SPEAKERS CONTENTS INSERTS
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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
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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
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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
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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
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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
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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
——— ———
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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
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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
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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.
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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.
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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.
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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.
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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.
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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?
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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?
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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——
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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.
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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?
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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.
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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.
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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.
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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.
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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?
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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——
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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?
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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.
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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.
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It appears that there were meetings in Washington in 1993 to find a way to prev