District Court's Approval of Bob Marshall Withdrawal Upstaged by Watt's Proposed Wilderness Legislation

J. B. Dougherty

The Bob Marshall Wilderness Area in Montana, relatively uncelebrated until 1981, recently became the focus of a legal and political controversy raising crucial environmental as well as constitutional issues. Though the specific controversy has now subsided for the most part, it set in motion a heated debate over the basics of federal wilderness law and policy. One act in the drama was a district court decision¹ addressing for the first time the constitutionality of § 204(e) of the Federal Land Policy and Management Act (FLPMA), which authorizes certain congressional committees to compel the Secretary of the Interior to make withdrawals of designated tracts of public lands. The case was decided against the backdrop of a tug-of-war between Interior Secretary Watt and the House Committee on Interior and Insular Affairs which, when pressed to reveal its views, demonstrated its willingness to limit energy production in order to preserve wilderness. The latest development is Secretary Watt's issuance of proposed legislation which would restructure the existing regime governing the preservation and development of wilderness and potential wilderness lands.

Section 204(e) of FLPMA

Hundreds of federal statutes contain provisions that give Congress power to influence or block the exercise of the executive branch's power to implement them.² A case in point is § 204(c) of FLPMA,³ which authorizes a two-house legislative veto of public land withdrawals by the Secretary of the Interior. But § 204(e) of the Act establishes an apparently unique mechanism under which either the Senate or House committee with jurisdiction may affirmatively order the Secretary to make an immediate withdrawal of specific tracts. Such directives may be issued whenever the committee finds that "an emergency situation exists and that extraordinary measures must be taken to preserve values that would otherwise be lost…." The Secretary may also make such emergency withdrawals upon making the same determination.⁵

The Department of the Interior, when transmitting to the House Interior Committee its views on pending legislation which became FLPMA, questioned the constitutionality of the precursor of § 204(e), though it declined to specify the nature of its objections.⁶ Further general objections were raised by the Attorney General when FLPMA was signed into law.⁷ Section 204(e) was enacted in substantially the same from however, and two years later proved to be quite helpful to both the Interior Committee and the Secretary.

In November of 1978, Congress was deadlocked over the question of preserving the "Alaska National Interest Lands." Under authority of § 17(d)(1) and (2) of the Alaska Native Claims Settlement Act,⁸ Secretary Morton had previously withdrawn approximately 67 million acres from the public domain. To a large extent though, the legal authority for the withdrawals was set to expire on December 11, 1978, at which time Congress was to make such withdrawals legislatively or permit them to lapse.⁹ When Congress adjourned in the middle of a House-Senate stalemate over the proposed withdrawals, the chairman of the Interior Committee wrote then-Interior Secretary Andrus requesting that he withdraw over 105 million acres under § 204(e). The Secretary did so immediately, without questioning the constitutionality of § 204(e). Moreover, the very next day he issued another order withdrawing the same lands, this time based not on the mandate of the Interior Committee, but on the Secretary's independent authority under § 204(e). His issuance of a second order was based on suspected procedural improprieties by the Interior Committee rather than constitutional objections.¹⁰

Section 204(e) surfaced again in 1979 when the Interior Committee concluded that uranium exploration in California jeopardized municipal water supplies. In response to the Committee's directive, the Secretary withdrew the federal lands on which the mineral exploration was taking place, again without airing objections. Indeed, not until Secretary Watt was compelled to withdraw the Bob Marshall did a dispute over § 204(e) arise.

Leasing in the Bob Marshall

"The Bob," as it is known colloquially, has been described by Forest Service Chief Peterson as "the flagship of the wilderness fleet."¹¹ A national forest, it was designated a wilderness area when the National Wilderness Preservation System was created in 1964.¹² Two adjacent areas, the Scapegoat Wilderness and the Great Bear Wilderness, were designated in 1972 and 1978, respectively.¹³ These and four nearby natural areas form the "Bob Marshall Complex" which, together with the nearby Glacier National Park, constitute an important ecological region. It supports 70 percent of the grizzly bear population in the lower 48 states, contains the headwaters of eight large [12 ELR 10024] rivers, including the Columbia and the Missouri,¹⁴ and provides critical habitat for endangered species of wolf, elk, lynx, wolverine, and trout.¹⁵ However, the complex also sits directly above a portion of the Western Overthrust Belt, a geological formation believed rich in energy resources which stretches from southern Canada to the southwest United States.

