Presidential Authority Over Wilderness Areas Under the Federal Land Policy and Management Act of 1976

Presidential Authority Over Wilderness Areas Under the
Federal Land Policy and Management Act of 1976
U nder the Federal L and Policy and M anagem ent Act of 1976 (FLPM A), the President is required to
forward to the Congress his recom m endations with respect to federal lands studied by the Bureau
o f Land M anagem ent for possible designation as w ilderness. He has no authority to refuse to m ake
recom m endations for areas he believes unsuitable for w ilderness designation, o r to return such
lands to m ultiple use m anagem ent without congressional action upon his recom m endation. U nder
the FLPM A , as under the W ilderness A ct of 1964, only Congress has authority to determ ine
w hether an area should or should not be designated as wilderness.
January 11, 1982
M EM ORANDUM OPINION FOR TH E ATTORNEY GENERAL
We have been asked by the Office of Legislative Affairs for our views
concerning whether § 603 of the Federal Land Policy and Management Act of
1976 (FLPM A), 43 U .S .C . § 1782 (1976), authorizes the President to determine
that areas being studied for wilderness designation are not suitable for such
designation and to return such areas to general use m anagement without con­
gressional action.
This question has arisen as a result of a proposal by the Department o f the
Interior urging the President unilaterally to take such action with respect to the
Shoshone Pygm y Sage area either in the form of a presidential executive order or
a memorandum from the President. An executive order would have to be
submitted to the Attorney General for consideration as to both form and legality
prior to submission to the President. Exec. O rder No. 11030, 3 C.F.R. 610
[1959-1963 Com p.], as amended. Interior has not articulated a legal rationale for
suggesting a memorandum rather than an executive order. However, a memoran­
dum contem plating action of this nature certainly implicates the Attorney Gener­
al’s responsibility to provide legal advice to the President, 28 U .S.C . § 509
(1976), on issues relative to the President’s constitutional obligation “ to take
Care that the Laws be faithfully executed.” U .S. C onst., Art. II, § 3. Therefore,
since your legal advice will be sought with respect to this matter irrespective of
the procedure contem plated, these views are submitted directly to you.
We do not believe that the President has the legal authority to take the action
being suggested by the Departm ent of the Interior. We believe that he m ust
forward to the Congress his recom m endations as to whether land should or
should not be designated as wilderness and that he cannot remove land from
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consideration for such designation and return it to multiple use management by
unilateral a ctio n .1
I. Background
The FL PM A , 43 U .S.C. §§ 1701-1782 (1976), was an attempt to establish a
coherent, com prehensive schem e of federal land management based on multiple
use and sustained yield. Id., § 1701(a)(7). In order to effect this goal, the
FLPM A required the Secretary o f the Interior (Secretary) to prepare and maintain
on a continuing basis an inventory of all federal lands. Id., § 1711. Based on
lands identified in the inventory, the Bureau of Land M anagement (BLM) is
required to conduct a study o f all areas with wilderness characteristics. Id.,
§ 1782.2 T he Secretary must, a s the studies are completed, make recommenda­
tions to the President as to the suitability or non-suitability o f each area for
perm anent designation as a wilderness. Id ., § 1782(a). The President is then
required to forward to the C ongress “his recommendations with respect to
designation as w ilderness of each such area. . . .” Id ., § 1782(b). The statute
explicitly states how the land is to be managed in the interim between the
beginning of the study period and the final decision, a period that may last years.
D uring the period of review of such areas and until Congress has
determ ined otherwise, the Secretary shall continue to manage
such lands . . . in a m anner so as not to impair the suitability of
such areas for preservation as wilderness. . . .
Id ., § 1782(c).
II. Dispute Over the FLPMA, § 603, 43 U.S.C. § 1782
In Septem ber of this year, an Associate Solicitor Designate of Interior subm it­
ted a m em orandum (M emorandum) to the Secretary concluding that the Presi­
dent has the discretion to release land he deems unsuitable for wilderness
designation to m ultiple use m anagem ent without congressional action.3 A l­
though conceding that § 603 did not give the President this authority explicitly,
the M em orandum concluded that the “ better conclusion” is that § 603 implicitly
granted the President that authority. The M emorandum concluded that the
President need forward to Congress only those recommendations that favor
w ilderness designation of areas under study. It expressed the view that unilateral
presidential action to release land under review to multiple use management if the
President determ ined that such land was not suitable for wilderness designation
was consistent with congressional intent.
