[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]





SECRETARIAL POWERS UNDER THE FEDERAL LAND POLICY AND MANAGEMENT ACT OF 
1976: EXCESSIVE USE OF SECTION 204 WITHDRAWAL AUTHORITY BY THE CLINTON 
                             ADMINISTRATION

=======================================================================

                        JOINT OVERSIGHT HEARING

                               before the

                     SUBCOMMITTEE ON NATIONAL PARKS
                            AND PUBLIC LANDS

                                  and

                         SUBCOMMITTEE ON ENERGY
                         AND MINERAL RESOURCES

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                     MARCH 23, 1999, WASHINGTON, DC

                               __________

                           Serial No. 106-17

                               __________

           Printed for the use of the Committee on Resources

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house
                                   or
           Committee address: http://www.house.gov/resources


                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
56-510                     WASHINGTON : 1999


                                 ______


                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                NICK J. RAHALL II, West Virginia
JIM SAXTON, New Jersey               BRUCE F. VENTO, Minnesota
ELTON GALLEGLY, California           DALE E. KILDEE, Michigan
JOHN J. DUNCAN, Jr., Tennessee       PETER A. DeFAZIO, Oregon
JOEL HEFLEY, Colorado                ENI F.H. FALEOMAVAEGA, American 
JOHN T. DOOLITTLE, California            Samoa
WAYNE T. GILCHREST, Maryland         NEIL ABERCROMBIE, Hawaii
KEN CALVERT, California              SOLOMON P. ORTIZ, Texas
RICHARD W. POMBO, California         OWEN B. PICKETT, Virginia
BARBARA CUBIN, Wyoming               FRANK PALLONE, Jr., New Jersey
HELEN CHENOWETH, Idaho               CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas   PATRICK J. KENNEDY, Rhode Island
CHRIS CANNON, Utah                   ADAM SMITH, Washington
KEVIN BRADY, Texas                   WILLIAM D. DELAHUNT, Massachusetts
JOHN PETERSON, Pennsylvania          CHRIS JOHN, Louisiana
RICK HILL, Montana                   DONNA CHRISTIAN-CHRISTENSEN, 
BOB SCHAFFER, Colorado                   Virgin Islands
JIM GIBBONS, Nevada                  RON KIND, Wisconsin
MARK E. SOUDER, Indiana              JAY INSLEE, Washington
GREG WALDEN, Oregon                  GRACE F. NAPOLITANO, California
DON SHERWOOD, Pennsylvania           TOM UDALL, New Mexico
ROBIN HAYES, North Carolina          MARK UDALL, Colorado
MIKE SIMPSON, Idaho                  JOSEPH CROWLEY, New York
THOMAS G. TANCREDO, Colorado

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director
                                 ------                                

            Subcommittee on National Parks and Public Lands

                    JAMES V. HANSEN, Utah, Chairman
ELTON, GALLEGLY, California          CARLOS A. ROMERO-BARCELO, Puerto 
JOHN J. DUNCAN, Jr., Tennessee           Rico
JOEL HEFLEY, Colorado                NICK J. RAHALL II, West Virginia
RICHARD W. POMBO, California         BRUCE F. VENTO, Minnesota
GEORGE P. RADANOVICH, California     DALE E. KILDEE, Michigan
WALTER B. JONES, Jr., North          DONNA CHRISTIAN-CHRISTENSEN, 
    Carolina                             Virgin Islands
CHRIS CANNON, Utah                   RON KIND, Wisconsin
RICK HILL, Montana                   JAY INSLEE, Washington
JIM GIBBONS, Nevada                  TOM UDALL, New Mexico
MARK E. SOUDER, Indiana              MARK UDALL, Colorado
DON SHERWOOD, Pennsylvania           JOSEPH CROWLEY, New York
                        Allen Freemyer, Counsel
                     Todd Hull, Professional Staff
                    Liz Birnbaum, Democratic Counsel
                   Gary Griffith, Professional Staff
              Subcommittee on Energy and Mineral Resources

                    BARBARA CUBIN, Wyoming, Chairman
W.J. (BILLY) TAUZIN, Louisiana       ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas   NICK J. RAHALL II, West Virginia
CHRIS CANNON, Utah                   ENI F.H. FALEOMAVAEGA, American 
KEVIN BRADY, Texas                       Samoa
BOB SCHAFFER, Colorado               SOLOMON P. ORTIZ, Texas
JIM GIBBONS, Nevada                  CALVIN M. DOOLEY, California
GREG WALDEN, Oregon                  PATRICK J. KENNEDY, Rhode Island
THOMAS G. TANCREDO, Colorado         CHRIS JOHN, Louisiana
                                     JAY INSLEE, Washington
                                     ------ ------
                    Bill Condit, Professional Staff
                     Mike Henry, Professional Staff
                  Deborah Lanzone, Professional Staff


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held March 23, 1999......................................     1

Statements of Members:
    Christian-Christensen, Hon. Donna M., a Delegate in Congress 
      from the Virgin Islands....................................     9
        Prepared statement of....................................    10
    Cubin, Hon. Barbara, a Representative in Congress from the 
      State of Wyoming...........................................     4
        Prepared statement of....................................     5
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     1
        Prepared statement of....................................     3
    Hayworth, Hon. J.D., a Representative in Congress from the 
      State of Arizona, prepared statement of....................    92
    Romero-Barcelo, Hon. Carlos, a Delegate in Congress from 
      Puerto Rico................................................     6
        Prepared statement of....................................     7
    Shadegg, Hon. John, a Representative in Congress from the 
      State of Arizona...........................................     8
        Prepared statement of....................................    96

Statements of witnesses:
    Babbitt, Hon. Bruce, United States Secretary of the Interior.    10
        Prepared statement of....................................    44
    Getches, David H., Raphael J. Moses Professor of Natural 
      Resources Law, University of Colorado Law School...........    34
        Prepared statement of....................................    91
    Lehmann, Ernest K., North Central Mineral Ventures, 
      Minneapolis, Minnesota.....................................    31
        Prepared statement of....................................    46

Additional material supplied:
    Natural Resources Journal, the University of New Mexico 
      School of Law..............................................   117

 
 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,    
           Subcommittee on National Parks and Public Lands,
                                                    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 
withdraw-

als, 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 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 the Secretary taking the time to be with us 
today and I thank Chairwoman Cubin for her willingness to 
conduct this hearing.

    Mr. Hansen. And now I will turn to Chairman Cubin for 
whatever opening statement she may have.

 STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF WYOMING

    Mrs. Cubin. Thank you, Chairman Hansen, for agreeing to 
hold this joint oversight hearing today. I view your 
Subcommittee as the ``FLPMA Subcommittee'' of the House, but 
the Energy and Mineral Resources panel is involved and 
concerned because the general mining laws are within our 
purview. As your diligent efforts during the 105th Congress to 
amend the Antiquities Act attest, you and I are believers that 
Congress must have a greater role in the management of our 
public lands.
    Indeed, a majority of the House so spoke when the question 
was put to them in the form of a bill to limit the President's 
authority to withdraw huge tracts of land under that Act.
    And why was that measure passed by the House, when only a 
relatively few Members represent public lands dominated 
districts? Because Article IV, Section 3, Clause 2 of the 
Constitution makes quite clear ``The Congress shall have Power 
to dispose of and make all needful Rules and Regulations 
respecting the Territory or other Property belonging to the 
Untied States.'' I do not know what could be more plain.
    Mr. Chairman, perhaps it is time for us to take back our 
public lands prerogatives which previous Congress have allowed 
the Executive Branch to slowly, and sometimes not so slowly, 
usurp. I am quite sure the Secretary is ready and able to make 
a convincing case for the need for the two latest proposed 
withdrawals encompassing more than 1 million acres in Arizona 
and Montana, which have precipitated this oversight.
    But, likewise, I am certain the Administration is capable 
of drafting legislation to effect the same end, and to have it 
introduced upon request, heard, marked-up, and voted upon in 
the normal course of business.
    In other words, because the Supreme Court has likely undone 
the provision established by the 94th Congress to rein in 
Secretarial withdrawals via a Congressional resolution of 
disapproval, I believe we should examine amending FLPMA to 
restore the balance lost by the Chadha decision.
    Currently, if Members oppose the size, duration or other 
parameters of a proposed FLPMA withdrawal, it would take a two-
thirds majority vote in reality in both chambers to pass a bill 
of disagreement over the President's veto. But, why not place 
the burden on the Executive Branch to seek a simple majority in 
favor of such action in order to formalize a proposed 
withdrawal in legislation?
    Congress could still choose to grant relatively unfettered 
segregative powers for withdrawal proposals smaller than 5,000 
acres or some other threshold size, or for durations less than 
three years or some other time period, to avoid micro-managing 
the Secretary in his stewardship of the public lands. By my way 
of thinking, such an amendment to would go a long way toward 
restoring our proper role, especially if other administrative 
withdrawal authorities were similarly restrained.
    The passage of your Antiquities Act amendments by the House 
in 1997, and also the bill to protect our sovereignty from 
international designations lacking Congressional sanction, are 
signs that the Congress is ready to assert our proper role on 
public lands. The Founding Fathers gave us an important job to 
do to make all needful rules and regulations respecting the 
public lands. Perhaps we should continue the task by amending 
the organic Act for the Nation's biggest landlord, the Bureau 
of Land Management. Thank you, Mr. Chairman.
    [The prepared statement of Ms. Cubin follows:]

Statement of Hon. Barbara Cubin, a Representative in Congress from the 
                            State of Wyoming

    Thank you, Chairman Hansen for agreeing to hold this joint 
oversight hearing today. I view your Subcommittee as the 
``FLPMA subcommittee'' of the House, but the Energy & Mineral 
Resources panel is involved and concerned because the general 
mining laws are within our purview. As your diligent efforts 
during the 105th Congress to amend the Antiquities Act attest, 
you and I are believers that Congress must have a greater role 
in the management of our public lands. Indeed, a majority of 
the House so spoke when the question was put to them in the 
form of a bill to limit the President's authority to withdraw 
huge tracts of land under that Act.
    And why was that measure passed by the House, when only a 
relative few Members represent public lands dominated 
districts? Because, Article IV, Section 3, Clause 2 of the 
Constitution makes quite clear ``The Congress shall have Power 
to dispose of and make all needful Rules and Regulations 
respecting the Territory or other Property belonging to the 
United States;'' What could be more plain?
    Mr. Chairman, perhaps it is time for us to take back our 
public lands prerogatives which previous Congresses have 
allowed the Executive branch to slowly (or not so slowly) 
usurp. I am quite sure the Secretary is ready and able to make 
a convincing case for the need for the two latest proposed 
withdrawals encompassing more than one million acres in Arizona 
and Montana, which have precipitated this oversight. But, I am 
likewise certain the Administration is capable of drafting 
legislation to effect the same end, and to have it introduced 
upon request, heard, marked-up and voted upon in the normal 
course of business.
    In other words, because the Supreme Court has likely undone 
the provision established by the 94th Congress to rein in 
Secretarial withdrawals via a Congressional resolution of 
disapproval, I believe we should examine amending FLPMA to 
restore the balance lost by the Chadha decision. Currently, if 
Members oppose the size, duration or other parameters of a 
proposed FLPMA withdrawal, it would take a two-thirds majority 
vote in both chambers to pass a bill of disagreement over the 
President's veto. But, why not place the burden on the 
Executive branch to seek a simple majority in favor of such 
action in order to formalize a proposed withdrawal in 
legislation?
    Congress could still choose to grant relatively unfettered 
segregative powers for withdrawal proposals smaller than 5,000 
acres or some other threshold size, or for durations less than 
three years or some other time period, to avoid ``micro-
managing'' the Secretary in his stewardship of the public 
lands. By my way of thinking, such an amendment to FLPMA would 
go a long way toward restoring our proper role, especially if 
other administrative withdrawal authorities were similarly 
restrained.
    The passage of your Antiquities Act amendments by the House 
in 1997, and also the bill to protect our sovereignty from 
international designations lacking Congressional sanction, are 
signs the Congress is ready to assert our proper role on public 
lands. The Founding Fathers gave us an important job to do to 
make all needful rules and regulations respecting the public 
lands. Perhaps we should continue the task by amending the 
organic Act for the nation's biggest landlord, the Bureau of 
Land Management.

    Mr. Hansen. Thank you.
    The gentleman from Puerto Rico.

STATEMENT OF HON. CARLOS ROMERO-BARCELO, A DELEGATE IN CONGRESS 
                        FROM PUERTO RICO

    Mr. Romero-Barcelo. Thank you, Mr. Chairman. I am pleased 
to join my colleagues in welcoming Secretary of the Interior, 
Bruce Babbitt, a former governor and colleague of mine when I 
was also Governor, and two private citizens to testify on 
Secretarial powers under the Federal Land Policy and Management 
Act of 1976.
    The Majority asserts that Secretary Babbitt has abused his 
authority to close public lands by segregating more than 1 
million acres of public lands in Arizona and Montana during the 
last four months.
    Additionally, the Majority objects to the withdrawal of 
almost 20,000 acres in the Sweet Grass Hills of north-central 
Montana. They also dispute the need to withdraw more than 
26,000 acres of Gallatin National Forest lands in Montana.
    As we consider the Secretary's actions, we should recall 
that in enacting FLPMA in 1976, Congress specifically provided 
the withdrawal authority to rectify the President's ``implied 
authority'' to close public lands to uses such as mining or 
grazing. We are fortunate that Professor David Getches, the 
Raphael J. Moses Professor of Natural Resources Law at the 
University of Colorado School of Law, was available on short 
notice to join us today as he is a preeminent expert on public 
land laws.
    Congress repealed approximately 29 other statutes allowing 
for withdrawals, but did not repeal the 1872 Mining Law. Thus, 
the ability to withdraw public lands has remained necessary in 
order to preserve the public's interest. A recent example of 
Secretary Babbitt's use of FLPMA's withdrawal authority, which 
we will explore during the hearing, can be seen in the 
situation that arose in the Sweet Grass Hills area of north-
central Montana in 1993.
    While the Majority may disagree with the Secretary's 
action, Secretary Babbitt made the withdrawal in response to 
strong public opposition of the proposed mine. A coalition of 
ranchers, Native Americans and environmentalists said 
exploration and eventual development would destroy the range's 
water quality and Native American religious, cultural and 
historic values.
    The ranchers feared that cyanide used to leach gold would 
contaminate the water table. Several tribes consider the Sweet 
Grass Hills area to be a spiritual site. They want the hills 
protected because they have been a source of visions and sacred 
ceremonial songs. According to a BLM report based on oral 
information from the late Art Raining Bird, the Sweet Grass 
Hills, and specifically Devil's Chimney Cave, ``is where the 
creator decided the future of the earth and of man. The creator 
will return here at the end of the world and reawaken the 
spirits of those who have left.''
    Instead of objecting to the Secretary's legitimate use of 
the withdrawal authority, this Committee should be engaged in a 
legislative debate on the specifics of much needed mining law 
reform. If mining claims staked on public lands did not convey 
property rights to the claimants, as the patenting provisions 
of the 1872 Mining Law do, then perhaps the Secretary would not 
find it as necessary to segregate or withdraw public lands.
    There are four bills now pending before the Committee, 
identical to bills introduced during the last Congress, which 
have yet to receive even a hearing in either the 105th or the 
106th Congress. We would be remiss in our duties if we continue 
to avoid the debate and instead question the Secretary for 
carrying out his legal mandate to protect the public lands.
    I would like to add that the right to withdrawal of the 
lands or authority to withdraw the lands, helps to protect the 
lands. Once the land has been used for mining, there is nothing 
that can be done. No remedy whatsoever. The land has already 
been devastated as far as future use of that land other than 
for mining.
    The environmental effect that it will have on other lands, 
the leaching that will occur in the mining process, is 
irreversible. That has happened. By withdrawing the lands, you 
are saving the lands for future use.
    Now, if that withdrawal is objected to, Congress does have 
the authority to overrule that withdrawal and to set it aside, 
but if we take that authority away from the Secretary of the 
Interior, there is no way that that can be prevented, and once 
it occurs, there is no way of saving the land. So, I just want 
to say that if we go on to destroy the authority or undermine 
the authority, we will be allowing land to be devastated for 
future generations.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Romero-Barcelo follows:]

 Statement of Hon. Carlos Romero-Barcelo, a Delegate in Congress from 
                      the Territory of Puerto Rico

    Today we are pleased to join my colleagues in welcoming 
Secretary of the Interior, Bruce Babbitt, and two private 
citizens to testify on Secretarial powers under the Federal 
Land Policy & Management Act of 1976.
    The Majority asserts that Secretary Babbitt has abused his 
authority to close public lands by segregating more than one 
million acres of public lands in Arizona and Montana during the 
last 4 months. Additionally, the Majority objects to the 
withdrawal of almost 20,000 acres in the Sweet Grass Hills of 
north-central Montana. They also dispute the need to withdraw 
more than 26,000 acres of Gallatin National Forest lands in 
Montana.
    As we consider the Secretary's actions, we should recall 
that in enacting FLPMA in 1976, Congress specifically provided 
the withdrawal authority to rectify the President's ``implied 
authority'' to close public lands to uses such as mining or 
grazing. We are fortunate that Professor David Getches, the 
Raphael J. Moses Professor of Natural Resources Law at the 
University of Colorado School of Law, was available on short 
notice to join us today as he is a preeminent expert on public 
land laws.
    Congress repealed approximately 29 other statutes allowing 
for withdrawals but, did not repeal the 1872 Mining Law. Thus, 
the ability to withdraw public lands has remained necessary in 
order to preserve the public's interest. A recent example of 
Secretary Babbitt's use of FLPMA's withdrawal authority--which 
we will explore during the hearing--can be seen in the 
situation that arose in the Sweetgrass Hills area of north-
central Montana in 1993.
    While the Majority may disagree with the Secretary's 
action, Secretary Babbitt made the withdrawal in response to 
strong public opposition of the proposed mine. A coalition of 
ranchers, Native Americans and environmentalists said 
exploration and eventual development would destroy the range's 
water quality and Native American religious, cultural and 
historic values. The ranchers feared that cyanide used to leach 
gold would contaminate the water table. Several tribes consider 
the Sweetgrass Hills area to be a spiritual site. They want the 
hills protected because they have been a source of visions and 
sacred ceremonial songs. According to a BLM report based on 
oral information from the late Art Raining Bird, the Sweet 
Grass Hills, and, specifically, Devils Chimney Cave, ``is where 
the creator decided the future of the earth and of man. The 
creator will return here at the end of the world and reawaken 
the spirits of those who have left.''
    Instead of objecting to the Secretary's legitimate use of 
the withdrawal authority, this Committee should be engaged in a 
legislative debate on the specifics of much needed Mining Law 
Reform. If mining claims staked on public lands did not convey 
property rights to the claimants, as the patenting provisions 
of the 1872 Mining Law do, then perhaps the Secretary would not 
find it as necessary to segregate or withdraw public lands. 
There are four bills now pending before the Committee, 
identical to bills introduced during the last Congress, which 
have yet to receive even a hearing in either the 105th or 106th 
Congress. We would be remiss in our duties if we continue to 
avoid that debate and instead harass the Secretary for carrying 
out his legal mandate to protect the public lands.

    Mr. Hansen. Thank the gentleman from Puerto Rico.
    The gentleman from Arizona, Mr. Shadegg, is listed as one 
of our witnesses. Besides the statement that you will make, do 
you have an opening statement now, Mr. Shadegg? I turn to you, 
sir.