The Wilderness Act of 1964 prohibits mineral exploration and leasing in wilderness areas after December 31, 1983, but preserves the public's right of access and entry until then.¹⁶ From the 1960's to the present, hundreds of applications for oil and gas leases in such areas have been filed with the Bureau of Land Management (BLM.).¹⁷ No such leases, however, have been granted. The granting of leases in wilderness areas is subject to Secretarial discretion, and recent Secretaries have inherited and complied with an unwritten policy of freezing these lands through the 1983 deadline. The Reagan Administration formally broke with this policy in May of 1981, when it began to process applications for leases in the Bob Marshall and neighboring wilderness areas.¹⁸

As ofearly 1981, 343 applications for leases in the Bob Marshall were pending before BLM, in addition to one request for Forest Service permission to conduct seismic testing.¹⁹ That applicant's proposal to detonate 135 tons of dynamite along 200 seismic lines ignited a local furor, and ultimately led Representative Williams (D-Mont.) to introduce a resolution calling for an emergency withdrawal of the area under § 204(e). Ironically, the application for the seismic testing permit was rejected several days later by the Forest Service. Nevertheless, the resolution stayed alive in the Interior Committee, which passed it by a vote of 23-18.²⁰ The Committee's continued concern over development of the area was justified by the appearance that day in the Federal Register of the Forest Service's notice of intent to prepare an environmental impact statement on its recommendations to Secretary Watt concerning leasing in "the Bob."²¹

Secretary Watt responded to the Committee's resolution 10 days later, and blasted it as unsupported, unwise, and unconstitutional. Nevertheless, he simultaneously issued Public Land Order No. 5952, which withdrew the three wilderness areas from disposition under the mineral leasing laws. The Pacific Legal Foundation and the Mountain States Legal Foundation promptly challenged the withdrawal in federal district court.

PLF v. Watt

The litigation which arose over the withdrawal of the Bob Marshall became a kaleidoscope of parties. Mountain States Legal Foundation filed suit two days after issuance of the withdrawal order seeking to prevent its publication in the Federal Register. When that effort was stymied by the District Court for Colorado, the Pacific Legal Foundation (PLF), filed a complaint in the District Court for Montana and the Colorado action was transferred and consolidated with it. The awkwardness of Secretary Watt's defending a suit prosecuted by his former colleagues at Mountain States and PLF created a stir,²² including the introduction of a House resolution to investigate possible collusion.²³ The controversy was fueled somewhat by the fact that attached to PLF's complaint was a stipulation asserting that plaintiffs and defendants were in agreement as to the facts and that the speedy resolution of the legal issues would be in the "highest national interest." Further complications arose when Attorney General Smith informed the Speaker of the House that because the Department of Justice's view was that § 204(e) is unconstitutional, it would not defend the Interior Committee's action on the merits.²⁴ But the court, pursuant to a joint request by plaintiffs and defendants, invited the direct participation of counsel for both houses of Congress. Counsel for each house filed memoranda amicus curiae and appeared at oral argument. The court also granted intervention to several environmental groups.²⁵

The presence of these third parties undercut the defendants' arguments that the case lacked the necessary adverseness between plaintiffs and themselves. Though Secretary Watt agreed with plaintiffs' claims that § 204(e) was unconstitutional, an adequate ventilation of the issues was assured by the intervenors and amici. The court rejected, however, PLF's claim of a sufficient interest in the dispute to give it standing to sue. Having failed to show that the disputed withdrawal injured either (1) its members or (2) the organization itself by directly blocking the achievement of specific corporate objectives, PLF had not shown the requisite "injury in fact."²⁶

Before turning to the constitutional issues raised by the plaintiffs, Judge Jameson sought to delineate the exact nature of the Committee's powers vis-a-vis those of the Secretary, and to determine the legal status of its resolution [12 ELR 10025] under § 204(e).That provision sets a three-year limit on the duration of emergency withdrawals, but does not establish a minimum duration or specify who has authority to set the term of a withdrawal. The natural inference is that the term of a withdrawal is fixed by the party initiating it — either the relevant committee or the Secretary. Indeed, in the case of the Bob Marshall withdrawal, the Interior Committee specified that the withdrawal would remain in effect until January 1, 1984, and the Secretary drafted his withdrawal order accordingly.

