lands or rights
in private lands within Boundary County without first assuring:
That as a minimum, parity in land ownership status is maintained;
and
That private property interests are protected and enhanced.
The ordinance further declared that all federal lands that “are difficult to
manage or which lie in isolated tracts shall be targeted for disposal. . . .
Boundary County concurrence shall be required prior to any [federal and state
land] adjustments. . . . Boundary County shall determine land withdrawals
for hazardous and nonhazardous waste storage as well as the types and points
of origin of such waste. . . . Before federal and state land agencies can
change land use, adverse impact studies on uses shall be conducted and
mitigation measures adopted with concurrence from Boundary County.”
Finally, the ordinance asserted that “[a]ny federally proposed designation
of Wild and Scenic Rivers and all federal policies regarding riparian
management in Boundary County shall be coordinated with [the board] and
shall comply with any County water use plan.” It concluded with the
directive that “[n]o wilderness areas shall be designated in Boundary
County.”
In Boundary Backpackers v. Boundary County, 128 Idaho 371, 913 P.2d
1141 (1996), the Idaho Supreme Court struck down the ordinance. The Court
began its opinion with the observation that “[t]he power over federal land
granted to Congress in the Property Clause is plenary and without limitations.
California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 580 (1987).
The Supremacy Clause invalidates state laws or local ordinances that
‘interfere with, or are contrary to,’ federal law. Hillsborough County, Fla. v.
Automated Medical Labs. Inc., 471 U.S. 707, 712 (1985).” It then concluded
that several provisions of the ordinance conflicted with the goals of federal
law and were therefore preempted. 128 Idaho at 376-78; 913 P.2d at 114648.
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3. The Jarbridge Road. Another notorious battle for control of the federal
public lands involved a dirt track in northern Nevada:
It is a narrow dead-end dirt road, ribbing along a narrow canyon
for barely more than a mile before it hits wilderness. Snow puts it out
of commission for half the year, rains can do it in entirely, and even
then, only hikers and campers really miss it, as a means to a favorite
trail head. But South Canyon Road in Jarbidge (population: 20) has
become much more than the sum of its snowed-in, washed-out parts.
A tussle between people here in Elko County and the United States
Forest Service over the rebuilding of the road has become a cause for
anyone anywhere who is fed up with the federal government.
This all started after the Jarbidge road, which sits at the northern
tip of Elko County, only a few miles from Idaho, washed away for the
umpteenth time in 1995. The Forest Service offered to rebuild the
road, then backtracked after studies determined that reconstruction
would create silt and pollution runoff that would harm rare bull trout
in the Jarbidge River. That reignited the always-simmering battle in
the West for local control over land, much of it owned by the federal
government. Last fall, a group of Nevadans calling themselves the
Jarbidge Shovel Brigade tried rebuilding the road. They were issued
a restraining order and stopped. Then they declared war.
Casualties so far include the director of the Forest Service for the
Humboldt-Toiyabe National Forest (which includes Jarbidge), who
resigned this month, saying that the harassment and intimidation by
the “anti-feds” had reached a dangerous pitch, not to mention the
always uneasy peace between federal employees and the ranchers,
miners and loggers who live off the land. “I think people are saying,
‘Enough is enough, and this Jarbidge road is where we have to make
a stand,’ “ said Mike Nannini, an Elko County commissioner who has
been one of the most relentless critics of federal departments like the
Forest Service and Fish and Wildlife.
From talk shows to newspaper editorials to meetings and forums
and supermarket checkout lines, Shovel Brigaders have inundated the
public with warnings of what might lie ahead if the government was
allowed to do what it wished. As a result, the Shovel Brigade is
growing with a fervor throughout the West and at least half a dozen
states elsewhere. This weekend, just in time for the annual Cowboy
Poetry Festival, which attracts tourists and reporters to Elko from all
over the country, a convoy of semitrucks carrying 10,000 shovels is
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scheduled to arrive here from Montana, Utah, Idaho, Northern
California, Oregon and South Dakota. The shovels, symbolizing
support for the locals who plan to rebuild the road on the Fourth of
July, will be placed around town during a parade that begins in front
of the local office of the Bureau of Land Management. Rallying
points include the Elko County Courthouse, where a 30-foot shovel
paid for by the Shovel Brigade stands on the lawn like a monument.
Jim Hurst, a Eureka, Mont., logger who organized the shovel
collection, said he hoped it was the beginning of a political movement
that would force presidential and Congressional candidates to take
notice this election year. “This is not about 1,400 feet of road that
washed out in Jarbidge, Nev.,” Mr. Hurst said. For Mr. Hurst the
issue is personal. As the federal government protects more plant and
animal species under the Endangered Species Act, he said, people
who have made their livelihoods off the land are left to wither away.
“I am in danger of having to shut down because of lack of access to
timber in our national forest,” he said. “I am currently hauling logs,
burnt fire-killed logs, from Alberta, 500 miles away, when 15 miles
from my plant trees are lying on their side, dead and rotting, and we
do not have access to those trees, largely because of the Endangered
Species Act.”
One of the most controversial aspects of the federal government’s
decision to close the Jarbidge road was a Department of Interior
emergency declaration designating the bull trout as threatened after
Elko County bulldozed 300 feet of the road in 1998. “The listing of
that bull trout is one of the phoniest things they came up with,” said
Assemblyman John C. Carpenter, who helped organize the Shovel
Brigade. “These fish are doing fine; the population is stable.”
Indeed, the Nevada Division of Wildlife opposed the listing of the
bull trout as threatened. “They are very secure in their habitat,” said
Gene Weller, the head of fisheries for the state division. “Numbers
are low; there’s not a lot of them. But they are in numbers that are
commensurate with their habitat.” Still, Mr. Weller said, the division
opposes rebuilding the road. “Roads in stream bottoms are not good
for fish,” he said. He added: “Even though the road should not be
built, we believe the fish should not be used as a pretext.”
But Matt Holford, executive director of the Nevada chapter of
Trout Unlimited, a national nonprofit conservation organization, said
studies pointed to a further reduction of the bull trout population,
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which makes its southernmost habitat in North America in the
Jarbidge River. “The Nevada Division of Fish and Wildlife did a
watershed analysis that showed that this road gets washed out about
every other year and has to be rebuilt,” said Mr. Holford, who
appealed the United States Forest Service’s initial decision to rebuild
the road on the grounds that it had not studied the effects on the fish
populations. “Every time we have to” rebuild, he said, “the river
washes out the road, throwing the sediments back into that river. We
go back in the summer, driving, and throw in more sediment.
They’ve been rebuilding this road ever since the Forest Service put it
in in 1910, at great expense to the taxpayers and the fish populations.”
In Montana, where shovels were sold out of stores less than a
week after Mr. Hurst announced his “Shovels of Solidarity”
campaign, a visit earlier this week by the former supervisor of the
Humboldt-Toiyable National Forest was met with protests by
members of a timber group. Gloria Flora, who served as supervisor
of the Humboldt-Toiyabe National Forest (the largest in the lower 48
states), for only 18 months before resigning on Jan. 1, said her tenure
was poisoned from the start.
“I’d worked in rural areas for 22 years,” Ms. Flora said, “and I
understood the concerns, especially considering the president’s
initiatives to preserve national forests. But their attacks became
personal. My employees were refused service at restaurants or
shunned, or kicked out of a motel.”
Given the history of violence toward federal departments in
Nevada – in the last five years, two federal office buildings and one
federal van were blown up, though suspects were never arrested – Ms.
Flora said she resigned to send a message that the situation was out
of control.
There is no end in sight to the standoff. Senator Harry Reid,
Democrat of Nevada, went to Elko last year to broker a truce between
the county and the Forest Service, but left with no deal. Part of the
issue, Mr. Reid said, is historical. With 87 percent of the land in
Nevada in federal hands, rural populations have been bumping up
against land restrictions – for grazing, water and the like – for more
than a century. “We have a lot of big problems in Nevada,” he said.
“We have water problems. We have problems with land involving
tens of thousands of acres. We have approximately 65 million acres
we have to deal with.”
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As for that speck of road in Jarbidge? “I’m working on that right
now,” Mr. Reid said. “I’m doing my best right now.”
Evelyn Nieves, Dispute Over Road in Nevada Rallies Anti-Government
Forces, N.Y. Times, Jan. 29, 2000, A7, col. 1.
On July 4, 2000, protesters calling themselves the Jarbridge Shovel
Brigade held a rally at which they opened a short section of the Jarbridge
Road. Shortly after the Bush administration took office, federal officials
agreed not to contest the County’s right to control the Road under RS 2477,
a nineteenth century law we will see in more detail soon.
4. Failure or success? The legal claims of the Sagebrush Rebels, Wise Use
Movement, and County Supremacy proponents have been uniformly rejected
in both federal and state courts. Does that mean the movements have failed?
After a federal district court rejected Nye County’s contention that the United
States does not hold title to the Toiyabe National Forest, United States v. Nye
County, 920 F. Supp. 1108 (D. Nev. 1996), Richard Carver declared: “We
made our point. We got what we wanted. We had to take an aggressive
stance in order to get our seat at the table. We did that. And now, they are
listening to us.” Timothy Egan, Court Puts Down Rebellion Over Control of
Federal Land, N.Y. Times, Mar. 16, 1996, A1. What accounts for the
persistence of arguments like this? Should the views of local residents carry
extra weight in federal land management decisions? If so, how much extra
weight? Who has authority to speak for local residents? In this context, how
would you define “local”?
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Assignment 10: Indian Sacred Sites
Lyng v. Northwest Indian Cemetery Protective Association
Supreme Court of the United States, 1988.
485 U.S. 439.
O JUSTICE O’CONNOR delivered the opinion of the Court.
This case requires us to consider whether the First Amendment’s Free
Exercise Clause prohibits the Government from permitting timber harvesting
in, or constructing a road through, a portion of a National Forest that has
traditionally been used for religious purposes by members of three American
Indian tribes in northwestern California. We conclude that it does not.
I
As part of a project to create a paved 75-mile road linking two California
towns, Gasquet and Orleans, the United States Forest Service has upgraded
49 miles of previously unpaved roads on federal land. In order to complete
this project (the G-O road), the Forest Service must build a 6-mile paved
segment through the Chimney Rock section of the Six Rivers National Forest.
That section of the forest is situated between two other portions of the road
that are already complete.
In 1977, the Forest Service issued a draft environmental impact statement
that discussed proposals for upgrading an existing unpaved road that runs
through the Chimney Rock area. In response to comments on the draft
statement, the Forest Service commissioned a study of American Indian
cultural and religious sites in the area. The Hoopa Valley Indian Reservation
adjoins the Six Rivers National Forest, and the Chimney Rock area has
historically been used for religious purposes by Yurok, Karok, and Tolowa
Indians. The commissioned study, which was completed in 1979, found that
the entire area “is significant as an integral and indispensible part of Indian
religious conceptualization and practice.” Specific sites are used for certain
rituals, and “successful use of the [area] is dependent upon and facilitated by
certain qualities of the physical environment, the most important of which are
privacy, silence, and an undisturbed natural setting.” The study concluded
that constructing a road along any of the available routes “would cause
serious and irreparable damage to the sacred areas which are an integral and
necessary part of the belief systems and lifeway of Northwest California
Indian peoples.” Accordingly, the report recommended that the G-O road not
be completed.
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In 1982, the Forest Service decided not to adopt this recommendation,
and it prepared a final environmental impact statement for construction of the
road. The Regional Forester selected a route that avoided archeological sites
and was removed as far as possible from the sites used by contemporary
Indians for specific spiritual activities. Alternative routes that would have
avoided the Chimney Rock area altogether were rejected because they would
have required the acquisition of private land, had serious soil stability
problems, and would in any event have traversed areas having ritualistic
value to American Indians. At about the same time, the Forest Service
adopted a management plan allowing for the harvesting of significant
amounts of timber in this area of the forest. The management plan provided
for one-half mile protective zones around all the religious sites identified in
the report that had been commissioned in connection with the G-O road.
After exhausting their administrative remedies, respondents – an Indian
organization, individual Indians, nature organizations and individual
members of those organizations, and the State of California – challenged both
the road-building and timber-harvesting decisions in the United States
District Court for the Northern District of California. Respondents claimed
that the Forest Service’s decisions violated the Free Exercise Clause . . .
*****
III
A
The Free Exercise Clause of the First Amendment provides that
“Congress shall make no law . . . prohibiting the free exercise [of religion].”
It is undisputed that the Indian respondents’ beliefs are sincere and that the
Government’s proposed actions will have severe adverse effects on the
practice of their religion. Those respondents contend that the burden on their
religious practices is heavy enough to violate the Free Exercise Clause unless
the Government can demonstrate a compelling need to complete the G-O
road or to engage in timber harvesting in the Chimney Rock area. We
disagree.
In Bowen v. Roy, 476 U.S. 693 (1986), we considered a challenge to a
federal statute that required the States to use Social Security numbers in
administering certain welfare programs. Two applicants for benefits under
these programs contended that their religious beliefs prevented them from
acceding to the use of a Social Security number for their 2-year-old daughter
because the use of a numerical identifier would “‘rob the spirit’ of [their]
daughter and prevent her from attaining greater spiritual power.” Similarly,
206
in this case, it is said that disruption of the natural environment caused by the
G-O road will diminish the sacredness of the area in question and create
distractions that will interfere with “training and ongoing religious experience
of individuals using [sites within] the area for personal medicine and growth
. . . and as integrated parts of a system of religious belief and practice which
correlates ascending degrees of personal power with a geographic hierarchy
of power.” The Court rejected this kind of challenge in Roy:
“The Free Exercise Clause simply cannot be understood to require the
Government to conduct its own internal affairs in ways that comport with
the religious beliefs of particular citizens. Just as the Government may
not insist that [the Roys] engage in any set form of religious observance,
so [they] may not demand that the Government join in their chosen
religious practices by refraining from using a number to identify their
daughter. . . .
“. . . The Free Exercise Clause affords an individual protection from
certain forms of governmental compulsion; it does not afford an
individual a right to dictate the conduct of the Government’s internal
procedures.” 476 U.S., at 699-700.
The building of a road or the harvesting of timber on publicly owned land
cannot meaningfully be distinguished from the use of a Social Security
number in Roy. In both cases, the challenged Government action would
interfere significantly with private persons’ ability to pursue spiritual
fulfillment according to their own religious beliefs. In neither case, however,
would the affected individuals be coerced by the Government’s action into
violating their religious beliefs; nor would either governmental action
penalize religious activity by denying any person an equal share of the rights,
benefits, and privileges enjoyed by other citizens.
We are asked to distinguish this case from Roy on the ground that the
infringement on religious liberty here is “significantly greater,” or on the
ground that the Government practice in Roy was “purely mechanical”
whereas this case involves “a case-by-case substantive determination as to
how a particular unit of land will be managed.” Similarly, we are told that
this case can be distinguished from Roy because “the government action is
not at some physically removed location where it places no restriction on
what a practitioner may do.” The State suggests that the Social Security
number in Roy “could be characterized as interfering with Roy’s religious
tenets from a subjective point of view, where the government’s conduct of
‘its own internal affairs’ was known to him only secondhand and did not
interfere with his ability to practice his religion.” In this case, however, it is
207
said that the proposed road will “physically destro[y] the environmental
conditions and the privacy without which the [religious] practices cannot be
conducted.”
These efforts to distinguish Roy are unavailing. This Court cannot
determine the truth of the underlying beliefs that led to the religious
objections here or in Roy, and accordingly cannot weigh the adverse effects
on the appellees in Roy and compare them with the adverse effects on the
Indian respondents. Without the ability to make such comparisons, we
cannot say that the one form of incidental interference with an individual’s
spiritual activities should be subjected to a different constitutional analysis
than the other.
Respondents insist, nonetheless, that the courts below properly relied on
a factual inquiry into the degree to which the Indians’ spiritual practices
would become ineffectual if the G-O road were built. They rely on several
cases in which this Court has sustained free exercise challenges to
government programs that interfered with individuals’ ability to practice their
religion. See Wisconsin v. Yoder, 406 U.S. 205 (1972) (compulsory
school-attendance law); Sherbert v. Verner, 374 U.S. 398 (1963) (denial of
unemployment benefits to applicant who refused to accept work requiring her
to violate the Sabbath); Thomas v. Review Board, Indiana Employment
Security Div., 450 U.S. 707 (1981) (denial of unemployment benefits to
applicant whose religion forbade him to fabricate weapons); Hobbie, supra
(denial of unemployment benefits to religious convert who resigned position
that required her to work on the Sabbath).
Even apart from the inconsistency between Roy and respondents’ reading
of these cases, their interpretation will not withstand analysis. It is true that
this Court has repeatedly held that indirect coercion or penalties on the free
exercise of religion, not just outright prohibitions, are subject to scrutiny
under the First Amendment. Thus, for example, ineligibility for
unemployment benefits, based solely on a refusal to violate the Sabbath, has
been analogized to a fine imposed on Sabbath worship. Sherbert, supra, 374
U.S., at 404. This does not and cannot imply that incidental effects of
government programs, which may make it more difficult to practice certain
religions but which have no tendency to coerce individuals into acting
contrary to their religious beliefs, require government to bring forward a
compelling justification for its otherwise lawful actions. The crucial word in
the constitutional text is “prohibit”: “For the Free Exercise Clause is written
in terms of what the government cannot do to the individual, not in terms of
208
what the individual can exact from the government.” Sherbert, supra, at 412
(Douglas, J., concurring).
Whatever may be the exact line between unconstitutional prohibitions on
the free exercise of religion and the legitimate conduct by government of its
own affairs, the location of the line cannot depend on measuring the effects
of a governmental action on a religious objector’s spiritual development. The
Government does not dispute, and we have no reason to doubt, that the
logging and road-building projects at issue in this case could have devastating
effects on traditional Indian religious practices. Those practices are
intimately and inextricably bound up with the unique features of the Chimney
Rock area, which is known to the Indians as the “high country.” Individual
practitioners use this area for personal spiritual development; some of their
activities are believed to be critically important in advancing the welfare of
the Tribe, and indeed, of mankind itself. The Indians use this area, as they
have used it for a very long time, to conduct a wide variety of specific rituals
that aim to accomplish their religious goals. According to their beliefs, the
rituals would not be efficacious if conducted at other sites than the ones
traditionally used, and too much disturbance of the area’s natural state would
clearly render any meaningful continuation of traditional practices
impossible. To be sure, the Indians themselves were far from unanimous in
opposing the G-O road, and it seems less than certain that construction of the
road will be so disruptive that it will doom their religion. Nevertheless, we
can assume that the threat to the efficacy of at least some religious practices
is extremely grave.
Even if we assume that we should accept the Ninth Circuit’s prediction,
according to which the G-O road will “virtually destroy the . . . Indians’
ability to practice their religion,” 795 F.2d, at 693, the Constitution simply
does not provide a principle that could justify upholding respondents’ legal
claims. However much we might wish that it were otherwise, government
simply could not operate if it were required to satisfy every citizen’s religious
needs and desires. A broad range of government activities – from social
welfare programs to foreign aid to conservation projects – will always be
considered essential to the spiritual well-being of some citizens, often on the
basis of sincerely held religious beliefs. Others will find the very same
activities deeply offensive, and perhaps incompatible with their own search
for spiritual fulfillment and with the tenets of their religion. The First
Amendment must apply to all citizens alike, and it can give to none of them
a veto over public programs that do not prohibit the free exercise of religion.
The Constitution does not, and courts cannot, offer to reconcile the various
209
competing demands on government, many of them rooted in sincere religious
belief, that inevitably arise in so diverse a society as ours. That task, to the
extent that it is feasible, is for the legislatures and other institutions.
One need not look far beyond the present case to see why the analysis in
Roy, but not respondents’ proposed extension of Sherbert and its progeny,
offers a sound reading of the Constitution. Respondents attempt to stress the
limits of the religious servitude that they are now seeking to impose on the
Chimney Rock area of the Six Rivers National Forest. While defending an
injunction against logging operations and the construction of a road, they
apparently do not at present object to the area’s being used by recreational
visitors, other Indians, or forest rangers. Nothing in the principle for which
they contend, however, would distinguish this case from another lawsuit in
which they (or similarly situated religious objectors) might seek to exclude
all human activity but their own from sacred areas of the public lands. The
Indian respondents insist that “[p]rivacy during the power quests is required
for the practitioners to maintain the purity needed for a successful journey.”
Similarly: “The practices conducted in the high country entail intense
meditation and require the practitioner to achieve a profound awareness of the
natural environment. Prayer seats are oriented so there is an unobstructed
view, and the practitioner must be surrounded by undisturbed naturalness.”
No disrespect for these practices is implied when one notes that such beliefs
could easily require de facto beneficial ownership of some rather spacious
tracts of public property. Even without anticipating future cases, the
diminution of the Government’s property rights, and the concomitant subsidy
of the Indian religion, would in this case be far from trivial: the District
Court’s order permanently forbade commercial timber harvesting, or the
construction of a two-lane road, anywhere within an area covering a full 27
sections (i.e. more than 17,000 acres) of public land.
The Constitution does not permit government to discriminate against
religions that treat particular physical sites as sacred, and a law prohibiting
the Indian respondents from visiting the Chimney Rock area would raise a
different set of constitutional questions. Whatever rights the Indians may
have to the use of the area, however, those rights do not divest the
Government of its right to use what is, after all, its land.
B
Nothing in our opinion should be read to encourage governmental
insensitivity to the religious needs of any citizen. The Government’s rights
to the use of its own land, for example, need not and should not discourage
it from accommodating religious practices like those engaged in by the Indian
210
respondents. It is worth emphasizing, therefore, that the Government has
taken numerous steps in this very case to minimize the impact that
construction of the G-O road will have on the Indians’ religious activities.
First, the Forest Service commissioned a comprehensive study of the effects
that the project would have on the cultural and religious value of the Chimney
Rock area. The resulting 423-page report was so sympathetic to the Indians’
interests that it has constituted the principal piece of evidence relied on by
respondents throughout this litigation.
Although the Forest Service did not in the end adopt the report’s
recommendation that the project be abandoned, many other ameliorative
measures were planned. No sites where specific rituals take place were to be
disturbed. In fact, a major factor in choosing among alternative routes for the
road was the relation of the various routes to religious sites: the route
selected by the Regional Forester is, he noted, “the farthest removed from
contemporary spiritual sites; thus, the adverse audible intrusions associated
with the road would be less than all other alternatives.” Nor were the Forest
Service’s concerns limited to “audible intrusions.” As the dissenting judge
below observed, 10 specific steps were planned to reduce the visual impact
of the road on the surrounding country.
Except for abandoning its project entirely, and thereby leaving the two
existing segments of road to dead-end in the middle of a National Forest, it
is difficult to see how the Government could have been more solicitous.
Such solicitude accords with “the policy of the United States to protect and
preserve for American Indians their inherent right of freedom to believe,
express, and exercise the traditional religions of the American Indian . . .
including but not limited to access to sites, use and possession of sacred
objects, and the freedom to worship through ceremonials and traditional
rites.” American Indian Religious Freedom Act (AIRFA), Pub.L. 95-341, 92
Stat. 469, 42 U.S.C. § 1996.
Respondents, however, suggest that AIRFA goes further and in effect
enacts their interpretation of the First Amendment into statutory law. . . .
This argument is without merit. After reciting several legislative findings,
AIRFA “resolves” upon the policy quoted above. A second section of the
statute, 92 Stat. 470, required an evaluation of federal policies and
procedures, in consultation with native religious leaders, of changes
necessary to protect and preserve the rights and practices in question. The
required report dealing with this evaluation was completed and released in
1979. Nowhere in the law is there so much as a hint of any intent to create
a cause of action or any judicially enforceable individual rights.
211
What is obvious from the face of the statute is confirmed by numerous
indications in the legislative history. The sponsor of the bill that became
AIRFA, Representative Udall, called it “a sense of Congress joint resolution,”
aimed at ensuring that “the basic right of the Indian people to exercise their
traditional religious practices is not infringed without a clear decision on the
part of the Congress or the administrators that such religious practices must
yield to some higher consideration.” 124 Cong. Rec. 21444 (1978).
Representative Udall emphasized that the bill would not “confer special
religious rights on Indians,” would “not change any existing State or Federal
law,” and in fact “has no teeth in it.” Id., at 21444-21445.
C
*****
Perceiving a “stress point in the longstanding conflict between two
disparate cultures,” the dissent attacks us for declining to “balanc[e] these
competing and potentially irreconcilable interests, choosing instead to turn
this difficult task over to the Federal Legislature.” Seeing the Court as the
arbiter, the dissent proposes a legal test under which it would decide which
public lands are “central” or “indispensable” to which religions, and by
implication which are “dispensable” or “peripheral,” and would then decide
which government programs are “compelling” enough to justify
“infringement of those practices.” We would accordingly be required to
weigh the value of every religious belief and practice that is said to be
threatened by any government program. Unless a “showing of ‘centrality,’”
is nothing but an assertion of centrality, the dissent thus offers us the prospect
of this Court’s holding that some sincerely held religious beliefs and practices
are not “central” to certain religions, despite protestations to the contrary
from the religious objectors who brought the lawsuit. In other words, the
dissent’s approach would require us to rule that some religious adherents
misunderstand their own religious beliefs. We think such an approach cannot
be squared with the Constitution or with our precedents, and that it would
cast the Judiciary in a role that we were never intended to play.
IV
The decision of the court below, according to which the First Amendment
precludes the Government from completing the G-O road or from permitting
timber harvesting in the Chimney Rock area, is reversed. . . .
O JUSTICE BRENNAN , WITH
BLACKMUN join, dissenting.
WHOM
JUSTICE MARSHALL
212
AND
JUSTICE
*****
I
For at least 200 years and probably much longer, the Yurok, Karok, and
Tolowa Indians have held sacred an approximately 25-square-mile area of
land situated in what is today the Blue Creek Unit of Six Rivers National
Forest in northwestern California. As the Government readily concedes,
regular visits to this area, known to respondent Indians as the “high country,”
have played and continue to play a “critical” role in the religious practices
and rituals of these Tribes. Those beliefs, only briefly described in the
Court’s opinion, are crucial to a proper understanding of respondents’ claims.
As the Forest Service’s commissioned study, the Theodoratus Report,
explains, for Native Americans religion is not a discrete sphere of activity
separate from all others, and any attempt to isolate the religious aspects of
Indian life “is in reality an exercise which forces Indian concepts into
non-Indian categories.” Thus, for most Native Americans, “[t]he area of
worship cannot be delineated from social, political, cultur[al], and other areas
o[f] Indian lifestyle.” American Indian Religious Freedom, Hearings on S.
J. Res. 102 Before the Senate Select Committee on Indian Affairs, 95th
Cong., 2d Sess., 86 (1978) (statement of Barney Old Coyote, Crow Tribe).
A pervasive feature of this lifestyle is the individual’s relationship with the
natural world; this relationship, which can accurately though somewhat
incompletely be characterized as one of stewardship, forms the core of what
might be called, for want of a better nomenclature, the Indian religious
experience. While traditional Western religions view creation as the work of
a deity “who institutes natural laws which then govern the operation of
physical nature,” tribal religions regard creation as an on-going process in
which they are morally and religiously obligated to participate. U.S. Federal
Agencies Task Force, American Indian Religious Freedom Act Report 11
(1979) (Task Force Report). Native Americans fulfill this duty through
ceremonies and rituals designed to preserve and stabilize the earth and to
protect humankind from disease and other catastrophes. Failure to conduct
these ceremonies in the manner and place specified, adherents believe, will
result in great harm to the earth and to the people whose welfare depends
upon it. Id., at 10.
In marked contrast to traditional Western religions, the belief systems of
Native Americans do not rely on doctrines, creeds, or dogmas. Established
or universal truths-the mainstay of Western religions-play no part in Indian
faith. Ceremonies are communal efforts undertaken for specific purposes in
accordance with instructions handed down from generation to generation.
213
Commentaries on or interpretations of the rituals themselves are deemed
absolute violations of the ceremonies, whose value lies not in their ability to
explain the natural world or to enlighten individual believers but in their
efficacy as protectors and enhancers of tribal existence. Ibid. Where dogma
lies at the heart of Western religions, Native American faith is inextricably
bound to the use of land. The site-specific nature of Indian religious practice
derives from the Native American perception that land is itself a sacred,
living being. See Suagee, American Indian Religious Freedom and Cultural
Resources Management: Protecting Mother Earth’s Caretakers, 10 Am. Ind.
L. Rev. 1, 10 (1982). Rituals are performed in prescribed locations not
merely as a matter of traditional orthodoxy, but because land, like all other
living things, is unique, and specific sites possess different spiritual
properties and significance. Within this belief system, therefore, land is not
fungible; indeed, at the time of the Spanish colonization of the American
Southwest, “all . . . Indians held in some form a belief in a sacred and
indissoluble bond between themselves and the land in which their settlements
were located.” E. Spicer, Cycles of Conquest: The Impact of Spain, Mexico,
and the United States on the Indians of the Southwest, 1533-1960, p. 576
(1962).
For respondent Indians, the most sacred of lands is the high country
where, they believe, prehuman spirits moved with the coming of humans to
the Earth. Because these spirits are seen as the source of religious power, or
“medicine,” many of the tribes’ rituals and practices require frequent journeys
to the area. Thus, for example, religious leaders preparing for the complex
of ceremonies that underlie the Tribes’ World Renewal efforts must travel to
specific sites in the high country in order to attain the medicine necessary for
successful renewal. Similarly, individual tribe members may seek curative
powers for the healing of the sick, or personal medicine for particular
purposes such as good luck in singing, hunting, or love. A period of
preparation generally precedes such visits, and individuals must select trails
in the sacred area according to the medicine they seek and their abilities,
gradually moving to increasingly more powerful sites, which are typically
located at higher altitudes. Among the most powerful of sites are Chimney
Rock, Doctor Rock, and Peak 8, all of which are elevated rock outcroppings.
According to the Theodoratus Report, the qualities “of silence, the
aesthetic perspective, and the physical attributes, are an extension of the
sacredness of [each] particular site.” The act of medicine making is akin to
meditation: the individual must integrate physical, mental, and vocal actions
in order to communicate with the prehuman spirits. As a result, “successful
214
use of the high country is dependent upon and facilitated by certain qualities
of the physical environment, the most important of which are privacy, silence,
and an undisturbed natural setting.” Although few Tribe members actually
make medicine at the most powerful sites, the entire Tribe’s welfare hinges
on the success of the individual practitioners.
Beginning in 1972, the Forest Service began preparing a multiple-use
management plan for the Blue Creek Unit. The plan’s principal features
included the harvesting of 733 million board feet of Douglas fir over an 80
year period and the completion of a six-mile segment of paved road running
between two northern California towns, Gasquet and Orleans (the G-O road).
The road’s primary purpose was to provide a route for hauling the timber
harvested under the management plan; in addition, it would enhance public
access to the Six Rivers and other national forests, and allow for more
efficient maintenance and fire control by the Forest Service itself. In the
mid-1970’s, the Forest Service circulated draft environmental impact
statements evaluating the effects of several proposed routes for the final
segment of the G-O road, including at least two that circumnavigated the high
country altogether. Ultimately, however, the Service settled on a route
running along the Chimney Rock Corridor, which traverses the Indians’
sacred lands.
*****
II
The Court does not for a moment suggest that the interests served by the
G-O road are in any way compelling, or that they outweigh the destructive
effect construction of the road will have on respondents’ religious practices.
Instead, the Court embraces the Government’s contention that its prerogative
as landowner should always take precedence over a claim that a particular use
of federal property infringes religious practices. Attempting to justify this
rule, the Court argues that the First Amendment bars only outright
prohibitions, indirect coercion, and penalties on the free exercise of religion.
All other “incidental effects of government programs,” it concludes, even
those “which may make it more difficult to practice certain religions but
which have no tendency to coerce individuals into acting contrary to their
religious beliefs,” simply do not give rise to constitutional concerns. Since
our recognition nearly half a century ago that restraints on religious conduct
implicate the concerns of the Free Exercise Clause, see Prince v.
Massachusetts, 321 U.S. 158 (1944), we have never suggested that the
protections of the guarantee are limited to so narrow a range of governmental
burdens. The land-use decision challenged here will restrain respondents
215
from practicing their religion as surely and as completely as any of the
governmental actions we have struck down in the past, and the Court’s efforts
simply to define away respondents’ injury as nonconstitutional are both
unjustified and ultimately unpersuasive.
A
*****
I . . . cannot accept the Court’s premise that the form of the government’s
restraint on religious practice, rather than its effect, controls our constitutional
analysis. Respondents here have demonstrated that construction of the G-O
road will completely frustrate the practice of their religion, for as the lower
courts found, the proposed logging and construction activities will virtually
destroy respondents’ religion, and will therefore necessarily force them into
abandoning those practices altogether. Indeed, the Government’s proposed
activities will restrain religious practice to a far greater degree here than in
any of the cases cited by the Court today. None of the religious adherents in
Hobbie, Thomas, and Sherbert, for example, claimed or could have claimed
that the denial of unemployment benefits rendered the practice of their
religions impossible; at most, the challenged laws made those practices more
expensive. Here, in stark contrast, respondents have claimed – and proved
– that the desecration of the high country will prevent religious leaders from
attaining the religious power or medicine indispensable to the success of
virtually all their rituals and ceremonies. Similarly, in Yoder the compulsory
school law threatened to “undermin[e] the Amish community and religious
practice,” and thus to force adherents to “abandon belief . . . or . . . to migrate
to some other and more tolerant region.” 406 U.S., at 218. Here the threat
posed by the desecration of sacred lands that are indisputably essential to
respondents’ religious practices is both more direct and more substantial than
that raised by a compulsory school law that simply exposed Amish children
to an alien value system. And of course respondents here do not even have
the option, however unattractive it might be, of migrating to more hospitable
locales; the site-specific nature of their belief system renders it
nontransportable.
Ultimately, the Court’s coercion test turns on a distinction between
governmental actions that compel affirmative conduct inconsistent with
religious belief, and those governmental actions that prevent conduct
consistent with religious belief. In my view, such a distinction is without
constitutional significance. The crucial word in the constitutional text, as the
Court itself acknowledges, is “prohibit,” a comprehensive term that in no way
suggests that the intended protection is aimed only at governmental actions
216
that coerce affirmative conduct.4 Nor does the Court’s distinction comport
with the principles animating the constitutional guarantee: religious freedom
is threatened no less by governmental action that makes the practice of one’s
chosen faith impossible than by governmental programs that pressure one to
engage in conduct inconsistent with religious beliefs. . . . Here, respondents
have demonstrated that the Government’s proposed activities will completely
prevent them from practicing their religion, and such a showing, no less than
those made out in Hobbie, Thomas, Sherbert, and Yoder, entitles them to the
protections of the Free Exercise Clause.
B
Nor can I agree with the Court’s assertion that respondents’ constitutional
claim is foreclosed by our decision in Bowen v. Roy, 476 U.S. 693 (1986).
...
Today the Court professes an inability to differentiate Roy from the
present case, suggesting that “[t]he building of a road or the harvesting of
timber on publicly owned land cannot meaningfully be distinguished from the
use of a Social Security number.” I find this inability altogether remarkable.
In Roy, we repeatedly stressed the “internal” nature of the Government
practice at issue: noting that Roy objected to “the widespread use of the
social security number by the federal or state governments in their computer
systems,” we likened the use of such recordkeeping numbers to decisions
concerning the purchase of office equipment. When the Government
processes information, of course, it acts in a purely internal manner, and any
free exercise challenge to such internal recordkeeping in effect seeks to
dictate how the Government conducts its own affairs.
Federal land-use decisions, by contrast, are likely to have substantial
external effects that government decisions concerning office furniture and
4
The Court is apparently of the view that the term “prohibit” in the Free
Exercise Clause somehow limits the constitutional protection such that it
cannot possibly be understood to reach “any form of government action that
frustrates or inhibits religious practice.” Although the dictionary is hardly the
final word on the meaning of constitutional language, it is noteworthy that
Webster’s includes, as one of the two accepted definitions of “prohibit,” “to
prevent from doing something.” Webster’s Ninth New Collegiate Dictionary
940 (1983). Government action that frustrates or inhibits religious practice
fits far more comfortably within this definition than does the Court’s
affirmative compulsion test.
217
information storage obviously will not, and they are correspondingly subject
to public scrutiny and public challenge in a host of ways that office
equipment purchases are not.5 Indeed, in the American Indian Religious
Freedom Act (AIRFA), 42 U.S.C. § 1996, Congress expressly recognized the
adverse impact land-use decisions and other governmental actions frequently
have on the site-specific religious practices of Native Americans, and the Act
accordingly directs agencies to consult with Native American religious
leaders before taking actions that might impair those practices. Although I
agree that the Act does not create any judicially enforceable rights, the
absence of any private right of action in no way undermines the statute’s
significance as an express congressional determination that federal land
management decisions are not “internal” Government “procedures,” but are
instead governmental actions that can and indeed are likely to burden Native
American religious practices. That such decisions should be subject to
constitutional challenge, and potential constitutional limitations, should
hardly come as a surprise.
The Court today, however, ignores Roy’s emphasis on the internal nature
of the Government practice at issue there, and instead construes that case as
further support for the proposition that governmental action that does not
coerce conduct inconsistent with religious faith simply does not implicate the
concerns of the Free Exercise Clause. That such a reading is wholly
untenable, however, is demonstrated by the cruelly surreal result it produces
here: governmental action that will virtually destroy a religion is nevertheless
deemed not to “burden” that religion. . . .
C
5
Thus, for example, agencies proposing to use or permit activities on federal
lands must comply with various public notice, consultation, and impact
evaluation requirements imposed by the National Historic Preservation Act,
the Archaeological Resources Protection Act, the National Environmental
Policy Act of 1969, the Wilderness Act, and the Federal Water Pollution
Control Act. Concededly, these statutes protect interests in addition to the
religious interests Native Americans may have in a pristine environment, and
of course the constitutional protection afforded those religious interests is not
dependent upon these congressional enactments. Nevertheless, the laws
stand as evidence, if indeed any were needed, that federal land-use decisions
are fundamentally different from government decisions concerning
information management, and that, under Roy, this difference in external
effects is of constitutional magnitude.
218
In the final analysis, the Court’s refusal to recognize the constitutional
dimension of respondents’ injuries stems from its concern that acceptance of
respondents’ claim could potentially strip the Government of its ability to
manage and use vast tracts of federal property. In addition, the nature of
respondents’ site-specific religious practices raises the specter of future suits
in which Native Americans seek to exclude all human activity from such
areas. These concededly legitimate concerns lie at the very heart of this case,
which represents yet another stress point in the longstanding conflict between
two disparate cultures – the dominant Western culture, which views land in
terms of ownership and use, and that of Native Americans, in which concepts
of private property are not only alien, but contrary to a belief system that
holds land sacred. Rather than address this conflict in any meaningful
fashion, however, the Court disclaims all responsibility for balancing these
competing and potentially irreconcilable interests, choosing instead to turn
this difficult task over to the Federal Legislature. Such an abdication is more
than merely indefensible as an institutional matter: by defining respondents’
injury as “nonconstitutional,” the Court has effectively bestowed on one party
to this conflict the unilateral authority to resolve all future disputes in its
favor, subject only to the Court’s toothless exhortation to be “sensitive” to
affected religions. In my view, however, Native Americans deserve – and the
Constitution demands – more than this.
Prior to today’s decision, several Courts of Appeals had attempted to
fashion a test that accommodates the competing “demands” placed on federal
property by the two cultures. Recognizing that the Government normally
enjoys plenary authority over federal lands, the Courts of Appeals required
Native Americans to demonstrate that any land-use decisions they challenged
involved lands that were “central” or “indispensable” to their religious
practices. See, e.g., Northwest Indian Cemetery Protective Assn. v.
Peterson, 795 F.2d 688 (CA9 1986) (case below); Wilson v. Block, 228
U.S.App.D.C. 166, 708 F.2d 735 (1983); Badoni v. Higginson, 638 F.2d 172
(CA10 1980); Sequoyah v. TVA, 620 F.2d 1159 (CA6 1980); Crow v. Gullet,
541 F.Supp. 785 (SD 1982). Although this requirement limits the potential
number of free exercise claims that might be brought to federal land
management decisions, and thus forestalls the possibility that the Government
will find itself ensnared in a host of Lilliputian lawsuits, it has been criticized
as inherently ethnocentric, for it incorrectly assumes that Native American
belief systems ascribe religious significance to land in a traditionally Western
hierarchical manner. It is frequently the case in constitutional litigation,
however, that courts are called upon to balance interests that are not readily
219
translated into rough equivalents. At their most absolute, the competing
claims that both the Government and Native Americans assert in federal land
are fundamentally incompatible, and unless they are tempered by
compromise, mutual accommodation will remain impossible.
I believe it appropriate, therefore, to require some showing of “centrality”
before the Government can be required either to come forward with a
compelling justification for its proposed use of federal land or to forego that
use altogether. “Centrality,” however, should not be equated with the
survival or extinction of the religion itself. In Yoder, for example, we treated
the objection to the compulsory school attendance of adolescents as “central”
to the Amish faith even though such attendance did not prevent or otherwise
render the practice of that religion impossible, and instead simply threatened
to “undermine” that faith. Because of their perceptions of and relationship
with the natural world, Native Americans consider all land sacred.
Nevertheless, the Theodoratus Report reveals that respondents here deemed
certain lands more powerful and more directly related to their religious
practices than others. Thus, in my view, while Native Americans need not
demonstrate, as respondents did here, that the Government’s land-use
decision will assuredly eradicate their faith, I do not think it is enough to
allege simply that the land in question is held sacred. Rather, adherents
challenging a proposed use of federal land should be required to show that the
decision poses a substantial and realistic threat of frustrating their religious
practices. Once such a showing is made, the burden should shift to the
Government to come forward with a compelling state interest sufficient to
justify the infringement of those practices.
The Court today suggests that such an approach would place courts in the
untenable position of deciding which practices and beliefs are “central” to a
given faith and which are not, and invites the prospect of judges advising
some religious adherents that they “misunderstand their own religious
beliefs.” In fact, however, courts need not undertake any such inquiries: like
all other religious adherents, Native Americans would be the arbiters of
which practices are central to their faith, subject only to the normal
requirement that their claims be genuine and sincere. The question for the
courts, then, is not whether the Native American claimants understand their
own religion, but rather whether they have discharged their burden of
demonstrating, as the Amish did with respect to the compulsory school law
in Yoder, that the land-use decision poses a substantial and realistic threat of
undermining or frustrating their religious practices. Ironically, the Court’s
apparent solicitude for the integrity of religious belief and its desire to
220
forestall the possibility that courts might second-guess the claims of religious
adherents leads to far greater inequities than those the Court postulates:
today’s ruling sacrifices a religion at least as old as the Nation itself, along
with the spiritual well-being of its approximately 5,000 adherents, so that the
Forest Service can build a 6-mile segment of road that two lower courts
found had only the most marginal and speculative utility, both to the
Government itself and to the private lumber interests that might conceivably
use it.
Similarly, the Court’s concern that the claims of Native Americans will
place “religious servitudes” upon vast tracts of federal property cannot justify
its refusal to recognize the constitutional injury respondents will suffer here.
It is true, as the Court notes, that respondents’ religious use of the high
country requires privacy and solitude. The fact remains, however, that
respondents have never asked the Forest Service to exclude others from the
area. Should respondents or any other group seek to force the Government
to protect their religious practices from the interference of private parties,
such a demand would implicate not only the concerns of the Free Exercise
Clause, but also those of the Establishment Clause as well. That case,
however, is most assuredly not before us today, and in any event cannot
justify the Court’s refusal to acknowledge that the injuries respondents will
suffer as a result of the Government’s proposed activities are sufficient to
state a constitutional cause of action.
III
Today, the Court holds that a federal land-use decision that promises to
destroy an entire religion does not burden the practice of that faith in a
manner recognized by the Free Exercise Clause. Having thus stripped
respondents and all other Native Americans of any constitutional protection
against perhaps the most serious threat to their age-old religious practices,
and indeed to their entire way of life, the Court assures us that nothing in its
decision “should be read to encourage governmental insensitivity to the
religious needs of any citizen.” I find it difficult, however, to imagine
conduct more insensitive to religious needs than the Government’s
determination to build a marginally useful road in the face of uncontradicted
evidence that the road will render the practice of respondents’ religion
impossible. Nor do I believe that respondents will derive any solace from the
knowledge that although the practice of their religion will become “more
difficult” as a result of the Government’s actions, they remain free to
maintain their religious beliefs. Given today’s ruling, that freedom amounts
to nothing more than the right to believe that their religion will be destroyed.
221
The safeguarding of such a hollow freedom not only makes a mockery of the
“policy of the United States to protect and preserve for American Indians
their inherent right of freedom to believe, express, and exercise the[ir]
traditional religions,” it fails utterly to accord with the dictates of the First
Amendment.
I dissent.
Indian Sacred Sites
Executive Order 13007
61 Fed. Reg. 26,771 (May 24, 1996) .
By the authority vested in me as President by the Constitution and the
laws of the United States, in furtherance of Federal treaties, and in order to
protect and preserve Indian religious practices, it is hereby ordered:
Section 1. Accommodation of Sacred Sites.
(a) In managing Federal lands, each executive branch agency with
statutory or administrative responsibility for the management of Federal lands
shall, to the extent practicable, permitted by law, and not clearly inconsistent
with essential agency functions, (1) accommodate access to and ceremonial
use of Indian sacred sites by Indian religious practitioners and (2) avoid
adversely affecting the physical integrity of such sacred sites. Where
appropriate, agencies shall maintain the confidentiality of sacred sites.
(b) For purposes of this order:
(i) “Federal lands” means any land or interests in land owned by the
United States, including leasehold interests held by the United States, except
Indian trust lands;
(ii) “Indian tribe” means an Indian or Alaska Native tribe, band,
nation, pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian tribe pursuant to Public Law No. 103-454,
108 Stat. 4791, and “Indian” refers to a member of such an Indian tribe; and
(iii) “Sacred site” means any specific, discrete, narrowly delineated
location on Federal land that is identified by an Indian tribe, or Indian
individual determined to be an appropriately authoritative representative of
an Indian religion, as sacred by virtue of its established religious significance
to, or ceremonial use by, an Indian religion; provided that the tribe or
222
appropriately authoritative representative of an Indian religion has informed
the agency of the existence of such a site.
Sec. 2. Procedures.
(a) Each executive branch agency with statutory or administrative
responsibility for the management of Federal lands shall, as appropriate,
promptly implement procedures for the purposes of carrying out the
provisions of section 1 of this order, including, where practicable and
appropriate, procedures to ensure reasonable notice is provided of proposed
actions or land management policies that may restrict future access to or
ceremonial use of, or adversely affect the physical integrity of, sacred sites.
*****
Sec. 3. Nothing in this order shall be construed to require a taking of vested
property interests. Nor shall this order be construed to impair enforceable
rights to use of Federal lands that have been granted to third parties through
final agency action. . . .
Sec. 4. This order is intended only to improve the internal management of
the executive branch and is not intended to, nor does it, create any right,
benefit, or trust responsibility, substantive or procedural, enforceable at law
or equity by any party against the United States, its agencies, officers, or any
person.
WILLIAM J. CLINTON
THE WHITE HOUSE, May 24, 1996.
A Property Rights Approach to Sacred Sites Cases:
Asserting a Place For Indians as Nonowners
Kristen A. Carpenter
52 UCLA L. Rev. 1061 (2005)
Copyright © 2005 Regents of the University of California; Kristen A. Carpenter
*****
Justice O’Connor appears to have viewed Lyng as a case about an
owner’s desire to use his property free from limitation. Asserting the
government’s right to “use what is, after all, its land,” O’Connor evokes an
individual who faces the unwelcome intrusion of interlopers onto his
property. The reader of the Lyng opinion may think sympathetically: Well,
I wouldn’t want a bunch of Indians coming into my backyard and telling me
what to do with it, either. That reader might be somewhat relieved when
223
O’Connor expansively protects the owner from “whatever rights” those pesky
intruders might be claiming. The opinion confirms that within the confines
of his property, the owner has the near absolute and sole “right to do
whatever he wants.”
To a certain extent, O’Connor’s model requires us to suspend the
knowledge that the government’s ownership is more complicated than that
of an individual person. But even if we treat the federal government like any
other owner, the possibility still remains that the Indians as nonowners might
have property rights. Common law easements, profits, and other doctrines
quite often establish the right of a nonowner to use property owned by
someone else. Thus, establishing a common law “use” right may greatly
strengthen Indians’ claims to use sacred sites on public lands. It may also
help to challenge the notion that the Indians’ claim in Lyng amounts to an
attempt “to exact from the Government de facto beneficial ownership of
federal property.” In the normal course of property law, the assertion of use
rights does not typically require, or even involve, a claim of ownership.
Perhaps the most common legal right to use property owned by another
is the “easement.” An “express easement” is an interest in land, granted in
writing, signed by the grantor, that delineates the purposes and conditions
under which a nonowner may use an owner’s property. If the easement
benefits the grantee in the enjoyment of its own land, it will be binding on
successive owners of the burdened parcel – even decades or centuries later.
Moreover, the owner of the burdened property cannot terminate the easement
or change its scope, unilaterally. . . .
*****
Throughout much of history, however, Indian nations often lacked the
knowledge and negotiating power to bargain expressly for easements. Thus,
when they lost possession of traditional lands, they did not necessarily reserve
an express right to continue using sacred sites located on them. But the
common law recognizes that, in some instances, easements may be created
nonexpressly – through the intent and conduct of the parties. Examples of
such easements include easement implied by prior use, easement by
necessity, easement by estoppel, and easement by prescription. Once
established, these implied easements are enforceable property interests.
In at least one instance . . . an Indian tribe has successfully established a
common law right to use lands for religious purposes through a nonexpress
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easement claim. In United States v. Platt,211 the Zuni Tribe sought legal
protection for its access to a path stretching hundreds of miles from New
Mexico to Arizona. Every four years since at least 1540, forty to sixty
religious leaders had used this path to make a pilgrimage to Zuni Heaven.
The path was within the Zunis’ aboriginal territory, but the tribe had lost the
property through an 1877 Executive Order. Although subsequent legislation
allowed the Zunis to acquire certain property rights for religious purposes, the
reacquired rights did not provide access to Zuni Heaven in the traditional
manner.
At the time of the suit, rancher Earl Platt owned the lands and had
declared his intention to prevent the Zunis from crossing his land. Because
Lyng had just been decided and seemed to foreclose First Amendment relief,
the tribe decided to try a property argument instead. The Zuni Tribe argued
that, by its longtime usage of the path, it had established a limited right to use
property in the form of a prescriptive easement. Arizona law requires a
claimant seeking a prescriptive easement to show its “actual, open and
notorious, continuous and uninterrupted” possession of the property for a
period of at least ten years. The court found that the Zunis demonstrated
actual possession by using the route for religious pilgrimages for several days
every four years and by not recognizing any other claim to the land. Even
“man made obstacles will not cause the Zuni pilgrims to deviate from their
customary path. This was evidenced by the fact the pilgrims cut or take down
fences in their way.” The Zunis established continuous possession for the
statutory period of ten years by “continually us[ing] . . . the defendant’s land
for a short period of time every four years at least since 1924 and very
probably for a period of time spanning many hundreds of years prior to that
year.” Their use was open and notorious in that they made no attempt to hide
it, and the surrounding community had common knowledge of the
pilgrimage, including the route and lands that it crossed. Thus, the court
granted the Zuni Tribe a prescriptive easement to use a fifty-foot wide path
on lands owned by Earl Platt for the pilgrimage to Zuni Heaven once every
four years.
The Platt case is helpful in several regards. It underscores the theoretical
point, missed by Justice O’Connor in Lyng, that Indian nations can claim a
right to use sacred lands without claiming to own the property. In doctrinal
terms, Platt suggests that when Indian nations seek to establish a legal right
to use a sacred site, they might look to the common law of property as a basis
211
730 F. Supp. 318 (D. Ariz. 1990).
225
for their claims. In addition to the easement by prescription, there exist other
potentially helpful and related “use” rights that may arise from the parties’
intent and conduct, such as the easement implied by prior use and the
easement by necessity. All of these easements establish an affirmative right
to use property owned by someone else. An Indian tribe that establishes such
an affirmative easement will have a claim if the servient owner interferes
with the tribe’s use, such as by developing the property. In other words, the
owner will have an enforceable duty to accommodate the tribe’s use right.
This duty is not without limits. In particular, the servient owner has no
obligation to permit access beyond the scope of the original easement and
may not be required to allow access that unreasonably burdens his land.
The limits on the enforceability of easements illuminate some of the
challenges associated with using common law property doctrines in Indian
sacred sites cases. Recently, for example, some courts have allowed the
owner of the servient parcel to relocate the easement without the consent of
the easement holder, although the traditional common law rule did not permit
unilateral relocation. If the easement is for the use of a particular place that
is sacred to Indians, providing access to another location of the owner’s
choosing may not meet the Indians’ religious needs. An additional limitation
is that typically only individuals can obtain prescriptive easements, which
may be problematic in many cases where the tribe itself, as opposed to
individual Indian religious practitioners, seeks to establish a right to use the
sacred site. . . .
In addition, the common law property arguments raised above are usually
applied by state courts in private lands disputes. If Indian nations try to use
them in federal public lands cases, they will need to research the applicability
of the particular doctrine in a federal forum. For example, prescriptive
easement and adverse possession claims typically are not actionable against
governments, but there is a narrow statutory exception to this rule, allowing
certain claims against the federal government. Further, courts have
recognized the possibility of establishing implied easements on federal public
lands.
*****
Between 1789 and 1871, the United States and Indian nations negotiated
and executed hundreds of treaties. In most instances, tribes agreed to cede
huge tracts of land in exchange for the federal government’s promise that it
would protect tribal government, culture, and lifestyles on the smaller tracts
of retained lands. In addition to setting aside these “reservations,” treaties
226
reserved other tribal property rights, including rights to use lands outside of
reservations. . . .
*****
. . . Where a treaty conveyed to the government fee simple title to lands
encompassing Indian sacred sites, but reserved tribal rights to use the lands,
the treaty should be interpreted as preserving a tribal religious use.
