CONTENTS Hayworth, Hon. J.D., a Representative in Congress from the State of Arizona, prepared statement of Romero-Barceló, Hon. Carlos, a Delegate in Congress from Puerto Rico JOINT OVERSIGHT HEARING ON SECRETARIAL POWERS UNDER THE FEDERAL LAND POLICY AND MANAGEMENT ACT OF 1976: EXCESSIVE USE OF SECTION 204 WITHDRAWAL AUTHORITY BY THE CLINTON ADMINISTRATION TUESDAY, MARCH 23, 1999 HOUSE OF REPRESENTATIVES, COMMITTEE ON RESOURCES, SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES, Washington, DC. The Subcommittees met, pursuant to call, at 10 a.m., in Room 1324, Longworth House Office Building, Hon. Barbara Cubin and Hon. James V. Hansen, Co-Chairmen, presiding. STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH Mr. HANSEN. The meeting will come to order. Good morning. Today, we commence this joint hearing of the Subcommittee on National Parks and Public Lands and the Subcommittee on Energy and Mineral Resources to discuss withdrawals under the Federal Land Policy and Management Act. We thank our witnesses for joining us today. We look forward to hearing from you. Executive withdrawals have a long history. During the past hundred years or so, much of the public domain was open to entry under various public land laws, including the Homestead Act, the Desert Lands Act, the General Mining Law, the Stock Raising Act, et cetera. Withdrawals have been used many times to remove areas of the public domain from entry under these laws. I will not go into the extensive history of pre-FLPMA withdrawals, except to say that one of the main reasons cited by supporters for the passage of FLPMA was to rein in Executive withdrawals. Congress felt that the Executive was usurping Congressional power over the public lands and they intended to take it back. FLPMA intended to significantly limit Executive withdrawal authority and, in particular, withdrawals of over 5,000 acres. The Secretary of the Interior could still make a withdrawal of over 5,000 acres, but the withdrawal would be of limited duration, the Secretary would be subject to strict reporting requirements, and the withdrawal would cease if Congress passed a resolution of disapproval. This was a pretty good compromise. It allowed the Secretary to continue to make withdrawals as needed, but Congress maintained significant power to restrict the Secretary. Unfortunately, there were a couple of problems that Congress did not anticipate. First, Section 204 of FLPMA had a provision that allowed the Secretary to "segregate" land for two years while the Secretary decided whether or not to go through with a full-blown withdrawal. The reporting requirements, size limitations, and Congressional veto provisions did not apply to these segregations. This allowed the Secretary to completely avoid the withdrawal criteria. All he had to do was publish a notice in the Federal Register every two years stating that he was considering a withdrawal, and he could effect a de-facto withdrawal while avoiding any Congressional oversight. Second, the Supreme Court, in the case of INS v. Chadha, decided that legislative vetoes were unconstitutional. Thus, the provision of FLPMA that allows the Congress to override a withdrawal with a joint resolution is useless. Now the only effective way Congress has to exercise oversight over withdrawals is to pass legislation and then get the necessary two-thirds vote to override a potential Presidential veto. The Shivwits Plateau maneuver is a good example of how FLPMA is not working to prevent Executive abuse of withdrawal powers. The FLPMA and Antiquities Act withdrawal powers are being used to force Congress' hand. We have been told that the Administration will wait for Congress to create the National Monument on the Shivwits Plateau through legislation; however, the threat of a Presidential Proclamation gives Congress limited bargaining room. The idea behind the Antiquities law and the FLPMA withdrawal language was to provide emergency protections only until Congress had the ability to act. These provisions were not to be used as a hammer over the heads of local citizens, state delegations, or Congress as a whole. We are not here, though, to talk about whether National Monuments are good or bad, although I might point out that the evidence does suggest that making a pristine and untrammeled area into a national monument is probably counterproductive. Nor are we here today to talk about the mining law. That debate has been going on ad nauseam for the last 50 years, and we do not have the time to get into that here. What we are here to talk about is the balance of power between Congress and the Executive Branch. Has Congress delegated too much of its constitutionally granted powers over the public lands? Has the Executive Branch overstepped its authority? In light of the Chadha decision, is there a way to restore the original intent of FLPMA to rein in Executive withdrawal powers? The Constitution gives the Congress the power over the public lands. Maybe it is time that we take some of that power back. FLPMA tried one