1 M ultiple use m a n ag em e n t is defined in 43 U .S .C . § 1702(c) to include “ a com bination o f balanced an d diverse
resource uses . . . in c lu d in g , but not limited to , recreation, ran g e, timber, m in erals, w atershed, w ildlife and fish,
an d natural sc e n ic , scientific and historical valu es."
2 W ilderness is defined in 16 U S.C § 1131 (c) ( 1976)
3 M em o ra n d u m for S ecretary Watt from A sso ciate S olicitor D esignate G o o d , Sept. 4 , 1981
64
The Land and Natural Resources Division of the Department of Justice
(Lands) disagrees with this analysis.4 It concludes that the statute requires the
President to forward recommendations on all areas that have been studied,
whether or not the recommendations favor wilderness designations. Lands
believes that Congress has retained for itself the authority to determine whether
or not an area should be designated as wilderness.
Your advice may be requested because of your duty to resolve interagency
legal disputes, Exec. Order No. 12146, 3 C.F.R. 409 (1980), reprin ted in 28
U .S.C . § 509 note (Supp. V 1981), your duty to advise the President on the
interpretation of the laws, 28 U .S.C . § 509, or to approve Presidential Executive
Orders for legality. Exec. Order No. 11030, 3 C.F.R. 610 (1959—1963 Comp.),
as am ended. A fter a careful examination of § 603, its legislative history and prior
administrative practice, we have concluded that the President must forward
recommendations to Congress on all areas of land studied. We believe that the
President does not have the authority to return lands to multiple use management
without congressional action.
III. Analysis
The central issue is whether Congress intended the President to forward to it
recommendations on all areas with wilderness characteristics that had been
studied by BLM. The pertinent language of the statute is:
(a) [T]he Secretary shall review those roadless areas o f five
thousand acres or more and roadless islands of the public lands
. . . having wilderness characteristics . . . and shall from time to
time report to the President his recommendation as to the suit­
ability or nonsuitability o f each such area or island for preserva­
tion as wilderness. . . .
(b) The President shall advise the President of the Senate and
the Speaker of the House o f Representatives of his recommenda­
tions with respect to designation as wilderness c f each such area.
. . . A recommendation of the President for designation as wilder­
ness shall become effective only if so provided by an Act of
Congress.
(c) During the period of review of such areas and until Congress
has determ ined otherwise, the Secretary shall continue to manage
such lands . . . in a manner so as not to impair the suitability of
such areas for preservation as wilderness. . . .
43 U .S.C . § 1782 (emphasis added). The parallel construction of the statute
leads us to conclude that Congress was referring, in each subsection, to the same
4 M em orandum for A ttorney G eneral French Sm ith and D eputy A ttorney G eneral Schm ults from A ssistant
A ttorney G eneral D inkins. D ec. 2 1 . 1981
65
areas of land— those studied by BLM for possible designation as wilderness.5 For
each such area the Secretary must prepare recommendations, the President must
prepare recom m endations, and the Secretary m ust, “ until Congress has deter­
m ined o th erw ise,” continue to m anage such areas “ so as not to impair the
suitability o f such areas for preservation as wilderness.” Id ., § 1782(c). There is
nothing on the face o f the statute w hich provides the President with any explicit
authority to refuse to m ake recommendations for areas he believes unsuitable for
w ilderness designation or to release those lands for multiple use management
w ithout congressional action. A natural reading o f the statute does not supply an
inference that the President was given such authority and prior administrative
practice is to the contrary.
T he language in § 603 regarding transm ission of recommendations is virtually
identical to that found in the W ilderness A ct o f 1964. 16 U .S.C . § 1132(c)
(1976).6 The W ilderness Act of 1964 directed the Secretary to review “ every
roadless area” of 5,000 or more acres in the national park system and the national
w ildlife refuges and gam e reserves in order to identify those with wilderness
characteristics. Id. The statute requires the Secretary to report to the President his
recom m endations “ as to the suitability or nonsuitability of each such area” and
the President to report to Congress “ his recommendations with respect to
designation as w ilderness of each such area. . . .” Id. In applying this provision,
at least three previous Presidents have interpreted it to require them to forward all
recom m endations to Congress, including those recommending against designa­
tion o f certain areas as wilderness.7 Since the FLPM A ’s wilderness review
provisions are directed towards all the lands within the Secretary’s custody that
are not covered by the Wilderness Act of 1964, the vast “ public lands” adm in­
istered by B L M , it is unlikely that C ongress, adopting the same statutory
language for the same executive departm ent, intended to change the process.8
W hen C ongress enacts a new law incorporating language contained in another
law on the sam e subject with full awareness of administrative practice under the
prior law, it would require com pelling evidence to conclude that Congress
intended to alter the process— especially in a direction which would reduce
co n g ressio n al power. L o r illa r d v. P ons, 4 34 U .S . 575, 580-81 (1978);
C h em eh uevi Tribe v. FPC, 420 U .S. 395, 408-10 (1975); Com m issioner v.