. . . It is a rare treaty that will mention specifically tribes’ rights to use
ceded territory for religious or ceremonial purposes. Treaties more often
reserve the right to use land for hunting, fishing, gathering, or subsistence
purposes. Even though the treaty may not use the words “religion” or
“ceremony,” however, tribes may still have legitimate reserved rights claims.
As Justice O’Connor explained in Mille Lacs, the Court’s reading of treaties
is guided by certain canons of construction. Under these “Indian canons,”
courts are to interpret treaties as the Indians would have understood them,
liberally in favor of the Indians, and as preserving Indian rights.
The judicial development of the Indian canons supports their application
to sacred sites cases. In Worcester v. Georgia, Chief Justice Marshall held
that treaty language reserving land to the Cherokee Nation for a “hunting
ground” should not be construed literally or narrowly. Rather, “the term
‘hunting ground’ should be construed as the Indians would have understood
it – complete land possession and control – rather than as non-Indians would
have – at most an exclusive license to hunt.” Marshall seems to have
understood that, to the Cherokees, treaty language describing a “hunting
ground” may have meant more than place to shoot deer. It may have meant
a homeland where the Cherokee people could continue to live and govern
themselves, a place apart where they could maintain their own culture. Given
the circumstances of the treaty negotiations, Marshall interpreted the treaty
liberally in favor of the Indians’ reserved property and sovereignty rights.
*****
Moreover, in the eighteenth and nineteenth centuries, tribal negotiators
would probably have expected that a right to hunt, fish, and gather on
traditional lands would include a right to use the property for activities that
often went hand in hand with subsistence activities – even if they were
unstated in the treaty. These might include the right to be on the land, to
move across it, to set up lodging, to sleep at night, to drink from water
sources, to clean and prepare the fish and game they caught, to be with their
relatives, and to give thanks for the food. Many tribes might also have
understood that they had the right to conduct the ceremonies that were
227
interwoven with hunting, fishing, and gathering. As a Hoopa woman testified
before Congress in 1954:
To most people, hunting and fishing is [sic] a sport. To the American
Indian it is part of a religious custom. . . . [E]ven the taking of food was
a religious sacrament in a way, particular [sic] in regard to the hunting of
deer. We had a set custom that we followed in the conserving of it and
the way we used the meat and our sharing it with others and so forth.
It may be helpful to examine such claims in the context of actual treaty
language. For example, an 1803 treaty with the Kaskaskia provided: “As
long as the lands which have been ceded by this treaty shall continue to be the
property of the United States, the said tribe shall have the privilege of living
and hunting upon them in the same manner that they have hitherto done.” An
1831 treaty with the Menominee Nation provided:
The Menomonee [sic] tribe of Indians shall be at liberty to hunt and fish
on the lands they have now ceded to the United States, on the east side of
Fox river and Green bay, with the same privileges they at present enjoy,
until it be surveyed and offered for sale by the President; they conducting
themselves peaceably and orderly.
Both articulations of tribal rights to use ceded lands are relatively broad.
They could be fairly understood by tribal people to include rights to use their
traditional lands as they always had, including for religious or cultural
purposes. On the other side of the negotiations, the federal government was,
in some instances, aware of broad tribal uses of off-reservation lands. When
it became displeased with such uses, the government was fully capable of
terminating such rights.
*****
There are a number of possible critiques to a property rights approach in
sacred sites cases. . . . First, some might question the appropriateness of
using property law to describe indigenous experiences with the sacred. In the
Anglo American sense, “property” often connotes individuals’ dominion over
things and evokes a sense of absolute ownership rights. . . . However,
American Indians quite often depart from notions of absolute individual
dominion and of land as a commodity, speaking instead of the relational and
sacred nature of land in tribal communities. As Jimmie Durham, a Cherokee
litigant in Sequoyah, explained:
In the language of my people . . . there is a word for land: Eloheh. This
same word also means history, culture and religion. We cannot separate
our place on earth from our lives on the earth nor from our vision nor our
228
meaning as people. We are taught from childhood that the animals and
even the trees and plants that we share a place with are [sic] our brothers
and sisters. So when we speak of land, we are not speaking of property,
territory, or even a piece of ground upon which our houses sit and our
crops are grown. We are speaking of something truly sacred.
Particularly when the subject is a sacred site, indigenous peoples may not use
the vocabulary of property or ownership. For example, Jicarilla Apache
scholar Carey Vicenti describes “that beautiful and radiant sense of belonging
to the country from which we come.”
Given the apparent semantic and cultural disconnect, it is not surprising
that Indian nations and practitioners of tribal religions have not typically
made detailed property law claims in sacred sites cases to date. Anglo
American property law, with its focus on individual owners’ rights and the
use of land for exploitive purposes, sometimes may seem antithetical to
indigenous relationships and values regarding land. Moreover, property law
has been used to “legitimate” the conquest of Indian lands. Even when
Indians have retained property rights, U.S. courts have failed to accord them
the legal protection routinely accorded to non-Indian property.
Indian litigants and their attorneys thus justifiably are wary and critical of
property law. But there may be reasons to reconsider property law as a
source of Indian rights in the sacred sites context and beyond. Some of these
reasons are pragmatic. If federal ownership trumps Indian religious claims,
Indian attempts to bring any Free Exercise Clause claims regarding federally
owned land are doomed from the start. Advocates must try to develop
creative and effective legal arguments that restore the availability of First
Amendment review for their tribal clients. Establishing that an Indian nation,
even as a nonowner, has a legally protected property right is one way to get
courts to pay serious attention to Indians’ claims at sacred sites. Asserting
that the federal government, as an owner, has a legally enforceable property
obligation at sacred sites is another.
To state it most powerfully (and optimistically), property law may
accomplish what the First Amendment seemed unable to do in Lyng – that is,
create affirmative Indian rights and enforceable federal duties at sacred sites
owned by the government. At the very least, property law can challenge the
notion that the government’s ownership always gives it absolute rights to
destroy Indian sacred places and religions.
*****
229
Some might argue that a property rights approach sets Indians up for a big
loss – if Indians fail to establish a property interest in a sacred site (as they
often will), courts will affirm the federal government’s right to destroy sacred
sites. In this case, Lyng will have been right after all. But property law does
not operate in isolation, and Indians should also make arguments rooted in
the Constitution, statutes, and federal Indian law. Most importantly, even if
Indian nations fail to establish an enforceable right at sacred sites, they should
not face the destruction of such sites. In the most difficult cases, in which
fundamental values like the freedom of religion and cultural survival are at
issue, the parties should not fixate on who has the highest rights to property
but should work together to effectuate mutually agreeable legal solutions.
We can use property law to create the society we want to inhabit, rather than
using it to justify destructive legal decisions like Lyng.
*****
NOTES AND QUESTIONS
1. Government property ownership and free exercise claims. What role
does federal ownership of the land in question play in the majority opinion
in Lyng? Does the United States as proprietor have less responsibility to the
accommodate the religious interests of its citizens than the United States as
sovereign? Does it have more or less control of its land than other owners?
Justice O’Connor, writing for the majority, worries that giving Indians the
power to block logging or road-building in this case could lead to future cases
in which tribes or individual Indians “might seek to exclude all human
activity but their own from sacred areas of the public lands.” Is that a
realistic concern? Is it an important one? Does the dissent offer an adequate
response? Would the test it suggests allow courts to identify those sacred
sites that deserve protection and those intrusions that are sufficiently
troubling that they should be blocked? Would a balancing test of the sort the
dissent suggests mire the courts in evaluation of the strength of religious
commitments?
2. The Clinton Executive Order. How well does the 1996 Clinton
Executive Order deal with the problem of recognizing sacred sites in public
land management decisions? If this Executive Order had been in place at the
time of the Lyng case, would it have changed the decision about the G-O
road? Would it have provided any additional weapons for the plaintiffs? The
George W. Bush administration has stated in recent testimony to Congress
230
that it supports Executive Order 13007, but has so far done little to
implement it.
3. Post-Lyng controversies. Disputes over the management of public lands
containing Indian sacred sites remain common. Recent examples include
conflicts over: recreational rock-climbing at Devil’s Tower National
Monument in Wyoming, see Bear Lodge Multiple Use Association v.
Babbitt, 175 F.3d 814 (10th Cir. 1999); transfer of lands at Ward Valley, in
California’s Mojave Desert, to the state for development of a low-level
radioactive waste disposal facility; and snowmaking with reclaimed
wastewater at a ski area in Arizona. The latter dispute, which is currently in
litigation, is described in a recent newspaper report:
Four Corners tribes say they are fighting for their spiritual lives as they
sue to stop a ski area on the San Francisco Peaks from spraying what they
consider sacred mountains with snow made from reclaimed wastewater.
The Arizona Snowbowl and the U.S. Forest Service, which has approved
the ski area’s plans, argue that if the American Indians’ religious claims
prevail, it could lead to more than 550 tribes nationwide dictating how
federal agencies manage millions of acres of public lands, from the Grand
Canyon to Mount Rushmore.
Navajo Nation attorney Howard Shanker called the tribes’ lawsuit a test
of the strength of the Religious Freedom Restoration Act to protect
American Indians’ sacred sites on public land.
The Navajo Nation, with more than 250,000 members, is calling the
snowmaking scheme “genocide.” At least 13 tribes consider the peaks
sacred and strongly oppose further development there. The Sierra Club
is their co-plaintiff in the lawsuit.
*****
Outside Judge Paul Rosenblatt’s federal courtroom last week, young
drum-beating demonstrators chanted: “No desecration for recreation,”
while tribal leaders testified inside. American Indian spiritual leaders say
they pray and make offerings at the mountain. They also gather water,
plants and minerals from it for healing, purification and other rituals held
on their reservations.
“If the (manmade) snow goes into the mountain, I won’t be able to
practice my religion. The mountain would be contaminated,” testified
Frank Mapatis, a spiritual healer for the Hualapai Tribe of the Grand
Canyon. “We’re taught these things from the very beginning, when we’re
231
little children. The mountain is sacred. The water is sacred. The plants
are sacred. . . .”
Snowbowl general partner Eric Borowsky, who bought the ski area in
1992, told The Denver Post that a ski operation has been on the mountain
since 1938.
“We need to be like any other ski area in the West,” Borowsky said. “You
can’t stay in business without making snow. In 2001-2002, we were open
only four days.”
Last season, with abundant snow, the ski area experienced its best-ever
turnout, with more than 190,000 visitors.
Borowsky said the ski area has been talking to the tribes for 13 years,
“but there is no middle ground with them.”
The Forest Service has concluded that the economic benefits to Flagstaff
and ski area owners outweigh environmental impacts and the religious
concerns of American Indians who can practice their faith elsewhere on
74,000 acres of forest.
Regional Forester Harv Forsgren in June reaffirmed a decision by the
Coconino National Forest to allow the Snowbowl to pipe treated
wastewater 15 miles from Flagstaff for snowmaking on about 200 acres
of ski terrain. The decision also allows for 74 acres of new ski runs,
greater lift capacity and other upgrades at the 777-acre ski area.
The Forest Service said the improvements are necessary for the
Snowbowl to stay solvent and for skiers to have a safe, consistent
recreation experience. The Snowbowl employs about 400 people and
contributes $20 million annually to the local economy.
*****
For the 13,000-member Hopi Tribe, the San Francisco Peaks are the
home of powerful spirits, the Katsina spirit messengers (or Kachinas)
who give the rain, snow and life itself. Hopi leaders have said that some
fear that contamination of the peaks will force the Katsina to refuse Hopi
offerings or perhaps to even abandon their home.
“We take it on faith, like the (wine) and the wafer being the blood and
body of Christ,” Hopi spiritualist Bill “Bucky” Preston testified.
Preston said that putting wastewater anywhere on the peaks would taint
all that is there.
“It will destroy everything we are as Hopi people. It is a terrorist act. It
scares people,” Preston said. “This has broken my heart.”
232
Preston said the mountain has great power within and that its desecration
would lead to natural catastrophes.
Snowbowl lawyer Janice Schnieder repeatedly asked tribal witnesses
whether Indian practitioners actually spent time collecting water, minerals
and plants, or performing rituals within the small Snowbowl permit area.
All answered no but said that tainting any part of the mountain with water
that was once sewage and drainage from hospitals and mortuaries would
affect the whole mountain and violate spiritual law.
Navajo religious practitioner Larry Foster likened the small Snowbowl
ski area to a scar that the sacred mountain and Indians can live with but
said that drenching it with artificial snow would be like a fatal injection.
“If it were poisoned, it would create an imbalance. There would not be
balance among the four sacred mountains. It would be a devastation for
our people. These mountains are our altars,” Foster said. “I’m afraid we
will become extinct.”
Schneider questioned the tribes about how many sites they hold sacred,
eliciting that hundreds, if not thousands, of sites – the entire Grand
Canyon and the whole Earth to some degree – are held sacred. Then
Schneider referred to tribal rafting businesses, ski areas and to Hualapai
plans to build its own $40 million visitor center on the rim of the Grand
Canyon.
American Indian leaders argue that economic development on some
reservation lands is essential for the tribes’ survival. And the San
Francisco Peaks, among the most sacred of landscapes, are a special case.
Some Indian supporters compare the peaks’ religious significance to
Jerusalem’s.
In the 1980s, federal courts sided with the ski area and against the Navajo
and Hopi tribes in a similar case. The courts found that expansion then
of the rustic ski area would not substantially burden American Indian
religious practitioners, as they could go elsewhere on the mountain.
Electa Draper, Tribes Fight Ski Area Over Sacred Site, Denver Post, Oct. 18,
2005, at A1.
4. Tools for striking the balance. There are many different potential
approaches to deciding how to balance Indian religious or cultural interests
and other concerns in public lands management. Lyng is the leading case on
a First Amendment approach. Professor Carpenter suggests greater emphasis
on, and more robust recognition of, Native American property interests in
federal land. The Clinton Executive Order relies on a multiple-use type
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approach, calling on agencies to preserve and accommodate use of of Indian
sacred sites “to the extent practicable, permitted by law, and not clearly
inconsistent with essential agency functions.” Other potential tools include
the federal Indian trust doctrine, which recognizes that the United States has
a fiduciary duty, arising out of the historical relationship with Indian nations,
to protect tribal assets and resources, and the Religious Freedom Restoration
Act, a post-Lyng statute which provides that government actions that
substantially burden the exercise of religion must serve a compelling
government interest and use the least restrictive means to further that interest.
42 U.S.C. § 2000bb-1.
Which of these approaches best expresses the nature of Indian sacred sites
claims? Which is most likely to enjoy legal success? Which seems to you
to carry the greatest political force? To what extent should federal land
managers defer to these claims? Does the nature of the conflicting activities
matter? Should conflicts with road-building, logging, or oil extraction be
evaluated differently, for example, than conflicts with ski resort operation or
recreational climbing?
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Assignment 11: The General Mining Law
[T]he mining law embraces a rich cultural history . . . . Born in the wake
of the Civil War, it has survived the closing of the frontier, the rise of the
modern environmental movement, and through all this the continual
evolution of federal land and resource management policies. But it is not
precisely accurate to say that the Mining Law merely endured these
events; rather, the Mining Law played an important role in forging many
of them. . . . The shadow it has cast over federal land and resource
management is commensurate with its age, and its legacy, like the Mining
Law itself, is still very much with us.
John D. Leshy, The Mining Law: A Study in Perpetual Motion (1987).
The mining law was the earliest federal legislation providing for
systematic distribution of the resources of federal lands separate from
ownership of those lands. It remains the most generous, allowing miners to
remove minerals without making any payments to the government.
In 1848, when gold was discovered in California, there was very little
federal law dealing explicitly with the extraction of minerals from federal
lands. The federal government had leased, rather than disposing of, some
lands containing lead deposits, a strategic resource because of leads use in
bullets. The Supreme Court had upheld the power of the federal government
to lease mineral lands, United States v. Gratiot, 39 U.S. 526 (1840), and to
enjoin unauthorized mining, United States v. Gear, 44 U.S. 120 (1845).
Mineral lands had been excluded from the homestead acts and railroad and
state grants, but Congress had also authorized the sale of some lands known
to contain mineral resources.
The gold rush and the discovery of silver in Nevada prompted new
interest in Congress in the topic of mining on federal lands. Mineral seekers
simply fanned out across the public domain, exploring for and removing
minerals without concern about their lack of legal authority to do so. As a
practical matter, there was little the United States could do about the rush for
minerals, even had it wanted to. As an army officer who visited the Sierra
gold fields in 1848 put it:
“[U]pon considering the large extent of country, the character of the
people engaged, and the small scattered force at my command, I resolved
not to interfere, but permit all to work freely, unless boils and crimes
should call for interference. . . . Still the Government is entitled to rents
235
for this land, and immediate steps should be devised to collect them, for
the longer it is delayed the more difficult it will become.”
John D. Leshy, The Mining Law: A Study in Perpetual Motion 13 (1987).
In 1866, Congress passed the first general federal mining law. With
slight modifications, that law became the General Mining Law of 1872.
According to Professor John Leshy, Department of Interior Solicitor in the
Clinton administration and the leading authority on the mining law, even
when it was first passed the law
“looked backward by adopting a framework for the kind of mining
activity that had flowered years earlier. That activity was stridently
frontier and democratic in character – individualistic, egalitarian,
distrustful of speculation and monopoly. The land’s mineral riches would
be made available to every citizen, and the efforts of each would be
protected only to the extent that a discovery was made and pursued, and
even then within limits designed to prevent monopolization of large
deposits.”
John D. Leshy, The Mining Law: A Study in Perpetual Motion 17-18 (1987).
Federal mining law has not been static since 1872. Various public lands
and minerals have been excepted from the reach of the General Mining Law,
and mining on the federal lands is now significantly regulated by federal and
state environmental laws. Nonetheless, the key provisions of the General
Mining Law remain in place today, more than 130 years after its passage,
despite the intervening technological and social changes.
EXCERPTS FROM THE GENERAL MINING LAW
30 U.S.C. § 21. Mineral lands reserved. In all cases lands valuable for
minerals shall be reserved from sale, except as otherwise expressly directed
by law.
30 U.S.C. § 22. Lands open to purchase by citizens. Except as otherwise
provided, all valuable mineral deposits in lands belonging to the United
States, both surveyed and unsurveyed, shall be free and open to exploration
and purchase, and the lands in which they are found to occupation and
purchase, by citizens of the United States and those who have declared their
intention to become such, under regulations prescribed by law, and according
to the local customs or rules of miners in the several mining districts, so far
as the same are applicable and not inconsistent with the laws of the United
States.
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30 U.S.C. § 26. Locators’ rights of possession and enjoyment. The
locators of all mining locations made on any mineral vein, lode, or ledge,
situated on the public domain, their heirs and assigns, where no adverse claim
existed on the 10th day of May 1872 so long as they comply with the laws of
the United States, and with State, territorial, and local regulations not in
conflict with the laws of the United States governing their possessory title,
shall have the exclusive right of possession and enjoyment of all the surface
included within the lines of their locations, and of all veins, lodes, and ledges
throughout their entire depth [beneath their claim].
Other provisions of the General Mining Law limit individual claims to no
more than 20 acres, and allow claimants to obtain a patent, granting them title
in fee simple to the land claimed, upon filing of notice, certification that they
have performed at least $500 worth of labor on the site, and payment to the
federal government of $2.50 or $5 per acre, depending upon the type of
deposit found. Until patenting, mineral claimants must perform at least $100
of labor on their claims each year or pay a $100 fee to the United States.
Minerals subject to location under the General Mining Law. Despite its
seemingly unlimited language, the General Mining Law does not apply to all
mineral resources. Today, it governs only what is known as “hardrock”
mining. Energy minerals (coal, oil, and gas) and fertilizer minerals are
removed from federal lands under leasing systems (which we will discuss
shortly). “Common” minerals such as sand, stone, and gravel, are for the
most part disposed of from federal lands through competitive sale, although
uniquely valuable deposits may still be located under the mining law. George
Cameron Coggins, Charles F. Wilkinson, and John D. Leshy, Federal Public
Land and Resources Law 585 (5th ed. 2002). The distinction matters,
because the General Mining Law is more generous to claimants than any
other scheme for disposing of the resources from federal lands, imposing no
royalty on extracted minerals or rent on use of the land while the minerals are
being extracted. A creative attempt to define groundwater in Nevada as a
valuable mineral locatable under the mining law was rejected by the Supreme
Court in Andrus v. Charlestone Stone Products Co., 436 U.S. 604 (1978).
Lands open to mineral location. The mining law specifies that “except as
otherwise provided,” all valuable mineral deposits on federal lands are open
to exploration. In 1872, that exception applied to coal lands, with respect to
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which a separate law had been enacted in 1864 providing for competitive
sale, and to Yellowstone National Park, created two months before passage
of the General Mining Law.
Over the years the exception has become increasingly important.
Legislative and executive action have explicitly withdrawn extensive areas
of the federal lands from the operation of the mining law. In Oklahoma v.
Texas, 258 U.S. 574 (1922), the Supreme Court held that only federal lands
available for disposal are subject to the General Mining Law unless Congress
explicitly declares them to be open to mineral exploration. In other words,
since the mining law allows mineral claimants to take over ownership by
patenting, it is assumed not to apply where lands are not generally available
for transfer of ownership. So prospective miners were never allowed to
explore for minerals on the grounds of the Washington Monument, even
though it was not until 1976 that all national parks were legislatively declared
off limits to new mining entries. Today, about 400 million acres of federal
land, most of it on BLM and Forest Service lands, remain open to operation
of the Mining Law by legislative decree. Even these lands are subject to
withdrawal through legislative or executive action.
Locating a mining claim. State law plays a significant role in determining
the procedures that must be followed in order to perfect a claim. The Mining
Law provides that claims must be “distinctly marked on the ground.” 30
U.S.C. § 28. State law usually requires some form of posting at the site,
filing of notice with a designated county official, and some kind of work at
the site, often excavation of some sort. Coggins, Wilkinson & Leshy, Federal
Public Land and Resources Law 592 (5th Edition 2002).
Rights against other claimants. Mining claimants do not obtain enforceable
rights against the United States until they make a valuable mineral discovery.
But as a practical matter discoveries typically cannot be made without some
exploratory work on the site. If claimants were not provided with some
protection prior to discovery, chaos and free riding might well ensue. The
Mining Law, as interpreted by the courts, gives claimants who have not yet
made a discovery some rights against later claimants, under a doctrine known
as pedis possessio (literally “possession of the foot,” foothold).
[The Mining Law] extends an express invitation to all qualified persons
to explore the lands of the United States for valuable mineral deposits,
and this and the following sections hold out to one who succeeds in
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making discovery the promise of a full reward. Those who, being
qualified, proceed in good faith to make such explorations and enter
peaceably upon vacant lands of the United States for that purpose are not
treated as mere trespassers, but as licensees or tenants at will. For since,
as a practical matter, exploration must precede the discovery of minerals,
and some occupation of the land ordinarily is necessary for adequate and
systematic exploration, legal recognition of the pedis possessio of a bona
fide and qualified prospector is universally regarded as a necessity. It is
held that upon the public domain a miner may hold the place in which he
may be working against all others having no better right, and while he
remains in possession, diligently working towards discovery, is entitled
– at least for a reasonable time – to be protected against forcible,
fraudulent, and clandestine intrusions upon his possession.
Union Oil Co. v. Smith, 249 U.S. 337, 346-47 (1919).
Continental Oil Company v. Natrona Service, Inc.
Tenth Circuit, 1978.
588 F.2d 792.
O WILLIAM E. DOYLE, Circuit Judge.
This is a declaratory judgment action which was filed by Continental Oil
Company (Conoco) against Natrona Service, Inc., a Wyoming corporation,
as a diversity action. . . . The purpose of the action was to establish Conoco’s
right to exclusive possession of certain lode mining claims which it alleged
were located by it on public lands. The further allegations were: That
Conoco had employed contractors to perfect mining claims in Sweetwater
County, Wyoming, to do the necessary work in connection therewith required
by the laws of the United States and of Wyoming; the contractors were to
locate certain lode mining claims; were required to act in good faith, to file
proper mining claims under the laws of the State of Wyoming and to do the
requisite work of location, validation and recordation. The contractors
through their agents and employees (it is further alleged) entered into
possession of the lands covered by said claims and proceeded to perform the
work required by the contracts.
In addition, Conoco allegedly conducted a systematic pattern of deep
exploratory drilling in the area covered by the claims and on a portion of the
claims and allegedly drilled approximately 40,000 total feet in 48 deep holes.
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The area on which the claims were established, it was said, was reasonable
in size and the program was systematic and diligent. Conoco thus sought to
establish its rights to all of the claims, admitting that it had not actually been
present and currently working on a large number of them, but that it had been
in possession of these claims insofar as it was practical to do so and had
consistently asserted its rights to them.
Beginning on May 29, 1975, according to further allegations,
defendants-appellees Natrona Service, Inc. and John W. MacGuire
overstaked some of Conoco’s claims . . . . It is alleged that the defendants
had full knowledge of the location of the plaintiff’s claims and, in fact,
entered upon a portion of the lands covered by the said claims and notified
defendants that it had verified certain defective claims.
It is alleged, in addition, that defendants continued to carry on activities
on a portion of the plaintiff’s claims in an effort to overstake and locate
mining claims on portions of the area. Conoco, according to its allegations,
spent approximately $500,000 in its service contracts with the contractors
that it employed for the purpose of airborne reconnaissance, surface
geophysical work, surface sampling and deep exploratory drilling.
The complaint stresses that large amounts of money were spent and that
plaintiff acted at all times in good faith in its efforts to stake the claims in
accordance with the laws of the United States and of Wyoming. The prayer
is that plaintiff’s rights to exclusive possession of the mining claims
described in the complaint be recognized and that the defendants be enjoined
from interfering in any way with the plaintiff’s work and from claiming or
assuming any right, title or interest to portions of the land covered thereby,
and from attempting to enter upon or take possession of any portion of the
land. Also, damages and further relief are prayed for.
Defendants admitted overstaking some of Conoco’s claims. The basis for
this was examination of the recorded certificates in the County Clerk’s office
of Sweetwater County, Wyoming, and a determination by them that the said
certificates were falsely made. A further alleged offense was that the
purported location work of the plaintiff had been examined by the defendants,
and it was determined that they did not meet the requirements of the law for
location and discovery, marking of surface boundaries and required drilling.
The defendants sought recognition of superior rights to some 1,200
claims. Defendants’ counterclaims sought declaratory relief seeking to
establish that they had exclusive rights to the contested claims and seeking
to establish that Conoco’s remaining claims which they had not overstaked
were invalid and, therefore, open to entry and location. There were 840 in
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this latter group, and the trial court, following presentation of all of the
evidence, granted a verdict in favor of Conoco as to those which had not been
overstaked. The effect of this was to give Conoco exclusive right and control
over this group of claims for so long as it continued to perform exploratory
and development work at these sites.
The remaining contested claims were submitted to a jury. The verdict
was generally in favor of Natrona. In addition, the jury gave answers to
interrogatories submitted to it. These were tantamount to specific findings
that Conoco had not completed or substantially completed discovery; that
there was no overall work program which had been operated by Conoco in
the area claimed; that there was no such work program which was being
diligently pursued; and, finally, that there was no evidence that a significant
number of exploration holes had been systematically drilled.
Following the rendition of the verdict, the trial judge granted
plaintiff-appellant’s motion for judgment notwithstanding the verdict on
some 19 of these disputed claims. It found that the deep drilling done on
these by Conoco was sufficient to establish its right to possession under the
law.
*****
The first contention of Conoco that the trial court misapplied or failed to
apply the doctrine of pedis possessio is the central issue.
The trial court instructed the jury at length and in detail as to the meaning
of the doctrine of pedis possessio. The judge told the jury that the doctrine
is one applied by the courts to protect good faith possession by one actually
working toward discovery. The law favors the first locator, the court
continued, and protects him against a mere intruder or against one who
attempts to enter the area by force, fraud, or by clandestine means; that a
junior locator may acquire no rights based on such acts.
The court explained that the rights of the one in possession are enforced
by the courts against persons who attempt to enter in bad faith, for (such
entry) is contrary to the mining laws’ purpose which is to promote good faith
and orderly and diligent discovery and development of the mineral reserves.
The jury was told that Conoco relied on the pedis possessio doctrine and
that it is often necessary for a mineral prospector to go into a large area and
to work in that area spending substantial sums in its endeavor to make a
discovery of a valuable mineral such as uranium. The court listed the
following essential requirements necessary to Conoco’s being entitled to
exclusive possession of the claims on a group or area basis:
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First, that the area that the plaintiff is claiming is similar and the size is
reasonable.
Second, that the validation work includes drilling a hole or holes not less
than one-half inches in diameter to an aggregate depth of fifty feet with no
holes less than ten feet and with one hole designated as a discovery hole if
more than one hole has been drilled and showing it by means of a post or
permanent marker containing the name of the claim, the name of the
discoverer and locator, and the date of the discovery, marking the surface
boundaries of the claim with six substantial monuments or stakes set at the
four corners of the claim and on each side of the claim. This work must be,
the jury was told, substantially completed.
Third, that an overall work program is in effect for the area claimed.
Fourth, that the work is being diligently pursued, that is, that there is
evidence that a significant number of exploratory holes have been
systematically drilled.
Fifth, that the nature of the mineral claimed and the cost of development
would make it economically impractical to develop the mineral if the locator
were to be awarded only those claims on which he is actually present and
currently working.
Thus the trial court did depart from the strict requirements of actual
physical possession of the properties in question and gave recognition to the
theory of Conoco that it could make claim to a large number of claims
provided that it substantially complied with the requirements of the law.
The court further defined the fundamental requisites when it told the jury
that the party who makes the first discovery of valuable minerals and who
substantially complies with the location requirements is entitled to the
exclusive possession of the lands covered by the claim so long as the
claimant continues in possession and performs the annual assessment work
or the annual assessment work has been suspended during litigation.
The court also made clear to the jury that the first locator is entitled to
have the statutes liberally construed in its favor provided there has been a
good faith attempt to comply with the applicable laws; that his claim is not
to be defeated by mere technical criticism. The court said further that
Natrona and MacGuire could not obtain a superior right by relying only on
defects of Conoco’s location. For them to prevail, they would have to
affirmatively establish the failure of Conoco to render substantial and good
faith compliance with the applicable laws, and, further, that their entry upon
the land claimed by Conoco was peaceable and not by force or fraud or by
242
clandestine means and in good faith; that it would have to establish, the jury
was told, that they complied with the location or validation requirements of
the Wyoming statutes, including the filing of affidavits or statements which
truthfully reflected work performed, the date performed, persons who
performed it, the location of the work within the claim and the nature of the
mineral discovery.
*****
The trial court defined the material dispute in the case as being whether
Conoco had substantially complied with the validation requirement of the
Wyoming law. The jury was told that such compliance existed where there
had been no willful departure from the terms or duties imposed on a locator
by the mining laws, and where the work had been honestly and faithfully
performed; that a failure to drill fifty feet of hole on some of the claims
located could be a technical defect only and that it may be that Conoco had
or had not met the statutory requirements by substantially complying with
them and that this constituted a question of fact for the jury to determine from
all of the facts and circumstances.
On the question of the good faith of Natrona and MacGuire, the jury was
told that a junior locator lacks good faith when he seeks possession solely on
the basis of defects in the senior locator’s claims. Mere knowledge, the jury
was told, of a relocator that a locator claims superior rights does not
constitute bad faith when the relocator enters, but that prior location places
a duty on the locator to make inquiry to determine the extent of the adverse
party’s work performed in relation to exploration and development. Presence
or absence of good faith on the part of the defendants in entering the land
constituted a question of fact for the jury.
*****
Conoco does not seriously argue that the trial court acted contrary to law.
Conoco has candidly requested this court to write definitions and guidelines
to the application of the doctrine of pedis possessio and particularly as
applied to the large prospectors such as itself. The request is that the doctrine
of pedis possessio be extended so as to protect the locators and discoverers
of a large area and a large group of claims. We can only say in response to
this request that the trial judge did not rule out the application of the mining
laws to this type of an operation and we do not do so either. At the same time
we are powerless to change the fundamental requirements of the law and the
response has to be that the prospectors must substantially and in good faith
comply with the statutes, and this was the approach of the trial court. On the
other hand, there was considerable evidence to support a conclusion of
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insubstantial compliance by Conoco in this case. As a result, the jury could
conclude that Conoco’s possession of the embattled area was not a good faith
possession. Furthermore, the trial court resolved all doubtful issues in favor
of Conoco as a matter of law. Consequently, we are unable to grant any relief
based upon the request submitted. It is true that the evidence on behalf of
Conoco included the expenditure of large sums of money, approximately
$500,000, in airborne reconnaissance, surface geophysical work, surface
sampling and deep exploratory drilling. This presentation failed to impress
the triers of the facts that Conoco had complied.
*****
The evidence here shows that Conoco conducted this work over a long
period of time. It started in 1971 when it commenced a study of the area. On
June 1974, Conoco entered into a contract with Conrad, later to become
Meurer, Serafin & Meurer (MS&M) to stake the claim and to do validation
work, but soon thereafter Conoco was to find that Conrad was not getting the
work done within the 60-day statutory period required by Wyo. Stat. Ann. §
30-1-107. This statute provides that locators will have 60 days from the time
of discovering a lode or staking claim in which to sink a discovery shaft or
make the open cut or validation holes provided as an alternative in §
30-1-106. Notwithstanding the deficiencies of Conrad’s work, Conoco
stayed with that company. Meanwhile, it did sound out MacGuire and the
Natrona Corporation. This came to naught.
As of January 1975, Conoco discovered that Conrad was still not in
compliance with the contract or the Wyoming statute and learned that there
had been a merger with MS&M. Conoco then entered into a contract with
MS&M for it to complete the work. The date of this agreement was January
31, 1975.
There was evidence that Conoco was of the impression that the work was
being performed satisfactorily, even though it did not recheck the validation
holes due to the difficulties flowing from the residue being left in the holes
drilled with an auger-type drilling device.
There is a good deal of testimony bearing on the sufficiency or
insufficiency of the validation holes. Witnesses testified that they had, with
few exceptions, drilled to the depth required. The problem, so it was
explained, flowed from the holes collapsing after the withdrawal of the drill.
On the other hand, there were numerous witnesses on behalf of Natrona,
who testified that they had checked the validation holes and found that they
did not comply with the statutory requirements. There was evidence having
244
to do with the use of an auger-type device and the problem generally of dirt
going back into the bore hole. There was also testimony concerning the lack
of discovery monuments, in violation of the statute, § 30-1-103, Wyo. Stat.
Ann. Sometimes these were lying on the ground and sometimes there were
none. The same is true of the side centers and the end posts.
The necessary conclusion is that there was adequate evidence to support
the jury’s verdict. Thus the jury could have believed that Conoco did not
have an overall work program for the area as claimed. Also, the jury could
have validly determined that Conoco did not act in good faith, tested by the
requirement that the senior locator who has diligently pursued a claim, but by
ignorance or error has failed to fulfill a technical requirement is protected.
We cannot say that the evidence is insubstantial in support of the
conclusion that Conoco was neither diligent in pursuing its claim nor in
substantial compliance with the law. That being so, there was evidence of a
lack of good faith effort to pursue the work and to satisfy the requirements of
the law.
Nor can it be concluded that Conoco is entitled to relief in respect to
those claims which were overstaked by Natrona and MacGuire as a matter of
law. It is true that in Columbia Standard Corporation v. Ranchers
Exploration & Development, Inc., supra, the conclusion was that Columbia
was barred on account of its illegal entry. . . .
This situation is not present. No such judicial findings appear in this
record and indeed the evidence did not support any such cumulative
determination. Columbia’s entry was shown to have been a bad faith entry.
Here, on the other hand, Conoco, in respect at least to the claims which were
overstaked by Natrona, had attempted a wholesale location program which
could be said to have been designed to tie up large areas of public lands
without making any substantial effort to comply with the law.
*****
Rights against the United States
United States v. Coleman
U.S. Supreme Court, 1968.
390 U.S. 599.
245
O JUSTICE BLACK delivered the opinion of the Court.
In 1956 respondent Coleman applied to the Department of the Interior for
a patent to certain public lands based on his entry onto and exploration of
these lands and his discovery there of a variety of stone called quartzite, one
of the most common of all solid materials. It was, and still is, respondent
Coleman’s contention that the quartzite deposits qualify as “valuable mineral
deposits” under 30 U.S.C. § 22 . . . . The Secretary of the Interior held that
to qualify as “valuable mineral deposits” under 30 U.S.C. § 22 it must be
shown that the mineral can be “extracted, removed and marketed at a profit”
– the so-called “marketability test.” Based on the largely undisputed
evidence in the record, the Secretary concluded that the deposits claimed by
respondent Coleman did not meet that criterion. . . . The Secretary denied the
patent application, but respondent Coleman remained on the land, forcing the
Government to bring this present action in ejectment in the District Court
against respondent Coleman and his lessee, respondent McClennan. The
respondents filed a counterclaim seeking to have the District Court direct the
Secretary to issue a patent to them. . . .
We . . . believe that the rulings of the Secretary of the Interior were
proper. The Secretary’s determination that the quartzite deposits did not
qualify as valuable mineral deposits because the stone could not be marketed
at a profit does no violence to the statute. Indeed, the marketability test is an
admirable effort to identify with greater precision and objectivity the factors
relevant to a determination that a mineral deposit is “valuable.” It is a logical
complement to the “prudent-man test” which the Secretary has been using to
interpret the mining laws since 1894. Under this “prudent-man test” in order
to qualify as “valuable mineral deposits,” the discovered deposits must be of
such a character that “a person of ordinary prudence would be justified in the
further expenditure of his labor and means, with a reasonable prospect of
success, in developing a valuable mine * * *.” Castle v. Womble, 19 L.D.
455, 457 (1894) [opinion of the Secretary of the Interior]. This Court has
approved the prudent-man formulation and interpretation on numerous
occasions. See, for example, Chrisman v. Miller, 197 U.S. 313, 322;
Cameron v. United States, 252 U.S. 450, 459; Best v. Humboldt Placer
Mining Co., 371 U.S. 334, 335-336. Under the mining laws Congress has
made public lands available to people for the purpose of mining valuable
mineral deposits and not for other purposes. The obvious intent was to
reward and encourage the discovery of minerals that are valuable in an
economic sense. Minerals which no prudent man will extract because there
is no demand for them at a price higher than the costs of extraction and
246
transportation are hardly economically valuable. Thus, profitability is an
important consideration in applying the prudent-man test, and the
marketability test which the Secretary has used here merely recognizes this
fact.
The marketability test also has the advantage of throwing light on a
claimant's intention, a matter which is inextricably bound together with
valuableness. For evidence that a mineral deposit is not of economic value
and cannot in all likelihood be operated at a profit may well suggest that a
claimant seeks the land for other purposes. Indeed, as the Government points
out, the facts of this case – the thousands of dollars and hours spent building
a home on 720 acres in a highly scenic national forest located two hours from
Los Angeles, the lack of an economically feasible market for the stone, and
the immense quantities of identical stone found in the area outside the claims
– might well be thought to raise a substantial question as to respondent
Coleman’s real intention.
Finally, we think that the Court of Appeals’ objection to the marketability
test on the ground that it involves the imposition of a different and more
onerous standard on claims for minerals of widespread occurrence than for
rarer minerals which have generally been dealt with under the prudent-man
test is unwarranted. As we have pointed out above, the prudent-man test and
the marketability test are not distinct standards, but are complementary in that
the latter is a refinement of the former. While it is true that the marketability
test is usually the critical factor in cases involving nonmetallic minerals of
widespread occurrence, this is accounted for by the perfectly natural reason
that precious metals which are in small supply and for which there is a great
demand, sell at a price so high as to leave little room for doubt that they can
be extracted and marketed at a profit.
Hjelvik v. Babbitt
Ninth Circuit, 1999.
198 F.3d 1072.
O BRUNETTI, Circuit Judge:
This appeal involves the review of an administrative proceeding which
culminated in a decision of the Interior Board of Land Appeals (“IBLA”)
finding that fourteen unpatented mining claims held by appellees, John
Hjelvik and True Craig, Jr., were null and void for lack of discovery of
247
valuable mineral deposit. . . .
*****
The validity of a mining claim depends on the discovery of a valuable
mineral deposit. See 30 U.S.C. § 22. “[I]n order to qualify as ‘valuable
mineral deposits,’ the discovered deposits must be of such a character that ‘a
person of ordinary prudence would be justified in the further expenditure of
his labor and means, with a reasonable prospect of success, in developing a
valuable mine. . . .’ “ United States v. Coleman, 390 U.S. 599, 602 (1968).
In Coleman, the Supreme Court refined the prudent person test and held that
“profitability is an important consideration in applying the prudent-man test.”
Id. The supplemental marketability test requires a showing that the mineral
deposit can be extracted, removed, and marketed at a profit. . . .
When the government contests the validity of a mining claim for lack of
a discovery, it bears the initial burden of going forward with sufficient
evidence to establish a prima facie case that no discovery of a valuable
mineral deposit has been made. United States v. Williamson and Lapine
Pumice Co., 45 IBLA 264, 278 (1980). The IBLA has explained that:
prima facie case means that the case is adequate to support the
Government’s contest of the claim and that no further proof is needed to
nullify the claim. The Government does not have to negate the evidence
presented by the mining claimant. If the Government shows that one
essential criterion of the test was not met, it has established a prima facie
case.
Id.
Once the government establishes a prima facie case, the burden of proof
devolves to the claimant who must refute by a preponderance of the evidence
the government’s case. . . .
The principal issue here is whether the government went forward with
sufficient evidence to establish that the appropriate measure of resources for
the purpose of determining the validity of contested claims was 16,840 short
tons. In their brief to this court and at oral argument, the claimants have not
contested the IBLA’s determination that they could not mine 22,340 short
tons of chromite, the amount of resources found by the IBLA to be in place
on the contested claims, at a profit. Nor have the claimants posited that the
IBLA erred in finding that they did not preponderate on the issue of the
proper measure of resources found on the claims. Instead, they argue that the
government’s evidence did not raise the issue of the proper measure of
resources for determining the validity of the claims and that they therefore did
248
not have the burden of establishing the appropriate measure of resources at
the contest hearing. Thus, if substantial evidence supports the IBL’'s
determination that the government made a prima facie case that the proper
measure of the chromite on the contested claims was 16,840 short tons, we
must uphold the IBLA’s decision.
Where the physical presence of a mineral deposit on a claim has been
established, proof that minerals exist on the claims sufficient to justify
discovery may be evidenced by geological inferences. Geological inferences
can be used to infer sufficient quantity of similar quality mineralization
beyond the actual exposed areas where the values of the exposed deposits on
claims owned or controlled by claimants are high and relatively consistent.
Moreover, where there is evidence of exposed mineral deposit on each claim,
a series of contiguous claims may be considered as a group when determining
whether a prudent person would be justified in expending resources on
developing a mine on all of the contiguous claims.
At the initial contest hearing, the government’s expert witness Barry
Burkhardt, a certified mineral examiner for the Forest Service, testified that,
based on field examinations, sampling of minerals on the claims, and a
review of the pertinent literature, he estimated that there existed
approximately 16,840 short tons of chromite on the contested claims. Based
on a 1946 report prepared by H.L. James, he estimated that the chromite
deposits in the entire mining district equaled 112,000 short tons. Burkhardt
also testified that the deposits in the mining district are podiform and that
such deposits are “very irregular,” “randomly scattered and vary in size and
dimension.” The James report also described the mineral deposits as being
“pod like in form.”
The government submitted two mining reports prepared by Burkhardt
which concluded that the cost of mining the claims would exceed the market
value of the refined chromite. One report contained two cost estimates: one
assuming that only the indicated reserves found on the contested claims
would be mined (16,840 short tons) and the other that all the estimated
chromite deposits in the district (112,000 short tons) could be mined. The
second, earlier report only analyzed the profitability of mining all the
chromite found in the district.
At the close of the government’s presentation of evidence, the claimants
made a motion to dismiss averring that the government had failed to make a
prima facie case of invalidity. The Administrative Law Judge took the
motion under advisement and ordered supplemental briefing. In its brief in
opposition to the motion to dismiss, its reply brief in opposition to the motion
249
to dismiss and its post-hearing brief, the government expressly argued that
the claimants were not entitled to rely on the estimated reserves for the entire
mining district in order to establish a valid discovery because there was no
evidence in the record that the additional mineralization on nearby claims was
properly located or was of sufficient quantity and quality to be considered as
part of a mining group. The government also argued that the estimated size
of the entire district mining reserve was too speculative to support a geologic
inference of 112,000 tons of chromite.
Substantial evidence supports the IBLA’s determination that the
government made a prima facie case that the resources in place on the claims
totaled 16,840 short tons and that the claimants were not entitled to rely on
a geologic inference to establish a 112,000 ton reserve. Because the
claimants failed to rebut this evidence, the IBLA did not err in finding that
the established measure of resources for the purpose of determining the
validity of the claims was 22,340 short tons and that the claims did not
contain minerals of sufficient quantity or quality to constitute a discovery of
a valuable mineral.
*****
O O’SCANNLAIN , Circuit Judge, specially concurring:
I concur. I do so, however, only because I am forced to by the strict
standard of this Court’s review. . . . [W]e can reverse the Interior Board of
Land Appeals (“IBLA”) only if its decision is arbitrary, capricious, not
supported by substantial evidence, or contrary to law. Perhaps our system of
administrative law might possibly benefit from a similar constraint upon the
IBLA in its review of decisions rendered by administrative law judges
(“ALJs”).
I acknowledge that IBLA may conduct a de novo review of cases that
have already been decided by an ALJ; nevertheless, a system of review that
pays no respect to the findings of those decisionmakers most intimate with
the matter is ripe for abuse. . . . Many close cases will allow the IBLA to
make such a fatal decision without necessarily triggering the egregious breach
required . . . for this Court to remedy the misstep. The case before us may be
one such instance.
In this case, the ALJ stated specifically that the government “made a case
for approximately 112,000 short tons of indicated and inferred reserves of
mineral bearing in excess of 20 percent chromite in the immediate area on
these and other claims held by [Hjelvik].” Based on that case, the ALJ
concluded that Hjelvik was “entitled to a finding of these amounts of reserves
250
being present on the claims at a minimum.” Furthermore, in arguing the
marketability issue, the government used a 1946 report by H.L. James to
support its arguments on what method of mining could be used on these
claims, and the ALJ pointed out that the James report was a source of the
112,000 ton figure. James postulates that the approximate quantity of
“inferred chromite” is an amount “not to exceed 100,000 metric tons.” When
converted, 100,000 metric tons roughly equals 112,000 short tons.
*****
Were this Court to review the record de novo, I would have little
difficulty finding for the claimants and upholding the decision of the ALJ.
Sadly, we are bound by the standard of substantial evidence, and I must
therefore honor the decision of the IBLA.
NOTES AND QUESTIONS
1. Free access. The General Mining Law confirmed the status quo at the
time, which was of generally free access to find and extract minerals on
federal lands, without providing any notice to the federal government, and
without any obligation to pay. Since 1872, the presumption of free access for
mining has been progressively cut back, so that today it applies to
considerably less land, and allows exploitation of far fewer minerals. Can a
policy of free access be defended? Would your answer have been different
in 1872 than today? The chief benefit claimed for open access is that it
encourages and facilitates exploration by small-time prospectors. According
to Professor Leshy, however, there is little data supporting the claim that
small-time operators have played an important role in mineral discovery on
the federal lands, and such a role is increasingly unlikely given the modern
economic conditions of the industry. John D. Leshy, The Mining Law: A
Study in Perpetual Motion 51-53 (1986). The major drawback to a free
access policy is the difficulty of ensuring that claimants are motivated by
legitimate interest in exploiting the mineral resources of federal lands.
Although in the era of rapid disposal of the public domain the General
Mining Law was less generous to claimants than the Homestead Acts and
other disposal laws, today it stands as the last remaining remnant of that era.
People seeking to acquire federal lands for their scenic, recreational, or even
timber value have strong incentives to file mineral claims. Independent
studies since the 1950s have consistently found that only a small minority of
mining claims on federal lands actually produce minerals. Id. at 73-76. Free
251
access can facilitate exploitation of legitimate mining industry concerns, as
well as of government resources. Speculators can file claims in areas with
good potential for mineral production as a strategy to hold up mining
companies with the resources to exploit those minerals, rather than with the
purpose of developing those minerals on their own. Finally, a historic policy
of open access complicates the resolution of modern disputes. Open access
has encouraged the filing of numerous claims on the vague hope that they
might some day prove valuable. Stale claims, held by persons with neither
the ability nor the intent to develop them, cloud U.S. title. We will see in
Assignment 12 how the United States has attempted to eliminate these stale
claims.
2. Nineteenth century law and twenty-first century technology. What
precisely does the doctrine of pedis possessio require that a claimant do to
protect her claims against later entrants?
The Mining Law was technologically backward-looking even when first
passed, based on a paradigm of individual self-reliant prospectors finding
minerals readily exposed on the federal lands. In one respect, the Supreme
Court long ago read the Mining Law to accommodate the reality of mineral
exploration. Although the Mining Law unambiguously provides that “no
location of a mining claim shall be made until the discovery” of minerals
within the claim, 30 U.S.C. § 23, the Court held in 1919 that “the order of
time in which [location and discovery] occur is not essential . . . [,] discovery
may follow after location and five validitiy to the claim as of the time of
discovery, provided no rights of third parties have intervened.” Union Oil
Co. v. Smith, 249 U.S. 337, 347 (1919).
In other respects, particularly the 20-acre limit on claim size and the
limited protection provided during the exploration phase, the Mining Law
remains out of step with the industry. Professor Leshy notes, “Modern
exploration techniques for nearly all important hardrock minerals require
targets encompassing hundreds or thousands of acres.” John D. Leshy, The
Mining Law: A Study in Perpetual Motion 77 (1986). Should the Mining
Law be amended to remove the 20-acre limit on claim size? Should the
requirements of pedis possessio be adjusted to conform to this new reality?
In Continental Oil, the Tenth Circuit appeared willing to consider
relaxing the definition of “actual possession” to take into account the size of
the area being explored, although in that case the company failed to meet
even relaxed standards. Incentives to locate one or a handful of claims in
areas likely to be targest for exploration as a hold-up strategy. The Arizona
Supreme Court was less sympathetic in Geomet Exploration, Limited v.
252
Lucky Mc Uranium Corporation, 124 Ariz. 55, 601 P.2d 1339 (Ariz. 1979):
Conceding that actual occupancy is necessary under pedis possessio,
Lucky urges that the requirement be relaxed in deference to the time and
expense that would be involved in actually occupying and drilling on
each claim until discovery. Moreover, Lucky points out that the total area
claimed 4,000 acres is reasonable in size, similar in geological formation,
and that an overall work program for the entire area had been developed.
Under these circumstances, Lucky contends, actual drilling on some of
the claims should suffice to afford protection as to all contiguous claims.
...
To adopt the premise urged by Lucky eviscerates the actual
occupancy requirement of pedis possessio and substitutes for it the theory
of constructive possession even though there is no color of title. We are
persuaded that the sounder approach is to maintain the doctrine intact. .
.
We have canvassed the Western mining jurisdictions and found the
requirement of actual occupancy to be the majority view. . . .
There are always inherent risks in prospecting. The development of
pedis possessio from the customs of miners argues forcefully against the
proposition that exclusive right to possession should encompass claims
neither actually occupied nor being explored. We note that the doctrine
does not protect on the basis of occupancy alone; the additional
requirement of diligent search for minerals must also be satisfied. The
reason for these dual elements and for the policy of the United States in
making public domain available for exploration and mining is to
encourage those prepared to demonstrate their sincerity and tenacity in
the pursuit of valuable minerals. If one may, by complying with
preliminary formalities of posting and recording notices, secure for
himself the exclusive possession of a large area upon only a small portion
of which he is actually working, then he may, at his leisure, explore the
entire area and exclude all others who stand ready to peaceably and
openly enter unoccupied sections for the purpose of discovering minerals.
Such a premise is laden with extreme difficulties of determining over
how large an area and for how long one might be permitted to exclude
others.
We hold that pedis possessio protects only those claims actually
occupied (provided also that work toward discovery is in progress) and
does not extend to contiguous, unoccupied claims on a group or area
basis.
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3. Pedis possessio and good faith. The doctrine of pedis possessio takes
into account the good faith of both first and subsequent possessors. The first
possessor must substantially comply, in good faith, with the legal
requirements of claim location and exploration. If that is done, minor
“technical” inconsistencies with those requirements will not necessarily allow
a subsequent entrant to prevail. By the same token, later claimants must enter
in good faith. What does that require? In Continental Oil, the 10th Circuit
explains that mere knowledge of an earlier claim does not defeat the later
entrant’s good faith. What sort of inquiry is or should be required of a later
entrant?
4. Defining a “valuable mineral deposit.” Locating and beginning to
explore a claim may get a miner rights against other miners under the
doctrine of pedis possessio, but no rights accrue against the federal
government until discovery of a “valuable mineral deposit.” Why does the
Mining Law open to entry only “valuable mineral deposits in lands belonging
to the United States”? How does the Department of Interior, which is
generally responsible for implementation of the Mining Law, determine
whether a mineral deposit is “valuable”? Why can’t market forces be relied
upon to make that distinction?
The market price of many minerals, which is obviously an important
element in applying the “marketability” test fluctuates dramatically over time.
The price of gold, for example – the most widely sought mineral subject
to the Mining Law – has ranged from about $250 to $850 per ounce over
the last twenty years. A key question in determining discovery, then, is
what moment or period of time is selected to calculate the market price.
Rather amazingly, the Department [of the Interior] had traditionally
provided its mineral examiners (those responsible for preparing validity
determinations) little guidance on this issue. Consequently, examiners
made ad hoc decisions about what commodity price to use. Predictably,
practice varied widely. To make the Department’s patent review more
consistent, the BLM finally adopted a specific policy on this issue in 1998
[65 Fed. Reg. 41724 (2000)]. Where the mineral in question has widely
reported market prices and is subject to “futures” trading based on project
future market prices, mineral examiners are to use a market price
averaged over a three-year period on either side of the date the discovery
determination is made.
John D. Leshy, Mining Law Reform Redux, Once More, 42 Natural
Resources Journal 461, 467 (2002).