 STATEMENT OF HON. JOHN SHADEGG, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF ARIZONA

    Mr. Shadegg. Thank you, Mr. Chairman.
    First, let me thank you for allowing me to participate in 
this hearing. No longer being a Member of the Park 
Subcommittee, I very much appreciate the opportunity to be able 
to participate today, as this issue is of great concern to me, 
to my own constituents in Arizona, and to all of the people of 
Arizona. I also want to, of course, welcome my fellow Arizonan, 
I believe we are both native Arizonans, and his counsel, Mr. 
Leshy, with whom I used to work on issues in the Arizona 
Legislature many, many years ago.
    I will keep my opening remarks brief, but I want to touch 
on the fundamental issue at least as this Subcommittee, which 
is not just the overall question of withdrawals, but then what 
would withdrawals lead to. In this particular instance, I have 
great concern about the Secretary's proposal to declare a 
national monument in the Arizona Strip area. I think it is very 
important to have a dialogue on this topic.
    I note that I have received input from a number of 
different people on this topic, including the Arizona 
Cattlemen's Association, Gail Griffin, the Arizona State 
Representative, whose legislative district includes this 
territory, as well as the Carol S. Anderson, Supervisor of the 
supervisorial district in Mohave County, which includes the 
area for the proposed monument.
    The point I want to make is that in each of these 
instances, the Cattlemen, the members of the State Legislature, 
and the members of the County Board of Supervisors, and the 
Board itself, who are expressing concern about this issue, are 
not expressing opposition to the creation of the monument. What 
they are expressing is concern about whether or not there will 
be adequate local input.
    And I think to his credit, the Secretary conducted a 
hearing a week ago today on this topic in Arizona. Regrettably, 
the hearing did not have a record, and the specific request of 
the Arizona Cattlemen's Association is that this issue be 
looked at and that public hearings be held, and they 
specifically suggest that before we move forward with such a 
proposal which they indeed may feel have some merit, they feel 
that there should be public hearings held in Kingman, Arizona, 
in Page, Arizona, in Fredonia, and also in St. George, Utah.
    It seems to me that these kinds of questions--and I have 
the same input from the Mohave County Board of Supervisors--
again, they see some advantage to this, though they have 
expressed an interest in a much smaller land mass than is 
currently being proposed. And I will have questions of the 
Secretary later as to the actual scope that is being proposed.
    I notice in his opening statement, I believe the number of 
acres that is discussed is 605,000 acres. There has been a 
proposal that it be expanded to over a million acres. And 
Mohave County is willing to express its support for some 
400,000 acres, with some conditions.
    And I think one of the questions before this Committee is, 
under what conditions and under what policies do we set aside 
land and put it under further restriction, and with what input 
from the public, because as Arizona goes through this process 
at this very moment, what I am hearing from all levels of 
government and from all citizens in the community, is not that 
they are unwilling to allow this type of designation to occur, 
not that they are opposed to the creation of a monument, not 
that they are opposed to the creation of further parks or other 
things which set aside land, they are concerned what will 
happen as a result of that, concerned about whether the land 
will become further abused by, for example, designation and, 
indeed, whether there will be an increase in tourism, an 
increase in damage to the land. But most of all, what they are 
concerned about, Mr. Chairman, is the right to have input.
    In that regard, they are specifically requesting that, if 
possible, this monument be considered for legislative creation 
rather than designation by the Secretary of Interior, and are 
specifically saying they do not want that to go forward without 
further public input.
    With that, Mr. Chairman, I would thank you for the 
opportunity to participate in this hearing. I would like to 
make unanimous consent request that the letter from Gail 
Griffin, State Representative; the letter from the Arizona 
Cattlemen's Association dated yesterday, and the testimony of 
Carol S. Anderson, Supervisor, District I, Mohave County Board 
of Supervisors, all be made a part of the record in this 
proceeding.
    Mr. Hansen. Without objection, so ordered.
    [The attachments to Mr. Shadegg's statement may be found at 
the end of the hearing.]
    Mr. Hansen. In the interest of time, does any other Member 
of the Committee have an opening statement? The gentlelady from 
the Virgin Islands.

STATEMENT OF HON. DONNA M. CHRISTIAN-CHRISTENSEN, A DELEGATE IN 
                CONGRESS FROM THE VIRGIN ISLANDS

    Mrs. Christian-Christensen. Thank you, Mr. Chairman, I will 
be brief.
    I want to welcome also Secretary Babbitt this morning for 
what I believe is your first visit with us this year, to this 
joint oversight hearing of the Subcommittees on Energy and 
Mineral Resources and National Parks and Public Lands on the 
Secretarial Powers under the Federal Land Policy and Management 
Act of 1976 as it relates to the use of the withdrawal 
authority under Section 204 of this Act by the Clinton 
Administration. I also want to welcome Mr. Lehmann and Mr. 
Getches.
    While I am mindful of the concerns expressed by my friends 
in the Majority as to the nature and justifications of various 
withdrawals by the Secretary, as well as any plans for similar 
withdrawals in the future, I am nevertheless satisfied that 
there are sufficient safeguards in FLPMA as well as in the 
necessity to withdraw public lands in order to preserve the 
public's interest. Several Congresses and the courts have 
upheld this authority.
    I want to thank Secretary Babbitt for his commitment to 
working with me and the Governor of the Virgin Islands to 
develop a legislative strategy for addressing some of the 
economic concerns of my district in the U.S. Virgin Islands, 
and also to thank him for his advocacy and his administration 
in protecting a sensitive natural resources around this country 
and the public lands of significance.
    I want to thank you, Mr. Chairman, Madam Chair, for holding 
this hearing today, and I look forward to the testimony of our 
witnesses.
    [The prepared statement of Ms. Christian-Christensen 
follows:]

    Statement of Hon. Donna M. Christian-Christensen, a Delegate in 
                    Congress from the Virgin Islands

    Thank you Mr. Chairman. I want to welcome Secretary 
Babbitt, for what I believe is his first visit with us this 
year, to this joint oversight hearing of the Subcommittees on 
Energy and Mineral Resources & National Parks and Public Lands 
on the Secretarial Powers under the Federal Land Policy & 
Management Act of 1976 (FLPMA) as it relates to the use of the 
withdrawal authority, under Sec. 204, of this Act by the 
Clinton Administration. I also welcome Mr. Lehman and Mr. 
Getches.
    While I am mindful of the concerns expressed by my friends 
in the Majority as to the nature and justifications of various 
withdrawals by Secretary Babbitt, as well as any plans for 
similar withdrawals in the future, I am nevertheless satisfied 
that there are sufficient safeguards in FLPMA, as well as in 
the necessity to withdraw public lands in order to preserve the 
public's interest. Several Congresses and the Courts have 
upheld this authority.
    I want to thank Secretary Babbitt for his commitment to 
working with me and the Governor of the Virgin Islands to 
develop a legislative strategy for addressing some of the 
economic concerns of my district, the U.S. Virgin Islands. 
Secretary Babbitt, responding to my invitation, traveled to the 
Virgin Islands in January to meet with Governor Turnbull and 
other local officials including myself and pledged his support, 
through the formation of a Federal/Virgin Islands Working 
Group, to the development of specific legislative proposals 
that will be designed to assist the islands in turning our 
struggling economy around. I thank him also for his advocacy 
and administration in protecting our sensitive natural 
resources and public lands of significance.
    I thank you Mr. Chairman for holding this hearing today and 
I look forward to hearing the testimony of the witnesses.

    Mr. Hansen. Thank you.
    Mr. Secretary, we are honored you could be with us today. 
We will turn the time to you, sir.