E state o f N oel, 380 U .S. 678, 682 (1965).
5 T h is parallel construction is even more e v id e n t in an ea rlier version o f th e bill, H .R . 562 2 , 94th C o n g ., 1st
S e s s ., 121 C o n g Rec 8999 (1975), introduced by Rep. S eib erlin g . Section 103 o f H .R . 5622 was an alm ost
v erbatim version of § 603 except thal it w as w ritten as one lo n g paragraph, rather than three subsections.
6 “ fT ]he S ecretary o f th e Interior sh all report to the P residen t his recom m endation as to the suitability o r
n o n su ita b ih ty o f each such area o r island for preservation as w ilderness T h e President shall ad v ise the P resident of
th e Senate and th e S peaker o f th e House of R epresentatives o f h is recom m endation with respect to the designation as
w ilderness o f ea ch such area o r island . 16 U .S .C . § 1132(c).
7 T h e se actions by P residents Ford, N ix o n , and Johnson are reflected in the follow ing material: Letter of
T ransm ittal from P resident F ord, Dec 4, 1974, Public Papers o f G erald R F ord, at 7 0 9 -1 0 , Letter of Transm ittal
from P resident N ix o n , June 13, 1974, Public le p e r s of Richard N ixon , at 4 9 6 ; M em orandum to the C ongress from
P resid en t N ix o n , N ov 2 8 , 1973, Public f^ p e rs o f Richard N ix o n , at 98 5 ; L etter o f Transm ittal from President
N ix o n , Apr. 2 8 , 1971, Public ftipers of R ic h ard N ixon, at 5 9 2 ; Letter o f Transm ittal from President Johnson,
Jan. 18, 1969, Public Papers o f Lyndon B . Jo h n so n , at 1365.
8 P ublic la n d s, 43 U S C . § 1702(e), co n stitu te the vast m a jo rity o f the lands overseen by Interior.
66
Taken as a whole, therefore, we believe that § 1782 establishes a schem e
whereby the Executive Branch supplies recommendations and data for Congress
for a congressional decision as to each area. Until a congressional determination
is made, the Secretary is required to manage such land “ so as not to impair the
suitability of such areas for preservation as wilderness.” 43 U .S.C . § 1782(c).
This plain reading of § 603 is supported by the available legislative history.
Both the House and Senate versions o f the FLPM A, H .R. 13777 and S. 507, had
wilderness review sections. The Senate’s version, S. 507, § 103(d), was very
short and ordered reviews to be done in accord with the Wilderness Act of 1964.
(d) Areas identified pursuant to section 102 as having wilderness
characteristics shall be reviewed within fifteen years of enactment
of this Act pursuant to the procedures set forth in subsections 3(c)
and (d )o fth e [Wilderness Act of 1964, 1 6 U .S .C .§ 1132(c), (d).]
S. 507, § 103(d), reprinted in S. Rep. No. 583, 94th C ong., 1st Sess. 5 (1975).
The sectional analysis states:
Subsection (d) . . . provides that once these areas are identified
the Secretary must study them to determine whether or not they
are suitable for inclusion in the National Wilderness Preservation
System an d subm it his recom m endations to the President, w ho, in
turn, must submit his own recom m endations to the Congress.
Id. at 46 (emphasis added).9
The House version, H .R. 13777, § 603, was longer, in large part because it
repeated in full the language of the Wilderness Act of 1964. Com pare 16 U .S .C .
§ 1132(c) with 43 U .S.C . § 1782(a)-(c). W hen, in preparation for the con­
ference com m ittee, the Senate staff prepared a Committee Print attem pting to
merge S. 507 and H.R. 13777, it adopted the expanded language of the H ouse’s
version, § 6 0 3 ,10 and it was this language that was ultimately adopted by
Congress.