254
To what extent should the costs of compliance with environmental
regulation play a role in determining whether a deposit is “valuable”? Recall
that the Supreme Court in California Coastal Commission v. Granite Rock
Co., 480 U.S. 572 (1987) held that state environmental regulation of mining
on federal lands is not necessarily preempted. Is state regulation preempted
if it would impose sufficient costs to make mining non-economical? If not,
can such regulation make it impossible to perfect a claim?
255
Assignment 12: Executive Power and Its Limits
United States v. Midwest Oil Company
U.S. Supreme Court, 1915.
236 U.S. 459.
O JUSTICE LAMAR delivered the opinion of the court:
All public lands containing petroleum or other mineral oils, and chiefly
valuable therefor, have been declared by Congress to be ‘free and open to
occupation, exploration, and purchase by citizens of the United States . . .
under regulations prescribed by law.’ Act of February 11, 1897.
As these regulations permitted exploration and location without the
payment of any sum, and as title could be obtained for a merely nominal
amount, many persons availed themselves of the provisions of the statute.
Large areas in California were explored; and petroleum having been found,
locations were made, not only by the discoverer, but by others on adjoining
land. And, as the flow through the well on one lot might exhaust the oil
under the adjacent land, the interest of each operator was to extract the oil as
soon as possible, so as to share what would otherwise be taken by the owners
of nearby wells.
The result was that oil was so rapidly extracted that on September 17,
1909, the Director of the Geological Survey made a report to the Secretary of
the Interior which, with inclosures, called attention to the fact that . . . at the
rate at which oil lands in California were being patented by private parties,
it would “be impossible for the people of the United States to continue
ownership of oil lands for more than a few months. After that the
government will be obliged to repurchase the very oil that it has practically
given away. . . .” “In view of the increasing use of fuel by the American
Navy there would appear to be an immediate necessity for assuring the
conservation of a proper supply of petroleum for the government’s own use.
. . .” and “pending the enactment of adequate legislation on this subject, the
filing of claims to oil lands in the state of California should be suspended.”
This recommendation was approved by the Secretary of the Interior.
Shortly afterwards he brought the matter to the attention of the President,
who, on September 27, 1909, issued the following proclamation:
Temporary Petroleum Withdrawal No. 5.
In aid of proposed legislation affecting the use and disposition of the
petroleum deposits on the public domain, all public lands in the
256
accompanying lists are hereby temporarily withdrawn from all forms of
location, settlement, selection, filing, entry, or disposal under the mineral
or nonmineral public-land laws. All locations or claims existing and
valid on this date may proceed to entry in the usual manner after filing,
investigation, and examination.
The list attached described an area aggregating 3,041,000 acres in California
and Wyoming – though, of course, the order only applied to the public lands
therein, the acreage of which is not shown.
On March 27, 1910, six months after the publication of the proclamation,
William T. Henshaw and others entered upon a quarter section of this public
land in Wyoming, so withdrawn. They made explorations, bored a well,
discovered oil, and thereafter assigned their interest to the appellees, who
took possession and extracted large quantities of oil. On May 4, 1910, they
filed a location certificate.
As the explorations by the original claimants, and the subsequent
operation of the well, were both long after the date of the President’s
proclamation, the government filed, in the district court of the United States
for the district of Wyoming, a bill in equity against the Midwest Oil Company
and the other appellees, seeking to recover the land and to obtain an
accounting for 50,000 barrels of oil alleged to have been illegally extracted.
...
*****
We need not consider whether, as an original question, the President
could have withdrawn from private acquisition what Congress had made free
and open to occupation and purchase. The case can be determined on other
grounds and in the light of the legal consequences flowing from a
long-continued practice to make orders like the one here involved. For the
President’s proclamation of September 27, 1909, is by no means the first
instance in which the Executive, by a special order, has withdrawn lands
which Congress, by general statute, had thrown open to acquisition by
citizens. . . . Scores and hundreds of these orders have been made; and
treating them as they must be, as the act of the President, an examination of
official publications will show that he has, during the past eighty years,
without express statutory authority, but under the claim of power so to do,
made a multitude of Executive Orders which operated to withdraw public
land that would otherwise have been open to private acquisition. They
affected every kind of land-mineral and nonmineral. The size of the tracts
varied from a few square rods to many square miles, and the amount
withdrawn has aggregated millions of acres. The number of such instances
257
cannot, of course, be accurately given, but the extent of the practice can best
be appreciated by a consideration of what is believed to be a correct
enumeration of such Executive orders mentioned in public documents.
They show that prior to the year 1910 there had been issued:
99 Executive orders establishing or enlarging Indian reservations;
109 Executive orders establishing or enlarging military reservations and
setting apart land for water, timber, fuel, hay, signal stations, target
ranges, and rights of way for use in connection with military reservations;
44 Executive orders establishing bird reserves.
In the sense that these lands may have been intended for public use, they
were reserved for a public purpose. But they were not reserved in pursuance
of law, or by virtue of any general or special statutory authority. For it is to
be specially noted that there was no act of Congress providing for bird
reserves or for these Indian reservations. There was no law for the
establishment of these military reservations or defining their size or location.
There was no statute empowering the President to withdraw any of these
lands from settlement, or to reserve them for any of the purposes indicated.
But when it appeared that the public interest would be served by
withdrawing or reserving parts of the public domain, nothing was more
natural than to retain what the government already owned. And in making
such orders, which were thus useful to the public, no private interest was
injured. For, prior to the initiation of some right given by law, the citizen had
no enforceable interest in the public statute, and no private right in land
which was the property of the people. The President was in a position to
know when the public interest required particular portions of the people’s
lands to be withdrawn from entry or location; his action inflicted no wrong
upon any private citizen, and being subject to disaffirmance by Congress,
could occasion no harm to the interest of the public at large. Congress did
not repudiate the power claimed or the withdrawal orders made. On the
contrary, it uniformly and repeatedly acquiesced in the practice, and, as
shown by these records, there had been, prior to 1910, at least 252 Executive
Orders making reservations for useful, though nonstatutory, purposes.
This right of the President to make reservations – and thus withdraw land
from private acquisition – was expressly recognized in Grisar v. McDowell,
6 Wall. 364 (9), 381 (1867) where it was said that “from an early period in
the history of the government it has been the practice of the President to order
from time to time, as the exigencies of the public service required, parcels of
land belonging to the United States, to be reserved from sale and set apart for
258
public uses.”
But, notwithstanding this decision and the continuity of this practice, the
absence of express statutory authority was the occasion of doubt being
expressed as to the power of the President to make these orders. . .
It may be argued that while these facts . . . prove a usage, they do not
establish its validity. But government is a practical affair, intended for
practical men. Both officers, lawmakers, and citizens naturally adjust
themselves to any long-continued action of the Executive Department, on the
presumption that unauthorized acts would not have been allowed to be so
often repeated as to crystallize into a regular practice. That presumption is
not reasoning in a circle, but the basis of a wise and quieting rule that, in
determining the meaning of a statute or the existence of a power, weight shall
be given to the usage itself, even when the validity of the practice is the
subject of investigation.
*****
These decisions do not, of course, . . . mean that the Executive can, by his
course of action, create a power. But they do clearly indicate that the
long-continued practice, known to and acquiesced in by Congress, would
raise a presumption that the withdrawals had been made in pursuance of its
consent or of a recognized administrative power of the Executive in the
management of the public lands. This is particularly true in view of the fact
that the land is property of the United States, and that the land laws are not
of a legislative character in the highest sense of the term, “but savor
somewhat of mere rules prescribed by an owner of property for its disposal.”
Butte City Water Co. v. Baker, 196 U. S. 126.
These rules or laws for the disposal of public land are necessarily general
in their nature. Emergencies may occur, or conditions may so change as to
require that the agent in charge should, in the public interest, withhold the
land from sale; and while no such express authority has been granted, there
is nothing in the nature of the power exercised which prevents Congress from
granting it by implication just as could be done by any other owner of
property under similar conditions. The power of the Executive, as agent in
charge, to retain that property from sale, need not necessarily be expressed in
writing.
For it must be borne in mind that Congress not only has a legislative
power over the public domain, but it also exercises the powers of the
proprietor therein. Congress “may deal with such lands precisely as an
ordinary individual may deal with farming property. It may sell or withhold
259
them from sale.” Camfield v. United States, 167 U. S. 524; Light v. United
States, 220 U. S. 536. Like any other owner it may provide when, how, and
to whom its land can be sold. It can permit it to be withdrawn from sale.
Like any other owner, it can waive its strict rights, as it did when the valuable
privilege of grazing cattle on this public land was held to be based upon an
“implied license growing out of the custom of nearly a hundred years.”
Buford v. Houtz, 133 U. S. 326. So, too, in the early days, the “government,
by its silent acquiescence, assented to the general occupation of the public
lands for mining.” Atchison v. Peterson, 20 Wall. 512, 22 L. ed. 416. If
private persons could acquire a privilege in public land by virtue of an
implied congressional consent, then, for a much stronger reason, an implied
grant of power to preserve the public interest would arise out of like
congressional acquiescence.
The Executive, as agent, was in charge of the public domain; by a
multitude of orders extending over a long period of time, and affecting vast
bodies of land, in many states and territories, he withdrew large areas in the
public interest. These orders were known to Congress, as principal, and in
not a single instance was the act of the agent disapproved. Its acquiescence
all the more readily operated as an implied grant of power in view of the fact
that its exercise was not only useful to the public, but did not interfere with
any vested right of the citizen.
The appellees, however, argue that the practice thus approved related to
reservations – to cases where the land had been reserved for military or other
special public purposes – and they contend that even if the President could
reserve land for a public purpose or naval uses, it does not follow that he can
withdraw land in aid of legislation.
When analyzed, this proposition, in effect, seeks to make a distinction
between a reservation and a withdrawal – between a reservation for a purpose
not provided for by existing legislation, and a withdrawal made in aid of
future legislation. It would mean that a permanent reservation for a purpose
designated by the President, but not provided for by a statute, would be valid,
while a merely temporary withdrawal to enable Congress to legislate in the
public interest would be invalid. It is only necessary to point out that, as the
greater includes the less, the power to make permanent reservations includes
power to make temporary withdrawals. For there is no distinction in
principle between the two. The character of the power exerted is the same in
both cases. In both, the order is made to serve the public interest, and in both
the effect on the intending settler or miner is the same.
*****
260
. . . [That t]he existence of this power was recognized and its exercise by
the Executive assented to by Congress is emphasized by the fact that the
above-mentioned withdrawals were issued after the report which the
Secretary of the Interior made in 1902, in response to a resolution of the
Senate calling for information “as to what, if any, of the public lands, have
been withdrawn from disposition under the settlement or other laws by order
the Commissioner of the General Land Office, and what, if any, authority of
law exists for such order of withdrawal.”
The answer to this specific inquiry was returned March 3, 1902 (Senate
Doc. 232, 57th Cong. 1st Sess. vol. 17). On that date the Secretary
transmitted to the Senate the elaborate and detailed report of the
Commissioner of the Land Office, who, in response to the inquiry as to the
authority by which withdrawals had been made, answered that:
“The power of the Executive Department of the government to make
reservations of land for public use, and to temporarily withdraw lands
from appropriation by individuals as exigencies might demand, to prevent
fraud, to aid in proper administration, and in aid of pending legislation,
is one that has been long recognized both in the acts of Congress and the
decisions of the court; . . . that this power has been long exercised by the
Commissioner of the General Land Office is shown by reference to the
date of some of the withdrawals enumerated. . . . The attached list
embraces only such lands as were withdrawn by this office, acting on its
own motion, in cases where the emergencies appeared to demand such
action in furtherance of public interest, and does not include lands
withdrawn under express statutes so directed.”
The list, which is attached, refers to withdrawal orders, about 100 in number,
issued between 1870 and 1902. . . . .
This report refers to withdrawals, and not to reservations. It is most
important in connection with the present inquiry as to whether Congress
knew of the practice to make temporary withdrawals and knowingly assented
thereto. It will be noted that the resolution called on the Department to state
the extent of such withdrawals and the authority by which they were made.
The officer of the Land Department, in his answer, shows that there have
been a large number of withdrawals made for good, but for nonstatutory,
reasons. He shows that these 92 orders had been made by virtue of a
long-continued practice and under claim of a right to take such action in the
public interest “as exigencies might demand . . .” Congress, with notice of
this practice and of this claim of authority, received the report. Neither at that
session nor afterwards did it ever repudiate the action taken or the power
261
claimed. Its silence was acquiescence. Its acquiescence was equivalent to
consent to continue the practice until the power was revoked by some
subsequent action by Congress.
*****
O JUSTICE DAY , with whom concurred JUSTICE MCKENNA and JUSTICE VAN
DEVANTER, dissenting:
*****
The Constitution of the United States in article 4, § 3, provides: “The
Congress shall have power to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the United
States.” In this section the power to dispose of lands belonging to the United
States is broadly conferred upon Congress, and it is under the power therein
given that the system of land laws for the disposition of the public domain
has been enacted. . . .
*****
[T]he sole authority to dispose of the public lands was vested in the
Congress, and in no other branch of the Federal government. The right of the
Executive to withdraw lands which Congress has declared shall be open and
free to settlement upon terms which Congress has itself prescribed is said to
arise from the tacit consent of Congress in long acquiescence in such
Executive action, resulting in an implied authority from Congress to make
such withdrawals in the public interest as the Executive deems proper and
necessary. There is nothing in the Constitution suggesting or authorizing
such augmentation of Executive authority, or justifying him in thus acting in
aid of a power which the framers of the Constitution saw fit to vest
exclusively in the legislative branch of the government.
It is true that many withdrawals have been made by the President and
some of them have been sustained by this court, so that it may be fairly said
that, within limitations to be hereinafter stated, Executive withdrawals have
the sanction of judicial approval; but, as we read the cases, in no instance has
this court sustained a withdrawal of public lands for which Congress has
provided a system of disposition, except such withdrawal was: (a) in
pursuance of a policy already declared by Congress as one for which the
public lands might be used, as military and Indian reservations, for which
purposes Congress has authorized the use of the public lands from an early
day; or (b) in cases where grants of Congress are in such conflict that the
purpose of Congress cannot be known, and therefore the Secretary of the
262
Interior has been sustained in withdrawing the lands from entry until
Congress had opportunity to relieve the ambiguity of its laws by specifically
declaring its policy.
*****
The constitutional authority of the President of the United States (art. 2,
§§ 1, 3) includes the executive power of the nation and the duty to see that
the laws are faithfully executed. . . . The Constitution does not confer upon
him any power to enact laws or to suspend or repeal such as the Congress
enacts. The President’s powers are defined by the Constitution of the United
States, and the government does not contend that he has any general authority
in the disposition of the public land which the Constitution has committed to
Congress, and freely concedes the general proposition as to the lack of
authority in the President to deal with the laws otherwise than to see that they
are faithfully executed.
As we have said, while this court has sustained certain withdrawals made
by the Executive, in carrying out a policy for which the use of the public
lands had been indicated by congressional legislation, and has sustained the
right of withdrawal where conflicting grants had been made by Congress, and
additional legislation was needed to expressly declare the purpose of
Congress, the court has refused to sustain withdrawals made by the Executive
branch of the government when in contravention of the policy for the
disposition of the lands declared in acts of Congress. . . .
We think the rule thus stated is the result of the previous decisions of this
court, when properly construed, and is consistent with the authority over the
public lands given to Congress under the Constitution, and properly rests
Executive power to deal with such lands by way of withdrawal upon the
express or implied authority of the Congress. In other words, it may be fairly
said that a given withdrawal must have been expressly authorized by
Congress, or there must be that clear implication of congressional authority
which is equivalent to express authority; and when such authority is wanting
there can be no Executive withdrawal of lands from the operation of an act
of Congress which would otherwise control.
*****
In our opinion, the action of the Executive Department in this case,
originating in the expressed view of a subordinate official of the Interior
Department as to the desirability of a different system of public land disposal
than that contained in the lawful enactments of Congress, did not justify the
President in withdrawing this large body of land from the operation of the
263
law, and virtually suspending, as he necessarily did, the operation of that law,
at least until a different view expressed by him could be considered by the
Congress. This conclusion is reinforced in this particular instance by the
refusal of Congress to ratify the action of the President, and the enactment of
a new statute authorizing the disposition of the public lands by a method
essentially different from that proposed by the Executive.
*****
The Antiquities Act
The President’s implicit withdrawal authority today may or may not be
strictly limited by FLPMA. Even if it is, considerable explicit authority for
legislative withdrawals remains. Perhaps the broadest such authority is found
in the Antiquities Act of 1906:
16 U.S.C. § 431. National monuments; reservation of lands;
relinquishment of private claims. The President of the United States is
authorized, in his discretion, to declare by public proclamation historic
landmarks, historic and prehistoric structures, and other objects of historic or
scientific interest that are situated upon the lands owned or controlled by the
Government of the United States to be national monuments, and may reserve
as a part thereof parcels of land, the limits of which in all cases shall be
confined to the smallest area compatible with the proper care and
management of the objects to be protected. . . .
Utah Association of Counties v. Bush
District of Utah, 2004.
316 F. Supp. 2d 1172.
O BENSON , District Judge.
On September 18, 1996, President William Jefferson Clinton, invoking
his authority under the Antiquities Act, designated 1.7 million acres of federal
land in southeastern Utah as the Grand Staircase-Escalante National
Monument. . . .
*****
The Antiquities Act of 1906, 16 U.S.C. § 431, gives the President
264
authority to create national monuments. Since its enactment, presidents have
used the Antiquities Act more than 100 times to withdraw lands from the
public domain as national monuments. President Clinton’s use of the
Antiquities Act to create the Grand Staircase Monument in 1996 was the first
use of the Antiquities Act in more than two decades. . . . For purposes of this
litigation, it is helpful to look to the creation of the Act and how it has been
used and interpreted since its creation in 1906.
The original purpose of the proposed Act was to protect objects of
antiquity. The substance of the Act, developed over a period of more than six
years, was created in response to the demands of archaeological
organizations. Although the scope of the archaeological organizations’
proposals was limited to preservation of antiquities on federal lands, the
United States Department of the Interior proposed adding the protection of
scenic and scientific resources to the Act. For six years Congress rejected
attempts to include the Department’s proposal. It appears, however, that
Congress was unable to pass the limited archaeologists’ bill because of
bureaucratic delays and various disagreements between museums and
universities seeking authority to excavate ruins on public lands.
Edgar Lee Hewitt, a prominent archaeologist, drafted the bill that was
finally enacted in 1906. Government officials persuaded Hewitt to broaden
the scope of his draft by including the phrase “other objects of historic or
scientific interest.” This phrase essentially allowed the Department of the
Interior’s proposal, which Congress had previously rejected, to be included
in the final bill. In addition, while earlier proposals had limited the
reservations to 320 or at the most 640 acres, Hewitt’s draft allowed the limit
to be set according to “the smallest area compatible with the proper care and
management of the objects to be protected.” Despite the presence of this
broader language, there is some support for the proposition that Congress
intended to limit the creation of national monuments to small land areas
surrounding specific objects. Illustrative of this intent is House Report No.
2224, which states “[t]here are scattered throughout the southwest quite a
large number of very interesting ruins . . . [t]he bill proposes to create small
reservations reserving only so much land as may be absolutely necessary for
the preservation of these interesting relics.” H.R. Rep. No. 2224, 59th
Congress, 1st Sess. at 1 (1906).
Despite what may have been the intent of some members of Congress, use
of the Antiquities Act has clearly expanded beyond the protection of
antiquities and “small reservations” of “interesting ruins.” Nothing in the
language of the Act specifically authorizes the creation of national
265
monuments for scenic purposes or for general conservation purposes.
Nonetheless, several presidents have used the Act to withdraw large land
areas for scenic and general conservation purposes. President Theodore
Roosevelt was the first president to withdraw land under the Act, establishing
a precedent other presidents later followed to create large scenic monuments.
Within two years of enactment of the Act, President Roosevelt made eighteen
withdrawals of land.
*****
From 1978 to 1991, the BLM conducted various studies which resulted
in a recommendation that 1.9 million acres of [Wilderness Study Areas] in
the state of Utah should receive wilderness designation.
This
recommendation, which included some of the land now part of the Grand
Staircase Monument, was forwarded by then Secretary of the Interior Manuel
Lujan to President George H.W. Bush in October, 1991.
The
recommendation was supported by a final EIS, and more than 11 years of
BLM evaluation and public involvement. However, a change in presidential
administrations in 1992 ended discussion about the proposed designation.
Regarding Utah wilderness, the new Secretary of the Interior, Bruce
Babbitt, disagreed with the recommendations of his predecessor, believing
significantly more land should be set aside. In 1994, then BLM Director Jim
Baca wrote to an environmental group stating that the 1.9 million acre
wilderness recommendation made by former Interior Secretary Lujan was
“off the table.” However, Secretary Babbitt’s ability to undertake a new
wilderness study pursuant to Section 603 of FLPMA had expired.
Nevertheless, Secretary Babbitt testified before Congress on several
occasions, urging that a considerable number of additional wilderness areas
should be designated in Utah. . . . Eventually, however, Secretary Babbitt’s
efforts, along with all other efforts made by those in Congress to establish
wilderness in the state of Utah, were unsuccessful.
Plaintiffs contend in this litigation that the lack of success in the effort to
designate additional wilderness areas in Utah was a motivating factor behind
the President’s decision to designate the Grand Staircase Monument. Once
the proclamation was announced the affected land was preserved in much the
same manner as if it had received wilderness designation.
Plaintiffs assert, and the record appears to support, that another driving
force behind Secretary Babbitt’s, the DOI’s, and eventually the President’s
efforts to create the Grand Staircase Monument was to prevent the proposed
Andalex Smoky Hollow coal mining operation in Kane County, Utah from
coming to fruition.
266
Following this history, the Proclamation itself took place on September
18, 1996, when President Clinton stood at the south rim of the Grand Canyon
in Arizona and announced the establishment of the 1.7 million acre Utah
monument. There was virtually no advance consultation with Utah’s federal
or state officials, which may explain the decision to make the announcement
in Arizona. The monument created a good deal of controversy, heightened
even more because the presidential election was less than 8 weeks away. In
making the announcement, President Clinton emphasized his “concern[ ]
about a large coal mine proposed for the area” and his belief that “we
shouldn’t have mines that threaten our national treasures.” Remarks
Announcing the Establishment of the Grand Staircase-Escalate National
Monument, 32 Weekly Comp. Pres. Doc. 1785 (Sept. 23, 1996).
In the written Proclamation, President Clinton cited “geologic treasures”
as the initial reason for creation of the monument. Specifically, the President
noted “sedimentary rock layers . . . offering a clear view to understanding the
processes of the earth’s formation” and “in addition to several major arches
and natural bridges, vivid geological features are laid bare in narrow,
serpentine canyons, where erosion has exposed sandstone and shale deposits
in shades of red, maroon, chocolate, tan, gray, and white. Such diverse
objects make the monument outstanding for purposes of geologic study.”
Secondly, the President cited “world class paleontological sites” as grounds
for the Proclamation. According to the President, those things in need of
protection consisted of “remarkable specimens of petrified wood” and
“significant fossils, including marine and brackish water mollusks, turtles,
crocodilians, lizards, dinosaurs, fishes, and mammals. . . .” Archeological
interests in “Anasazi and Fremont cultures” were also said to be “of
significant scientific and historic value worthy of preservation for future
study.” Finally, the President mentioned the “spectacular array of unusual
and diverse soils,” “cryptobiotic crusts,” and the “many different vegetative
communities and numerous types of endemic plants and their pollinators” as
warranting protection since “[m]ost of the ecological communities contained
in the monument have low resistance to, and slow recovery from,
disturbance.”
The President’s Proclamation designating the monument required that the
BLM prepare an approved Monument Management Plan no later than
September 18, 1999. The approved Management Plan did not make the
September deadline, but was finally approved on February 28, 2000. Since
approval of the Monument Management Plan the BLM has been responsible
for management of the Grand Staircase Monument.
267
*****
Plaintiffs seek a searching review by this court of the President’s actions
in creating the Grand Staircase Monument. . . .
While there has been some debate among the United States Supreme
Court justices as to whether judicial review of executive actions by the
President are subject to judicial review at all, recent judgments have indicated
the Court’s willingness to engage in a narrowly circumscribed form of
judicial review. This willingness does not, however, allow judicial review
of sufficient scope to assist plaintiffs’ cause; long-standing United States
Supreme Court precedent has clearly foreclosed the broad review for which
plaintiffs contend:
Whenever a statute gives a discretionary power to any person, to be
exercised by him upon his own opinion of certain facts, it is a sound rule
of construction, that the statute constitutes him the sole and exclusive
judge of the existence of those facts. For the judiciary to probe the
reasoning which underlies this Proclamation would amount to a clear
invasion of the legislative and executive domains.
United States v. George S. Bush & Co., 310 U.S. 371, 380 (1940). A grant
of discretion to the President to make particular judgments forecloses judicial
review of the substance of those judgments altogether:
[W]here a claim concerns not a want of [Presidential] power, but a mere
excess or abuse of discretion in exerting a power given, it is clear that it
involves considerations which are beyond the reach of judicial power.
This must be since, as this court has often pointed out, the judicial may
not invade the legislative or executive departments so as to correct
alleged mistakes or wrongs arising from asserted abuse of discretion.
Dalton v. Specter, 511 U.S. 462, 474 (1994).
If a Court may not review the President’s judgment as to the existence of
the facts on which his discretionary judgment is based, the holdings in Dalton
and George S. Bush do leave open one avenue of judicial inquiry. Although
judicial review is not available to assess a particular exercise of presidential
discretion, a Court may ensure that a president was in fact exercising the
authority conferred by the act at issue. Thus, although this Court is without
jurisdiction to second-guess the reasons underlying the President’s
designation of a particular monument, the Court may still inquire into
whether the President, when designating this Monument, acted pursuant to
the Antiquities Act.
The Antiquities Act offers two principles to guide the President in making
268
a designation under the Act:
The President of the United States is authorized, in his discretion, to
declare by public proclamation . . . objects of historic or scientific interest
. . . to be national monuments, and may reserve as a part thereof parcels
of land, the limits of which in all cases shall be confined to the smallest
area compatible with the proper care and management of the objects to
be protected.
16 U.S.C. § 431. The Proclamation of which plaintiffs complain speaks in
detail of the Monument’s natural and archeological resources and indicates
that the designated area is the smallest consistent with the protection of those
resources. The language of the Proclamation clearly indicates that the
President considered the principles that Congress required him to consider:
he used his discretion in designating objects of scientific or historic value,
and used his discretion in setting aside the smallest area necessary to protect
those objects.
It is evident from the language of the Proclamation that the President
exercised the discretion lawfully delegated to him by Congress under the
Antiquities Act, and that finding demarcates the outer limit of judicial review.
Whether the President’s designation best fulfilled the general congressional
intention embodied in the Antiquities Act is not a matter for judicial inquiry.
This Court declines plaintiffs’ invitation to substitute its judgment for that of
the President, particularly in an arena in which the congressional intent most
clearly manifest is an intention to delegate decision-making to the sound
discretion of the President.
In addition to the plain language of the statute, there is plain language on
which this Court may rely in several United States Supreme Court decisions
upholding particular designations of natural objects as national monuments
under the Antiquities Act. In Cameron v. United States the Court quoted
from the proclamation in which President Theodore Roosevelt designated the
Grand Canyon: “The Grand Canyon, as stated in the Proclamation, ‘is an
object of unusual scientific interest.’” 252 U.S. 450, 455 (1920). Far from
indicating that only man-made objects are suitable for designation, Cameron
notes approvingly that the Canyon “affords an unexampled field for geologic
study [and] is regarded as one of the great natural wonders.” Id. at 456. The
Court in Cappaert v. United States explicitly rejected the argument offered
by the Plaintiffs before this Court: Petitioners . . . argue . . . [that] the
President may reserve federal lands only to protect archeologic sites.
However, the language of the Act which authorizes the President to
[designate] national monuments . . . is not so limited. 426 U.S. 128, 142
269
(1976). In Cappaert the Court upheld a designation of a pool inhabited by “a
peculiar race of desert fish . . . found nowhere else in the world.” Id. at 133.
The Court has also upheld a designation of islands notable for “fossils . . .
and . . . noteworthy examples of ancient volcanism, deposition, and active sea
erosion,” rather than for human artifacts. United States v. California, 436
U.S. 32, 34 (1978).
United States v. California addresses not only the President’s discretion
to designate natural objects but the geographic scope of that discretion as
well. Determining whether a designation had reserved only protruding rocks
and islets or submerged lands and waters adjacent to them as well is “a
question only of Presidential intent, not of Presidential power.” Id. at 36. In
light of this unambiguous United States Supreme Court precedent concerning
the Antiquities Act, plaintiffs’ reliance on legislative history is clearly
misplaced, and their arguments regarding the objects and area of designation
untenable.
Even if broad judicial review of the exercise of the President’s discretion
is not available, plaintiffs still contend that the procedure which led to the
designation fell . . . afoul of the requirements of the National Environmental
Policy Act (NEPA) . . . . Plaintiffs contend that defendants conspired to
violate the requirements of NEPA by (nefariously) creating a deceptive paper
trail suggesting that it was the President, rather than the DOI, who provided
the impetus to create the Grand Staircase Monument. . . . If plaintiffs’ theory
were correct, its evidence that the idea for the Grand Staircase Monument did
not originate with the President would be relevant and perhaps sufficient to
defeat a motion for summary judgment. Plaintiffs’ brief is innocent of any
legal authority, however, that would connect the premises that the DOI’s final
actions are subject to NEPA while the President’s actions under the
Antiquities Act are not, with the conclusion that it is essential for the idea of
a monument to have come from the President. Plaintiffs and defendants are
correct that the requirements of NEPA do not apply to the exercise of
presidential discretion under the Antiquities Act. To the extent that DOI
takes action that could be characterized as final agency action for the
purposes of the APA, Plaintiffs are also correct that the requirements of
NEPA apply to DOI actions. However, plaintiffs do not cite any legal
authority, nor is the Court aware of any, which suggests that these
considerations affect the exercise of presidential authority pursuant to the
Antiquities Act. Plaintiffs err in importing a requirement of presidential
inspiration into the Antiquities Act’s grant of authority to the President.
*****
270
Assuming that plaintiffs are correct, that the original idea for the
Monument was entirely the creature of the DOI, the actions of the DOI had
no direct and immediate impact on the plaintiffs. It was the President’s
action, and not the action of the DOI, that had the legal effect of creating the
Monument, and the DOI’s activities therefore do not constitute final agency
action reviewable under the APA.
In contrast to the limited judicial review discussed above, judicial review
to determine the constitutionality of a President’s acts may be appropriate.
...
Plaintiffs contend that Congress violated both the delegation doctrine (or
perhaps more accurately, the non-delegation doctrine) and the Property
Clause by giving the President, under the Antiquities Act, virtually unfettered
discretion to regulate and make rules concerning federal property. Neither
contention has merit. While it is true that Congress has the express authority
under the Constitution’s Property Clause to “dispose of and make all needful
Rules and Regulations respecting the Territory or other Property belonging
to the United States,” it is equally true that Congress may delegate this
authority as it deems appropriate, and any delegation is constitutionally
permissible if Congress provides standards to guide the authorized action
such that one reviewing the action could recognize whether the will of
Congress has been obeyed.
The Antiquities Act sets forth clear standards and limitations. The Act
describes the types of objects that can be included in national monuments and
a limitation on the size of monuments. Although the standards are general,
“Congress does not violate the Constitution merely because it legislates in
broad terms, leaving a certain degree of discretion to executive or judicial
actors.” Touby v. United States, 500 U.S. 160, 165 (1991). Accordingly, the
non-delegation doctrine is not violated, nor is the Property Clause, which has
repeatedly been construed as allowing Congress to delegate its authority to
the executive and judicial branches, including the power to “dispose of and
make all needful Rules and Regulations respecting the Territory or other
Property belonging to the United States.” U.S. Const. Art. IV, § 3, cl. 2.
*****
. . . Plaintiffs allege that in his designation of the Grand Staircase
Monument the President and the other defendants violated NEPA, FLPMA,
FACA and the Anti-Deficiency Act. These statutes, however, provide no
private right of action to an aggrieved party.
Because none of these statutes provide private rights of action the
271
plaintiffs are left with the insurmountable task in this case of demonstrating
final agency action to invoke review under the APA. As stated previously in
this Opinion the Supreme Court of the United States has declared that the
President is not an agency and cannot be defined as such under the APA. It
follows that actions taken by the President pursuant to congressionally
delegated authority cannot be considered final agency action.
Also as discussed previously in this Opinion, plaintiffs’ contention that
the defendant lower-level executive branch officials’ recommendations to the
President constituted final agency action is also without merit.
Recommendations and actions taken by the lower-level executive branch
officials encouraging designation of the Grand Staircase Monument
constituted nothing more than recommendations and assistance to the
President and failed to meet the legal requirements for final agency action.
All decisions and actions constituting final action were made by the President
in his official capacity. The ultimate decision to create the Grand Staircase
Monument rested with, belonged to, and was made by, President Clinton.
*****
NOTES AND QUESTIONS
1. Implied executive authority. In Midwest Oil, what was the basis of the
President’s authority to withdraw the lands in question? How important was
it that the withdrawal was temporary? That the oil rush threatened to deplete
all of the oil (an important fuel mineral) on the west coast? How similar was
this withdrawal to those in which the Court concluded Congress had
previously acquiesced? Does this decision validate any executive
withdrawal, or only withdrawals for specific purposes? Does it validate
executive authority to exploit federal lands, rather than to prevent their
exploitation? Suppose Congress had declared some or all federal lands off
limits to oil exploration. Would this decision allow the President to issue an
Executive Order opening those lands to oil development?
2. The impact of Congressional action. As the Court noted in Midwest Oil,
the President already had repeatedly withdrawn federal land from entry and
reserved it for specific purposes without specific legislative grants of
authority. When Theodore Roosevelt created the first National Wildlife
Refuge, for example, he is famously reputed to have asked not whether any
legislation authorized his action but rather whether any legislation prohibited
272
it.
In the 1976 Federal Land Policy and Management Act (FLPMA),
Congress finally sought to put an end to the doctrine of Congressional
acquiescence in executive withdrawals. FLPMA includes the following
provision: “Effective on and after the date of approval of this Act, the
implied authority of the President to make withdrawals and reservations
resulting from acquiescence of the Congress (U.S. v. Midwest Oil Co., 236
U.S. 459) . . . [is] repealed.” Pub. L. No. 94-579, 90 Stat. 2743, § 704
(1976). Is this repeal effective? Does it matter whether the President
continues to withdraw land after enactment of FLPMA, and if so how the
Congress reacts?
3. The Antiquities Act. Since its passage in 1906, the Antiquities Act has
been used aggressively by a number of presidents to withdraw federal lands.
Although the Antiquities Act often escapes notice in conversations
about important environmental legislation, it has, in fact, been one of the
most powerful conservation tools of this century. In keeping with its
grant of independent presidential withdrawal authority, the Antiquities
Act, as initially enacted, was intended to allow the President to make only
small withdrawals of public lands in order to protect prehistoric ruins and
Indian artifacts. Yet, as soon as the Act was enacted, presidents began to
rely on its language allowing withdrawal of “other objects of historic or
scientific interest” to accomplish much larger withdrawals.
Within two years of enactment, President Theodore Roosevelt
proclaimed eleven national monuments, including 800,000 acres as the
Grand Canyon National Monument, relying most often on the Act's
“scientific interest” language to justify the withdrawals. Since its
enactment in 1906, presidents have used the Antiquities Act 102 times to
withdraw lands from the public domain as national monuments. Prior to
designation of the Grand Staircase, the most recent use of the Act was by
President Jimmy Carter in 1978, when he invoked it to place some
fifty-six million acres of Alaska within seventeen different national
monuments.
James R. Rasband, Utah’s Grand Staircase: The Right Path to Wilderness
Preservation?, 70 University of Colorado Law Review 483 (1999).
Antiquities Act withdrawals have frequently been controversial, but no
such withdrawal has ever been successfully challenged in litigation. In 1920,
the Supreme Court upheld the authority of Teddy Roosevelt to set aside more
than 270,000 acres for the Grand Canyon National Monument. Cameron v.
273
United States, 252 U.S. 450 (1920). Since then, the federal courts have
consistently deferred to Presidential determinations that the lands withdrawn
contain “objects of historic or scientific interest” and that withdrawals are
“confined to the smallest area compatible” with proper management of those
objects. See, e.g., Tulare County v. Bush, 308 F.3d 1138 (D.C. Cir. 2002)
(upholding Clinton’s designation late in his presidency of the Giant Sequoia
National Monument, containing over 327,000 acres).
Do you agree with the Utah Association of Counties court that the
Antiquities Act contains sufficient intelligible principles to survive challenge
under the non-delegation doctrine? Are their any effective limits on the
President’s choices under the Act? Assuming the President’s staff are
creative, could objects of historic or scientific interest be described on all
federal lands? Will Presidential withdrawals be adequately constrained by
political checks? Note that many large Antiquities Act withdrawals have
been made by lame duck Presidents, often just before leaving the White
House. On the other hand, is a judicial check on Antiquities Act withdrawals
necessary, given that Congress can override those withdrawals?
In addition, because Antiquities Act withdrawals are made directly by the
President, many statutes that impose procedural requirements on federal
agency actions do not apply. The President, for example, is not subject to the
National Environmental Policy Act. Antiquities Act withdrawals can, if the
President so chooses, be carried out with no opportunity for public
participation in the affected area or elsewhere. Presidents acting under the
Act have routinely not invited public participation. According to Professor
Rasband, “in the case of the Grand Staircase withdrawal, the Clinton
Administration worked assiduously to avoid it, keeping the Monument plans
secret up until the last minute.” James R. Rasband, Utah’s Grand Staircase:
The Right Path to Wilderness Preservation?, 70 University of Colorado Law
Review 483 (1999). Is that troubling? Should the Antiquities Act be
amended to prohibit an “end-run” around participation requirements that
would apply if lands were withdrawn through FLPMA procedures? Do the
benefits of allowing quick action outweigh the costs of allowing the President
to forego any consultation with the affected public?
274
Assignment 13: Patenting and Property Rights
United States v. Locke
Supreme Court of the United States, 1985.
471 U.S. 84.
O JUSTICE MARSHALL delivered the opinion of the Court.
The primary question presented by this appeal is whether the Constitution
prevents Congress from providing that holders of unpatented mining claims
who fail to comply with the annual filing requirements of the Federal Land
Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1744, shall
forfeit their claims.
I
From the enactment of the general mining laws in the 19th century until
1976, those who sought to make their living by locating and developing
minerals on federal lands were virtually unconstrained by the fetters of
federal control. The general mining laws, 30 U.S.C. § 22 et seq., still in effect
today, allow United States citizens to go onto unappropriated, unreserved
public land to prospect for and develop certain minerals. “Discovery” of a
mineral deposit, followed by the minimal procedures required to formally
“locate” the deposit, gives an individual the right of exclusive possession of
the land for mining purposes, 30 U.S.C. § 26; as long as $100 of assessment
work is performed annually, the individual may continue to extract and sell
minerals from the claim without paying any royalty to the United States, 30
U.S.C. § 28. For a nominal sum, and after certain statutory conditions are
fulfilled, an individual may patent the claim, thereby purchasing from the
Federal Government the land and minerals and obtaining ultimate title to
them. Patenting, however, is not required, and an unpatented mining claim
remains a fully recognized possessory interest. Best v. Humboldt Placer
Mining Co., 371 U.S. 334, 335 (1963).
By the 1960s, it had become clear that this 19th-century laissez faire
regime had created virtual chaos with respect to the public lands. In 1975, it
was estimated that more than six million unpatented mining claims existed
on public lands other than the national forests; in addition, more than half the
land in the National Forest System was thought to be covered by such claims.
S. Rep. No. 94-583, p. 65 (1975). Many of these claims had been dormant
for decades, and many were invalid for other reasons, but in the absence of
275
a federal recording system, no simple way existed for determining which
public lands were subject to mining locations, and whether those locations
were valid or invalid. As a result, federal land managers had to proceed
slowly and cautiously in taking any action affecting federal land lest the
federal property rights of claimants be unlawfully disturbed. Each time the
Bureau of Land Management (BLM) proposed a sale or other conveyance of
federal land, a title search in the county recorder's office was necessary; if an
outstanding mining claim was found, no matter how stale or apparently
abandoned, formal administrative adjudication was required to determine the
validity of the claim.
After more than a decade of studying this problem in the context of a
broader inquiry into the proper management of the public lands in the modern
era, Congress in 1976 enacted the FLPMA. Section 314 of the Act
establishes a federal recording system that is designed both to rid federal
lands of stale mining claims and to provide federal land managers with
up-to-date information that allows them to make informed land management
decisions. For claims located before FLPMA’s enactment, the federal
recording system imposes two general requirements. First, the claims must
initially be registered with the BLM by filing, within three years of FLPMA’s
enactment, a copy of the official record of the notice or certificate of location.
43 U.S.C. § 1744(b). Second, in the year of the initial recording, and “prior
to December 31” of every year after that, the claimant must file with state
officials and with BLM a notice of intention to hold the claim, an affidavit of
assessment work performed on the claim, or a detailed reporting form. 43
U.S.C. § 1744(a). Section 314(c) of the Act provides that failure to comply
with either of these requirements “shall be deemed conclusively to constitute
an abandonment of the mining claim . . . by the owner.” 43 U.S.C. § 1744(c).
The second of these requirements – the annual filing obligation – has
created the dispute underlying this appeal. Appellees, four individuals
engaged “in the business of operating mining properties in Nevada,”
purchased in 1960 and 1966 ten unpatented mining claims on public lands
near Ely, Nevada. These claims were major sources of gravel and building
material: the claims are valued at several million dollars, and, in the
1979-1980 assessment year alone, appellees’ gross income totaled more than
$1 million. Throughout the period during which they owned the claims,
appellees complied with annual state-law filing and assessment work
requirements. In addition, appellees satisfied FLPMA’s initial recording
requirement by properly filing with BLM a notice of location, thereby putting
their claims on record for purposes of FLPMA.
276
At the end of 1980, however, appellees failed to meet on time their first
annual obligation to file with the Federal Government. After allegedly
receiving misleading information from a BLM employee,7 appellees waited
until December 31 to submit to BLM the annual notice of intent to hold or
proof of assessment work performed required under § 314(a) of FLPMA, 43
U.S.C. § 1744(a). As noted above, that section requires these documents to
be filed annually “prior to December 31.” Had appellees checked, they
further would have discovered that BLM regulations made quite clear that
claimants were required to make the annual filings in the proper BLM office
“on or before December 30 of each calendar year.” 43 C.F.R. § 3833.2-1(a)
(1980). Thus, appellees’ filing was one day too late.
This fact was brought painfully home to appellees when they received a
letter from the BLM Nevada State Office informing them that their claims
had been declared abandoned and void due to their tardy filing. In many
cases, loss of a claim in this way would have minimal practical effect; the
7
An affidavit submitted to the District Court by one of appellees'
employees stated that BLM officials in Ely had told the employee that the
filing could be made at the BLM Reno office “on or before December 31,
1980.” Affidavit of Laura C. Locke, p. 3. The 1978 version of a BLM
question and answer pamphlet erroneously stated that the annual filings had
to be made “on or before December 31” of each year. Staking a Mining
Claim on Federal Lands 9-10 (1978). Later versions have corrected this error
to bring the pamphlet into accord with the BLM regulations that require the
filings to be made “on or before December 30.”
Justice Stevens and Justice Powell seek to make much of this pamphlet
and of the uncontroverted evidence that appellees were told a December 31
filing would comply with the statute. However, at the time appellees filed in
1980, BLM regulations and the then-current pamphlets made clear that the
filing was required “on or before December 30.” Thus, the dissenters’
reliance on this pamphlet would seem better directed to the claim that the
United States was equitably estopped from forfeiting appellees’ claims, given
the advice of the BLM agent and the objective basis the 1978 pamphlet
provides for crediting the claim that such advice was given. The District
Court did not consider this estoppel claim. Without expressing any view as
to whether, as a matter of law, appellees could prevail on such a theory, see
Heckler v. Community Health Services of Crawford County, Inc., 467 U.S.
51 (1984), we leave any further treatment of this issue, including fuller
development of the record, to the District Court on remand.
277
claimant could simply locate the same claim again and then rerecord it with
BLM. In this case, however, relocation of appellees’ claims, which were
initially located by appellees’ predecessors in 1952 and 1954, was prohibited
by the Common Varieties Act of 1955, 30 U.S.C. § 611; that Act
prospectively barred location of the sort of minerals yielded by appellees’
claims.
Appellees’ mineral deposits thus escheated to the Government. After
losing an administrative appeal, appellees filed the present action in the
United States District Court for the District of Nevada. Their complaint
alleged, inter alia, that § 314(c) effected an unconstitutional taking of their
property without just compensation and denied them due process. On
summary judgment, the District Court held that § 314(c) did indeed deprive
appellees of the process to which they were constitutionally due. The District
Court reasoned that § 314(c) created an impermissible irrebuttable
presumption that claimants who failed to make a timely filing intended to
abandon their claims. Rather than relying on this presumption, the
Government was obliged, in the District Court’s view, to provide
individualized notice to claimants that their claims were in danger of being
lost, followed by a post-filing-deadline hearing at which the claimants could
demonstrate that they had not, in fact, abandoned a claim. Alternatively, the
District Court held that the one-day late filing “substantially complied” with
the Act and regulations.
Because a District Court had held an Act of Congress unconstitutional in
a civil suit to which the United States was a party, we noted probable
jurisdiction under 28 U.S.C. § 1252. We now reverse.
*****
III
A
Before the District Court, appellees asserted that the § 314(a) requirement
of a filing “prior to December 31 of each year” should be construed to require
a filing “on or before December 31.” Thus, appellees argued, their December
31 filing had in fact complied with the statute, and the BLM had acted ultra
vires in voiding their claims.
. . . It is clear to us that the plain language of the statute simply cannot
sustain the gloss appellees would put on it. . . . While we will not allow a
literal reading of a statute to produce a result “demonstrably at odds with the
intentions of its drafters,” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,
571 (1982), with respect to filing deadlines a literal reading of Congress’
278
words is generally the only proper reading of those words. To attempt to
decide whether some date other than the one set out in the statute is the date
actually “intended” by Congress is to set sail on an aimless journey, for the
purpose of a filing deadline would be just as well served by nearly any date
a court might choose as by the date Congress has in fact set out in the statute.
. . Faced with the inherent arbitrariness of filing deadlines, we must, at least
in a civil case, apply by its terms the date fixed by the statute.
Moreover, BLM regulations have made absolutely clear since the
enactment of FLPMA that “prior to December 31” means what it says. . . .
Leading mining treatises similarly inform claimants that “[i]t is important to
note that the filing of a notice of intention or evidence of assessment work
must be done prior to December 31 of each year, i.e., on or before December
30.” 2 American Law of Mining § 7.23D, p. 150.2 (Supp. 1983) (emphasis
in original).
If appellees, who were businessmen involved in the running of a major
mining operation for more than 20 years, had any questions about whether a
December 31 filing complied with the statute, it was incumbent upon them,
as it is upon other businessmen, to have checked the regulations or to have
consulted an attorney for legal advice. Pursuit of either of these courses,
rather than the submission of a last-minute filing, would surely have led
appellees to the conclusion that December 30 was the last day on which they
could file safely.
*****
We cannot press statutory construction “to the point of disingenuous
evasion” even to avoid a constitutional question. Moore Ice Cream Co. v.
Rose, 289 U.S. 373, 379 (1933) (Cardozo, J.). We therefore hold that BLM
did not act ultra vires in concluding that appellees’ filing was untimely.
B
Section 314(c) states that failure to comply with the filing requirements
of §§ 314(a) and 314(b) “shall be deemed conclusively to constitute an
abandonment of the mining claim.” We must next consider whether this
provision expresses a congressional intent to extinguish all claims for which
filings have not been made, or only those claims for which filings have not
been made and for which the claimants have a specific intent to abandon the
claim. . . .
Although § 314(c) is couched in terms of a conclusive presumption of
“abandonment,” there can be little doubt that Congress intended § 314(c) to
cause a forfeiture of all claims for which the filing requirements of §§ 314(a)
279
and 314(b) had not been met. . . .
*****
IV
Much of the District Court’s constitutional discussion necessarily falls
with our conclusion that § 314(c) automatically deems forfeited those claims
for which the required filings are not timely made. The District Court’s
invalidation of the statute rested heavily on the view that § 314(c) creates an
“irrebuttable presumption that mining claims are abandoned if the miner fails
to timely file” the required documents – that the statute presumes a failure to
file to signify a specific intent to abandon the claim. But, as we have just
held, § 314(c) presumes nothing about a claimant’s actual intent; the statute
simply and conclusively deems such claims to be forfeited. As a forfeiture
provision, § 314(c) is not subject to the individualized hearing requirement
of such irrebuttable presumption cases as Vlandis v. Kline, 412 U.S. 441
(1973), or Cleveland Bd. of Education v. LaFleur, 414 U.S. 632 (1974), for
there is nothing to suggest that, in enacting § 314(c), Congress was in any
way concerned with whether a particular claimant’s tardy filing or failure to
file indicated an actual intent to abandon the claim.
There are suggestions in the District Court’s opinion that, even
understood as a forfeiture provision, § 314(c) might be unconstitutional. We
therefore go on to consider whether automatic forfeiture of a claim for failure
to make annual filings is constitutionally permissible. The framework for
analysis of this question, in both its substantive and procedural dimensions,
is set forth by our recent decision in Texaco, Inc. v. Short, 454 U.S. 516
(1982). There we upheld a state statute pursuant to which a severed mineral
interest that had not been used for a period of 20 years automatically lapsed
and reverted to the current surface owner of the property, unless the mineral
owner filed a statement of claim in the county recorder’s office within 2 years
of the statute’s passage.
A
Under Texaco, we must first address the question of affirmative
legislative power: whether Congress is authorized to “provide that property
rights of this character shall be extinguished if their owners do not take the
affirmative action required by the” statute. Id. at 525. Even with respect to
vested property rights, a legislature generally has the power to impose new
regulatory constraints on the way in which those rights are used, or to
condition their continued retention on performance of certain affirmative
duties. As long as the constraint or duty imposed is a reasonable restriction
280
designed to further legitimate legislative objectives, the legislature acts within
its powers in imposing such new constraints or duties. “[L]egislation
readjusting rights and burdens is not unlawful solely because it upsets
otherwise settled expectations.” Usery v. Turner Elkhorn Mining Co., 428
U.S. 1, 16 (1976).
This power to qualify existing property rights is particularly broad with
respect to the “character” of the property rights at issue here. Although
owners of unpatented mining claims hold fully recognized possessory
interests in their claims, see Best v. Humboldt Placer Mining Co., 371 U.S.
334, 335 (1963), we have recognized that these interests are a “unique form
of property.” Ibid. The United States, as owner of the underlying fee title to
the public domain, maintains broad powers over the terms and conditions
upon which the public lands can be used, leased, and acquired. See, e.g.,
Kleppe v. New Mexico, 426 U.S. 529, 539 (1976).
A mining location which has not gone to patent is of no higher quality
and no more immune from attack and investigation than are unpatented
claims under the homestead and kindred laws. If valid, it gives to the
claimant certain exclusive possessory rights, and so do homestead and
desert claims. But no right arises from an invalid claim of any kind. All
must conform to the law under which they are initiated; otherwise they
work an unlawful private appropriation in derogation of the rights of the
public.
Cameron v. United States, 252 U.S. 450, 460 (1920).
Claimants thus must take their mineral interests with the knowledge that
the Government retains substantial regulatory power over those interests. In
addition, the property right here is the right to a flow of income from
production of the claim. Similar vested economic rights are held subject to
the Government’s substantial power to regulate for the public good the
conditions under which business is carried out and to redistribute the benefits
and burdens of economic life.
Against this background, there can be no doubt that Congress could
condition initial receipt of an unpatented mining claim upon an agreement to
perform annual assessment work and make annual filings. That this
requirement was applied to claims already located by the time FLPMA was
enacted and thus applies to vested claims does not alter the analysis, for any
“retroactive application of [FLPMA] is supported by a legitimate legislative
purpose furthered by rational means.” Pension Benefit Guaranty Corporation
v. R.A. Gray & Co., 467 U.S. 717, 729 (1984). The purposes of applying
FLPMA’s filing provisions to claims located before the Act was passed – to
281
rid federal lands of stale mining claims and to provide for centralized
collection by federal land managers of comprehensive and up-to-date
information on the status of recorded but unpatented mining claims – are
clearly legitimate. In addition, § 314(c) is a reasonable, if severe, means of
furthering these goals; sanctioning with loss of their claims those claimants
who fail to file provides a powerful motivation to comply with the filing
requirement, while automatic invalidation for noncompliance enables federal
land managers to know with certainty and ease whether a claim is currently
valid. Finally, the restriction attached to the continued retention of a mining
claim imposes the most minimal of burdens on claimants; they must simply
file a paper once a year indicating that the required assessment work has been
performed or that they intend to hold the claim. Indeed, appellees could have
fully protected their interests against the effect of the statute by taking the
minimal additional step of patenting the claims. As a result, Congress was
well within its affirmative powers in enacting the filing requirement, in
imposing the penalty of extinguishment set forth in § 314(c), and in applying
the requirement and sanction to claims located before FLPMA was passed.
B
We look next to the substantive effect of § 314(c) to determine whether
Congress is nonetheless barred from enacting it because it works an
impermissible intrusion on constitutionally protected rights. With respect to
the regulation of private property, any such protection must come from the
Fifth Amendment’s proscription against the taking of private property
without just compensation. On this point, however, Texaco is controlling:
“This Court has never required [Congress] to compensate the owner for the
consequences of his own neglect.” 454 U.S. at 530. Appellees failed to
inform themselves of the proper filing deadline and failed to file in timely
fashion the documents required by federal law. Their property loss was one
appellees could have avoided with minimal burden; it was their failure to file
on time – not the action of Congress – that caused the property right to be
extinguished. Regulation of property rights does not “take” private property
when an individual’s reasonable, investment-backed expectations can
continue to be realized as long as he complies with reasonable regulatory
restrictions the legislature has imposed. . . .
