CHAPTER 11 EXECUTIVE POWER AND THE PUBLIC LANDS

• Jurisdiction: United States

Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)
CHAPTER 11
EXECUTIVE POWER AND THE PUBLIC LANDS
Harold H. Bruff
Thomson Professor of Law
University of Colorado
Denver, Colorado

Harold H. "Hal" Bruff was Dean of the University of Colorado School 1996-2003. Professor Bruff, a native of Colorado, received his B.A. in American history and literature from Williams College, where he was elected to Phi Beta Kappa. He received his J.D. magna cum laude from Harvard Law School. After graduation, he enlisted as a lieutenant in the U.S. Coast Guard Reserve in the San Francisco District, serving as an assistant district legal officer.

Hal has served on the law faculties of Arizona State University, the University of Texas (as the John S. Redditt Professor of Law), and the George Washington University School of Law (as the Donald Rothschild Research Professor of Law). From 1979 to 1981, he served as senior attorney and advisor for the Office of Legal Counsel in the U.S. Department of Justice. In this position, he advised the DOJ, the White House, and executive agencies on issues of constitutional and administrative law. He also served as consultant to the chairman of the President's Commission on the accident at Three Mile Island. He testified before Congress on numerous occasions in his areas of expertise.

Professor Bruff's research and teaching interests include constitutional and administrative law. He has authored two casebooks on the administrative process and separation of powers (and is working on a third), as well as numerous articles.

His current public service activities include work on the Council of the Administrative Law Section of the American Bar Association, on Colorado's Judicial Advisory Council, and on the Colorado Bar Association Board of Governors

The legal relationships of federal executive officers to the public lands are defined by a mixture of separation of powers principles, administrative law doctrine, and, of course, statutes and doctrines that are particular to the public lands field. This paper explores how separation of powers and administrative law concepts infuse our public land law.

I. INTRODUCTION

Much modern separation of powers analysis begins with Justice Robert Jackson's opinion in the Steel Seizure case, ¹ in which he noted that presidential powers "are not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress." Jackson provided a framework for analysis: presidential powers are greatest when they enjoy the express or implied authorization of Congress; least when they are opposed to congressional will; and in the absence of a clear grant or denial of authority, there is a "zone of twilight" in which uncertainty dwells. ² Jackson's famous framework must not be applied mechanically. Instead, all separation of powers analysis should be contextual. That is, we should consider the nature of the subject matter involved, the history of interbranch relations involving it, and the presence or absence of individual rights as we search for answers to real problems.

Among the many contexts in which the political branches have sparred for power, administration of the public lands is of particular interest. Although Congress possesses explicit constitutional power to legislate, ³ Presidents have roamed quite freely throughout the twilight zone, and the courts have proved willing to uphold these executive adventures. Presidents exercise their authority over the lands by issuing executive orders or proclamations. These law-making or law-applying decisions always invoke every source of constitutional or statutory power that anyone might detect. ⁴ Subordinate administrators also act "by the stroke of a pen," in a myriad of ways. They might issue federal regulations after full notice and comment procedures. They might announce interpretations of statutes or regulations. They might make informal decisions that allocate funds and commence federal projects, or withhold the funds and terminate the projects. They might initiate or settle litigation over agency policies. All of these actions below the presidential level are the domain of administrative law, and are guided by the doctrines of that field and by the federal Administrative Procedure Act. ⁵

Whether administrative action affecting the public lands is presidential or that of a subordinate administrator, it ordinarily reflects the political philosophy of the incumbent President. Elections bring changes that reverberate down through the levels of the federal bureaucracy. Administrative law recognizes the validity of policy changes that flow from our national elections, but it controls the ways that these policy changes can occur, as we shall see. First, though, let us explore what Presidents do directly.