The Committee Print highlighted proposed § 603(d) as the one provision of
§ 603 which differed from the Senate’s version." This subsection stated:
Where the President recommends pursuant to subsection (b ) of
this section that a roadless area or island is not suitable for
inclusion in the National W ilderness Preservation System, that
recommendation shall take effect [unless vetoed within 120 days
by one House.]
Id. at 857.
9 T h e identical analysis was provided on an ea rlier version o f the b ill, S . 4 2 4 . See S Rep. N o. 8 7 3 , 93rd C o n g .,
2d S ess. 38 (1974) (§ 103(e))
10 See Staff o f S enate C om m , on Energy and N atural R esources, 95th C ong , 2d S e s s., Legislative History c f the
Federal Land Policy and Management Act c f 1976. at 747 (C o m m . Print 1978).
11 Id at 857 T h e H ouse version was originally § 3 1 1(d) but w as renum bered as § 603 by the Senate staffers
co m p iling the C om m ittee Print. See n 10 supra
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This language m akes it m anifest that the President was expected to make
recom m endations under § 603(b) for areas he believed unsuitable for wilderness
designation as well as for those he believed suitable. The difference was that the
H ouse version would have allowed the President’s recommendation regarding
areas he regarded as unsuitable to become effective absent an affirmative vote by
one H o u se .12 This understanding is reflected in the House Report. “ Subsection
(d) provides options whereby areas which the President has recommended as
being non-suitable as wilderness either can be restored with minimum delay to
full m ultiple-use management o r considered further by the Congress for possible
in c lu sio n in th e N ational W ild e rn e ss P re se rv a tio n S y ste m .” H .R . Rep.
N o. 1163, 94th C ong., 2d Sess. 17 (1976) (§ 3 1 1(d)). See also 122 Cong. Rec.
24701 (1976) (rem arks of Sen. Jackson).
In the conference, Rep. Seiberling objected to language in § 603(c) and to all
o f § 603(d). Transcript of Conference Committee on S. 507, 94th C ong., 2d
S ess., at 8 8 -9 7 (Transcript).
CO N G RESSM A N SEIBERLING: [T]his means, even where
you had something that was statutorily made part of the study, or
had previously been withdrawn and was covered by the 15-year
review period, that some special interests could get the Secretary
to knock it out and the period of review would terminate.
S o , h ere ag ain we have an e ffo rt to w h ittle this thing
down. . . .
CO N G RESSM A N MELCHER: What the gentleman from Ohio
is proposing is we delete what words?
C O N G R E SS M A N SE IB E R L IN G : [D Jelete paragraph (d) on
page 109.
Transcript at 88 -8 9 .
A fte r a v ig o ro u s b u t inconclusive debate on § 603(c), Rep. S eiberling
intervened.
CO N G R ESSM A N SEIBERLING: Mr. Chairman, we are getting
hopelessly bogged down in this. My suggestion is the House
Conferees propose we leave Section (c) as it is in the draft bill
before us. I w ill withdraw my objections to it provided we take out
(d) which is the bold-face type on page 109 which, in my view,
would deprive Congress which would give the Secretary the
ability to deprive Congress of the ability to finally decide what to
do at the end of the study perio d .13
12 T h is M em o ra n d u m d o es not address th e constitutionality o f such a o ne-H ouse veto
13 A s discu ssed infra in m ore detail, we attach no particular significance to th e som ew hat garbled structure o f this
sen te n ce. W e believe the co n tex t clearly indicates that the C ongressm an was expressing concern that subsection (d)
w ould give the E xecutive B ran c h power to deprive the C ongress o f the authority to finally decide w hether a
p articu lar area was to be desig n ated wilderness o r not. The Interior D epartm ent M em orandum , through the use of an
ellip sis, giv es this statem en t the same effect.
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He could completely by-pass the study period by simply rec­
ommending a certain area be taken out of the study program and
that would be the end of it unless Congress vetoed it.
CONGRESSM AN MELCHER: Is there any objection to the
proposal by Mr. Seiberling on the House side?
CONGRESSM AN YOUNG: Do I understand the gentleman cor­
rectly? All we are doing is deleting (d)?
CONGRESSM AN MELCHER: Deleting (d), leaving the rest of
the language.