C
Finally, the Act provides appellees with all the process that is their
constitutional due. In altering substantive rights through enactment of rules
of general applicability, a legislature generally provides constitutionally
adequate process simply by enacting the statute, publishing it, and, to the
282
extent the statute regulates private conduct, affording those within the
statute’s reach a reasonable opportunity both to familiarize themselves with
the general requirements imposed and to comply with those requirements. .
..
Here there can be no doubt that the Act’s recording provisions meet these
minimal requirements. Although FLPMA was enacted in 1976, owners of
existing claims, such as appellees, were not required to make an initial
recording until October 1979. This three-year period, during which
individuals could become familiar with the requirements of the new law,
surpasses the two-year grace period we upheld in the context of a similar
regulation of mineral interests in Texaco. Moreover, the specific annual
filing obligation at issue in this case is not triggered until the year after which
the claim is recorded initially; thus, every claimant in appellees’ position
already has filed once before the annual filing obligations come due.
That these claimants already have made one filing under the Act indicates
that they know, or must be presumed to know, of the existence of the Act and
of their need to inquire into its demands.16 The requirement of an annual
filing thus was not so unlikely to come to the attention of those in the position
of appellees as to render unconstitutional the notice provided by the 3-year
grace period.
*****
The judgment below is reversed, and the case is remanded for further
proceedings consistent with this opinion.
[Justice O’Connor concurred, but observed that the question whether
BLM’s actions had estopped it from using the filing deadline to “extinguish
a property interest that has provided a family’s livelihood for decades”
remained open for consideration on remand. Justice Powell dissented on the
ground that the statutory phrase “prior to December 31” was
unconstitutionally vague in light of the “natural tendency to interpret this
phrase as ‘by the end of the calendar year.’” Justice Stevens, joined by
16
As a result, this is not a case in which individual notice of a statutory
change must be given because a statute is “sufficiently unusual in character,
and triggered in circumstances so commonplace, that an average citizen
would have no reason to regard the triggering event as calling for a
heightened awareness of one’s legal obligations.” Texaco, 454 U.S. at 547
(Brennan, J., dissenting).
283
Justice Brennan, also dissented, finding the “unique factual matrix” – an
ambiguous statute, with which the Lockes had attempted to comply, under
circumstances in which BLM allegedly had not provided clear notice to
claimholders, and where a valuable active mine was at stake – justified a
finding of “substantial compliance” with the statute.]
South Dakota v. Andrus
Eighth Circuit, 1980.
614 F.2d 1190.
O HENLEY , Circuit Judge.
This is an appeal from a judgment entered by The Honorable Andrew W.
Bogue of the United States District Court for the District of South Dakota
dismissing the State of South Dakota’s suit in which the State sought
declaratory and injunctive relief to compel the United States Department of
Interior to prepare an Environmental Impact Statement (EIS) prior to its
issuance of a mineral patent to the Pittsburgh Pacific Company (Pittsburgh).
On appeal the State contends that the district court erred and asks us to
reverse and remand this case for a trial on the merits. After careful review of
the district court’s judgment, we affirm.
I
Pittsburgh filed an application under the General Mining Act of 1872, 30
U.S.C. § 21 et seq., for a mineral patent to twelve contiguous twenty acre
mining claims located within the Black Hills National Forest in Lawrence
County, South Dakota. Pittsburgh claimed discovery of some 160 million
tons of relatively low grade iron ore and sought a mineral patent covering the
discovery lands. Pittsburgh proposed to mine 96 million tons of the ore
through open pit mining at an annual rate of approximately seven million
long tons a year. The general plan of operation also included processing the
best of this ore into hard pellets as well as loading these pellets into railroad
cars for shipping.
In 1971, however, Pittsburgh’s application for a mineral patent was
contested, at the request of the United States Forest Service, by the Bureau
of Land Management. The Bureau contended that Pittsburgh had not
discovered a valuable mineral deposit under the 1872 Mining Act. The
Administrative Law Judge nonetheless dismissed the complaint and approved
284
the mineral patent.
*****
Subsequently, the State filed an original action in federal district court
seeking to compel preparation of an EIS prior to the issuance of a mineral
patent naming as defendants the United States Department of the Interior and
Pittsburgh. Both defendants moved to dismiss contending the issuance of a
mineral patent is not a major federal action which requires an EIS, and Judge
Bogue granted the motion.
II
The issue on this appeal is whether the United States Department of the
Interior is required by § 102(2)(C) of the National Environmental Policy Act
to file an EIS prior to the issuance of a mineral patent.
Our starting point is, of course, the statutory language. Section 102(2)(C)
provides in part that an EIS is required for “major Federal actions which
significantly affecting the quality of the human environment.” Applied to this
case, § 102(2)(C) mandates the filing of an EIS if (1) the issuance of a
mineral patent is an “action” within the meaning of the provision, and (2) the
alleged federal action is “major” in the sense that it significantly affects the
quality of the human environment.
We turn first to the question whether the granting of a mineral patent
constitutes an “action” within the meaning of NEPA. As the district court
noted, it is well established that the issuance of a mineral patent is a
ministerial act. Both the Supreme Court, in a series of decisions in the early
part of this century, Wilbur v. United States ex rel. Krushnic, 280 U.S. 306,
318-19 (1929); Cameron v. United States, 252 U.S. 450, 454 (1920); Roberts
v. United States, 176 U.S. 221, 231 (1900), and, more recently, the Interior
Board of Land Appeals, United States v. Kosanke Sand Corp., 12 IBLA 282,
290-91 (1973); United States v. O’Leary, 63 ID 341 (1956),3 have so
3
As the district court observed, * * * the Board, in United States v.
Kosanke Sand Corp., supra, concluded:
Upon satisfaction of the requirements of the statute, the holder of a
valid mining claim has an absolute right to a patent from the United
States conveying fee title to the land within the claim, and the actions
taken by the Secretary of the Interior in processing an application for
patent by such claimant are not discretionary; issuance of a patent can
be compelled by court order. The patent may contain no conditions
not authorized by law. The claimant need not, however, apply for
285
concluded. Ministerial acts, however, have generally been held outside the
ambit of NEPA’s EIS requirement. Reasoning that the primary purpose of
the impact statement is to aid agency decisionmaking, courts have indicated
that nondiscretionary acts should be exempt from the requirement.
In light of these decisions, it is at least doubtful that the Secretary's
nondiscretionary approval of a mineral patent constitutes an “action” under
§ 102(2)(C).
But even if a ministerial act may in some circumstances fall within §
102(2) (C), we still cannot say that the issuance of a mineral patent is a
“major” federal action under the statute. This conclusion does not stem from
the court’s belief that an agency itself must propose to build a facility and
directly affect the environment in order to constitute a “major” federal action
within the meaning of NEPA. We fully recognize that NEPA’s impact
statement procedure has been held to apply where the federal government
grants a lease, issues a permit or license, or approves or funds state highway
projects.
In each of these cases, however, an agency took a “major” federal action
because it enabled a private party to act so as to significantly affect the
environment. . . . But in the instant case, the granting of a mineral patent
does not enable the private party, Pittsburgh, to do anything. Unlike the case
where a lease, permit or license is required before the particular project can
begin, the issuance of a mineral patent is not a precondition which enables a
party to begin mining operations.
As the Supreme Court noted in Union Oil Co. v. Smith, 249 U.S. 337
(1919), if a qualified locator of a mining claim locates, marks and records his
claim to unappropriated public lands in accordance with federal and local
law, he has an “exclusive right of possession to the extent of his claim as
located, with the right to extract the minerals, even to exhaustion, without
paying any royalty to the United States as owner, and without ever applying
for a patent . . . .” Id. at 348-49. Furthermore, in Wilbur v. United States ex
rel. Krushnic, supra, 280 U.S. at 316-17, the Court revealed:
patent to preserve his property right in the claim, but may if he
chooses continue to extract and freely dispose of the locatable
minerals until the claim is exhausted, without ever having acquired
full legal title to the land. The patent, if issued, conveys fee simple
title to the land within the claim, but does nothing to enlarge or
diminish the claimant’s right to its locatable mineral resources.
286
The rule is established by innumerable decisions of this Court, and of
state and lower federal courts, that, when the location of a mining claim
is perfected under the law, it has the effect of a grant by the United States
of the right of present and exclusive possession . . . so long as he
complies with the provisions of the mining laws, his possessory right, for
all practical purposes of ownership, is as good as though secured by
patent.
*****
In light of the fact that a mineral patent in actuality is not a federal
determination which enables the party to mine, we conclude in present
context that the granting of such a patent is not a “major” federal action
within the meaning of § 102(2)(C).
*****
Swanson v. Babbitt
Ninth Circuit, 1993.
3 F.3d 1348.
O TROTT , Circuit Judge:
The major issue presented by this case is whether the provisions of the
Sawtooth National Recreation Area Act, 16 U.S.C. § 460aa et seq., preclude
the issuance of mill site patents, even though the patent applications for those
sites were pending at the time of the enactment of the Act. We hold that the
provisions of the Sawtooth National Recreation Area Act expressly preclude
the issuance of any patents on protected land after the date of the Act’s
passage. We further hold that a patent right does not vest upon the
submission of a patent application if the Secretary of the Interior contests the
validity of the patent application and thus delays its issuance.
I
BACKGROUND
This case involves the patenting of mining claims and mill sites under the
General Mining Law of 1872, 30 U.S.C. § 21 et seq. Under the provisions
of the Mining Act, an individual may enter and explore land in the public
domain in search of valuable mineral deposits. After minerals are
discovered, the claimant may file a “mining claim” with the Bureau of Land
287
Management (BLM), which if approved, entitles the claimant to the right of
exclusive possession of that claim, as long as the requirements of the Mining
Act are met. Although ownership of a mining claim does not confer fee title
to the claimant, the claimant does have the right to extract all minerals from
the claim without paying royalties to the United States. In addition, a
claimant may file a claim for a “mill site,” which is “nonmineral land . . .
[which] is used or occupied by the proprietor . . . for mining or milling
purposes.” 30 U.S.C. § 42(a). A mill site is a tract of land, not to exceed five
acres, on which can be placed processing facilities and other structures used
to support the extraction of minerals from the claim. A claimant must follow
essentially the same process to obtain a mill site as a mining claim.
An individual who possesses a valid mining claim may go through an
additional process to obtain a patent, “thereby purchasing from the Federal
Government the land and minerals and obtaining ultimate title to them.
Patenting, however, is not required, and an unpatented mining claim remains
a fully recognized possessory interest.” United States v. Locke, 471 U.S. 84,
86 (1985); 30 U.S.C. § 29. A patented mining claim is one in which the
government has passed its title to the claimant, giving him exclusive title to
the locatable minerals, and, in most cases, the surface and all resources. At
any time prior to the issuance of a patent, the government may challenge the
validity of the mining claim and, if successful, the claim will be cancelled
with all rights forfeited. Mill sites may also be patented. 30 U.S.C. § 42(a).
In the early 1960s, appellant Elmer Swanson purchased from a silver
mining company several patented mining claims, a number of unpatented
claims, and a corresponding number of mill sites all located within the state
of Idaho. These claims and sites lie within the Challis National Forest, in
what is now the Sawtooth National Recreation Area. On April 21, 1967,
Swanson applied for patents for the unpatented claims and mill sites.
Following the filing of the application for patents, the BLM lodged
complaints in 1968 and 1971 contesting the validity of the mill site claims.
The BLM maintained the requested mill sites were not being used for mining
and milling purposes and that the sites were not laid out in as reasonable and
regular a form as practicable.
The Administrative Law Judge (ALJ) hearing the complaint in July 1972
invalidated the unpatented mining claims, but generally sustained the validity
of the mill sites. On appeal, the Interior Board of Land Appeals (IBLA)
affirmed the invalidation of the claims, but reversed the ALJ and concluded
the mill sites did occupy more land than was necessary. Before rendering a
final decision, the IBLA requested that both sides submit amended mill site
288
plans to conform to the necessary land requirements. Swanson refused to
amend the sites, however, and the IBLA adopted the United States Forest
Service's recommendations and greatly reduced the size of seven of the mill
sites on January 16, 1974. Although this case initially involved both mining
claims and mill sites, the only issue before this court is the patentability of
these seven mill sites.
Swanson appealed the IBLA’s decision to the district court. On June 3,
1982, the court reversed the IBLA’s invalidation of four of the seven mill
sites, because it concluded the IBLA did not take into account all necessary
uses of the mill site locations when it determined the reasonable size
necessary for those sites. The court did uphold the partial invalidation of
three of the other mill sites. The IBLA reconsidered its assessment and, on
July 14, 1986, determined two of the four remanded claims were invalid.
Swanson again appealed to the district court, but before a decision was
rendered, the parties reached a settlement agreement on April 4, 1991. The
agreement settled a number of the other disputed mining claims between the
parties in addition to the mill site claims at issue. In the portion of the
settlement relevant to this appeal, Swanson agreed to reduce in size by
seventy five feet each of the seven mill site locations at issue in this appeal.
This amaranthine litigation would have mercifully concluded with that
settlement agreement were it not for an intervening Act of Congress. On
August 22, 1972, Congress enacted the Sawtooth National Recreation Area
Act (SNRA), 16 U.S.C. §§ 460aa et seq., which expressly terminated the
ability of individuals to establish mining claims and mill sites, and also
terminated the ability of existing claimholders to proceed to patent upon
claims already located in the Recreation Area. 16 U.S.C. §§ 460aa-9,
460aa-11.
Swanson’s claims are included entirely within the boundaries of the
Recreation Area. Because Swanson had applied for but had not been issued
his patents before the enactment of the SNRA, the district court in 1982
upheld the IBLA’s 1974 denial of his patent, stating:
It appears evident that the purpose of [the provisions of the SNRA] was
meant to prevent any further patenting of land within the Sawtooth
National Recreation Area. The Board’s interpretation of the statute
establishing the Sawtooth National Recreation Area appears to be well
considered and proper. The Court will not reconsider the Board’s holding.
While the plaintiffs [sic] may well have filed for a patent on his claims
before the statute establishing the Sawtooth National Recreation Area
was passed, he had not completed the process when the Secretary's
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authority to issue patents was suspended. Thus, the Board was correct in
not permitting the mill sites to go to patent.
The district court’s judgment order on July 1, 1991, which approved the
settlement agreement, did not disturb the court’s 1982 determination that
Swanson could not obtain patents on his mill sites. Swanson now appeals
that determination.
II
PATENTABILITY OF MILL SITES
In determining whether the SNRA prohibits the granting of Swanson's
requested patents, the court should first look to the plain language of the
statute. “We must uphold an agency’s construction of a statute if it is
consistent with the unambiguous language of Congress, or if the statute is
ambiguous, if it is reasonable.” Webb v. Lujan, 960 F.2d 89, 92 (9th Cir.
1992) (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-43 (1984)). . . .
Two provisions of the Sawtooth National Recreation Area Act apply in
this case. The provision known as “Section 10” states:
Subject to valid existing rights, all Federal lands located in the recreation
area are hereby withdrawn from all forms of location, entry, and patent
under the mining laws of the United States.
16 U.S.C. § 460aa-9. This provision withdraws the land within the SNRA
from all future mining claims. “Section 12,” which applies to Swanson’s
claims, extinguishes the right of existing claim holders to proceed to patent
on any claim already established within the SNRA. That provision states:
Patents shall not hereafter be issued for locations and claims heretofore
made in the recreation area under the mining laws of the United States.
16 U.S.C. § 460aa-11. The effective date of the SNRA was August 22, 1972.
The plain language of the statute precludes the issuance of a patent to
Swanson after 1972, regardless of when the application was filed. Section 12
states no patents will “hereafter be issued,” even on claims which had
“heretofore” been established. The legislative history of the SNRA indicates
Congress recognized this provision would extinguish a claimant's existing
right to patent. As one Congressman noted: “As I have pointed out, any
person holding a valid claim is entitled to proceed to patent and thereby
acquire fee title to the lands involved. Section 12, in effect, extinguishes that
right with respect to lands located within the recreation area.” 118 Cong.
Rec. 1256 (1972). The IBLA’s interpretation and application of the SNRA
is not inconsistent with Congress’s clear direction in the language of the Act:
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no patents can be issued after August 22, 1972, regardless of when the mining
claims were actually made. “If the intent of Congress is clear, the court must
give effect to that intent.” Seldovia, 904 F.2d at 1341.
There is no question the government has the authority to withdraw public
lands from mining upon the establishment of National Recreation Areas.
Until a patent is issued, the government has broad authority to manage public
lands. “Prior to patent the Secretary retains jurisdiction over public lands.”
Reed v. Morton, 480 F.2d 634, 642 (9th Cir. 1973). “[I]t has long been
recognized that the Secretary of Interior has broad plenary powers over the
disposition of public lands.” Ideal Basic Industries, Inc. v. Morton, 542 F.2d
1364, 1367 (9th Cir. 1976). The government may also withdraw public lands
from mining under the Mining Act. “Only where the United States has
indicated that the lands are held for disposal under the land laws does the
[Mining Act] apply; and it never applies where the United States directs that
the disposal be only under other laws.” Oklahoma v. Texas, 258 U.S. 574,
600 (1922). Thus, until Swanson’s patent was actually issued, the
government retained broad authority to remove those public lands from
mining claims and patents, as it did in 1972.
We hold the IBLA properly rejected Swanson’s patent application
because the plain language of the SNRA prohibits the issuance of any patent
on mining claims or mill sites after August 22, 1972.
III
PROPERTY INTEREST
The conclusion the SNRA precludes the issuance of all patents after 1972
does not end our analysis. Swanson argues he had a vested patent right as of
the date of application and therefore the SNRA’s extinguishment of patent
rights affected a taking of his property without compensation, in derogation
of his rights under the Fifth Amendment. Swanson is correct in asserting that
vested patent rights constitute property. Federal mining claims are “private
property” which enjoy the full protection of the Fifth Amendment. Freese v.
United States, 639 F.2d 754, 757 (Ct. Cl. 1981). Furthermore, “the
divestment of a vested right to a patent is tantamount to divestment of the
patent itself, i.e., a divestment of property.” Freese, 639 F.2d at 758.
Because Section 12 of the SNRA prohibits the issuance of all patents, if
Swanson had a vested right to those patents, he would have a claim for
compensation under the Fifth Amendment for the taking of his property.
The question we must resolve, then, is whether Swanson had a vested
right to a patent at the time of the SNRA’s enactment on August 22, 1972.
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The right to a patent accrues when the claimant has filed a proper patent
application and has paid his fee, regardless of when the Department of the
Interior fulfills its purely administerial function of issuing the patent. Other
courts have recognized the Department’s approval of a valid patent
application is non-discretionary and is purely a “ministerial act.” See South
Dakota v. Andrus, 614 F.2d 1190, 1193-1194 (8th Cir. 1980). Once a valid
application has been made, “the holder of a valid mining claim has an
absolute right to a patent . . . and the actions taken by the Secretary of the
Interior in processing an application for patent by such claimant are not
discretionary; issuance of a patent can be compelled by court order.” Id. at
1193 n.3. See also Wilbur v. United States, 280 U.S. 306 (1930) (issuing
writ of mandamus ordering Secretary to confer mineral patent to a claimant
who had successfully demonstrated compliance with the statutory
prerequisites).
For a patent right to vest upon application, however, the patent
application must have been valid under existing law and the delay in the
patent issuance must have been attributed to mere administerial delay in
processing the otherwise valid application. The validity of Swanson’s
application in this case, however, was contested by the Department. The
Department determined Swanson was seeking more land for his mill sites
than was necessary for the mining operations.
The Secretary of the Interior has a responsibility to ensure patent
applications comply with existing law. . . .
[N]o right arises from an invalid claim of any kind. All must conform to
the law under which they are initiated; otherwise they work an unlawful
private appropriation in derogation of the rights of the public. Of course,
the land department has no power to strike down any claim arbitrarily, but
so long as the legal title remains in the Government it does have power,
after proper notice and upon adequate hearing, to determine whether the
claim is valid and, if it be found invalid, to declare it null and void.
Cameron v. United States, 252 U.S. 450, 460 (1920). “The law is
well-settled that this vested right does not arise until there has been full
compliance with the extensive procedures set forth in the federal mining laws
for the obtaining of a patent.” Freese, 639 F.2d at 758.
In Benson Mining and Smelting Co. v. Alta Mining and Smelting Co.,
145 U.S. 428 (1892), the Supreme Court decided that as long as the claimant
had complied with applicable claims laws up to the point where the patent
application was filed, his failure to adhere to those regulations applying to
unpatented claims after the application was filed but before the actual patent
292
was issued did not invalidate his claim. The Court determined his patent
rights had vested upon his submitting a valid patent application and proper
payment:
In other words, when the price is paid the right to a patent immediately
arises. If not issued at once, it is because the magnitude of the business
in the Land Department causes delay. But such delay, in the mere
administration of affairs, does not diminish the rights flowing from the
purchase, or cast any additional burdens on the purchaser, or expose him
to the assaults of third parties.
Id. at 431-32 (emphasis added). The Court went on to state: “[A] party who
has complied with all the terms and conditions which entitle him to a patent
for a particular tract of public land, acquires a vested interest therein, and is
to be regarded as the equitable owner thereof.” Id. at 433.
The Secretary, as he is required to do by law, contested the validity of
Swanson’s patent application. There is no evidence the Department’s
protests were made in bad faith or were deliberately designed to delay the
processing of Swanson’s claims until the enactment of the SNRA. When the
matter was finally resolved in 1986, Swanson agreed to mill site locations
smaller in size than the sites he had initially requested in 1967. Because the
delay in the issuance of Swanson’s patent application was not attributable to
the Department’s purely ministerial and administrative functions but resulted
from the Department’s challenge of the size of Swanson’s mill site requests,
whatever patent rights Swanson might have possessed did not vest until the
resolution of those claims in 1986.
Because Swanson’s patent rights did not vest before the passage of the
SNRA, the prohibition on the issuance of patents did not deprive Swanson
of any cognizable property interest. The United States Court of Claims has
already determined the SNRA’s prohibition on the issuance of patents does
not take “property” where the claimant has been deprived of only the future
option to apply for a patent. Freese, 639 F.2d at 758. “At best, plaintiff has
suffered a denial of the opportunity to obtain greater property than that which
he owned upon the effective date of the Sawtooth Act. This cannot fairly be
deemed the divestment of a property interest, save by the most overt
bootstrapping.” Id.
*****
NOTES AND QUESTIONS:
1. Stale claims and filing requirements. Do you agree with the Supreme
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Court’s decision in United States v. Locke? If so, how do you respond to the
Lockes’ claim that the application of section 314 of FLPMA to them was
draconian and fundamentally unfair? If not, how could the Court have
written an opinion that did not call into question the constitutionality of all
filing deadlines and statutes of limitation? Is this situation distinguishable
from state laws that require periodic re-recording of easements and
covenants? From statutes of limitations that require assertion of rights within
a prescribed period?
2. Fairness and conflicting interests. What interests does the statute at
issue in Locke serve? How effectively does it serve those interests? How
difficult would it have been for the miners in Locke to comply with the
statute? How else could the miners have protected their interests? Does the
United States’ interest in maintaining a current inventory of mining claims
on the public lands justify this type of interference with the interests of the
miners? Note that on remand the Court left open the possibility that the
United States might be estopped by the advice given the Lockes by BLM
official in Ely. How should that estoppel claim be resolved?
3. Other requirements for maintaining valid claims. Beginning in 1993,
Congress has required (through a series of short-term provisions) that holders
of more than ten unpatented mining claims pay a $100 annual holding fee in
lieu of the assessment work requirement of the Mining Law. 30 U.S.C. § 28f.
(Persons holding ten or fewer claims are permitted either to pay the holding
fee or to perform $100 worth of assessment work.) In Kunkes v. United
States, 78 F.3d 1549 (Fed. Cir. 1996), a married couple who had failed to pay
the filing fee claimed that the consequent forfeiture of their unpatented
mining claims constituted a taking of property. The Kunkes owned 573
claims; thus, their total fees for 1993 and 1994 were $115,600. They sued for
damages in the amount of $575 million. In rejecting the takings claim, the
Court of Appeals for the Federal Circuit relied heavily on Locke:
It is important to remember the type of property at issue here. Congress
created unpatented mining claims expressly to encourage development
and extraction of minerals, i.e., to exploit valuable mineral deposits. It
is entirely reasonable for Congress to require a $100 per claim fee in
order to assess whether the claim holders believe that the value of the
minerals in their claims is sufficiently great to warrant such a payment;
and whether claim holders have the resources and desire to develop these
claims. If the claims are not valued by the claim holders sufficiently to
warrant a $100 fee payment, then the claim holders’ decision not to pay
the fee eliminates an unnecessary encumbrance on public lands and frees
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the land for a more valued use. If the claim holder cannot pay a $100 per
claim fee, it is unlikely that she would be able solely through her own
labor to develop the deposits, thereby frustrating the fundamental purpose
in creating rights to unpatented mining claims.
Id. at 1556. The relatively minor requirements imposed in the 1990s to hold
mining claims have helped to reduce the number of outstanding claims “from
well over a million in the 1980s to about 200,000 at the end of Fiscal Year
2000.” John D. Leshy, Mining Law Reform Redux, Once More, 42 Natural
Resources Journal 461, 467 (2002).
4. Patents as ministerial acts. Do you agree with the decision in South
Dakota v. Andrus that the granting of a patent under the General Mining Law
of 1872 is a “ministerial act”? What section of the law compels or justifies
this conclusion? Is there no discretion in determining whether or not a
claimant is entitled to a patent?
5. Application of NEPA. Federal courts have generally held that
“nondiscretionary acts” are exempt from the environmental review
requirements of the National Environmental Policy Act. What justifies that
conclusion? Would environmental review of patenting decisions serve the
goals of NEPA to improve agency decisions or to inform the public of the
environmental consequences of those decisions? Can the Department of
Interior refuse to issue a patent to mineral lands based on environmental
concerns? Even if it cannot, would information developed in environmental
review of a patent application be useful for other purposes? Can the U.S.
regulate the environmental impacts of mining on patented lands? Will there
be another opportunity for environmental review of those impacts?
6. Patent application review and property rights. In Swanson v. Babbitt,
the Court of Appeals observed that, because “the delay in the issuance of
Swanson’s patent application was not attributable to the Department’s purely
ministerial and administrative functions but resulted from the Department’s
challenge of the size of Swanson’s mill site requests, whatever patent rights
Swanson might have possessed did not vest until the resolution of those
claims in 1986.” Accordingly, the court concluded, “the prohibition on the
issuance of patents did not deprive Swanson of any cognizable property
interest.” Does this decision create incentives for BLM to find picayune
flaws in patent applications? Is this a good or bad result? Suppose the delay
had been attributable to BLM’s administrative functions. Suppose, for
example, that the delay was due to a backlog at the BLM office, caused by a
lack of qualified patent application reviewers. Would Swanson have been
entitled to a patent, or at least to compensation for the fair market value of the
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patent? What if the delay had been due to a challenge to the application that
was ultimately rejected? Suppose there had been no delay and no flaw in the
application, but that Congress enacted the Sawtooth National Recreation Area
Act after the application was filed but before BLM had acted on it. Would
Swanson then have been entitled to a patent? If not, would the United States
have to pay Swanson compensation?
7. The patenting moratorium. Soon after the Clinton administration took
office in 1993, Interior Secretary Bruce Babbitt ordered that patent
applications be processed in Washington rather than in regional BLM offices,
and imposed more stringent review requirements. In the 1994 Department
of Interior appropriations bill, Congress forbade the use of appropriated funds
for to accept or process new patent applications under the Mining Law. Pub.
L. 103-332, § 112, 108 Stat. 2499. That moratorium has been renewed every
year since 1994. In the fall of 2005, Rep. Jim Gibbons (R-Nev.) and Rep.
Richard Pombo (R-Cal.), managed to briefly attach to a key budget bill a
provision that would have lifted the moratorium and allowed patenting of
lands adjacent to mining claims for “economic development.” In the face of
bipartisan opposition, the full House removed the patent provision before
voting on the budget bill.
8. A tempest in a teapot? In Chambers v. Harrington, 111 U.S. 350, 353
(1884), the Supreme Court stated: “The patent adds little to the security of the
party in continuous possession of a mine he has discovered or bought.” Does
this statement remain accurate today? What advantages does a mining
claimant gain by patenting? Why is there so much political maneuvering and
litigation about patenting?
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Assignment 14: Access Issues
A. PUBLIC ACCESS TO LAND SUBJECT TO MINING CLAIMS
United States v. Curtis-Nevada Mines, Inc.
Ninth Circuit, 1980.
611 F.2d 1277.
O HUG , Circuit Judge:
This case concerns the right of the general public to use the surface of
land upon which unpatented mining claims have been located, when that use
does not interfere with mining activities. The principal issue is whether the
owner of unpatented mining claims has the right to exclude members of the
general public from such use of the surface of the land for recreational
purposes or access to other public lands unless they have obtained a specific
governmental permit or license for such use. . . .
The United States brought this action to enjoin Curtis-Nevada Mines, Inc.
and its president, Robert Curtis, from prohibiting members of the public from
using the surface of appellees’ unpatented mining claims for recreational
purposes or for entrance to adjacent National Forest lands. Since 1970,
appellees located approximately 203 mining claims on public lands
administered by the Bureau of Land Management under the Department of
the Interior and on lands within the Toiyabe National Forest administered by
the Forest Service under the Department of Agriculture. These claims cover
approximately 13 square miles; 21 of the claims are in Nevada and the
remainder in California. This action arose after appellees prevented members
of the public from entering their unpatented mining claims and barred access
to several roads which crossed their claims.
I
Curtis states that he located and filed the 203 claims after stumbling upon
an outcropping of valuable minerals while on a deer hunting trip. He states
that, within this 13-mile area, he has located gold, platinum, copper, silver,
tungsten, pitchblend, palladium, triduim, asmium, rhodium, ruthenium,
scanduim, vanduim, ytterbuim, yttrium, europium, and “all the rare earths.”
These minerals he maintains have a value in the trillions. The mining activity
of the appellees was very limited. At the time this litigation was instituted
there was only one employee, who performed chiefly caretaking duties such
as watching after equipment and preventing the public from entering the
297
claims.
Hunters, hikers, campers and other persons who had customarily used the
area for recreation were excluded by the appellees. Curtis posted “no
trespassing” signs on the claims and constructed barricades on the Blackwell
Canyon Road and the Rickey Canyon Road, which lead up into the mountains
and provide access to the Toiyabe National Forest. After receiving numerous
complaints, the United States filed this action asserting the rights of the
general public to the use of the surface of the mining claims. The district
court heard the matter on cross motions for summary judgment and held:
(A)ny member of the public, who possesses a license or permit from any
state or federal agency which allows that person to engage in any form of
recreation on public land, including National Forests, can enter onto the
surface of unpatented mining claims in order to engage in that recreation,
or to gain access to another area to engage in that recreation, so long as
there is no interference with ongoing mining operations.
415 F.Supp. at 1378. The court denied the request of the United States that
Curtis be enjoined from using guards or manned gates. The court held that
Curtis can use gates or barricades if personnel are available to remove the
barricades for persons requesting admittance with a proper permit.
II
Section 4(b) of the Multiple Use Act provides in pertinent part:
Rights under any mining claim hereafter located under the mining laws
of the United States shall be subject, prior to issuance of patent therefor,
to the right of the United States to manage and dispose of the vegetative
surface resources thereof and to manage other surface resources thereof
(except mineral deposits subject to location under the mining laws of the
United States). Any such mining claim shall also be subject, prior to
issuance of patent therefor, to the right of the United States, its
permittees, and licensees, to use so much of the surface thereof as may be
necessary for such purposes or for access to adjacent land: Provided,
however, That any use of the surface of any such mining claim by the
United States, its permittees or licensees, shall be such as not to endanger
or materially interfere with prospecting, mining or processing operations
or uses reasonably incident thereto . . . .
30 U.S.C. § 612(b).
As noted by the district court, the meaning of “other surface resources”
and of “permittees and licensees” is somewhat ambiguous. The principal
issues in this case are whether recreational use is embodied within the
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meaning of “other surface resources” and whether the phrase “permittees and
licensees” includes only those members of the public who have specific
written permits or licenses. We agree with the district court that
administrative interpretation of the language by the Solicitor’s Office in the
Department of Interior does not provide any clear direction in the
construction of this section of the statute.
We look first to the legislative history of the Act. As this court has
previously noted, Congress did not intend to change the basic principles of
the mining laws when it enacted the Multiple Use Act. Converse v. Udall,
399 F.2d 616, 617 (9th Cir. 1968). The Multiple Use Act was corrective
legislation, which attempted to clarify the law and to alleviate abuses that had
occurred under the mining laws. The statute was designed to provide for
“multiple use of the surface of the same tracts of public lands, compatible
with unhampered subsurface resource development.” H.R. Rep. No.730 at
8, U.S. Code Cong. & Admin. News, p. 2480; 101 Cong. Rec. 8743 (1955).
The purpose of the Multiple Use Act as stated broadly in House Report 730
is:
to permit more efficient management and administration of the surface
resources of the public lands by providing for multiple use of the same
tracts of such lands.
. . . to prohibit the use of any hereafter located unpatented mining claim
for any purpose other than prospecting, mining, processing, and related
activities.
. . . to limit the rights of a holder of an unpatented mining claim hereafter
located to the use of the surface and surface resources.
H.R. Rep. No. 730 at 2, U.S. Code Cong. & Admin. News, pp. 2474-75.
This concept of multiple use of surface resources of a mining claim was
not intended, however, to interfere with the historical relationship between
the possessor of a mining claim and the United States.
This language, carefully developed, emphasizes the committee’s
insistence that this legislation not have the effect of modifying
long-standing essential rights springing from location of a mining claim.
Dominant and primary use of the locations hereafter made, as in the past,
would be vested first in the locator; the United States would be
authorized to manage and dispose of surface resources, or to use the
surface for access to adjacent lands, so long as and to the extent that these
activities do not endanger or materially interfere with mining, or related
operations or activities on the mining claim.
299
Id. at 10, U.S. Code Cong. & Admin. News, p. 2483.
Under the general mining law enacted in 1872, individuals were
encouraged to prospect, explore and develop the mineral resources of the
public domain through an assurance of ultimate private ownership of the
minerals and the lands so developed. The system envisaged by the mining
law was that the prospector could go out into the public domain, search for
minerals and upon discovery establish a claim to the lands upon which the
discovery was made. This required location of the claim, which involved
staking the corners of the claim, posting a notice of location thereon and
complying with the state laws concerning the filing or recording of the claim
in the appropriate office. A placer mining claim cannot exceed 20 acres and
a lode claim cannot be larger than 1500 feet by 600 feet (which is slightly
over 20 acres). The locator thus obtained “the exclusive right of possession
and enjoyment of all the surface included within the lines of their locations.”
30 U.S.C. § 26.
Before the 1955 Act this exclusive possession and use was recognized so
long as the use was incident to prospecting and mining. The claimant thus
had the present and exclusive possession for the purpose of mining, but the
federal government retained fee title and could protect the land and the
surface resources from trespass, waste or from uses other than those
associated with mining. The claimant could apply for a patent to the land
under 30 U.S.C. § 29, and, upon meeting the statutory requirements, would
be granted a patent which usually conveyed the full fee title to the land.
In order to obtain the patent the claimant would have to establish that
there was a legitimate discovery of a valuable mineral deposit on the land
which a prudent man would be justified in developing. In many instances an
investigation and hearing would be required prior to granting a patent.
However, claimants could continue mining activities on the claims, without
ever obtaining a patent. As a practical matter, mining claimants could remain
in exclusive possession of the claim without ever proving a valid discovery
or actually conducting mining operations. This led to abuses of the mining
laws when mining claims were located with no real intent to prospect or mine
but rather to gain possession of the surface resources. Furthermore, even
persons who did have the legitimate intent to utilize the claim for the
development of the mineral content at the time of the location often did not
proceed to do so, and thus large areas of the public domain were withdrawn,
and as a result these surface resources could not be utilized by the general
public for other purposes.
It was to correct this deficiency in the mining law that Congress in 1955
300
enacted the Multiple Use Act. Some of the abuses and problems that the
legislation was designed to correct are detailed in House Report 730:
The mining laws are sometimes used to obtain claim or title to
valuable timber actually located within the claim boundaries. Frequently,
whether or not the locator so intends, such claims have the effect of
blocking access-road development to adjacent tracts of merchantable
Federal timber, or to generally increase costs of administration and
management of adjacent lands. The fraudulent locator in national forests,
in addition to obstructing orderly management and the competitive sale
of timber, obtains for himself high-value, publicly owned, surface
resources bearing no relationship to legitimate mining activity.
Mining locations made under existing law may, and do, whether by
accident or design, frequently block access: to water needed in grazing
use of the national forests or other public lands; to valuable recreational
areas; to agents of the Federal Government desiring to reach adjacent
lands for purposes of managing wild-game habitat or improving fishing
streams so as to thwart the public harvest and proper management of fish
and game resources on the public lands generally, both on the located
lands and on adjacent lands.
Under existing law, fishing and mining have sometimes been
combined in another form of nonconforming use of the public lands: a
group of fisherman-prospectors will locate a good stream, stake out
successive mining claims flanking the stream, post their mining claims
with “No trespassing” signs, and proceed to enjoy their own private
fishing camp. So too, with hunter-prospectors, except that their
blocked-out “mining claims” embrace wildlife habitats; posted, they
constitute excellent hunting camps.
The effect of nonmining activity under color of existing mining law
should be clear to all: a waste of valuable resources of the surface on
lands embraced within claims which might satisfy the basic requirement
of mineral discovery, but which were, in fact, made for a purpose other
than mining; for lands adjacent to such locations, timber, water, forage,
fish and wildlife, and recreational values wasted or destroyed because of
increased cost of management, difficulty of administration, or
inaccessibility; the activities of a relatively few pseudominers reflecting
unfairly on the legitimate mining industry.
H.R. Rep. No.730 at 6, U.S. Code Cong. & Admin. News, pp. 2478-79.
House Report 730 further points out that one of the ways to combat these
abuses would be to step up federal government action to contest location of
301
claims:
If fraudulent locations are made, under present law the United States
has the right to refuse patents (if application is made), or to attack such
locations in court.
Modification of presently authorized administrative action alone does
not appear the answer. Presently available remedies are time-consuming,
are costly, and, in the end, not conclusive. Where a location is based on
discovery, it is extremely difficult to establish invalidity on an assertion
by the United States that the location was, in fact, made for a purpose
other than mining.
If locations must be proven fraudulent in court before dispossession,
the mining laws must be so drawn or so framed as to make clear to
locators what can and what cannot be done. On the other hand, continual
interference by Federal agencies in an effort to overcome this difficulty
would hamper and discourage the development of our mineral resources,
development which has been encouraged and promoted by Federal
mining law since shortly after 1800.
Id. at 7, U.S. Code Cong. & Admin. News, p. 2479.
The alternative chosen by Congress was to limit the exclusive possession
of mining claimants so as to permit the multiple use of the surface resources
of the claims prior to the patenting of the claims, so long as that use did not
materially interfere with prospecting or mining operations.
In the district court proceedings Curtis asserted that recreational uses are
not encompassed within the meaning of “other surface resources” in § 612(b).
However, as the district court properly held, the phrase “other surface
resources” was clearly intended to include recreational uses. It is apparent
from the previously quoted portions of House Report 730 at 6, as well as
committee hearings cited by the district court, that recreation was one of the
“other surface resources” to which 30 U.S.C. § 612(b) refers. . . . It is
therefore a surface resource that the United States has a right to manage and
that the United States and its permittees and licensees have a right to use so
long as the use does not “endanger or materially interfere with prospecting,
mining or processing operations or uses reasonably incident thereto.” 30
U.S.C. § 612(b).
The remaining question that the district court addressed concerns the
identification of the “permittees and licensees” of the United States entitled
to use the surface resources. The district court held that the “permittees and
licensees” are only those who have specific written permits or licenses from
302
any state or federal agency allowing those persons to engage in any form of
recreation on public land. The court mentions hunting, fishing or camping
permits as illustrative of the required permits. It is at this point that we
disagree with the district court.
Historically the United States has managed the lands within the public
domain as fee owner and trustee for the people of the United States. Light v.
United States, 220 U.S. 523, 527 (1911); Camfield v. United States, 167 U.S.
518, 524 (1897). Also, in the management of public lands, the United States
has historically allowed the general public to use the public domain for
recreation and other purposes, and often without a specific, formal permit.
Such access has been described as an implied license.
Originally, grazing of livestock was such a use that was allowed without
a formal permit. In Buford v. Houtz, 133 U.S. 320 (1890), the Supreme
Court found an implied license to graze livestock on the public lands and
acquiescence in the practice by the government as proprietor of the public
lands:
We are of opinion that there is an implied license, growing out of the
custom of nearly a hundred years, that the public lands of the United
States . . . shall be free to the people who seek to use them where they are
left open and unenclosed, and no act of government forbids this use. . .
. The government of the United States, in all its branches, has known of
this use, has never forbidden it, nor taken any steps to arrest it.
Id. at 326.
*****
In McKee v. Gratz, 260 U.S. 127 (1922), the Court applied this concept
of an implied license to include a license to use large tracts of uncultivated
lands for recreational uses. Mr. Justice Holmes in the opinion of the Court
stated:
The strict rule of the English common law as to entry upon a close must
be taken to be mitigated by common understanding with regard to the
large expanses of unenclosed and uncultivated land in many parts at least
of this country. Over these it is customary to wander, shoot and fish at
will until the owner sees fit to prohibit it. A license may be implied from
the habits of the country.
Id. at 136.
The historical principle that no formal permission, permit, or license is
required for use of public lands for general recreational use or access to
adjoining lands was formalized by the Forest Service with regard to National
303
Forests in 1942 when it enacted a regulation which states in pertinent part:
The temporary use or occupancy of national forest lands by individuals
for camping, picnicking, hiking, fishing, hunting, riding, boating, parking
of vehicles and similar purposes may be allowed without a special use
permit; provided . . . that permits may be required for such uses when in
the judgment of the Chief of the Forest Service the public interest or the
protection of such lands requires the issuance of permits.
36 CFR § 251.1(a)(2) (1979).
A similar policy of holding public lands open for recreational use has
been followed by the Bureau of Land Management in its administration of the
457 million acres of public lands not set aside for national forests, parks or
other special uses. Bureau of Land Management, U.S. Department of the
Interior, Camping on the Public Lands; see also Forest Service, U.S. Dept. of
Agriculture Information Bulletin No. 301, Outdoor Recreation In the National
Forests 11 (1965).
These regulations confirm a traditional policy for the use of public lands
allowing the public to use lands within the public domain for general
recreational purposes without holding a written, formal permit, except as to
activities which have been specifically regulated.
The Multiple Use Act was designed to open up the public domain to
greater, more varied uses. To require that anyone desiring to use claimed
lands for recreation must obtain a formal, written license would greatly
restrict and inhibit the use of a major portion of the public domain.7 It is
doubtful that Congress would intend that such use be dependent upon a
formal permit, because the federal agencies do not generally issue or require
permits for recreational use of public lands. To require a formal written
permit would either put the public in a position of having to obtain permits
but having no place from which to obtain them, or it would require the
government to institute procedures to issue permits, a process which the
7
A report from the Department of Agriculture, to the House Committee on
Interior and Insular Affairs concerning the proposed legislation stated that as
of January 1, 1952 there were 84,000 unpatented claims, covering 2.2 million
acres of national forest but only 2% of these mines were producing minerals
in commercial quantities and probably no more than 40% could be considered
valid. As of January 1, 1955 there were an estimated 166,000 claims
covering 4 million acres. H.R. Rep. 730, 84th Cong., 1st Sess., Reprinted in
(1955) 2 U.S. Code Cong. & Admin. News, pp. 2474, 2492-93.
304
government argues is burdensome and unnecessary.
One of the clear purposes of the 1955 legislation was to prevent the
withdrawal of surface resources from other public use merely by locating a
mining claim. The inertia of the situation was previously with the mining
claimant who retained exclusive possession of the surface of the claim until
the location was invalidated by affirmative action. As to claims located after
the 1955 legislation, however, the inertia works the other way. Essentially,
the surface resources remain in the public domain for use as before with the
exception that the mining claimant is entitled to use the surface resources for
prospecting and mining purposes and that the other uses by the general public
cannot materially interfere with the prospecting and mining operation. Thus,
the vast acreage upon which mining claims have been located since 1955 or
claims which, by operation of the statute, have become subject to the
provisions of section 612(b), remain open for public use except for the
restrictions imposed where actual mining or prospecting operations are taking
place.
The district judge’s conclusion that the “permittees and licensees”
designated in section 612(b) are only those possessing written permits from
a state or federal agency appears to be based largely upon a question and
subsequent statement of Senator Bible at the committee hearing. The Senator
asked whether a fisherman with a fishing license issued by either a state or
federal agency could enter an unpatented mining claim that had a “No
Trespassing” sign on it. He then stated:
“The only purpose of my question was to determine . . . if . . . Section
4 did permit the fisherman to go to the stream under those circumstances.
I understand (the) answer to be yes.”
Id. Our review of the hearing and the statement of Senator Bible leads us to
the conclusion that the question and statement were illustrative and was
intended to confirm the right of a member of the general public to utilize the
“other surface resources” of an unpatented mining claim for recreation.
Senator Bible’s question was not addressed to what requisites were necessary
to constitute a “permittee,” but rather to assure that recreational uses would
be allowed on unpatented mining claims.
Consequently, in light of the historical background of the use of the
public domain for many purposes without express written permits or licenses
we do not find in the legislative history of the 1955 act an intent to so limit
the meaning of “permittees and licensees.” Most assuredly, the B.L.M. or the
Forest Service can require permits for public use of federal lands in their
management of federal lands; however, they need not do so as a prerequisite
305
to public use of surface resources of unpatented mining claims.
It should be noted that mining claimants have at least two remedies in the
event that public use interferes with prospecting or mining activities. Section
612(b) provides that “any use of the surface . . . shall be such as not to
endanger or materially interfere with prospecting, mining or processing
operations or uses reasonably incident thereto.” The mining claimant can
protest to the managing federal agency about public use which results in
material interference and, if unsatisfied, can bring suit to enjoin the activity.
Secondly, a claimant with a valid claim can apply for a patent which, when
granted, would convey fee title to the property.
In the present case, appellees have not presented any evidence that the
public use of land included within their unpatented mining claim has
“materially interfered” with any mining activity. Absent such evidence,
section 612(b) applies in this case to afford the general public a right of free
access to the land on which the mining claims have been located for
recreational use of the surface resources and for access to adjoining property.
Therefore, we reverse the portion of the judgment that requires specific
written permits or licenses for entry onto the mining claims, and we remand
this case to the district court for entry of an injunction consistent with the
views expressed in this opinion.
B. PRIVATE ACCESS ACROSS PUBLIC LANDS
In general, federal land management agencies have considerable
discretion over whether, and under what conditions, to allow passage across
the public lands under their charge. FLPMA authorizes, but does not require,
the Secretary of Interior or Agriculture, as appropriate, to “grant, issue, or
renew rights-of-way over, upon, under, or through such lands” for roadways,
trails, water conveyance, oil pipelines, electricity distribution, and other
purposes. 43 U.S.C. 1761(a). Various conditions may be attached to rightof-way permits.
Here, we consider two situations in which non-federal entities assert
special claims to access. First, owners of inholdings or of unpatented mining
claims may seek access over routes or by modes of transportation the public
306
is not permitted to use. Second, state and local governments may claim that
they established permanent rights of way across public lands under RS 2422,
a 19th century law prospectively repealed by FLPMA.
Adams v. United States
Ninth Circuit, 2001.
255 F.3d 787.
O KELLEHER, District Judge:
*****
The United States acquired the land that would later become the
Adamses’ property in 1848 after the Mexican-American War. In 1892, the
United States transferred this land to the State of Nevada; Nevada
subsequently sold the land to private parties. On November 5, 1906,
President Theodore Roosevelt reserved the land surrounding the privately
owned property for what has become the Toiyabe National Forest.
In 1964, the Adamses purchased the property from a prior private owner
based upon the boundaries established by a 1939 survey. The Adamses’
property consists of two tracts of land; the larger western tract is separated
from the smaller eastern tract by National Forest land.
*****
Without Forest Service authorization, the Adamses have made numerous
changes to National Forest land. Beginning in 1969, the Forest Service has
repeatedly notified the Adamses that the Service is aware of the Adamses’
unauthorized activities, and requested that the Adamses obtain permits for
any activities on Forest Service land. Some areas of National Forest land that
have been damaged by the Adamses’ activities are accessible only by
crossing the Adamses’ property. Because the Adamses have denied the
Forest Service access across their land, the Service has been unable to
perform reclamation work on the damaged areas.
Clark Canyon Road originates in the National Forest to the west of the
Adamses’ land, crosses the Adamses’ larger western tract, proceeds through
the National Forest, and then enters the Adamses’ smaller eastern tract where
it terminates. Without Forest Service authorization, the Adamses widened
and graded the entirety of Clark Canyon Road. This activity effectively
turned the road into a ditch, causing erosion and damage to the road. In 1987,
the Forest Service performed some reclamation work on the damaged portion
307
of the road to the west of the Adamses’ property. However, the Forest
Service has not yet been able to perform reclamation work on the portion of
the Clark Canyon Road that runs across National Forest land between the
Adamses’ two tracts of land, because the Service can access that portion of
the road only by crossing the Adamses’ land.
The Forest Service also plans to reclaim two other areas of the National
Forest damaged by the Adamses’ activities. The Adamses have built a
switchback – a zigzag road traversing a mountainous region – entirely on
National Forest land (the “North Canyon Switchback”). The Forest Service
plans to reclaim the North Canyon Switchback in its entirety. The Adamses
have also constructed a fuel break road (the “Fuel Break Road”) along the
southern boundary of their western tract which crosses onto National Forest
land in three areas. The Forest Service plans to reclaim these three segments
of the Fuel Break Road, to re-fill the road cut, and re-vegetate the reclaimed
slopes. The Forest Service can reach the Switchback and the Fuel Break
Road only by crossing the Adamses’ land.
In 1995, the Forest Service discovered that the Adamses had made
additional unauthorized changes to the National Forest land lying between the
Adamses’ western and eastern tracts which included the construction of a
new road segment and a ditch, alteration of the drainage channel, installation
of a plastic culvert approximately one hundred feet long, and destruction of
vegetation.
II.
In 1986, the Adamses initiated this action, seeking . . . to quiet title in an
easement for access to their land. The United States counterclaimed,
asserting that the Adamses had trespassed on National Forest System land,
and seeking damages and an injunction barring the Adamses from further
trespasses.
*****
After a bench trial, the district court found that the Adamses were not
entitled to an easement over Clark Canyon Road, and that most of the
Adamses’ work done on National Forest land constituted acts of trespass, for
which it awarded the United States damages of $11,000. The court enjoined
the Adamses from further use or occupancy of National Forest lands without
first obtaining the appropriate permits from the National Forest Service.
In Adams I, we held that the lower court’s injunction was too broad
because “the Clark Canyon Road is open to the public, including the
Adamses, without a permit.” 3 F.3d at 1257. We vacated the lower court’s
308
injunction, and remanded to permit the district court to issue a modified
injunction, considering the following factors:
(1) The Adamses have a nonexclusive easement over the Clark Canyon
Road but not the North Canyon Road or the North Canyon Switchback.
(2) The Forest Service must provide reasonable access to the Adamses
property via the Clark Canyon Road at all times. Reasonable access for
the general public to hunt, fish, or camp may be unreasonable when
applied to the Adamses who need year-round access sufficient to operate
a ranch.
(3) The Adamses may not prevent the Forest Service or any other member
of the public from using the portion of Clark Canyon Road that lies on
Forest Service land.
We further held that the Adamses “must comply with reasonable Forest
Service rules and regulations with regard to maintenance or road
improvement.” On remand, we directed the district court to “determine the
rights and responsibilities of both parties to ensure both access and
stewardship of public land” and fashion an appropriate injunction.
On remand, the district court held that, to the extent that the general
public can travel the Clark Canyon Road, the Adamses could also do so
without obtaining special use permits. However, the court ordered that, for
all of the Adamses’ uses exceeding those of the general public, such as snow
removal and road maintenance, the Adamses must apply for special use
permits. The court further held that the Forest Service’s proposed permits
were reasonable. . . . This appeal followed.
*****
IV.
The Organic Act of 1897 establishes the Forest System. The Forest
Service manages Forest System lands pursuant to various statutes, including
the Alaska National Interest Lands Conservation Act (“ANILCA”),7 the
Federal Land Policy and Management Act (“FLPMA”),8 . . . and the special
use permit regulations contained in 36 C.F.R. section 251.
In 1980, Congress enacted § 1323(a) of ANILCA. Section 1323(a)
7
See Montana Wilderness Ass’n v. United States Forest Serv., 655 F.2d 951,
957 (9th Cir. 1981) (holding that ANILCA applies nationwide).
8
FLPMA authorizes the Secretary of Agriculture to “grant, issue or renew
rights of way over [National Forest] lands.” 43 U.S.C. § 1701 (1976).
309
mandates that the Secretary of Agriculture “provide such access to
non-federally owned land within the boundaries of the National Forest
System as the Secretary deems adequate to secure to the owner the reasonable
use and enjoyment” of the private land. 16 U.S.C. § 3210(a). However, §
1323(a) explicitly conditions access on the inholder’s compliance with the
“rules and regulations applicable to ingress and egress to or from the National
Forest System.” Id.
The “rules and regulations” referred to by § 1323(a) are those contained
in 36 C.F.R. section 251 subpart B. These regulations provide that, “as
appropriate,” inholders will be entitled to access “adequate to secure them the
reasonable use and enjoyment of their land.” 36 C.F.R. § 251.110(c).
Adequate access is defined as “a route and method of access to non-Federal
land that provides for reasonable use and enjoyment of the non-Federal land
consistent with similarly situated non-Federal land.” 36 C.F.R. § 251.111.