STATEMENT OF HON. BRUCE BABBITT, UNITED STATES SECRETARY OF THE 
                            INTERIOR

    Secretary Babbitt. Mr. Chairman, thank you. I very much 
appreciate the chance to join you in this discussion. As you 
suggested, Mr. Chairman, I guess we are not here to talk about 
history in great detail, but I want to offer a contrasting view 
of your characterization of the history of land withdrawals 
because I do not think there is any question that the use of 
this power by the President under the Antiquities Act and by 
the Secretary under other withdrawal powers has really 
redounded to the extraordinary benefit of the American people 
time and time and time again.
    Theodore Roosevelt, a Republican, began this process and 
his monuments, both literal and metaphorical, are all over the 
American West, visited by millions of Americans every year. The 
Executive power was used to establish Glacier Bay, Muir Woods 
in California, Solero National Monument in Arizona; Zion 
National Monument in Utah, to protect some of our finest 
national forests. It is a splendid, glittering record of 
protection of resources in the name of the American people.
    Now, among the resources that have been protected by the 
use of withdrawal powers is, of course, the Monument and now 
National Park, so dear to my own heart, and that is the Grand 
Canyon in Arizona. That extraordinary place was, in the first 
instance, reserved in part by a Republican President, Theodore 
Roosevelt, expanded by another Republican President, Herbert 
Hoover, expanded in the third instance by yet another 
President, Lyndon Johnson, adding Marble Canyon, a national 
monument now part of the park. So much for history. I would be 
happy to discuss and debate anyone, anywhere, at anytime, about 
the extraordinary history behind these powers that have been 
delegated by the United States Congress.
    In 1974, the Federal Land Policy and Management Act was 
passed, and since that time there have been two separate and 
distinct withdrawal powers. One resides in the President under 
the Antiquities Act of 1906, the other one that brings us here 
today is my withdrawal power under the Federal Land Policy and 
Management Act.
    Let me very briefly, Mr. Chairman, see if I can suggest 
both some of the issues and the extraordinary success that 
continues under this withdrawal power and, in conclusion, 
suggest that the balance between Congress, the Executive, and 
the public is working very well, indeed.
    First, a word about my initial experience with this 
statute. It came in 1993 in the Sweet Grass Hills of Montana, 
when then Congressman Williams invited me to come and have a 
look, and I felt that I owed an obligation to the people of 
Montana to do just that. So, I went out there one June day, and 
I went to Great Falls, and I flew up to Chester, Montana, and 
then took a tour of the Sweet Grass Hills, and then came back 
to a public meeting in Chester, Montana, where there were more 
people at the meeting than the entire population of Chester, 
Montana, which is the only community of any size within 
striking distance of the Sweet Grass Hills.
    What I heard that night was overwhelming public support for 
withdrawing the Sweet Grass Hills under a temporary segregation 
order for two years, for exactly the reasons summarized by 
Congressman Romero-Barcelo. The ranchers were all absolutely in 
favor.
    They saw their way of life being destroyed by the 
possibilities of cyanide in their water system, the disruption 
of the grazing lands around the Sweet Grass Hills. The Native 
Americans were there, and the citizens were there. And it was 
on the basis of that record that I made that withdrawal, which 
has now been extended into a 20-year withdrawal. It was done in 
the public interest with the consent of the citizens of 
Montana. And you are going to hear today, as I read the 
schedule, from a resident not of Montana, but a resident of 
Minneapolis, Minnesota, who is saying that this has interfered 
with his rights under the Mining Law.
    Well, I can tell you that this withdrawal does not 
interfere with his rights, whatever they may be, because these 
withdrawals are mandated under FLPMA and by our own internal 
procedures, to protect valid, existing rights.
    So, if it is my job to weigh the interests of the citizens 
of northern Montana, and Chester, Montana, and western Montana 
versus a mining claimant from Minneapolis, Minnesota, whose 
rights are in no way affected, I think the conclusion is quite 
clear.
    With respect to the Grand Canyon, I admit a certain deep 
interest and passion about this issue because I have spent much 
of my life in that national park, doing graduate work as a 
scientist in that national park, roaming it from one end to the 
other. I have always been struck by the fact that the 
northwestern quadrant of the Grand Canyon, from the rim back, 
has absolutely no protection of any kind. It was overlooked 
because not many people are aware that it is there.
    Congress came close to laying over some rim protection in 
1975, in the Grand Canyon Expansion Act, but for various 
reasons it was not done. So, there is a history here but, more 
importantly, this is the Grand Canyon. And I must tell you that 
the prospect of cheap leach mining being put onto the very rim 
of the Grand Canyon is something that I do not believe would 
ever be in the national interest. And that is the reason that I 
have raised this issue.
    Now, people may say, ``Well, that is never going to happen. 
I know you get excited about these things, Bruce Babbitt, but 
go out there and look. It is in great shape.'' Well, those were 
precisely the arguments that were made to Theodore Roosevelt 
against establishing the Grand Canyon. Prior to the 
establishment of the park, preceded by the monument at the 
south rim, as interest grew, the conmen and speculators showed 
up.
    They were led by an Arizonan, subsequently a United States 
Senator, a crook of the fist order named Ralph Cameron. He 
showed up, and for years asserted state mining claims on and in 
the Grand Canyon, principally on the south rim, for the express 
purpose of forcing all of the plans of the National Park 
Service and the Administration. He was finally ruled out by the 
Supreme Court of the United States, after litigation that 
consumed 20 years. It is that kind of fraud, and there is no 
other word for it, it is fraud, pure and simple, that has 
happened to the Grand Canyon, that led me to the conclusion 
that it was most appropriate to enter a segregation order.
    People say, ``Well, why did you enter the order without a 
public hearing?'' Well, I refer you to a former member of the 
other body, Mr. Cameron. His spiritual descendants would have 
been staking claims on the north rim of the Grand Canyon within 
24 hours after I had announced my interest.
    Now, if you think that is an overstatement, let me refer 
you to Yucca Mountain where prior to the segregation of Yucca 
Mountain in recent years for the Department of Energy, the 
speculators and conmen were in there staking claims under this 
relic called the Mining Law of 1870. The Department of Energy 
faced reality. They said, ``We cannot delay that proceeding for 
20 years while we litigate this kind of fraud.'' So, they 
bought those fraudulent claims out for $250,000.
    Now, don't you see what is happening? We are acquiescing in 
this kind of chicanery and then rewarding it out of necessity 
because of the failure of the Mining Law of 1872. Those are the 
facts.
    Now, let me remind you that after the two-year segregation 
from entry, I am required, in further exercise of my power, to 
go through a full NEPA process. The President is not, and that 
is his law. Talking today about my law, or your law and my law, 
how is that? My unilateral ability to withdraw without notice 
is limited to two years.
    Now, lastly, let me respond to Congressman Shadegg because 
I think his remarks deserve a thoughtful response. Of course we 
should have as much public process as possible. I began that 
last November with a well publicized trip across the region. It 
was followed up by hearings conducted by Chairman Hansen in St. 
George. I conducted a public meeting in Flagstaff last week. 
There were some 600 people there.
    In the course of that hearing, I made a commitment, which I 
am going to carry out in the next few weeks, to have a meeting 
on the Arizona Strip, at the Mt. Trumble Schoolhouse, with the 
permit holders on the Arizona Strip. We have made tentative 
plans. We have invited the entire Arizona Delegation to take a 
tour of the area on May 22nd, is the tentative date, and I am 
ready and willing to continue the public process.
    But the fact is that this is a good law, it works well. 
These two examples, including the Rocky Mountain Front, I 
think, illustrate the significance of the way this works for 
the benefit of the American people.
    Mr. Chairman, thank you. I would be happy to answer any 
questions.
    [The prepared statement of Secretary Babbitt may be found 
at the end of the hearing.]
    Mr. Hansen. Thank you, Mr. Secretary.
    I will recognize my colleagues for five minutes at a time, 
for any questions they may have of Secretary Babbitt, of 
course, starting with Chairwoman Cubin, from Wyoming.
    Mrs. Cubin. Thank you, Mr. Chairman. I appreciate your 
testimony, Mr. Secretary.
    I want to make the point that I do not think anyone wants 
to prevent either you as a Secretary, or any Secretary, from 
having the authority to make withdrawals, nor the President, 
but whether or not--and you made the point that the law has 
been used well, and that there have been benefits.
    I would say that some people might argue that point when it 
comes to Escalante and the particular lack of public input and 
consultation with the elected officials from the State of Utah, 
but whether or not the set-aside is good and proper, in my 
opinion, is not necessarily the issue because in our society, 
the end does not justify the means.
    Take vigilantism, for example. What one person would 
consider a good set-aside, a successful one, might considered a 
failure by somebody else.
    So, in view of the words in the Constitution that 
``Congress shall have the power to dispose of and make all 
needful rules and regulations respecting property belonging to 
the United States,'' that is very simple. I realize that the 
Congress has given up that authority, and that that has been 
affirmed by the Supreme Court. I do realize that. But I think 
that just to respect the Constitution, the Administration ought 
to go through the proper reasonable processes of dealing with 
the public before making these set-asides. And in some cases, 
you mentioned in Montana that has been done; in other cases, it 
has not been done, like in Utah.
    So, what I would like to know is what would be wrong with 
changing FLPMA to have the Administration put forward a 
proposal that could be introduced as legislation, that would 
require only a majority to override if the public decided it 
was bad policy, because whether you make a set-aside as the 
Secretary or whether the President does the withdrawal and the 
set-aside, in reality, it takes two-thirds majority to override 
that because if the Congress overrode it, the President would 
veto it. I mean, obviously, you, as Secretary--the generic 
``you,'' if there is such a thing--what would be wrong with 
amending FLPMA to accomplish that?
    Secretary Babbitt. Well, in a word, ``if it ain't broke, 
don't fix it.'' Now, let me tell you why it ``ain't'' broke, if 
I may.
    Mrs. Cubin. Will you use Escalante as an example of why it 
ain't broke?
    Secretary Babbitt. That is not a FLPMA issue, that is an 
Antiquities Act issue.
    Mrs. Cubin. But it is still a withdrawal of land without 
public input.
    Secretary Babbitt. Well, there are two separate issues, and 
I guess I would be willing to respond to either one. One is 
FLPMA. That is the stated purpose of this hearing, and I would 
just say that with respect to FLPMA, there is no lack of 
process because in order to do a withdrawal beyond an emergency 
segregation, there must be a full National Environmental Policy 
Act process. We did it in the Sweet Grass Hills.
    Mrs. Cubin. That is if you make a withdrawal.
    Secretary Babbitt. Pardon me?
    Mrs. Cubin. That is a limited withdrawal.
    Secretary Babbitt. No, that is for a FLPMA withdrawal, it 
is a 20-year withdrawal. So, I do not see the purpose of this 
hearing with respect to FLPMA because I believe the existing 
law is chock-a-block full of process with plenty of opportunity 
for the Congress to haul me up here and two years to make a 
decision as to whether or not a proposal should be amended or 
otherwise changed.
    Mrs. Cubin. I hate it that my time is about up because I 
really do have quite a few questions I wanted to ask, but here 
is one. You cited the abuses of the Mining Law as one of the 
reasons that this was important and FLPMA did not need to be 
changed. Well, our full Committee Chairman wrote to you twice 
in 1997--I have the letters here with me--asking that either 
you send up revisions of the 1872 Mining Law that you wished to 
see enacted, or sit down with him and try to negotiate a 
compromise between the Congress and the Administration of this 
long contentious issue. And I am not aware of any response to 
either request.
    So, if that is truly what you want to do, when do you 
intend to respond, or do you intend to respond?
    Secretary Babbitt. Madam Chairman, in 1994, we had a debate 
on the Mining Law in which the Administration laid out its 
position in enormous detail in a debate that went for nearly a 
full year, in which both Houses of the Congress debated this 
issue, in which I was a witness and submitted written 
testimony, and I would be happy to send all of that back to you 
because it is a matter of public record. Our position has not 
changed. And it is laid out in enormous detail.
    Mrs. Cubin. Mr. Secretary, in 1994, Mr. Young was not the 
Chairman of the Committee and did not have the authority to 
negotiate with the Administration. So, what I really want to 
know is, is the Administration intransigent in trying to work 
out some reformation of the Mining Law of 1872 because 
certainly the Congress would like to do that.
    Secretary Babbitt. I have not seen any indication whatever, 
in the seven years I have been here, period.
    Mrs. Cubin. How about these two letters, those letters 
asking for meetings and communications that might indicate it, 
but my time is up.
    Secretary Babbitt. You will have all of our accumulated 
testimony. I will see if I can hire a trucker to bring it over 
here by the end of this week.
    Mrs. Cubin. Thank you, Mr. Secretary.
    Mr. Hansen. Thank you. The gentleman from Puerto Rico.
    Mr. Romero-Barcelo. Thank you, Mr. Chairman. Mr. Secretary, 
the Majority says that Article IV, Section 3, Clause 2 of the 
U.S. Constitution relating to Congressional powers to dispose 
of and make all needful rules and regulations respecting the 
territory or other property belonging to the United States 
overrides or vitiates the authority the Secretary of the 
Interior has under Section 204 of the FLPMA, to withdraw or 
segregate public lands, especially in light of the Supreme 
Court's Chadha decision that, in your words, undermine, if not 
totally impair, the Congressional opportunity to terminate a 
Secretarial withdrawal under FLPMA.
    How do you respond to this allegation, and do you believe 
that some sort of legislation action to change this situation 
is necessary?
    Secretary Babbitt. Congressman, I do not believe that there 
is any reason to have further legislation. It is my judgment 
that my FLPMA withdrawal power is nicely circumscribed by the 
existing law because it says you start with a two-year 
segregation and then you go through the entire NEPA process, 
which will result in a large withdrawal in the peril of an 
environmental impact statement, which includes public hearings, 
comments, and at least two years, a full session of Congress, 
to send us in another direction, if they choose to. And it 
seems to me that that is quite a nice balance.
    Mr. Romero-Barcelo. The minute you initiate this process, 
you also notify Congress when you initiate the process of 
withdrawal, is that correct?
    Secretary Babbitt. That is correct.
    Mr. Romero-Barcelo. So, Congress is advised of your 
intention, and then legislation could be forthcoming.
    Secretary Babbitt. And I think in the case, if I may, of 
the Grand Canyon--this is very nicely illustrated--the 
withdrawal order, the temporary withdrawal order, was signed in 
November and look what we have had. We have had a Congressional 
hearing prior to today, in Utah. A well attended and somewhat 
spirited hearing in Flagstaff. This hearing today. And we are 
only 90 days into the process.
    Mr. Romero-Barcelo. There has also been some statements 
made that someone with a proper mining claim, his property 
rights would be affected, like in the case of Mr. Lehmann. How 
would his valid existing rights be protected within the context 
of the Sweet Grass Hills withdrawal?
    Secretary Babbitt. Congressman, those rights are protected 
in FLPMA. They are explicitly recognized in every temporary 
segregation that I have signed. And they are ultimately 
enforced by the courts.
    Mr. Romero-Barcelo. In other words, if they can show that 
they can expect to find the mineral for which he has a claim, 
he will get compensated for that, will he not?
    Secretary Babbitt. In the first instance, he gets to 
proceed with his mine until such time as under Congressional 
authority, there is either directly or by delegation an 
imminent domain action for which he would be compensated, yes.
    Mr. Romero-Barcelo. Recently, in U.S.A. Today, they 
published an editorial on the Federal giveaways entitled Mining 
Laws Cheat Taxpayers, and they noted that the Interior 
Department, in the absence of Congressional action to reform 
the 1872 Mining Law, is attempting to implement new rules to 
hold mining companies accountable for cleanups after they are 
through mining the public's mineral wealth. However, those 
efforts were thwarted last year when the mining industry 
succeeded in blocking the Interior Department from publishing 
final rules by requiring the National Academy of Sciences to 
study the existing rules at a cost of $800,000 to the public.
    The report is due this July 31st, and already we can see 
that the Senate, in the Emergency Supplemental Appropriations 
Package, has attached a rider that would extend that period. 
How do you respond to this editorial?
    Secretary Babbitt. I believe that the attempts in the 
Appropriation Committees and elsewhere to delay regulatory 
reform of the Mining Law are a transparent attempt by the 
mining industry and its supporters to wait me out in the hopes, 
perhaps shared by some of you, that at the end of the year 2000 
I will pack my bags and go home, the Mining Law for 140 years 
will have been successfully stonewalled in terms of attempts to 
reform it.
    Mr. Romero-Barcelo. Thank you, Mr. Secretary.
    Mr. Hansen. The gentleman from Arizona, Mr. Shadegg, is 
recognized for five minutes.
    Mr. Shadegg. Thank you, Mr. Chairman. Mr. Secretary, the 
reports I got of your meeting in Flagstaff would concur with 
your characterization of it a having been somewhat spirited, 
and I applaud you for holding that hearing.
    I did, however, note that there was some frustration that 
the hearing was not ``on the record''--that is to say, there 
was no official transcript kept. As you know, when we hold 
Congressional hearings--and I anticipate we will hold a 
Congressional, yet another Congressional hearing, in Arizona or 
in southern Utah on this issue, on the proposed national 
monument in the Arizona Strip area--it will be on the record.
    I guess my question for you is, are you currently planning 
to, or are you willing to hold further hearings of your own on 
the record in some of he communities that would be affected, 
between now and when any designation would occur?
    Secretary Babbitt. Congressman Shadegg, I would very much 
encourage this Committee to hold some more hearings out there.
    Mr. Shadegg. It is my understanding that the Chairman 
intends to do so and I intend to participate in those, but I 
guess my question is, since we are talking about the exercise 
of your power, is it your plan now, or would you be willing to 
consider holding hearings on the record in the affected 
communities between now and when you take any action?
    Secretary Babbitt. I am certainly willing to consider it. 
The reason I hesitate is because I have planned a series of 
meetings with stakeholder groups who have indicated some 
preference for stakeholder meetings where we could actually get 
down into the subtext of the law and see if we could stake out 
some common ground.
    I am going to do that, in the first instance, with, as I 
said, the permit holders on the Arizona Strip at Mt. Trumble, 
in a couple of weeks. My first desire is to get that done. And 
then to the extent that we need more hearings, I am perfectly 
willing to do it.
    Mr. Shadegg. I would certainly encourage that. I want to go 
over a point you made because--let me back up one step. It is 
my understanding that your proposal is intended--and correct me 
if I am wrong--to preserve the current uses of the land, with 
the exception of mining, and that it is mining which is your 
greatest concern, is that correct?
    Secretary Babbitt. That is certainly the major concern, 
yes, but there are other implications under the multiple use 
concept. I have stressed two issues because they were at the 
core of Congress' refusal to make this boundary adjustment in 
1975.
    One was grazing, and I believe we are really within 
striking distance of accommodation there because it is not my 
intention to affect that in any way. We have got pretty good 
stuff going on at the Arizona Strip, it is headed in the right 
direction. It is not perfect, but the direction is correct.
    The other was hunting because extending the park boundary 
as a national park would have precluded hunting. And the 
Arizona Game and Fish Commission is quite adamant, and 
understandably and properly so, that hunting is a very 
compatible use, and I would certainly advocate that any 
legislation or any withdrawal or any Antiquities Act withdrawal 
by the President preserve specifically in language those two 
uses.
    Mr. Shadegg. I very, very much appreciate that testimony. 
The key word for me and, quite frankly, the key word for the 
Arizonans who are talking about this issue is the word 
``preserve.''
    I attended yesterday morning at the Arizona State Capital, 
a meeting of a group called the Natural Resources Discussion 
Group. There were several members of the Game and Fish 
Commission there. There were representatives of the cattle 
industry. There were representatives of every kind of group 
that could care about natural resources in Arizona.
    And they are gravely concerned about the question of 
preserve and, quite frankly, there is a question of long-term 
trust. Preserve for now, but it is the old classic camel's nose 
under the tent, there is some fear that, well, it may be your 
intention to preserve grazing in the Arizona Strip and hunting 
in the Arizona Strip, they want to know how we can guarantee 
this into the future and that it will not be lost over time.
    Speaking of time, my time is about to run out, and I want 
to talk to you about another point brought out in your 
testimony, and just to clarify it. You said that there is no 
protection in the northwest corner of the Grand Canyon, and I 
understand what you meant by that. I simply want to get a 
little more precise definition of what your reference to that 
is.
    The northwest corner of the Grand Canyon National Park 
actually has a segment which is protected by the Lake Mead 
National Recreation Area, correct?
    Secretary Babbitt. That is correct.
    Mr. Shadegg. And that sets back from the rim in most 
instances, by my calculation, somewhere between 12 and 20 
miles, would that be your rough guess?
    Secretary Babbitt. Yes, that is about right.
    Mr. Shadegg. And in that area, there is no mining allowed 
at the present time.
    Secretary Babbitt. There are some mining issues there in 
the Lake Mead National Recreation Area. I am not sure--I 
believe they are railroad subservice rights. Congressman, I 
think you are right. I believe that the Lake Mead National 
Recreation Area included a withdrawal subject to valid existing 
rights. I am not certain, I think that is correct.
    Mr. Shadegg. We can get clarity on that later. My time has 
expired. Thank you, Mr. Chairman.
    Mr. Hansen. Thank you. Would there be objection to going 
out of order and recognizing the gentleman from Colorado, 
misplaced from Arizona, Mr. Udall. Hearing none, the gentleman 
is recognized for five minutes.
    Mr. Udall of Colorado. Thank you, Mr. Chairman. I do not 
know if I am misplaced, or I have just found another home, or 
what it might be, but it is good to see the Secretary here. He 
and I both grew up in Arizona, and know what a beautiful state 
that is, but Colorado is also a great place to live.
    Mr. Secretary, I had a couple of questions on a subject 
that may not be apparent to all of us right away, in the area 
of military withdrawals. I think it is true that there are 
large areas of public lands that have been withdrawn so they 
could be used for military purposes, like bombing ranges and 
training areas. Could you expand a little bit on this and talk 
to this issue?
    Secretary Babbitt. Mr. Udall, it is an important issue for 
this reason. The military withdrawals across the west 
principally for training ranges are very extensive, I think, in 
virtually every state represented here. For example, in 
Arizona, the Goldwater Training Range is an overlay on probably 
a million acres of BLM land. There are a bunch of those in 
Utah. Nellis Air Force Base in Nevada is a really interesting 
overlay on public lands, in some cases, administered jointly 
with Fish and Wildlife Service.
    The importance of this issue today is that many of those 
withdrawals are now expiring. Their 25-year term is up, and 
there is a large discussion going on in the Armed Services 
Committees about the nature of doing a legislative extension of 
those withdrawals.
    The remarkable thing is that the Resource Committees, so 
far as I know, are apparently not involved in a very large and 
important administrative decision involving public lands.
    Now, that said, I believe we are making considerable 
progress with the Armed Services Committees, but I think that 
is kind of where we are.
    Mr. Udall of Colorado. Mr. Secretary, has that legislation 
been worked on in this Committee, to your understanding?
    Secretary Babbitt. On the present course, I have not seen 
any indication that this Committee has or exercises 
jurisdiction over those issues.
    Mr. Udall of Colorado. Mr. Chairman, it would seem to me we 
ought to be paying some attention to this in the future, as 
this proceeds.
    Mr. Hansen. For the gentleman's benefit, we do have joint 
jurisdiction over these lands, and sitting on both those 
committees. We are kind of watching to see where it goes.
    Mr. Udall of Colorado. I do believe there has to be some 
legislative action by our Committee in this regard. If I could, 
let me move to another area of our discussion this morning. It 
seems to me we are talking about balance, and the Secretary is 
making the case that there is appropriate balance.
    There has been talk about the Supreme Court's decision 
overturning the part of FLPMA that provided for Congressional 
veto of withdrawals, but I think at the same time, as I 
understand it, that decision wiped out the part of the law that 
required you to make an emergency withdrawal if the Congress 
called upon you, is that right, as you understand it?
    Secretary Babbitt. I believe that is correct, yes, for much 
the same reason.
    Mr. Udall of Colorado. So if we had another case where we 
wanted to ask for a withdrawal, say, similar to what happened 
with Secretary Watt, when the Administration opposed this sort 
of withdrawal, we would be put in a position where we would 
have to actually have votes to override a veto in that 
particular case, is that your understanding, Mr. Secretary?
    Secretary Babbitt. Yes. If I do not exercise my statutory 
withdrawal power under FLPMA, Congress would need to do it by 
legislation.
    Mr. Udall of Colorado. Thank you, Mr. Chairman.
    Mr. Hansen. For the gentleman's benefit, the committees of 
both Armed Services and Resources has asked the Administration 
to give us a proposal on what the Secretary was talking about 
regarding test ranges, and we are kind of still waiting for 
that. Maybe we could get the Administration to move a little on 
that, we would appreciate it, Mr. Secretary.
    Secretary Babbitt. I would be happy to look into it, Mr. 
Chairman.
    Mr. Udall of Colorado. Mr. Chairman, let me just add, I am 
glad to hear that, and I hope when that does come up, we could 
have hearings in this Committee.
    Mr. Hansen. This should be something open for discussion. 
In regard to your question of Mr. Shadegg, Mr. Secretary, this 
Committee would be happy if you felt it would be appropriate to 
hold hearings on the issue that Mr. Shadegg has brought up.
    I normally go through everybody before I ask a question, 
but if I may, I would like to exercise the option of the Chair 
and ask the Secretary a question. I do not mean to beat a dead 
horse, but on the Grand Staircase-Escalante, when the President 
made that a national monument, we spent a long time trying to 
digest the bill as it was from 1906, and as I read it, it has 
three specific parts to it where the President is supposed to 
cite the historical, archeological or scientific reason for 
doing it. And in that, I was somewhat disappointed that the 
President did not state those, even though I guess you could 
interpolate it a little bit that that did occur. And then the 
next sentence says ``And he shall use the smallest acreage 
available to protect that site.''
    As we look in the area like the Rainbow Bridge, obviously, 
we have an archeological site, and we have gone back and 
digested all 73 things that are now monuments, and each one of 
them, up to the Grand Staircase-Escalante, does have something 
that fits.
    With that said, on the potential of the Arizona Strip, what 
would be the three things that the President or, Mr. Secretary, 
that you would suggest to the President that he list, or one of 
the three in that particular potential national monument?
    Secretary Babbitt. Sure. Obviously, I am not speaking for 
the President, but personally, were I drafting such a 
proclamation, the first thing that I would do is refer to 
Presidents Roosevelt, Hoover, Johnson, and the United States 
Congress, in their unanimous findings over a hundred years, in 
repeated Executive action and legislation, that the Grand 
Canyon is a natural phenomenon in terms of geology, 
paleontology, biology, without equal anywhere in the world, and 
that the Shivwits Plateau has been recognized as an integral 
part of that system from the days of John Wesley Powell and 
Clarence Dutton.
    And I might even, just as a flourish, quote from the 
tertiary history of the Grand Canyon in which Clarence Dutton 
wrote some of the most remarkable prose of the 19th century.
    You probably do not want me to go on from there, but I 
would be happy to do so. I would refer to Eddie McKey's 
lifetime work on the stratigraphy of the Grand Canyon. If I 
were in an expansive mood, I might even refer to my own days as 
a graduate student, in which the Grand Canyon was the primary 
site for the North American studies that led to the formulation 
of these now dogmas, virtually, of continental drift and plate 
tectonics. It is an extraordinary place.
    Mr. Hansen. Mr. Secretary, I think a lot of us share your 
feelings about the Grand Canyon and, like you, I have hiked it, 
gone down the river, flown airplanes up and down it, the whole 
bit, and, no question, it is a beautiful place.
    As I look at the designations that we have given in 
Congress, I think the strongest designation for protection is 
wilderness. And I think probably the weakest, if I may put them 
in some degree--and, of course, we have abandoned primitive 
areas and--well, we really have not, but we do not look at them 
quite the same way--would be a monument.
    And so as I recall back in the 1980s, Bob Stump came to me 
and we passed a piece of legislation--it was wilderness in the 
Arizona Strip, you may recall that. I do not know if you were 
Governor at the time or not.
    Secretary Babbitt. I was.
    Mr. Hansen. But we worked on that rather diligently, and 
personally a lot of that now is in wilderness and is a very 