Transcript at 93-94. Section (d) was deleted, therefore, id. at 97, because o f the
concern articulated by Rep. Seiberling that it placed too much power in the hands
of the Executive by diluting Congress’ check on the President’s recommendations
as to non-suitable areas. The concern which was expressed is that an area could
be declared unsuitable and taken out of eligibility for wilderness treatment
merely as a result of an Executive Branch decision and the absence of affirmative
action by Congress. The entire debate proceeded on the assumption that the
President had the duty to make recommendations as to non-suitable areas under
§ 603(b) prior to the deletion of subsection (d)— and afterwards. The only
difference after the deletion of (d) is that those recommendations cannot become
law without affirmative congressional action. They remain recommendations.
The same analysis of the statute’s requirement seems to have been made by at
least one court. Utah v. A ndrus, 486 F. Supp. 995 (D. Utah 1979), involved a
charge that B LM ’s regulation of federal land that had been identified as having
wilderness characteristics was injuring a piece o f state property that it com pletely
surrounded. In setting out the facts underlying the governm ent’s interest, the
court described the wilderness study procedure in an explanatory footnote.
The BLM procedure for carrying out the wilderness review
portions of FLPM A is as follows: First, the agency identifies
roadless areas of 5000 acres or more which have wilderness
characteristics. These areas are then designated W ilderness Study
Areas (W SAs), and BLM studies each area to determine the
suitability of the area for inclusion in the W ilderness System. At
this point in its planning, BLM looks at all the potential uses of an
area, including the potential for mineral development. A fter
completion of this phase BLM reports to the President its recom­
mendation as to each area’s suitability (or lack thereof ) for inclu­
sion in the Wilderness System. The President then m akes his
r e c o m m e n d a tio n s to C o n g r e s s , w h ic h m a k e s th e f i n a l
determ ination.
486 F. Supp. at 1001 n.9 (emphasis added) (dictum).
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IV. The Associate Solicitor’s Memorandum
The M em orandum relies on the statutory language of 43 U .S .C . § 1782 and
co n g ressio n al intent to support its position. We are not convinced by its
argum ents.
1. T he M em orandum points out that whereas the Secretary makes recom m en­
dations to the President “ as to the suitability or nonsuitability of each such area,”
43 U .S .C . § 1782(a), the President makes recommendations to Congress only
“ with respect to designation as w ilderness of each such area.” Id., § 1782(b).
The difference in language between subsections (a) and (b) is read by the
A ssociate Solicitor to mean that C ongress did not intend to require the President
to subm it recom m endations as to unsuitable land— otherwise, Congress “ surely
would have selected language sim ilar to that contained in subsection (a).”
M em orandum at 2.
We believe that the language employed by Congress does not support the
construction suggested. First, subsection (b) does not require the President to
subm it only recommendations favoring designation as wilderness, but rather
recom m endations “ with respect to designation as wilderness o f each such area.”
43 U .S .C . § 1782(b) (emphasis added). Requiring the President to make a
recom m endation “ with respect to ” “ each such area” seems fully as broad as
requiring the Secretary to make a recommendation for each such area as to its
suitability or non-suitability. W hile the language in subsections (a) and (b) is not
identical, the words in subsection (b) are certainly broad enough to embrace the
process referred to in subsection (a), do not expressly connote a more limited
intent, and the term s of (a) are identical to those used in 16 U .S.C . § 1132 which
has not been construed in the m anner suggested by the Associate Solicitor. In
short, we can see no basis for the interpretation reached by the Associate
Solicitor.
Second, we do not believe, as Interior does, that “ each such area” is ambigu­
ous. M em orandum at 4. We believe that every use of “ each such area” in § 1782
has the sam e m eaning. Although the M emorandum argues that “ ‘of each such
area’ can ju st as easily ” be construed as referring only to the areas the President
recom m ends as “ suitable for w ilderness,” id ., we disagree. First, this would
require assum ing that Congress meant the sam e phrase to have two different
m eanings within the space of a few sentences, a most unlikely event. Second, it
would require reading “ of each such area” as referring back to some prior point
in the section where “ such” areas are identified— but there is no prior reference
that would give a narrow meaning to the word “ such.” The only possible “ areas”
to which “ such” can refer are in § 1782(a) which, the Associate Solicitor
concedes, includes all areas being studied.14
2. Interior believes that § 1782(c) is also am biguous. Again, it is unlikely that
Congress would intend “ such areas” and “ such lands,” both phrases found in
14 We w ould reach th is co n c lu sio n even if w e did not have the exam ple o f o th er statutes w hich com bine both these
sen tences in the sam e parag ra p h . See supra, notes 5 & 6
70
§ 1782(c), to differ so radically in meaning from such subsection to subsection.