However, the Senate argued before the district court that only the Secretary may establish the terms and duration of a withdrawal. Though the Secretary may not ignore a committee mandate, he is free to modify it by limiting its duration, or even revoking it. Judge Jameson found this a reasonable interpretation of the Act, drawing support from § 204(j),²⁷ which specifies the types of congressional withdrawals that the Secretary may not modify or revoke. Committee action under § 204(e) is notably absent from the list. The judge also observed that when § 204(e) had been invoked previously, no limitation on the withdrawals had been specified.²⁸ Thus, the intent of the Committee must have been to leave the question of duration to the Secretary.

Was this to say, in effect, that the Secretary has authority to void any committee resolution under § 204(e) as soon as it is issued? Not at all, conclued the judge. The withdrawal must remain in effect a "reasonable time," that time to be determined in light of the time necessary for Congress to act on legislation addressing the emergency situation. A fuller discussion of the issue would be required only in a case in which a § 204(e) withdrawal had actually been so limited by the Secretary.

This narrow interpretation of § 204(e), Judge Jameson went on, made it, "of course, unnecessary to reach the question of its constitutionality."²⁹ But he examined the constitutional issues raised by the parties nonetheless, just in case "…I am wrong and Mountain States and the federal defendants have correctly interpreted the sections…."³⁰ Borrowing heavily from the rationale of the recent Ninth Circuit decision in Chadha v. Immigration and Naturalization Service,³¹ in which the court invalidated the "legislative veto" provision of the Immigration and Naturalization Act on the ground that it unconstitutionally usurps the powers of the executive and judicial branches, Judge Jameson concluded that § 204(e), if interpreted broadly, would fail at least one part of a three-part constitutional test. If characterized as a "device for correcting executive misapplication of a statute," then it would be unconstitutional under the separation of powers doctrine. When the Secretary of the Interior violates his duties in managing the public lands it is for the courts, and not individual congressional committees, to render a judgment and provide a remedy. If, on the other hand, § 204(e) is seen as a mechanism for "sharing the administration of wilderness and public land statutes"³² with the executive branch, then it is similarly unlawful. The execution of the laws is assigned by Article II solely to the executive branch; the legislature's only means of controlling this function is to change the governing statutory standards. Lastly, the § 204(e) mechanism might be viewed as a congressional means of exercising "residual legislative power." Even so, it runs afoul of the "bicameralism principle," which requires legislation to be passed by both houses of Congress.³³ The Wilderness Act and FLPMA represent hard-fought compromises between interest groups, the Administration, and both houses of previous Congresses. To allow one committee, by a mere majority vote, to override those previous policy determinations would subvert the legislative process.

By interpreting § 204(e) narrowly, Judge Jameson wrote, these constitutional difficulties are "obviated." Recognizing the Secretary's discretion to modify the terms of and revoke the withdrawal sought by the Committee prevents infringement of the authority of the executive branch and preserves the authority of the courts to review the action in light of established legislative standards. Moreover, if the withdrawals mandated under § 204(e) can be revoked by the Secretary, the Committee does not have excessive power to repeal or modify existing legislation.

