[Congressional Record Volume 154, Number 107 (Thursday, June 26, 2008)]
[Extensions of Remarks]
[Pages E1382-E1383]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      BOGUS WITHDRAWAL RESOLUTION

                                 ______
                                 

                             HON. DON YOUNG

                               of alaska

                    in the house of representatives

                        Thursday, June 26, 2008

  Mr. YOUNG of Alaska. Madam Speaker, on June 25, 2008, the Committee 
on Natural Resources adopted a resolution directing the Secretary of 
the Interior to make an emergency withdrawal of more than one million 
acres of land in Arizona from the operation of the mining laws, 
jeopardizing significant reserves of critical high-grade sources of 
uranium for clean-burning nuclear power plants. The Committee passed 
this resolution without a quorum present in violation of House and 
Committee rules, as documented by the 20-2 roll call vote on the motion 
to adopt. In addition, the Republicans had vacated the markup in 
protest of what is an unconstitutional measure, and so this vote 
reflects only those of Democratic members. The resolution therefore 
clearly does not reflect the views of the Committee on Natural 
Resources.
  The majority marked up the resolution even though the use of this 
authority under section 204(e) of the Federal Land Policy Management 
Act is clearly unconstitutional. This view is supported by an informal 
opinion of the Justice Department issued in 1983 as well as a recent 
analysis by the Congressional Research Service. I reproduce the Justice 
Memorandum below and have appended the conclusion of the CRS American 
Law Division.
  There is no emergency. If there was, the Secretary of the Interior 
would use his own power to make an emergency withdrawal. The reality is 
that the majority could not pass actual legislation locking up these 
millions of acres of public lands from resource development--in an area 
where there are already many mining claims.
  This resolution is a toothless act of political theater. I hope that 
Interior Secretary Kempthorne gives it all the deference it deserves--
none.

     Subject: Legislative Veto Provision Contained in Sec. 204(e) 
         of FLPMA.
     Date: September 12, 1983.

       From: Name: Ralph W. Tarr, Office Symbol: OLC.
       Statement: This memorandum memorializes the oral advice I 
     recently conveyed to the Solicitor's Office of the Interior 
     Department concerning conclusions we reached as to the 
     legislative veto provision contained in Sec. 204(e) of the 
     Federal Land Policy and Management Act of 1976 (FLPMA), 43 
     U.S.C. Sec. 1714(e). That section provides in pertinent part 
     that the Committee on Interior and Insular Affairs of either 
     House of Congress (subsequently designated as the Committee 
     on Energy and Natural Resources in the Senate) may notify the 
     Secretary of the Interior (``Secretary'') that an emergency 
     situation exists and direct the Secretary to withdraw certain 
     public lands from disposition under laws pertaining to 
     mineral leasing.
       Previous litigation under this provision followed a 
     Resolution of May 21, 1981, by the House Committee, directed 
     to the Secretary, for the withdrawal of certain lands in the 
     Bob Marshall, Great Bear, and Scapegoat Wilderness Areas. 
     This Office determined, and the Department subsequently took 
     the position in that litigation, that Sec. 204(e) was 
     unconstitutional insofar as it authorized a Committee of 
     either House to direct the Secretary to take an action which 
     would change the status of public lands. It was our view that 
     the provision, as legislative action, violated the 
     Bicameralism and Presentment Clauses, Art. I, Sec. 1, and 
     Art. I, Sec. 7, cl. 2 and 3, and, as executive action, 
     violated principles of separation of powers and the 
     Incompatibility Clause, Art. I, Sec. 6. See generally 
     Memorandum in Support of Federal Defendants' Cross-Motion to 
     Dismiss and/or for Summary Judgment and in Response to 
     Memorandum in Support of Plaintiffs' Motions for Summary 
     Judgment in Pacific Legal Foundation v. Watt, Civil No. 81-
     141BLG, and Mountain States Legal Foundation v. Watt, Civil 
     No. 81-168-BLG (D. Mont.)
       The Department's Memorandum submitted to the court at that 
     time also concluded that the portion of Sec. 204( e), which 
     provided for the committee veto was severable from the 
     Secretary's leasing authority, which is contained in entirely 
     different and earlier statutes, and from the Secretary's 
     authority under Sec. 204(e) to withdraw lands on his own 
     initiative. Section 707 of FLPMA, 43 U.S.C. Sec. 1701 note, 
     provides that if any provision or its application of the Act 
     is held invalid, the remainder of the Act and its application 
     shall not be affected. See, e.g., Champlin Refining Co. v. 
     Corporation Commission of Oklahoma, 286 U.S. 210 (1932), 
     quoted with approval in Buckley v. Valeo, 424 U.S. 1, 108-109 
     (1976).
       In the court decision which resulted, the district court 
     upheld Sec. 204(e) against the separation of powers 
     challenge, on the ground

