A dramatic congressional hearing today revealed proof that Donald Trump’s controversial 2017 decision to dramatically shrink two national monuments, Bears Ears and Grand Staircase-Escalante, was a gift to the energy and mining industries.
To Trump’s critics, this seemed obvious even at the time. But now we know that the government official tasked with drawing the final map was told to exclude certain coal-rich areas from the monuments, that secret meetings were held between the Department of Interior and uranium mining interests before the sham public process even began, and that now-EPA Administrator Andrew Wheeler was among the lobbyists involved in the secret deals. First, as early as March 2017, then Sen.Utah Senator Orrin Hatch (R-UT)
had provided the Trump administration with a revised map of Bears Ears, in an email–obtained by
The New York Times pursuant to a
Freedom Of Information Act request–saying that it would “resolve all known mineral conflicts.” The final map, adopted in December 2017, was almost identical to Hatch’s map. Second, as
first reported by Roll Call,
on April 5, 2017, a top Interior Department official held a secret
meeting with lobbyists for Energy Fuels Resources, which holds 350
uranium leases in and around Bears Ears. The lobbyists
included current EPA administrator Andrew Wheeler, who set up the meeting by noting his work on the Trump presidential campaign...
MORE
The exact same process occurred to create the Organ Mtns-Desert Peaks National Monument, just with different players. Neither is an example of how federal lands should be managed. And yet, Congress has done nothing to change the law granting one person, the President, the authority to determine the use of millions of acres. That authority has been, and will continue to be abused until Congress acts.
3 comments:
Secretary Zinke did have some authority to eliminate monument designation and only erred in not doing a complete job. Congress had been allowing the Executive branch to complete withdrawals for a long time but Congress also reclaimed the exclusive authority for withdrawal with the passage of the Federal Land Policy and Management Act (FLPMA).
Mr. Daniel G Martinez explains as follows:
In 1976 Congress passed the most comprehensive Public Land Law in the last 150 years. It is like the Affordable Health Care bill, no one reads the Act; what I am going to point out to you is not in the United States Code, but is in Federal Lands Policy and Management Act of 1976 P.L. 94-579, 94th Congress, 43 U.S.C. Section 1701 , Statutes at Large Volume 90 page 2743. Title VII Effect on Existing Rights; Repeal of Existing Law; Severability Section 704 Repeal of Withdrawal Laws (a) Effective on and after the date of approval of this Act, the implied authority of the President to make withdrawals and reservations resulting from acquiescence of the Congress (U.S. v. Midwest Oil Co. 236 U.S. 459) and the following statutes and parts of statutes are repealed:
The U.S. v. Midwest Oil case had to do with the Presidential exercise of withdrawal of lands by acquiescence on the silence of Congress on this matter, but Congress has spoken clearly in Section 704 of the Act, so any withdrawals done after 1976 were all done with no authority in law.
Floyd,
I want to make sure that I correctly understand your point before responding.
Are you saying that any withdrawals or reservations by the President after the passage of FLPMA, including those citing the Antiquities Act, are invalid because of Section 704 of FLPMA?
Not exactly but probably. I'm sorry I can't simply answer "yes" but I need to do some more reading because the issue has made its way into court since I first learned about it in 2017.
According to Danny’s research the Federal Land Policy and Management Act (FLPMA) includes a section that puts the authority to withdraw public lands for any purpose solely in the duties and authority of Congress as a result of repealing a number of statutes. As Danny explains the President has not had the power (authority) to designate withdrawals since FLPMA was passed in 1976; that includes the creation of National Monuments on federal land.
Here is a list of the repealed statutes:
https://www.ntc.blm.gov/krc/uploads/977/8.%2090%20Stat%202792%20Repealed%20Withdrawal%20Authorities.pdf
As I read the statute the answer is yes the implied authority of the Executive was removed but FLPMA ended up authorizing some limited authority to the Executive. That was supposed to include Congressional oversight and veto of Executive designations. Interior has limited authority and those limitations include limits of the length of time a withdrawal is valid. Small withdrawals of under 5,000 acres have a different life expectancy than large withdrawals over 5,000 acres.
In 2018 the National Mining Association sued Sect of Interior to enforce the limitations on the authority of Interior and I have not kept up on the decisions involved but a quick search indicates the following case supports Secretary of Interior authority especially since those nice important folks in Congress never got around to enforcing limits on Interior. Here is part of the cert filings by the miners:
https://www.justice.gov/sites/default/files/briefs/2018/08/01/17-1286_nma_v_zinke_opp_002.pdf
Post a Comment