SPEAKERS       CONTENTS       INSERTS    
 Page 1       TOP OF DOC
56–510 l

1999

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
 Page 2       PREV PAGE       TOP OF DOC

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

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
 Page 3       PREV PAGE       TOP OF DOC
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
WILLIAM M. (MAC) THORNBERRY, Texas
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
RICK HILL, Montana
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MARK E. SOUDER, Indiana
GREG WALDEN, Oregon
DON SHERWOOD, Pennsylvania
ROBIN HAYES, North Carolina
MIKE SIMPSON, Idaho
THOMAS G. TANCREDO, Colorado

GEORGE MILLER, California
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
 Page 4       PREV PAGE       TOP OF DOC
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
ROBERT A. UNDERWOOD, Guam
PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
WILLIAM D. DELAHUNT, Massachusetts
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-CHRISTENSEN, Virgin Islands
RON KIND, Wisconsin
JAY INSLEE, Washington
GRACE F. NAPOLITANO, California
TOM UDALL, New Mexico
MARK UDALL, Colorado
JOSEPH CROWLEY, New York

LLOYD A. JONES, Chief of Staff
ELIZABETH MEGGINSON, Chief Counsel
CHRISTINE KENNEDY, Chief Clerk/Administrator
JOHN LAWRENCE, Democratic Staff Director

 Page 5       PREV PAGE       TOP OF DOC
Subcommittee on National Parks and Public Lands
JAMES V. HANSEN, Utah, Chairman

ELTON, GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
RICHARD W. POMBO, California
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
CHRIS CANNON, Utah
RICK HILL, Montana
JIM GIBBONS, Nevada
MARK E. SOUDER, Indiana
DON SHERWOOD, Pennsylvania

CARLOS A. ROMERO-BARCELÓ, Puerto Rico
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
DONNA CHRISTIAN-CHRISTENSEN, Virgin Islands
RON KIND, Wisconsin
JAY INSLEE, Washington
TOM UDALL, New Mexico
MARK UDALL, Colorado
JOSEPH CROWLEY, New York
 Page 6       PREV PAGE       TOP OF DOC
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
WILLIAM M. (MAC) THORNBERRY, Texas
CHRIS CANNON, Utah
KEVIN BRADY, Texas
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
GREG WALDEN, Oregon
THOMAS G. TANCREDO, Colorado

ROBERT A. UNDERWOOD, Guam
NICK J. RAHALL II, West Virginia
ENI F.H. FALEOMAVAEGA, American Samoa
SOLOMON P. ORTIZ, Texas
CALVIN M. DOOLEY, California
PATRICK J. KENNEDY, Rhode Island
CHRIS JOHN, Louisiana
JAY INSLEE, Washington
——— ———
 Page 7       PREV PAGE       TOP OF DOC

BILL CONDIT, Professional Staff
MIKE HENRY, Professional Staff
DEBORAH LANZONE, Professional Staff

C O N T E N T S

    Hearing held March 23, 1999

Statements of Members:
Christian-Christensen, Hon. Donna M., a Delegate in Congress from the Virgin Islands
Prepared statement of
Cubin, Hon. Barbara, a Representative in Congress from the State of Wyoming
Prepared statement of
Hansen, Hon. James V., a Representative in Congress from the State of Utah
Prepared statement of
Hayworth, Hon. J.D., a Representative in Congress from the State of Arizona, prepared statement of
Romero-Barceló, Hon. Carlos, a Delegate in Congress from Puerto Rico
Prepared statement of
Shadegg, Hon. John, a Representative in Congress from the State of Arizona
Prepared statement of

Statements of witnesses:
Babbitt, Hon. Bruce, United States Secretary of the Interior
 Page 8       PREV PAGE       TOP OF DOC
Prepared statement of
Getches, David H., Raphael J. Moses Professor of Natural Resources Law, University of Colorado Law School
Prepared statement of
Lehmann, Ernest K., North Central Mineral Ventures, Minneapolis, Minnesota
Prepared statement of