Interior argues, however, that “ the ‘such lands’ provision more appropriately
refers to those lands that have been recommended to Congress for wilderness
under section 603(b) . . . [They are lands] which have been determined by the
President to be suitable for wilderness purposes.” Memorandum at 4, 5. We
cannot agree that this interpretation comports with the “ broad schem e” of
§ 1782. Id. at 4. If the lands can be returned to multiple use management as soon
as the President decides they are unsuitable, it is certainly possible that such use
would irreparably impair the suitability of such areas for preservation as wilder­
ness. By the tim e Congress had learned of the decision and acted to override it,
the characteristics sought to be preserved might no longer exist.15 T he interim
management provision would be frustrated by irreversible disturbances of the
status quo. See P arkerv. U nited States, 448 F.2d 7 9 3 ,7 9 7 (10th Cir. 1971 ),c e r t.
denied, 405 U .S. 989 (1972).
3. Section 1782(b) concludes with the sentence, “A recommendation of the
President for designation as wilderness shall becom e effective only if so provided
by an Act of Congress.” The Memorandum takes the position that this dem on­
strates that Congress retained control only of areas which are to be designated as
wilderness, not of unsuitable areas. “ The logical conclusion is that no provision
[for unsuitable areas] was necessary since reports on such nonsuitable areas
would not be required to be sent to Congress for decision.” M emorandum at 3.
The negative inference of this sentence provides, we believe, the strongest
support for the interpretation urged by Interior. However, we believe that the
Interior interpretation misapprehends Congress’ concern. One of the express
congressional purposes for the FLPM A was to reassert Congress’ control over
federal lands, specifically, to insure that
the Congress exercise its constitutional authority to withdraw or
otherwise designate or dedicate Federal lands for specified pur­
poses and that Congress delineate the extent to which the Ex­
ecutive may withdraw lands without legislative action.
43 U .S.C . § 1701(a)(4).16 The FLPMA repealed the President’s implied au­
thority to make withdrawals, FLPM A, § 704(a) Pub. L. No. 94-579, 90 Stat.
2792 (1976), and carefully limited the Executive’s express authority to make
withdrawals. See 43 U .S .C . § 1714. Even § 603 contains a limit on the Secre­
ta ry ’s w ithdraw al authority. 43 U .S .C . § 1782(c) (m ining lands). Section
1782(b) is an expression of Congress’ concern that the President not make any
effort to protect wilderness lands by unilateral action. It is very weak support for
the argum ent that Congress left in the President’s hands the even broader
authority to determ ine the status of areas by failing to make a recommendation.
15 T h e rationale for preserving the character of th e land is theoretically stronger, from C o n g ress’ stan d p o in t, for
areas w hich the P resident does not believe to be suitable H e w ould not be likely to need an y congressional
adm onition to avoid im pairing the w ilderness characteristics for lands w hich he believed suitable for w ild ern ess
designation
16 W ithdraw als, 43 U S .C § 1702(j), are the w ithholding of Federal land from settlem ent in order to lim it
activities and thereby m aintain som e particular public value, such as w ilderness characteristics.
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This sentence of subsection (b), on which this argument is predicated, is also
found in the W ilderness Act, 16 U .S .C . § 1132, which, as noted earlier, was
adm inistered by three Presidents to require reports and recommendations to
C ongress on suitable and non-suitable areas. This construction, the plain reading
o f the statute as a w hole, the oth er inferences to be drawn from the language of the
statute and the legislative history, considerably outweigh the argument made by
Interior. In short, we do not believe that this sentence can be construed in the
m anner suggested.
4. Interior also finds support for its position in the fact that the Secretary is
required to conduct mineral surveys only for areas he considers suitable for
inclusion in the wilderness system , 43 U .S .C . § 1782(a). It argues that this
indicates that Congress only w anted such information on suitable areas because it
would not be involved in decisions about unsuitable areas. A short answer to this
is that any inference about the mineral surveys must apply equally to the
President. Since it is the Secretary who conducts the surveys based on his
assessm ent of what areas are suitable, Interior’s logic would compel the con­
clusion that the President also would only be involved in decisions regarding
suitable areas because those areas are the only ones for which the President would
receive surveys. Obviously, the statute does not permit such a conclusion. It
seem s more likely that, in the interests of administrative economy, Congress
directed mineral surveys of the areas that will probably end up being designated
as w ilderness but did not intend this to be a limit on the areas as to which the
Secretary or the President should make recommendations.