Before issuing any access authorization, an officer must ensure that “[t]he
route is so located and constructed as to minimize adverse impacts on soils,
fish and wildlife, scenic, cultural, threatened and endangered species, and
other values of the Federal land.” 36 C.F.R. § 251.114(f)(2).
Inholders who require surface-disturbing access or use greater than that
afforded the general public must “apply for and receive a special-use or
road-use authorization.” 36 C.F.R. § 251.110(d). A special use authorization
is “a permit, term permit, lease, or easement which allows occupancy, use,
rights, or privileges of National Forest System land.” 36 C.F.R. § 251.51.
Inholders must pay “an appropriate fee” which is based on the value of the
use of the land and can be waived in certain circumstances. See 36 C.F.R. §
251.114(b) and § 251.57.
Special use authorizations must contain a clause stating how long
authorization will last and whether it is renewable. See 36 C.F.R. §
251.56(b). Generally, if the permit lasts for more than thirty years, it must
provide for revision of the terms at regular intervals to accommodate changed
circumstances. See id. Most special use permits can be transferred upon
application and approval of the authorized officer. See 36 C.F.R. § 251.59.
A special use permit may be terminated, revoked or suspended; such
decisions are subject to appellate review within the Department. See 36
C.F.R. § 251.60.
*****
V.
We first address the Adamses’ argument that the district court erred in
310
ordering them to apply for a permit for certain uses of National Forest System
land.
On remand, the district court held that, pursuant to Adams I, the Adamses
had an easement to travel Clark Canyon Road to the extent that the road is
traveled by the general public. However, for any use beyond that or for
access that would cause surface-disturbing activities – for example, if the
Adamses wished to maintain the road for passage by passenger vehicles,
remove snow, or make emergency repairs – the court held that the Adamses
must apply for a special use authorization. As the basis for its holding, the
court cited FLPMA, 16 U.S.C. § 3210(a) of ANILCA, and the special use
authorization regulations at 36 C.F.R. §§ 251.110, 212.8(b), 251.114(a)-(f),
and 251.57.
The district court was correct in so holding. Despite the Adamses’
arguments to the contrary, Adams I did not grant them a vested common law
easement for access to their property. Rather, Adams I clearly stated that the
Adamses do not have a common law easement because all common law
claims are preempted by ANILCA and FLPMA where, as here, the United
States owns the servient estate for the benefit of the public. See Adams I, 3
F.3d at 1259. Pursuant to the law of the case doctrine, an appellate court does
not reconsider matters resolved on a prior appeal.
Moreover, the Adamses’ argument that requiring them to apply for a
permit or special use authorization effects an unconstitutional taking is
unavailing. “A requirement that a person obtain a permit before engaging in
a certain use of his or her property does not itself ‘take’ the property in any
sense: after all, the very existence of a permit system implies that permission
may be granted. . . . Only when a permit is denied and the effect of the denial
is to prevent ‘economically viable’ use of the land in question can it be said
that a taking has occurred.” United States v. Riverside Bayview Homes, 474
U.S. 121, 127 (1985).
As we stated in Adams I, ANILCA commands that the Adamses be
provided access to secure their reasonable use and enjoyment of their
property. However, the Adamses’ exercise of their right of access is not
absolute. The Constitution grants Congress the authority and responsibility
to manage federal land. U.S. Const. Art. IV, § 3, cl. 2. Congress, by statute,
has delegated this authority to agencies such as the Forest Service. Therefore,
as we held in Adams I, the Adamses’ access to their property is subject to
reasonable regulation by the Forest Service.
None of the arguments made by the Adamses in this appeal convince us
to reverse our holding in Adams I. The Adamses’ access rights are subject to
311
reasonable regulation pursuant to the relevant statutes. Thus, the only
question left for this Court is whether the district court correctly held that the
permitting system proposed by the Forest Service was a reasonable regulation
of the Adamses’ access. We hold that the permit, in the form proposed by the
government and sanctioned by the district court, reasonably regulates the
Adamses’ access by providing that they must comply with Forest Service
regulations if they wish to engage in surface disturbing activities beyond
those engaged in by the general public. The Adamses raise various
speculative concerns about possible future government misconduct, arguing
that the government may arbitrarily cancel a permit. These concerns are not
yet ripe. Moreover, the permit itself states that it does not void any rights
already vested in the permit holder; thus the Adamses’ right of access as
provided in Adams I is not diminished or voided by the permit.
We therefore hold that the district court did not err in ordering the
Adamses to apply for a permit for access to their property that constitutes use
of the National Forest System lands beyond the uses made by the general
public.
******
Clouser v. Espy
Ninth Circuit, 1994.
42 F.3d 1522.
O THELTON E. HENDERSON , District Judge:
*****
I. Background
This lawsuit is brought by three different sets of plaintiffs, all of whom
have asserted rights to mine in areas located wholly within federal national
forest lands. [The relevant claims] are located in regions designated
“wilderness areas” pursuant to the Wilderness Act of 1964 . . . In each case,
the national forest land in which the mining claims are located was at one
time open to the public for exploration, prospecting, and the extraction of
minerals; however, the land was subsequently withdrawn from mineral entry
under the Wilderness Act . . ., so that only persons establishing that they
discovered a valuable mineral deposit prior to the withdrawal possess a valid
right to mine claims there (a “valid claim”). All three sets of claims at issue
are unpatented.
312
The validity of such claims is determined by the U.S. Department of the
Interior (“Interior”) through its Bureau of Land Management (“BLM”), which
administers the federal laws governing the right to stake mining claims on
federal land. However, the claims are located on national forest lands which
otherwise are regulated by the U.S. Forest Service (“Forest Service” or
“Service”), a part of the U.S. Department of Agriculture (“Agriculture”).
This case involves a challenge to certain decisions made by the Forest Service
with respect to plans proposed by the plaintiffs for mining the three sets of
claims at issue.
*****
The Robert E. claims, owned by plaintiffs Leroy and Sharon Clouser, are
part of the Siskiyou National Forest and are located in Curry County, Oregon.
The claims are located on land that was included in the Siskiyou Forest
Reserve on October 5, 1906, and withdrawn from mineral entry when it
became part of the Kalmiopsis Wilderness on September 3, 1964.
In 1985, the Forest Service conducted a mineral examination of the
Robert E. claims and initiated contest proceedings in the Department of the
Interior to have the claims declared void, on the ground that no valuable
mineral deposits had been discovered there before 1964 when the land was
withdrawn from mineral entry. An Interior Department Administrative Law
Judge (“ALJ”) held the claims null and void, and plaintiffs have appealed that
decision to the Interior Department’s Board of Land Appeals.
In June 1990, plaintiffs filed a plan of operations with the Forest Service,
proposing certain mining activities on the Robert E. claims. The plan
proposed accessing the claims by using motor vehicles to drive to the claims
across surrounding national forest wilderness lands. The Forest Supervisor
approved the plan subject to certain conditions, one of which was that
plaintiffs would have to use non-motorized means such as pack animals to
access the claims. Plaintiffs appealed this decision to the Deputy Regional
Forester who affirmed it in October 1990.
*****
III. The Forest Service’s Authority to Regulate Ingress to and Egress from
Mining Claims Located in National Forest Lands
*****
Plaintiffs assert – no doubt correctly – that the means of access permitted
materially affects the commercial viability of mining claims. Under the legal
standard applied by the Department of the Interior to determine whether a
putative claim is “valid,” validity depends in part on commercial viability.
313
On this basis, plaintiffs argue that adjudication of questions concerning
access materially affects claim validity. They therefore contend that
adjudication of such issues is committed to the exclusive jurisdiction of the
Department of the Interior since, the parties agree, Interior is the agency
authorized to adjudicate the validity of mining claims. . . .
*****
As to [the] two claims located in wilderness areas, there can be no doubt
whatsoever that the Forest Service enjoys the authority to regulate means of
access, for the Department of Agriculture has expressly been granted
statutory authority to do so. 16 U.S.C. § 1134(b) provides that
In any case where valid mining claims or other valid occupancies are
wholly within a designated national forest wilderness area, the Secretary
of Agriculture shall by reasonable regulations consistent with the
preservation of the area as wilderness, permit ingress and egress to such
surrounded areas by means which have been or are being customarily
enjoyed with respect to other such areas similarly situated.
This provision’s unambiguous instruction to the Secretary of Agriculture to
permit ingress and egress to such areas “by means which have been or are
being customarily enjoyed with respect to other such areas similarly situated”
clearly implies an authority and duty to determine what means are being or
have been “customarily enjoyed” in like areas. Indeed, the provision
expressly empowers the Secretary to promulgate “reasonable regulations”
implementing the statutory mandate. Although Forest Service decisions
regarding access may indeed affect whether a claim is found to be “valid,”
that fact in no way alters 16 U.S.C. § 1134(b)’s unequivocal delegation of
authority to the Secretary of Agriculture. While Congress has assigned to
Interior authority to adjudicate claim validity, it is free to allocate regulatory
authority as it chooses and in 16 U.S.C. § 1134(b) it has empowered
Agriculture to make decisions regarding a particular issue that happens to
have collateral consequences for claim validity.
*****
V. Substantive Validity of the Forest Service’s Decisions Under the APA
*****
Finally, plaintiffs challenge the Forest Service ruling as violating certain
provisions of the mining laws. We interpret this argument as a claim that the
ruling was “in excess of statutory jurisdiction, authority, or limitations,” in
violation of § 706(2)(C) of the APA, or else “not in accordance with law,” in
violation of § 706(2)(A) of the APA. Plaintiffs cite 30 U.S.C. § 612(b),
314
which provides, in pertinent part
Rights under any mining claim . . . shall be subject, prior to issuance of
patent therefor, to the right of the United States to manage and dispose of
the vegetative surface resources thereof and to manage other surface
resources thereof. . . . Any such mining claim shall also be subject, prior
to issuance of patent therefor, to the right of the United States, its
permittees, and licensees, to use so much of the surface thereof as may be
necessary for such purposes or for access to adjacent land: Provided,
however, that any use of the surface or any such mining claim by the
United States, its permittees or licensees, shall be such as not to endanger
or materially interfere with prospecting, mining or processing operations
or uses reasonably incidental thereto. . . .
Plaintiffs argue that motorized access to the claim is “[a] use[] reasonably
incidental [to mining]” and that the Service’s ruling “materially interfere[s]
with” that use in violation of this provision. Plaintiffs’ position seems to be
that Forest Service actions regulating access to claims located within national
forest lands must comply not only with the “means . . . customarily enjoyed”
standard of 16 U.S.C. § 1134(b), . . . but also with the “materially interfere”
standard of 30 U.S.C. § 612.
It is true our circuit has held that Forest Service regulation of activities on
mining claims must comport with the standard set out in 30 U.S.C. § 612.
See United States v. Doremus, 888 F.2d 630, 633 (9th Cir. 1989) (upholding
Forest Service requirement that claim holders obtain permit before beginning
operations on grounds that such Forest Service regulation did not “materially
interfere” with mining operation). However, by its terms, 30 U.S.C. § 612
addresses only “use of the surface of any . . . mining claim by the United
States.” We see no basis for construing the statute as limiting Forest Service
regulation of activities on national forest lands outside of the boundaries of
the mining claim, particularly in view of the fact that Congress subsequently
enacted a statute specifically addressing that issue – 16 U.S.C. § 1134(b). We
therefore affirm the district court’s rejection of this argument on the ground
that the “materially interfere” standard of 30 U.S.C. § 612 does not apply to
actions taken by the government to regulate mining-related activities that
occur on national forest lands outside of the boundary of the mining claim.
*****
315
C. RS 2477
The original Mining Law, enacted in 1866, included a provision now
known as “RS 2477,” after its original codification in the “Revised Statutes.”
It read: “And be it further enacted, that the right of way for the construction
of highways over public lands, not reserved for public uses, is hereby
granted.” This provision was repealed prospectively in 1976 with the
enactment of FLPMA, which established a new regime for obtaining rightsof-way across federal lands by permit. Nonetheless, RS 2477 remains a
source of confusion and litigation because that repeal was made subject to
valid rights obtained under the law prior to October 21, 1976, the date of
FLPMA’s enactment. In the words of the Tenth Circuit:
The difficulty is in knowing what that means. Unlike any other
federal land statute of which we are aware, the establishment of R.S.
2477 rights of way required no administrative formalities: no entry, no
application, no license, no patent, and no deed on the federal side; no
formal act of public acceptance on the part of the states or localities in
whom the right was vested. . . .
To make matters more difficult, parties rarely had an incentive to
raise or resolve potential R.S. 2477 issues while the statute was in effect,
unless the underlying land had been patented to a private party. If
someone wished to traverse unappropriated public land, he could do so,
with or without an R.S. 2477 right of way, and given the federal
government’s pre-1976 policy of opening and developing the public
lands, federal land managers generally had no reason to question use of
the land for travel. Roads were deemed a good thing. . . .
Now that federal land policy has shifted to retention and conservation,
public roads and rights of way in remote areas appear in a different light.
Some roads and other rights of way are undoubtedly necessary, but
private landowners express the fear that expansive R.S. 2477 definitions
will undermine their private property rights by allowing strangers to drive
vehicles across their ranches and homesteads. Conservationists and
federal land managers worry that vehicle use in inappropriate locations
can permanently scar the land, destroy solitude, impair wilderness,
endanger archeological and natural features, and generally make it
difficult or impossible for land managers to carry out their statutory duties
to protect the lands from “unnecessary or undue degradation.” FLPMA
§ 302(b), 43 U.S.C. § 1732(b). They argue that too loose an
interpretation of R.S. 2477 will conjure into existence rights of way
where none existed before, turning every path, vehicle track, or dry wash
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in southern Utah into a potential route for cars, jeeps, or off-road
vehicles. For their part, the Counties assert that R.S. 2477 rights of way
are “major components of the transportation systems of western states,”
and express the fear that federal land managers and conservationists are
attempting to redefine those rights out of existence, with serious
“financial and other impacts” on the people of Utah. Thus, the definition
of R.S. 2477 rights of way across federal land, which used to be a
non-issue, has become a flash point, and litigants are driven to the
historical archives for documentation of matters no one had reason to
document at the time.
Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d
735 (10th Cir. 2006).
RS 2477 conflicts have been particularly heated in southern Utah, where
they are part of a larger conflict between preservation and extraction interests,
and between “locals” and “outsiders.” The SUWA v. BLM opinion quoted
above is the most recent decision in that conflict. In a lengthy opinion, the
10th Circuit held: (1) as a matter of federal law, RS 2477 looks to state law
to determine what qualifies as construction of a highway, sufficient to
establish enforceable rights, as well as the scope of the highway, subject to
the proviso that state law does not apply if its adoption “would frustrate
federal policy”; (2) RS 2477 claimants have the burden of proving that they
had established valid rights prior to FLPMA’s enactment; (3) to meet that
burden of proof, claimants must show “continuous public use” for a period
prescribed by state law (10 years in Utah), but need not show “mechanical
construction” work or public maintenance of the claimed roadway; (4) any
route satisfying the “continuous public use” requirement is a “highway” for
purposes of RS 2477; and (5) RS 2477 right-of-way holders must notify
federal land managers before undertaking roadway “improvements,” but may
conduct “routine maintenance” without notice. These disputes are
necessarily highly fact-intensive, requiring examination of the historical
record of use of the claimed route. They also may present complex legal
questions concerning whether the land in question had been withdrawn from
entry and “reserved for public use” prior to FLPMA, because any such
reservation could terminate (prospectively) the invitation to establish rightsof-way.
NOTES AND QUESTIONS
1. Public use of surface resources within mining claims. In CurtisNevada, do you believe the claimants’ assertion that the claim contained
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minerals worth “trillions” of dollars? Why did Curtis not seek to patent his
claim? Why do you think he wanted to exclude the general public from the
claimed area? What balance does the 1955 Multiple Use Act strike between
the interests of the public and those of mineral claimants? What rights do
claim holders have to exclude the public? How can those rights be
expanded? Do they provide sufficient protection for legitimate mining
interests? What rights of access do the public retain? For what purposes?
Do you agree with the Ninth Circuit that all persons have an implied license
or permit to use federal lands for recreational purposes unless the land
management agency specifically imposes a permit requirement? Under what
circumstances might a permit system be justified?
2. Access to inholdings. As explained in Adams, access to inholdings is
governed primarily by ANILCA, a 1980 law that, while focused on
regulations specific to federal lands in Alaska, contains an important access
provision not limited to those lands. ANILCA provides that the Forest
Service and BLM, respectively, shall provide such access to nonfederally
owned inholdings within their systems as they “deem[] adequate to secure to
the owner the reasonable use and enjoyment thereof,” subject to the
landowner’s obligation to “comply with rules and regulations applicable to
ingress and egress.” 16 U.S.C. § 3210(a), (b). Inholders desiring access
beyond that available to the public must obtain a permit. They may be
required to pay a permit fee and, if they use Forest Service or BLM roads, to
contribute to the costs of maintaining those roads. Restrictions on access do
not unconstitutionally take private property unless they deny all economically
viable use.
3. The relationship between ANILCA and common law easements. In
Adams, the Ninth Circuit held that ANILCA’s access restriction preempts all
common law claims. That holding has recently been cast into doubt. In
Skranak v. Castenada, 425 F.3d 1213 (9th Cir. 2005), the court ruled that the
Forest Service has discretion to interpret ANILCA as adding an additional
means of gaining access, rather than as replacing common law easement
claims. The Skranak panel relied on Nationall Cable & Telecommunications
Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005), which held that an
initial judicial interpretation does not preclude an agency from later adopting
a differing interpretation within the boundaries permitted by the statute.
4. Access to homesteaded lands. Patenting of land under the Homestead
Act of 1862 transferred the land “with the appurtenances thereof.” Act of
May 20, 1862, ch. 75, 12 Stat. 392-93. In Fitzgerald Living Trust v. United
States, 460 F.3d 1259 (9th Cir. 2006), the Fitzgeralds, successors to
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homesteaded lands currently surrounded by national forest, objected to being
required to pay an annual fee for a FLPMA access permit. They argued that
they had either an easement by necessity over the surrounding lands or an
implied easement from the Homestead Act. Those arguments failed. The
court held that the Homestead Act recognized only a customary implied
license, subject to later revocation. Although it left open the possibility that
an easement by necessity might operate against the United States in some
circumstances, it ruled that that the availability of access under a FLPMA
permit negated any necessity in this case.
5. Special restrictions on access across wilderness lands. As we will see
later in more detail, motorized transportation is generally forbidden on lands
designated as wilderness. With respect to valid mining claims and other valid
“occupancies” within wilderness areas, the Wilderness Act provides for
ingress or egress, consistent with the preservation of the area as wilderness,
“by means which have been or are being customarily enjoyed with respect to
other such areas similarly situated.” 16 U.S.C. § 1134(b). Does this
provision strike the right balance between wilderness and mining interests?
Does it allow a complete prohibition of motorized access to an unpatented
mining claim, even if that prohibition may, by increasing the costs of mining,
prevent the claimant from satisfying the marketability test and therefore
render the claim invalid? In Clouser v. Espy, did the Ninth Circuit fairly and
correctly interpret 30 U.S.C. § 612(b), also known as section 4(b) of the
Surface Resources Act of 1955? Is wilderness designation a “use” of the
surface that must not materially interfere with uses incidental to mining?
Should the same restrictions apply on access patented mining claims or
other privately owned inholdings in wildernesses? The Wilderness Act
provides that: “In any case where State-owned or privately owned land is
completely surrounded by national forest lands within areas designated by
this chapter as wilderness, such State or private owner shall be given such
rights as may be necessary to assure adequate access to such State-owned or
privately owned land by such State or private owner and their successors in
interest, or the State-owned land or privately owned land shall be exchanged
for federally owned land in the same State of approximately equal value . . .”
16 U.S.C. 1134(a).
6. RS 2477. Why do you suppose the United States offered rights of way
across its lands so freely in 1866? Why did it not require recording of rightof-way claims? Today, should courts interpret RS 2477 broadly or narrowly?
What weight should be given to the federal government’s modern interest
(asserted in FLPMA) in controlling access across its lands? To the reliance
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expectations, and indeed property rights, of those who took advantage of RS
2477 while it was in effect? What role should state law play in determining
whether and to what extent valid RS 2477 rights were established before
FLPMA? Can post-1976 state legislation or judicial decisions play any role
in those determinations? Could the United States impose a requirement (by
analogy to the legislation at issue in Locke) that RS 2477 claimants record
their claims within a specified period, and annually thereafter? That they pay
a fee to maintain their claims? Assuming it could constitutionally do so,
should the U.S. impose such requirements?
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Assignment 15
Environmental Regulation of Mining
Although the General Mining Law is little changed since 1872, other laws
have gradually imposed environmental regulation on mining on federal lands.
The Clean Air Act, Clean Water Act, Endangered Species Act and other
federal environmental laws apply to mining, wherever it occurs, as to other
operations. State environmental laws can also apply (recall California
Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987)). In addition,
both the Bureau of Land Management and the Forest Service now regulate
activities on unpatented mining claims. Claimants must notify the agency
before beginning activities that may disturb surface resources, and may be
required to file a plan of operations for agency approval and to post a bond
assuring surface reclamation. To the extent that federal agencies enjoy the
discretion to control mining operations, they must comply with the National
Environmental Policy Act prior to approving those operations.
Just how much substantive authority the Federal Land Policy and
Management Act (FLPMA) gives the Department of Interior to regulate
mining on unpatented claims has been hotly contested. FLPMA provides at
43 U.S.C. 1732(b):
In managing the public lands, the Secretary shall, subject to this Act
and other applicable law and under such terms and conditions as are
consistent with such law, regulate, through easements, permits, leases,
licenses, published rules, or other instruments as the Secretary deems
appropriate, the use, occupancy, and development of the public lands . .
. . Except as provided . . . in the last sentence of this paragraph, no
provision of this section or any other section of this Act shall in any way
amend the Mining Law of 1872 or impair the rights of any locators or
claims under that Act, including, but not limited to, rights of ingress and
egress. In managing the public lands the Secretary shall, by regulation or
otherwise, take any action necessary to prevent unnecessary or undue
degradation of the lands.
The Clinton administration interpreted this provision quite differently than
the succeeding George W. Bush administration. Its meaning is at the heart
of the District Court decision that follows.
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Mineral Policy Center v. Norton
District of the District of Columbia, 2003.
292 F. Supp. 2d 30.
O KENNEDY , District Judge.
Plaintiffs, Mineral Policy Center, Great Basin Mine Watch, and
Guardians of the Rural Environment, bring this action to challenge the
revision of federal mining regulations promulgated by defendant, Bureau of
Land Management (“BLM”), United States Department of the Interior
(“Interior”), on October 30, 2001. According to plaintiffs, the regulations,
codified at 43 C.F.R. § 3809 (2003) (“2001 Regulations”) “substantially
weaken, and in many instances eliminate, BLM’s authority to protect the
public’s lands, waters, cultural and religious sites, and other resources
threatened by industrial mining operations in the West.” Plaintiffs therefore
contend that the regulations run counter to BLM’s statutory duty, as set forth
in its guiding statute, the Federal Land Policy and Management Act
(“FLPMA”), to “take any action necessary to prevent unnecessary or undue
degradation of the [public] lands.” 43 U.S.C. § 1732(b). Accordingly,
plaintiffs ask this court to vacate and remand any portion of the 2001
Regulations not in accordance with federal law.
A correct resolution of the issues presented by this case requires an
understanding and analysis of the pertinent legislative scheme and must begin
with the General Mining Law, 30 U.S.C. §§ 21 et seq. (2000) (“Mining
Law”), a law that was enacted in 1872. The Mining Law provides: “All
valuable mineral deposits in lands belonging to the United States, both
surveyed and unsurveyed, are hereby declared to be free and open to
exploration and purchase . . . by citizens of the United States . . . .” 30 U.S.C.
§ 22. The Mining Law gives claimants the right to “a unique form of
property.” Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335 (1963).
It gives any citizen the right to enter onto federal public lands, stake a claim
on these lands, and obtain the exclusive right to extract the minerals thereon
– all without payment to the United States and without acquiring title to the
land itself. . . .
Much changed in this nation in the 100 years following the Mining Law’s
1872 enactment. Accordingly, in 1976, Congress enacted FLPMA to amend
the Mining Law and reflect the nation’s changed view toward land and
minerals. It is this law that is primarily at issue here.
FLPMA establishes standards for BLM to regulate hardrock mining
activities on the public lands. Such regulation is vital. BLM administers
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roughly one-fifth of the land mass of the United States and, while the surface
area of the land physically disturbed by active mining is comparatively small,
the impact of such mining is not. Mining activity emits vast quantities of
toxic chemicals, including mercury, hydrogen, cyanide gas, arsenic, and
heavy metals. The emission of such chemicals affects water quality,
vegetation, wildlife, soil, air purity, and cultural resources. The emissions are
such that the hardrock/metal mining industry was recently ranked the nation’s
leading emitter of toxic pollution.
FLPMA thus attempts to balance two vital – but often competing –
interests. On one hand, FLPMA recognizes the “need for domestic sources
of minerals, food, timber, and fiber from the public lands,” 43 U.S.C. §
1701(a)(12), and, on the other hand, FLPMA attempts to mitigate the
devastating environmental consequences of hardrock mining, to “protect the
quality of scientific, scenic, historical, ecological, environmental, air, and
atmospheric, water resource, and archeological values,” id. § 1701(a)(8). Put
another way, FLPMA “represents an attempt by Congress to balance the use
of the public lands by interests as diverse as the lands themselves.” Watt, 696
F.2d at 738.
The heart of FLPMA amends and supersedes the Mining Law to provide:
“In managing the public lands the Secretary shall, by regulation or otherwise,
take any action necessary to prevent unnecessary or undue degradation of the
lands.” 43 U.S.C. § 1732(b) (emphasis added). Also important for our
purposes, FLPMA: (1) requires that the Secretary “manage the public lands
under principles of multiple use and sustained yield,” 43 U.S.C. § 1732(a);
(2) encourages the “harmonious and coordinated management of the various
resources without permanent impairment of the productivity of the land and
the quality of the environment,” id. § 1702(c); and (3) “declares that it is the
policy of the United States that . . . the United States receive fair market value
for the use of the public lands and their resources unless otherwise provided
for by statute,” id. § 1701(a)(9).
The 1980, 2000, and 2001 Regulations
After FLPMA was enacted in 1976, BLM commenced a rulemaking to
implement it. BLM issued its proposed rules on December 6, 1976, and
finalized them on November 26, 1980. These rules, commonly known as the
“1980 Regulations,” established “procedures to prevent unnecessary or undue
degradation of Federal lands which may result from operations authorized by
the mining laws.” 45 Fed. Reg. at 78,909-10 (Nov. 26, 1980). The 1980
Regulations defined “unnecessary or undue degradation,” commonly referred
to as “UUD,” as being: (1) “surface disturbance greater than that which
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would normally result when an activity is being” conducted by “a prudent
operator in usual, customary, and proficient operations”; (2) “failure to
comply with applicable environmental protection statutes and regulations
thereunder”; and (3) “[f]ailure to initiate and complete reasonable mitigation
measures, including reclamation of disturbed areas or creation of a nuisance.”
Id. at 78,910. These rules, formerly codified at 43 C.F.R. § 3809.0-5(k)
(1999), governed the mining industry for quite some time.
In the 1990s, however, Interior conducted a comprehensive review of the
1980 Regulations, and on January 6, 1997, commenced a rulemaking to
amend them. During the rulemaking period, Congress intervened by passing
the Omnibus Consolidated and Emergency Supplemental Appropriations Act,
1999[, prohibiting completion of the rulemaking pending a report by the
National Research Council].
Interior finally amended the 1980 Regulations in 2000. The 2000
Regulations, which were promulgated on November 21, 2000, and became
effective in the final hours of the Clinton Administration, on January 20,
2001, adopted the NRC Report’s recommendations – but differed in
fundamental ways from the previous 1980 Regulations. Most importantly,
the 2000 Regulations replaced the 1980 Regulations’ UUD “prudent
operator” standard with a new and more restrictive UUD standard, commonly
referred to as the “substantial irreparable harm” or “SIH” standard.
The “substantial irreparable harm” standard is so named because in the
2000 Regulations, for the first time, BLM stated that it would deny a plan of
operations, i.e., a mining permit, if the plan failed to comply with
performance standards or would result in “substantial irreparable harm” to a
“significant” scientific, cultural, or environmental resource value of the
public lands that could not be “effectively mitigated.” Id. at 70,115. Thus,
under the 2000 Regulations, BLM asserted its authority to deny a mining
permit, simply because a potential site was unsuitable for mining because of,
for instance, the area’s environmental sensitivity or cultural importance.
These 2000 Regulations were short lived, however. On March 23, 2001,
after a change in the Administration, Interior published a Notice in the
Federal Register stating its intention to amend the regulations once again.
In so doing, the Interior Solicitor issued a legal opinion examining
FLPMA and concluding that the 2000 Regulation’s SIH standard was ultra
vires, a conclusion with which the Interior Secretary agreed. The 2001
Regulations, promulgated on October 30, 2001, thus abolished the 2000
Regulations’ SIH standard. What was left after the revision was a standard
more akin to the “prudent operator” standard utilized by the 1980
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Regulations. The stated reason for the elimination of the SIH standard was
that Interior determined that the standard’s “implementation and enforcement
. . . would be difficult and potentially subjective, as well as expensive for
both BLM and the industry,” and that “other means” would “protect the
resources covered by the SIH standard.” Interior further determined that the
SIH standard would precipitate a “10%-30% decline overall in minerals
production.” 65 Fed. Reg. at 70,107.
The 2001 Regulations provide:
Unnecessary or undue degradation means conditions, activities, or
practices that:
(1) Fail to comply with one or more of the following: the performance
standards in § 3809.420, the terms and conditions of an approved plan of
operations, operations described in a complete notice, and other Federal
and state laws related to environmental protection and protection of
cultural resources;
(2) Are not “reasonably incident” to prospecting, mining, or processing
operations as defined in § 3715.0-5 of this chapter; or
(3) Fail to attain a stated level of protection or reclamation required by
specific laws in areas such as the California Desert Conservation Area,
Wild and Scenic Rivers, BLM-administered portions of the National
Wilderness System, and BLM-administered National Monuments and
National Conservation Areas.
43 C.F.R. § 3809.5.
*****
In this case, plaintiffs challenge Interior’s decision to rescind a
validly-issued rule and replace it with the 2001 Regulations. Rescission of
agency rules that previously met Congress’s legislative mandate are judged
by the rulemaking record. That is, “an agency’s view of what is in the public
interest may change, either with or without a change in circumstances. But
an agency changing its course must supply a reasoned analysis.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 57 (1983). An agency must therefore “examine the relevant data and
articulate a satisfactory explanation for its action including a rational
connection between the facts found and the choice made.” Motor Vehicle
Mfrs. Ass’n, 463 U.S. at 43.
*****
As noted above, plaintiffs’ essential argument is that the 2001
Regulations run contrary to key provisions of FLPMA. * * * First and
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foremost, plaintiffs argue that the 2001 Regulations fail to meet BLM’s
statutory mandate to “take any action necessary to prevent unnecessary or
undue degradation of the [public] lands.” 43 U.S.C. § 1732(b). Plaintiffs
argue that in promulgating the 2001 Regulations, BLM essentially abdicated
its duty to prevent “undue degradation” and instead, revised its definition of
“unnecessary or undue degradation” to limit its authority to prevent only
operations that are “unnecessary” for mining. Plaintiffs maintain that by
reading “undue degradation” as superfluous to the statute, defendants
contravene the plain language of FLPMA, in violation of the APA.
Second, plaintiffs contend that the 2001 Regulations fail to apply the
additional FLPMA requirements to mining operations proposed on invalidly
claimed or unclaimed lands. That is, according to plaintiffs, FLPMA’s UUD
standard is a floor, not a ceiling, and therefore applies primarily to mining
operations conducted on valid mining claims, held pursuant to the General
Mining Law of 1872. Plaintiffs contend that FLPMA subjects mining
operations on land unencumbered by a valid mining claims to additional
regulation. Plaintiffs assert that on these types of lands, the BLM is to: (1)
manage the land in accordance with the principles of multiple use and
sustained yield; (2) guard against permanent impairment; and (3) ensure the
receipt of fair market value for a miner’s use thereon. Plaintiffs challenge the
2001 Regulations’ alleged failure to effectuate these more stringent
requirements.
*****
In response to plaintiffs’ claims, Interior offers three essential arguments.
First, Interior asserts that the 2000 and 2001 Regulations are not as different
from one another as plaintiffs contend. Interior maintains that “[t]he only
change between the 2000 and 2001 rules in Interior’s definition of UUD is
the elimination of the provision defining UUD as ‘substantial irreparable
harm to significant scientific, cultural, or environmental resource values’
because Interior determined the SIH proviso was contrary to statutory
authority, subjective, potentially cumulative, and overbroad.” Second,
Interior argues that no party in these rulemakings ever identified or defined
the harm ostensibly prevented by the 2000 Regulations’ SIH proviso. And
third, Interior maintains that, in this case, plaintiffs espouse mere policy
preferences for less or no mining on the public lands, untethered to the
requirements of FLPMA or the Mining Law. Each claim will be explored in
turn.
A. Interior’s Duty to Prevent Unnecessary or Undue Degradation of the
Public Lands
326
FLPMA mandates that the Secretary of the Interior “shall, by regulation
or otherwise, take any action necessary to prevent unnecessary or undue
degradation of the [public] lands.” 43 U.S.C. § 1732(b). The proper
interpretation of this statutory mandate is the question now before this court.
The 2000 Regulations explicitly adopted the view that Congress had
authorized the Secretary to prohibit mining activities found unduly degrading,
although potentially lucrative. This view was succinctly expressed in the
preamble to the 2000 Regulations, which states:
Congress did not define the term “unnecessary or undue degradation,” but
it is clear from the use of the conjunction “or” that the Secretary has the
authority to prevent “degradation” that is necessary to mining, but undue
or excessive. This includes the authority to disapprove plans of
operations that would cause undue or excessive harm to the public lands.
65 Fed. Reg. 69,998 (Nov. 21, 2000).
Interior’s interpretation of FLPMA’s UUD standard potentially changed
in 2001, however. Before the 2001 Regulations were promulgated, Interior’s
Solicitor, William G. Myers III, wrote an opinion in which he reviewed the
meaning of the words “unnecessary” and “undue,” as well as FLPMA’s
legislative history. Based on this analysis, Solicitor Meyers determined that
the terms “unnecessary” and “undue” were not two distinct statutory
mandates, as the 2000 Regulations presumed, but were instead “two closely
related subsets or equivalents.”
Based on this interpretation of the UUD standard, Solicitor Meyers
determined that as long as a proposed mining activity is “necessary to
mining,” the BLM has no authority to prevent it. Solicitor Meyers found that:
A definition that is more restrictive – that prevents degradation that
would be caused by an operator who is using accepted and proper
procedures in accordance with applicable federal and state laws and
regulations when such degradation is required to develop a valuable
mineral deposit – would inappropriately amend the Mining Law and
impair the rights of the locator.
Accordingly, Solicitor Meyers provided that the 2000 Regulations’ SIH
standard could not be sustained; BLM could not disapprove of an otherwise
allowable mining operation merely because such an operation would cause
“substantial irreparable harm” to the public lands. . . .
Plaintiffs challenge the Solicitor’s interpretation and argue that, based
upon FLPMA’s statutory language, it is clear that Congress intended to
prevent “unnecessary degradation” as well as “undue degradation.” Thus,
327
according to plaintiffs, under FLPMA “BLM must prevent undue
degradation, even though the cause of the degradation may be necessary for
mining.”
Upon careful consideration, the court agrees with plaintiffs’ view. The
court finds that the Solicitor misconstrued the clear mandate of FLPMA.
FLPMA, by its plain terms, vests the Secretary of the Interior with the
authority – and indeed the obligation – to disapprove of an otherwise
permissible mining operation because the operation, though necessary for
mining, would unduly harm or degrade the public land.
Three well-established canons of statutory construction compel the
court’s conclusion. First, it is well settled that the language of the statute
should govern. As stated by the Supreme Court: “The starting point in
interpreting a statute is its language, for if the intent of Congress is clear, that
is the end of the matter.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402,
409.
The second rule is that when construing a statute, the court is “obliged
to give effect, if possible, to every word Congress used.” Murphy
Exploration & Prod. Co. v. U.S. Dep’t of Interior, 252 F.3d 473, 481 (D.C.
Cir.2001). The court should “disfavor interpretations of statutes that render
language superfluous.” See United States v. DBB, Inc., 180 F.3d 1277, 1285
(11th Cir. 1999).
Third and finally, it is clearly established that “[i]n statutory construction
the word ‘or’ is to be given its normal disjunctive meaning unless such a
construction renders the provision in question repugnant to other provisions
of the statute,” In re Rice, 165 F.2d 617, 619 n. 3 (D.C.Cir. 1947), or “the
context dictates otherwise,” Reiter, 442 U.S. at 339.
Applying these well-established canons to the matter at hand, FLPMA
provides that the Secretary “shall by regulation or otherwise, take any action
necessary to prevent unnecessary or undue degradation of the lands.” 43
U.S.C. § 1732(b). Accordingly, in this case: (1) the disjunctive is used, (2)
the disjunctive interpretation is neither “at odds” with the intention of the
FLPMA’s drafters, nor contrary to the statute’s legislative history;16 and (3)
16
NMA attempts to escape this conclusion by reference to FLPMA’s
legislative history. Toward this end, NMA points to FLPMA’s Conference
Report, which describes the “unnecessary or undue degradation provision”
as “giving the Secretary of the Interior general authority to prevent needless
degradation of the public lands.” H.R. Conf. Rep. No. 94-1724, at 58 (1976).
328
the “or” separates two terms that have different meanings.17 Consequently,
the court finds that in enacting FLPMA, Congress’s intent was clear: Interior
is to prevent, not only unnecessary degradation, but also degradation that,
while necessary to mining, is undue or excessive.
With that resolved, the question now before this court is whether the 2001
Regulations effectuate that statutory requirement. Put another way, the court
must determine whether the 2001 Regulations reasonably interpret and
implement FLPMA, as properly understood.
Plaintiffs contend that the 2001 Regulations ignore FLPMA’s “undue”
language and essentially limit BLM’s authority to prevent only surface
disturbance greater than necessary. Plaintiffs insist that “if an activity such
as locating a waste dump on top of a Native American sacred site or
dewatering an entire drinking water aquifer is ‘necessary for mining,’ and the
mining company pledged to meet a few technical requirements, the BLM
would be powerless to protect those resources.”
Interior, on the other hand, maintains that, despite the elimination of the
2000 Regulations’ SIH standard, and the Solicitor’s understanding that the
terms “undue” and “unnecessary” “overlap in many ways,” the 2001
Regulations nevertheless prevent UUD, as properly defined by this court.
Specifically, Interior argues that it will protect the public lands from any
UUD by exercising case-by-case discretion to protect the environment
NMA argues that, rather than describing the “unnecessary or undue
degradation” standard as pertaining to two distinct forms of degradation
prevention, Congress chose only one word: “needless.” Thus, according to
NMA, only one unitary standard was intended.
The court is not swayed by this argument. First, the word “needless” was
not in clear reference to the provision at hand. Second, when the statute’s
words are clear, as the word “or” is here, undue reliance on a statute’s
legislative history is disfavored. Finally, even if the court were inclined to
rely on FLPMA’s legislative history, after conducting its own in-depth
analysis, the court finds that FLPMA’s legislative history is relatively
unilluminating. The court thus agrees with Solicitor Meyers who found that
“FLPMA’s legislative history is unavailing.”
17
“A reasonable interpretation of the word ‘unnecessary’ is that which is not
necessary for mining. ‘Undue’ is that which is excessive, improper,
immoderate, or unwarranted.” Utah v. Andrus, 486 F.Supp. 995, 1005 n. 13
(D. Utah 1979).
329
through the process of: (1) approving or rejecting individual mining plans of
operations; (2) regulating in response to the requisite Notices that operators
must submit before commencing exploration activities not requiring a plan
of operations; (3) requiring financial guarantees for costs for mining
activities; and (4) linking performance standards to those set forth in existing
laws and regulations. These existing laws and regulations include: the
Endangered Species Act, the Archeological Resources and Protection Act, the
Clean Water Act, the Comprehensive Environmental Response, Control and
Liability Act, Interior’s authority under FLPMA to withdraw public land from
mining entry, and Interior’s authority under FLPMA to formally designate
and withdraw from mining “areas of critical environmental concern,” 43
U.S.C. § 1712(c)(3).
Plaintiffs, in response, have been unable to present evidence to contradict
or undermine Interior’s claim. Plaintiffs have not shown that, by the exercise
of case-by-case discretion, Interior will fail to prevent unnecessary or undue
degradation.
The court thus finds that, in promulgating FLPMA, Congress tasked the
Secretary of Interior with preventing both “unnecessary” as well as “undue”
degradation to the public lands. The court finds further, however, that the
terms “unnecessary” and “undue,” which are not defined in the FLPMA, are
themselves ambiguous. In tasking the Secretary to prevent “unnecessary or
undue” degradation, Congress left two broad gaps for the Secretary to fill,
which the Secretary has elected to fill through the exercise of her discretion,
on a case-by-case basis.
Because FLPMA is silent or ambiguous with respect to what specifically
constitutes “unnecessary or undue degradation,” and the means Interior
should take to prevent it, the court shall review Interior’s actions under the
second prong of Chevron. Consequently, the court must determine, not
whether the 2001 Regulations represent the best interpretation of the FLPMA,
but whether they represent a reasonable one. Here, upon careful
consideration, the court finds that they do. Plaintiffs have neither
demonstrated that the 2001 Regulations fail to prevent unnecessary or undue
degradation of the public lands, in contravention of FLPMA, nor that Interior,
in promulgating the 2001 Regulations, toiled under an erroneous view of its
own authority.18 The 2001 Regulations are neither “procedurally defective”
18
While the Solicitor’s opinion would tend to undermine this claim, and the
question is indeed extremely close, the court finds that Interior’s decision to
330
nor “arbitrary or capricious in substance,” nor “manifestly contrary” to the
FLPMA. United States v. Mead Corp., 533 U.S. 218, 227 (2001). Thus, the
regulations must be accorded due deference. Accordingly, the first of
plaintiffs’ challenges must fail.
B. Mining Operations Proposed on Invalidly Claimed or Unclaimed Lands
The court now turns to the second of plaintiffs’ three claims. The Mining
Law of 1872, 30 U.S.C. §§ 21-47 (2000), distinguishes between claimed and
unclaimed land, affording greater rights to those who hold a valid mining
claim. Based on this distinction, plaintiffs contend that the FLPMA gives
BLM enhanced oversight on lands unencumbered by a valid mining claim –
that operations thereon are subject, not only to the baseline UUD standard,
but also to the “full panoply” of BLM’s regulatory power. According to
plaintiffs, BLM must therefore: (1) manage these lands on the basis of
multiple use and sustained yield; (2) prevent permanent impairment of public
lands; and (3) ensure the receipt of fair market value for a company’s use
thereon. Plaintiffs maintain that: “BLM’s failure to implement the entire set
of FLPMA requirements . . . on invalidly claimed or wholly unclaimed public
lands is not based on any reasonable interpretation of [FLPMA] and cannot
promulgate the 2001 Regulations and abolish the SIH standard, while
influenced by the Solicitor’s (erroneous) opinion concerning the illegality of
the SIH standard, was not based primarily upon it. Cf. Sea-Land Service, Inc.
v. Dep’t of Transp., 137 F.3d 640, 646 (D.C. Cir.1998) (“An agency action,
however permissible as an exercise of discretion, cannot be sustained where
it is based not on the agency’s own judgment but on an erroneous view of the
law.”).
In reaching this conclusion, the court relies primarily on the following
statement: “Regardless of whether this [SIH] provision was legally
promulgated in the 2000 rule, BLM has determined that we should remove
the provision, since other means exist to protect the resources covered by the
SIH standard.” 66 Fed. Reg. at 54,838.
The above statements tend to demonstrate that Interior abolished the SIH
standard in the exercise of its own judgment, not merely because, based on
the Solicitor’s opinion, it believed it “had no choice.” Holland v. Nat’l
Mining Ass’n, 309 F.3d 808, 819 (D.C. Cir. 2002) (noting that a court should
ask whether the agency “voluntarily acquiesced” to an erroneous legal
standard because, in the exercise of its own discretion, it believed the
standard to be reasonable, or, alternatively, acquiesced because it “believed
that it had no choice”).
331
withstand judicial review.”
NMA advances two primary arguments in defense of the 2001
Regulations. First, NMA argues that, because essentially the same rules have
governed unclaimed or invalidly claimed land since 1980, the relevant
provisions in the 2001 Regulations are entitled to substantial deference.
Second, NMA contends that the 2001 Regulations properly limit Interior’s
authority over mining to the UUD standard, even on unclaimed land. . . .
Interior also defends the 2001 Regulations, but on a very different ground.
Unlike NMA, Interior concedes that its regulatory power over unclaimed or
invalidly claimed land is not limited to the UUD standard. Interior therefore
recognizes that it has the discretion to choose other uses on unclaimed or
inadequately claimed public land, to the exclusion of mining.21 Interior
argues, however, that the 2001 Regulations comport with this requirement
because they give Interior the authority to regulate unclaimed lands “on a
case-by-case” and “situation-specific” basis. Interior’s essential argument,
then, is that plaintiffs’ challenge must fail because, in practice, Interior
already complies with all the requirements plaintiffs urge.
In order to parse these conflicting claims, the court must first explore the
Mining Law, and the rights conferred thereunder. . . .
In practice, the Mining Law gives citizens three primary rights: (1) the
right to explore for valuable mineral deposits, 30 U.S.C. § 22; (2) the right
21
Interior states that its “position on this issue was expressly set forth as
follows in the Federal Register preamble to the 2000 rule, which continues
under the 2001 rule.” In the 2000 preamble, Interior states the following:
It must be clearly understood, however, that persons who conduct
operations on lands without valid claims or mill sites do not have the
same rights associated with valid claims or sites. This means that BLM’s
decision whether to approve such mining activities . . . is not constrained
or limited by whatever rights a mining claimant or mill site locator may
have, and thus is of a somewhat different and more discretionary
character than its decision where properly located and maintained mining
claims are involved. For example, an operator [who] doesn’t have a
properly located or perfected mill site would not be able to rely upon a
property right under the mining laws to place a tailings pile on unclaimed
land. Such situations will be evaluated on a case-by-case basis in
accordance with BLM policy.
65 Fed. Reg. 69,998, 70,047 (Nov. 21, 2000).
332
to possess, occupy, and extract minerals from the lands in which valuable
mineral deposits are found, 30 U.S.C. § 26; and (3) the right to patent lands
in which valuable mineral deposits are found, 30 U.S.C. § 29. . . .
[P]erfection of a valid mining claim . . . requires the making of a “discovery,”
as well as posting, recordation, payment of annual fees, and compliance with
other applicable statutory and regulatory requirements.
While a claimant can explore for valuable mineral deposits before
perfecting a valid mining claim, without such a claim, she has no property
rights against the United States (although she may establish rights against
other potential claimants), and her use of the land may be circumscribed
beyond the UUD standard because it is not explicitly protected by the Mining
Law.
Before an operator perfects her claim, because there are no rights under
the Mining Law that must be respected, BLM has wide discretion in deciding
whether to approve or disapprove of a miner’s proposed plan of operations.
Accordingly, the system may be properly described in the following manner:
When the Secretary considers a proposed plan of operations involving
valid mining claims and valid mill sites, the Secretary must respect the
rights that attach to these valid claims and mill sites while at the same
time complying with the statutory mandate to “prevent unnecessary or
undue degradation of the [public] lands.” 43 U.S.C. § 1732(b) . . . .
When reviewing a proposed plan of operations involving mining claims
or mill sites that are not valid (or when unclaimed public lands are
involved), however, the Secretary has broader discretion, because there
are no rights under the Mining Law that must be respected.
(Solicitor’s Ancillary Use Memorandum).24
Against this backdrop, the court must now consider BLM’s
implementation of the Mining Law and FLPMA. BLM provided in the 2001
Regulations:
BLM has carefully considered the relationship between FLPMA and
rights under the mining laws. In these regulations, BLM has decided that
it will approve plans of operations on unclaimed land open under the
mining laws if the requirements of subpart 3809 are satisfied, and the
other considerations that attach to a Federal decision, such as Executive
Order 13007 on Indian Sacred Sites, are also met.
24
The court expressly rejects NMA’s view that only the UUD standard may
properly apply to all mining activities performed on public land.
333
65 Fed.bReg. at 70,013.
The question before this court, then, is whether this policy constitutes a
reasonable exercise of BLM’s discretion to implement FLPMA and the
Mining Law.
. . . FLPMA states that it is the policy of the United States to “receive fair
market value of the use of the public lands and their resources unless
otherwise provided for by statute.” 43 U.S.C. § 1701(a)(9). Plaintiffs
contend that only initial exploration activities and subsequent legal uses on
valid claims are exempt from this requirement. Therefore, according to
plaintiffs, BLM must require fair market value for operations conducted on
unclaimed or inadequately claimed land. Plaintiffs challenge the 2001
Regulations’ failure to effectuate this statutory requirement.
Interior and NMA, meanwhile, maintain that plaintiffs’ challenge lacks
merit because by stating “unless otherwise provided for by statute,” §
1701(a)(9) carves out a broad exception to the general fair market value
requirement, which extends to mining operations on unclaimed lands. In the
alternative, Interior contends, moreover, that 43 U.S.C. § 1701(a)(9) sets
forth only a policy goal – not an express statutory mandate – and that, under
FLPMA, Interior has wide discretion to balance competing policies.
In response, plaintiffs note that the Mining Law does not vest operators
on unclaimed or invalidly claimed land with legal rights against the United
States. As such, according to plaintiffs, such persons are not affected by §
1701(a)(9)‘s “carve out” provision, and are therefore subject to the general
fair market value requirement at issue here.
The court finds more merit in plaintiffs’ view. The court concludes that,
for the reasons set forth above, if there is no valid claim and the claimant is
doing more than engaging in initial exploration activities on lands open to
location, the claimant’s activity is not explicitly protected by the Mining Law
or FLPMA. Thus, the activity does not fall within the carve-out provision set
forth in § 1701(a)(9). Interior and NMA’s arguments to the contrary are
without merit.
Accordingly, the court shall turn to consider Interior’s second, alternate
argument: that requiring categorical fair market value payments for public
lands not subject to a valid mining claim or otherwise protected by statute
does not represent the only rational balancing of FLPMA’s many values. As
to this argument, the court agrees – but finds its assent to be of no moment.
While it is true that in administering FLPMA, Interior is obligated to balance
FLPMA’s many values, and while it is also true that Interior’s decision of
334
how to balance the competing interests would normally be entitled to great
deference, such deference is not appropriate here.
Throughout its brief, Interior professes its understanding that Congress’s
policy goal does not apply to unclaimed lands. Based on Interior’s arguments
to this court and the legislative record, it appears that Interior, in
promulgating the 2001 Regulations, did not attempt to further Congress’s
policy goal of receiving “fair market value of the use of public lands and their
resources,” insofar as the regulations govern mining operations on unclaimed
lands.
Because Interior balanced the various values set forth in FLPMA while
operating under the erroneous assumption that it did not need to attempt to
obtain fair market value for mining operations conducted on unclaimed land,
the court finds that Interior’s judgment is not entitled to deference – and
cannot stand.
Operations neither conducted pursuant to valid mining claims nor
otherwise explicitly protected by FLPMA or the Mining Law (i.e.,
exploration activities, ingress and egress, and limited utilization of mill sites)
must be evaluated in light of Congress’s expressed policy goal for the United
States to “receive fair market value of the use of the public lands and their
resources.” 43 U.S.C. § 1701(a)(9). Because, in promulgating 65 Fed. Reg.
70,013, Interior was not cognizant of its statutory obligation to attempt to
“receive fair market value of the use of public lands and their resources,” and
did not balance its competing priorities with that obligation mind, the court
finds that the regulations must be remanded to Interior, so that Congress’s
policy goal, as set forth in § 1701(a)(9), may be given proper effect.
Judgment shall therefore be entered for plaintiffs on this claim.
*****
IV. CONCLUSION
In sum, it is clear that mining operations often have highly significant –
and sometimes devastating – environmental consequences. It is also clear
that the 2001 Regulations, in many cases, prioritize the interests of miners,
who seek to conduct these mining operations, over the interests of persons
such as plaintiffs, who seek to conserve and protect the public lands. While
such prioritization may well constitute unwise and unsustainable policy, with
one exception, the court cannot find that the 2001 Regulations unreasonably
implement the FLPMA, in violation of the Administrative Procedures Act,
nor can the court conclude that the Secretary acted arbitrarily or capriciously
in promulgating the 2001 Regulations, such that this court may intervene.
335
Accordingly, with one exception, plaintiffs’ facial challenge must fail.
NOTES AND QUESTIONS
1. “Unnecessary or undue degradation.” What does FLPMA’s
“unnecessary or undue degradation” standard mean? What authority does it
give BLM to regulate mining? To what extent does it require BLM to
regulate mining? What is the relevance of the other laws the court mentions,
such as the Endangered Species Act and Clean Water Act? Can
environmental impacts be “undue” if they do not exceed levels permitted by
those laws?
2. The Mineral Policy Center decision. Who won this case? Once the
court found that the Interior Solicitor had misinterpreted FLPMA, why didn’t
it provide plaintiffs with a remedy? What would you advise Mineral Policy
Center to do now? What would you advise Interior to do, when it next faces
a decision about whether to approve a new mine that opponents claim will
cause unacceptable environmental impacts? Suppose the next administration
wants to take another look at interpretation of the unnecessary or undue
degradation standard. How would you advise it to do so, in order to get
maximum deference from the courts? Should it go through another
rulemaking? Seek a new opinion from the Solicitor?
3. Mining on “unclaimed” lands. What precisely did the court hold with
regard to mining on lands not validly claimed under the Mining Law? What
authority does the BLM have to regulate such mining? What authority does
it have to permit such mining? Must it receive “fair market value”
(presumably meaning royalties on extracted ores, as well as rental value for
the occupied surface) for such activities? Is there an argument that no mining
activities should be permitted on public lands if the miner does not meet the
requirements of the Mining Law to establish a valid claim? Why do you
suppose Interior, the mining industry, and even the environmental plaintiffs
all agreed that some mining activities could be conducted outside valid
claims?