The court's conclusion was that the Interior Committee's resolution, by requiring Secretary Watt to withdraw the three wilderness areas until January 1, 1984, was not authorized by § 204(e) of FLPMA and indeed violated § 4 of the Wilderness Act, which specifies that wilderness areas are to be left open to leasing through 1983.In formulating a remedy, the court relied heavily on events that had occurred during the progress of the litigation. The most notable of these were (1) the introduction of legislation to amend the Wilderness Act to effect an immediate ban on mineral leasing in the Bob Marshall,³⁴ (2) an Interior Committee resolution calling on the President and the Secretary not to issue leases in wilderness areas until June 1, 1982,³⁵ and (3) Secretary Watt's announcement that he would give Congress at least 30-days notice before issuing any such lease.³⁶ Apparently in the belief that these developments had the effect of freezing the status quo until Congress had an opportunity to express its views on the matter, the court ordered the Secretary to revoke his earlier withdrawal and to reassess, according to his discretion, the period during which the three wilderness areas should be withdrawn.³⁷

[12 ELR 10026]

The Proposed Wilderness Protection Act

The Bob Marshall dispute set in motion a chain of events³⁸ which has ripened into a national debate over oil development in wilderness areas. The latest action occurred on February 22, 1982, when Secretary Watt announced on national television that he would soon submit to Congress proposed legislation barring development of wilderness areas until the year 2000. The proposed "Wilderness Protection Act of 1982"³⁹ would indeed accelerate the Wilderness Act's December 31, 1983 deadline on leasing in wilderness areas. In other respects, however, the bill would represent a reversal of the wilderness protection policies now in effect and, within several years, open up many millions of acres which otherwise will probably never be developed.

Section 3 of the bill would withdraw from mineral leasing and mining all areas now designated by law as wilderness, as well as lands recommended for wilderness designation by the Forest Service in the second Roadless Area Review and Evaluation (RARE II), and lands identified as wilderness study areas (WSAs) by the Bureau of Land Management (BLM) under § 603 of FLPMA.⁴⁰ The protection afforded by this provision extends until January 1, 2000, after which it evidently lapses. Subsection 3(b) authorizes the President to open any wilderness area to leasing upon a finding that an urgent national need for the area's mineral resources outweighs the environmental risks of tapping them. Such an action may take effect 60 days after it has been submitted to Congress. The effect of a congressional resolution expressing disapproval is not spelled out. Subsection 3(c) provides that nothing shall prevent prospecting, seismic surveys, or core sampling in wilderness areas, as long as such activities do not require the construction of roads.

Sections 4 and 5 would pave the way for administrative release of areas now in protected status pending legislative designation as wilderness. Areas that have been designated as WSAs by BLM may be recommended by the President for non-wilderness status, these lands may be opened by the Secretary for immediate development. Should the President recommend that some of these lands be legislatively designated as wilderness, Congress must designate them as such within two years. If not, the Secretary may release the lands for non-wilderness management. Similarly, national forest lands recommended for wilderness designations in RARE II revert to non-wilderness status unless designated by Congress before 1985. PARE II "further planning areas" are also to be released if (1) the Secretary of Agriculture determines that they are no longer suitable for wilderness designation, (2) they are not recommended for wilderness designation by September 30, 1985, or (3) they are so recommended but Congress fails to act before 1988.⁴¹

Conclusion

Judge Jameson's opinion in PLF. v. Watt is less than a definitive resolution of the constitutionality of § 204(e) of FLPMA. The constitutional standards applied by the Ninth Circuit to the legislative veto provision at issue in Chadha are not clearly applicable to a provision permitting a congressional committee to order administrative land withdrawals. Further, the court's ruling that its narrow reading of § 204(e) obviates the need for a constitutional interpretation is belied by the several-page discussion of constitutional issues, and makes one wonder whether the court was essentially trying to extricate itself from a thorny legal issue that had been largely mooted by subsequent events.

There is little support in § 204(e) for the conclusion that it leaves the Secretary with discretion to set the terms and duration of a withdrawal mandated by a congressional committee. The court drew substantial support for this ruling from the fact that past applications of § 204(e) have not specified a termination date for the withdrawals. In this case, on the other hand, the Committee had specified such a termination date and the Secretary had respected it. If anything, the facts in this case suggest that Secretary Watt deemed the expressed termination date as binding.