strong protection for the area. So, as I look at it--and if 
that is what you want to do, and the Arizona folks want to do 
it, that is fine with me--but as I look at it, I am just trying 
to objectively say that I honestly think that the FLPMA Act and 
wilderness probably gives you as much protection in that 
particular area as you would have, regardless of whether or not 
we put it into the status of a national monument. Am I wrong 
there, or do you want to correct me on that?
    Secretary Babbitt. Mr. Chairman, I think your legal 
conclusion is entirely correct. If this area were all 
encompassed in wilderness areas, I do not think there would be 
any significant threat to the area, but it is not. If you look 
within the boundaries that I have discussed publicly, the Mt. 
Trumble wilderness is a small piece around Mt. Trumble, and 
then there is a small wilderness piece around Mt. Delanbaugh, 
but the actual rim through that area is wide open. And of the 
600,000 acres that we have been discussing, I would say that 
there are probably less than 100,000 in wilderness, these 
little raisins in the pudding, if you will.
    Mr. Hansen. Do you agree that the Stump bill in the 1980s 
did protect some areas that totally qualified for wilderness in 
the Arizona Strip area?
    Secretary Babbitt. Oh, absolutely.
    Mr. Hansen. Would you be more amenable to adding wilderness 
rather than a monument in that area, if there were areas that 
also, in your opinion and the opinion of your experts, 
qualified as wilderness?
    Secretary Babbitt. Well, it is an interesting suggestion. 
That is a very interesting suggestion. You would have to be a 
little bit flexible in your definition of wilderness because 
there are some roaded areas down into Parashant Canyon, but the 
Congress certainly--well, frankly, Mr. Chairman, that is the 
problem, I think, because if you did a wilderness bill across 
this area, you would be excluding motorized travel, and I think 
the hunters and stockmen would go crazy, and that was not our 
intention in discussing the monument alternative.
    Mr. Hansen. I see my time is up, too, but I sometimes 
wonder, in trying to achieve the goal that I guess most people 
are looking at here, it seems to me a simple mineral withdrawal 
would almost satisfy the needs. And when you say the 
flexibility of the Wilderness Act, all you have to do is look 
at the many wilderness bills that are introduced in this 
Committee, to see that everyone who introduces one is extremely 
flexible. I have rarely seen as broad language as comes in 
here. One in Utah goes over a mountain that has actual 
structures on it. The next thing, we are going to put one over 
BYU, which would not hurt my feelings, being a University of 
Utah person.
    The gentleman from Washington.
    Mr. Inslee. I will pass, Mr. Chairman. Thank you.
    Mr. Hansen. The gentleman from Montana.
    Mr. Hill. Thank you, Mr. Chairman, and thank you, Secretary 
Babbitt, for being here. I want to just ask a couple of 
questions with regard to the Helena National and the Lewis and 
Clark National withdrawal on the Rocky Mountain Front.
    I am not aware of, and are you aware, were there any 
applications for or any pending mining proposals in the Front 
area at the time that the decision was made to make this 
withdrawal?
    Secretary Babbitt. Congressman, there were.
    Mr. Hill. Where?
    Secretary Babbitt. And there are. If I may, basically, the 
situation is this. When the Forest Service made the decision to 
suspend mineral leasing--not mineral entry, but mineral 
leasing--I believe that was 1994 or 1995, there was a flurry of 
mineral entry claims along Muddy Creek, and there is no 
significant or apparent evidence that they are anything other 
than nuisance claims.
    Mr. Hill. But there was no pending application to actually 
mine there. Your concern was that these claims may have been 
made for purposes other than for legitimate mining purposes.
    Secretary Babbitt. There are two concerns. One is the 
pattern of apparent fraudulent claimstaking, and the other one 
is that after looking at this for four or five years, and 
looking at the geological reports, the wildlife values in this 
area between the Bob Marshall and Glacier National Park, need 
protection.
    Mr. Hill. I do not disagree with you about the importance 
of the wildlife values there. With respect to the Sweet Grass 
Hills issue and Mr. Lehmann's testimony, my concern there is 
whether or not we have selectively used the process to achieve 
the means and in the process eroded or undermined personal 
property rights of Mr. Lehmann. I mean, you accept the fact 
that he has legitimate claims in those areas, I presume?
    Secretary Babbitt. Congressman, I have not looked at his 
claims. I could not possibly tell you.
    Mr. Hill. In your earlier testimony, you said that in every 
withdrawal that you signed, his specific rights were protected, 
explicitly recognized.
    Secretary Babbitt. Congressman, if he has----
    Mr. Hill. Are you aware of them, or are you not aware of 
them?
    Secretary Babbitt. I am not aware of them. I am aware that 
he is claiming rights, and I am saying to him as follows: To 
the extent that you have legal rights, they are unaffected by 
the withdrawal.
    Mr. Hill. So, Mr. Lehmann's rights were not explicitly 
recognized in the order that you signed, or were they 
explicitly recognized?
    Secretary Babbitt. Oh, we never do when we make a 
withdrawal. That would be virtually impossible.
    Mr. Hill. They were just generally recognized then.
    Secretary Babbitt. No, that is not an accurate statement. 
To the extent that a person has valid, legal rights, and I 
voice no opinion, Mr. Lehmann may be a genius or a latter-day 
descendant of Ralph Cameron, but I cannot make that judgment. 
Those judgements are made in the administrative and judicial 
process. The fact is, whatever he has legally is unaffected by 
the withdrawal.
    Mr. Hill. Do you think that it is fair for him to expect 
that the agency would move forward in a process they were 
already engaged in to evaluate his environmental impact 
statement and his application to proceed to mine? Do you think 
he has a right to expect that?
    Secretary Babbitt. I am quite certain that whatever rights 
he has to process are being respected.
    Mr. Hill. You do not think that he has a right to expect 
that?
    Secretary Babbitt. No, I think he does.
    Mr. Hill. Mr. Secretary, in instances where the Congress 
has been explicit with regard to land management, do you think 
the Administration should enforce the letter and the spirit of 
the law?
    Secretary Babbitt. I believe we are.
    Mr. Hill. In the purchase and withdrawal of the Crown Butte 
property, Congress was very explicit with regard to the 
transfer of mineral rights and the transfer of Otter Creek 
Tracts in the State of Montana, and it required you enter 
negotiation with the Governor of the State of Montana, which 
you have done. And the Governor has indicated to you that he 
wants to receive the Otter Creek Tracts. Can we expect that you 
will transfer those tracts to the State of Montana?
    Secretary Babbitt. Congressman, I do not read the law that 
way. I read the law as the intent of Congress to compensate the 
State of Montana in the amount of, I believe, either $5 or $10 
million, and as mandating us to attempt to do that.
    Now, the Otter Creek Tract was a fallback position. We have 
adhered to the law. The conveyance of the Otter Creek Tract is 
not automatically mandated under that law. It is, in fact, a 
very vague and confusing provision.
    Mr. Hill. So, is it your opinion that if you fail to reach 
agreement with the Governor on any alternative, that you have 
the option of not turning over the Otter Creek Tracts, is that 
your view?
    Secretary Babbitt. I think the law is quite vague about 
exactly what the relationship----
    Mr. Hill. I am asking what your interpretation, Mr. 
Secretary, of the law is. Is it your interpretation----
    Secretary Babbitt. And I am giving it to you, Congressman. 
The word is vague.
    Mr. Hill. My question is specific, I think yes or no is 
sufficient. Is it your view that the Federal Government cannot 
transfer those tracts in the event that you do not reach an 
alternative agreement with the Governor of the State of 
Montana.
    Secretary Babbitt. The law is vague, and a court will have 
the ultimate decision.
    Mr. Hill. Thank you, Mr. Chairman. Thank you, Mr. 
Secretary.
    Mr. Hansen. The gentleman from New Mexico, Mr. Udall.
    Mr. Udall of New Mexico. Thank you very much, Mr. Chairman, 
good to have you here, Secretary Babbitt, and also your able 
counsel, Mr. Leshy. Earlier, the point was made, Secretary 
Babbitt, that on the Antiquities Act with regard to discretion, 
I believe, and the question of the President's discretion. Has 
that been tested in the courts? My memory is that it very 
recently, as recently as President Carter, that this has been 
tested in the courts, and I cannot think of any national 
monument proclamation that has ever been overturned by the 
courts. Can you or your counsel enlighten me on that?
    Secretary Babbitt. Congressman, you are essentially 
correct. Various claims have been asserted, I think, in 
connection with the Cameron episode at the Grand Canyon. I 
believe when they were trying to throw him off his mining 
claims, he challenged the Roosevelt withdrawal order, 
unsuccessfully, in the Supreme Court. I think it was raised 
again possibly in the Grand Tetons in Wyoming, more recently in 
the Alaska withdrawals by President Carter. There is 
considerable case law on this issue.
    Mr. Udall of New Mexico. Thank you. Secretary Babbitt, when 
we talk about all of these mining issues that are out there, 
and you are clearly running a department that is struggling 
with trying to deal with mining issues with the laws you have 
right now, but it seems to me the overarching issue is 
basically doing something about the 1872 Mining Law. And when 
you took office, I believe a bipartisan group of the Congress 
passed by over 300 votes--Speaker Gingrich, I think, voted for 
it--reform of the 1872 Mining Law. Is not the thing that we 
could do the most about these Mining Law issues and really come 
to grips with them, is reforming that 1872 Mining Law.
    Secretary Babbitt. Congressman, if I may, I think some 
facts will elucidate that. There is no question that as 
Chairman Hansen and I believe Congressman Shadegg said, isn't 
this mineral withdrawal sort of the dominant issue, and it is 
the dominant issue, and the reason is that the collection of 
public land laws over the last 150 years have given us pretty 
clear guidance and some substantial degree of balance in the 
administration of nonmetallic mineral leasing, grazing, timber 
cutting, water administration, and the one area that has never 
been touched since 1862, and in which there is no balance at 
all, is the Mining Law. And that is the reason that it keeps 
getting tangled up in these. It is the root cause of these 
debates, there is no question about that.
    Mr. Udall of New Mexico. Thank you, Mr. Secretary. Yield 
back my time.
    Mr. Hansen. The gentleman from Tennessee, Mr. Duncan.
    Mr. Duncan. Thank you, Mr. Chairman. First, let me say I am 
always amazed in this Committee how we talk about a million 
acres as if it is almost nothing, or very little. In fact, I 
think the Grand Staircase-Escalante, the monument which you 
mentioned, was 3.1 million acres. And the Great Smokey 
Mountains National Park in my area is the total acreage is 
565,000 acres, and that is the most heavily visited national 
park in the country, I think about four times, or almost five 
times as many visitors as the other national parks. And so a 
million acres that we are talking about here is an awful lot of 
land to people like me, and I would like to know, Mr. 
Secretary, if you have other withdrawals or segregations that 
are in the works.
    And, secondly, many people are concerned about the secrecy 
with which the Grand Staircase-Escalante Monument was done. In 
fact, we had introduced in this Committee at one point a letter 
from a professor at the University of Colorado, who was 
involved in that designation, and he said in his letter that he 
could not overemphasize the need for secrecy. And we had the 
Governor of Utah here one day who expressed the shocked feeling 
he had when he said he read about that designation on the front 
page of the Washington Post. And what I am wondering about is 
if you have other withdrawals or segregations in the works, are 
they going to be done in secret as that one was, or are they 
going to be open for public discussion and comment?
    Secretary Babbitt. Congressman, I am a process junkie, if I 
may, and I think that my handling of these two issues that are 
before us today is a pretty good example of that. As I 
explained earlier, the initial segregation process is designed 
to be done without public process, for the reasons I explained 
earlier, but I have, without exception, tried to be right up 
front. Two segregation orders that were signed, were done 
simultaneously with a great deal of public input, and have been 
preceded by a lot of public participation leading up to a 
decision about whether or not to extend the two-year 
segregation into a 20-year withdrawal.
    With respect to the Antiquities Act, I do not speak for the 
President of the United States. My own view is that the 
appropriate way to deal with the Antiquities Act is up to the 
President, but I think in most cases that public discussion is 
very appropriate. I cannot say that it is always appropriate, 
but I think it is, and once again, the discussion relating to 
the Grand Canyon is an example of that. I have suggested that 
the President may choose to use his powers under the 
Antiquities Act. He has not told me that, but I have certainly 
suggested that that is a possibility.
    Mr. Duncan. Are there other withdrawals or segregations in 
the works that you know of at this time and, if so, could you 
give us some idea about the number or the extent?
    Secretary Babbitt. There are literally hundreds of 
proposals around for withdrawals. I mean that literally. I 
have, over the last seven years, looked at a variety of 
proposals coming from all quarters, and what you see after 
seven years is what is before us now.
    Mr. Duncan. So, out of those hundreds then, this is all 
that you have in the works at this time?
    Secretary Babbitt. I have not requested--I would have to go 
back and look. The small withdrawals, the under 5,000-acre 
withdrawals, that range, there may be some in the works around 
specific----
    Mr. Duncan. Well, let's talk about over 5,000 acres.
    Secretary Babbitt. I am not aware of any.
    Mr. Duncan. Thank you very much.
    Mr. Hansen. The gentleman from Guam, Mr. Underwood.
    Mr. Underwood. No questions.
    Mr. Hansen. The gentleman has no questions. The gentlelady 
from Wyoming.
    Mrs. Cubin. Thank you, Mr. Chairman. I wanted to set the 
record straight on one thing, and this was not an error by the 
Secretary at all, but I just wanted this to be clear, that in 
the Fiscal Year 1999 appropriations bill that Congress charged 
the National Academy of Sciences with the study of whether or 
not state and Federal laws adequately protect the lands, and we 
said to use $800,000 of fees that the miners paid to the BLM, 
so that was not an appropriation that other taxpayers paid, and 
I just wanted that to be clear for the record.
    I just have one question for the Secretary on this follow-
up round. If the only threat, or the major threat, to the area 
is mining, would you support Congressional legislation to 
ratify your mineral withdrawal and let FLPMA then work its way 
on the other uses of the land? And the reason I ask this is 
because a later witness, Mr. Getches of Colorado, who is a 
Board member of the Grand Teton Trust, as is your brother, 
James Babbitt--excuse me, Grand Canyon Trust--you know where I 
am--your brother as well as Mr. Getches are on that Board. And 
on the Trust Web Page there is an illustration that one could 
logically regard as a road map to subsequent withdrawals on the 
Colorado Plateau, given the super-secret set-aside of the Grand 
Staircase-Escalante area as a national monument, and now this 
segregation and proposed withdrawal.
    Now, I believe, as you do, that the Grand Canyon is truly 
one of the crown jewels of our park system, but do you 
understand that at least the appearance of a conflict of 
interest exists here, vis-a-vis the Shivwits Plateau proposal 
in your case and in your family's case.
    Secretary Babbitt. If I may----
    Mrs. Cubin. Based on the Web site and the proposed--I 
cannot say proposed--but what it says on the Web site, that it 
looks like there are more areas yet to be set aside.
    Secretary Babbitt. I am sorry, Congressman, I do not 
understand the question.
    Mrs. Cubin. Then let me just break it down to two 
questions. Since you are saying mining is the only----
    Secretary Babbitt. Oh, I understand that question.
    Mrs. Cubin. Okay, what is the answer?
    Secretary Babbitt. It is the conspiracy involving the Web 
site that I do not understand, but let me answer the mineral 
one, and that is a fair----
    Mrs. Cubin. It is not an accusation, Mr. Secretary, at all. 
So, if you would just go ahead, we will break it down into two 
questions.
    Secretary Babbitt. Okay. The first question is an 
interesting question. We have now got the Hansen Proposal for 
Wilderness, which is an interesting idea, and I am----
    Mrs. Cubin. No, I am not talking about that. I am talking 
about the Congress ratifying your mineral withdrawal.
    Secretary Babbitt. I understand. And now we have mineral we 
are talking about. It is a very interesting idea. He is kind of 
coming at it from the other side. The withdrawal is more than 
minerals. The withdrawal, I believe--timber is an example. 
Mineral withdrawal would not deal with the timber problem.
    Mrs. Cubin. That is correct, but would not FLPMA still be 
able to be applied to all of the other uses, since they are, 
according to your earlier testimony, much less threatening?
    Secretary Babbitt. Timber is an example of a use that 
should be excluded. And I do not think you will get any quarrel 
from any quarter there. The area has a few upland areas of 
Ponderosa, on the flanks of Mt. Trumble that are outside the 
wilderness area, on Mt. Delanbaugh. There is some outside the 
wilderness area. This is an area that I believe should be 
permanently withdrawn from commercial forestry.
    So, you could construct, I suppose, a piece of legislation 
saying the area is withdrawn from commercial forestry, 
minerals. There may be a few other issues there, but you 
could----
    Mrs. Cubin. So you do not think FLPMA is adequate to deal 
with the issues other than mining?
    Secretary Babbitt. Not all of them. I think it is adequate 
to deal with grazing. It is adequate to deal with hunting. But 
you could construct a withdrawal in lieu of a monument 
legislatively, or in lieu of wilderness. It would be possible.
    Mrs. Cubin. Thank you.
    Mr. Hansen. In the interest of time, is there further 
questions for Secretary Babbitt on the Minority side? Mr. Udall 
from Colorado.
    Mr. Udall of Colorado. Thank you, Mr. Chairman. Mr. 
Secretary, you just had a couple of questions from Congressman 
Duncan about further segregations, and it strikes me that you 
have to be thoughtful about this in the future because were you 
to make a great public statement about this, you might drive a 
lot--this is a very speculative activity that you are very, 
very concerned about in regards to mining claims, is that----
    Secretary Babbitt. Congressman, let me explain why I 
hesitated in response to the Duncan question, and I appreciate 
the invitation to clarify. Let me give you an example. In San 
Diego County, the Congressional Delegation in the city and all 
of the others have a wilderness bill with bipartisan support, 
which I believe has passed out of this Committee. I considered 
a protective withdrawal in advance of that wilderness 
legislation even though I was quite confident that the 
wilderness bill is going to pass because nobody opposes it. I 
considered whether it would be appropriate to do a preemptive 
withdrawal there. There are other areas in California, as an 
example, of more than 5,000 acres, where there is legislation 
ready to move, where it would be appropriate--and I have, in 
fact, considered preemptive withdrawals in aid of the 
legislative process--but getting on a rooftop and shouting 
about that would--if I discuss it publicly, then I have got to 
do it, that is the dilemma.
    Mr. Udall of Colorado. Mr. Chairman, if I could, just one 
final comment. I just want to again mention that I think we 
have been talking about two fairly different mechanisms, one is 
the Antiquities Act and one is FLPMA, and I want to just point 
out in Colorado that the Antiquities Act has been used to set 
aside such important areas as the Colorado National Monument, 
the Great Sand Dunes National Monument and the Black Canyon of 
Gunnison National Monument. I think it is also very instructive 
to note that almost every President since the turn of the 
century has used the Antiquities Act when the moment presented 
an opportunity. So, I think we ought to take into account the 
historical overview here that we are discussing today. Thank 
you, Mr. Chairman.
    Secretary Babbitt. Mr. Udall, in aid of the fullest 
possible disclosure on these issues, let me say that I am 
planning a visit to Colorado in the next several weeks, to look 
at the archeological issues in southwestern Colorado. When 
Hovenweep National Monument was established on the Colorado 
side, Mr. Chairman, I exclude Utah from this. My trip is not to 
Utah. I promise you I will stop at the border.
    Now, getting back to southwestern Colorado, this area in 
terms of the density and importance of archeological sites is 
number one in the United States of America. And there is a big 
problem out there because they are not being given an adequate 
level of protection. I am going to be out on the landscape, 
invite the oil and gas people, and Mr. Hansen, and anyone else 
who is interested. Interestingly enough, there was a piece of 
legislation in the 1970s designed to deal with this. This is 
not something I invented, but it is something that needs to be 
revisited. So, I hope we can continue this discussion.
    Are there any other thoughts that have crossed my mind that 
merit disclosure?
    Mr. Hansen. We have got a few here, but we will turn to Mr. 
Shadegg. Mr. Secretary, I must state that a very high ranking 
member of the Administration said that we have blacked our eyes 
enough on that Utah issue. I am trying to avoid saying anymore 
about it.
    Secretary Babbitt. I appreciate your tender consideration, 
Mr. Chairman.
    Mr. Hansen. Mr. Shadegg, from Arizona.
    Mr. Shadegg. Thank you, Mr. Chairman, and thank you, Mr. 
Secretary, for spending so much time with us. Let me just go 
back over a couple of points that I would like to clarify. Just 
a few moments ago, you said that in the northwest corner--and I 
think this was in response to questioning by Mr. Hansen--the 
rim itself was wide open, however, it is within the Lake Mead 
National Recreation area, so you did not mean wide open in that 
sense.
    Secretary Babbitt. Congressman, there is, in fact, a piece 
of the rim which is absolutely wide open.
    Mr. Shadegg. Which is not within the National Recreation 
Area? Can you show us that on the map?
    Secretary Babbitt. Sure. The Lake Mead Recreation Area is 
north of the rim where the section township boundaries are, but 
right through here--this is actually the rim of the Canyon, 
right through there--the park boundary comes down here 
approximately to Tuwep and, in fact, curiously, the Lake Mead 
Recreation Area comes above the rim over here, but for some 
reason it is at and below the rim right through there.
    Mr. Shadegg. This is actually the Grand Canyon National 
Park at that point. So, you are saying that the Grand Canyon 
National Park does not include the rim?
    Secretary Babbitt. That is correct.
    Mrs. Cubin. How far is that area?
    Secretary Babbitt. Well, these are townships, about six 
miles, so about 12-15 miles along there. Actually, maybe a 
little more than that, but it is something like that.
    Mr. Shadegg. I appreciate that clarification, and it 
appears that in the three previous expansions of the park, 
somebody omitted a portion of the rim, and I take it that is 
where the monument--that is the portion of the area where you 
are proposing the monument.
    Secretary Babbitt. That is correct.
    Mr. Shadegg. That takes me to the next question I want to 
ask, which is, as I indicated in my opening statement, various 
groups in Arizona have expressed concern, but virtually all of 
the concern that I am hearing is about process--that is, 
wanting input--not abject total opposition to the creation of a 
monument. Indeed, the letter and the testimony from the Mohave 
County Board of Supervisors that I have before me specifically 
says that they do not want it created by Executive Resolution 
or Executive Order, however, they are not necessarily opposed 
to the creation of a monument of 400,000 acres.
    Interestingly, the Cattlemen's Association also says they 
are interested and believe it might be appropriate. They would 
like more input for the local people, both elected officials, 
landowners in the area, sportsmen, and other interested 
parties, but their letter uses the figure 550,000 acres. Your 
testimony today used the figure 605,000 acres. And I believe, 
Mr. Secretary, that the Grand Canyon Trust and/or others in 
Arizona are proposing it really ought to be 1 million acres. 
Obviously, if one does not know what size it is, one can hardly 
honestly understand and debate its merits or demerits and its 
effect on the local community and, quite frankly, on the 
protection of the Canyon.
    What is the size that you are currently supporting? Are you 
still considering the possibility of expanding it? And how do 
we get resolution for the people in that area on that question?
    Secretary Babbitt. The proposal, if you look at the map, it 
is, I think, quite economical. If you take a line on the map 
from the northern boundary of the Lake Mead National 
Recreational Area, and draw it straight across to the northern 
boundary of the Grand Canyon National Park, that is pretty 
close.
    There are a couple of adjustments to take in Mt. Trumble, 
which is an integral part of the sort of rim country there, and 
I think that is both common-sensical and ecologically 
appropriate.
    Grand Canyon Trust, as I understand it, would like it to 
extend north across the Grand Wash Cliffs, up to the Virgin 
Mountains, taking in a couple of somewhat larger wilderness 
areas and the space in between them.
    When we have a public hearing, I believe I am obliged to 
listen thoughtfully to every single proposal, including that 
one. I, at this point, am not persuaded of the utility of that 
principally because the logic of this proposal is about the 
Grand Canyon. Grand Wash Cliffs is fabulous country, but the 
logic of this one is Grand Canyon.
    Mr. Shadegg. I see my time has expired, but I would like, 
with the Chairman's indulgence, ask a couple of quick 
questions. First of all, as you are proposing it, the line you 
describe, that is the 605,000 acres referred to in your 
testimony?
    Secretary Babbitt. That is correct.
    Mr. Shadegg. The county refers to the limited boundaries 
agreed upon in the 400,000 acres. Do you know where the county 
got its figure of 400,000 acres? Was that a proposal you 
earlier discussed with them?
    Secretary Babbitt. I think there was some initial back-and-
forth. The 400 may well have come out of the Yaswick article in 
the Arizona Republic, and the reason for that is we went down 
together to look, and we did a lot of looking and talking 
around a campfire, and sort of scratching lines on maps. I 
think that is where that came from.
    Mr. Shadegg. My last question, going back to your comment 
earlier that you were interested in protecting grazing rights 
and protecting hunting in the area, do you have specific 
thoughts on how you might extend in a way that the people in 
the area could feel confident about, the preservation, long-
term preservation or protection of grazing rights and hunting 
rights in this area that might give some assurance. And I 
simply want to make the point that there was perhaps a day and 
time when, if the government said we are not going to change 
grazing rights in this area, we are not going to change hunting 
rights in this area, people would have accepted that. There is 
now some skepticism about that. And I wonder if you are 
thinking about creative new ways of providing those assurances, 
and if you would share them with the Committee now or in more 
detail in the future?
    Secretary Babbitt. I would be happy to share them with you. 
Indeed, I have, with ranchers out there. Either a Presidential 
Monument Proclamation or legislation should give a high degree 
of comfort to both groups for this reason. Legislation speaks 
for itself. To my knowledge, an Antiquities Act Proclamation 
has never been amended to change in any way the specification 
of use protection. I do not think there was a single one in 100 
years. So, I think either one of them has a lot of history 
behind it.
    Mr. Shadegg. For clarification, have there been those 
proclamations which have then been changed by statute?
    Secretary Babbitt. I do not believe so, not as to use. In 
the 100 year history, sometimes there are small boundary 
changes when Grand Canyon was drawn up into a national park.
    If I may--and you can, Mr. Chairman, cut me off if I am 
going too long. I would like to make this point. The ranchers 
and some of the other users are saying a monument is a slippery 
slope in the Grand Canyon National Park, with the exclusion of 
grazing and hunting. My argument to them is quite the contrary, 
for this reason. This is proposed as a BLM monument, and I 
would argue to the stakeholders that a BLM monument is your 
most secure assurance for an acceptable status quo, because the 
BLM--one reason monuments get upgraded in the parks is because 
they are both run by the Park Service. This is a BLM monument, 
and there is a reason for that, and it is the same reason that 
I have explained to Mr. Hansen's constituents in Escalante, and 
I spent the weekend with the Governor talking about, and that 
is that we have more flexibility to work these issues and to 
put them in a protective casing that the stakeholders and the 
BLM both have a powerful vested interest in keeping.
    Mr. Shadegg. I see my time is expired. Thank you, Mr. 
Secretary.
    Mr. Hansen. Thank you, Mr. Shadegg. Mr. Secretary, we 
appreciate your patience and tolerance. You have been with us 
an hour and a half----
    Mr. Inslee. Mr. Chairman?
    Mr. Hansen. The gentleman from Washington.
    Mr. Inslee. May I have one very brief closing comment?
    Mr. Hansen. Surely.
    Mr. Inslee. Mr. Shadegg referred to Fredonia, Arizona in 
his opening comments, and I want to say there is a Fredonia 
community in the State of Washington, and I just want to speak 
for the Fredonians in the State of Washington. By the way, 
Fredonia is not the mythical land in Duck Soup, it is actually 
a couple places.
    Secretary Babbitt. Mr. Inslee, I am doing a double-take 
because it is nice to see you back after all these years.
    Mr. Inslee. Thank you. Deja vu all over again. But, in any 
event, I just want to tell you that speaking for the Fredonians 
in the State of Washington, I am glad that since Congress is 
AWOL on mining reform, that the Executive Branch is on duty, 
and I just want to tell you we appreciate it up in Fredonia.
    Mr. Hansen. Did you want to respond, Mr. Secretary?
    Secretary Babbitt. No.
    Mr. Hansen. That is probably wise.
    Secretary Babbitt. I accept the compliment.
    Mr. Hansen. Mr. Secretary, thank you for your patience and 
your tolerance. You have been on the hot-seat there for an hour 
and a half, and thank you so very much. We appreciate your 
being with us, and we will look forward to more interesting 
things stated on a very important issue in front of us today. 
Mr. Leshy, we appreciate your being with us.
    Our last panel is Mr. Ernest Lehmann, from North Central 
Mineral Ventures, Minneapolis, Minnesota; Mr. David Getches, 
University of Colorado Law School, Boulder, Colorado. 
Gentlemen, we appreciate your patience, and thanks for being 
with us today on this important issue. Tell me, how long do you 
need?
    Mr. Lehmann. Approximately ten minutes, sir.
    Mr. Hansen. Mr. Getches?
    Mr. Getches. The same, Mr. Chairman.
    Mr. Hansen. Mr. Lehmann, the floor is yours.
    Secretary Babbitt. Mr. Chairman, thank you.