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

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
 Page 9       PREV PAGE       TOP OF DOC
    Mr. HANSEN. The meeting will come to order. Good morning. Today, we commence this joint hearing of the Subcommittee on National Parks and Public Lands and the Subcommittee on Energy and Mineral Resources to discuss withdrawals under the Federal Land Policy and Management Act. We thank our witnesses for joining us today. We look forward to hearing from you.
    Executive withdrawals have a long history. During the past hundred years or so, much of the public domain was open to entry under various public land laws, including the Homestead Act, the Desert Lands Act, the General Mining Law, the Stock Raising Act, et cetera. Withdrawals have been used many times to remove areas of the public domain from entry under these laws.
    I will not go into the extensive history of pre-FLPMA withdrawals, except to say that one of the main reasons cited by supporters for the passage of FLPMA was to rein in Executive withdrawals. Congress felt that the Executive was usurping Congressional power over the public lands and they intended to take it back.
    FLPMA intended to significantly limit Executive withdrawal authority and, in particular, withdrawals of over 5,000 acres. The Secretary of the Interior could still make a withdrawal of over 5,000 acres, but the withdrawal would be of limited duration, the Secretary would be subject to strict reporting requirements, and the withdrawal would cease if Congress passed a resolution of disapproval.
    This was a pretty good compromise. It allowed the Secretary to continue to make withdrawals as needed, but Congress maintained significant power to restrict the Secretary.
    Unfortunately, there were a couple of problems that Congress did not anticipate. First, Section 204 of FLPMA had a provision that allowed the Secretary to ''segregate'' land for two years while the Secretary decided whether or not to go through with a full-blown withdrawal. The reporting requirements, size limitations, and Congressional veto provisions did not apply to these segregations. This allowed the Secretary to completely avoid the withdrawal criteria. All he had to do was publish a notice in the Federal Register every two years stating that he was considering a withdrawal, and he could effect a de-facto withdrawal while avoiding any Congressional oversight.
 Page 10       PREV PAGE       TOP OF DOC
    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.
 Page 11       PREV PAGE       TOP OF DOC
    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.
 Page 12       PREV PAGE       TOP OF DOC
    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.
 Page 13       PREV PAGE       TOP OF DOC
    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.
 Page 14       PREV PAGE       TOP OF DOC
    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?
 Page 15       PREV PAGE       TOP OF DOC
    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?
 Page 16       PREV PAGE       TOP OF DOC
    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.
 Page 17       PREV PAGE       TOP OF DOC

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

STATEMENT OF HON. CARLOS ROMERO-BARCELÓ, A DELEGATE IN CONGRESS FROM PUERTO RICO
    Mr. ROMERO-BARCELÓ. 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.
 Page 18       PREV PAGE       TOP OF DOC
    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.
 Page 19       PREV PAGE       TOP OF DOC
    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-BARCELÓ, 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.
 Page 20       PREV PAGE       TOP OF DOC
    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.
 Page 21       PREV PAGE       TOP OF DOC

    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.
 Page 22       PREV PAGE       TOP OF DOC
    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.
 Page 23       PREV PAGE       TOP OF DOC
    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.
 Page 24       PREV PAGE       TOP OF DOC
    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.
 Page 25       PREV PAGE       TOP OF DOC
    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.
 Page 26       PREV PAGE       TOP OF DOC
    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.
 Page 27       PREV PAGE       TOP OF DOC
    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-Barceló. 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.
 Page 28       PREV PAGE       TOP OF DOC
    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.
 Page 29       PREV PAGE       TOP OF DOC
    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.
 Page 30       PREV PAGE       TOP OF DOC
    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.
 Page 31       PREV PAGE       TOP OF DOC
    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.
 Page 32       PREV PAGE       TOP OF DOC
    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-BARCELÓ. 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.
 Page 33       PREV PAGE       TOP OF DOC
    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-BARCELÓ. 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-BARCELÓ. 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-BARCELÓ. 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.
 Page 34       PREV PAGE       TOP OF DOC
    Mr. ROMERO-BARCELÓ. 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-BARCELÓ. 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-BARCELÓ. Thank you, Mr. Secretary.
    Mr. HANSEN. The gentleman from Arizona, Mr. Shadegg, is recognized for five minutes.
 Page 35       PREV PAGE       TOP OF DOC
    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?
 Page 36       PREV PAGE       TOP OF DOC
    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.
 Page 37       PREV PAGE       TOP OF DOC
    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?
 Page 38       PREV PAGE       TOP OF DOC
    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.
 Page 39       PREV PAGE       TOP OF DOC
    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.
 Page 40       PREV PAGE       TOP OF DOC
    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.
 Page 41       PREV PAGE       TOP OF DOC
    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.
 Page 42       PREV PAGE       TOP OF DOC
    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.
 Page 43       PREV PAGE       TOP OF DOC
    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.
 Page 44       PREV PAGE       TOP OF DOC
    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?
 Page 45       PREV PAGE       TOP OF DOC
    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.
 Page 46       PREV PAGE       TOP OF DOC
    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.
 Page 47       PREV PAGE       TOP OF DOC
    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?
 Page 48       PREV PAGE       TOP OF DOC
    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——
 Page 49       PREV PAGE       TOP OF DOC
    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.
 Page 50       PREV PAGE       TOP OF DOC
    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?
 Page 51       PREV PAGE       TOP OF DOC
    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.
 Page 52       PREV PAGE       TOP OF DOC
    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.
 Page 53       PREV PAGE       TOP OF DOC
    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.
 Page 54       PREV PAGE       TOP OF DOC
    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.
 Page 55       PREV PAGE       TOP OF DOC
    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?
 Page 56       PREV PAGE       TOP OF DOC
    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——
 Page 57       PREV PAGE       TOP OF DOC
    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?
 Page 58       PREV PAGE       TOP OF DOC
    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.
 Page 59       PREV PAGE       TOP OF DOC
    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.
 Page 60       PREV PAGE       TOP OF DOC
    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.
 Page 61       PREV PAGE       TOP OF DOC
    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.
 Page 62       PREV PAGE       TOP OF DOC
    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
 Page 63       PREV PAGE       TOP OF DOC
    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.
 Page 64       PREV PAGE       TOP OF DOC
    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.
 Page 65       PREV PAGE       TOP OF DOC
    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.
 Page 66       PREV PAGE       TOP OF DOC
    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.
 Page 67       PREV PAGE       TOP OF DOC
    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.
 Page 68       PREV PAGE       TOP OF DOC
    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.
 Page 69       PREV PAGE       TOP OF DOC
    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?
 Page 70       PREV PAGE       TOP OF DOC
    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?
 Page 71       PREV PAGE       TOP OF DOC
    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?
 Page 72       PREV PAGE       TOP OF DOC
    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.
 Page 73       PREV PAGE       TOP OF DOC
    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?
 Page 74       PREV PAGE       TOP OF DOC
    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.
 Page 75       PREV PAGE       TOP OF DOC
    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.
 Page 76       PREV PAGE       TOP OF DOC
    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).)
 Page 77       PREV PAGE       TOP OF DOC
    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.
 Page 78       PREV PAGE       TOP OF DOC
    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.
 Page 79       PREV PAGE       TOP OF DOC
    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.
 Page 80       PREV PAGE       TOP OF DOC