To an outsider, it might appear as if the Bob Marshall controversy was the snowball which started an avalanche [12 ELR 10027] with which Secretary Watt is now scarcely able to cope. The fact is, however, that the proposed development of the Bob Marshall, the El Capitan, and the Washakie Wilderness Areas were simply the first steps toward implementation of established departmental policy. Indeed, in the spring of 1981 the stated goals of the agency were, among others, to "increase production of energy and minerals" and "open wilderness areas,"⁴² and those goals seem to rank high among the purposes of the proposed Wilderness Protection Act of 1982.

This proposal, however, seems likely to succumb to poor timing. The imminence of the 1982 congressional campaigns combined with new evidence of public opposition to development of wilderness areas⁴³ may make legislators reluctant to endorse such a controversial measure. In addition, the advent of a worldwide "oil glut" has reduced enthusiasm for increasing domestic oil production regardless of cost. Given that Congress' 1982 agenda is already overcrowded with important environmental issues, these circumstances make it unlikely that Secretary Watt's bill will receive a thorough congressional review, much less be enacted in anything closely resembling its current form.

1. Pacific Legal Foundation v. Watt, 12 ELR 20197 (D. Mont. Dec. 16, 1981).

2. See generally SENATE COMM. ON GOVERNMENT RELATIONS, STUDY ON FEDERAL REGULATION vol. II (Comm. Print 1977) at 115.

3. 43 U.S.C. § 1714(c), ELR STAT. & REG. 41642.

4. 43 U.S.C. § 1714(e), ELR STAT. & REG. 41643.

5. Id.

6. See letter from J. Horton, Assistant Secretary of the Interior, to Hon. J. Haley, Chairman, House Interior Committee, Nov. 21, 1975, reprinted in 1976 U.S. CODE CONG. & AD. NEWS 6215, 6221.

7. CONGRESSIONAL QUARTERLY, Congress and the Nation, vol. IV at 314 (1976).

8. 43 U.S.C. § 1616(d)(1) and (2).

9. See generally Comment, Congressional Stall Prompts Administrative Actions to Protect the Alaska National Interest Lands, 8 ELR 10245 (1978).

10. Id. at 10247.

11. Hamilton, Wildcatting in the Wilderness, SIERRA, May/June 1981 at 61.

12. Section 1 of the Wilderness Act of 1964, 16 U.S.C. § 1131, ELR STAT. & REG. 41412, designated as wilderness areas the Bob Marshall and all other areas identified on a map in the custody of the Secretary of Agriculture.

13. Pub. L. No. 92-395, 36 Stat. 578 (Scapegoat); Pub. L. No. 95-546, 92 Stat. 7062 (Great Bear).

14. See 35 OUTDOOR NEWS BULLETIN, vol. 10 at 5 (1981).

15. See 13 SIERRA CLUB NAT'L NEWS REP., vol. 13 at 7 (1981).

16. Wilderness Act of 1964 § 4(d)(3), 16 U.S.C. § 1133(d)(3), ELR STAT. & REG. 41414.

17. Section 17 of the Mineral Leasing Act of 1920 vests in the Secretary of the Interior authority to permit mineral exploration and development on the public lands. 30 U.S.C. § 226. This authority has been delegated to the Bureau of Land Management.

When an applicant seeks a lease in a national forest, BLM refers the application to the Forest Service for review. Although this procedure is not sanctioned by statute, a negative recommendation by the Forest Service will usually be respected by BLM. When a developer seeks simply to explore for minerals with seismic blasting, the Forest Service requires that a permit be obtained directly from it.

18. 46 Fed. Reg. 27735 (May 21, 1981). See also note 38, infra.

19. See notes 17, supra.

20. 127 CONG. REC. D617 (daily ed. May 21, 1981).

21. 46 Fed. Reg. 27735 (May 21, 1981). This notice indicated that notwithstanding the Forest Service's disapproval of the seismic testing permit described above, it was contemplating affirmative recommendations to BLM on applications for leasing.

