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Legislative Update

May 1999 by Robert Sanregret

1. Secretary Babbitt's proposed 43 CFR 3809 Revisions are Still on Track. Unless extended, May 10 is the last date for comments on the proposed revision of the "3809 Regulations," and for requests for extension of the comment period.

2. House Responds to Excessive Executive Order (EO) Use. Proposed House Resolution would express the "sense of Congress" against the use of EOs that "infringe on the powers and duties of Congress."

3. Multi-Billion Dollar Federal Land Acquisition Fund Going Forward. Despite strong opposition, Congressional bills supporting the President's, "Lands Legacy Initiative" are advancing.

4. Proposed Expansion of $5/day "Adventure Pass Parking Feel FeeDemo" Program. Despite substantial opposition, the Feds propose to expand program to BLM, FWS, and Parks as well as USFS, and to give certain private parties exclusive development rights on Public Lands.

5. Hidden Law—Mining and Minerals Policy Act. It is the continuing Federal policy to foster and encourage private enterprise in the development of economically sound and stable mining and mineral industries.

Comments

1. Secretary Babbitt's Proposed 43 CFR 3809 Revisions are Still on Track. Despite requests and pleas from citizens, members of Congress and Western Governors, Interior Secretary Bruce Babbitt and Interior Solicitor John Leshy, appear to have made up their minds and are proceeding to impose their proposed revisions of the 43 CFR 3809 Surface Management Regulations.

Changes in definitions and procedures brought about by enactment of 3809 would seriously hurt mineral exploration and development, and greatly increase the time and cost of permitting mineral projects.

May 10 is the current deadline for "Comments" on the proposed 3809 revisions. It is important that any comments you may have be submitted by that date and it would be well to send copies to your members of Congress. Requests for an extension of the comment period must also be submitted by this deadline.

In 1998, Congress mandated a study of the 3809 Regulations by the National Academy of Science (NAS), and their report is due July 31. In order for Congress, and the public, to have an opportunity to review the NAS report, it is essential that the comment period be extended to after July 31.

In a January 1997 memorandum, Babbitt stated " ...it is plainly no longer in the public interest to wait for Congress to enact legislation that corrects the shortcomings of the 3809 regulations." In February 1998, Babbitt was thwarted in his attempt to push through bonding regulations that violated the Federal Regulatory Flexibility Act and the Administrative Procedure Act. In December 1998, Babbitt told both the U.S. Senate and the Western Governors' Association that he had no intention of waiting for the NAS Report, and that he would proceed with his proposed 3809 Regulations.

Administrative agencies, including the Department of Interior, have the responsibility to administer law-not make law. Making law is the exclusive province of Congress. In mandating the NAS study, Congress is investigating the situation under existing U.S. Mining Laws and Regulations. After review ofthe NAS report, Congress may choose to act on the matter by prohibiting Secretary Babbitt's proposed 3809 regulatory revisions, or may tacitly approve them by doing nothing.

Congress is reluctant to interfere with agencies' administration of law in consideration of the "Separation of Powers" doctrine which requires the three governmental branches, Executive, Legislative and Judicial, to operate "separately." Congress, however, has the power to step in to control or stop regulatory abuses by the administrative agencies.

2. House Responds to Excessive Executive Order (EO) Use. Executive Orders have an important place in the orderly administration of the Federal government under the U.S. Constitution. The EO was intended to be an exercise of power by the President based upon existing law. Occasionally, a President will issue an EO that goes beyond the intended purpose and intent of the Constitution—such as President Franklin Roosevelt did with his now-infamous EO-9066 in World War II ordering 100,000 U.S. citizens to be forcibly removed from their homes, stripped of their property and held in detention camps for several years.

More recently, EOs have been President Clinton's tool of choice for governing the United States. Many of the current active and proposed programs of this Administration have been discussed in this column in the last few years—including the American Heritage Rivers Initiative (AHRI), the Essential Fish Habitat Program, the Interior Columbia Basin Ecosystem Management Project (lCBEMP), the 1.7+million acre Escalante National Monument in Utah, the UN International Criminal Court, the UN "Man and the Biosphere Program," Global Warning Programs, and others.

Over the last several years, Congress has received many complaints from citizens relative to President Clinton's aggressive use of EOs. These complaints have led to the introduction in the House, just a few weeks ago, by Rep. Jack Metcalf (R-WA) along with eight cosponsors, of House Concurrent Resolution 30 ("HCR 30"), which, by its own language states that " ... whereas some Executive Orders have infringed on the perogatives of Congress," it is:

" ... the sense of the Congress that any Executive Order that infringes on the powers and duties of the Congress under Article 1, Section 8 of the Constitution, or that would require the expenditure of Federal funds not specifically appropriated for the purpose of the Executive Order, is advisory only and has no force or effect unless enacted as law (by Congress.)"

This would be a Congressional "shot across the bow" of the President. HCR 30 has been referred to the House Committee on the Judiciary, and has not yet been voted on. Even if passed by Congress, HCR 30 really just states existing law and does not provide for enforcement or punishment.

3. Multi-Billion Dollar Federal Land Acquisition Fund Going Forward. The pending Congressional bills to support and fund President Clinton's massive "Lands Legacy Initiative" are working their way through the halls and the back rooms of Congress. These bills include: H.R. 701 by Rep. Don Young (R-Alaska); S.25 by Senators Murkowski (R-Alaska) and Landrieu (D-LA); H.R.798 by Rep. George Miller (D-CA); S.446 by Senator Barbara Boxer (D-CA); and S.532 by Senator Dianne Feinstein (D-CA).

