October 1999 by Robert Sanregret
Summary1. The "Administration's "Billion Dollar Land Acquisition" Program has New Help. Although the federal land acquisition acts (S.25/H.R. 701) appear temporarily dormant; proponents are busy on new approaches.
2. Mill-Site Restriction Amendments Argued in Congress. The limitation of one mill site for each mining claim will probably end up being decided by a Congressional Conference Committee, or in an "Omnibus Appropriations Bill."
3. New "Federalism" Executive Order. EO-13132 replaces old EG-13083. In August, President Clinton revoked EO-13083, and issued new, but Very similar, "Federalism" EO-13132.
4. The EPA Will Appeal U.S. Court of Appeals Decision on "Nondelegation of Legislative Power." The U.S. Court of Appeals decision prohibiting Congress' delegation of "legislative power" to the EPA, or to other administrative agencies, will be appealed by the EPA.
5. Chenoweth Lawsuit Questioning Clinton's AHRI Executive Order Being Appealed. Suit to have the American Heritage Rivers Initiative (AHRI) declared unconstitutional is being appealed.
CARA is structured as a massive "pork barrel" bill, with a portion of the $4 billion to $5 billion offshore oil royalties being shared with the states and federal land management agencies. CARA allocates $330 million (S.25) to $378 million (H.R. 701) annually to federal agencies for the purpose of buying land, off-budget and not subject to any Congressional control or to the appropriations process.
The objections to CARA have been discussed in this column previously, and are basically criticism of the "dedicated, off-budget" aspect of the allocation without Congressional oversight. Government already owns an estimated 42% of the land in the United States—with a much higher percentage of government ownership in the Western States.
Thomas Jefferson strongly opposed the federal government owning or purchasing land, but Jefferson was outvoted and we ended up with the two somewhat ambiguous Constitutional provisions on land ownership and land management by the Feds: (1) Article 1, Section 8, clause 17, gives Congress power over the District of Columbia, and the power to purchase land, with the consent of the State, for " ... the erection of forts, magazines, arsenals, dock-yards and other needful buildings" and (2) the so-called "property clause" in Article IV, Section 3, paragraph 2, gives Congress the " ... Power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States ... " CARA opponents point out that neither of these Constitutional clauses clearly permits the purchase of land for any purpose other than specifically set out (i.e. "ports, magazines, etc.," with that power being clearly tied to Congress' specific power to "raise and support armies.")
Support for CARA (S.25) in the Senate is even weaker than in the House. Chairman Frank Murkowski (R-Alaska) of the Senate Energy and Natural Resources Committee pulled S.25 from the Committee schedule after he lost the support of a key group of Republicans before the Committee discussions and negotiations had even started. Many members of Congress who originally had supported CARA have dropped their support because of the strong opposition expressed by the public, and specifically, by their constituents.
Even though S.25 and H.R. 701 appear to be stalled in their Committees, CARA proponents are busily searching for other methods to increase, or to create, the power of the federal government to acquire land. One such method is the "National Natural Landmarks Program," which utilizes the administrative procedure of designating land use controls, new national parks and land acquisition—without authorization or control by Congress. Congress has the power to, in effect, "veto" administrative actions such as Executive Orders, Wilderness designations or endangered species nominations but is traditionally slow and reluctant to oppose Executive action due to fear of being accused of violating the "Separation of Powers Doctrine," which mandates that none of the three branches of government (Legislative, Executive, or Judicial) will interfere with the other branches.
The National Natural Landmarks Program previously existed at a minor level, but was suspended in 1992. Recently, however, the National Park Service, under Interior Secretary Bruce Babbitt, issued new and final regulations restarting the Program in collaboration with the Nature Conservancy. The revived program has already designated 600 areas as "Natural Landmarks" and, reportedly, more than 2,000 additional sites are targeted—all without Congressional approval, without Congressional authorization, and without public notice.
The "Landmark" sites vary in size from very small to millions of acres, including state, federal, and private lands. Park Service records do not indicate how many people are living within these Landmark areas. The entire National Natural Landmarks Program will be integrated into the CARA proposed annual "billion dollar land acquisition fund," if and when CARA is enacted by Congress. If you are interested in the "National Natural Landmarks Program," you may call the Interior Department Inspector General at (202)219-3841 for a copy of the "Landmarks Investigation of 1991"—Ask for "Report #92-1-204."
2. Mill-Site Restriction Amendments Argued in Congress. As we go to press, the U.S. Senate is debating the Year 2000 Interior Appropriations Bill (S.129.2), along with its approximately 100 proposed amendments. These amendments include a bill by Senator Larry Craig (R-ID) that would do away with Solicitor John Leshy's "mill-site restrictions" limiting a mining claimholder to one mill site for each mining claim. This restriction would seriously impair most of the new and proposed mineral development operations in the United States.
By a vote of 55 to 41, the Senate defeated an amendment by Senator Patty Murray (D-WA) that would have deleted Craig's amendment from S.1292.
Since the mill-site restrictions have already been approved by the House as an amendment to the House Interior Year 2000 Appropriations Bill, it appears that the issue will probably end up being decided by the bipartisan Senate/House Congressional Conference Committee.
In the event that the Senate does not pass their Interior Year 2000 Appropriations Bill (S.1292) within the next several weeks, it will be included in one massive "Omnibus Appropriations Package," along with many billions of dollars of other appropriations bills. This entire "Omnibus" package will be presented as one bill for passage in toto.