STATEMENT OF ERNEST K. LEHMANN, NORTH CENTRAL MINERAL VENTURES, 
                     MINNEAPOLIS, MINNESOTA

    Mr. Lehmann. My name is Ernest K. Lehmann. I am a resident 
of Minneapolis, Minnesota. As you can see from the resumes 
attached to the back of the written testimony, I am a geologist 
by training, and I have spent nearly 50 years actively engaged 
in the mining industry.
    I began my mining career as a miner in a small gold mine in 
Bannock, Montana in 1950. I apologize for the lack of eloquence 
that Mr. Babbitt has, but I welcome the chance to appear before 
you today relating to you the saga of how after spending about 
$1.5 million on successful gold exploration in the Sweet Grass 
Hills of Montana, how that has resulted--we are a case study in 
how FLPMA can be, and as we see it, abused and misused.
    A summary of the events is in the written testimony, a map 
showing where the Sweet Grass Hills are, for those of you who 
are not from Montana, it is shown as Figure 1. The land 
ownership in the Sweet Grass Hills is very complicated. It is 
shown on Figure 2. It is a patchwork of private Federal estate 
surface and minerals. The total Federal estate mineral totals 
approximately 19,635 acres, about one-third of the Sweet Grass 
Hills area.
    Between 1983 and 1992, Mount Royal Joint Venture, of which 
North Central Mineral is a partner and I am the operator, 
conducted a prospecting and exploration program in the Hills by 
ourselves and with major company partners. At the same time, 
BLM was conducting a major land planning effort and drafted the 
West HiLine Regional Management Plan, RMP, which reviewed the 
environmental and cultural resources of the Hills and the 
potential impacts to these resources from activities such as 
mining. The RMP was approved by the Director of BLM in a Record 
of Decision signed in January 1992. It established areas of 
critical environmental concern for the core area of the three 
main buttes, including East Butte where our activities were 
then focused, but it specifically left open the Federal lands 
in the Sweet Grass Hills for mineral entry. It also proposed to 
eliminate a land withdrawal in effect on public domain in 
Section 29 adjacent to our property.
    By 1992, we had conducted extensive exploration, 15,000 
feet of trenches (since reclaimed), over 1,400 systematic rock 
and trench samples, almost 4,300 feet of drilling and extensive 
soil sampling. Examples of that are shown in Figures 5 and 6 
attached to the packet.
    We had discovered a major gold deposit which, in our 
estimate, is approximately 1.7 million ounces of gold, which 
should be about 65-70 percent recoverable, and compares very 
favorably to other then planned or operating properties in the 
western U.S., which are documented on Table 2. Part of the 
Tootsie Creek Deposit is on lands we own in fee, part on 
private minerals we lease, part on public domain on which we 
hold 20 unpatented mining claims located under the Mining Law. 
Fourteen of these claims were located prior to 1992, and 
additional six were located in August 1995, which I will 
explain in a minute.
    In February 1992, 30 days after the Record of Decision 
leaving the area open for mineral entry, we filed a plan of 
operations with a new partner to reopen and construct roads, 
and to drill some 38 in-road drill sites to develop the Tootsie 
Creek Deposit.
    Previously, the exploration plans had gone through two EAs 
by the BLM, they had gone through two appeals by Indian groups 
to the IBLA, both appeals were rejected. The EA found no 
significant impact from our activities. However, instead of 
adhering to its then adopted plan, the BLM decided to do a full 
environmental impact statement before approving our new plan. 
When the draft EIS was published in early 1993, the preferred 
alternative in the draft was, in fact, to approve our work 
plan.
    I think the Secretary is a bit disingenuous in talking 
about public support, anti-mining support. To my knowledge, 
there are resolutions from both Toole and Liberty County Boards 
supporting continued exploration in accordance with proper 
laws. But at that time in May of 1993, interestingly enough, 
coincident with the Secretary's visit which he disclosed 
earlier today, the BLM made a 180-degree shift in policy and 
began a strategy calculated to block our efforts to further 
develop our discovery and deprive us of the economic benefits 
of our work.
    It appears that there were meetings in Washington in 1993 
to find a way to prevent approval of our plan. The substance of 
those discussions is summarized in a memorandum by one Josh 
Drew to then Director Jim Baca, which says in reference to our 
plan, ``With careful handling, the approval could be delayed 
many months or even years.'' A copy of the memo with Mr. Baca's 
enthusiastic handwritten response appears as Appendix I to the 
written testimony. This careful handling resulted in a filing 
of a petition to segregate the lands, to withdraw the lands, 
using as a justification for that segregation the same 
language, almost identical language to that that had been used 
to keep the area open for mineral entry with certain 
restrictions and to reopen Section 29.
    On August 3, 1993, Federal minerals were segregated and 
closed to mineral entry for two years. The withdrawal petition 
triggered three separate processes aimed to keep us from 
developing the Tootsie Creek Deposit. First, approval of our 
plan was suspended. BLM refuses to approve our plan. We have 
appealed this de facto denial of our plan to the IBLA, the 
Board of Land Appeals, but we have not had a ruling, as yet.
    Second, BLM began a validity examination of our unpatented 
claims to determine whether they constituted valid existing 
rights. The validity examination report found eight of our 
original 14 claims valid when it was finally produced in 
September 1995. The various claims and lands are depicted on 
Figures 3, 4 and 5. The validity report makes significant 
technical errors and uses a line of reasoning that bears no 
relationship to how mineral exploration and development are 
actually carried out in the real world. It strains to find 
invalid several claims in the core of the deposit in an obvious 
effort to undermine the deposit's value.
    The hearing on the six invalid claims finally occurred last 
spring, five years after the segregation order. We do not have 
a ruling, as yet. We are now 15 years into this project.
    During the hearing, we learned that the validity report had 
been personally overseen by Mr. Roger Haskins, the specialist 
for mining law adjudication in the Office of the Director of 
BLM. No doubt, a bit of careful handling.
    Third, because the proposed withdrawal represented a 
complete reversal of the RMP adopted only 20 months previously, 
the petition triggered the need for an amendment to the RMP and 
a new EIS on the proposed withdrawal. This new EIS revisited 
the same issues which had already been exhaustively addressed 
during the original planning process, during the EIS on our 
work plan.
    For some reason, BLM found itself unable to complete the 
EIS or the validity examination within the two-year segregation 
period provided by law. Therefore, in July 1994, the Director 
sought the advice of the Solicitor on how best to continue to 
prevent us from developing the Tootsie Creek Deposit. The 
Solicitor opined that two successive two-year segregations 
would probably be found illegal. His opinion is attached as 
Appendix II.
    In July 1995, notice was published that the first 
segregation would expire and that the lands would again be open 
to mineral entry. A few days later, then Congressman Williams 
introduced a bill proposing to withdraw the entire Federal 
mineral estate in the Sweet Grass Hills, with the obvious 
purpose of giving BLM a cover for filing an illegal second 
withdrawal petition to ``preserve the status quo'' and ``in aid 
of legislation.''
    After the first segregation order expired, we staked six 
additional claims, shown in blue on Figures 3, 4 and 5. BLM 
declared these claims void ``ab initio.'' We appealed this 
decision to IBLA which affirmed the BLM decision, with the 
unbelievable reasoning that the first withdrawal proposal was 
``not identical'' to the second one because it had a 
``different stated purpose.'' We do not know what that 
different purpose is.
    In May 1996, BLM finally published the Amendment/EIS. The 
EIS includes an analysis of the mineral potential of the area 
and our deposit. This analysis was castigated as technically 
unsound and unrealistic by the U.S. Bureau of Mines. The letter 
is attached as Appendix III. Using the same justifications used 
to keep the area open in January 1992, the EIS recommended that 
the entire mineral estate be withdrawn and that the valid pre-
existing rights be bought out, a process that BLM 
euphemistically refers to as ``land tenure adjustment.'' Sounds 
like a chiropractor to me.
    The entire Federal mineral estate in the Sweet Grass Hills, 
19,685 acres, was permanently withdrawn on April 10, 1997.
    My partners and I are determined to go on. As an 
experienced, prudent geologist and as a businessman with my own 
money at risk, I do not lightly conclude that the wealth of 
geologic data we have amassed indicates that we have discovered 
a world-class gold deposit at Tootsie Creek.
    We request that this Committee initiate appropriate 
legislative action to prevent these kinds of misuses of FLPMA 
which we do not believe were the intent when the Congress 
passed FLPMA in 1974. Thank you very much.
    Mrs. Cubin. [presiding] Thank you, Mr. Lehmann. You stated 
orally, although I do not believe it was in your written 
testimony, that Congressman Hill introduced legislation to 
withdraw the Sweet Grass----
    Mr. Lehmann. I said Williams, Congressman Williams.
    Mrs. Cubin. Correct. I just wanted to get that straight for 
the record.
    Mr. Lehmann. I am sorry.
    [The prepared statement of Mr. Lehmann may be found at the 
end of the hearing.]
    Mrs. Cubin. Thank you for your testimony.
    Mr. Getches.

 STATEMENT OF DAVID H. GETCHES, RAPHAEL J. MOSES PROFESSOR OF 
    NATURAL RESOURCES LAW, UNIVERSITY OF COLORADO LAW SCHOOL