It appears that because such massive amounts of money will go back to the oil-producing states, that support for the billion dollar land acquisition trust fund, in a variation of one of the pending bills, is likely to happen. The states of Alaska, Louisiana and, to a lesser degree, California anticipate these funds as a colossal "Grants-in-Aid" program.

Private property advocates and conservatives strongly object to these pending bills, and to President Clinton's "Lands Legacy Initiative," because they would all lead to the Federal government buying billions of dollars worth of private land. This would result in a "net property loss" to the private sector, reduced local property tax base, and a further erosion of the "Property Clause" in Article I, Section 8, clause 17 of the Constitution. None of these concerns seems to bother most of the relevant committee members, or many other members of Congress.

One source, however, of Congressional opposition to the Land Acquisition Program appears to be from the Appropriations Subcommittees, partly because of the necessity of setting aside over $2 billion in the Congressional Budget. Chairman Ralph Regula (R-OH), of the powerful Interior Appropriations Subcommittee, is questioning the source of the money to fund the program. Regula hates to see his influential subcommittee lose control over the doling out of several billion dollars of appropriations monies. The fate of the Land Acquisition Trust Fund is not yet finally decided, but eventual passage in some form seems likely.

4. Proposed Expansion of $5/day "Adventure Pass/ Parking Fee/FeeDemo" Program. The Parking Fee/Adventure Pass Program is also referred to as the "FeeDemo" Program, since it is a test or demonstration program of the U.S. Forest Service (USFS) in a limited number of National Forests—including all four National Forests in Southern California. The proposed expansion of the FeeDemo Program would be to other National Forests, all National Parks, Public Land administered by the Bureau of Land Management (BLM), and to all lands over which the Feds have any control. A program is now in the development stage called the "National Partnership" that will give certain chosen private companies the exclusive right to develop recreational facilities in National Forests, and on Public Lands.

Although the "FeeDemo" started as a USFS program, the Administration recently told the Senate Committee that Congress should make the program permanent for the four agencies—the USFS, the National Park Service, the Fish and Wildlife Service and BLM. The USFS still contends that there is popular citizen support for the program but serious support is difficult to find outside of the Forest Service itself—except for politicians and selected corporations that will profit from the grants of exclusive rights to develop recreational areas.

Opposition for the FeeDemo comes from an unusual coalition consisting of the environmental community, conservatives, and virtually all private residents, visitors and businesses in National Forest areas.

The American Recreation Coalition (ARC) is one of the very few private sector supporters of the program. ARC represents the companies that could be receiving recreational area development contracts.

Representative Mary Bono (R-CA) has introduced H.R. 786 that would eliminate the FeeDemo programs.

5. Hidden Law—Mining and Minerals Policy Act. Sometimes laws are passed by Congress, but then appear to be virtually forgotten. Such "hidden laws" are apparently seldom reviewed or followed by Congress or the Administrative Agencies charged with the task of carrying out laws passed by Congress.

Such is the fate of this "hidden law"—Section 21a of the U.S. Mining Law (referred to and cited as: "Title 30, U.S. Code, Section 21a" or "30 USC§ 21a"). Section 21a was added to the mining law by the 91st Congress in 1970 and signed into law by President Nixon effective December 31, 1970. Section 21a is entitled "The Mining and Minerals Policy Act of 1970," and is very short for any Congressional statute, only one page; and the pertinent part is:

"The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources..."

A terribly interesting provision is in the final paragraph of Section 21a, providing that:

"It shall be the responsibility of the Secretary of the Interior to carry out this policy when exercising his authority under such programs ... [T]he Secretary of the Interior shall include in his annual report to the Congress a report on the state of the domestic mining, minerals and mineral reclamation industries...together with such recommendations for legislative programs as may be necessary to implement the policy of this Act"

The Mining and Mineral Policy Act (30 UCS §21a) must have truly been "hidden" from the Honorable Secretary of the Interior, from Congress and from the public.

Conclusion

Interior Secretary Babbitt is relentlessly pursuing his proposed revision of the "3809 Regulations"—submit your comments by May 10, and ask for a further extension of the comment period. The President and other Executive Branch administrators continue to parry with Congress over various power plays, and over the doctrine of separation of powers.

Several, or many, confusing political questions and quandries of today appear to be answered by following the advice of Deep throat to Woodward and Bernstein in their Watergate escapades—"Follow the money!" The members of Congress from Alaska and Louisiana will divert hundreds of millions of dollars back to their states under the proposed "Billion Dollar Land Acquisition Trust Fund" proposals. On the "FeeDemo Program," and its proposed expansion, the only substantial private sector support comes from the large recreation companies that stand to cash in on the upcoming lucrative recreation area development contracts and franchises on our "pristine" Public Lands.

Keep your members of Congress fully informed of your views and opinions. Also let them be known to the administrators involved, and to the chairmen and members of the relevant Congressional committees.

Addresses and telephone numbers of members of Congress are as follows (send letters and copies to their local offices):

Senator (fill in the blank)
U.S. Senate
Washington, D.C. 20510
(202) 224-3121

Representative (fill in the blank)
U.S. House of Representatives
Washington, D.C. 20515
(202) 224-3121