The FLPMA itself speaks of "withdrawals" from mineral leasing. In section 204(7), 43 U.S.C. § 1714(7) (1976), Congress associated the term withdrawal with the exclusion of lands from operation of the Mineral Leasing Act: The Secretary shall . . . review withdrawals closed the lands to appropriation under the Mining Law of The FLPMA also states that "Withdrawals made pursuant to section 1714 [204] of this title may be used in carrying out management decisions . . .," 43 U.S.C. § 1712(e)(3) (1976), which by definition cover "mineral exploration and production." 26 When an emergency withdrawal is made, section 204(e) and section 204(c)(2)(12), 43 U.S.C. § 1714(c)(2)(12) (1976), require the Secretary to furnish the two congressional committees with "a report prepared by a qualified mining engineer . . which shall include . . . information on . . . mineral leases. "Such information would be superfluous if the term withdrawal was not intended to pertain to mineral leasing. Most significantly, section 204(e) provides that an emergency withdrawal is to be made only when "extraordinary measures must be taken to preserve values that would otherwise be lost. . . . Those values are specifically defined as "scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological [997] values. . 43 U.S.C. § 1701(a)(8) (1976). Recent wilderness and wildlife legislation, supra, clearly indicates that Congress is aware of the effect mineral exploration and production may have on these values. It would be unreasonable to hold that the emergency withdrawal contemplated by section 204(c) was not intended to give the congressional committees and the Secretary the power to preserve these values by withdrawing the land from disposition under the mineral leasing laws. Udall v. Tallman does not require a contrary conclusion. At issue in that case was the effect of Executive Order No. 8979 and Public Land Order No. 487 upon the Secretary of the Interior's authority to issue oil and gas leases. 380 U.S. at 2, 85 S.Ct. at 794. The Public Land Order directed that certain public lands in Alaska be "temporarily withdrawn from settlement, from settlement, location, sale or entry ." 27 As the Secretary points out, this language is simi . (a) Nothing in this chapter shall affect the applicability of the United States mining and mineral leasing laws within components of the national wild and scenic rivers system except that (iii) subject to valid existing rights, the minerals in Federal lands which are part of the system and constitute the bed or bank or are situated within one-quarter mile of the bank of any river designated a wild river under this chapter or any subsequent Act are hereby withdrawn from all forms of appropriation under the mining laws and from operation of the mineral leasing laws including, in both cases, amendments thereto. 26 Management decisions may include "exclusions (that is, total elimination) of one or more of the principal or major uses. of an area of land. 43 U.S.C. § 1712(e) (1976). "Principal or major uses" is defined to include "mineral exploration and production. . . ." 43 U.S.C. § 1702(7) (1976). 27 Executive Order No. 8979 used similar language: Continued lar to that used in the FLPMA to define withdrawal.28 In Udall v. Tallman, the Secretary interpreted both orders not to bar oil and gas leases. The Court upheld that interpretation, finding that the Secretary had consistently construed both orders not to bar oil and gas leases, and also that this interpretation had repeatedly been made a matter of public record. Id. at 4, 85 S.Ct. at 795. The Court, however, considered only the administrative agency's construction of two particular orders. The Court did not construe the statute in which the orders were based; nor did it indicate that its interpretation of the word "withdrawal" extended beyond its use in the two orders. Id. This conclusion is supported by two subsequent lower court decisions. In Mecham v. Udall, 369 F.2d 1 (10 Cir. 1966), the court rejected the interpretation now urged by the Secretary, holding that Udall v. Tallman demonstrates that an Executive Order could validly withdraw lands from mineral leasing. Id. at 3. Mountain States Legal Foundation v. Andrus, 499 F.Supp. 383 (D.Wyo. 1980), specifically, considered the FLPMA definition of withdrawal. The court held that the "plain meaning of Congress' definition of 'withdrawal'" was to "effectively remove large areas of federal land from oil and gas leasing... in order to maintain other public values in the area, namely those of wilderness preservation." Id. at 391. Significantly, the Secretary did not appeal that decision. Finally, it should be noted that unlike the Udall v. Tallman interpretration of two specific orders, there is no consistent interpretation of the word "withdrawal", as generally used, as excluding withdrawal from disposition under the mineral leasing laws. As noted in Udall v. Tallman, 380 U.S. at 20 n. 15, 85 S.Ct. at 803 n. 15, between 1940 and 1952 at least 173 Executive and Public Land Orders expressly barred mineral leasing. Between 1936 and 1954, at least 146 orders expressly permitted mineral leasing. Id. Subsequent to Public Land Order 487 (Udall v. Tallman, supra), the Secretary issued orders withdrawing portions of the land covered by it "from all forms of appropriation under the public land laws, including the mining laws, and the mineral leasing laws...." Public Land Order No. 751, 16 Fed. Reg. 9044 (Aug. 29, 1951) and Public Land Order No. 778, 17 Fed. Reg. 159 (Dec. 29, 1951). In conclusion, the relevant sources indicate that there is no traditional definition of "withdrawal" which would prevent the [998] committees or the Secretary from withholding disposition of these lands from mineral leasing. The Secretary's statutory interpretation is therefore rejected.29 None of the above described lands excepting [a described area] shall be subject to settlement, location, sale, or entry, or other disposition (except for fish trap sites) under any of the public-land laws applicable to Alaska. 