[[Page E1383]]

     that the scope and duration of a withdrawal order under 
     Sec. 204(e) were within the Secretary's discretion, subject 
     to judicial review. The court did not view Sec. 204(e) as a 
     veto provision and thus did not address the bicameralism and 
     presentment issues. The court added, however, that if the 
     section were interpreted to permit a congressional committee, 
     by majority vote, to direct the Secretary to withdraw 
     wilderness areas until the date specified in the Resolution, 
     the committee action would be, in effect, an attempt to amend 
     the Wilderness Act of 1964, and would be unconstitutional 
     under the Ninth Circuit's decision in Chadha v. INS, 634 F.2d 
     408 (9th Cir. 1980). See Pacific Legal Foundation (PLF) v. 
     Watt, 529 F. Supp. 982 (D. Mont. 1982), on reconsideration, 
     539 F. Supp. 1194 (D. Mont. 1982) (final order of Aug. 31, 
     1982, unpublished).
       The constitutionality of the legislative veto device has 
     since been firmly and finally decided. INS v. Chadha, 51 
     U.S.L.W. 4907 (June 23, 1983); Consumer Energy Council v. 
     FERC, 673 F.2d 425 (D.C. Cir. 1982), aff'd, 51 U.S.L.W. 3935 
     (June 29, 1983), Consumers Union v. FTC, 691 F.2d 575 (D.C. 
     Cir. 1982), aff'd, 51 U.S.L.W. 3935 (June 29, 1983). There 
     remains no doubt that the power to direct withdrawal of lands 
     granted to a single Congressional Committee by Sec. 204(e) 
     is, by its terms, a legislative veto and is unconstitutional 
     under Chadha.
       At the request of Interior, this Office examined 
     Sec. 204(e) and the relevant case law in conjunction with a 
     Resolution of August 3, 1983, by the House Committee on 
     Interior and Insular Affairs, which purported to direct the 
     Secretary to withdraw lands in the Fort Union Coal Region of 
     Montana and North Dakota. We determined and advised Interior 
     that the Resolution passed pursuant to Sec. 204(e) purporting 
     to direct withdrawal was unconstitutional as a legislative 
     veto and was not salvageable under the construction of the 
     court in PLF v. Watt. We further determined and advised that 
     constitutional failure of the veto provision has no effect on 
     the substantive authority granted to the Secretary of 
     Interior by the statutes.
                                  ____

       Congressional Research Service, Memorandum, June 20, 2008.
       SUBJECT: Constitutional Issues with Sec. 204(e) of the 
     Federal Land Policy and Management Act of 1976, as amended.
       . . . For there to be a legal obligation to withdraw land 
     imposed on the Secretary of the Interior pursuant to 
     Sec. 204(e), the [INS v. Chadha, 462 U.S. 919 (1983)] 
     decision requires that actions of Congress comply with both 
     the bicameralism and presentment clauses of the Constitution. 
     The single committee resolution contemplated by Sec. 204(e) 
     does not satisfy these requirements and, therefore, cannot be 
     said to impose any legal obligation on the Secretary to 
     withdraw land. Accordingly, should such a resolution be 
     adopted it appears likely that the Secretary would be well 
     within his authority to interpret it as informational and/or 
     advisory in nature and, thus, will be able to avoid taking 
     the actions contemplated under the statute. Should Congress 
     wish to impose a binding legal obligation on the Secretary it 
     could opt either to pass a joint resolution or a bill, both 
     of which satisfy the bicameralism and presentment 
     requirements of Article I, as they would need to be presented 
     to the President for his signature or veto (and in the case 
     of a veto be overridden) to have the necessary effect of 
     mandating that the Secretary withdraw land.

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