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.
 Page 81       PREV PAGE       TOP OF DOC
    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.
 Page 82       PREV PAGE       TOP OF DOC
    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.
 Page 83       PREV PAGE       TOP OF DOC
    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(see footnote 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.

    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.(see footnote 2)

 Page 84       PREV PAGE       TOP OF DOC
    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.
 Page 85       PREV PAGE       TOP OF DOC
    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.
 Page 86       PREV PAGE       TOP OF DOC

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:
 Page 87       PREV PAGE       TOP OF DOC

    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(see footnote 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.

    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.
 Page 88       PREV PAGE       TOP OF DOC
    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.
 Page 89       PREV PAGE       TOP OF DOC
    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.

 Page 90       PREV PAGE       TOP OF DOC
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.

INSERT OFFSET FOLIOS 22 TO 61 HERE

STATEMENT OF DAVID H. GETCHES,(see footnote 4) Raphael J. Moses Professor of Natural Resources Law, University of Colorado School of Law
 Page 91       PREV PAGE       TOP OF DOC

    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.(see footnote 5)

    Over the years, Congress passed laws encouraging some types of withdrawals (e.g., Antiquities Act, 16 U.S.C. 431; Taylor Grazing Act, 43 U.S.C. 315), limiting the extent of withdrawals for some purposes (e.g., Defense Withdrawals Act, 43 U.S.C. 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.
 Page 92       PREV PAGE       TOP OF DOC
    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
 Page 93       PREV PAGE       TOP OF DOC
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 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(see footnote 6)
 Page 94       PREV PAGE       TOP OF DOC

    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.
 Page 95       PREV PAGE       TOP OF DOC
    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.
 Page 96       PREV PAGE       TOP OF DOC
    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.

INSERT OFFSET FOLIOS 120 TO 121 HERE

INSERT OFFSET FOLIOS 1 TO 21 AND 62 TO 119 HERE











(Footnote 1 return)
 Table I provides a brief history of exploration in the Sweet Grass Hills from 1983 to 1993.


(Footnote 2 return)
 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.''


(Footnote 3 return)
 It was about 2.5 years from the time of the issuance of the Examiner's report and the evidentiary hearing.


(Footnote 4 return)
 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.


(Footnote 5 return)
 See generally David H. Getches, Managing the Public Lands: The Authority of the Executive to Withdraw Lands, 22 Nat. Resources J. 279 (1982).


(Footnote 6 return)
 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.