380 U.S. at 19, 85 S.Ct. at 802. 28 43 U.S.C. § 1702(j) (1976) provides in relevant part: (j) The term "withdrawal" means withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program. 29 In support of his restrictive interpretation of a "withdrawal", the Secretary also quotes language from a letter from Interior Assistant Secretary Horton to the House Interior Committee. Continued B. SECRETARY'S POWER TO REVOKE ORDER As discussed above, pursuant to the directive from the House Committee, the Secretary withdrew the three wilderness areas from all mineral leasing until January 1, 1984-the date when all exploration and new leasing would cease under the Wilderness Act of 1964. The Senate, now supported in large part by the House Committee, Senator Baucus, and the PLF, interprets section 204(e) to permit the Secretary to "revoke the withdrawal order after a reasonable time."30 Since the interpretation of section 204(e) and effect of the Committee's resolution are crucial in determining whether it is necessary to reach the constitutional issue, it seems advisable to set out in some detail the contentions of the Senate and the position of the other parties. The Senate's interpretation of section 204(e) is summarized by the following excerpts from its memoranda: During the administrative process [which should continue despite the Committee resolution], plaintiffs may receive the leases they seek without a constitutional challenge; the agency may construe the June withdrawal order as not a bar to leasing, or may revoke that withdrawal order. Alternatively, plaintiffs may be denied the leases they seek . . . through an administrative decision on policy grounds . . [If the case is stayed or dismissed there is every reason for the Forest Service to go forward with the administrative process and resolve plaintiff's applications. . . . [T]he Secretary of the Interior has power to decide whether to accept [The Forest Service's] recommendation and to revoke such a withdrawal order after a reasonable time. The House Committee action did not purport to bar preparation of an environmental statement; it merely required the Secretary of the Interior to submit a report and to issue a temporary withdrawal order. [I]f [the Bureau of Land Management] decides to lease, it could do so not withstanding the withdrawal order . [I]f the Forest Service and Bureau of Land Management approved leasing in the Bob Marshall Wilderness area, they can recommend to the Secretary of the Interior that he consider revoking The letter was written prior to the enactment of the FLPMA to clarify the meaning of "withdrawal". It appears that the word "traditional" was used in that letter to distinguish between the term's traditional meaning (withholding from settlement, sale, location or entry. .) and a proposed new meaning which would also allow exclusion from management under principles of multiple use. See H. Rep. No. 94-1163, 94th Cong. 2nd Sess. 44 (1976) reprinted in 5 U.S. Code Cong. & Admin. News 6218 (1976). Despite its reference to Udall v. Tallman, the letter does not support the Secretary's interpretation. 30 At oral argument counsel for The Bob Marshall Alliance and The Wilderness Society gave qualified support to this position, stating that "The Secretary may not revoke before a resonable time has elapsed to allow Congress to legislate." The federal defendants and Sierra Club contend that the Secretary has no authority under section 204(e) to revoke the withdrawal order. They do not, of course, agree with respect to the constitutionality of this section. Mountain States Legal Foundation did not expressly consider the right of the Secretary to revoke the order but does argue that regardless of any revocation the court must reach the constitutional issues. the withdrawal order . . . . [T]he basis for believing that power to be available should be noted. Traditionally, prior to FLPMA, the Secretary of the Interior could revoke temporary withdrawals in aid of legislation under either of the two bases on which they were made, the Pickett Act or [999] implied executive authority. Only withdrawals by a specific Act of Congress could not be revoked. FLPMA continued that traditional law Under section 204(a) of FLPMA, 43 U.S.C. § 1714(a) (1976), "[o]n or after the effective date of this Act the Secretary is authorized to make, modify, extend, or revoke withdrawals but only in accordance with the provisions and limitations of this section." (Emphasis supplied). The explicit "limitations of this section," apart from any implicit in section 204(e) itself, are stated in section 204(j), 43 U.S.C. § 1714(j) (1976): "[t]he Secretary shall not make, modify, or revoke any withdrawal created by Act of Congress," or revoke national monument or wildlife refuge withdrawals. The kind of withdrawal intended by 204(j)'s phrase, "created by Act of Congress," to be irrevocable is a permanent withdrawal by specific statute, such as a statute creating a particular national park. A section 204(e) temporary withdrawal created by administrative order pursuant to a committee resolution is not created in section 204(j)'s sense by an "Act of Congress.' There is merit in the Senate's analysis of the meaning and effect of section 204(e). Although this section does authorize the Committee to make a finding that an emergency situation exists, nothing in the statute authorizes the Committee to set the duration of a withdrawal.31 In fact, as noted above, both the language of the FLPMA and previous revocations of withdrawals by the Secretary indicate that he alone has the authority