    Mr. Getches. Thank you, Madam Chairman, Members of the 
Committee.
    I am David Getches, Professor of Natural Resources Law at 
the University of Colorado. I thank the Committee for the 
opportunity to testify today. I have been asked to talk a bit 
about the history and purposes of the FLPMA withdrawal 
provisions, and I will address that. I have submitted written 
testimony and I will try not to overlap that too much.
    In addition, I make available to the Committee this article 
in Volume 22 of the Natural Resources Journal, which is on the 
same subject, and provides a much more in-depth view of the 
subject than I am sure you can get into today.
    There indeed is a colorful history of the issue of 
withdrawals in the Nation's history and the way it has been 
used to protect the public lands. The history may not be as 
colorfully told in my Law Review article, but it is a key part 
of our Nation's history that is worth reading.
    The withdrawal authority was first exercised by the 
Executive, acting alone, by the President or the Secretary of 
Interior setting aside land for particular public uses. And in 
the early days, when the purpose of our public land laws was to 
dispose of the public lands, the withdrawal authority was used 
to facilitate that, to keep lands well integrated and 
unfragmented as a way to provide for their orderly disposal.
    Later, it was used to promote and facilitate programs of 
the Federal Government that necessitated setting lands aside. 
At times, it was used to prevent excesses and fraud and, more 
recently, now that we are in a period of retention and 
management of the public lands, the primary purpose of 
withdrawals is to complement the planning mandate that is in 
FLPMA.
    Now, the withdrawal authority of the President was upheld 
apart from any statutory authority whatsoever, by the United 
States Supreme Court in 1915, in the Midwest Oil case. The 
Supreme Court found that Congress had acquiesced in the 
repeated and continued use of the withdrawal authority by the 
Executive, and upheld it outside any kind of statutory regime.
    By that time, Presidents from Cleveland to Roosevelt had 
set aside through withdrawals almost all the land that is now 
in our national forests. That is where it came from. All that 
land was the product of withdrawals. Later, 140 million acres 
were set aside in grazing lands, subject to withdrawal and 
later classification with the consent and encouragement of 
Congress.
    Now, there certainly are some notorious stories. The 
Secretary referred to the former Senator from Arizona, Ralph 
Cameron. But he is not the most extraordinary example. In fact, 
probably the most notorious abuser of devices to circumvent 
withdrawals, was the ``old prospector,'' as they called him, 
Merle Zwiefel.
    Merle Zwiefel had a claimstaking service, and his ads 
bragged that he could stake 2,000 claims in a day. He succeeded 
during his time at staking 30 million acres in mining claims. 
When the Central Arizona Project aqueduct was being acquired to 
reach central Arizona from the Colorado River, there was the 
old prospector staking claims ahead of the pipeline. He staked 
600,000 acres in claims between Phoenix and Tucson alone. He 
also staked 465,000 acres of claims in the Piceance Basin in my 
area. He did these claims so rapidly using an aerial service 
where they simply dropped the stakes out of an airplane.
    Other stories, and other reasons for controversies and 
challenges and payoffs, are legion. The Secretary mentioned 
Yucca Mountain where it was necessary to pay for nuisance 
claims that had been acquired at the site of the Yucca Mountain 
waste facility. The conflicts also involve less notorious 
folks, legitimate miners who want to stake claims but their 
claims would be in the path of some future government plan or 
program, and to allow the claim it is actually unfair to them 
as well. It is not just a question of heading off the swindle 
artists and the nuisance claimants.
    Well, by the time the Public Land Law Review Commission, 
which was operating during the Nixon Administration, completed 
its work and submitted its report to Congress, there had been 
literally hundreds of withdrawals. Public land was kind of a 
clutter of withdrawals, and this was controversial, and 
Congress wanted to clean that up. It took this matter in hand 
with FLPMA. In FLPMA not only do we have this very orderly and 
simplified process for making withdrawals according to rules 
that are determined by tract size and length of time for which 
land is set aside in a withdrawal. It also provided a way that 
withdrawals can be terminated, something that did not exist 
before, and so we had this clutter of withdrawals on the books. 
Congress dealt with that, too.
    One thing that also needs to be mentioned is that Congress 
expanded the definition of withdrawals so that it did not just 
include setting aside lands for particular public uses, but 
also included, as stated in 1702(j) of FLPMA, that it enables 
the Secretary to limit activities under the Public Land Laws in 
order to maintain other public values. It is kind of a catch-
all, not just focusing on particular land uses.
    Withdrawal remains an important tool in the tool kit of the 
Secretary of Interior acting for the people of the United 
States. If land cannot be withdrawn quickly and efficiently 
when the Executive or Congress is considering doing something 
to protect that land or to make it part of a Federal program, 
we leave them exposed to nuisance claims, and also risk 
interrupting the expectations of good faith public land users, 
usually mining claimants that are being set up for 
disappointment if land is not set aside in this way. And the 
segregation mechanism that was discussed this morning is an 
intermediate step to put things on hold, to say ``time out'' 
while the matter is studied, so that the Secretary, together 
with Congress, together with interest groups, can decide 
whether a withdrawal is called for, whether legislation 
protecting the land in some other way is called for and, if so, 
what the terms ought to be.
    In short, prudence dictates that the expectations of both 
the private developer and the public not be disappointed by 
allowing land to be open under the Public Land Laws for uses 
that may later turn out to be inconsistent or for these 
nuisance claims.
    Now, the kind of flexibility that exists under the FLPMA 
withdrawal provisions is flexibility that no private landowner 
would be without, the ability to respond to changing 
conditions, to opportunities to use or protect or dedicate the 
land to uses that emerge. This is important and is something 
that every landowner wants, but is especially so on the public 
lands where there is a kind of easement in gross, kind of like 
a trump card that the miner walks around with capable of being 
played at anytime on the public lands to disrupt this whole 
planning process, this land management process that has been 
created by Congress under FLPMA.
    We are in an era of mandated planning under FLPMA. There 
are land use plans required of every agency. Those land use 
plans can only go so far. They can be interrupted by land uses 
that make impossible the carrying out of those plans or 
changing direction in the future as public demands require.
    Now, looking at this from the sweep of history, looking 
back at the past today, those withdrawals of the past seem like 
heroic acts. Today, most Americans, I think it is fair to say, 
take pride in withdrawals--for instance, the Tetons and the 
Grand Canyon. Who would begrudge an acre of those withdrawals? 
Those things are now possible in a much more orderly way under 
the FLPMA procedures. Although there has been some agonizing 
over every large withdrawal, 10 and 20 and 50 years later, 
there is no agony at all. Instead of regrets, we celebrate 
these things as part of our national heritage.
     Thank you, Madam Chairman.
    [The prepared statement of Mr. Getches may be found at the 
end of the hearing.]
    Mrs. Cubin. Thank you for your testimony. First of all, I 
need to ask unanimous consent, more or less ex post facto, for 
Mr. Shadegg to sit with the two Subcommittees and apologize to 
the Minority. I went to make a quick phone call and, as you can 
see, we are teaming with Majority Members and had I thought, I 
certainly would have asked one of you to take the Chair. So, 
please accept my apology. I will start the questioning.
    Mr. Getches, with your legal background, you would be 
helpful to the Committee in determining the best way to balance 
the Executive and Legislative Branch's authority to withdraw 
public lands. Could we call upon you to help us do that and 
review the FLPMA Amendment? Would you look at that favorably?
    Mr. Getches. Well, I think that you are exactly right, that 
the purpose of the FLPMA process of setting up three kinds of 
withdrawals and having this advance review process that we call 
``segregation'' is to provide balance and transparency. Now the 
public and Congress can be involved at the start and have 
notice in advance.
    It seems that there is considerable balance in the system 
as it exists. Large withdrawals, as the Committee knows, 
requires this almost NEPA-like study to be done, with reporting 
to Congress as required. Now, of course, there is doubt over 
whether or not the concurrent resolution process is valid under 
th Chadha case, but Congress retains its authority, its 
legislative authority, as always, to overturn those 
withdrawals. Presumably, it will have a factual basis to make 
the decision to sustain or to override the designation of 
future FLPMA withdrawals based on what you can get out of that 
FLPMA study.
    Mrs. Cubin. What I do not understand out of your response 
to that is how is this in balance when, in reality, it requires 
a two-thirds majority of both Houses to override the Secretary.
    Mr. Getches. Well, even if you assume that the President 
vetoed the legislation, first the process would be the 
reporting by the Secretary of the facts, the Congress' response 
to that, any further Secretarial action or lack thereof, a 
Congressional act disapproving, passing both Houses, and then 
presentment to the President when the President vetoes the 
bill. This is a rather extraordinary path, one which has never, 
ever occurred.
    Mrs. Cubin. I do not see how it would be extraordinary when 
the Secretary is an appointee of the President, and it is hard 
for me to imagine that the Secretary would not have the 
President's, if not permission, lack of objection, and 
therefore it would be most likely if the Congress were to 
override that, to require a two-thirds veto. Do you disagree 
with that?
    Mr. Getches. It is entirely possible that that would happen 
but, first of all, I think the FLPMA process that Congress has 
designed minimizes the chances you are going to get to that 
kind of showdown. You do have an opportunity to head that kind 
of thing off. Secondly, I do not think it is a foregone 
conclusion that the President will uphold everything that the 
Secretary does. Furthermore, we have, with changing 
Administrations and changing Congresses, a very likely scenario 
that the withdrawal would be considered in a different 
Administration, in any event.
    Mrs. Cubin. That certainly is a good point. I will just 
move on. Mr. Lehmann, I know that you have experience in 
dealing with hard-rock prospecting permits and leases on 
Federal lands in Minnesota and elsewhere the 1872 Mining Law 
does not operate. Have you had any success with permitting 
decisions under that type of discretionary system of mineral 
tenure?
    Mr. Lehmann. Well, yes, I have had fairly extensive 
experience on acquired lands. Quite a lot of forest lands in 
the Eastern U.S. and the non-mining law states are acquired 
lands that were mostly acquired since the 1920s, and they 
operate under the leasing system.
    The process in theory can work; in the specifics, it is 
difficult. I think you are referring to the idea of a plan 
restricting areas. The forest plans are becoming more 
restrictive. I just see the whole climate changing. I think the 
problem is not in the theory, as Mr. Getches presents it, the 
planning process, it is in the actual execution. In our case, 
in the Sweet Grass Hills, we participated in the planning 
process in the 1980s. The area was left open for mineral entry. 
We went through two EAs on operating plans. We went through 
proceedings before the IBLA. All of a sudden in 1993, with a 
change of Administration, using the same logic, the whole 
process reversed. And we can show you, we can document almost 
the identical language that flows through all these documents 
as the rationale for the various actions before 1993 and after 
1993. It is the way the process is used, and therefore whether 
it is on acquired lands or lands governed under FLPMA, my own 
personal feeling is that Congress has to reassert its authority 
to approve the actual withdrawals. And I think, frankly, that 
the 5,000-acre threshold is much too high. Our total holdings, 
including our private holdings, our private minerals that we 
lease, our private ownership in the Sweet Grass Hills, is only 
about 300 acres.
    Mrs. Cubin. Between the two systems for assessing Federal 
mineral rights, to me it is no wonder that you have looked at 
South America for mineral deposits. And the tragedy of that to 
me is that while the President did veto the Mining Law Revision 
that we passed in the 104th Congress, which included a royalty, 
beyond the royalty and the potential revenue to the Federal 
Treasury, the jobs that are created in mining are good paying 
jobs. They are good for the state economy and the school 
systems in the state, and so on, and it is not just in mining, 
it is in oil and gas. Just across-the-board what is happening 
to our natural resources industry is truly a tragedy in that 
when we cannot develop wealth and we rely on foreign countries 
for essential minerals, essential energy, and whatnot, the 
United States truly is strategically in jeopardy, in my 
opinion. So, thank both of you for your testimony. Mr. 
Underwood.
    Mr. Underwood. Thank you, Madam Chairwoman. Mr. Lehmann, 
the story that you told is a very interesting one, very 
compelling one. Yet, I cannot help but feel that the kinds of 
problems that you encountered after the change of 
Administration is the kind of problems that lots of people 
encounter when there is a kind of change of philosophy or a 
change of attitude about--and there is always some latitude, 
always some leeway given to new administrations to pursue 
policies in certain ways. How do you respond to that?
    Mr. Lehmann. Well, sir, Madam Chairman, Congressman, I 
respond to it this way. These activities like mineral 
exploration, oil and gas exploration, are long-term efforts. I 
mean, the essential thing is that you have some kind of surety 
of title, some kind of surety that you can go ahead. And that 
is essential because in this project, we were into it in 1992 
already nine years, now I am into it 16 years, some other 
projects are as long. These are long-term projects. They are 
long-term investments. They are fixed to the land. And I think 
we have a right to expect a reasonably consistent application 
of the laws and regulations that existed. And we followed them. 
We were very careful to follow them. And I think the BLM will 
agree that we followed all the regulations, and the state.
    Let me comment further. One of the things that has 
happened, why exploration is moving to Latin America, is that 
the Latin Americans have seen the light. I spent three years, 
from 1995 through 1997, managing an exploration program in 
Argentina. What made that possible was a change in the 
attitude, a change that the law was the law, and they were 
going to apply it. It is not the greatest mining law in the 
world, I can tell you that, it is very complicated, but we were 
able to function, and people are able to function, and there is 
a fairly consistent application. That is the first thing.
    Next to geology, the first thing we look at is some ability 
to deal with the land tenure issues. Otherwise, we cannot 
explore.
    Mr. Underwood. Mr. Lehmann, are there not legal avenues for 
compensation for your effort if it does not come to pass?
    Mr. Lehmann. Well, yes, Madam Chair, Congressman, yes, I 
hope there are. But, again, what has happened to us here is 
what we feel is a conscious attempt by the BLM and the way they 
handled the validity determination, to try to lower our value. 
Yes, we have recourse to the courts. We have probably recourse 
to the Court of Claims once a final decision has been made. 
Part of the thing is that it is so hard to get a final 
decision, and we cannot go to the courts until we do.
    Mr. Underwood. Could I just ask a question of the 
Professor. Mr. Getches, you made a fairly compelling statement 
about claims that are nuisance claims, and also some prudence 
into the process, you made a pitch for some prudence into the 
process. It is clear that Mr. Lehmann's claim is not a nuisance 
claim. I suppose he firmly believes and we would all concede 
that he was acting within a certain framework of expectations. 
What would you suggest as a kind of remedy to avoid these kinds 
of situations to bring closure to his case?
    Mr. Getches. Well, I think, first of all, it needs to be 
stated here that these withdrawals are all subject to valid 
existing rights, and so if he has a valid existing right, the 
withdrawal will be subject to that.
    Now, if it turns out that the withdrawal makes it 
particularly burdensome to carry out the mining operation 
because of restrictions that are placed on the land and the 
like, and it upsets the economics of the operation, then Mr. 
Lehmann is going to be upset about that. I do not know anything 
about his claims or the facts of this case, but it occurred to 
me, listening to this, that the planning process may have been 
flawed in the past, the planning process for these very lands 
that he described. And it is conceivable that the company would 
have been better off if this consideration of a withdrawal had 
occurred years ago and some of the land had been set aside, or 
not, and the matter had been cleared up through the kind of 
study and consideration of public use that apparently is going 
to go forward now.
    Mr. Underwood. Thank you. Just a question on the Argentina 
mining law. Is it more recent than 1872?
    Mr. Lehmann. A little bit more.
    Mr. Underwood. You do not need to answer that.
    Mr. Lehmann. No, I can answer that question because I am 
probably one of the few people who has read it cover-to-cover. 
It dates back to about the 1880s and has been amended several 
times, most recently while I was there, to deal with 
environmental issues, but essentially it is a mining law that 
was drafted in 1880-something.
    Mr. Underwood. Does the government collect royalties?
    Mr. Lehmann. The system there is, though the law is 
federal, the provincial governments actually administer it, and 
the provincial governments can, if they wish, charge a royalty. 
Some of them have opted to say no, we will not. There is a 
limit on the royalty they can charge.
    Mr. Underwood. Thank you.
    Mrs. Cubin. I find it interesting that the law that 
established Yellowstone National Park is actually six months 
older than the 1872 Mining Law, and yet I have not heard 
anybody complaining about that and the need to change that, 
just as a little aside, Mr. Underwood, my dear friend. Mr. 
Udall. Although I think we need to change it and charge a 
royalty.
    Mr. Udall of Colorado. Thank you, Madam Chair. I did want 
to express my appreciation for your clarification of the 
situation with Congressman Shadegg. I can tell you that my 
cousin, who has slightly more seniority than I do, is very 
willing and ready to take the chair, so thank you.
    I did want to acknowledge Professor Getches, who is from my 
home district, as a constituent of mine. It is nice to see him 
here. But I think he even has a more important constituent, who 
is his wife, Ann, who is also here today. So, I want to thank 
them for making the long trip from Colorado to be with us.
    Professor Getches, a couple of questions for you. It seems 
to me, in listening, that I have come to the conclusion that 
the FLPMA withdrawal authority seems to provide some balance to 
the Mining Law of 1872. Do you agree or disagree, and would you 
expand a little bit on that?
    Mr. Getches. Yes. I think one of the two major reasons that 
you need some kind of FLPMA withdrawal authority is to provide 
a counterbalance to the kind of trump-card authority that every 
citizen has over the public lands under the Mining Law. FLPMA 
provides fairness and balance. The other reason is to provide 
for long-range planning. In either case, you are taking the 
long view. And I think benefits could be characterized in terms 
of fairness to the locator as well. The self-initiation system 
is one where people have legitimate expectations that they can 
use the public lands for mining, and they need to know as soon 
as possible if that situation is changing.
    Mr. Udall of Colorado. Now, my thinking, which may or may 
not be logical--many of us who serve in this body could be 
accused of being illogical--but it seems to me if we were to 
revise FLPMA, then hand-in-glove you might need to taking a 
look at the Mining Law as well, and revising it. Do you have 
any further comments on that?
    Mr. Getches. Well, I think that there is a connection 
there. Certainly, if you took away any of the countervailing 
authority of the Secretary to protect lands from entry under 
the Mining Law, and the other public land laws, you would want 
to re-examine the self-initiation aspects of the Mining Law. I 
hasten to add that I think that independent of the Mining Law, 
you still have sound reasons as a part of the planning scenario 
to maintain that level of withdrawal authority. It might not 
have to be used as often, but you need it either way.
    Mr. Udall of Colorado. Thank you. Madam Chair, I have two 
final comments. I would just like to note, as we all know, 
these withdrawals are not irreversible regardless of the 
situation we are talking about, the wilderness, for example. If 
we came to a conclusion as a society, as a country, we had a 
different need for those lands, Congress could act and we could 
gather natural resources from those areas.
    Contrary to that, if a mine is put into place, that is 
really an irreversible act. The landscape has been changed 
forever. So, I think that is important to note.
    Also, we were talking earlier about the veto and 
legislative activity, and so on. It is interesting to remember 
that there was a Montana Wilderness Bill that was vetoed by 
President Reagan during his term, and we, as a body, if we 
would have had to have taken an override vote, would have had 
to come up with two-thirds of the House to overturn that veto 
of the President.
    So, the point I am trying to make is, there continues to 
be, I think, appropriate checks-and-balances in the process. I 
do not know, Professor Getches, if you have any further 
comment.
    Mr. Getches. I think checks-and-balances was what it was 
about. Congress really did carefully consider the FLPMA 
withdrawal provisions. Historians looking at this period 
believe that the single strongest motivating force for FLPMA 
was an examination of the withdrawal provisions. So these 
provisions were not cavalierly generated, and there has been 
surprisingly little controversy over their use.
    You mentioned the irreversible aspect of not withdrawing 
lands, allowing them to be developed, and then looking back on 
it with regret. The withdrawal mechanism can be seen as 
something akin to taking a family heirloom and putting it in a 
museum on display and protecting it for future generations. You 
have the choice of liquidating at anytime.
    Mr. Udall of Colorado. Thank you. Thank you, Madam Chair.
    Mrs. Cubin. I have one question for both of you and, Mr. 
Getches, if you would answer--actually, two questions, but they 
are the same subject--if you would answer it first. The first 
question, FLPMA gives the Secretary the ability to segregate 
lands for two years while formal withdrawal proceedings are 
underway.
    The first question is, do you interpret FLPMA as allowing 
the Secretary to use two-year segregations as a stand-alone 
tool, without an intention to make up a formal withdrawal?
    And the second question is, once the two years are up, is 
the Secretary allowed to publish the exact same segregation for 
another two years? Do you think that is allowable?
    Mr. Getches. The Secretary conceivably could use this as a 
stand-alone. I think Congress had in mind a study process where 
facts could be gathered and a decision could be made sometime 
during that two-year period, about what actually goes into the 
withdrawal. Presumably, a segregation would start out with 
particular boundaries, and those would be adjusted upward or 
downward, and the types of uses would be focused on during the 
two-year period. So, when you get to the withdrawal you have a 
much more reliable basis for making the withdrawal, and 
Congress has a much more reliable basis for evaluating it and 
playing its part.
    Mrs. Cubin. That is not what happened, though, with Sweet 
Grass Hills. What happened with Sweet Grass Hills is that the 
Secretary did a two-year segregation and then immediately just 
put the exact same segregation in for another two years, which 
seems like, at the very least, a stretch of the intent of the 
law.
    Mr. Getches. Well, this is a more modest way of proceeding 
than to take those boundaries and immediately convert them into 
a withdrawal because, once they are in the mode of a 
withdrawal, if this is less than a 5,000-acre withdrawal, it is 
fixed until it is revoked. And there is a particularly gentle 
aspect to the segregation mechanism, and that is that it 
vaporizes after two years. It does take another action to 
reestablish it.
    Mrs. Cubin. Well, I would say that is true, but the two-
year limit was set for a reason and that was that certain 
things were supposed to occur in that two years, and short of 
that, just for the Secretary to take the authority to just take 
another two years certainly seems opposed to legislative 
intent.
    Mr. Getches. Well, if, in fact, it was--and I have not 
examined it with the exact question you are raising in mind--
but if it turns out that the legal authority is limited to two 
years, then the Secretary, in that situation, would be put to 
the choice of making the withdrawal at that moment and then we 
would have a withdrawal that could not be undone without either 
legislation or following the termination procedures.
    Mrs. Cubin. Mr. Lehmann, could you respond?
    Mr. Lehmann. I have to preface that I am not an attorney, 
so my understanding is that the two years segregation is to 
trigger the preparation of an EIS, the NEPA process, to 
complete that NEPA process, to establish what are valid pre-
existing rights.
    I am advised by my counsel that the second two years is 
illegal, that that is not within the authority of the 
Secretary. And I think that if you read the opinion of the 
Solicitor that is attached to my testimony, I think he agreed 
with that, that that was not the preferred way to go, but they 
did it anyway. I do not know why they did it that way, but that 
was a way of delaying the process, it was a delay of doing 
something. I could have written the EIS in three days because 
they just used the same reasons they used before, anyway.
    Mrs. Cubin. Then you need to be part of UNESCO because they 
were able to determine in three days that the Crown Butte Mine 
was a threat to Yellowstone, when the scientists could not do 
it in three years.
    I do not have any further questions. I do thank the panel 
for their valuable testimony and for the answers to the 
questions and the time that they were willing to give us, and I 
thank the Congressman for his questions. The record will stay 
open for two weeks for any further questions or any revisions 
that the panel would like to make. So, thank you very much and, 
with that, the Subcommittee hearing is adjourned.
    [Whereupon, at 12:35 p.m., the joint Subcommittee hearing 
was adjourned.]
    [Additional material submitted for the record follows.]
       Statement of Hon. Bruce Babbitt, Secretary of the Interior

