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

• Court: Department of Justice Office of Legal Counsel
• Decided: January 11, 1982
• Status: Published

Opinion

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

63 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

67 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.

68 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).

69 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.

71 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

72 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