to set the terms and duration of a withdrawal. His discretion in that regard is to be exercised pursuant to the goals and procedural requirements of the FLPMA, and, as with any other discretionary act, is subject to judicial review. This interpretation is supported by the manner in which the House Committee has previously exercised its authority under section 204(e). When an Alaska lands bill failed in the Senate during the final hours of the 1978 Congressional session, the Department of the Interior prepared and released a supplement to the 1974 environmental impact statement which discussed alternative administrative actions to preserve the status quo until the next congressional session. State of Alaska v. Carter, 462 F.Supp. 1155, 1157 (D. Alaska, 1978). The State of Alaska filed suit challenging the legality of the various administrative actions involved and later filed land selections on several million acres of the land discussed in the EIS. Id. On November 15, 1978, the Committee through Chairman Udall, sent a letter to the Secretary of the Interior which "urge[d]" the Secretary to immediately exercise his authority under section 204(e), "to assure that these significant values are saved." Id. at 31 At oral argument counsel for the House Committee on Interior and Insular Affairs said in part: "I think that at the time the Committee believed in good faith in the deadline it established. I don't think the Committee is adamant on that point. I think that the Committee expects the Secretary to exercise his discretion in that regard, and that the nature of this process is such that the Committee will and has negotiated with the Secretary on withdrawal of wilder ness areas." 1158 n. 5.32 The Secretary followed the Committee's request and withdrew the land the next day. Section 204(e) was invoked again six months later when the Committee decided [1000] that exploratory drilling for uranium on public lands in the Casitas Reservoir Watershed would endanger the water supply of the cities of Ojai and Ventura, California.33 On May 4, 1979, Chairman Udall sent a letter to the Secretary of the Interior which stated in part: "The Committee requests that you take appropriate action for the withdrawal of these lands at the earliest possible date." Again the Secretary followed the Committee's request and withdrew the land. Significantly, in neither of these situations did the Committee attempt to direct the Secretary as to the duration of the requested withdrawal. Instead, the Secretary exercised his authority under section 204(e) to set the scope and duration of the withdrawals. 34 The language "urge" and "request" indicates that the Committee itself initially interpreted section 204(e) to grant it only the limited authority presently described in the Senate's memoranda. Had the Committee believed it had the authority to dictate the scope and duration of a withdrawal, it seems likely that it would have exercised that power in the watershed case, where public health and safety were threatened. The Secretary argues that it would not "appear reasonable," assuming the constitutionality of section 204(e), to deny the Committee's power to determine both the necessity and duration of the withdrawal. The Committee's authority to require a temporary withdrawal, however, empowers it to maintain the status quo unitl both congressional committees receive reports from the Secretary.35 Either committee may then seek appropriate legislation. This interpretation of section 204(e) does not render it superfluous, but instead gives the committees authority which is reasonably "in aid of legislation." [12] In summary, although nothing in section 204(e) gives the Secretary the express authority to revoke a committee initiated emergency withdrawal, both the language and history of the 32 The letter from Chairman Udall stated in part: [In view of the most recent selections filed by the State of Alaska, its new lawsuit and its threat to seek immediate judicial remedies to prevent administrative actions to protect these lands, I must emphasize to you, on behalf of the Committee on Interior and Insular Affairs of the U.S. House of Representatives that an emergency exists with respect to the national interest lands. Extraordinary measures must be taken now to assure the preservation of the important values in these lands, which will be lost if such measures are not promptly effected. We urge you to exercise your authority under section 204(e) of the Federal Land Policy and Management Act of 1976 immediately to assure that these significant values are saved. 462 F.Supp. at 1158 n. 5. Neither the validity of the Committee's action nor the constitutionality of section 204(e) were considered in this case. 33 On May 2, 1979, the Committee resolved "that it seeks the immediate withdrawal of [the watershed lands] from all forms of appropriation under the public land laws, including the mining laws but not mineral leasing laws, subject to valid existing rights." Resolution of the Committee on Interior and Insular Affairs, United States House of Representatives, May 2, 1979 34 Public Land Order No. 5653 as amended by Public Land Order No. 5654 (Alaska Lands); Public Land Order No. 5662 (Casitas Reservoir Watershed). 35 The parties recognize, as does the court, the problems presented in determining how long the Secretary must maintain an order before exercising his discretion to revoke the order. The parties and amici who support this discretionary power agree that it should not be exercised until a "reasonable time" has elapsed. Since this issue is not presently before the court, it is not necessary to fix a specific time. It does seem reasonable, however, that the withdrawal remain in effect at least until the reports required by section 204(e) are filed with the committees. |