4. State regulation of mining on federal lands. Many western states, even
those with historically powerful mining industries, are becoming more
aggressive about regulating the environmental practices of mining operations,
including operations on federal lands. In 1998, for example, Montana voters
endorsed an initiative prospectively prohibiting the use of the cyanide
leaching process to produce gold and silver. An industry campaign to repeal
336
the ban failed in November 2004. Assuming that cyanide leaching is the only
economically viable way to produce gold or silver from a claim on federal
land, can that initiative be applied? If so, would it be a “taking” of property
rights requiring compensation? The Montana Supreme Court has rejected a
takings claim by a mining company operating on state land. Seven Up Pete
Venture v. State, 327 Mont. 306, 114 P.3d 1009 (Mont. 2005). The U.S.
Supreme Court has not yet ruled on Seven Up’s petition for certiorari.
5. Mining Law reform. Nick Rahall (D-WV), new chairman of the (newly
renamed) House Committee on Natural Resources, has said that reform of the
General Mining Law is a high priority for the current Congress. Given what
you know at this point about hardrock mining on federal lands, what priority
would you place on that elusive project? If you would like to see the Law
reformed, what changes would you like to see made, and why? Should
patenting be made easier or more difficult? Should the price of patenting
land be raised to market value? If so, should market value reflect only the
value of the surface or the value of the extractable minerals? Should the
United States charge a royalty for extraction of minerals from unpatented
claims? Should the size of claims be increased? Should additional
protection be provided to claimants prior to discovery of a valuable deposit?
Should Congress define what constitutes a valuable deposit? Should claim
maintenance fees be adjusted? Should Congress more clearly define the
meaning of FLPMA’s “unnecessary or undue degradation” standard as
applied to mining operations?
337
Assignment 16: Introduction to National Forest Management
In Europe people talk a great deal of the wilds of America, but the
Americans themselves never think about them; they are insensible to the
wonders of inanimate nature and they may be said not to perceive the
mighty forests that surround them till they fall beneath the hatchet.
Alexis de Tocqueville, Democracy in America.
United States v. New Mexico
U.S. Supreme Court, 1978.
438 U.S. 696.
O JUSTICE REHNQUIST delivered the opinion of the Court.
*****
In the mid and late 1800’s, many of the forests on the public domain were
ravaged and the fear arose that the forest lands might soon disappear, leaving
the United States with a shortage both of timber and of watersheds with
which to encourage stream flows while preventing floods. It was in answer
to these fears that in 1891 Congress authorized the President to “set apart and
reserve, . . . any State or Territory having public land bearing forests, in any
part of the public lands wholly or in part covered with timber or undergrowth,
whether of commercial value or not, as public reservations.” Creative Act of
Mar. 3, 1891, § 24, 26 Stat. 1103, as amended, 16 U.S.C. § 471 (repealed
1976).
The Creative Act of 1891 unfortunately did not solve the forest problems
of the expanding Nation. To the dismay of the conservationists, the new
national forests were not adequately attended and regulated; fires and
indiscriminate timber cutting continued their toll. To the anguish of Western
settlers, reservations were frequently made indiscriminately. President
Cleveland, in particular, responded to pleas of conservationists for greater
protective measures by reserving some 21 million acres of “generally settled”
forest land on February 22, 1897. President Cleveland’s action drew
immediate and strong protest from Western Congressmen who felt that the
“hasty and ill considered” reservation might prove disastrous to the settlers
living on or near these lands.13
13
[J. Ise, The United States Forest Policy 130-139 (1972).] Western
Congressmen had objected since 1891 to what they viewed to be frequently
338
Congress’ answer to these continuing problems was three-fold. It
suspended the President’s Executive Order of February 22, 1897; it carefully
defined the purposes for which national forests could in the future be
reserved; and it provided a charter for forest management and economic uses
within the forests. Organic Administration Act of June 4, 1897, 30 Stat. 34,
16 U.S.C. § 473 et seq. (1976 ed.). In particular, Congress provided:
“No national forest shall be established, except to improve and protect
the forest within the boundaries, or for the purpose of securing favorable
conditions of water flows, and to furnish a continuous supply of timber
for the use and necessities of citizens of the United States; but it is not the
purpose or intent of these provisions, or of [the Creative Act of 1891], to
authorize the inclusion therein of lands more valuable for the mineral
therein, or for agricultural purposes, than for forest purposes.” 30 Stat.
35, as codified, 16 U.S.C. § 475 (1976 ed.) (emphasis added).
The legislative debates surrounding the Organic Administration Act of
1897 and its predecessor bills demonstrate that Congress intended national
forests to be reserved for only two purposes – “[t]o conserve the water flows,
and to furnish a continuous supply of timber for the people.”14 30 Cong. Rec.
indiscriminate creation of federal forest reserves. Id., at 129-130. A major
complaint of the Western Congressmen was that rampant reserving of forest
lands by the United States might leave “no opportunity there for further
enlargement of civilization by the establishment of agriculture or mining.”
30 Cong. Rec. 1281 (1897) (Sen. Cannon).
14
The Government notes that the Act forbids the establishment of national
forests except “to improve and protect the forest within the boundaries, or
for the purpose of securing favorable conditions of water flows, and to
furnish a continuous supply of timber,” and argues from this wording that
“improvement” and “protection” of the forests form a third and separate
purpose of the national forest system. A close examination of the language
of the Act, however, reveals that Congress only intended national forests to
be established for two purposes. Forests would be created only “to improve
and protect the forest within the boundaries,” or, in other words, “for the
purpose of securing favorable conditions of water flows, and to furnish a
continuous supply of timber.”
This reading of the Act is confirmed by its legislative history. Nothing
in the legislative history suggests that Congress intended national forests to
be established for three purposes, one of which would be extremely broad.
339
967 (1897) (Cong. McRae). National forests were not to be reserved for
aesthetic, environmental, recreational, or wildlife-preservation purposes.
“The objects for which the forest reservations should be made are the
protection of the forest growth against destruction by fire and ax, and
preservation of forest conditions upon which water conditions and water
flow are dependent. The purpose, therefore, of this bill is to maintain
favorable forest conditions, without excluding the use of these
reservations for other purposes. They are not parks set aside for nonuse,
but have been established for economic reasons.” 30 Cong. Rec. 966
(1897) (Cong. McRae).
*****
Any doubt as to the relatively narrow purposes for which national forests
were to be reserved is removed by comparing the broader language Congress
used to authorize the establishment of national parks. In 1916, Congress
created the National Park Service and provided that the
“fundamental purpose of the said parks, monuments, and reservations .
. . is to conserve the scenery and the natural and historic objects and the
wild life therein and to provide for the enjoyment of the same . . .
unimpaired for the enjoyment of future generations.” National Park
Service Act of 1916, 39 Stat. 535, § 1, as amended, 16 U.S.C. § 1.18
Indeed, it is inconceivable that a Congress which was primarily concerned
with limiting the President’s power to reserve the forest lands of the West
would provide for the creation of forests merely “to improve and protect the
forest within the boundaries”; forests would be reserved for their
improvement and protection, but only to serve the purposes of timber
protection and favorable water supply. This construction is revealed by a
predecessor bill to the 1897 Act which was introduced but not passed in the
54th Congress; the 1896 bill provided:
“That the object for which public forest reservations shall be established
under the provisions of the act approved March 3, 1891, shall be to
protect and improve the forests for the purpose of securing a continuous
supply of timber for the people and securing conditions favorable to water
flow.” H.R. 119, 54th Cong., 1st Sess. (1896) (emphasis added).
*****
18
While in 1906 Congress transferred jurisdiction of the national forests to the
Department of Agriculture, Transfer Act of 1905, 33 Stat. 628, national parks
are exclusively under the jurisdiction of the Department of the Interior. This
340
difference in jurisdiction again points up the limited purposes of the national
forests, as explained in the House Report on the National Park Service Act:
“It was the unanimous opinion of the committee that there should not be
any conflict of jurisdiction as between the departments [of the Interior
and Agriculture] of such a nature as might interfere with the organization
and operation of the national parks, which are set apart for the public
enjoyment and entertainment, as against those reservations specifically
created for the conservation of the natural resources of timber and other
national assets, and devoted strictly to utilitarian purposes, in the vastly
greater areas, known as national forests.
“The segregation of national-park areas necessarily involves the question
of the preservation of nature as it exists, and the enjoyment of park
privileges requires the development of adequate and moderate-priced
transportation and hotel facilities. In the national forests there must
always be kept in mind as primary objects and purposes the utilitarian use
of land, of water, and of timber, as contributing to the wealth of all the
people.” H.R. Rep. No. 700, 64th Cong., 1st Sess., 3 (1916).
341
West Virginia Division of the Izaak Walton League of
America, Inc. v. Butz
Fourth Circuit, 1975
522 F.2d 945.
O FIELD, Circuit Judge:
Alleging that the Forest Service was entering into contracts for the sale
of timber in the Monongahela National Forest of West Virginia the terms of
which violated the Organic Act of 18971 (hereinafter “Organic Act”), the
plaintiffs instituted this action seeking both declaratory and injunctive relief.
Specifically, the plaintiffs challenged three proposed timber sales which in
the aggregate covered the harvesting of 1077 acres. Under the sales contracts
649 acres were designated for selective cutting while the remaining 428 acres
were to be harvested by clearcutting in units ranging in size from five to
twenty-five acres.2 While the trees to be harvested by the selective method
1
16 U.S.C. §§ 475-482.
2
Prior to 1964 the harvesting method under contracts of sale in the
Monongahela National Forest was primarily selective cutting. Under this
method each tree is selected for harvesting on the basis of its position in the
stand as well as its maturity and future possibility for growth. The trees so
selected for removal are marked by either ax blazes or spotted with paint.
Since 1964, however, the Forest Service has employed a variety of cutting
methods incident to its timber sales program. In addition to selective cutting
the methods employed have been shelterwood cutting, seed-tree cutting and
clear cutting. Under the shelterwood system enough trees are left to protect
immature trees against exposed conditions, and in the seed-tree method
certain trees are left for the purpose of seeding the surrounding ground.
Clearcutting is usually associated with even-aged management of the tree
resource and has been utilized for many years in the old European forests as
well as some parts of the United States such as the Douglas fir forests of
Oregon. In even-aged management the forest is composed of timber stands
each of which is made up of specific age classes. While an age class usually
represents a range of ages rather than a single year, the age normally denotes
the period it took for the stand to become established following either natural
destruction or previous clearcutting. It normally involves the cutting of most
of the trees in a given area for the purpose of regenerating the area by a new
stand of trees.
342
would be individually marked, the contracts provided that in the clearcut area
all merchantable timber would be cut and none of the trees would be
individually marked. The plaintiffs charged that the contracts with respect
to the 428 acres violated the sales provision of the Act, 16 U.S.C. § 476,
which reads in pertinent part as follows:
“For the purpose of preserving the living and growing timber and
promoting the younger growth on national forests, the Secretary of
Agriculture, . . . may cause to be designated and appraised so much of the
dead, matured or large growth of trees found upon such national forests
as may be compatible with the utilization of the forests thereon, and may
sell the same . . . . Such timber, before being sold, shall be marked and
designated, and shall be cut and removed under the supervision of some
person appointed for that purpose by the Secretary of Agriculture . . . .”
*****
The Service takes the position that “large growth of trees” signifies a
sizeable stand or grouping of trees, and that the district court erroneously
converted this phrase into “large growth trees” which in effect requires that
each individual tree be identified as “large”. We think the district court
correctly construed this statutory phrase. The stated purpose of “promoting
the younger growth” clearly refers to the characteristics of the individual
trees, and in our opinion the use of the phrase “large growth of trees” in the
latter part of the same sentence likewise refers to the individual trees, the
words “large growth” being used in contradistinction to the prior reference
to “younger growth”. To accept this contention that “large growth of trees”
means a sizeable stand or group of trees would treat the words “dead and
mature” as surplusage, and violate the “well known maxim of statutory
construction that all words and provisions of statutes are intended to have
meaning and are to be given effect, and words of a statute are not to be
construed as surplusage”. Wilderness Society v. Morton, 479 F.2d 842, 856
(1973). The interpretation urged by the defendants would lead to the absurd
result that while in small areas of the forest the authority of the Secretary
would be restricted, he would nevertheless be free to cut any trees he might
desire from a sizeable stand or group of trees (defined by the Government as
ten acres or more), regardless of whether the individual trees in such group
or stand were small or large, young or old, immature or mature. In our
opinion such a paradoxical result would be at odds with the purpose of the
Organic Act as well as the plain language of the statute.
The Service further contends that in treating “mature” trees as only those
which are physiologically mature, the court ignored other accepted
343
silvicultural tests of maturity. Here again we agree with the district court that
the language of the statute means physiological maturity rather than economic
or management maturity. A tree is physiologically mature when because of
age and condition its growth begins to taper off or it loses its health and
vigor, and while age and size are indicators of physiological maturity, they
are not exclusively so. From the economic viewpoint a tree is considered
mature when it has the highest marketable value, and management maturity
is defined as the state at which a tree or stand best fulfills the purpose for
which it was maintained, e. g., produces the best supply of specified products.
We think unquestionably that in using the word “mature” Congress was
referring to physiological maturity. This appears to be the meaning of
“mature” in forestry terminology today,8 and was the accepted meaning of the
word at the time the Organic Act was passed by the Congress. In the late part
of the nineteenth century the Report Upon Forestry Investigations,
Department of Agriculture, 1877-1898, H. Doc. Vol. 71, No. 181, 55th
Cong., 2d Sess., p. 301 (1899), defined the stages of tree growth as “a
juvenile stage, when trees develop in height growth at the expense of
diameter growth, an adolescent stage, when height growth decreases and
diameter growth accelerates, and a mature stage, when height growth
practically ceases and diameter growth, although persisting, declines.” Since
Congress used the word in its physiological sense at the time of the passage
of the Organic Act, we know of no canon of statutory construction which
would justify or require that its meaning be changed merely because during
the intervening years the timber industry has developed the commercial
concept of economic or management maturity. . . .
Turning to that part of Section 476 which requires that the timber “before
being sold, shall be marked and designated”, we find the statutory language
to be simple and unambiguous. The term “marked” in the context of forestry
is well defined and means “selection and indication by a blaze, paint * * * or
8
The Society of American Foresters defines maturity as “the stage at which
a tree or other plant has attained full development, particularly height, and is
in full seed production * * *. Thereafter a decline in vigo(u)r, health and, for
woody species, soundness marks the stage of over maturity * * *.”
Terminology of Forest Science, Technology, Practice and Products, Society
of American Foresters, p. 165 (1971).
344
marking hammer on the stem of trees to be felled or retained”.9 “Designate”,
on the other hand, is a much broader term and merely means to “indicate”.10
The two words are not synonymous or interchangeable and in using them
conjunctively it is evident that Congress intended that the Forest Service
designate the area from which the timber was to be sold and, additionally,
placed upon the Service the obligation to mark each individual tree which
was authorized to be cut. This plain reading of the statutory language is
buttressed by reference to the statement of Gifford Pinchot, the first Chief of
the Forest Service, in his 1898 Surveys of Forest Reserves:11
“In reserves where timber is sold it will be necessary to indicate
unmistakably before the cutting what trees are to be cut and afterwards to
ascertain that these trees, and these only, have been taken.”
Typical of the instructions with respect to sales of timber in Forest
Reserves shortly after passage of the Act were those issued by the Secretary
of the Interior on February 27, 1902:12
“If the application (to cut timber) is approved, the head ranger or
supervisor (with assistance, if necessary) will mark at once all trees to be
cut. This is imperative in all cases involving living timber. The marking
of standing timber must be done with the “U.S.” stamping hammer, and
all trees must be marked near the ground in order that the stumps may
afford positive evidence of the marking.”
This emphasis placed on such selective marking by those who urged the
passage of the Organic Act and were charged with the responsibility of its
implementation is entitled to particular weight.
*****
The Service urges that we follow the decision in Sierra Club v. Hardin,
325 F.Supp. 99 (D. Alaska1971),13 which involved the largest sale ever
9
Terminology of Forest Science, Technology, Practice and Products, Society
of American Foresters, Supra, n. 7, pp. 276 & 277.
10
Webster’s New International Dictionary, 2d ed. (1960).
11
S. Doc. No. 189, 55 Cong., 2d Sess. 49.
12
Compilation of Laws and Regulations and Decisions Thereunder Relating
to the Establishment of Federal Forest Reserves, p. 59 (GPO 1903).
13
Vacated and remanded on other grounds, sub nom., Sierra Club v. Butz,
C.A. 9, No. 71-2514 (March 16, 1973).
345
conducted by the Forest Service, covering an estimated 1,090,000 acres of
timber land. The district court, observing that the “pre-sale marking of
individual trees would be so onerous that only isolated sales on small tracts
could be made,” concluded that since the contract contemplated “continued
cooperation” between the Forest Service and the buyer compatible with the
overall plan for utilization of the forest, it satisfied the purpose of Section
476. In reaching this cryptic conclusion the district court engaged in no
analysis of either the clear statutory language or the legislative history, and
in all candor we do not find its interpretation of the Organic Act persuasive.
While we base our decision primarily upon a literal reading of the statute
we find convincing support for our conclusion in the background and
legislative history of the Organic Act. From its initial settlement and
continuing throughout the greater part of the nineteenth century, the nation’s
forest lands were wastefully exploited. Originally, some seventy per cent of
the country’s total land surface, or approximately 11/4 billion acres, was
covered by forests, but by 1893 it was estimated that only 500 million acres
of productive forests remained. Over 600 million acres of former forests had
become waste and brush land, the greater portion of which had resulted from
a combination of wasteful cutting and the careless use of fire.14 By the late
nineteenth century responsible leaders, both in and out of Government, had
become so alarmed that they warned the Congress and the country against the
immediate and long range effects on both water flow and timber supply
which would inevitably result if the irresponsible and profligate timber
practices were permitted to continue.
In 1892 numerous bills were introduced in the Congress which provided
for the protection of the forest reserves against exploitation but most of these
were unreported. One of the bills was introduced by Congressman McRae,
Chairman of the House Committee on Public Lands, which became the basis
for the Organic Act of 1897. In introducing his bill in the 1893 Session,
Congressman McRae stated:
The main purpose of this bill * * * is to protect the forest growth against
destruction and the preservation of forest conditions upon which the
water flow is said to depend. It gives the Department the authority to
allow the use of such timber as can be spared without injury to the forest
14
Report upon Forestry Investigations, Department of Agriculture, 1877-1898,
H.Doc. Vol. 71, No. 181, 55th Cong., 2d Sess., pp. 46, 47.
346
when its use is a public necessity.15
The initial reported version in 1893 provided that “timber of commercial
nature” could be cut when the cutting was consistent with the requirement
that the Secretary of the Interior “preserve the forest”.16 In 1894 this wording
was deleted by House amendment and replaced by the more restrictive
provision that “dead or matured trees” could be removed when necessary to
preserve the remaining timber.17 To quiet the concern of those who were
distrustful of the executive’s ability to protect the forests, Congressman
Coffeen, one of the authors of the amendment, stated:
As the bill now stands I think no one can reasonably object to its
provisions. It provides, indeed, for sale of dead and nongrowing or
matured timber where the elimination of that kind of timber is necessary
for the better preservation of the living and growing trees; this all under
strict supervision. Having myself prepared this section of the amended
bill, I feel that the living timber can not in any manner be endangered
under its careful wording and provisions.18
The intention to restrict cutting only to trees which were dead or
physiologically mature rather than those of commercial value is shown by the
fears which were voiced by some members of the House and the assurances
given to them by Congressman Hermann, the amendment’s sponsor:
Mr. WELLS: . . . Now, it is a fact well known to every man who
understands anything of the theory of lumbering, and who understands
the maneuvering of land rings and pine-land thieves for the last fifty
years, that if you permit them to go onto the public domain with an
apparent right of any kind they will assume a vested right in all the
timber, and instead of cutting merely the dead timber, they will take that
which is most advantageous to themselves, and, suborning the men who
are employed by the Department to watch the timber, will steal it all and
leave nothing but a naked wilderness.
Why, gentlemen, you need no better evidence of it than that which was
adduced before the Committee on Ways and Means in its investigation
15
25 Cong. Rec. 2374.
16
25 Cong. Rec. 2371 (1893).
17
27 Cong. Rec. 364 (1894).
18
27 Cong. Rec. 367 (1894).
347
relative to the tariff in 1890 (here he quoted from the hearing):
(Congressman) MILLS. I want to ask you one question here: In
cutting the timber are they careful to cut nothing but the large timber
in the pineries, sparing the young timber, or do they just sweep it all
out?
Mr. EDGETT (Lumberman). The young timber cannot be spared.
The better practice has been found, from experience, to be to sweep
everything clean . . . .
Mr. HERMANN: This amendment, as the gentleman is aware, proposes
to accomplish just what the gentleman desires, and that is the
preservation of the forests of the United States; and I will say this to him,
that he will admit that in all forests where there is mature timber. It is
necessary to take the mature timber away from the thick and heavy forest
to preserve the balance of the forest. . . . And that is all this amendment
does.19
*****
This legislative history demonstrates that the primary concern of
Congress in passing the Organic Act was the preservation of the national
forests. While the Act as finally passed rejected the position of the extremists
who wished to forbid all cutting in the forests, it specifically limited the
authority of the Secretary in his selection of timber which could be sold. He
could select the timber to be cut only from those trees which were dead,
physiologically mature or large, and then only when such cutting would
preserve the young and growing timber which remained. Following the
addition of “large growth of trees” to the bill, the sponsors repeatedly made
it clear that the Act would permit the sale only of the individual trees which
met its specific requirements which, in the words of Senator Pettigrew, were
“the large trees, the dying trees and trees that will grow no better in time . .
. .”
Since the proposed legislation limited the types of trees which could be
sold, it logically followed that Congress wanted to insure that only the
selected trees would be cut. The original version of the McRae bill had no
provision requiring that such trees be either marked or designated. In the face
of sharp criticism on this point the Hermann amendment added the
requirement that the Secretary of the Interior “shall carefully designate . . .
said dead or mature trees”. This change was insufficient to quiet the critics
19
27 Cong. Rec. 111, 112 (1894).
348
who were concerned that the loggers would cut whatever timber they wanted
and continue to denude the forests. Finally, the Senate Committee on Public
Lands amended the bill to include the requirement of marking as well as
designating. This requirement remained in the McRae bill and was included
in the Pettigrew amendment which became the present statute. It is clear
from the legislative history that Congress considered marking to be a
necessary adjunct to the pattern of the selective selling and cutting of
individual trees under the Organic Act.
The appellants also rely upon the subsequent legislation, together with
administrative interpretations and practices of the Forest Service,26 which
they contend support their interpretation of the Organic Act. We find it
unnecessary to comment upon any of the legislation with the exception of the
Multiple-Use Sustained-Yield Act of 1960 (hereinafter Multiple-Use Act),
16 U.S.C. §§ 528-531. Section 1 of the Multiple Use Act28 states the
Congressional policy:
“It is the policy of the Congress that the national forests are established
and shall be administered for outdoor recreation, range, timber,
watershed, and wildlife and fish purposes.”
26
Concededly, at least over the past ten years, the Forest Service has entered
into contracts for the sale of timber on large tracts of land which entailed
harvesting methods at variance with the plain wording of the Organic Act.
The Service suggests that this practice is an administrative interpretation of
the Act which should be accorded considerable weight. The answer to this
contention is found in Wilderness Society v. Morton, 479 F.2d 842, 865
(1973), a case not dissimilar from the one at hand, where the court stated:
“But it is our firm belief that a line must be drawn between according
administrative interpretations deference and the proposition that
administrative agencies are entitled to violate the law if they do it often
enough. Not to draw this line is to make a mockery of the judicial
function. The courts are the final authorities on issues of statutory
construction and are not obliged to stand aside and rubber-stamp their
affirmance of administrative decisions that they deem inconsistent with
a statutory mandate or that frustrate the congressional policy underlying
a statute. The deference owed to an expert tribunal cannot be allowed to
slip into a judicial inertia.”
28
16 U.S.C. § 528.
349
Section 229 then provides:
“The Secretary of Agriculture is authorized and directed to develop and
administer the renewable surface resources of the national forests for
multiple use and sustained yield of the several products and services
obtained therefrom.”
Appellants take the position that this language is a clear Congressional
directive to the Secretary of Agriculture to apply modern principles of
forestry management and urge that we should make every effort to avoid a
restrictive reading of the 1897 Act which they state would impair the ability
of the Forest Service to meet the objectives of the Multiple-Use Act. They
further contend that in enacting this legislation Congress was not simply
imposing a new set of management principles on the Forest Service, but was
ratifying the management practices which the Service had developed over the
years.
In effect, appellants appear to argue that the Multiple-Use Act has by
implication repealed the restrictive provisions of the Organic Act. In our
opinion, however, this argument falls short of the mark on several grounds.
First of all, it is at odds with the well established rule that repeal of a statute
by implication is not favored . . .
In addition to the foregoing principle, Section 1 of the Multiple-Use Act
specifically recognizes the continued viability of the Organic Act in the
following language: “The purposes of this Act are declared to be
supplemental to, but not in derogation of, the purposes for which the national
forests were established as set forth in the Act of June 4, 1897 (16 U.S.C. §
475).”
Appellants’ argument in this respect also elides the fact that in and out of
Congress there has not been unanimous agreement with respect to the
interpretation and application of the Multiple-Use Act. Over a decade after
its passage controversy over its meaning and intent, as well as the
management practices of the Forest Service, including even-aged
management and clearcutting, has continued unabated. This division of
opinion on the scope of the Multiple-Use Act, as well as the administrative
conduct of the Forest Service, was pointed out in the 1972 Subcommittee
Report on Clearcutting:
“It is obvious from the extensive testimony received by the Subcommittee
. . . on proposed timber management legislation, that timber production
29
16 U.S.C. § 529.
350
has become a priority activity in Federal forest land management. Some
construe this as out of step with the spirit and intent, if not the letter, of
both the Multiple Use-Sustained Yield and the National Environmental
Policy Act of 1969.
Some of its critics believe the Forest Service has been relatively slow and
somewhat unresponsive to the awakening national concern about the
impact of timber harvesting on other environmental values. Others
believe the Forest Service has generally been way ahead of the Nation in
consideration of the multiple values and benefits of the National Forests,
as evidenced by its strong support of the Multiple Use-Sustained Yield
Act of 1960.”
The language of the Multiple-Use Act is broad and ambiguous, and from
our review of the material at hand we are satisfied that in enacting this
legislation Congress did not intent to jettison or repeal the Organic Act of
1897. We are equally satisfied that this Act did not constitute a ratification
of the relatively new policy of the Forest Service which applied the principles
of even-aged management and clearcutting in all of the national forests.
It is apparent that the heart of this controversy is the change in the role of
the Forest Service which has taken place over the past thirty years. For nearly
half a century following its creation in 1905, the National Forest System
provided only a fraction of the national timber supply with almost ninety-five
per cent coming from privately owned forests. During this period the Forest
Service regarded itself as a custodian and protector of the forests rather than
a prime producer, and consistent with this role the Service faithfully carried
out the provisions of the Organic Act with respect to selective timber cutting.
In 1940, however, with private timber reserves badly depleted, World War
II created an enormous demand for lumber and this was followed by the
post-war building boom. As a result the posture of the Forest Service quickly
changed from custodian to a production agency. It was in this new role that
the Service initiated the policy of even-aged management in the national
forests, first in the West and ultimately in the Eastern forests, including the
Monongahela. The appellants urge that this change of policy was in the
public interest and that the courts should not permit a literal reading of the
1897 Act to frustrate the modern science of silviculture and forest
management presently practiced by the Forest Service to meet the nation’s
current timber demands. Economic exigencies, however, do not grant the
courts a license to rewrite a statute no matter how desirable the purpose or
result might be. “If the words of the statute are clear, the court should not
add to or alter them to accomplish a purpose that does not appear on the face
351
of the statute or from its legislative history.” People v. Knowles, 35 Cal.2d
175, 182, 217 P.2d 1, 5 (1950).
We are not insensitive to the fact that our reading of the Organic Act will
have serious and far-reaching consequences, and it may well be that this
legislation enacted over seventy-five years ago is an anachronism which no
longer serves the public interest. However, the appropriate forum to resolve
this complex and controversial issue is not the courts but the Congress. The
controlling principle was stated in United States v. City and County of San
Francisco, 310 U.S. 16, 29-30 (1940):
Article 4, § 3, Cl. 2 of the Constitution provides that “The Congress shall
have Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States.”
The power over the public land thus entrusted to Congress is without
limitations. And it is not for the courts to say how that trust shall be
administered. That is for Congress.
The judgment of the district court is affirmed.
NOTES AND QUESTIONS
1. The purposes of national forests. According to the Supreme Court, what
were the purposes of the national forests in 1897, when the Organic Act was
passed? At that time, who do you think were the people described by the
Mononghahela court as “the extremists who wished to forbid all cutting in
the forests”?
2. Federal reserved water rights. The dispute in U.S. v. New Mexico
involved water rights on the Gila National Forest. The Court’s extended
discussion of the history of national forest reservation and the purposes of the
national forests was necessary to determine whether and to what extent the
national forests are supported by federal reserved water rights. Under
Winters v. United States, 207 U.S. 564 (1908), and Arizona v. California,
373 U.S. 546 (1963), the Supreme Court has held that when the United States
reserves lands for specific purposes, it implicitly also reserves sufficient
water rights to fulfill those purposes. In U.S. v. New Mexico, the United
States argued that reservation of the Gila National Forest in 1899 included
reservation of water rights for recreational and wildlife purposes. The Court
rejected that claim, holding that the purposes of national forest reservations
at the time the Gila National Forest was established did not include wildlife
protection or recreation.
352
3. The Multiple Use Sustained Yield Act. In 1960, Congress passed the
Multiple Use Sustained Yield Act 16 U.S.C. § 528-531, declaring:
It is the policy of Congress that the national forests are established and
shall be administered for outdoor recreation, range, timber, watershed,
and wildlife and fish purposes. The purposes of sections 528 to 531 of
this title are declared to be supplemental to, but not in derogation of, the
purposes for which the national forests were established as set forth in the
[Organic Administration Act of 1897.]
In U.S. v. New Mexico, the Supreme Court held that the MUSY Act “was
intended to broaden the purposes for which national forests had previously
been administered,” but not to reserve any additional water rights for the
forests.
4. Clear-cutting, the Monongahela case, and modernizing forest
management legislation. There was relatively little timber harvest from the
public lands before World War II. During and after WWII, demand for wood
skyrocketed, and private lands were no longer able to meet that demand. At
the same time, recreational demands on the national forests were also
increasing rapidly. Conflict was inevitable. By the late 1960s and early
1970s, objections to clearcutting had become quite loud, but environmental
groups were unable to get the issue on the legislative agenda in the face of
opposition from the timber industry. The Monongahela decision (as West
Virginia Division is popularly known, after the national forest that triggered
the dispute), broke the political logjam by giving the industry a strong
incentive to come to the table. The result was enactment of the National
Forest Management Act (NFMA) in 1976. Professor Charles Wilkinson
describes the events leading up to passage of NFMA as follows:
The Bitterroot National Forest made up most of the western and
southern skyline of Missoula and, by the late 1960s, had undergone nearly
two decades of high-yield logging This was new to the Bitterroot, new
to the national forest system. Before the post-World War II housing
boom, logging in the forests had been minimal, less than ten percent of
the cut in the 1960s. The situation was aggravated at the Bitterroot where
the Forest Service was beginning a program of terracing. After a stand
was clearcut, D-7 Cats bulldozed rows of terraces into the hillsides.
Seedlings were planted on the flat terrace surfaces. Initially, two words
described it: tree farm. Soon, many other four-letter words were being
employed.
People in Missoula complained that the clearcuts ruined their vista
from town. The runoff pattern changed, angering some farmers and
353
ranchers. Trout fishers saw their favorite feeder creeks clouded up.
Remember, although A River Runs Through It had not yet come out,
Missoula was Norman MacLean’s boyhood home – and he was just one
of thousands who loved those streams.
In an even larger sense, citizens simply sensed an imbalance.
Growing numbers of people – old timers, newcomers, and tourists – saw
it and felt it whether they were fishing, hiking, birding, hunting, driving
into town, flying into the airport, or arguing about it over coffee.
In 1969, the great conservationist senator, Lee Metcalf, asked [a
group of University of Montana professors] to write an independent,
non-partisan analysis of the logging in the Bitterroot. . . .
*****
. . . The report, released in 1970 and styled as “A University View of
the Forest Service,” . . . was sharply critical of timber practices in the
Bitterroot. In the Bitterroot, the professors concluded, the basic principle
of sustained-yield management was being violated: “We doubt that the
Bitterroot National Forest can continue to produce timber at the present
harvest level.” Timber sales were subsidized: “Clearcutting and planting
is an expensive operation. Its use should bear some relationship to the
capability of the site to return the cost invested.” Timber removal was
done in unacceptable ways: “Quality timber management and harvest
practices are missing.” In all, the Forest Service was violating multiple
use, the agency’s basic statutory mandate: “Multiple use management,
in fact, does not exist as the governing principle on the Bitterroot
National Forest. . . . Consideration of recreation, watershed, wildlife and
grazing appear as afterthoughts.”
*****
Few people would have predicted it in 1970, but we can see in
retrospect that major forest reform probably was inevitable upon the
publication of the Bolle Report. It covered all the basic concerns that had
created a rising tide of public opinion and it quickly became a rallying cry
as well as a solid professional document. Congressional hearings
followed. Then came the so-called Church Guidelines, issued by Senator
Frank Church’s Public Lands subcommittee. These guidelines set broad,
but still meaningful, standards for national forest timber harvesting,
whether clearcutting or otherwise.
Then, in 1975, the Monongahela opinion in the Fourth Circuit ruled
that clearcutting violated the 1897 Organic Act. . . .
354
After Monongahela, the national forests faced a crisis. Of course, the
nature of the crisis was in the eye of the beholder. To some, the crisis
was that clearcutting might be terminated. To others, the crisis was that
clearcutting might continue. Regardless, the controversy had assumed a
rare posture. Usually, in the legislative process, some interests argue for
reform, while others want to preserve the status quo. Thus most bills
move slowly, and few ever become law. By 1975, however, essentially
all affected interest groups – even though their proposals directly
conflicted – wanted change, quick change if possible, in the national
forest laws. Congress was destined to act and, on October 22, 1976, with
the passage of the NFMA, it did.
Charles F. Wilkinson, The National Forest Management Act: The Twenty
Years Behind, The Twenty Years Ahead, 68 University of Colorado Law
Review 659 (1997).
Do you agree with the Fourth Circuit’s interpretation of the Organic Act
in Monongahela? Did the plain words of the statute compel the outcome?
Note that this case preceded the Supreme Court’s decision in Chevron v.
NRDC, 467 U.S. 837 (1984), holding that federal courts must defer to the
reasonable statutory interpretation of an agency charged with implementing
a statute. Would the decision have come out differently after Chevron? Was
the court right about the intent of Congress in 1897? Does it make sense for
a court interpreting a statute in 1975 to be bound by its best understanding of
congressional intent in 1897, or should the court be free to adjust its
interpretation of ambiguous language to suit modern realities?
355
Assignment 17
Multiple Use Management: The Challenge
of Articulating Standards
Excerpts from the Multiple Use Sustained Yield Act
16 U.S.C. 528. It is the policy of the Congress that the national forests are
established and shall be administered for outdoor recreation, range, timber,
watershed, and wildlife and fish purposes. The purposes of sections 528 to
531 of this title are declared to be supplemental to, but not in derogation of,
the purposes for which the national forests were established as set forth in
section 475 of this title. Nothing herein shall be construed as affecting the
jurisdiction or responsibilities of the several States with respect to wildlife
and fish on the national forests. Nothing herein shall be construed so as to
affect the use or administration of the mineral resources of national forest
lands or to affect the use or administration of Federal lands not within
national forests.
16 U.S.C. § 529. The Secretary of Agriculture is authorized and directed to
develop and administer the renewable surface resources of the national
forests for multiple use and sustained yield of the several products and
services obtained therefrom. . . . .
16 U.S.C. § 531. As used in sections 528 to 531 of this title the following
terms shall have the following meanings:
(a) “Multiple use” means: The management of all the various renewable
surface resources of the national forests so that they are utilized in the
combination that will best meet the 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; that some
land will be used for less than all of the resources; and harmonious and
coordinated management of the various resources, each with the other,
without impairment of the productivity of the land, with consideration being
given to the relative values of the various resources, and not necessarily the
combination of uses that will give the greatest dollar return or the greatest
unit output.
(b) “Sustained yield of the several products and services” means the
356
achievement and maintenance in perpetuity of a high-level annual or regular
periodic output of the various renewable resources of the national forests
without impairment of the productivity of the land.
Excerpts from the National Forest Management Act
16 U.S.C. § 1604. National Forest System land and resource
management plans
(a) . . . [T]he Secretary of Agriculture shall develop, maintain, and, as
appropriate, revise land and resource management plans for units of the
National Forest System, coordinated with the land and resource management
planning processes of State and local governments and other Federal
agencies.
*****
(e) In developing, maintaining, and revising plans for units of the National
Forest System pursuant to this section, the Secretary shall assure that such
plans –
(1) provide for multiple use and sustained yield of the products and
services obtained therefrom in accordance with the Multiple-Use SustainedYield Act of 1960, and, in particular, include coordination of outdoor
recreation, range, timber, watershed, wildlife and fish, and wilderness; and
(2) determine forest management systems, harvesting levels, and
procedures in the light of . . . the definition of the terms “multiple use” and
“sustained yield” as provided in the Multiple-Use Sustained-Yield Act of
1960, and the availability of lands and their suitability for resource
management.
*****
(g) As soon as practicable, but not later than two years after October 22,
1976, the Secretary shall . . . promulgate regulations, under the principles of
the Multiple- Use Sustained-Yield Act of 1960, that set out the process for
the development and revision of the land management plans, and the
guidelines and standards prescribed by this subsection. The regulations shall
include, but not be limited to –
*****
(3) specifying guidelines for land management plans developed to achieve
the goals of the Program which –
(A) insure consideration of the economic and environmental aspects of
357
various systems of renewable resource management, including the related
systems of silviculture and protection of forest resources, to provide for
outdoor recreation (including wilderness), range, timber, watershed, wildlife,
and fish;
(B) provide for diversity of plant and animal communities based on the
suitability and capability of the specific land area in order to meet overall
multiple-use objectives, and within the multiple-use objectives of a land
management plan adopted pursuant to this section, provide, where
appropriate, to the degree practicable, for steps to be taken to preserve the
diversity of tree species similar to that existing in the region controlled by the
plan;
*****
(D) permit increases in harvest levels based on intensified management
practices, such as reforestation, thinning, and tree improvement if (i) such
practices justify increasing the harvests in accordance with the Multiple-Use
Sustained-Yield Act of 1960, and (ii) such harvest levels are decreased at the
end of each planning period if such practices cannot be successfully
implemented or funds are not received to permit such practices to continue
substantially as planned;
(E) insure that timber will be harvested from National Forest System
lands only where –
(i) soil, slope, or other watershed conditions will not be irreversibly
damaged;
(ii) there is assurance that such lands can be adequately restocked
within five years after harvest;
(iii) protection is provided for streams, streambanks, shorelines, lakes,
wetlands, and other bodies of water from detrimental changes in water
temperatures, blockages of water courses, and deposits of sediment, where
harvests are likely to seriously and adversely affect water conditions or fish
habitat; and
(iv) the harvesting system to be used is not selected primarily because
it will give the greatest dollar return or the greatest unit output of timber; and
(F) insure that clearcutting, seed tree cutting, shelterwood cutting, and
other cuts designed to regenerate an even aged stand of timber will be used
as a cutting method on National Forest System lands only where –
(i) for clearcutting, it is determined to be the optimum method, and
for other such cuts it is determined to be appropriate, to meet the objectives
and requirements of the relevant land management plan;
358
(ii) the interdisciplinary review as determined by the Secretary has
been completed and the potential environmental, biological, esthetic,
engineering, and economic impacts on each advertised sale area have been
assessed, as well as the consistency of the sale with the multiple use of the
general area;
(iii) cut blocks, patches, or strips are shaped and blended to the extent
practicable with the natural terrain;
(iv) there are established according to geographic areas, forest types,
or other suitable classifications the maximum size limits for areas to be cut
in one harvest operation . . . : Provided, That such limits shall not apply to the
size of areas harvested as a result of natural catastrophic conditions such as
fire, insect and disease attack, or windstorm; and
(v) such cuts are carried out in a manner consistent with the protection
of soil, watershed, fish, wildlife, recreation, and esthetic resources, and the
regeneration of the timber resource.
*****
(i) Resource plans and permits, contracts, and other instruments for the use
and occupancy of National Forest System lands shall be consistent with the
land management plans. . . .
(k) In developing land management plans pursuant to this subchapter, the
Secretary shall identify lands within the management area which are not
suited for timber production, considering physical, economic, and other
pertinent factors to the extent feasible, as determined by the Secretary, and
shall assure that, except for salvage sales or sales necessitated to protect other
multiple-use values, no timber harvesting shall occur on such lands for a
period of 10 years. Lands once identified as unsuitable for timber production
shall continue to be treated for reforestation purposes, particularly with regard
to the protection of other multiple-use values. The Secretary shall review his
decision to classify these lands as not suited for timber production at least
every 10 years and shall return these lands to timber production whenever he
determines that conditions have changed so that they have become suitable
for timber production.
*****
(m) The Secretary shall establish –
(1) standards to insure that, prior to harvest, stands of trees throughout the
National Forest System shall generally have reached the culmination of mean
annual increment of growth (calculated on the basis of cubic measurement or
other methods of calculation at the discretion of the Secretary): Provided,
359
That these standards shall not preclude the use of sound silvicultural
practices, such as thinning or other stand improvement measures: Provided
further, That these standards shall not preclude the Secretary from salvage or
sanitation harvesting of timber stands which are substantially damaged by
fire, windthrow or other catastrophe, or which are in imminent danger from
insect or disease attack; and
(2) exceptions to these standards for the harvest of particular species of
trees in management units after consideration has been given to the multiple
uses of the forest including, but not limited to, recreation, wildlife habitat,
and range and after completion of public participation processes utilizing the
procedures of subsection (d) of this section.
Charles F. Wilkinson, The National Forest Management Act:
The Twenty Years Behind, The Twenty Years Ahead
68 University of Colorado Law Review 659 (1997).
*****
The NFMA went through Congress in near record time for complex
modern legislation. Senator Jennings Randolph of West Virginia introduced
his bill on February 4, 1976, and Senator Hubert Humphrey of Minnesota
introduced his, the other key proposal, on March 5, 1976. Just a few months
later, the NFMA became law. By way of comparison, the Federal Land
Policy and Management Act (“FLPMA”), which President Ford signed
together with the NFMA on October 22, had been introduced in 1970;
FLPMA’s roots went back even further, as it was the child of the Public Land
Law Review Commission, which began its work in 1964. . . .
Leisure and serenity are not terms commonly used to describe the
cauldron from which the NFMA emerged. One’s intuition would be that the
NFMA must be a rushed-through, pieced-together statute with all manner of
drafting errors and unintended ambiguities. But I, at least, do not see the
NFMA that way. I would judge it both a well-written statute and one that
struck the best level of consensus that could be put together in 1976. . . .
My guess, then, is that the NFMA would not have looked much different
had it been in the pipeline for twelve years, as FLPMA effectively was. The
NFMA roughly reflects the nation’s collective view of the national forests as
of October 1976.
360
I would describe that rough agreement in these terms. The Forest Service,
because of its tradition of excellence, deserved considerable autonomy. At
the same time, serious mistakes had been made and, for the first time, it had
become necessary to put sideboards on the agency's discretion. No longer
would it be acceptable for the Forest Service to run the national forests as it
saw fit, accountable only through gauzy statutes like the Multiple-Use
Sustained-Yield Act.
The NFMA’s form of accountability would, to be sure, come partly
through judicial review, but several other mechanisms were employed as
well. A main premise was Arnie Bolle’s idea that the Forest Service had
become antidemocratic. Under the NFMA, policy would be made by forest
plans, with the national forests as the functional planning units. These plans
would be developed by interdisciplinary teams, with foresters and road
engineers (who together then comprised two-thirds of all agency employees)
being supplemented by biologists, hydrologists, ecologists, archaeologists,
and other appropriate disciplines. At least as important, these forest plans
were intended to be truly public documents, with wholesale public
participation from the earliest scoping sessions. In an especially notable
provision – I have never seen this kind of approach taken in any other federal
legislation – a Committee of Scientists was appointed to provide advice on
the NFMA regulations. This Committee left a heavy imprint on the
regulations, adopted in 1979. . . .
The Act, for all its emphasis on the process of planning, includes some
substantive requirements. The NFMA, which arose out of the crucible of
clearcutting, does not prohibit the practice, but the language of the Act has
enough presumptions and requirements that any national forest clearcutting
proposal will be launched into stiff headwinds. The NFMA’s mention of
diversity, brief though it is, has turned out to be monumental, leading both to
the historic administrative regulation on indicator species and to the cutback
in old-growth logging. Several provisions of the NFMA require protection
of watersheds. The reference to economic suitability is brief, but it, too, has
led to significant administrative regulations and increased scrutiny of
below-cost sales. The technical requirements on nondeclining even flow,
culmination of mean annual increment, and earned harvest effect also place
constraints on timber harvesting.
It is difficult to articulate the appropriate level of judicial review under
the NFMA. Generalizations are hazardous because many of the issues are
extraordinarily technical and judicial analysis will turn on the facts and
applied expertise in the record in each individual case. But the NFMA
361
certainly sets out law, both substantive and procedural, for courts to apply.
There is also, as a general matter, broad agency discretion. Congress had
never previously put significant limits on Forest Service authority. But
determination and caution were in the air as the NFMA moved across Capitol
Hill in 1976. The legislative sentiment was to adopt substantial reform
measures but not to intrude too much into technical, on-the-ground
management.
*****
. . . [T]he NFMA is inevitably a statute that struggles to find a balance
between statutory directives and agency discretion. We can expect many
court decisions to set standards and then remand to the Forest Service to
exercise its discretion within the boundaries of those standards.
That kind of judicial posture reflects the kind of consensus that existed
in October 1976. Rein the Forest Service in, but do not hamstring it. Still,
at bottom this was a reform law, one designed to create change, to bring
timber domination in the Forest Service to an end. There is no denying that
Congress, and the public, wanted a shift in the way that the Forest Service
managed the national forests. The most quoted language from the NFMA
process, whether in the statute itself or the legislative history, comes from
Senator Hubert Humphrey. Humphrey, remember, introduced the so-called
“industry bill.” He made it clear that he, too, was a reformer who expected
the same fundamental sea change that Arnie Bolle and Humphrey's
colleagues, Lee Metcalf and Frank Church, wanted. And, ultimately,
Humphrey rightly put the focus not on laws or on the Forest Service, but on
the land:
The days have ended when the forest may be viewed only as trees and
trees viewed only as timber. The soil and water, the grasses and the
shrubs, the fish and the wildlife, and the beauty that is the forest must
become integral parts of resources managers’ thinking and actions.
*****
362
Michael C. Blumm, Public Choice Theory and the Public
Lands: Why “Multiple Use” Failed
18 Harvard Environmental Law Review 405 (1994).
*****
Multiple use dominates land management on the vast majority of federal
lands, including most of the lands administered by the Forest Service and
BLM. Although multiple use has been codified only in the last thirty years,
the concept has been a dominant force in the management of the national
forests at least since 1905, when Gifford Pinchot was made Chief Forester of
the newly created Forest Service. Multiple use promises the greatest good to
the greatest number over a long-term period; whether it is capable of
delivering on that promise is debatable. Yet it is certain that multiple use
means management by bureaucrats with little or no oversight from Congress.
In fact, multiple use is a wholesale delegation of authority to land managers
to act in the public interest.
Multiple use promises the simultaneous satisfaction of a variety of desired
uses of the land. Moreover, multiple use gives land managers the flexibility
to adjust to changing conditions. It has therefore served to defend federal
land ownership from the attacks of those who advocate the privatization of
federal lands to timber, mining, and grazing interests. Such a disposition into
the hands of private entities would ensure that the lands were managed under
dominant use principles. Dominant use management could perhaps allow for
more production of a particular commodity or resource in a particular
location. Yet multiple use always seemed to promise more: it promised that
over the vast stretches of land managed under multiple use principles,
simultaneous pursuit of the development of all resources and commodity
outputs would, in the aggregate, be more productive than the management of
many individual parcels according to dominant use principles. This theory
that the whole would be greater than the sum of the parts played a major role
more than once in staving off efforts to sell the public lands.
When combined with widespread public participation and interest group
pluralism, multiple use seemed to offer the best prospects for allowing
democratic processes to decide how to allocate use of the public lands. Yet
multiple use has not produced balanced results, as the cost figures reported
by GAO indicate. Moreover, public choice theory supports the proposition
that multiple use cannot fulfill its promise because it is inherently biased
toward commodity users.
363
*****
In enacting the array of legislation which comprised the New Deal,
Congress gave administrative agencies broad – indeed, virtually standardless
– mandates in an attempt to foster decisionmaking by scientific or technical
experts insulated from accountability to either Congress or the courts. The
New Dealers assumed that by removing administrative policymakers from
politics and, in particular, legislative logrolling, the administrators would be
free to pursue the public interest. Yet by the mid-1960s, . . . the New Deal
model instead had produced a widespread perception that administrative
agencies were stagnant bureaucracies incapable of pursuing the public
interest because of “capture” by organized interests or by constituents with
narrowly defined economic concerns. In the 1960s and 1970s, efforts were
made to use legislative directives to overcome agency capture by formulating
a new model for administrative agencies. Under this “post-New Deal”
model, Congress would supply more standards for agencies to employ in
pursuit of the public interest, and the process of agency decisionmaking
would be made more accessible to the public at large.
Although Congress supplied a few new standards to the public land
agencies, such as the directive to ensure “a diversity of plant and animal
communities” in the National Forest Management Act of 1976 (“NFMA”),
these agencies were not extensively affected by the increased statutory
specification of the post-New Deal model. The operative management
principle on the public lands remained the system of multiple use, a
standardless delegation of authority to land managers that some
commentators consider a “collection of vacuous platitudes.”
Most of the reforms of the 1960s and 1970s pertaining to public lands
emphasized increasing public participation in public land management
decisionmaking rather than providing more specific statutory mandates. The
scope of public involvement increased first with the passage of the National
Environmental Policy Act (“NEPA”) in 1970 and continued to expand
through implementation of the planning requirements of the Federal Land
Policy and Management Act (“FLPMA”) and NFMA in 1976. In these
statutes, Congress attempted to overcome agency capture of public land
management by broadening interest group competition, thereby evening the
odds between the emerging environmental movement and the historically
dominant commodity interest groups. In theory, increased pluralism would
provide checks and balances that would overcome the dominance of narrow
special interest groups where appropriate.
An influential 1981 study, Paul Culhane’s Public Land Politics, supported
364
this theory of “balanced” pluralism, contending that the new public
participation ushered in by NEPA and the land management statutes
successfully reduced agency capture. Culhane rejected the “capture” thesis
that concluded land managers would inevitably be captured by the livestock
and forest products industries which dominate the rural communities where
the managers live. Although he conceded that well-organized local groups
can have a significant influence on land management decisions, Culhane
suggested on the basis of empirical studies that local constituencies are not
exclusively composed of commodity users, but also include some
conservationists and wildlife recreation enthusiasts. This mixture of interest
groups results in land managers being “variably” rather than uniformly
captured: in localities where environmentalists are strong, they can obtain
wilderness designations; in localities where local commodity users are strong,
they can maintain grazing allotments and timber sales. According to
Culhane, “variable capture” satisfies both the mandate of multiple use and the
pluralist vision of administrative responsibility by granting diverse opposing
groups access to public land decisionmakers, and by ensuring that all
organized groups are represented in public land decisionmaking processes.
Public choice theory exposes the limitations of Culhane’s thesis that
interest group pluralism adequately protects the public interest. Public choice
studies suggest that the influence of special interest groups will be strongest
under three conditions: (1) when the group opposes changes to the status
quo; (2) when the group’s goals are narrow and have low political visibility;
and (3) when the group has the ability to enlist support from an alternative
friendly forum, such as a sympathetic Congressman or congressional
committee. These factors illustrate why interest group pluralism produces
both poor economic and poor environmental results on multiple use lands.
Commodity-based interest groups pressure land managers to maintain historic
levels of grazing and timber harvesting in low visibility administrative
decisions, such as grazing allotments or timber sales, in order to benefit their
narrow economic concerns. These groups frequently have been able to draw
on the support of sympathetic western senators and congressmen, who view
the support of rural communities as essential to their reelection. For
example, Wilkinson has recorded the effects of commodity-based interest
group pressure on national forests, rangelands, and dam operations. These
effects also surfaced in the Clinton Administration’s recent decision to drop
attempts to raise mining and grazing fees as part of its deficit reduction
package. Culhane’s claim that land managers are not inevitably captured may
be right, but generally managers produce more commodities under the rubric
365
of multiple use than can be economically or environmentally justified.
There is another limitation on the Culhane thesis: interest group pluralism
assumes that organized groups will accurately reflect the interests of the
public at large. Public choice theory, however, contradicts this notion,
predicting that those who have an immediate economic stake in a particular
outcome will be more willing to pay for political influence. By contrast,
broadly diffused interests-especially consumer interests in public goods like
environmental quality-are likely to be underrepresented by organized groups
because of the “free rider” problem, at least until neglect and mistreatment
finally spur the public to organize.
Yet another limitation of Culhane’s thesis is implicit in his suggestion
that public lands decisionmaking is the product of organized local interests.
That may be an accurate reflection of reality, but it raises a troubling
question: why should public land management be a reflection of local
struggles between commodity users and preservationists when the public
lands belong to the entire nation? A theory that assumes organized local
interests are a surrogate for the national public interest is a recipe for
imbalance.
