April 11, 2018

One politician should not have unilateral authority over the use of 640 million acres of public land

By Jeffrey W. McCoy Attorney

Today, PLF filed a brief on behalf of Gregory Yount, a self-employed prospector and miner, that asks the Supreme Court to hear two cases involving the use of federal public land. At issue is one section of the Federal Land Policy and Management Act (FLPMA), a 1976 law that (like its name implies) governs management of the 640 million acres of public land in the United States.

One portion of the Act allows the Interior Secretary to withdraw, or prevent certain uses of, federal land. With this authority, the Secretary can outlaw uses like recreation, grazing, timber production, and mining on public lands.

With such a great power at stake, you would think that Congress would want to prevent the Interior Secretary from unilaterally and haphazardly outlawing people from using public lands. And you would be right. When the Secretary prevents use on 5,000 or more acres of land, FLPMA allows both houses of Congress to overturn the decision if they pass a joint resolution of disapproval. Unfortunately, this mechanism intended to check the Secretary’s power is unconstitutional.

The Presentment Clause of the Constitution requires that all legislation passed by Congress be submitted to the President for his signature or veto. FLPMA allows Congress to reopen land closed by the Secretary, in effect passing legislation on the use of public lands, without the President’s approval. As a result, this “legislative veto” is unconstitutional and, not surprisingly, the Supreme Court has struck down similar vetos in other acts of Congress.

But how does the unconstitutional legislative veto in FLPMA affect the Secretary’s power to prevent uses of the public lands? That is the question PLF has asked the Supreme Court to answer.

The Constitution gives Congress the power to manage public lands. As such, Congress did not have to give the Interior Secretary any authority to withdraw public lands. In fact, it did not have to give the Interior Secretary any authority over the public lands at all.

In passing FLPMA, Congress decided to delegate some authority to the Interior Secretary to make federal land management decisions. But Congress recognized that some delegations of authority, like the withdrawal authority, were so broad that it needed some check on the use of that authority. It is likely that Congress would not have given the Secretary the authority to withdraw large portions of land without some means to overturn the decision.

Despite Congress’ clear intent to exercise ultimate authority over land withdrawals, the district court and the Ninth Circuit held that only the legislative veto is invalid, leaving in place the Secretary’s ability to restrict land access at a whim. Congress should be the body to decide whether or not it wants to delegate this authority to the executive branch. Instead, the courts made that decision, resulting in an unintended delegation of unchecked power from the legislative to the executive branch.

The Supreme Court now has an opportunity to correct the Ninth Circuit’s mistake.  Hopefully, the Court takes it.

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