22. See, e.g., Legal Times of Washington, Aug. 17, 1981 at A1; Washington Post, Aug. 21, 1981 at A5.

23. See 6 PUB. LAND NEWS 18, Sept. 17, 1981 at 5.

24. Letter from William F. Smith to Hon. Thomas P. O'Neill, Aug. 6, 1981.

25. The intervenors included the Bob Marshall Alliance, The Wilderness Society, and the Sierra Club.

26. Mountain States Legal Foundation, unlike PLF, is a membership organization, and was able to establish standing on the basis of the injuries suffered by its members as a result of the disputed withdrawal. PLF, on the other hand, claimed only that its "supporters" had been harmed.

27. 43 U.S.C. § 1714(j), ELR STAT. & REG. 41463.

28. See text at note 10, supra.

29. Pacific Legal Foundation v. Watt, 12 ELR 20197, 20206 n.37 (D. Mont. 1981).

30. Id.

31. 637 F.2d 408 (9th Cir. 1980), cert. granted 50 U.S.L.W. 3244 (Oct. 6, 1981) (Nos. 80-1832,-2171).

32. 12 ELR at 20206.

33. See Consumer Energy Council of America v. FERC, No. 80-2184, slip op. at 70-72 (D.C. Cir. Jan. 29, 1982); Chadha v. Immigration and Naturalization Service, 637 F.2d 408, 433-34 (9th Cir. 1980).

34. On October 16, 1981, Sen. Baucus (D.-Mont.) introduced S. 1774, 97th Cong., 1st Sess., which would amend § 4 of the Wilderness Act to pohibit mineral leasing in the Bob Marshall, Scapegoat, or Great Bear Wilderness Areas.

35. See 12 ELR at 20205.

36. See id.

37. The order was withdrawn in an order published at 47 Fed. Reg. 50003 (Feb. 3, 1982).

38. Not long after the Bob Marshall withdrawal, BLM approved permits authorizing drilling for oil under the El Capitan Wilderness in New Mexico through the use of "slant drilling" from sites located outside the boundary of the area. Representative Lujan (R-N.M.) reacted with outrage and proposed a resolution under § 204(e) to declare the entire wilderness system in a state of emergency and off-limits to mineral development. While that effort was sidetracked, a new controversy developed over proposed leasing in Wyoming's Washakie Wilderness Area. Pressure from the Wyoming delegation ultimately led Secretary Watt to promise to refrain from issuing further wilderness development permits until the end of the current session of Congress.

Meanwhile, Congress has been considering, though at a leisurely pace, legislation which would make fundamental reforms in existing wilderness law. S. 842, 97th Cong., 1st Sess., would set deadlines by which potential wilderness lands identified in RARE 11 must be congressionally set aside or else lose statutory protection. Even more sweeping is Representative Santini's (R-N.M.) proposed National Minerals Security Act, H.R. 3364, 97th Cong., 1st Sess., which would establish mining as the dominant use of public lands and extend for 10 years the Wilderness Act's deadline on leasing. See also the "Sagebrush Rebellion" bill, H.R. 3655, 97th Cong., 1st Sess., which would expedite the transfer of federal lands to the states.

39. Copies of the draft bill and ancillary explanatory material are available from ELR (11 pp. $2.00, ELR Order No. A-1021).

40. See generally Comment, Federal Court Rejects Wilderness Protection Policies in Energy-Rich Rocky Mountain Overthrust Belt, 11 ELR 10021 (1981).

41. Another loophole in the proposed legislation is the provision in § 3(e) allowing mineral development in any wilderness area as long as it does not require occupancy of the surface estate. What this means is that mineral deposits lying underneath any wilderness area may be tapped from outside the boundary of the land through such methods as "slant drilling." Section 6 further prohibits the establishment of "protective perimeters or buffer zones" around wilderness areas and adds that the fact that nonwilderness activities or uses can be seen, heard or otherwise perceived from areas within a wilderness shall not preclude such activities or uses up to the boundary of the wilderness area.

42. See Envir. Rep. [BNA] vol. 12, no. 4 at 128 (May 22, 1981).

43. See Washington Post, Feb. 22, 1982 at A12 col. 1.