The present conception of multiple use should therefore be discarded
insofar as it leads to economic exploitation of the nation’s public lands by
narrowly focused special interest groups. Instead of managing in the public
interest, “captured” land managers serve factional interests, thus undermining
the long term sustainability of public land resources.
Sierra Club v. Espy
Fifth Circuit, 1994.
38 F.3d 792.
O PATRICK E. HIGGINBOTHAM , Circuit Judge:
The district court issued a preliminary injunction barring the Forest
Service from conducting even-aged management in any of the four Texas
national forests. . . .
We disagree with the district court’s insistence that NFMA restricts evenaged management to exceptional circumstances. We are persuaded that the
district court erected too high a barrier to even-aged management. The
standard that even-aged management may be used only in exceptional
circumstances goes to the heart of the finding by the district court of a
366
likelihood of success on the merits and upsets the delicate balance struck by
Congress between friends and foes of this harvesting method. We must
vacate the preliminary injunction and remand.
I.
A.
The Forest Service of the Department of Agriculture is charged with
administering the resources of this country’s national forests “for outdoor
recreation, range, timber, watershed, and wildlife and fish purposes.”
Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. § 528. The principles
of MUSYA were expressly incorporated into the statutory and regulatory
scheme of NFMA. The pressures to enact NFMA came from many sources.
On the one hand, there was increasing national concern over the Forest
Service’s use of clearcutting. On the other hand, Congress felt it necessary
to counteract a Fourth Circuit decision which strictly construed the Organic
Act of 1897 to effectively prohibit the practice of clearcutting in the national
forests. See West Va. Div. of the Izaak Walton League of Am., Inc. v. Butz,
522 F.2d 945 (4th Cir.1975) (the Monongahela decision). The result was a
compromise expressed in a statute repealing the portion of the Organic Act
interpreted in the Monongahela decision, Pub. L. No. 94-588, § 13, 1976
U.S.C.C.A.N. (90 Stat.) 2949, 2958, yet imposing new procedural and
substantive restraints on the Forest Service.
Specifically, NFMA sets forth requirements for Land and Resource
Management Plans under which the national forests are managed. The
national forests are divided into management units, see 36 C.F.R. § 200.2,
and the Forest Service must prepare an LRMP for each unit. An LRMP must
“provide for multiple use and sustained yield of the products and services
obtained [from units of the National Forest System] . . . , and, in particular,
include coordination of outdoor recreation, range, timber, watershed, wildlife
and fish, and wilderness. . . .” 16 U.S.C. § 1604(e)(1). Once an LRMP is in
place, the Forest Service can decide to sell timber only after analyzing timber
management alternatives and the sale’s particular environmental
consequences. Site-specific analysis, sometimes referred to as compartmentlevel analysis, must be consistent with the LRMP. Id. § 1604(i).
Broadly stated, there are two ways to manage a forest’s timber resources.
The first method is even-aged management. See 36 C.F.R. § 219.3. Evenaged management includes clearcutting, where all the trees are cut down;
seed tree cutting, where most of the trees are cut down, leaving only a few to
naturally seed the cut area; and shelterwood cutting, where about double the
number of trees are left standing as would be under the seed tree method.
367
Even under the least intrusive even-aged management technique, shelterwood
cutting, only about sixteen trees per acre remain after a cut. Moreover, under
seed tree cutting, the older trees left to naturally seed the cut area are later
removed. Even-aged management results in stands of trees that are
essentially the same age. Before choosing to clearcut a portion of the forest,
the Forest Service must find that clearcutting is the “optimum method” for
achieving the objectives and requirements of the LRMP. 16 U.S.C. §
1604(g)(3)(F)(i). Similarly, before choosing to seed tree cut or shelterwood
cut, the Forest Service must find that those methods are “appropriate” for
achieving the objectives and requirements of the LRMP. Id.
The second method of timber resource management is uneven-aged
management, also known as selection management. See 36 C.F.R. § 219.3.
Uneven-aged management encompasses both single tree selection and group
selection. Group selection involves cutting small patches of trees, while
single tree selection involves selecting particular trees for cutting. Unevenaged management maintains a continuous high-forest cover, and the stands
are characterized by a number of differently aged trees.
*****
B.
On May 20, 1987, the Forest Service’s Regional Forester signed the
Record of Decision approving the LRMP and the Final EIS for the Texas
national forests. The FEIS examined thirteen alternatives for managing the
forests. Two of the alternatives provided for uneven-aged management of the
forests’ timber resources and the remainder for even-aged management. The
Forest Service selected an alternative that provided for even-aged
management. . . .
[TCONR brought an administrative appeal, which resulted in remand of
the LRMP, but left its even-aged management provisions in force pending
that review. TCONR, joined by the Sierra Club and the Wilderness Society
filed suit. The district court] issued a preliminary injunction prohibiting
even-aged management in any of the four Texas forests.
. . . The court reasoned that TCONR was likely to succeed on its NFMA
claim because the Forest Service employed even-aged management as the
“rule” when, in fact, NFMA “contemplates that even-aged management
techniques will be used only in exceptional circumstances.” Id. at 363-64.
...
*****
III.
368
In determining whether the Forest Service complied with NFMA, we ask
if its actions were “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). “[T]he starting point in
every case involving construction of a statute is the language itself.”
Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330 (1978). We
must give effect to the unambiguously stated intention of Congress. “In
determining the meaning of the statute, we look not only to the particular
statutory language, but to the design of the statute as a whole and to its object
and policy.” Crandon v. United States, 494 U.S. 152, 158 (1990). However,
an agency’s construction of an ambiguous statute it administers will be
upheld so long as that construction is reasonable. See Chevron, U.S.A., Inc.
v. NRDC, 467 U.S. 837, 842-44 (1984).
IV.
A.
The government challenges the district court’s interpretation of NFMA.
Specifically, the government argues that the district court erred when it held
that even-aged logging practices could only be used in exceptional
circumstances. To hold otherwise, the district court reasoned, would violate
the statutory provision that requires the Forest Service to use even-aged
management only where “such cuts are carried out in a manner consistent
with the protection of soil, watershed, fish, wildlife, recreation, and esthetic
resources, and the regeneration of the timber resource.” 16 U.S.C. §
1604(g)(3)(F)(v). This duty to protect, the court held, “reflects the truism that
the monoculture created by clearcutting and resultant even-aged management
techniques is contrary to NFMA-mandated bio-diversity.” 822 F. Supp. at
364 (citing 16 U.S.C. § 1604(g)(3)(B)).
The district court’s holding that NFMA requires even-aged management
be used only in exceptional circumstances is in tension with Texas Comm.
on Natural Resources v. Bergland, 573 F.2d 201 (5th Cir. 1978) (TCONR I).
There we found that Congress, after hearing testimony on both sides of the
clearcutting issue, struck a delicate balance between the benefits of
clearcutting and the benefits of preserving the ecosystems and scenic quality
of natural forests. Specifically, NFMA “was an effort to place the initial
technical, management responsibility for the application of NFMA guidelines
on the responsible government agency, in this case the Forest Service. The
NFMA is a set of outer boundaries within which the Forest Service must
work.” Id. We then cautioned the Forest Service that clearcutting could not
be justified merely on the basis that it provided the greatest dollar return per
unit output; “[r]ather[,] clearcutting must be used only where it is essential
369
to accomplish the relevant forest management objectives.” Id. at 212. We
concluded by noting that “[a] decision to pursue even-aged management as
the over-all management plan under the NFMA is subject to the narrow
arbitrary and capricious standard of review.” Id.
TCONR I recognized that the Forest Service may use even-aged
management as an overall management strategy.
That even-aged
management must be the optimum or appropriate method to accomplish the
objectives and requirements set forth in an LRMP does not mean that evenaged management is the exception to a rule that purportedly favors selection
management. Similarly, the requirement that even-aged logging protect
forest resources does not in itself limit its use. Rather, these provisions mean
that the Forest Service must proceed cautiously in implementing an evenaged management alternative and only after a close examination of the effects
that such management will have on other forest resources.
The conclusion that even-aged management is not the “exception” to the
“rule” of uneven-aged management is supported by NFMA’s legislative
history. On three separate occasions, Congress rejected amendments that
would have made uneven-aged management the preferred forest management
technique. The first occurred during the joint markup sessions of the Senate
Committees on Agriculture and Forestry, and on Interior and Insular Affairs.
The language rejected by the Committees appeared in a bill introduced by
Senator Randolph. The proposed bill would have required that “uneven-aged
forest management primarily implemented by selection cutting shall be used
in the eastern mixed hardwood forests.” S. 2926, 94th Cong., 2d Sess. § 7(a)
(1976). Senator Randolph offered this language as an amendment to the
Senate bill considered by the Committees as the markup vehicle. Hearing on
S. 3091, as amended, A Bill to Amend the Forest and Rangeland and
Renewable Resources Planning Act of 1974, and for Other Purposes, 94th
Cong., 2d Sess. 71-76 (1976). The Committees rejected that amendment
largely based on the advice of Forest Service Chief McGuire and another
professional forester that even-aged management was often environmentally
preferable to uneven-aged management. Following his defeat at the
committee level, Senator Randolph offered an amendment on the Senate floor
to create the same preference for uneven-aged management. The amendment
was tabled and thereby defeated. See 122 Cong. Rec. 27625-27 (Aug. 25,
1976). Finally, during the markup sessions before the House Committee on
Agriculture, the Committee rejected an amendment offered by Representative
Brown, which would have mandated that uneven-aged management dominate
eastern national forests. House Comm. on Agric., 94th Cong., 2d Sess.,
370
Business Meetings on National Forest Management Act of 1976, at 205-07
(Comm. Print 1976).
TCONR points out that since the Randolph amendments would have
required the use of uneven-aged management, they are not relevant on the
issue of whether uneven-aged management is preferred. While TCONR
correctly distinguishes the district court’s holding from Senator Randolph’s
attempts to bar even-aged management, TCONR fails to persuade on the
issue of whether rejection of congressional efforts to restrict even-aged
logging sends a legislative message. That no amendment was specifically
offered and rejected that proposed a preference for uneven-aged logging does
not change the fact that legislators were loath to deprive the Forest Service
of the option to select even-aged management. The final outcome of NFMA
reflects those concerns.
Thus, NFMA does not bar even-aged management or require that it be
undertaken only in exceptional circumstances; it requires that the Forest
Service meet certain substantive restrictions before it selects even-aged
management. To be sure, these restrictions reflect a congressional wariness
towards even-aged management, constraining resort to its use. The sluicing
effect of the required inquiries might be described as making a decision to
employ even-aged management more difficult. However, it is not a
description or characterization of the effects of the required decisional
process that we face. The district court used “exceptional” as a decisional
standard--and hence it upset the balance struck. In fairness, this distinction
was far more subtle in the presentation to the district court.
B.
The next issue is whether the Forest Service’s timber sale EAs meet
NFMA’s substantive requirements. The district court held that since the EAs
failed to protect forest diversity and resources, TCONR was likely to succeed
on its claim that the Forest Service had impermissibly exceeded the outer
boundaries of NFMA. The district court found the term “protection”
unambiguous and held that the Forest Service’s failure to consider
ecosystems of old growth forests and its express acknowledgment of
diminution of some inner forest species as a result of even-aged management
meant that the forest resources were not adequately protected. The
government objects to the district court’s interpretation which, it argues,
affords “something akin to absolute, individualized protection to whatever
wildlife are presently inhabiting any given stand of timber.”
TCONR does not dispute the government’s assertion that NFMA does not
mandate status quo protection; rather, it argues that allowing the Forest
371
Service to define the level of protection it affords to forest resources would
“obliterate the statute’s substantive outer boundaries.” However, TCONR
does no more than urge this court to provide a reasonable interpretation of the
protective language used by Congress “further illuminated by recourse to the
legislative history.” This argument does little to lend support to TCONR’s
contention that we should ignore the Forest Service’s interpretation.
The directive that national forests are subject to multiple uses, including
timber uses, suggests that the mix of forest resources will change according
to a given use. Maintenance of a pristine environment where no species’
numbers are threatened runs counter to the notion that NFMA contemplates
both even- and uneven-aged timber management. Indeed, NFMA regulations
anticipate the possibility of change and provide that “[r]eductions in diversity
of plant and animal communities and tree species from that which would be
expected in a natural forest, or from that similar to the existing diversity in
the planning area, may be prescribed only where needed to meet overall
multiple-use objectives.” 36 C.F.R. § 219.27(g). That protection means
something less than preservation of the status quo but something more than
eradication of species suggests that this is just the type of policy-oriented
decision Congress wisely left to the discretion of the experts – here, the
Forest Service.
The Forest Service’s discretion, however, is not unbridled. The
regulations implementing NFMA provide a minimum level of protection by
mandating that the Forest Service manage fish and wildlife habitats to insure
viable populations of species in planning areas. 36 C.F.R. § 219.19. In
addition, the statute requires the Forest Service to “provide for diversity of
plant and animal communities.” 16 U.S.C. § 1604(g)(3)(B). This diversity
mandate itself has been the subject of considerable debate. The regulations
define diversity as “[t]he distribution and abundance of different plant and
animal communities and species within the area covered by a land and
resource management plan.” 36 C.F.R. § 219.3. At least one court has
recognized the difficulty in requiring a precise level of diversity: “The
agency’s judgment in assessing issues requiring a high level of technical
expertise, such as diversity, must . . . be accorded the considerable respect
that matters within the agency’s expertise deserve.” Sierra Club v.
Robertson, 810 F. Supp. 1021, 1028 (W.D. Ark. 1992), aff’d in part, vacated
in part on other grounds, 28 F.3d 753 (8th Cir. 1994).
We need not take this opportunity to define precisely the “outer
boundaries” of NFMA’s protection and diversity requirements, because we
find that the timber sale EAs fall clearly within such boundaries. Each EA
372
considered no action, even-aged management, and uneven-aged management
alternatives. Although it is true that when all nine sales are taken together
even-aged management emerges as the preferred alternative, each sale varies
as to the extent of its usage. For instance, in Compartment 32, forty-six
percent of the acres scheduled to be harvested will be harvested using
selection management. The remaining acres will be harvested by seed tree
cutting. In Compartment 98, twenty-three percent of the acres scheduled to
be harvested will be harvested using selection cutting. The remaining acres
will be harvested using the seed tree method. Finally, in Compartment 57,
the Forest Service chose to harvest sixty acres of timber using group
selection, an uneven-aged management method. Even this limited
interspersing of even- and uneven-aged management helps assure a mix of
early and late successional habitats.
Moreover, the EAs do not ignore old growth ecosystems. The
Compartment 32 EA, for example, discusses the old growth component of the
forest. Compartment 32 contains 964 acres of federal land and approximately
2,000 acres of privately owned land. The EA notes that no stands in the
compartment were selected for old growth designation because of the
fragmented ownership of the compartment. This determination cannot be
said to be arbitrary or capricious.
The EAs also address wildlife habitat concerns. Each EA states that all
existing wildlife populations will remain at viable levels, no matter which
timber management alternative the Forest Service selects. See 36 C.F.R. §
219.19. They also each list the management indicator species identified in
the LRMP and in Appendix D of the FEIS. MIS are representative species
used to monitor the overall effects of a timber management alternative. The
Forest Service selects MIS based on their susceptibility to changes in timber
management. Each EA sets a goal for maintenance of MIS. In Compartment
93, for instance, the Forest Service’s goal is to increase the numbers of
eastern wild turkey and red-cockaded woodpecker. The Service also must
attempt to maintain current levels of white-tailed deer, gray squirrels, fox
squirrels, and to maintain viability of pileated woodpeckers, yellow-breasted
chats, eastern bluebirds, and six-lined racerunners. Finally, the Forest
Service must attempt to maintain or increase the numbers of bobwhite quail.
Given these goals, the Forest Service’s selection of an even-aged
management alternative in Compartment 93 cannot be said to be arbitrary or
capricious. Under the selected alternative, the numbers of fox squirrel and
pileated woodpecker decrease. However, other species would increase;
namely, white-tailed deer, eastern wild turkey, red-cockaded woodpecker,
373
yellow-breasted chat, eastern bluebird, bobwhite quail, and the six-lined
racerunner. Under the selection management alternative, only the pileated
woodpecker would increase in numbers. All other listed MIS would
decrease, though all existing species would be maintained at viable
population levels.
The Forest Service is charged with managing the ever-changing resources
of the national forests. In the absence of forest management, trees would
grow older, the character of plant and animal diversity would change, and
some wildlife species would decline in numbers. Harvesting trees using
even-aged management techniques necessarily results in younger stands.
Wildlife dependent on younger stands would flourish at the expense of
species dependent on older growth forests. Harvesting trees using unevenaged management techniques results in denser forests. Wildlife dependent
on such cover would flourish at the expense of wildlife dependent on forest
clearings. These forest dynamics make clear that protecting forest resources
involves making trade-offs. We may believe that protection afforded by
selection management is more desirable than that afforded by even-aged
management; however, in the nine sales before the court, the agency’s
determination as to the appropriate level of protection was not unreasonable.
We therefore defer to the agency’s determination.
*****
VI.
We conclude that the district court erred in granting the preliminary
injunction. We VACATE AND REMAND.
Ecology Center, Inc. v. Austin
Ninth Circuit, 2005.
430 F.3d 1057.
O BETTY B. FLETCHER, Circuit Judge.
*****
I
In 2000, wildfires burned approximately 74,000 acres on the Lolo
National Forest. While the fires caused considerable damage to the forest,
they also created habitat for species that are dependent upon post-fire
374
habitats, such as the black-backed woodpecker.
In response to the 2000 fires, the Forest Service began developing the
Lolo National Forest Post Burn Project and preparing the requisite
Environmental Impact Statement (“EIS”). The Forest Service considered
four alternatives in detail, including a “no action alternative.” In July 2002,
the Forest Service selected a slightly modified version of “Alternative
Number Five” for the Project. This alternative involves, inter alia,
commercial thinning of small diameter timber and prescribed burning in
old-growth forest stands, as well as salvage logging of burned and insect
killed timber in various areas of the forest.
*****
NFMA imposes both substantive and procedural requirements on the
Forest Service. Procedurally, it requires the Forest Service to develop a land
and resource management plan (“forest plan”) for each forest that it manages.
16 U.S.C. § 1604(a). Subsequent agency actions must not only comply with
NFMA but also be consistent with the governing forest plan. 16 U.S.C. §
1604(i). NFMA also requires that the Forest Service adopt regulations
specifying guidelines for the achievement of NFMA’s substantive mandates.
16 U.S.C. § 1604(g)(3).
“In providing for multiple uses, the forest plan must comply with
substantive requirements of the Forest Act designed to ensure continued
diversity of plant and animal communities and the continued viability of
wildlife in the forest. . . .” Idaho Sporting Congress, 305 F.3d at 961; 16
U.S.C. § 1604(g)(3)(B). In addition to the mandate to maintain wild-life
viability, the Forest Service must maintain soil productivity. 16 U.S.C. §
1604(g)(3)(C).
*****
A. “Treatment” of Old-Growth Habitat
The Project involves what the Forest Service characterizes as
rehabilitative “treatment” of old-growth (and potential old-growth) forest
stands; this treatment entails the thinning of old-growth stands via
commercial logging and prescribed burning. The Forest Service cites a
number of studies that indicate such treatment is necessary to correct
uncharacteristic forest development resulting from years of fire suppression.
The Service also points out that the treatment is designed to leave most of the
desirable old-growth trees in place and to improve their health.
Ecology Center highlights the scientific uncertainty and debate regarding
the necessity, design, and long-term effects of such old-growth treatment. In
375
particular, Ecology Center alleges that the treatment of old-growth forest
harms species that are dependent upon old-growth habitat. For example,
Ecology Center claims that, even if treatment leaves most old-growth trees
in place, it removes or alters other essential elements within old-growth
habitat and disturbs bird species currently nesting or foraging within targeted
stands.2 Although treatment may be designed to restore old-growth to
“historic conditions,” Ecology Center points out this can be a misleading
concept: for example, information regarding historic conditions is
incomplete; altering particular sections of forest in order to achieve “historic”
conditions may not make sense when the forest as a whole has already been
fundamentally changed; many variables can affect treatment outcomes; and
the treatment process is qualitatively different from the “natural” or “historic”
processes it is intended to mimic.
While Ecology Center does not offer proof that the proposed treatment
causes the harms it fears, the Service does not offer proof that the proposed
treatment benefits – or at least does not harm – old-growth dependent species.
Ecology Center argues that because the Forest Service has not assessed the
effects of old-growth treatment on dependent species, the Service cannot be
reasonably certain that treating old-growth is consistent with NFMA’s
substantive mandate to ensure species diversity and viability. As a result,
especially given the scientific uncertainty surrounding the treatment of
old-growth stands, the Forest Service’s decision to treat additional old-growth
stands was arbitrary and capricious.
Although the Forest Service points to a report which notes that two
species of woodpecker were observed foraging in treated old-growth forest,
it does not otherwise dispute the charge that it has not directly monitored the
impact of treating old-growth on dependent species. Instead, the Service
maintains that it need not do so because (1) it has observed the short-term
effects of thinning old-growth stands via commercial logging and prescribed
burning on forest composition, (2) it has reason to believe that certain
old-growth dependent species would prefer the post-treatment composition
of old-growth forest stands, and (3) its assumption that treatment does not
2
For example, the pileated woodpecker is dependent upon old-growth snags
(standing dead trees), but treatment involves timber harvesting, which
“creates the potential for snag loss.” Although the Service acknowledges this
danger, it believes that proposed “snag mitigation measures,” combined with
the potential for snag-creation during the prescribed burning process, will
offset most of the snag loss caused by logging.
376
harm old-growth dependent species is therefore reasonable. The Service
further argues that we must defer to its methodological choices regarding
what to monitor and how to assess the impact of old-growth treatment.
An agency’s choice of methodology is entitled to deference. See, e.g.,
Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1359 (9th Cir.
1994). However, there are circumstances under which an agency’s choice of
methodology, and any decision predicated on that methodology, are arbitrary
and capricious. For example, we have held that in order to comply with
NFMA, the Forest Service must demonstrate the reliability of its scientific
methodology. Lands Council, 379 F.3d at 752 (holding NFMA “require[s]
that the hypothesis and prediction of the model be verified with
observation”). Here, as in Lands Council, the Forest Service’s conclusion
that treating old-growth forest is beneficial to dependent species is predicated
on an unverified hypothesis. While the Service’s predictions may be correct,
the Service has not yet taken the time to test its theory with any “on the
ground analysis,” id., despite the fact that it has already treated old-growth
forest elsewhere and therefore has had the opportunity to do so. Just as it
would be arbitrary and capricious for a pharmaceutical company to market a
drug to the general population without first conducting a clinical trial to
verify that the drug is safe and effective, it is arbitrary and capricious for the
Forest Service to irreversibly “treat” more and more old-growth forest
without first determining that such treatment is safe and effective for
dependent species. This is not a case in which the Forest Service is asking
for the opportunity to verify its theory of the benefits of old-growth treatment.
Rather, the Service is asking us to grant it the license to continue treating
old-growth forests while excusing it from ever having to verify that such
treatment is not harmful.
The Service argues that under Inland Empire Public Lands Council v.
U.S. Forest Serv., 88 F.3d 754 (9th Cir. 1996), we must defer to its decision
to monitor only the effect of treatment on forest composition, instead of also
monitoring the effect of treatment on dependent species. However, Inland
Empire is inapposite here. In that case, we permitted the Service to determine
that it was complying with its duty to maintain species viability by using a
“proxy-on-proxy” method for monitoring species population. Under the
proxy-on-proxy approach, the Service does not ensure that it is maintaining
species viability by directly monitoring species populations. Instead, the
Service designates certain “management indicator species” as proxies for
other species with comparable habitat needs. It then designates certain kinds
of habitat as proxies for the management indicator species. Finally, it
377
assumes that a species’ viability is maintained so long as the requisite amount
of the species’ habitat is maintained. Here, the Service is not simply
maintaining the amount of old-growth habitat necessary to support
old-growth dependent species – it is altering the composition of old-growth
habitat through an invasive process.
Although the Service concedes that the opinions of well-qualified experts
vary with respect to the appropriateness of management activities in
old-growth areas, it also argues that it must have the “discretion to rely on the
reasonable opinions of its own qualified experts even if, as an original matter,
a court might find contrary views more persuasive.” Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 378 (1989). However, this is not
a case in which different experts have studied the effects of commercial
thinning and prescribed burning in old-growth forests and reached different
conclusions. Here, experts have differing hypotheses regarding the effects
that treating old-growth has on dependent species, yet the Forest Service
proposes to continue treating old-growth without first taking the time to
observe what those effects actually are. In light of its responsibilities under
NFMA, this is arbitrary and capricious.
*****
B. Salvage Harvesting of Black-Backed Woodpecker Habitat
The Forest Service has designated the black-backed woodpecker as a
“sensitive species,” a species for which viability is a concern. The
black-backed woodpecker’s viability is sensitive because it is particularly
dependent upon post-fire landscapes, and the combination of fire-suppression
efforts and past salvage logging has drastically reduced the amount of
post-fire habitat. According to the EIS, “[d]ue to this reduction in habitat,
black-backed woodpeckers went from being relatively abundant to relatively
rare.” To make matters worse, not all fires create black-backed woodpecker
habitat, and the burned stands that do qualify only serve as black-backed
woodpecker habitat for a limited number of years. As a result, new post-fire
habitat must be continuously generated.
Ecology Center and the Forest Service agree that prior to the 2000 fires,
there was a critical shortage of black-backed woodpecker habitat.
Specifically, the Service estimated that from 1993 to 1998, fires created a
total of 11,045 acres of post-fire habitat (9160 of those acres were burned in
1998 alone). This total was estimated to be 6% of what would have been
created historically over a comparable six-year period. At that level, the
Service considered the black-backed woodpecker and other post-fire habitat
dependent species to be “at extreme risk.”
378
Writing in November 2000 about the “effect [on] black-backed
woodpeckers,” Forest Service scientists explained: “We concluded in 1998
that salvage of any post-fire habitat on the Lolo [National Forest] . . . will
impact individuals or habitat and with a consequence that the action may
contribute to a trend towards federal listing or cause a loss of viability to the
population or species.” They explained that a small amount (less than 400
acres) of salvage could be permitted, but only if there was “a commitment to
creation of post-fire habitat of an equal amount” through prescribed fires.
Under those two conditions, they believed that salvaging “would not likely
. . . cause a loss of viability to the population,” even though it “may impact
individuals or habitat.”
From the EIS, it appears that at the time the Project was developed, there
was a total of 19,219 acres of black-backed woodpecker habitat in the Lolo
National Forest: there were 9349 acres that were created by pre-2000 fires
and were less than five years old, plus 9870 acres of habitat that were created
by the 2000 fires. Of those acres, 9100 are located in the Project area. The
selected alternative originally proposed salvage harvesting 1020 of those
acres. However, the Record of Decision reduced that amount to 815 acres.
The Forest Service maintains that the Project complies with NFMA
because the 2000 fires created a large amount of potential habitat, and only
a small portion will be salvaged. The Service further points out that the
Project includes mitigation measures designed to minimize the adverse
impact of salvaging. However, “[r]esearch has also indicated that salvage
logging, even when large numbers of snags are left, is detrimental to this
species.” For example, one study “found that black-backed woodpeckers did
not nest in areas that were considered lightly salvaged.” In addition, the
Project’s mitigation measures do not provide for the creation of an equal
amount of post-fire habitat elsewhere.
The EIS fails to adequately explain the basis for the Forest Service’s
conclusion that eliminating a portion of the newly-created habitat will not
adversely affect the black-backed woodpeckers’ viability. Prior to the 2000
fires, the amount of post-fire habitat was so low that the black-backed
woodpecker and other post-fire habitat dependent species were deemed at
“extreme risk,” and Forest Service experts concluded that “salvage of any
post-fire habitat . . . would . . . impact individuals or habitat . . . with a
consequence that the action may contribute to a trend towards federal listing
or cause a loss of viability to the population or species.” Yet, the Project EIS
states – without meaningful explanation – that even though salvaging
post-fire habitat may negatively impact individual black-backed
379
woodpeckers, it will “not likely result in a trend towards federal listing.”
Without more, this general statement regarding the possible impact and risk
involved does not constitute a ‘hard look’ absent a justification regarding why
more definitive information could not be provided.
We can discern from the EIS only one possible basis for the Service’s
changed assessment of the impact of salvaging: the fact that the 2000 fires
created additional post-fire habitat, which raised the total amount of post-fire
habitat. However, we cannot conclude from this fact alone that the habitat
level is no longer critically low and that the previously prescribed restrictions
on salvaging should no longer be enforced.9 To be reasonably certain that the
post-Project habitat levels would be sufficient to ensure species viability, one
must know where the threshold between “critical” and “sufficient” levels of
burned habitat lies. Because the EIS does not disclose what this threshold is,
much less explain how the threshold was determined, we cannot evaluate the
Service’s decision. Indeed, we cannot even be certain that the Service
determined and considered this factor when making its assessment.
Similarly, the EIS does not indicate how much further habitat levels have
to drop before the species is downgraded from sensitive to threatened or how
the Service plans to generate additional black-backed woodpecker habitat to
counter-balance losses from salvaging, the passage of time, and ongoing
fire-suppression efforts. . . .
Thus, we hold that the Forest Service failed to either adequately explain
its impact assessment or provide the information that is necessary to
understand and evaluate the Forest Service’s decision to permit salvaging of
the black-backed woodpeckers’ rare habitat, in violation of NEPA.
The designation of a species as sensitive arises from the Forest Service’s
obligations under NFMA. Pursuant to 16 U.S.C. § 1604(g)(3)(B), the Forest
Service is required to “provide for diversity of plant and animal
communities.” The Forest Service’s duty to maintain viable populations
“applies with special force to ‘sensitive’ species.” Friends of the Clearwater
v. Dombeck, 222 F.3d 552, 556 n. 2 (9th Cir. 2000). The Lolo National
Forest Plan requires, more specifically, that the Forest Service “manage to
maintain population viability” for plant and animal species “that are not
9
We note that the Service considered the creation of 11,045 acres of post-fire
habitat over a six-year period to be critically low (6% of the historic rate);
thus, the creation of 19,219 acres over a comparable period does not
necessarily represent a sufficient increase.
380
threatened or endangered, but where viability is a concern (i.e., sensitive
species).”
Because the Forest Service failed to provide the factual basis for its
analysis and failed to adequately explain its decision, we cannot be
reasonably certain that the salvaging – which the Service concedes may harm
individual black-backed woodpeckers – will not jeopardize the black-backed
woodpeckers’ viability. We therefore hold that the decision to salvage
harvest black-backed woodpecker habitat is also arbitrary and capricious
under NFMA.
*****
The Forest Service’s selection of Modified Alternative Number 5 for the
Lolo National Forest Post-Burn Project violates both NEPA and NFMA. We
reverse the district court’s summary judgment in favor of the Forest Service,
and direct the district court to enter summary judgment on behalf of Ecology
Center. We remand this case to the Forest Service for further proceedings
consistent with this opinion.
O MCKEOWN , Circuit Judge, dissenting:
The Ninth Circuit, like the other circuits, repeats frequently the legal
mantras of administrative review in the context of environmental decisions:
“arbitrary and capricious,” “hard look,” and “no second guessing.” These
standards are easy to articulate, but it is more difficult to know when we have
crossed the line from reviewer to decisionmaker. In this case, we have gone
too far.
. . . As a reviewing court, we play a critical role in the review process and
we have not been shy in letting the U.S. Forest Service know where it has
fallen short as a matter of law and process. However, the majority’s
extension of Lands Council v. Powell, 379 F.3d 738 (9th Cir. 2004),
represents an unprecedented incursion into the administrative process and
ratchets up the scrutiny we apply to the scientific and administrative
judgments of the Forest Service. Because the majority has, in effect,
displaced “arbitrary and capricious” review for a more demanding standard,
I respectfully dissent.
The project under review is designed to address the aftermath of the Lolo
National Forest wildfires in Montana in 2000 through selected thinning of
smaller timber, salvage of timber, prescribed burning and regeneration of
thousands of acres. The administrative record in this case is huge – a 1900+
page Final Environmental Impact Statement (FEIS), 150 detailed maps and
381
20,000 pages of background information. The majority highlights only parts
of this record, criticizes the qualifications of the Forest Service’s personnel,
and questions various scientific judgments. [T]he majority changes our
posture of review to one where we sit at the table with Forest Service
scientists and second-guess the minutiae of the decisionmaking process.
*****
Had Ecology Center offered a credible scientific critique of this
methodology or provided some other basis for us to determine whether the
Forest Service’s judgment was arbitrary and capricious, we would be in a
different position. But just as we are not supposed to substitute our judgment
for that of the Forest Service, neither can we rely on – in the absence of
evidence – Ecology Center’s arguments in its briefs or in its expert
declaration filed after the administrative review process.
*****
. . . For example, regarding the old-growth claim, the majority reverses
the Forest Service’s judgment because “[h]ere, as in Lands Council, the
Forest Service’s conclusion that treating old-growth forest is beneficial to
dependent species is predicated on an unverified hypothesis.” The Forest
Service hypothesis is, however, supported by observational data. There is
record evidence, based on direct observation, that treatment produces and
preserves habitat for old-growth dependent species.5
The majority applies Lands Council to prohibit the Forest Service from
inferring simply that because treating old-growth preserves or creates habitat
for dependent species does not mean that such treatment will not harm the
species. In reaching this conclusion, the majority acknowledges and then
dismisses without explanation the very record evidence it says the Forest
Service failed to provide – here, direct observation of certain species seen
foraging in old-growth areas after treatment.6
5
For example, a report by Forest Service scientists utilized historic and stand
structure research to plan for treatment that would enhance habitat for plants
and species. The scientists found that treated areas have nesting and foraging
opportunities for cavity nesting species such as pileated woodpeckers.
6
The majority fails to acknowledge that we “have, in appropriate cases,
allowed the Forest Service to avoid studying the population trends of
[species] by using . . . habitat as a proxy for . . . population trends.” Lands
Council, 395 F.3d at 1036. In Lands Council, we rejected a proxy-on-proxy
382
Applying Lands Council to the old-growth issue is inappropriate for yet
another reason. The panel assumes that Alternative 5, which involves
thinning, salvage, and regeneration, disrupts a stable status quo “through an
invasive process.” Yet the status quo is anything but stable. The Forest
Service presents uncontested evidence that the failure to treat old-growth
areas risks the very harms feared by Ecology Center, even though it has
provided no evidence to support such a claim. In fact, the record reveals that
the failure to treat old-growth areas could result in “considerable loss of old
growth trees from bark beetle predation,” which will put “at risk . . . specific
habitat niches for many wildlife species that are adapted to the more open
growth old-forest character.” Old-growth areas “are now at risk for major
disturbances such as disease and insect epidemics and high-severity stand
replacing fires.” Inaction or delay threatens the species Ecology Center seeks
to protect.
No one contests the Forest Service’s conclusion that treatment will
“provide direct reduction of bark beetle infestation or risk of future
infestation.” Faced with uncontroverted evidence that inaction may harm
old-growth areas, the majority still requires the Forest Service to produce
more evidence that treating old-growth will not harm dependent species
before it will allow the Service to save old-growth areas from other dangers.
Under these circumstances, I cannot agree that the Forest Service’s decision
to treat old-growth areas was arbitrary and capricious. Indeed, had the Forest
Service taken the majority’s approach, its decision may well have been
arbitrary and capricious for “fail[ing] to consider an important aspect of [the]
problem.” See Lands Council, 395 F.3d at 1026.
Nor do I think it appropriate to analogize the Forest Service process to the
separate and wholly inapposite regime of the Food and Drug Administration
(“FDA”). The majority writes that “it would be arbitrary and capricious for
a pharmaceutical company to market a drug to the general population without
first conducting a clinical trial” just as the Forest Service cannot be permitted
to “treat more and more old-growth forest without first determining that such
treatment is safe and effective for dependent species.” Without commenting
on the obvious differences between humans and trees (and in fact
approach for measuring population trends in old-growth forest because the
habitat data the Forest Service offered was “fifteen years old, with inaccurate
canopy closure estimates, and insufficient data on snags.” The majority does
not identify any such problems in using the proxy-on-proxy approach in this
case.
383
acknowledging the importance of both to our environment), this analogy
underscores the degree to which the majority inserts itself into the internal
judgments of the Forest Service. The FDA process dictates a substantive and
specific administrative course of action in terms of clinical trials and other
requirements as a prelude to the approval of drugs and medical devices.
Neither NEPA nor NFMA serve that function in the environmental context.
To import the notion of clinical trials from the FDA context to soil sampling
in federal forests is a leap too far.
Apparently we no longer simply determine whether the Forest Service’s
methodology involves a “hard look” through the use of “hard data,” but now
are called upon to make fine-grained judgments of its worth. In reaching this
conclusion, the majority takes aim at two firmly established lines of
precedent in administrative law. First, this view is contrary to the basic
principle that we reverse agency decisions only if they are arbitrary and
capricious. This standard of review does not direct us to literally dig in the
dirt, get our fingernails dirty and flyspeck the agency’s analysis. Yet the
majority does exactly that by rejecting the Forest Service’s soil analysis field
checks and its observations and historical data in treated old-growth forests.
The majority’s rationale cannot be reconciled with our case law requiring
“[d]eference to an agency’s technical expertise and experience,” particularly
“with respect to questions involving engineering and scientific matters.”
United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir.
1989).
Because the majority’s analysis cannot be squared with the deferential
review required of us, I respectfully dissent.
NOTES AND QUESTIONS
1. Multiple use management. As Professor Federico Cheever explains,
before 1976:
The Forest Service managed roughly 191 million acres of federal land on
behalf of all the American people. This land produced timber in
significant quantities but also provided water supply and recreational
opportunities for ever larger numbers of Americans. Congress funded
Forest Service activities on the national forests, but, within that funding
structure, the Forest Service managed those forests – in large part – as it
saw fit. Various federal laws regulated oil, gas, and mining exploration
and operations. The recently enacted National Environmental Policy Act
384
(NEPA) would soon require environmental documentation of Forest
Service practices. Yet the laws that provided substantive, congressionally
imposed limits on Forest Service management of the national forests,
such as the Organic Act of 1897 and 1960 Multiple Use-Sustained Yield
Act, were brief in the extreme and contained little in the way of
substantive prescriptions or proscriptions and less that anyone enforced.
It was in this state of relative freedom from congressional mandate that
the Forest Service had developed its culture and methods.
Federico Cheever, Four Failed Forest Standards: What We Can Learn from
the History of the National Forest Management Act’s Substantive Timber
Management Provisions, 77 Oregon Law Review 601 (1998).
Why had Congress adopted this approach? What are the benefits of
allowing land management agencies a high degree of discretion? What are
the drawbacks? To what extent does NFMA, in the words of Professor
Wilkinson, “set sideboards” on Forest Service discretion? What substantive
limits does NFMA impose? To what extent do those limits depend upon
Forest Service regulations for their implementation? As of 1998, according
to Professor Cheever, the substantive standards of NFMA had “not
constrained Forest Service action consistently or predictably.” Id. at 692.
Are stronger substantive legislative constraints feasible? To what extent
is the discretion allowed the Forest Service (and other federal land
management agencies) the inevitable consequence of the site-specific and
technical nature of land management decisions, or of the need for flexibility
in management over time? To what extent is it the product of congressional
unwillingness to address politically difficult resource allocation choices?
2. Even-aged management. What, precisely, is the holding of Sierra Club
v. Espy? Do you agree with the Fifth Circuit’s reading of NFMA? Does the
decision give too much discretion to the Forest Service?
On remand, the District Court, after a trial, concluded that the Forest
Service had violated its duties under the NFMA. The court enjoined nearly
all timber harvest in the national forests in Texas. On appeal of that decision,
a panel of the Fifth Circuit affirmed. On rehearing en banc, however, the
Fifth Circuit, by a vote of 8-5, held that because TCONR had improperly
challenged the Forest Service’s general timber management program in
Texas, rather than specific final agency actions, the courts lacked jurisdiction
over the claims. Consequently, the Fifth Circuit vacated the District Court’s
decision. Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) (en banc).
3. The diversity standard. Perhaps the most controversial of NFMA’s
385
substantive standards is the “diversity” requirement of 16 U.S.C. §
1604(g)(3)(B). What exactly does the statute require with respect to
protection of plant and animal communities? What exactly did the Forest
Service do wrong with respect to wildlife protection in Ecology Center v.
Austin?
One of the most hotly contested issues with respect to NFMA’s diversity
standard has been what methods the Forest Service may use to evaluate the
impact of a proposed action on species. That depends in part on the exact
wording of the relevant forest plan. We will see in the next assignment how
the evolution of NFMA’s implementing regulations has altered diversity
requirements for forest plans. Because those plans are binding until formally
amended, however, changes in NFMA’s planning rules do not instantly
change the law of the forests. For now, it remains true that many forest plans
were drafted under the 1982 NFMA regulations, which required management
of fish and wildlife habitat “to maintain viable populations of existing native
and desired non-native vertebrate species in the planning area,” and further
required monitoring of designated “management indicator species” (MIS),
whose status was expected to signal the viability of others. In evaluating the
effect of a proposed action on MIS, the Forest Service often prefers to study
effects on habitat quality, rather than directly trying to count the population
in the project area. Environmental interests sometimes would prefer a direct
survey, because they are leery of the assumption that maintaining a certain
acreage of habitat will necessarily assure species survival. In general, the
Ninth Circuit has said that habitat-based analysis is acceptable “absent some
indication in the record that USFS’s underlying methodology is flawed.”
Environmental Protection Information Center v. US Forest Service, 451 F.3d
1005, 1017 (9th Cir. 2006). In order for the Forest Service to rely on habitat
analysis as a proxy for species viability, “both the Forest Service’s knowledge
of what quality and quantity of habitat is necessary to support the species and
the Forest Service’s method for measuring the existing amount of that habitat
[must be] reasonably reliable and accurate.” Native Ecosystems Council v.
US Forest Service, 428 F.3d 1233, 1250 (9th Cir. 2005).
4. Deference to Forest Service expertise. What standard of review did the
Ninth Circuit employ in Ecology Center? Did the panel majority give
sufficient deference to the expertise of the Forest Service? How did the level
of deference in Ecology Center compare to that shown by the Fifth Circuit in
Sierra Club v. Espy? How much information must the Forest Service gather
before making management decisions? To what extent should the courts
become involved in overseeing those choices?
386
5. Forest management and NEPA. Much of the litigation about national
forest management has been grounded in the National Environmental Policy
Act (NEPA). NEPA requires that federal agencies analyze the environmental
impacts of actions they propose to carry out, authorize or fund. An
environmental impact statement must be prepared for actions “significantly
affecting the quality of the human environment.” 42 USC § 4332 (2)(C). An
EIS must describe the affected environment, and evaluate the environmental
impact of the proposed action and alternatives to it. Frequently, to determine
whether a proposed action will have a significant effect, the agency must
prepare an environmental assessment, a briefer document prepared with less
public input than an EIS. The point of NEPA analysis is two-fold: to insure
that the federal action agency is aware of the impacts of its proposed action;
and to insure that the public is also aware of those impacts, so that the
political process can function effectively. Environmental analyses carried out
under NEPA can provide a political rallying point for project opponents; may
be useful in evaluating compliance with the substantive provisions of NFMA
and other applicable laws, such as the Endangered Species Act; and can
simply delay a project.
The Bush administration has aggressively sought to minimize the
application of NEPA by adopting a number of “categorical exclusions” for
forest management actions. See, e.g., National Environmental Policy Act
Documentation Needed for Fire Management Activities; Categorical
Exclusions, 68 Fed. Reg. 33814 (June 5, 2003); National Environmental
Policy Act Documentation Needed for Limited Timber Harvest, 68 Fed. Reg.
44598 (July 29, 2003). Categorical exclusions identify classes of actions
which, individually and cumulatively, are expected to have no significant
environmental impact.
Absent extraordinary circumstances, no
environmental analysis is required for actions falling within a categorical
exclusion. So far, the administration’s new categorical exclusions have been
upheld by the federal courts, although in some cases the courts have
disagreed with the Forest Service about whether a particular project falls
within an excluded category. See, e.g., Colorado Wild v. US Forest Serv.,
435 F.3d 1204 (10th Cir. 2006). The Ninth Circuit has, however, held invalid
Forest Service rules precluding administrative appeal of all actions
categorically excluded from NEPA analysis. Earth Island Inst. v.
Ruthenbeck, 459 F.3d 954 (9th Cir. 2006).
6. Logging in the national forests. Several years ago, the Sierra Club
mounted a campaign to end commercial logging in the national forests. Do
you agree with that proposal? Is logging necessarily inimical to what you
387
regard as the most important goals of the national forests? Is it too difficult
to ensure that logging is done in a manner consistent with other values? Note
that many other environmental groups, including The Wilderness Society,
which has long advocated protection of the environmental values of the
national forests, have not joined the call for a logging ban. We will look soon
at claims that banning commercial logging would exacerbate already high
wildfire risks in some parts of the national forests.
What about a more limited ban on logging of old growth areas? Shortly
before President Clinton left office in 2001, the Chief of the Forest Service,
Mike Dombeck, announced that the Forest Service would consider such a
ban. To no one’s surprise, that initiative was quietly dropped by the new
Bush administration. The effect of an old-growth logging ban would depend
upon the definition of old growth, a term without a generally accepted
meaning.
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Assignment 18: Planning as a Substitute for Substance
George Hoberg, Science, Politics, and U.S. Forest Service
Law: The Battle Over the Forest Service Planning Rule
44 Natural Resources Journal 1 (2004).
Copyright © 2004 Natural Resources Journal; George Hoberg
INTRODUCTION
On November 9, 2000, in the waning days of the Clinton administration,
the Secretary of Agriculture issued the final rule reviewing the regulations
implementing the National Forest Management Act (NFMA). This decision
was the culmination of a nearly decade-long process of redefining the mission
of the USDA Forest Service. In a striking departure from the agency’s
historical emphasis on multiple use, the rule established ecological
sustainability as the key objective guiding planning for the national forests.
The supporting material for the rule explicitly states that “it is based on the
recommendations of an eminent committee of scientists.” The secretary
appointed the Committee of Scientists in 1997, and the committee issued its
report March 15, 1999. The new policy was not in place for long, however.
The Bush administration suspended the rule in May 2001, and in November
2002 issued a new proposed rule that would reverse a number of changes
embodied in the Clinton Rule.
*****
. . . At the outset, I want to make my position very clear. Personally, I
think that ecological sustainability should be the highest priority on U.S.
federal lands. However, I am troubled by how this value found its way into
federal law. I think it is important to distinguish preferences for policy
outcomes from principles about how institutions ought to work. Otherwise,
the legitimacy of the system is further tarnished. Recent federal forest policy
runs this risk. We need a new understanding of the appropriate boundaries
between science, politics, and law in federal forest policy.
*****
III. THE EVOLUTION OF NFMA PLANNING
Prior to the adoption of the 2000 revisions, NFMA planning rules went
through an extraordinary evolution. An exceptionally vague statutory
mandate to protect species diversity was clarified by a scientific committee
and agency rulemaking, and then transformed by a remarkable episode of
judicial policy making into sharp cutbacks in logging in one region. The
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approach to planning in that region, which changed the agency’s mission
from multiple use to giving priority to ecosystem protection, then spilled over
into other regions and filtered its way up to the agency leadership and finally
was adopted as regulation.
A. The First Committee of Scientists
When adopting NFMA, Congress took the novel step of requiring the
Secretary of Agriculture to appoint a committee of scientists to propose the
implementing regulations for NFMA. The committee’s directive from
Congress was as follows:
(T)he Secretary of Agriculture shall appoint a committee of scientists
who are not officers or employees of the Forest Service. The committee
shall provide scientific and technical advice and counsel on proposed
guidelines and procedures to assure an effective interdisciplinary
approach is proposed and adopted. The committee shall terminate upon
promulgation of the regulations. The views of the committee shall be
included in the public information supplied when the regulations are
proposed for adoption.
This extraordinary initiative clearly reflects a deep congressional distrust
for the capacity of the Forest Service to develop regulations in a manner
reflecting the new statutory standards. The committee played a direct role in
writing the regulations that were adopted by the Secretary of Agriculture in
1979. Its members clearly understood that they were doing more than
providing scientific and technical advice. According to its chair, Arthur
Cooper, from North Carolina State, “We understood that we were helping to
resolve policy issues that had been sidestepped by policymakers.”
The implementation of the new regulations was stalled, however, when
the Reagan administration targeted them for overhaul as part of Vice
President Bush’s Task Force on Regulatory Relief. The Reagan
administration’s draft revision was met with a very strong environmental
backlash. In response, the Forest Service reconvened the Cooper committee
of scientists, and the committee helped the Forest Service rewrite the changes
so that they very closely resembled the original regulations adopted in 1979.
Thus, the Cooper committee was instrumental in writing the 1979 regulations
and was then used in 1982 by the Forest Service to deflect pressure from its
superiors to weaken the regulations.
This committee helped establish a pattern for the resolution of modern
forest policy conflicts. Many of the issues were value questions of balancing
conflicting objectives that were cast in technical terms to promote the social
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and political legitimacy of the outcomes. According to Steven Daniels,
Even though forestry’s most intractable dilemmas stem from
differences in value hierarchies, debates about them tend to be cast in
technical terms. As such, scientists are asked to resolve social questions
as fundamental as equity and appropriate rates of economic growth by
focusing on technical resource issues that serve as convenient proxies.
*****
IV. THE COMMITTEE OF SCIENTISTS
[Particularly in the spotted owl conflicts of the Pacific Northwest, but also
in conflicts in Alaska, the Columbia basin, and the Sierra Nevada, the
original NFMA viability regulations proved to be powerful tools for forcing
the adjustment of timber practices away from a single-minded emphasis on
harvest and toward ecosystem preservation.] As a result, the agency’s
emerging de facto mission appeared to be in profound conflict with its
official statutory mandate. This has created serious tensions within the
agency and in its political environment, leading several prominent observers
to suggest that the Forest Service may have outlived its utility as a separate
administrative entity.
The legislative stalemate of the 1990s made any statutory resolution of
this issue unlikely. The Republican Congress opposes the shift toward
greater concern with environmental values, but Democratic control of the
White House up through 2000 ensured that any attempt to override the
judicial decisions with new statutory language would be vetoed. In this
vacuum of political leadership, the Forest Service attempted to redefine its
own mandate. Mike Dombeck, chief of the Forest Service, made several
speeches trying to hook a new ecosystem focus onto the watershed protection
provisions of the ancient Organic Administration Act of 1887.
More importantly, the agency appointed a Committee of Scientists in
1997 to review the land and resource management planning process. Note in
particular the italicized words in the charter of the committee:
The purpose of this committee is to provide scientific and technical
advice to the Secretary of Agriculture and the Chief of the Forest Service
on improvements that can be made in the National Forest System Land
and Resource Management planning process.
The Committee should address such topics as how to consider the
following in land and resource management plans: biological diversity,
use of ecosystem assessments in land and resource management planning,
spatial and temporal scales for planning, public participation processes,
391
sustainable forestry, interdisciplinary analysis, and any other issues that
the Committee identifies that should be addressed in revised planning
regulations.
In its report, the Committee shall make recommendations on how best
to accomplish sound resource planning within the established framework
of environmental laws and within the statutory mission of the Forest
Service. The Committee shall also provide technical advice on the land
and resource management planning process; and provide materials for the
Forest Service to consider for incorporation into the revised planning
regulations. The Committee shall also recommend improvements in
Forest Service coordination with other Federal land management or
resource protection agencies, state and local government agencies, and
tribal governments recognizing the unique roles and responsibilities of
each agency in the planning process.
The Committee shall consist of no more than 12 members and a
Committee Chair appointed by the Secretary of Agriculture. Officers or
employees of the Forest Service may not serve as members of the
Committee. . . .
The Committee shall consist of representatives of a variety of
academic disciplines, including but not limited to, the following: forest
and range ecology, fish and wildlife biology, silviculture, hydrology,
natural resource economics, sociology, public participation and conflict
management, ecosystem management, land management planning, and
natural resource law. Committee members should have a demonstrated
ability to work across scientific and resource management disciplines.
Collectively, the members should represent a diversity of disciplines and
perspectives, have a knowledge of the National Forest System, insights
into the National Forest Management Act and its implementation, and
National Forest System planning.
Note that nowhere does the charter ask for the committee to propose a
new mission or objective for the agency. The committee members are listed
in the following table.
1998 Committee of Scientists Members
Dr. K. Norman Johnson, Dep’t of Forest Resources, Oregon State Univ.
(chair)
Dr. James Agee, College of Forest Resources, Univ. of Washington
Dr. Robert Beschta, Dep’t of Forest Engineering, Oregon State Univ.
392
Bob Cunningham, Environmental Compliance Manager, National Science
Foundation
Dr. Virginia Dale, Environmental Sciences Div., Oak Ridge National
Laboratory
Dr. Linda Hardesty, Dep’t of Natural Resources Science, Washington State
Univ.
Dr. James Long, Dep’t of Forest Resources, Utah State Univ.
Dr. Larry Nielson, School of Forest Resources, The Pennsylvania State Univ.
Dr. Barry Noon, Dep’t of Fishery & Wildlife Biology, Colorado State Univ.
Dr. Roger Sedjo, Resources for the Future
Dr. Margaret Shannon, Maxwell School of Citizenship & Public Affairs,
Syracuse Univ.
Dr. Ronald Trosper, School of Forestry, Northern Arizona Univ.
Dr. Charles Wilkinson, Univ. of Colorado Law School
Despite its title and its mandate to provide “scientific and technical
advice,” the committee had no qualms about proposing new policy objectives
for the agency. The committee urged the agency to consider sustainability its
“guiding star.” When sustainability is defined as a triad of ecological,
economic, and social elements, the concept is not much different from
old-fashioned multiple-use management: competing objectives are pursued
within a larger framework to achieve societal objectives. However, the
committee clearly goes beyond that in declaring that “ecological” should be
given priority over social and economic sustainability:
The Committee recommends that ecological sustainability provide a
foundation upon which the management for national forests and
grasslands can contribute to economic and social sustainability. This
finding does not mean that the Forest Service is expected to maximize the
protection of plant and animal species and environmental protection to
the exclusion of other human values and uses. Rather, it means that
planning for the multiple use and sustained yield of the resources of
national forests and grasslands should operate within a baseline level of
ensuring the sustainability of ecological systems and native species.