3. A New "Federalism" Executive Order. EO-13132 replaces old EO-13083. When President Clinton promulgated EO-13083, while on a visit to Birmingham England, in May 1998, there was an immediate firestorm of controversy and criticism from citizens and State Governors, because the Order virtually did away with states' rights. This outcry caused the President to "suspend" EO-13083. Finally, in August 1999 EO-13083 was fully "revoked," but at the same time, in August 1999, President Clinton signed a new and very similar "Federalism" Order, EO-13132. The new Federalism Order has some changes in wording, but has the same effect as the old EO-13083. The basic criticism of both the old and new EOs is that they virtually do away with the 10th Amendment subserving the states to the Federal government. The opposition to old EO-13083 was led by Governor Mike Leavitt (R-UT), by Rep. Ron Paul (R-TX), and by most State Governors. Governor Leavitt said of EO-13083:
"This order represents a 180-degree turn from all previous federalism orders [which were] aimed to restrain federal action over the states ... [T]his new order is written to justify federal supremacy."
Under EO-13132, the federal agencies are required to "consult" with the States before passing rules but there is nothing to prevent a federal agency from passing any rule that it wants. Even though the federal agency must consult with the state, the Feds are not required to honor any of the state's objections.
President Clinton's new EO-13132 will take effect on November 3, 1999, unless the President is again persuaded to revoke or suspend it, or unless Congress takes direct action to stop it. There is a meeting of the National Governors Association scheduled this month, and they will probably be considering EO-13132. Your governor and members of Congress would be interested in your views.
4. The EPA Will Appeal U.S. Court of Appeals Decision on "Nondelegation of Legislative Power." The U.S. Court of Appeals decision prohibiting Congress from delegating "legislative power" to the Environmental Protection Agency (EPA) will be appealed by the EPA. This court decision was rendered on May 14, 1999, in the case of American Trucking Association vs. U.S. Environmental Protection Agency, U.S. Ct. of Appeals (D.C. Circ), Case Nos. #97-1140 and #97-1141, and the appeal will be to the Supreme Court of the United States.
In the American Trucking Association opinion, the U.S. Court of Appeals made it clear that it is a fundamental principle of law that Congress is prohibited from delegating legislative power to an administrative agency without Congress supplying the statutory standards. Further, when an agency creates its own standards, that agency action is invalid and illegal. In the American Trucking case, the EPA set certain standards for soot and other airborne particles, and the court ruled that these standards were void, were unconstitutional, and were "arbitrary and capricious."
This ruling will be particularly significant if the Supreme Court affirms the Court of Appeals, and even stronger if the Supreme Court renders a substantial opinion on the responsibilities of Congress to set out standards in its statutes and not let agencies set the standards. This is and will be a good reaffirmation of the checks and balances between the Congress and the Executive Branches of the federal government, and further reaffirming that Congress is prohibited from delegating "too much" authority to nonelected bureaucrats.
Watch for the U.S. Supreme Court's decision on this American Trucking case—and, watch for application of the principles of this case to activities in the other agencies. For example, this case might apply to the definition and reinterpretation of words and phrases such as "mill site" and "road" by Interior Secretary Babbitt and his Solicitor, John Leshy, in recent activities.
5. Chenoweth Lawsuit Questioning Clinton's AHRI Executive Order Being Appealed. This is an an update on the status of litigation by Representative Helen Chenoweth (R-ID) against President Clinton for exceeding his authority in his September 1997 Executive Order creating the American Heritage Rivers Initiative (AHRI). Chenoweth was joined in her lawsuit by Reps. Don Young (R-Alaska), Richard Pombo (R-CA) and Bob Schaffer (R-CO).
Chenoweth's suit was dismissed when the court held that she and her co-plaintiffs "lacked standing to sue." These plaintiffs asked who has more standing than members of Congress to sue when a President usurps their authority. In July, a 3-judge panel upheld the lower court's ruling that the plaintiffs had "no standing to sue." The plaintiffs will now appeal to the entire U.S. Court of Appeals ("en bank"). The plaintiffs are represented by the Mountain States Legal Foundation.
ConclusionA very clear course is being followed by the federal land management agencies (the Department of the Interior, including the BLM, the Park Service, the Fish and Wildlife Service, and the National Marine Fisheries Service; and the Forest Service) to clear "their" land of activities that disturb the land in any way. The particular tools used by the agencies, without authorization or control by Congress, are various—including definitions and strict interpretations of "Endangered Species Habitat," "disturbance," "RS-2477 Roads," "millsite restrictions," "excess reserves," "common varieties," "aesthetic values," "$5/day Parking Fee," etc. Most of these matters have been discussed in this column—and most likely will be discussed again.
The key to establishing reasonable criteria for the agencies is through Congress. Hence the importance of the American Trucking Association case, discussed above, and possibly to be discussed by the U.S. Supreme Court in the not-too-distant future.
We must keep our Senators, our Representatives, our State officials, our local officials, and our local newspapers, informed of our thoughts and views on these important issues, particularly as to pending legislation and administrative agency activities.
Direct your letters, calls and faxes to both the local and Washington offices of your members of Congress.
Their addresses and telephone numbers are as follows:
Senator (fill in the blank)
Washington, D.C. 20510
Representative (fill in the blank)
U.S. House of Representatives
Washington, D.C. 20515
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