    I appreciate the opportunity to testify here today on 
proposed withdrawals of Federal land from location and entry 
under general land laws, including the mining laws. Your letter 
of invitation specifically directed attention to my recent 
actions to initiate withdrawals of 429,000 acres along the 
Rocky Mountain Front in the Lewis & Clark and Helena National 
Forests, and 605,000 acres in the Shivwits/Parashant region 
north of the Grand Canyon in northwestern Arizona. I welcome a 
public discussion of the usefulness of the withdrawals in 
contexts such as these, where other public values may be 
threatened by indiscriminate application of various public land 
laws, including the Mining Law. As I will discuss in more 
detail below, history clearly shows that withdrawals are often 
the best way to protect values of national interest that might 
be destroyed by inappropriate uses of public lands and national 
forests.
    First, let me put my recent actions into historical and 
statutory context. Withdrawals have long been an important tool 
of public land management. They are a mechanism, exercised by 
the Executive and Legislative branches for nearly two 
centuries, to limit the application of certain broadly 
applicable public land laws--especially those aimed at 
transferring interests in Federal lands out of Federal 
ownership.
    By the early part of this century, hundreds of executive 
withdrawals had been made for such disparate purposes as to 
establish forest reserves, to conserve wildlife, to create 
Indian reservations, or to make Federal lands available for 
military use. Many were made without express statutory 
authority from Congress, their legality was sometimes debated, 
but the Supreme Court settled the question in its landmark 
United States v. Midwest Oil Co. decision in 1915. It upheld 
executive power, noting that ``when it appeared that the public 
interest would be served by withdrawing or reserving parts of 
the public domain, nothing was more natural than to retain what 
the Government already owned.''
    Starting around the same time as the Midwest Oil decision, 
Congress has several times acted to confirm broad executive 
power to make withdrawals. It did so in the Antiquities Act of 
1906, authorizing the President to create national monuments, 
and it did it again in the Pickett Act of 1910. Most recently, 
it confirmed the power in the Federal Land Policy and 
Management Act (FLPMA), enacted in 1976. FLPMA broadly defines 
a withdrawal to include, in pertinent part:
        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.
    FLPMA also sets out specific procedures by which FLPMA withdrawals 
can be made. Generally speaking, the FLPMA withdrawal process is 
initiated when the Secretary of the Interior publishes a notice in the 
Federal Register in effect proposing a withdrawal of a tract of Federal 
lands. Upon publication the land identified is segregated from the 
operation of public land laws to the extent specified in the notice, 
for a period of up to two years. During that time, for larger proposed 
withdrawals (over 5,000 acres), the Department gathers information, 
engages in consultations, and evaluates the effects of the proposed 
withdrawal, as specified in FLPMA section 204(c). (The process for 
withdrawals under 5,000 acres is simpler, see section 204(d); and FLPMA 
also makes provision for emergency withdrawals of up to three years in 
length, see section 204(e).)
    Section 204 (c) provides that a FLPMA withdrawal of 5,000 or more 
acres may be terminated by Congressional action. The constitutionality 
of this so-called ``legislative veto'' provision was undermined, if not 
fatally impaired, by the Supreme Court's 1983 decision in INS v. 
Chadha, which struck down legislative vetoes as a violation of 
separation of powers.
    Completing this brief statutory overview, Section 204 (i) of FLPMA 
also provides that, for Federal lands under the control of a non-
Interior agency (such as the Forest Service in the Department of 
Agriculture), the Secretary of the Interior shall make, modify, or 
revoke withdrawals only with the consent of the head of the department 
or agency involved, except in emergency situations. This was the 
process used to segregate portions of the Lewis & Clark and Helena 
National Forests in Montana from the Mining Law. Finally, let me 
emphasize that any withdrawals made are subject to valid existing 
rights. If the holder of a mining claim, mineral lease or other 
interest in the area being withdrawn can establish such a right, it is 
not affected by the withdrawal.
    Turning now to our recent actions, the reason we acted is very 
simply stated: These proposed withdrawals under section 204(c) are 
aimed at making sure, while more permanent protections for these lands 
are being considered, that nothing happens on the ground that could 
interfere with, or make more costly, those protections of the land. We 
acted completely within the law, and within the long tradition of 
executive branch withdrawals. Indeed, considering some unhappy previous 
episodes, we would have been foolish not to have acted.
    Let me explain. There have been many incidents in western history 
of people using the antiquated 1872 Mining Law to file mining claims on 
Federal lands for purposes that have little or nothing to do with 
actual mining development. (The same opportunity for abuse existed with 
many other old public land laws intended to settle the West through 
Federal land privatization, but almost all of these other laws--unlike 
the Mining Law--have been repealed.) The presence of these claims can 
complicate sensible land management. The basic problem is that filing 
claims under the Mining Law is very easy. Getting rid of fraudulent or 
nuisance claims through contest proceedings is lengthy and difficult. 
This can lead the Federal Government to choose to buy out questionable 
or spurious claims rather than assuming the burden, expense, and delay 
involved in contesting them.
    Let me mention one of the oldest and two of the most recent 
examples:

         Beginning around 1890, a man named Ralph Cameron 
        staked numerous mining claims on what was then public domain 
        land along the south rim of the Grand Canyon and on the trails 
        leading from the rim to the Colorado River. Rather than looking 
        for minerals, Cameron used his claims to mine the pockets of 
        tourists instead, by controlling access and charging fees for 
        use of the Bright Angel Trail. This was the most popular hiking 
        trail for access to the Canyon, then as now. Numerous legal 
        challenges were eventually filed to these claims, but it took 
        nearly 20 years to remove Cameron's claims so the public could 
        enjoy this world-class area of Federal lands free from such 
        extortion.
         In the modem era, a fast-acting person staked mining 
        claims on public land at Yucca Mountain after Congress selected 
        the area for the national high-level nuclear waste disposal 
        site, but before the Federal Government cranked up the 
        machinery for withdrawing the land from the Mining Law. Rather 
        than going through expense and particularly the time to contest 
        his claims, the Department of Energy elected to pay him a 
        quarter of a million dollars of taxpayer money to relinquish 
        them.
         In 1989 the Department of the Interior determined that 
        it had to issue patents under the Mining Law for 780 acres of 
        land within the Oregon Dunes National Recreation Area, an 
        outstanding scenic and recreational treasure along the Pacific 
        coast. (The mineral ``discovery'' on the mining claims to be 
        patented was a so-called ``uncommon'' variety of sand.) Trying 
        to avoid creating such an inholding in the National Recreation 
        Area, the United States pursued a land exchange, intending to 
        offer the patentee other public land of equal value in Oregon 
        for the relinquishment of these claims. But when other public 
        land was identified for such an exchange, and before it could 
        be withdrawn, the holder of the claims in the Oregon Dunes 
        filed mining claims on that other land, making it impossible to 
        use them for the exchange.
    Obviously, these situations could have been avoided--with savings 
to the Nation's taxpayers--by timely withdrawals of the affected land 
from the Mining Law. It was to avoid a repeat of these situations that 
we recently acted in the Rocky Mountain Front and north of the Grand 
Canyon. Let me now provide a little more detail on each.

The Lewis & Clark and Helena National Forests

    Last year, the Forest Service settled a controversy of several 
decades by deciding through its Forest planning process not to allow 
new mineral leasing in the Rocky Mountain Front of Montana's Lewis & 
Clark National Forest because of its spectacular environmental, 
wildlife, recreational, cultural and scenic values. The area 
nevertheless remained open to location of mining claims under the 
Mining Law. Although it had never been the scene of any significant 
hardrock mining activity, the increased attention in the Forest Service 
plan to the management of the area for conservation could attract the 
location of ``nuisance'' mining claims such as has happened elsewhere. 
Indeed, a number of new mining claims were located in the area in 1996, 
while the Forest Service was considering the land use plan amendment 
affecting oil and gas leasing decisions on the Forest.
    Therefore, at the request of the Forest Service, on February 4, 
1999, the BLM published in the Federal Register notice of the proposal 
to withdraw this area from location of new mining claims, in order to 
protect Native American traditional and cultural uses, wildlife 
(including big game and fish habitats), and scenic resource values 
while the Forest Service evaluates long-term hard rock mineral 
management in the area. Publication segregates the land temporarily for 
up to two years. During the two-year period while a final withdrawal 
recommendation is developed, Interior and the Forest Service will 
conduct an open, public process under the BLM withdrawal regulations 
and the National Environmental Policy Act to evaluate the long-term 
future use of the area.

The Proposed Arizona National Monument

    The Shivwits Plateau/Parashant Canyon area of Arizona includes many 
objects of historic and scientific interest, as well as magnificent 
cliffs, stunning vistas, and a mosaic of pinyon-juniper and ponderosa 
pine communities. Congress almost included much of it in Grand Canyon 
National Park when it enlarged the Park in 1975, but took it out in the 
final stages of the legislative process because of objections from 
hunting and livestock interests. As you know, late last fall I began to 
evaluate this area for possible protection under the Antiquities Act, 
which could be done in a way to allow grazing and hunting to continue. 
The area has never seen any significant mineral development, and there 
are only a handful of mining claims there now. Being exceedingly 
mindful of the unhappy experience with Ralph Cameron on the other side 
of the Grand Canyon, I determined that it would be foolish to invite a 
repeat of that experience. Therefore, on December 14, 1998, the BLM 
published a Federal Register notice of a proposed withdrawal of the 
area pursuant to section 204 (b) of FLPMA. Publication had the effect 
of segregating the area temporarily. This will prevent location and 
entry under the general land and mining laws for up to two years, while 
further protective actions are contemplated.
    You also asked about any future plans for similar withdrawals. For 
much of its 150 year history, the Department of the Interior has been 
steadily making, modifying, and revoking withdrawals. The complex 
business of managing several hundred million acres of Federal land to 
serve the public interest demands no less. If we face situations 
elsewhere similar to those we faced in the Rocky Mountain Front and in 
the Shivwits/Parashant region--where important conservation values were 
at stake and where the attractive nuisance of mining claim location 
could have unnecessarily complicated our consideration of protective 
actions--I will not hesitate to act as I did there. I see nothing of 
value in allowing people to take advantage of easy entry onto public 
lands under antiquated relics like the Mining Law to mine the 
taxpayers' pockets and to thwart or hamper the protection of 
magnificent areas of Federal lands for future generations.
    Finally, you asked about what legislative remedies are available to 
ensure cooperation between the executive and legislative branches in 
fashioning public lands policy, in light of the Chadha decision. That 
decision, as I noted earlier, probably eliminated the legislative veto 
from FLPMA's withdrawal provisions. But its elimination does not 
meaningfully affect, in my judgment, the many opportunities for the 
executive and legislative branches to work together. In the specific 
examples I have discussed today, the temporary segregation of land we 
have put in place maintains the status quo while we are exploring 
administrative or legislative mechanisms for best managing these lands 
in the future.
    Furthermore, the lack of a legislative veto leaves it open for 
Congress as a whole--acting through the normal lawmaking process, 
involving action by both Houses and presentment to the President--to 
address withdrawals put in place by the Executive. To take a well-known 
recent example, the Congress just a few months ago passed and the 
President signed a law modifying the boundaries of the Grand Staircase-
Escalante National Monument, which the President two years earlier had 
created and withdrawn from entry, location, leasing or other 
disposition under the public land (including mining and mineral 
leasing) laws. As this shows, the ordinary give and take of the regular 
political process has much more influence on the management of Federal 
lands than whether or not Congress has a formal opportunity to veto a 
proposed FLPMA withdrawal.
    I appreciate the opportunity appear before these Subcommittees and 
discuss these important issues. I will be glad to answer any questions.
                                 ______
                                 
                     Statement of Ernest K. Lehmann
    My name is Ernest K. Lehmann. I am a resident of Minneapolis, 
Minnesota.
    I am a geologist by training and have spent nearly fifty years 
actively engaged in the mining industry. I majored in geology at 
Williams College in Massachusetts and attended graduate school at Brown 
University in Rhode Island. I has also completed an Advanced Management 
program at the Harvard Business School.
    I began my mining career as a miner in a small gold mine in 
Bannock, Montana in 1950 and, as you will see in a few minutes, 
attempting to mine gold in Montana may also end my career.
    Since 1950, I have worked, first for a large company conducting and 
managing mineral exploration, and then, for just over forty years, as a 
consultant. In my consulting career, I have managed exploration 
programs and joint ventures; been involved in planning and managing 
mining operations and development; conducted countless evaluations, 
appraisals and due diligence investigations; and helped write mining 
environmental regulations. As part of this work, I have had experience 
not only with the United States Mining Law, but also have been active 
on Federal acquired lands where minerals are governed by the Leasing 
Act. In addition, I have a considerable degree of familiarity with 
mining laws in a number of foreign jurisdictions, including Canada, 
Peru and Argentina.
    In the course of my work I have participated and had an integral 
role in a number of successful major discoveries, including lead-zinc 
deposits in Missouri, gold deposits in Montana and Argentina, a 
platinum-palladium deposit in Minnesota, copper-gold and copper-lead-
zinc deposits in Wisconsin and large chemical grade limestone deposits 
in Kentucky and Ohio.
    My clients have ranged from large to small mining companies, 
international institutions such as the World Bank, foreign governmental 
agencies, state governments including New Mexico, Arizona, Illinois and 
Maine, counties, banks, land and mineral rights owners. When ethically 
and financially appropriate, my companies have created, participated in 
and managed mineral exploration ventures with corporate and individual 
partners.
    I am a past president of the American Institute of Professional 
Geologists, a registered geologist in California, Minnesota, Georgia 
and Delaware; a member of numerous technical and professional 
organizations; president of an industry trade group--the Minnesota 
Exploration Association--and have been on a number of special 
committees at the local, state and national level, including one on 
strategic minerals which advised the Congressional Office of Technology 
Assessment.
    I welcome the chance to appear before you today to share with you 
the saga of our technically successful gold exploration in a remote 
area of Montana known as the Sweet Grass Hills, and the ``handling'' we 
have received from the Bureau of Land Management (``BLM'') and the 
Department of Interior (``DOI'') since 1992 as the reward for our 
efforts.
    As you will see, by using--and abusing--the authority under FLPMA 
to withdraw public lands, BLM and DOI have conducted a calculated 
campaign to deny our rights under the Mining Law and to prevent further 
development of what we believe may be a world class gold deposit.

Exploration and Discovery of the Tootsie Creek Deposit

    A brief history is in order\1\. In 1983, the Mount Royal Joint 
Venture, a group of three private investors from Minnesota (of which 
one of my companies is one and for which we are the operator), 
undertook a prospecting program in the Sweet Grass Hills. (Figure 1.) 
We based this program on the known occurrence of gold at West and 
Middle Buttes, on prior successes we had in the nearby Bear Paw 
Mountains, and on the then-developing large, low-grade Zortman-Landusky 
gold deposits in the Little Rocky Mountains. Both these areas are 
geologic terrain similar to the Sweet Grass Hills.
---------------------------------------------------------------------------
    \1\ Table I provides a brief history of exploration in the Sweet 
Grass Hills from 1983 to 1993.
---------------------------------------------------------------------------
    The Sweet Grass Hills are a group of isolated hills rising from the 
northern plains that represent volcanic centers. They are generally 
geologically similar and have a similar mineral potential to other 
groups of hills in north central Montana shown on Figure I and to other 
highly productive mineral areas elsewhere in the world.\2\
---------------------------------------------------------------------------
    \2\ The West HiLine Amendment/ElS published by BLM in 1996 as the 
basis for the withdrawal of the area acknowledged that the Hills are an 
``area of known high mineral potential.''
---------------------------------------------------------------------------
    The land ownership in the Hills (Figure 2) is a patch work of 
private fee lands, private surface underlain by Federal public domain 
minerals, state fee lands, Federal public domain fee lands and a few 
patches of Federal acquired surface. The Federal mineral estate totals 
about 19,685 acres, about one-third of the Sweet Grass Hills area. The 
area has been actively prospected for gold, iron and fluorspar since 
about 1885 and the areas around the flanks of the Hills have a 
significant number of producing oil wells. The Hills proper are used 
for cattle grazing, while the lower elevations support dry land 
farming. The small towns of Chester and Shelby are the main population 
centers.
    By 1985, our venture had produced sufficiently attractive results 
and we had established a significant land position of unpatented mining 
claims and private leases so that we were able to bring in a major 
partner, Santa Fe Minerals, which funded further mapping, sampling and 
drilling programs on Middle and East Butte through 1987. BLM conducted 
an Environmental Assessment (``EA'') prior to approving the Santa Fe 
plan of operations and found no significant impact. Though there were 
no Indian lands nearer than about sixty miles from East Butte, a 
challenge to the project was mounted by a Native American group but was 
rejected by the Interior Board of Land Appeals (``IBLA''). Santa Fe 
withdrew from the venture at the end of 1987. We then entered into a 
new arrangement with Cominco American Resources, which conducted 
additional studies in 1988 and 1989, including additional drilling in 
the Tootsie Creek area at East Butte. Again, BLM conducted an EA and 
approved the Cominco plan of operations. Another Native American group 
lodged a protest with the IBLA, which later ruled the appeal moot. 
Cominco chose to withdraw from the venture on completion of its work. 
In late 1991 we entered into yet another joint venture with a company 
called Manhattan Minerals.
    During this time, BLM was conducting a major land planning effort 
later promulgated as the West HiLine Regional Management Plan (``West 
HiLine RMP''). We participated in the hearing and made comments. The 
West HiLine RMP was approved by the Director of BLM who published a 
Record of Decision in January 1992 adopting the plan and specifically 
leaving the Federal lands in the Sweet Grass Hills open for mineral 
entry, location and development. The West HiLine RMP did establish an 
Area of Critical Environmental Concern (``ACEC'') for the core area of 
the three main buttes, including East Butte where our activities were 
then focused. Not only did the BLM leave the area open for mineral 
entry, but it also proposed to eliminate a Bureau of Reclamation 
withdrawal in effect on the public domain minerals in Section 29, 
adjacent to our core private and public domain holdings. This is an 
area of high mineral potential.
    By 1992, we had conducted extensive exploration work in an area of 
East Butte known as Tootsie Creek with very promising results. (Figures 
5 and 6). We had conducted soil sampling across the Tootsie Creek area 
and had collected over 1,400 samples from rock outcrop and over 15,000 
feet of trenches (all now reclaimed) and from 14 drill holes totaling 
4,292 feet. The data demonstrates the discovery of an impressive 
occurrence of gold mineralization over an area about a mile east-west 
by two-thirds of a mile north-south. The geologic evidence, confirmed 
by engineering estimates, indicates that we have an asset that may 
contain as much as 1.7 million ounces of gold, about 70 percent 
recoverable, in a large, low grade deposit. We believe that Tootsie 
Creek compares well with other large, low grade gold deposits in the 
western United States and will be economic is properly designed and 
operated. (See Table 2.) Part of the Tootsie Creek Deposit is on lands 
we own, part on private minerals we lease, and part on public domain on 
which we hold 20 unpatented mining claims located under the Mining Law 
(fourteen of which were located prior to 1992, and six of which were 
located in August 1995 as I will explain later).

The Royal East Plan of Operations

    In February 1992, about thirty days after the ROD leaving the area 
open to mineral entry was made, our joint venture filed a new plan of 
operations to reopen some roads, construct some additional roads, and 
drill thirty-eight in-road drill holes to develop the Tootsie Creek 
Deposit (the ``Royal East Plan of Operations''). Instead of adhering to 
its just adopted ROD, the BLM chose to insist that, even after two 
previous EAs made a finding of no significant impact from our 
exploration efforts, a full Environmental Impact Statement (``EIS'') 
was now needed before our plan could be approved. During this process, 
Manhattan Minerals advised me that if they could not begin operations 
by mid-summer 1993, they would withdraw from the project. When the 
draft Royal East EIS was finally published in early 1993, the 
``preferred alternative'' was to approve the plan. In fact, in a 
conversation with me in May 1993, the BLM District Manager advised me 
that he would go ahead and approve the plan.