Without ecologically sustainable systems, other uses of the land and its
resources could be impaired.
The committee presents its case for the primacy of ecological
sustainability in chapter 6 of its report, as well as in the synopsis. The case
393
is made in two ways, factual and legal. The factual case is made following
a recitation of the benefits that come from the forests.
Such benefits include: clear air and water, productive soils, biological
diversity, goods and services, employment opportunities, community
benefits, recreation, and naturalness. They also provide intangible
benefits such as beauty, inspiration, and wonder.
Although this sentence mentions goods and services, it is fascinating that the
committee does not use the word “timber.” The committee continues:
Yet these benefits depend upon the longer term sustainability of the
watersheds, forests, and rangelands if the public is to enjoy the
ecological, economic, and social values that these lands can provide.
Accordingly, based on the statutory framework for the national forests
and grasslands, the first priority for management is to retain and restore
the ecological sustainability of these watersheds, forests, and rangelands
for present and future generations.
In expanding upon the legal case, the committee states that a “suite of
laws call for ecological sustainability.” It refers to the Endangered Species
Act, the diversity provisions of NFMA, and the Multiple-Use and Sustained
Yield Act's call for “achievement and maintenance in perpetuity of a
high-level or regular periodic output of the various renewable resources of the
national forests without impairment of the productivity of the land.” The
argument for a more ecologically defined mission is obviously stronger if
statutes outside the core forest statutes are considered. The committee was
well staffed to make such a legal assertion, as Charles Wilkinson is arguably
the nation's leading expert on forest law.
What the argument overlooks, however, is that what forced all the action
in the agency was not this broad suite of laws but the NFMA viability
regulations. . . . It is surprising that there is not a broader discussion in the
committee's report of the potential conflicts with the larger multiple-use
mandate. For example, Mark Rutzick, a forest industry lawyer, makes a
strong case that the legislative history of NFMA shows that the priority given
to ecological values in the viability regulations is contrary to congressional
intent. In both the House and the Senate, amendments to change the diversity
section to make it more like the viability regulations were explicitly
considered and rejected.55 In a law review article, Wilkinson makes the
55
Mark C. Rutzick, National Forest Planning Issues from a Timber Industry
Perspective, in ALI-ABA Course of Study, Federal Lands in the West:
394
opposite argument, stating, “The agency seems increasingly to be imbued
with the primacy of biodiversity as a management goal. Proceeding in this
way is within the NFMA mission and procedures, because the Act was
drafted in a sufficiently broad-gauged way.”56 But neither his argument in the
law review article nor the Committee of Scientists’ report specifically rebuts
the claim made by Rutzick and colleagues.
But what I find even more striking is that the committee never makes a
scientific case for the primacy of ecological sustainability. The room for
making a case is certainly there. In the context of integrated resource
management, both an economic and a scientific case can be made that
competing benefits simply cannot be simultaneously provided, and one
resource needs to be given priority. I take this to be the logic behind the
committee’s factual assertion, but the report does not provide any evidence
to support it. The closest it comes is the following paragraph:
In addition to the suite of environmental laws calling for protection
of ecological systems, scientific results and common sense point to the
necessity of protecting forests and rangelands so they continue providing
benefits to society. Lessons from across the National Forest System
suggest that the conservation of ecological systems cannot be ignored. As
an example, concerns over the effect that declining water clarity will have
on tourism in Lake Tahoe have led to an intensive and expensive effort
to reverse this trend. . . . Once ecological systems are pushed to the edge,
the costs of recovery can be high, and the ability to apply adaptive
management is significantly compromised.
In the next paragraph, the committee does make an explicit fact-value
distinction but then merely reasserts the factual claim.
While the scientific community can help eliminate the risk associated
with different management strategies, decisions about an acceptable level
of risk are value-based, not science-based decisions. . . . Nonetheless, it
is clear that ecological sustainability lays a necessary foundation for
national forests and grasslands to contribute to the economic and social
components of sustainability. . .
If this prioritization of ecological sustainability is so self-evident, why didn’t
Embarking on the New Millennium (Oct. 6, 2000).
56
Charles F. Wilkinson, The National Forest Management Act: The Twenty
Years Behind, the Twenty Years Ahead, 68 U. Colo. L. Rev. 659, 681 (1997).
395
Congress enshrine it in NFMA in 1976? If 25 years of working under NFMA
have made this self-evident, where is the evidence and documentation?
*****
V. THE 2000 RULE OF THE CLINTON ADMINISTRATION
The Department of Agriculture proposed a new rule for National Forest
System planning in October 1999. The proposal relied heavily on the ideas
and language of the Committee of Scientists’ report. [The final Clinton
administration rule, issued November 9, 2000, is excerpted below.]
*****
VI. THE GEORGE W. BUSH ADMINISTRATION RESPONSE
The Bush administration clearly has a different approach to
environmental issues generally and forest policy in particular. In terms of
personnel, Clinton's Undersecretary of Agriculture, Jim Lyons, an ally of
environmental groups, was replaced by Mark Rey, who worked at the
American Forest and Paper Association, the leading forest industry
association, before serving on the Senate GPO committee staff. The Bush
administration moved quickly to review the new rule and in May 2001 issued
a Federal Register notice suspending its application. In December 2002, the
administration proposed a new rule[. Finalized in January 2005, the Bush
rule, which is currently in effect, is also excerpted below.]
*****
Environmentalists have been sharply critical of the proposal. Democratic
members of Congress have also denounced it. In their critique, Democrats
on the House Committee on Resources chastised the Bush administration for
not relying on a committee of scientists in developing their proposal.
Finally, we question why you have rejected the bipartisan precedent
of three previous Administrations in declining to convene an independent
Committee of Scientists to assist in revising the rule. . . . There is good
reason for this consistent precedent: the planning rule is too important to
be shaped by partisan politics, but must be grounded in an independent
assessment of applicable scientific principles. The Forest Service cannot
credibly claim that it has relied on the Committee of Scientists convened
for the 2000 rulemaking. The agency never solicited the views of this
earlier Committee on this proposed rule, as the NFMA provides, nor did
the Forest Service adopt the previous Committee’s recommendations for
rigorous wildlife protection and monitoring provisions. We urge you to
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convene a Committee of Scientists before revising the rule.72
*****
VII. CONCLUSION
The Johnson Committee of Scientists followed a long pattern of employing
scientific advisers to help resolve difficult forest policy conflicts. When
Congress enacted NFMA in 1976, it did not trust the Forest Service to write
its own regulations, so it gave the task to a committee of scientists. When the
Forest Service wanted to deflect Reagan administration efforts to weaken
those regulations, it reconvened the committee to help it. When the
Democratic Congress was vexed by the controversy over the Northern spotted
owl, it commissioned the Gang-of-Four report. After having its own efforts
flatly rejected by Judge Dwyer, the Bush administration turned to the ICS,
and then the Scientific Assessment Team. When the Clinton administration
took over, it turned to FEMAT. Thus, the Johnson Committee of Scientists
was not a new strategy in forest policy. However, the committee asserted a
different role, and its results were used in an unprecedented way. None of the
committees dealing with the Pacific Northwest spilled over into raw policy.
Certainly, the Cooper committee did. For example, its transformation of the
vague diversity provision of NFMA into the rigorous viability regulations
was an exercise in policy making. But the difference was that Congress had
explicitly invited its participation. None of the scientific committees went as
far as the Johnson Committee of Scientists in articulating a new mission for
the agency.
Forest management is a difficult challenge that involves complex
questions of science and values. By continuing to cloak political choices
about values in the language of science, American forest policy raises
challenging questions about political accountability and the appropriate
boundaries between experts and policy makers. Indeed, forest policy seems
quite out of step on this issue compared with other environmental policy
areas. The literature on risk management includes a long-standing and robust
72
Congressman George Miller (D-California, 7th District), Committee on
Education and the Workforce, Committee on Resources, Miller and Other
House and Senate Lawmakers Challenge New Bush Administration Forest
Plan: Members of Congress charge in letter that plan weakens minimum
standards for national forest planning under NFMA and NEPA (Nov. 27,
2002), available at http:// www.house.gov/georgemiller/rel112702.html (last
visited May 12, 2004).
397
discussion of the relationship between facts and values. Early efforts to
impose a stark distinction between facts and values have proven overly
simplistic and been replaced by far more sophisticated discussions. The key
insight has been that there is a very large gray area between fact and value,
one that Alvin Weinberg called “trans-science.” In this area, it is necessary
to make policy judgments to resolve the policy-relevant uncertainties. Sound
decision making attempts to explicitly identify the boundaries between
science, trans-science, and policy, and to utilize the appropriate approaches
to addressing each. In articulating policies for the regulations of toxic
substances, the Environmental Protection Agency and the Occupational
Safety and Health Administration have worked very hard to clarify these
boundaries since the late 1970s.
Forest policy, however, has not been very effective at addressing these
boundary issues. At least one main actor holds a narrow view of the
appropriate role of scientists. For example, in a paper he wrote before
chairing the Committee of Scientists, Johnson defines a “science-based
assessment” as “attempts to use science-driven information and techniques
to answer, or to help answer, questions formulated by politicians and other
policy makers.”77 He continues, “Scientists in these studies are at best hired
hands and should not usurp the roles of decision maker, manager, or
individual citizen in weighing public values.”78 However, the language and
the reasoning used in the report, and the agency's response to it, are not as
clear about which issues are facts, which are values, and which lie in
between. For a planning framework so intent on integrating the roles of
scientists and a broad range of stakeholders, a clear understanding of these
boundary relationships is very important.
*****
Of course it is the responsibility of Congress to establish the policy
objectives of administrative agencies and oversee the activities of those
agencies to ensure that they do not depart from congressional preferences.
But on this issue, Congress has been paralyzed over the past several decades,
and that has created the room for this administration's assertion of policy.
Regional delegations sympathetic to the industry have obtained temporary
77
[Norman K. Johnson, Science-Based Assessment of the Forests of the
Pacific Northwest, in Creating A Forestry for the 21st Century 397 (Kathryn
Kohm & Jerry Franklin eds., 1997).]
78
Id. at 407.
398
relief on several occasions, but the authorization process is stalemated.
Neither side has been able to overcome the extraordinary majorities necessary
to force statutory change through. What this means is that so long as
agencies do not go outside the comfort zone of most members of Congress,
they have a great deal of latitude for administrative policy making.
During Clinton’s administration, the Johnson Committee of Scientists and
the Forest Service did little to help overcome the legislative stalemate. The
committee did not recommend statutory change, even though it was not shy
about an expansive interpretation of its mandate in other areas. One could
argue that a committee of experts would have a responsibility to inform
Congress that the modern reality of the contemporary National Forest System
was incompatible with the statutory framework. One could also argue that
the expert agency has a duty to inform its legislative sovereigns in such a
case, but the reality of modern American politics provides the opposite
incentives. It is now the norm for presidents to do everything in their power
to use whatever discretion can be read into statutes to pursue their policy
interests, regardless of congressional intent. . . .
By attempting to cloak those significant policy changes in the mantle of
science, the agency risked delegitimizing science and undermining the
democratic accountability of the system. By asserting the legitimacy of such
changes without congressional endorsement, the agency also left itself
vulnerable to reversal when the new administration with new forest policy
preferences assumed power. This could not be demonstrated more clearly
than by the recent actions of the Bush administration.
Excerpts from the Clinton administration’s 2000 forest
planning regulations (formerly codified at 36 C.F.R. Part 219)
§ 219.1 Purpose.
(a) Land and resource management planning guides how the Forest
Service will fulfill its stewardship of the natural resources of the National
Forest System to fulfill the designated purposes of the national forests and
grasslands and honor their unique place in American life. The regulations in
this subpart set forth a process for amending and revising land and resource
management plans, hereafter referred to as plans, for the National Forest
System and for monitoring the results of plan implementation under the
Forest and Rangeland Renewable Resources Act of 1974, as amended by the
National Forest Management Act of 1976, 16 U.S.C. 1600 et seq. The
399
regulations in this subpart also guide the selection and implementation of
site-specific actions. . . .
(b) The National Forest System constitutes an extraordinary national
legacy created by people of vision and preserved for future generations by
diligent and far-sighted public servants and citizens. These are the peoples’
lands, emblems of the nation’s democratic traditions.
(1) The national forests and grasslands provide a wide variety of uses,
values, products, and services that are important to many people, including
outdoor recreation, forage, timber, wildlife and fish, biological diversity,
productive soils, clean air and water, and minerals. They also afford
intangible benefits such as beauty, inspiration, and wonder.
(2) To assure the continuation of this array of benefits this regulation
affirms sustainability as the overall goal for stewardship of the natural
resources of each national forest and grassland consistent with the laws that
guide management of these lands.
(3) Sustainability, composed of interdependent ecological, social, and
economic elements, embodies the principles of multiple-use and
sustained-yield without impairment to the productivity of the land.
Sustainability means meeting needs of the present generation without
compromising the ability of future generations to meet their needs. Planning
contributes to social and economic sustainability without compromising the
basic composition, structure, and functioning of ecological systems. The
progress toward achievement of sustainability is assessed through monitoring
and evaluation.
§ 219.2 Principles.
The planning regulations in this subpart are based on the following
principles:
(a) The first priority for planning to guide management of the National
Forest System is to maintain or restore ecological sustainability of national
forests and grasslands to provide for a wide variety of uses, values, products,
and services. The benefits sought from these lands depend upon long-term
ecological sustainability. Considering increased human uses, it is essential
that uses of today do not impair the functioning of ecological processes and
the ability of these natural resources to contribute to sustainability in the
future.
(1) Planning provides the guidance for maintaining or restoring the
diversity of plant and animal communities and the productive capacity of
400
ecological systems, the core elements of ecological sustainability.
(2) Planning is based on science and other knowledge, including the
use of scientifically based strategies for sustainability and benefits from
independent scientific peer review.
(3) Planning is based on the temporal and spatial scales necessary for
sustainability.
(4) Planning includes the monitoring and evaluation of the
achievement of goals.
(b) Planning contributes to social and economic sustainability by
providing for a wide variety of uses, values, products, and services without
compromising the basic composition, structure, and function of ecological
systems.
(1) Planning recognizes and fosters a broad-based understanding of
the interdependence of national forests and grasslands with economies and
communities.
(2) Planning fosters strategies and actions that provide for human use
in ways that contribute to long-term sustainability.
(c) Planning is efficiently integrated into the broader geographic, legal,
and social landscape within which national forests and grasslands exist.
Other agencies, governments, corporations, and citizens manage land in and
around the national forests and grasslands. Planning, therefore, is outward
looking with the goal of understanding the broader landscape in which the
national forests and grasslands lie.
(1) Planning fosters coordination among all affected federal agencies.
(2) Planning proceeds in close cooperation with state, tribal, and local
governments.
(3) Planning recognizes the rights of American Indian tribes and
Alaska Natives.
(4) Planning is interdisciplinary, providing analyses and options that
are responsive to a broad range of ecological, social, and economic.
(5) Planning acknowledges the limits and variability of likely budgets.
(d) Planning meaningfully engages the American people in the
stewardship of their national forests and grasslands. Just as the Forest
Service can help the American people learn about the limits and capabilities
of the national forests and grasslands, managers also should be guided by the
knowledge and values of the American people.
(1) Planning encourages extensive collaborative citizen participation
401
and builds upon the human resources in local communities and throughout
the nation.
(2) Planning actively seeks and addresses key issues and promotes a
shared vision of desired conditions.
(3) Planning and plans are understandable.
(4) Planning restores and maintains the trust of the American people
in the management of the national forests and grasslands.
(e) Planning is an ongoing process, where decisions are adapted, as
necessary, to address new issues, new information, and unforeseen events.
(1) Planning is innovative and practical.
(2) Planning is expeditious and efficient in achieving goals.
(f) Planning seeks to manage National Forest System resources in a
combination that best serves the public interest without impairment of the
productivity of the land consistent with the Multiple-Use Sustained-Yield Act
of 1960.
§ 219.11 Monitoring and evaluation for adaptive management.
(a) Plan monitoring strategy. Each plan must contain a practicable,
effective, and efficient monitoring strategy to evaluate sustainability in the
plan area (§§ 219.19-219.21). The strategy must require monitoring of
appropriate plan decisions and characteristics of sustainability.
(1) Monitoring and evaluation of ecological sustainability. The plan
monitoring strategy for the monitoring and evaluation of ecological
sustainability must require monitoring of:
(i) Ecosystem diversity. Monitoring must be used to evaluate
the status and trend of selected physical and biological characteristics of
ecosystem diversity (§ 219.20(a)(1)). The plan monitoring strategy must
document the reasons for selection of characteristics to be monitored,
monitoring objectives, methodology, and designate critical values that will
prompt reviews of plan decisions.
(ii) Species diversity. Monitoring must be used to evaluate
focal species and species-at-risk as follows:
(A) The status and trends of ecological conditions
known or suspected to support focal species and selected species-at-risk must
be monitored. The plan monitoring strategy must document the reasons for
the selection of species-at-risk for which ecological conditions are to be
monitored, including the degree of risk to the species, the factors that put the
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species at risk, and the strength of association between ecological conditions
and population dynamics.
(B) In addition to monitoring of ecological conditions,
the plan monitoring strategy may require population monitoring for some
focal species and some species-at-risk. This monitoring may be
accomplished by a variety of methods including population occurrence and
presence/absence data, sampling population characteristics, using population
indices to track relative population trends, or inferring population status from
ecological conditions.
(C) A decision by the responsible official to monitor
populations and the responsible official’s choice of methodologies for
monitoring selected focal species and selected species-at-risk may be based
upon factors that include, but are not limited to, the degree of risk to the
species, the degree to which a species’ life history characteristics lend
themselves to monitoring, the reasons that a species is included in the list of
focal species or species-at-risk, and the strength of association between
ecological conditions and population dynamics. Monitoring of population
trend is often appropriate in those cases where risk to species viability is high
and population characteristics cannot be reliably inferred from ecological
conditions. The reasons for selection of species, monitoring objectives, and
methodologies must be documented as part of the plan monitoring strategy.
Critical values that will prompt reviews of plan decisions must be designated
in the monitoring strategy.
(iii) Monitoring effectiveness. As a part of the plan
monitoring strategy, the responsible official must evaluate the effectiveness
of selected characteristics of ecosystem diversity and species diversity in
providing reliable information regarding ecological sustainability.
(2) Monitoring and evaluation of social and economic sustainability.
The plan monitoring strategy for the monitoring and evaluation of social and
economic sustainability should provide for periodic review of national,
regional, and local supply and demand for products, services, and values.
Special consideration should be given to those uses, values, products, and
services that the National Forest System is uniquely poised to provide.
Monitoring should improve the understanding of the National Forest System
contributions to social and economic sustainability. The plan monitoring
strategy must require the responsible official to evaluate the effectiveness of
information and analyses described in § 219.21(a) in providing reliable
information regarding social and economic sustainability.
(b) Monitoring of site-specific actions. The decision document
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authorizing a site-specific action should describe any required monitoring and
evaluation for the site-specific action. The responsible official must
determine that there is a reasonable expectation that anticipated funding is
adequate to complete any required monitoring and evaluation prior to
authorizing a site-specific action.
(c) Monitoring methods. Unless required by the monitoring strategy,
monitoring methods may be changed to reflect new information without plan
amendment or revision.
(d) Use of monitoring information. Where monitoring and evaluation is
required by the plan monitoring strategy, the responsible official must ensure
that monitoring information is used to determine one or more of the
following:
(1) If site-specific actions are completed as specified in applicable
decision documents;
(2) If the aggregated outcomes and effects of completed and ongoing
actions are achieving or contributing to the desired conditions;
(3) If key assumptions identified for monitoring in plan decisions
remain valid; and
(4) If plan or site-specific decisions need to be modified.
*****
(f) Annual monitoring and evaluation report. The responsible official
must prepare a monitoring and evaluation report for the plan area within 6
months following the end of each fiscal year. The report must be maintained
with the plan documents (§ 219.30(d)(5)), and include the following:
(1) A list or reference to monitoring required by the plan; and
(2) A summary of the results of monitoring and evaluation performed
during the preceding fiscal year and appropriate results from previous years.
The summary must include:
(i) A description of the progress toward achievement of
desired conditions within the plan area; and
(ii) A description of the plan area’s contribution to the
achievement of applicable outcomes of the Forest Service national strategic
plan.
§ 219.16 Relationships with interested individuals and organizations.
The responsible official must:
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(a) Make planning information available to the extent allowed by law;
(b) Conduct planning processes that are fair, meaningful, and open to
persons with diverse opinions;
(c) Provide early and frequent opportunities for participation in the
identification of issues;
(d) Encourage interested individuals and organizations to work
collaboratively with one another to improve understanding and develop
cooperative landscape and other goals;
(e) Consult with individuals and organizations who can provide
information about current and historic public uses within an assessment or
plan area, about the location of unique and sensitive resources and values and
cultural practices related to issues in the plan area; and
(f) Consult with scientific experts and other knowledgeable persons, as
appropriate, during consideration of collaboratively developed landscape
goals and other activities.
§ 219.19 Ecological, social, and economic sustainability.
Sustainability, composed of interdependent ecological, social, and economic
elements, embodies the Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C.
528 et seq.) without impairment to the productivity of the land and is the
overall goal of management of the National Forest System. The first priority
for stewardship of the national forests and grasslands is to maintain or restore
ecological sustainability to provide a sustainable flow of uses, values,
products, and services from these lands.
§ 219.20 Ecological sustainability.
To achieve ecological sustainability, the responsible official must ensure that
plans provide for maintenance or restoration of ecosystems at appropriate
spatial and temporal scales determined by the responsible official.
(a) Ecological information and analyses. Ecosystem diversity and species
diversity are components of ecological sustainability. The planning process
must include the development and analysis of information regarding these
components at a variety of spatial and temporal scales. These scales include
geographic areas such as bioregions and watersheds, scales of biological
organization such as communities and species, and scales of time ranging
from months to centuries. Information and analyses regarding the
components of ecological sustainability may be identified, obtained, or
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developed through a variety of methods, including broad-scale assessments
and local analyses (§ 219.5), and monitoring results (§ 219.11). For plan
revisions, and to the extent the responsible official considers appropriate for
plan amendments or site-specific decisions, the responsible official must
develop or supplement the following information and analyses related to
ecosystem and species diversity:
(1) Characteristics of ecosystem and species diversity. Characteristics
of ecosystem and species diversity must be identified for assessing and
monitoring ecological sustainability.
In general, these identified
characteristics should be consistent at various scales of analyses.
(i) Ecosystem diversity. Characteristics of ecosystem diversity
include, but are not limited to:
(A) Major vegetation types. The composition,
distribution, and abundance of the major vegetation types and successional
stages of forest and grassland systems; the prevalence of invasive or noxious
plant or animal species.
(B) Water resources. The diversity, abundance, and
distribution of aquatic and riparian systems including streams, stream banks,
coastal waters, estuaries, groundwater, lakes, wetlands, shorelines, riparian
areas, and floodplains; stream channel morphology and condition, and flow
regimes.
(C) Soil resources. Soil productivity; physical,
chemical and biological properties; soil loss; and compaction.
(D) Air resources. Air quality, visibility, and other air
resource values.
(E) Focal species. Focal species that provide insights
to the larger ecological systems with which they are associated.
(ii) Species diversity. Characteristics of species diversity
include, but are not limited to, the number, distribution, and geographic
ranges of plant and animal species, including focal species and species-at-risk
that serve as surrogate measures of species diversity. Species-at-risk and
focal species must be identified for the plan area.
(2) Evaluation of ecological sustainability. Evaluations of ecological
sustainability must be conducted at the scope and scale determined by the
responsible official to be appropriate to the planning decision. These
evaluations must describe the current status of ecosystem diversity and
species diversity, risks to ecological sustainability, cumulative effects of
human and natural disturbances, and the contribution of National Forest
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System lands to the ecological sustainability of all lands within the area of
analysis.
(i) Evaluation of ecosystem diversity. Evaluations of
ecosystem diversity must include, as appropriate, the following:
(A) Information about focal species that provide
insights to the integrity of the larger ecological system to which they belong.
(B) A description of the biological and physical
properties of the ecosystem using the characteristics identified in paragraph
(a)(1)(i) of this section.
(C) A description of the principal ecological processes
occurring at the spatial and temporal scales that influence the characteristic
structure and composition of ecosystems in the assessment or analysis area.
These descriptions must include the distribution, intensity, frequency, and
magnitude of natural disturbance regimes of the current climatic period, and
should include other ecological processes important to ecological
sustainability, such as nutrient cycling, migration, dispersal, food web
dynamics, water flows, and the identification of the risks to maintaining these
processes. These descriptions may also include an evaluation of the
feasibility of maintaining natural ecological processes as a tool to contribute
to ecological sustainability.
(D) A description of the effects of human activities on
ecosystem diversity. These descriptions must distinguish activities that had
an integral role in the landscape’s ecosystem diversity for a long period of
time from activities that are of a type, size, or rate that were not typical of
disturbances under which native plant and animal species and ecosystems
developed.
(E) An estimation of the range of variability of the
characteristics of ecosystem diversity, identified in paragraph (a)(l)(i) of this
section, that would be expected under the natural disturbance regimes of the
current climatic period. The current values of these characteristics should be
compared to the expected range of variability to develop insights about the
current status of ecosystem diversity.
(F) An evaluation of the effects of air quality on
ecological systems including water.
(G) An estimation of current and foreseeable future
Forest Service consumptive and non-consumptive water uses and the quantity
and quality of water needed to support those uses and contribute to ecological
sustainability.
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(H) An identification of reference landscapes to
provide for evaluation of the effects of actions.
(ii) Evaluations of species diversity. Evaluations of species
diversity must include, as appropriate, assessments of the risks to species
viability and the identification of ecological conditions needed to maintain
species viability over time based on the following:
(A) The viability of each species listed under the
Endangered Species Act as threatened, endangered, candidate, and proposed
species must be assessed. Individual species assessments must be used for
these species.
(B) For all other species, including other
species-at-risk and those species for which there is little information, a
variety of approaches may be used, including individual species assessments
and assessments of focal species or other indicators used as surrogates in the
evaluation of ecological conditions needed to maintain species viability.
(C) Except as provided in paragraph (a)(2)(ii)(A) of
this section, for species groups that contain many species, assessments of
functional, taxonomic, or habitat groups rather than individual species may
be appropriate.
(D) In analyzing viability, the extent of information
available about species, their habitats, the dynamic nature of ecosystems and
the ecological conditions needed to support them must be identified. Species
assessments may rely on general conservation principles and expert opinion.
When detailed information on species habitat relationships, demographics,
genetics, and risk factors is available, that information should be considered.
(b) Plan decisions. When making plan decisions that will affect
ecological sustainability, the responsible official must use the information
developed under paragraph (a) of this section. The following requirements
must apply at the spatial and temporal scales that the responsible official
determines to be appropriate to the plan decision:
(1) Ecosystem diversity. Plan decisions affecting ecosystem diversity
must provide for maintenance or restoration of the characteristics of
ecosystem composition and structure within the range of variability that
would be expected to occur under natural disturbance regimes of the current
climatic period in accordance with paragraphs (b)(1)(i) through (v) of this
section.
(i) Except as provided in paragraph (b)(1)(iv) of this section,
in situations where ecosystem composition and structure are currently within
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the expected range of variability, plan decisions must maintain the
composition and structure within the range.
(ii) Except as provided in paragraph (b)(1)(v) of this section,
where current ecosystem composition and structure are outside the expected
range of variability, plan decisions must provide for measurable progress
toward ecological conditions within the expected range of variability.
(iii) Where the range of variability cannot be practicably
defined, plan decisions must provide for measurable progress toward
maintaining or restoring ecosystem diversity. The responsible official must
use independently peer-reviewed scientific methods other than the expected
range of variability to maintain or restore ecosystem diversity. The scientific
basis for such alternative methods must be documented in accordance with
(§§ 219.22-219.25).
(iv) Where the responsible official determines that ecological
conditions are within the expected range of variability and that maintaining
ecosystem composition and structure within that range is ecologically,
socially or economically unacceptable, plan decisions may provide for
ecosystem composition and structure outside the expected range of
variability. In such circumstances, the responsible official must use
independently peer-reviewed scientific methods other than the expected range
of variability to provide for the maintenance or restoration of ecosystem
diversity. The scientific basis for such alternative methods must be
documented in accordance with (§§ 219.22- 219.25).
(v) Where the responsible official determines that ecological
conditions are outside the expected range of variability and that it is not
practicable to make measurable progress toward conditions within the
expected range of variability, or that restoration would result in conditions
that are ecologically, socially or economically unacceptable, plan decisions
may provide for ecosystem composition and structure outside the expected
range of variability. In such circumstances, the responsible official must use
independently peer-reviewed scientific methods other than the expected range
of variability to provide for the maintenance or restoration of ecosystem
diversity. The scientific basis for such alternative methods must be
documented (§§ 219.22-219.25).
(2) Species diversity.
(i) Plan decisions affecting species diversity must provide for
ecological conditions that the responsible official determines provide a high
likelihood that those conditions are capable of supporting over time the
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viability of native and desired non-native species well distributed throughout
their ranges within the plan area, except as provided in paragraphs
(b)(2)(ii)-(iv) of this section. Methods described in paragraph (a)(2)(ii) of
this section may be used to make the determinations of ecological conditions
needed to maintain viability. A species is well distributed when individuals
can interact with each other in the portion of the species range that occurs
within the plan area. When a plan area occupies the entire range of a species,
these decisions must provide for ecological conditions capable of supporting
viability of the species and its component populations throughout that range.
When a plan area encompasses one or more naturally disjunct and
self-sustaining populations of a species, these decisions must provide
ecological conditions capable of supporting over time viability of each
population. When a plan area encompasses only a part of a population, these
decisions must provide ecological conditions capable of supporting viability
of that population well distributed throughout its range within the plan area.
(ii) When conditions outside the authority of the agency
prevent the agency from providing ecological conditions that provide a high
likelihood of supporting over time the viability of native and desired
non-native species well distributed throughout their ranges within the plan
area, plan decisions must provide for ecological conditions well distributed
throughout the species range within the plan area to contribute to viability of
that species.
(iii) Where species are inherently rare or not naturally well
distributed in the plan area, plan decisions should not contribute to the
extirpation of the species from the plan area and must provide for ecological
conditions to maintain these species considering their natural distribution and
abundance.
(iv) Where environmental conditions needed to support a
species have been so degraded that it is technically infeasible to restore
ecological conditions that would provide a high likelihood of supporting
viability, plan decisions must provide for ecological conditions to contribute
to supporting over time viability to the degree practicable.
*****
§ 219.21 Social and economic sustainability.
To contribute to economic and social sustainability, the responsible official
involves interested and affected people in planning for National Forest
System lands (§§ 219.12-219.18), provides for the development and
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consideration of relevant social and economic information and analyses, and
a range of uses, values, products, and services.
(a) Social and economic information and analyses. To understand the
contribution national forests and grasslands make to the economic and social
sustainability of local communities, regions, and the nation, the planning
process must include the analysis of economic and social information at
variable scales, including national, regional, and local scales. Social analyses
address human life-styles, cultures, attitudes, beliefs, values, demographics,
and land-use patterns, and the capacity of human communities to adapt to
changing conditions. Economic analyses address economic trends, the effect
of national forest and grassland management on the well-being of
communities and regions, and the net benefit of uses, values, products, or
services provided by national forests and grasslands. Social and economic
analyses should recognize that the uses, values, products, and services from
national forests and grasslands change with time and the capacity of
communities to accommodate shifts in land uses change. Social and
economic analyses may rely on quantitative, qualitative, and participatory
methods for gathering and analyzing data. Social and economic information
may be developed and analyzed through broad-scale assessments and local
analyses (§ 219.5), monitoring results (§ 219.11), or other means. For plan
revisions, and to the extent the responsible official considers to be
appropriate for plan amendments or site-specific decisions, the responsible
official must develop or supplement the information and analyses related to
the following:
(1) Describe and analyze, as appropriate, the following:
(i) Demographic trends; life-style preferences; public values;
land-use patterns; related conservation and land use policies at the state and
local level; cultural and American Indian tribe and Alaska Native land
settlement patterns; social and cultural history; social and cultural
opportunities provided by national forest system lands; the organization and
leadership of local communities; community assistance needs; community
health; and other appropriate social and cultural information;
(ii) Employment, income, and other economic trends; the
range and estimated long-term value of market and non-market goods, uses,
services, and amenities that can be provided by national forest system lands
consistent with the requirements of ecological sustainability, the estimated
cost of providing them, and the estimated effect of providing them on
regional and community well-being, employment, and wages; and other
appropriate economic information. Special attention should be paid to the
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uses, values, products, or services that the Forest Service is uniquely poised
to provide;
(iii) Opportunities to provide social and economic benefits to
communities through natural resource restoration strategies;
(iv) Other social or economic information, if appropriate, to
address issues being considered by the responsible official (§ 219.4).
(2) Analyze community or region risk and vulnerability. Risk and
vulnerability analyses assess the vulnerability of communities from changes
in ecological systems as a result of natural succession or potential
management actions. Risk may be considered for geographic, relevant
occupational, or other related communities of interest. Resiliency and
community capacity should be considered in a risk and vulnerability analysis.
Risk and vulnerability analysis may also address potential consequences to
communities and regions from land management changes in terms of capital
availability, employment opportunities, wage levels, local tax bases, federal
revenue sharing, the ability to support public infrastructure and social
services, human health and safety, and other factors as necessary and
appropriate.
(b) Plan decisions. When making plan decisions that will affect social or
economic sustainability, the responsible official must use the information
analyses developed in paragraph (a) of this section. Plan decisions contribute
to social and economic sustainability by providing for a range of uses, values,
products, and services, consistent with ecological sustainability.
§ 219.22 The overall role of science in planning.
(a) The responsible official must ensure that the best available science is
considered in planning. The responsible official, when appropriate, should
acknowledge incomplete or unavailable information, scientific uncertainty,
and the variability inherent in complex systems.
(b) When appropriate and practicable and consistent with applicable law,
the responsible official should provide for independent, scientific peer
reviews of the use of science in planning. Independent, scientific peer reviews
are conducted using generally accepted scientific practices that do not allow
individuals to participate in the peer reviews of documents they authored or
co-authored.
§ 219.23 The role of science in assessments, analyses, and monitoring.
(a) Broad-scale assessments. If the Forest Service is leading a broad-scale
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assessment, the assessment must be led by a Chief Scientist selected by the
Deputy Chief of Research and Development. When appropriate and
practicable, a responsible official may provide for independent, scientific peer
review of the findings and conclusions originating from a broad-scale
assessment. Independent, scientific peer review may be provided by scientists
from the Forest Service, other federal, state, or tribal agencies, or other institutions.
(b) Local analyses. Though not required, a responsible official may
include scientists in the development or technical reviews of local analyses
and field reviews of the design and selection of subsequent site-specific actions.
(c) Monitoring.
(1) The responsible official must include scientists in the design and
evaluation of monitoring strategies. Additionally, the responsible official
must provide for an independent, scientific peer review of plan monitoring
on at least a biennial basis to validate adherence to appropriate protocols and
methods in collecting and processing of monitoring samples and to validate
that data are summarized and interpreted properly.
(2) When appropriate and practicable, the responsible official should
include scientists in the review of monitoring data and analytical results to
determine trends relative to ecological, economic, or social sustainability.
§ 219.24 Science consistency evaluations.
(a) The responsible official must ensure that plan amendments and
revisions are consistent with the best available science. The responsible
official may use a science advisory board (§ 219.25) to assist in determining
whether information gathered, evaluations conducted, or analyses and
conclusions reached in the planning process are consistent with the best
available science. If the responsible official decides to use a science advisory
board, the board and the responsible official are to jointly establish criteria for
the science advisory board and the responsible official to use in reviewing the
consistency of proposed plan amendments and revisions with the best
available science.
(b) The science advisory board is responsible for organizing and
conducting a scientific consistency evaluation to determine the following:
(1) If relevant scientific (ecological, social, or economic) information
has been considered by the responsible official in a manner consistent with
current scientific understanding at the appropriate scales;
(2) If uncertainty of knowledge has been recognized, acknowledged,
and adequately documented; and
(3) If the level of risk in achievement of sustainability is
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acknowledged and adequately documented by the responsible official.
(c) If substantial disagreement among members of the science advisory
board or between the science advisory board and the responsible official is
identified during a science consistency evaluation, a summary of such
disagreement should be noted in the appropriate environmental
documentation within Forest Service NEPA procedures.
§ 219.25 Science advisory boards.
(a) National science advisory board. The Forest Service Deputy Chief for
Research and Development must establish, convene, and chair a science
advisory board to provide scientific advice on issues identified by the Chief
of the Forest Service. Board membership must represent a broad range of
scientific disciplines including, but not limited to, the physical, biological,
economic, and social sciences.
(b) Regional science advisory boards. Based upon needs identified by
Regional Forester(s) or Research Station Director(s), the Forest Service
Research Station Director(s), should establish and convene science advisory
boards consistent with the Federal Advisory Committee Act (5 U.S.C. app.)
to provide advice to one or more Regional Foresters regarding the application
of science in planning and decisionmaking for National Forest System lands.
At least one regional science advisory board must be available for each
national forest and grassland. The Station Director(s) must chair the board or
appoint a chair of such boards. The geographical boundaries of the boards
need not align with National Forest System Regional boundaries. Board
membership must represent a broad range of science disciplines including,
but not limited to, the physical, biological, economic, and social sciences.
Regional science advisory board tasks may include, but are not limited, to:
(1) Evaluating significance and relevance of new information related
to current plan decisions, including the results of monitoring and evaluation;
and
(2) Evaluating science consistency as described in § 219.24.
(c) Work groups. With the concurrence of the appropriate chair and
subject to available funding, the national or regional science advisory boards
may convene work groups to study issues and provide recommendations.
Excerpts from the Bush administration’s forest planning
regulations, 36 C.F.R. Part 219
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§ 219.1 Purpose and applicability.
(a) The rules of this subpart set forth a process for land management
planning, including the process for developing, amending, and revising land
management plans (also referred to as plans) for the National Forest System,
as required by the Forest and Rangeland Renewable Resources Planning Act
of 1974, as amended by the National Forest Management Act of 1976 (16
U.S.C. 1600 et seq.), hereinafter referred to as NFMA. This subpart also
describes the nature and scope of plans and sets forth the required
components of a plan. This subpart is applicable to all units of the National
Forest System as defined by 16 U.S.C. 1609 or subsequent statute.
(b) Consistent with the Multiple-Use Sustained-Yield Act of 1960 (16
U.S.C. 528–531), the overall goal of managing the National Forest System
is to sustain the multiple uses of its renewable resources in perpetuity while
maintaining the long-term productivity of the land. Resources are to be
managed so they are utilized in the combination that will best meet the needs
of the American people. Maintaining or restoring the health of the land
enables the National Forest System to provide a sustainable flow of uses,
benefits, products, services, and visitor opportunities.
(c) The Chief of the Forest Service shall establish planning procedures for
this subpart for plan development, plan amendment, or plan revision in the
Forest Service Directive System.
§ 219.3 Nature of land management planning.
(a) Principles of land management planning. Land management planning
is an adaptive management process that includes social, economic, and
ecological evaluation; plan development, plan amendment, and plan revision;
and monitoring. The overall aim of planning is to produce responsible land
management for the National Forest System based on useful and current
information and guidance. Land management planning guides the Forest
Service in fulfilling its responsibilities for stewardship of the National Forest
System to best meet the needs of the American people.
(b) Force and effect of plans. Plans developed in accordance with this
subpart generally contain desired conditions, objectives, and guidance for
project and activity decisionmaking in the plan area. Plans do not grant,
withhold, or modify any contract, permit, or other legal instrument, subject
anyone to civil or criminal liability, or create any legal rights. Plans typically
do not approve or execute projects and activities. Decisions with effects that
can be meaningfully evaluated (40 CFR 1508.23) typically are made when
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projects and activities are approved.
§ 219.6 Evaluations and monitoring.
(a) Evaluations. The Responsible Official shall keep the Plan Set of
Documents up to date with evaluation reports, which will reflect changing
conditions, science, and other relevant information. The following three
types of evaluations are required for land management planning:
comprehensive evaluations for plan development and revision, evaluations
for plan amendment, and annual evaluations of monitoring information. The
Responsible Official shall document evaluations in evaluation reports, make
these reports available to the public as required in § 219.9, and include these
reports in the Plan Set of Documents (§ 219.7(a)(1)). Evaluations under this
section should be commensurate to the level of risk or benefit associated with
the nature and level of expected management activities in the plan area.
(1) Comprehensive evaluations. These evaluate current social,
economic, and ecological conditions and trends that contribute to
sustainability, as described in § 219.10. Comprehensive evaluations and
comprehensive evaluation reports must be updated at least every five years
to reflect any substantial changes in conditions and trends since the last
comprehensive evaluation. The Responsible Official must ensure that
comprehensive evaluations, including any updates necessary, include the
following elements:
(i) Area of analysis. The area(s) of analysis must be clearly
identified.
(ii) Conditions and trends. The current social, economic, and
ecological conditions and trends and substantial changes from previously
identified conditions and trends must be described based on available
information, including monitoring information, surveys, assessments,
analyses, and other studies as appropriate. Evaluations may build upon
existing studies and evaluations.
(2) Evaluation for a plan amendment. An evaluation for a plan
amendment must analyze the issues relevant to the purposes of the
amendment and may use the information in comprehensive evaluations
relevant to the plan amendment. When a plan amendment is made
contemporaneously with, and only applies to, a project or activity decision,
the analysis prepared for the project or activity satisfies the requirements for
an evaluation for an amendment.
(3) Annual evaluation of the monitoring information. Monitoring
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results must be evaluated annually and in accordance with paragraph (b)(2)
of this section.
(b) Monitoring. The plan must describe the monitoring program for the
plan area. Monitoring information in the Plan Document or Set of
Documents may be changed and updated as appropriate, at any time. Such
changes and updates are administrative corrections (§ 219.7(b)) and do not
require a plan amendment or revision.
(1) The plan-monitoring program shall be developed with public
participation and take into account:
(i) Financial and technical capabilities;
(ii) Key social, economic, and ecological performance
measures relevant to the plan area; and
(iii) The best available science.
(2) The plan-monitoring program shall provide for:
(i) Monitoring to determine whether plan implementation is
achieving multiple use objectives;
(ii) Monitoring to determine the effects of the various resource
management activities within the plan area on the productivity of the land;
(iii) Monitoring of the degree to which on-the-ground
management is maintaining or making progress toward the desired conditions
and objectives for the plan; and
(iv) Adjustment of the monitoring program as appropriate to
account for unanticipated changes in conditions.
(3) The Responsible Official may conduct monitoring jointly with
others, including but not limited to, Forest Service units, Federal, State or
local government agencies, federally recognized Indian Tribes, and members
of the public.
§ 219.9 Public participation, collaboration, and notification.
The Responsible Official must use a collaborative and participatory approach
to land management planning, in accordance with this subpart and consistent
with applicable laws, regulations, and policies, by engaging the skills and
interests of appropriate combinations of Forest Service staff, consultants,
contractors, other Federal agencies, federally recognized Indian Tribes, State
or local governments, or other interested or affected communities, groups, or
persons.
(a) Providing opportunities for participation. The Responsible Official
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must provide opportunities for the public to collaborate and participate
openly and meaningfully in the planning process, taking into account the
discrete and diverse roles, jurisdictions, and responsibilities of interested and
affected parties. Specifically, as part of plan development, plan amendment,
and plan revision, the Responsible Official shall involve the public in
developing and updating the comprehensive evaluation report, establishing
the components of the plan, and designing the monitoring program. The
Responsible Official has the discretion to determine the methods and timing
of public involvement opportunities.
(1) Engaging interested individuals and organizations. The
Responsible Official must provide for and encourage collaboration and
participation by interested individuals and organizations, including private
landowners whose lands are within, adjacent to, or otherwise affected by
future management actions within the plan area.
(2) Engaging State and local governments and Federal agencies. The
Responsible Official must provide opportunities for the coordination of
Forest Service planning efforts undertaken in accordance with this subpart
with those of other resource management agencies. The Responsible Official
also must meet with and provide early opportunities for other government
agencies to be involved, collaborate, and participate in planning for National
Forest System lands. The Responsible Official should seek assistance, where
appropriate, from other State and local governments, Federal agencies, and
scientific and academic institutions to help address management issues or
opportunities.
(3) Engaging Tribal governments. The Forest Service recognizes the
Federal Government’s trust responsibility for federally recognized Indian
Tribes. The Responsible Official must consult with, invite, and provide
opportunities for federally recognized Indian Tribes to collaborate and
participate in planning. In working with federally recognized Indian Tribes,
the Responsible Official must honor the government-to government
relationship between Tribes and the Federal Government.
(b) Public notification. The following public notification requirements
apply to plan development, amendment, or revision, except when a plan
amendment is approved contemporaneously with approval of a project or
activity and the amendment applies only to the project or activity, in which
case 36 CFR part 215 or part 218, subpart A, applies:
(1) When formal public notification is provided. Public notification
must be provided at the following times:
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(i) Initiation of development of a plan, plan amendment, or
plan revision;
(ii) Commencement of the 90-day comment period on a
proposed plan, plan amendment, or plan revision;
(iii) Commencement of the 30-day objection period prior to
approval of a plan, plan amendment, or plan revision;
(iv) Approval of a plan, plan amendment, or plan revision; and
(v) Adjustment to conform to this subpart of a planning
process for a plan, plan amendment, or plan revision initiated under the
provisions of a previous planning regulation.
(2) How public notice is provided. Public notice must be provided in
the following manner:
(i) All required public notices applicable to a new plan, plan
revision, or adjustment of any ongoing plan revision as provided at §
219.14(e) must be published in the Federal Register and newspaper(s) of
record.
(ii) Required notifications that are associated with a plan
amendment or adjustment of any ongoing plan amendment as provided at §
219.14(e) and that apply to one plan must be published in the newspaper(s)
of record. Required notifications that are associated with plan amendments
and adjustment of any ongoing plan amendments (as provided at § 219.14(e))
and that apply to more than one plan must be published in the Federal
Register.
(iii) Public notification of evaluation reports and monitoring
program changes may be made in a manner deemed appropriate by the
Responsible Official.
(3) Content of the public notice. Public notices must contain the
following information:
(i) Content of the public notice for initiating a plan
development, plan amendment, or plan revision. The notice must inform the
public of the documents available for review and how to obtain them; provide
a summary of the need to develop a plan or change a plan; invite the public
to comment on the need for change in a plan and to identify any other need
for change in a plan that they feel should be addressed during the planning
process; and provide an estimated schedule for the planning process,
including the time available for comments, and inform the public how to
submit comments.
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(ii) Content of the public notice for a proposed plan, plan
amendment, or plan revision. The notice must inform the public of the
availability of the proposed plan, plan amendment, or plan revision, including
any relevant evaluation report; the commencement of the 90-day comment
period; and the process for submitting comments.
(iii) Content of the public notice for a plan, plan amendment,
or plan revision prior to approval. The notice must inform the public of the
availability of the plan, plan amendment, or plan revision; any relevant
evaluation report; and the commencement of the 30-day objection period; and
the process for objecting.
(iv) Content of the public notice for approval of a plan, plan
amendment, or plan revision. The notice must inform the public of the
availability of the approved plan, plan amendment, or plan revision, the
approval document, and the effective date of the approval (§ 219.14(a)).
(v) Content of the public notice for an adjustment to an
ongoing planning process. The notice must state how a planning process
initiated before the transition period (§ 219.14(b) and (e)) will be adjusted to
conform to this subpart.
§ 219.10 Sustainability.
Sustainability, for any unit of the National Forest System, has three
interrelated and interdependent elements: social, economic, and ecological.
A plan can contribute to sustainability by creating a framework to guide onthe-ground management of projects and activities; however, a plan by itself
cannot ensure sustainability. Agency authorities, the nature of a plan, and the
capabilities of the plan area are some of the factors that limit the extent to
which a plan can contribute to achieving sustainability.
(a) Sustaining social and economic systems. The overall goal of the
social and economic elements of sustainability is to contribute to sustaining
social and economic systems within the plan area. To understand the social
and economic contributions that National Forest System lands presently
make, and may make in the future, the Responsible Official, in accordance
with § 219.6, must evaluate relevant economic and social conditions and
trends as appropriate during plan development, plan amendment, or plan
revision.
(b) Sustaining ecological systems. The overall goal of the ecological
element of sustainability is to provide a framework to contribute to sustaining
native ecological systems by providing ecological conditions to support
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diversity of native plant and animal species in the plan area. This will satisfy
the statutory requirement to provide for diversity of plant and animal
communities based on the suitability and capability of the specific land area
in order to meet overall multiple-use objectives (16 U.S.C. 1604(g)(3)(B)).
Procedures developed pursuant to § 219.1(c) for sustaining ecological
systems must be consistent with the following:
(1) Ecosystem diversity. Ecosystem diversity is the primary means
by which a plan contributes to sustaining ecological systems. Plan
components must establish a framework to provide the characteristics of
ecosystem diversity in the plan area.
(2) Species diversity. If the Responsible Official determines that
provisions in plan components, in addition to those required by paragraph
(b)(1) of this section, are needed to provide appropriate ecological conditions
for specific threatened and endangered species, species-of-concern, and
species-of-interest, then the plan must include additional provisions for these
species, consistent with the limits of agency authorities, the capability of the
plan area, and overall multiple use objectives.
§ 219.11 Role of science in planning.
(a) The Responsible Official must take into account the best available
science. For purposes of this subpart, taking into account the best available
science means the Responsible Official must:
(1) Document how the best available science was taken into account
in the planning process within the context of the issues being considered;
(2) Evaluate and disclose substantial uncertainties in that science;
(3) Evaluate and disclose substantial risks associated with plan
components based on that science; and
(4) Document that the science was appropriately interpreted and
applied.
(b) To meet the requirements of paragraph (a) of this section, the
Responsible Official may use independent peer review, a science advisory
board, or other review methods to evaluate the consideration of science in the
planning process.
NOTES AND QUESTIONS
1. The goals of national forest management. What goals did the Clinton
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administration’s revised national forest planning regulations articulate for the
national forests? How do the goals articulated in the Bush administration’s
2005 rules differ from those of the 2000 rules? Are both sets of goals
consistent with the National Forest Management Act? Assuming they are, in
your view which is the better approach?
2. Comparing the rules. Based on the excerpts supplied, what are the major
substantive differences between the Clinton and Bush forest planning rules?
How do they treat the NFMA “diversity” requirement? What roles do they
set out for scientific experts? For public comment? Do they envision a
special role for national forests, as opposed to other lands, in conservation?
To what extent do they require ongoing monitoring of the effects of
management decisions? Which will more strongly constrain Forest Service
discretion? Which will impose greater resource demands on the Forest
Service? Are those demands justified by the benefits they will produce?
3. The transition between rules. The Clinton administration’s 2000 forest
planning rules recognized that many plans would not be immediately
amended. They required that, during the transition period between their
publication and the completion of forest plan revision, the Forest Service
“consider the best available science” in implementing and amending the plan.
In May 2001, the Bush administration suspended the Clinton rule, with the
exception of that transition provision. Until the new rule was finalized,
therefore, site-specific decisions were required only to consider the best
available science and comply with the relevant LRMP. During that transition
period, plan revisions could, at the election of the responsible Forest Service
official, be conducted under the provisions of the 1982 or the 2000
regulations. Plan revisions begun after the final promulgation of the 2005
rules must comply with those rules.
4. The Committee of Scientists. NFMA, as enacted in 1976, explicitly
required that the Forest Service convene a “committee of scientists” from
outside the Forest Service to “provide scientific and technical advice and
counsel on proposed guidelines and procedures to assure that an effective
interdisciplinary approach is proposed and adopted.” 16 U.S.C. § 1604(h)(1).
The Forest Service is authorized but not required to appoint new committees
of scientists when considering revision of the NFMA regulations.
Why do you suppose Congress included this requirement in NFMA? Did
the original committee of scientists stay within the bounds of providing
“scientific and technical advice”? Did it act appropriately? Why do you
suppose the Clinton administration decided to appoint a new committee of
scientists when it decided to revise the planning regulations? Did that
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committee, in your view, act appropriately? Was its membership
appropriate? Why did the Bush administration not convene a new
committee (or revive the Clinton committee) to provide guidance on its
revisions of the forest planning rules? Should Congress require that a
committee of scientists be convened any time the planning rules are
amended? What would be the benefits and costs of such a requirement?
5. The role of science, and scientists, in forest policy. Professor Hoberg
asserts that forest policy “value questions of balancing conflicting objectives”
have repeatedly been “cast in technical terms to promote the social and
political legitimacy of the outcomes.” Do you agree that the role of science
in determining the goals of forest management has been oversold? Is that a
bad thing, and if so, why? How does Professor Hoberg’s view of the role of
science in forest management compare with those of the Clinton and Bush
administrations?
Note that despite Professor Hoberg’s invocation of EPA as a model for
how to separate science from policy, that agency continues to struggle with
the boundary. EPA recently drew fire from its Clean Air Scientific Advisory
Committee, a group of independent scientists whose advice the Clean Air Act
requires EPA to seek in setting acceptable air quality levels, over the agency’s
refusal to tighten particulate matter limits. Shortly after that decision, EPA
announced changes to the process for considering revisions to air quality
standards. Instead of consulting with CASAC before developing a proposal
that would be subject to public comment, EPA will consider comments from
CASAC at the same time it considers those from the general public. Senator
Barbara Boxer, chair of the Environment and Public Works Committee has
expressed concern about the change, which she fears “will inject politics into
the entire decision-making process.” Senator Boxer has suggested that she
will hold hearings on the change.
6. The consequences of a planning focus. Should Congress have provided
clearer substantive guidelines for national forest management in NFMA?
Could it realistically be expected to do so? Should the Forest Service provide
clea