way and we found out that it would not work. Now we have to find another way. Overall, FLPMA is a very good law. But no legislation that we pass around here is perfect, and almost all of it needs some fine-tuning every once in a while. It is time to fine-tune FLPMA to restore the original Congressional intent to retain power over our public lands. I appreciate Secretary Babbitt being with us today, and we look forward to hearing from him. I thank Chairwoman Cubin for her willingness to be here and conduct part of this hearing. [The prepared statement of Mr. Hansen follows:] STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH Good morning, today we commence this joint hearing of the Subcommittee on National Parks and Public Lands and the Subcommittee on Energy and Mineral Resources to discuss withdrawals under the Federal Land Policy and Management Act. We thank our witnesses for joining us today. We look forward to hearing from you. Executive withdrawals have a long history. During the past hundred years or so much of the public domain was open to entry under various public land laws, including the Homestead Act, the Desert Lands Act, the General Mining Law, the Stock Raising Act, etc. Withdrawals have been used many times to remove areas of the public domain from entry under these laws. I will not go into the extensive history of pre-FLPMA withdrawals, except to say that one of the main reasons sited by supporters for the passage of FLPMA was to reign-in executive withdrawals. Congress felt that the executive was usurping Congressional power over the public lands and they intended to take it back. FLPMA intended to significantly limit executive withdrawal authority and in particular, withdrawals of over 5,000 acres. The Secretary of the Interior could still make a withdrawal of over 5,000 acres, but the withdrawal would be of limited duration, the Secretary would be subject to strict reporting requirements, and the withdrawal would cease if Congress passed a resolution of disapproval. This was a pretty good compromise. It allowed the Secretary to continue to make withdrawals as needed, but Congress maintained significant power to restrict the Secretary. Unfortunately, there were a couple of problems that Congress did not anticipate: First, section 204 of FLPMA had a provision that allowed the Secretary to "segregate" land for 2 years while the Secretary decided whether or not to go through with a full blown withdrawal. The reporting requirements, size limitations, and Congressional veto provisions did not apply to these "segregations." This allowed the Secretary to completely avoid the withdrawal criteria. All he had to do was publish a notice in the Federal Register every two years stating that he was considering a withdrawal, and he could effect a de-facto withdrawal while avoiding any Congressional oversight. Second, the Supreme Court, in the case INS v. Chadha, decided that legislative vetoes were unconstitutional. Thus the provision of FLPMA that allows the Congress to override a withdrawal with a joint resolution is useless. Now the only effective way Congress has to exercise oversight over withdrawals is to pass legislation and then get the necessary 2/3rds vote to override a presidential veto. The Shivwits Plateau maneuver is a good example of how FLPMA is not working to prevent executive abuse of withdrawal powers. The FLPMA and Antiquities Act withdrawal powers are being used to force Congress's hand. We have been told that the Administration will wait for Congress to create the National Monument on the Shivwits Plateau through legislation; however, the threat of a Presidential proclamation gives Congress limited bargaining room. The idea behind the Antiquities law and the FLPMA withdrawal language was to provide emergency protections only until Congress had the ability to act. These provisions were not to be used as a hammer over the heads of local citizens, state delegations, or Congress as a whole. We are not here, though, to talk about whether National Monuments are good or bad-although I might point out that the evidence does suggest that making a pristine and untrammeled area into a National Monument is counterproductive. Nor are we here today to talk about the mining law. That debate has been going on ad nauseam for the last 50 years and we do not have the time to get into that here. What we are here to talk about is the balance of power between Congress and the Executive Branch. Has Congress delegated too much of its constitutionally granted powers over the public lands? Has the Executive Branch overstepped its authority? In light of the Chadha decision is there a way to restore the original intent of FLPMA to reign in Executive withdrawal powers? The Constitution gives the Congress the power over the public lands. Maybe it is time that we take some of that power back. FLPMA tried one way and we found out that it would not work. Now we have to find another way. Overall, FLPMA is a very good law. But no legislation that we pass around here is perfect, and almost |