The Josh Drew Memo

    Although we were led to believe that we would be able to continue 
developing the Tootsie Creek Deposit, we now know that during this time 
BLM made a 180 degree shift in policy with respect to management of the 
Sweet Grass Hills and began a calculated strategy to block our efforts 
to further develop our discovery and to deprive us of the economic 
benefits of our work. From the evidence we have, meetings took place in 
Washington in June 1993 to find a way to prevent approval of our plan. 
The substance of some of these discussions is summarized in a 
memorandum from Josh Drew to then Director Jim Baca which says in 
reference to our plan, ``With careful handling, the approval could be 
delayed many months or even years.'' Mr. Baca's enthusiastic hand 
written response--``Josh-Proceed immediately. Do Press. See me. JB''--
appears on the front of our copy of the memo. (Appendix 1.)
The First Withdrawal Petition

    The first step in this strategy was for BLM to use its authority 
under FLPMA to petition the Secretary of Interior to withdraw the 
entire Federal mineral estate (19,685 acres) in the Hills. Strangely, 
the language used to justify the petition was almost exactly the same 
language that had been used to justify keeping the area open to mineral 
entry, with restrictions, and to reopen Section 29. Assistant Secretary 
Armstrong approved the petition and ordered that the Federal mineral 
lands be segregated--that is, closed to mineral entry, location and 
development--for a period of up to two years while the proposed 
withdrawal was considered. The effective date of the segregation was 
August 3, 1993.
    Approval of the petition triggered three separate processes:

    First, completion of the Royal East EIS and approval of our plan of 
operations was suspended indefinitely. To this day, BLM has never 
completed the Royal East EIS or approved our plan. We have appealed 
what is in effect a de facto denial of our plan to the IBLA but no 
ruling has yet been made.
    Second, we were immediately informed that BLM would conduct a 
validity examination of our unpatented mining claims to determine 
whether they met the discovery requirements of the Mining Law and were 
``valid existing rights'' which would not be subject to a withdrawal. 
The validity examination report on our fourteen original claims was 
finally produced in September 1995. The Mineral Examiner found eight of 
those fourteen claims valid and six invalid (See Figures 3, 4 and 5). 
The original report contained some interesting and instructive 
typographical errors and the report makes significant technical errors 
and follows a strange line of reasoning that bears no relationship to 
how mineral exploration and development are actually carried out in the 
real world. The report strains to find invalid several claims in the 
core of the deposit in an effort to minimize the economic value of our 
property.
    It was like pulling teeth to get a claim contest on the six 
``invalid'' claims before an administrative law judge. The contest 
hearing finally occurred last spring, almost a year ago\3\, but we have 
not had a ruling yet. During the hearing we learned that preparation of 
the mineral report had been personally overseen by Roger Haskins, the 
senior specialist for mining law adjudication in the office of the 
Director of BLM. Part of the ``careful handling'' we were receiving 
throughout this process, no doubt.
---------------------------------------------------------------------------
    \3\ It was about 2.5 years from the time of the issuance of the 
Examiner's report and the evidentiary hearing.
---------------------------------------------------------------------------
    Incidentally, even though there were at the time a significant 
number of other claims in the Hills held by others, as far as we can 
determine, only our Tootsie Creek claims were the target of a validity 
examination.
    Third, because the proposed withdrawal represented a complete 
reversal of the West HiLine RMP (adopted only 20 months previously), 
the withdrawal petition triggered the need to prepare an amendment to 
the West HiLine RMP, and, of course, an EIS on the proposed withdrawal 
(the ``West HiLine Amendment/EIS''). The West HiLine Amendment EIS 
revisited the same issues which had already been exhaustively addressed 
during the original West HiLine RMP planning process.

The Second Withdrawal Petition

    For reasons that we don't understand, the BLM found itself unable 
to complete either the West HiLine Amendment/EIS or the validity 
examination of our claims within the two-year segregation period. In 
July 1994, the Director sought the advice of the Solicitor on how to 
continue to prevent us from developing the Tootsie Creek deposit. 
(Appendix II). The Solicitor recommended that before the segregation 
period expired on August 2, 1995, the Secretary should complete the 
withdrawal despite the fact that the West HiLine Amendment/EIS would 
not be completed, or in the alternative, to pursue an emergency 
withdrawal or a withdrawal ``in aid of legislation.'' The Solicitor 
advised against filing a second repetitive withdrawal petition, stating 
that ``It is likely that the courts would treat such an action as a 
circumvention of the two-year limit'' on segregations contained in 
FLPMA. According to the plain language of FLPMA, emergency withdrawals 
and withdrawals ``in aid of legislation'' are limited to 5,000 acres.
    In July 1995, notice was published in the Federal Register that the 
segregation would expire and that the lands would again be open to 
mineral entry and location. A few days later, then-Congressman Williams 
introduced a bill proposing to withdraw the entire Federal mineral 
estate in the Sweet Grass Hills. Needless to say, that bill never saw 
the light of day in this Committee, but its obvious purpose was to give 
BLM cover in filing a second withdrawal petition. The purpose of the 
second withdrawal petition was to ``preserve the status quo'' for the 
same purposes as the first withdraw petition and ``in aid of 
legislation'' then pending in Congress.
    On August 3 and 4, 1995, after the first segregation expired, we 
staked six additional claims on the west side of our land block to 
cover ground we felt was immediately prospective based on our prior 
work. These claims are shown in blue on Figures 3, 4 and 5. We properly 
filed these claims with the county and the BLM and continue to pay our 
assessment fees. The BLM declared these claims void ``ab initio'' based 
on the segregatory effect of the second withdrawal petition. We 
appealed this decision to the IBLA which affirmed the BLM decision, 
reasoning that the first withdrawal proposal was ``not identical'' to 
the second one because it had a ``different stated purpose.'' 144 IBLA 
277 (June 11, 1998).
    In extending the segregation for an additional two-years, BLM 
relied on rhetoric over substance, and a ``phony'' bill introduced in 
Congress. We do not believe that the withdrawal authority under FLPMA 
was ever intended to be used in this way.

The West HiLine Amendment/EIS

    In May 1996, BLM finally published the West HiLine Amendment/EIS. 
The EIS purports to include an analysis of the mineral potential of the 
area, which it admits is an area of ``high mineral potential.'' The 
technical geologic and mineral analysis of the EIS was castigated as 
technically unsound and unrealistic by BLM's sister agency, the Bureau 
of Mines (``BOM''). (Appendix III). The preferred alternative was 
withdrawal of the entire Federal mineral estate, again using much of 
the same justifications used to keep the area open as an ACEC in 
January 1992, and to buy out valid existing rights, euphemistically 
referred to as ``land tenure adjustment.''
    The entire Federal mineral estate in the Sweet Grass Hills, 19,685 
acres, was withdrawn on April 10, 1997.

Conclusion

    Where are we now, after sixteen years in the project and about $1.5 
million of highly professional and effective exploration? After over 
seven years and several hundred thousand dollars of expenditure since 
filing our 1992 plan of operations?
    My partners and I are determined to go on. I have a reputation as a 
prudent geologist and I do not come lightly to the conclusion that the 
wealth of geologic data we have amassed indicates that we have 
discovered a world class gold deposit at Tootsie Creek.
    We continue our work, but unfortunately for the last seven years 
this is work by lawyers and expert witnesses and not by geologists, 
engineers and miners. This work is not finding or developing an ore 
body or providing jobs for people in north central Montana. It is not 
raising tax revenues for the local schools, towns or the state of 
Montana.
    As I indicated, we are awaiting a decision from the IBLA on the 
refusal to approve our 1992 plan of operations. We are also awaiting a 
decision from the administrative law judge on our claims contest and 
are confident we will prevail. And we are weighing our options with 
respect to the IBLA decision on the six new claims staked after the 
first segregation period expired in 1995.
    We would ask this Committee to initiate appropriate legislative 
actions to assist us and to prevent this abuse of the Congress's intent 
in passing FLPMA to limit the exercise of unconstitutional authority by 
the Secretary to make decisions respecting the disposition of the 
public land.
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Statement of David H. Getches,\1\ Raphael J. Moses Professor of Natural 
          Resources Law, University of Colorado School of Law
---------------------------------------------------------------------------

    \1\ Raphael J. Moses Professor of Law, University of Colorado. 
Courses taught: Public Land Law, Indian Law, Pollution Law, Foundations 
of Natural Resources Law, and various seminars. Published several books 
and articles. Formerly Executive Director, State of Colorado Department 
of Natural Resources; Founding Director, Native American Rights Fund. 
Chairman, Board of Trustees, Grand Canyon Trust; Board of Directors, 
Land and Water Fund of the Rockies; Board of Trustees, Rocky Mountain 
Mineral Law Foundation.
---------------------------------------------------------------------------
    The authority of the Executive to withdraw public lands 
from the operation of the public land laws has a venerable but 
sometimes contentious history. Often, withdrawal authority has 
been indispensable in rescuing lands from abuses under those 
laws. At times, the Executive has encountered the wrath of 
Congress or an individual state's government when it has acted 
to reserve or withdraw public lands. But usually the Executive 
action has been viewed as essential to conserving national 
assets. Indeed, history has judged virtually every major 
withdrawal--especially those that were the most controversial 
in their time--as wise.
    The practice of withdrawal was, for many years, an 
imprecise, even disorderly affair. It does not overstate the 
matter to say that the President, for most of the nation's 
history simply withdrew whatever lands he viewed as threatened, 
or that were needed for a particular public use or purpose, 
from the operation of whatever land public land laws might be 
in conflict.\2\
---------------------------------------------------------------------------
    \2\ See generally David H. Getches, Managing the Public Lands: The 
Authority of the Executive to Withdraw Lands, 22 Nat. Resources J. 279 
(1982).
---------------------------------------------------------------------------
    Over the years, Congress passed laws encouraging some types 
of withdrawals (e.g., Antiquities Act, 16 U.S.C. Sec.  431; 
Taylor Grazing Act, 43 U.S.C. Sec.  315), limiting the extent 
of withdrawals for some purposes (e.g., Defense Withdrawals 
Act, 43 U.S.C. Sec.  155), and clarifying the nature of the 
Executive's authority to make withdrawals (Pickett Act of 
1910). When those statutes fit the situation, the Executive 
used them to make withdrawals. When they did not the Executive 
made the withdrawals anyway.
    The Executive's non-statutory withdrawals were regularly 
upheld by the courts. See United States v. Midwest Oil, 236 
U.S. 459 (1915). The United States Supreme Court in Midwest Oil 
found that, although Congress has power to manage the public 
lands under the Property Clause of the Constitution, it had 
long acquiesced in the President's actions in making 
withdrawals. Thus, the President had ``implied authority'' that 
existed because Congress must have known of the withdrawals but 
failed to reverse them or to limit the Executive's actions.
    The Supreme Court concluded that upholding the President's 
authority based on continued usage was reasonable because 
``government is a practical affair intended for practical 
men.'' Midwest Oil, 236 U.S. at 472. The Court understood how 
important it was for the Executive to be able to act, often in 
the face of urgency, in hundreds of cases, and to consider the 
situation of millions of acres of diverse lands. It understood 
also how unrealistic it would be for Congress to take up the 
details of each such case.
    Public land withdrawals largely outside a statutory 
framework perhaps fit an earlier time when there was little 
coherence or policy direction in management of the public land 
resources. But regimes of land protection and use that varied 
so substantially with Administrations did not fit as well in a 
later era when Congress and the public was demanding greater 
stewardship and more scientific and efficient use of 
nationally-owned resources.
    The landmark study by the Public Land Law Review Commission 
(PLLRC) entitled One Third of the Nation's Land found that the 
outmoded land disposal policies of the past were reflected in 
many old laws still on the books. These laws were not in accord 
with current policies of conservation and management of the 
Federal lands. In particular it found that withdrawal practices 
had been exercised in an ``uncontrolled and haphazard manner.'' 
So the PLLRC recommended sweeping reform of the public land 
laws, including procedures of making withdrawals.
    Congress carefully considered the PLLRC's recommendations, 
then enacted revolutionary legislation, most notably the 
Federal Land Policy Management Act of 1976 (FLPMA). At last, 
the Bureau of Land Management got an organic act, telling it to 
take greater stewardship over the lands under its jurisdiction.
    In FLPMA, Congress required that land management agencies 
engage in land use planning for rational programs for use and 
intensive management of public lands for multiple purposes. It 
anticipated that planning would dramatically shape and direct 
the types of uses allowed and would be implemented through 
exercises of considerable discretion aimed at specific tracts. 
Therefore, it gave land managers new authority and 
responsibilities. In light of these duties and powers, why 
would the

Secretary also need to use the old method removing blocks of 
land from the operation of the public land laws through 
withdrawals?
    Congress, like the PLLRC, was concerned about how the 
Executive had used its authority to withdraw public lands in 
the past and it took matters in hand. In FLPMA, it repealed 
some 29 statutes allowing for withdrawals and it repealed the 
President's ``implied authority'' to make withdrawals. But it 
knew that the withdrawal tool remained important. This was so 
because FLPMA left some gaps in public land management.
    Compromises were made in drafting and passing FLPMA to 
preserve some anachronisms in public land law that had 
continuing support among members of Congress. Notably, the 
General Mining Law still allowed private parties to stake and 
develop mineral claims on much of the nation's public lands, 
and FLPMA specifically restricted the land managers' discretion 
to regulate or interfere with this time-honored practice. This 
extraordinary prerogative in the hands of private parties 
suggested the need for some method of preserving the public's 
interest in affected lands. Furthermore, Congress saw that, 
notwithstanding all the planning and management expected under 
FLPMA and other public land laws, emergencies would arise, 
public opinion and the government's needs to use particular 
lands would change, and some public land uses could threaten 
other uses in ways not foreseeable or controllable under the 
public land laws. And when these situations arose, the 
Executive needed to be able to act--and to tip the balance in 
favor of conservation.
    So Congress perpetuated strong, extensive Executive 
authority to withdraw public lands from the operation from any 
and all uses under the public land laws. The Secretary of the 
Interior was given broad powers in Sec.  204 of FLPMA. But the 
exercise of those powers was surrounded with procedures 
tailored by Congress to the size and duration of the 
withdrawal.
    Congress remains involved in the process as well. Congress 
is able to trigger emergency withdrawals and the Secretary must 
respond. And the Secretary is required to report withdrawals to 
Congress. Large withdrawals must be carefully studied and a 
NEPA-like report must be made by Congress on the details of the 
withdrawal. The Secretary must also hold public hearings 
regarding FLPMA withdrawals. These procedural requirements are 
intended to assure that the Secretary does not act cavalierly, 
and they provide Congress with the information it needs to act 
quickly to modify or reverse the Secretary's decision if it 
disapproves\3\.
---------------------------------------------------------------------------
    \3\ The method prescribed by FLPMA for congressional disapproval of 
secretarial withdrawals by concurrent resolution has been thrown into 
doubt by the decision in INS v. Chadha, 462 U.S. 919 (1983). But 
Congress retains the power it always has had to legislate to modify or 
reverse the Secretary's withdrawal decision.
---------------------------------------------------------------------------
    Furthermore, Congress provided procedures for revoking or 
modifying public land withdrawals. Many withdrawals in the past 
had been made without sufficient care, some were imprecisely 
defined, and some had been left unmodified even as conditions 
changed. Consequently, Congress also required the Secretary to 
undertake a review of the hundreds of old withdrawals on the 
books in order to ``clean up'' the public land rolls, 
attempting to ensure that unnecessary withdrawals were removed 
and necessary ones were perpetuated or fine-tuned to present 
demands.
    Today, the Secretary has a rule-book to follow in making 
withdrawals set forth in section 204 of FLPMA. His authority is 
vitally important in protecting the health of the public lands. 
Indeed, it is a management tool every landowner must have--the 
ability to make quick decisions when new conditions arise, 
different opportunities are presented, or more public values 
can be fulfilled. A private property owner would not give up 
the prerogative to be flexible in protecting its land as 
conditions and or the owner's objectives change, and Congress 
has ensured in FLPMA that the American public retains that 
essential attribute of property in the Federal public lands 
that are so important to our heritage.
                                ------                                


Statement of Hon. J.D. Hayworth, a Representative in Congress from the 
                            State of Arizona

    Chairman Hansen, members of the Subcommittee, and 
distinguished guests, I appreciate the opportunity you have 
extended to comment on the proposed expansion of Grand Canyon 
National Park, through incorporation of the Shivwits Plateau. 
Let me be clear and unequivocal: I strongly oppose the creation 
of the Shivwits Plateau National Monument or expansion of the 
Grand Canyon National Park.
    The creation of a new national monument by bureaucratic 
fiat--using the Antiquities Act of 1906--would strip Congress 
of our legislative powers and would represent one of the 
biggest land grabs in American history. Mr. Chairman, you know 
full well about the devastating and unfortunate effects that 
the misuse of the Antiquities Act by this administration had on 
Utah. I agree with your senior senator, Senator Orrin Hatch, 
who called the creation of the Grand Staircase-Escalante 
National Monument through the Antiquities Act the ``mother of 
all land grabs.'' No public hearings were held on the creation 
of the monument. Every member of the Utah congressional 
delegation vigorously opposed this proposal, as did the 
governor and the majority of state legislators. We will face a 
similar backlash in Arizona if Secretary of the Interior Bruce 
Babbitt and the Clinton Administration act unilaterally in 
designating the proposed Shivwits Plateau National Monument 
through the broad use of this well-intentioned Act. That is why 
I support your legislation to decrease the amount of acreage 
that can be taken when designating land through the Antiquities 
Act.
    Last Monday, Secretary Babbitt was in Flagstaff, Arizona to 
hold an informal, off-the-record town hall about the proposed 
national monument. There were several interesting revelations 
made by the Secretary during this hearing, but I would like to 
focus on just one. Secretary Babbitt admitted that he was 
``interested in getting [the monument designation] done in the 
next 18 months . . . on my watch.'' This presents several 
problems. First, he would usurp Congress's power to legislate. 
Although the President has the authority to designate lands 
through the Antiquities Act, it has been used infrequently and 
was never intended to designate large tracts of land. In fact, 
the Act specifically states that the president should use the 
least amount of acreage possible. The Shivwits proposal 
contains approximately 500,000 acres. This is certainly not the 
least amount of acreage possible to protect sensitive lands.
    Second, 18 months is not sufficient time to receive input 
about this potential designation. People that would be affected 
by the proposal and should be part of the process would 
inevitably be left out because of the quick timetable involved 
in this proposed designation. Moreover, this is a very 
complicated proposal. The proposed monument include Bureau of 
Land Management (BLM) land, state land, and private land. Among 
those who would be affected are private land owners, ranchers, 
farmers, mineral rights holders, and others. Shouldn't we have 
input from folks who have been living on the land for several 
generations before moving forward with this proposal?
    Finally, the most disturbing aspect of Secretary Babbitt's 
statement is that he wants it done ``on his watch.'' What 
Secretary Babbitt is really saying is that he wants to leave 
his imprint on the West regardless of the views of the Western 
people. This is wrong and, for this reason alone, the proposal 
should be heavily scrutinized.
    Mr. Chairman, it is my understanding that approximately 500 
people attended Babbitt's meeting in Flagstaff. The crowd was 
overwhelmingly opposed to the creation of this monument. In 
fact, of the 44 people that spoke at the meeting, 12 favored 
the monument designation, 30 opposed the proposal, and two 
stated they had not formed an opinion.
    With my statement, I am enclosing an article published in 
the Arizona Daily Sun about Babbitt's town hall meeting in 
Flagstaff. Many of the sentiments shared at the, meeting and in 
this article are those shared by me and my constituents. 
Unfortunately, the administration may act without the consent 
or support of Congress or the people of Arizona. It is no 
wonder that the American people are so disenchanted with the 
Federal Government.
    Shortly, the Arizona delegation, with Arizona Governor Jane 
Dee Hull, will send a letter to Secretary Babbitt expressing in 
the strongest possible terms our opposition to designating the 
Shivwits Plateau National Monument. We encourage the Secretary 
to engage us, and our constituents, in this very complicated 
and very controversial plan. The public deserves no less. We 
must stop unilateral action by the administration without 
involving Congress and the people of Arizona in this important 
discussion.
    Mr. Chairman, thanks again for holding this important 
hearing and for giving me the opportunity to discuss the 
proposed Shivwits Plateau National Monument.
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