II. THE EXECUTIVE AS "AGENT IN CHARGE" OF THE PUBLIC LANDS

Legal analysis of presidential power over the lands begins with United States v. Midwest Oil Co., ⁶ in which the Supreme Court upheld a bold executive action. Congress had, without any explicit qualification, opened public lands containing petroleum to occupation and purchase by private citizens. Early in the twentieth century, as oil became important as a fuel, an oil rush took place on the lands, at such a rate that the government would soon have found itself buying its own oil back to fuel the Navy. President Taft issued an order, "Temporary Petroleum Withdrawal No. 5," withdrawing from private claims large tracts in California and Wyoming, and reciting that it was "in aid of proposed legislation affecting the use and disposition of the petroleum deposits on the public domain..." Months later, Midwest Oil entered some of the covered lands, extracted a quantity of oil, and filed for a certificate of ownership. The government sued to recover the land and the value of the oil.

In an opinion by Justice Lamar, the Court upheld the President's order. As it often does in cases involving presidential power, the government advanced broad constitutional claims. Here they were the obligation of the Commander-in-Chief to assure fuel for the Navy, and a broad argument that "the President, charged with the care of the public domain, could, by virtue of the executive power vested in him by the Constitution (Art. 2, § 1), and also in conformity with the tacit consent of Congress, withdraw, in the public interest, any public land from entry or location by private parties." Midwest Oil rejoined that the withdrawal order was an invalid presidential attempt to suspend the operation of a statute, in violation of the executive's duty to ensure the faithful execution of the laws.

The Supreme Court, as it often does when confronted with sharply contrasting views of executive power, chose a relatively narrow and modest ground of decision that stayed close to the context of the case. The Court refused to approach the statute as though it lacked an administrative history. Instead, it considered "the legal consequences flowing from a long continued practice to make orders like the one here involved." The Court emphasized that there had been hundreds of withdrawal orders dating from sometime early in our history and involving very diverse objectives that included Indian and military reservations and even bird reserves. The absence of any special statutory authority for these orders did not trouble the Court. There appeared to be three reasons for the Court's attitude: the nation's proprietary interest in the lands, ⁷ the absence of any private injury, and the presence of congressional power to disaffirm any reservation. Yet Congress had never exercised that power; it had always acquiesced to presidential action.

The Court itself had upheld the reservation power after the Civil War. ⁸ Executive advisers had continuously and consistently asserted the power. The Court concluded, in language much-quoted since, "that the long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the withdrawals had been made in pursuance of its consent or of a recognized administrative power of the Executive in the management of the public lands." ⁹

Midwest Oil, as the case establishing the Court's "acquiescence doctrine," has been cited approvingly ever since. ¹⁰ There is some debate about the application of Midwest Oil outside the public lands context. ¹¹ It remains firmly established for the lands. ¹² The Court's conception of "the Executive, as agent in charge" of the lands, empowered to act as necessary to preserve them unless contravened by Congress, depends on the premise that the lands are initially infused with public not private rights, until Congress allows a conversion to occur and it is actually perfected. Broader views of the appropriateness of presidential stewardship over public property of all kinds are probably present also. ¹³

III. MONUMENTS TO PRECEDENT: EXPANSION OF THE ANTIQUITIES ACT

Fittingly enough, aggressive presidential action to preserve the public lands is one of the legacies of Theodore Roosevelt. ¹⁴ TR and his successors have relied for authority on the Antiquities Act, the text of which seems better suited to the preservation of local attractions such as Indian burial mounds than the vast tracts that Presidents have often designated as monuments. ¹⁵ Early on, however, in Cameron v. United States ¹⁶ the Supreme Court upheld TR's invocation of the Act to designate the Grand Canyon as a National Monument. If the Canyon could qualify, what could fail? Over the years, Congress has usually acquiesced in presidential designation of monuments under the Act, and has occasionally created them through legislation. ¹⁷

Two examples will suffice to illustrate the modern scope of this presidential activity. Court challenges to each of these actions were rebuffed by lower federal courts that had imbibed the spirit of Midwest Oil and Cameron.

In 1978, President Carter reserved...