5. T he next rationale offered by Interior is that requiring the President to make
recom m endations on all areas w ill place the land into an administrative quasi­
perm anent lim bo that will frustrate FLPM A ’s purpose. M emorandum at 5 -6 .
This purpose, it is said, is the “ expeditious” return of land to management based
on m ultiple use. Memorandum at 6. First, this ignores the categorical directive in
§ 1782(c) that the land be managed to protect its wilderness characteristics “ until
C ongress has determ ined otherwise.” Second, it assumes that this interim man­
agem ent schem e requires the Secretary to act so narrowly that the land will be of
no use for the long period of tim e that Congress has the area’s future under
advisem ent. This ignores both the provisos in § 1782(c) that provide for certain
continuing uses of the land and th e court interpretations that have upheld various
activities in the areas. See Rocky M ountain O il & G as A ss’n v. Andrus, 500 F.
Supp. 1338 (D. W yo. 1980) (mining), a p peal docketed, No. 81-1040 (10th Cir.
Jan. 5, 1981)*; U tah v. Andrus, 486 F. Supp. 995 (D. Utah 1979) (access roads
for tim ber harvesting). Further, the status of an area recommended for non­
inclusion will stay in the status dictated by subsection (c) only as long as
C ongress w ishes. It is difficult to conclude that this somehow is contrary to
congressional intent.
♦ N o t e . In response Jo ihe Secretary's appeal in this case, th e court of appeals narrow ed th e d istrict c o u rt’s
co n stru c tio n o f the statutory exem ption for e x istin g uses of designated lands, holding that “ C o n g ress in ten d ed to
lim it existing m ining and grazing activities to th e level of physical activity b eing undertaken so as to prevent
im p airm en t o f w ilderness characteristics ’* 696 F.2d 734, 749 (10th C ir 1982) citin g Utah v. Andrus. 486 F. Supp
9 9 5 (D U tah 1979). Ed
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6. Interior argues that the conference committee transcript indicates that Rep.
Seiberling was confused and thought that proposed § 603(d) gave the Secretary,
rather than the President, the power to release unsuitable areas. M emorandum at
9. See supra, n. 13. We doubt whether Rep. Seiberling was confused, not only
because of his long involvement with FLPM A, see supra, n. 5, culminating in his
being chosen as a member of the House delegation to the conference, but also
because of his argum ents, see Transcript, supra, at 88-97, detailing his objec­
tions to proposed § 603(d). The use of the word “ Secretary” is not material to the
central issue under debate and we simply cannot attach any significance to it. Nor
can we agree with Interior’s argument that Rep. Seiberling supported the deletion
of § 603(d) “ even after recognizing that by such deletion the executive branch
could release the land without Congressional approval.” Memorandum at 9. The
Transcript seems to us to mean just the opposite— that Rep. Seiberling supported
the deletion of § 603(d) because he did not want the Executive Branch to be able
to bypass congressional action on this subject. Transcript, supra, at 94. The
quoted language simply does not support the significance attached to it by the
Associate Solicitor.
Finally, Interior argues that since § 603(b) already gave the President the
power to release unsuitable land, the purpose of § 603(d) was to give Congress
the authority to override that release. Deletion of § 603(d), therefore, is con­
strued to mean that Congress did not want to exercise this review authority and
left release to the President’s unfettered discretion. We disagree. Interior’s entire
argument is based on the premise with which we are unable to agree, that
§ 603(b) gives the President release authority. For the reasons stated above, we
cannot agree with Interior’s reasoning.
We conclude that § 603 calls upon the Secretary to conduct a study of certain
areas, to make recommendations to the President with respect thereto, and for the
President to make recommendations concerning those areas to the Congress. We
are unable to find any credible support for the argument that the President need
not make recommendations to Congress as to some areas, but may in fact remove
the land from further consideration without any congressional submission. The
statute’s language, its legislative history, administrative practice regarding pre­
vious legislation which is virtually identical, and judicial interpretation all lead to
the conclusion that there is no implicit authority in the President to unilaterally
release lands from further study merely because he believes them to be unsuita­
ble. The President must make recommendations as to all areas studied by the
Secretary and he must await Congress’ decision as to their ultimate fate.
T heodore B. O lson
Assistant Attorney G eneral
Office o f L egal Counsel
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