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In part two of our two part series on Federal court decisions that favored the environment over the interests of hardrock mining, we now turn to the United States District Court of Arizona.  Recall in the first installment of this series, a Federal Appeals Court in San Francisco held just two weeks ago that the Endangered Species Act trumps the antiquated General Mining Law of 1872.  So, before miners use their suction dredge techniques to destroy the habitat of a protected species, they must first consult with the right government biologists.  This week, we look at a case out of Arizona where corporate interests seek to mine the Grand Canyon.  Really.

The good folks who reside in Arizona know about the 5 Cs:  Cattle, Citrus, Cotton, Climate, and Copper.  The Grand Canyon state has a rich history in agriculture, mining, and tourism.  Unfortunately, not all land uses described in the 5 Cs are compatible with one another.  This is especially true when one of them involves mining.  So, when it appeared that the mining corporations wanted to start digging around the Grand Canyon looking for uranium, the US Department of Interior (DOI) decided that preserving one of the greatest wonders of the natural world superseded the narrow interests of the miners.

The United States Constitution grants Congress the power to make all rules and regulations with respect to Federal property (Art. IV, § 3, cl. 2).  Like many of the powers granted to Congress, they chose to delegate this authority to an executive branch agency. Section 204 of Federal Land Policy Management Act (FLPMA) allows the Secretary of Interior to withdrawal five thousand acres or more of Federal land for up to twenty years. On January 9, 2012, Secretary Salazar using this authority, withdrew approximately 1,000,000 acres of federal land near the Grand Canyon.  The practical effect of this is to temporarily protect the area from mining for the statutory period.  After a withdrawal, FLPMA also allows Congress to render that decision ineffective by passing a joint resolution of disapproval. It's this part of FLPMA that landed the litigants in Federal Court.

Legislative Veto

After Secretary Salazar announced the withdrawal, the mining lobby promptly sued.  They claimed that Section 204 of FLPMA is unconstitutional.  The problem here is that Congress cannot unilaterally disapprove of an agency action where they already delegated to that agency authority to make certain decisions.  Proper respect for the separation of powers requires that if Congress does not like what an agency does, it must pass a law with President’s signature.  Joint resolutions can express the sense of the legislature, but they lack the force of law. The United States Supreme Court dealt with this in INS v. Chadha (462 U.S. 919 (1983)).  The Court ultimately held that the Constitution does not allow a “legislative veto”.  That is, Congress cannot on its own, override a properly delegated agency action.  Congress can send a bill to the President, but cannot otherwise undo what an agency does.

So, the legislative veto part of FLPMA is unconstitutional.  Does that mean the mining lobby wins? Is all of FLPMA unconstitutional as well? No.  Most of the District Court’s opinion discusses whether the offending legislative veto provision dooms the entire law.  Fortunately, Congress thought of that when they passed FLPMA because the law contains a severability clause that says:

If any provision of the Act or application thereof is held invalid, the remainder of the Act and application thereof shall not be affected thereby. 43 U.S.C. § 1701 (1976)

The Secretary’s decision to withdrawal areas surrounding the Grand Canyon from mining earned praise from Earthworks as well as over 300,000 public comments in support.  The issue here is not really one of constitutional law or legislative construction, but rather the value we place on our cultural, natural, and historic heritage.  This decision affirms the notion that some uses of public lands should trump mining.  After all, if we can mine the Grand Canyon, then truly no place is sacred.