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Home Uncategorized What Happens When the Presidential Memorandum Conflicts with Existing Land Management Law? Only Congress Can Decide.

What Happens When the Presidential Memorandum Conflicts with Existing Land Management Law? Only Congress Can Decide.

Published on March 31, 2016

laura-skaerRecently, the Idaho Mining Association posted a press release announcing the recent visit Laura Skaer, American Exploration & Mining Association (AEMA) Executive Director made to Washington D.C. to testify before Congress. In her testimony, Skaer examines the conflicts the Presidential Memorandum has with the Mining Law and existing land management statutes. She asks Congress to use their constitutional authority to manage the public lands and to not let the Presidential Memorandum usurp their power. A breakdown/summary of one of her arguments is below.

Read Laura Skaer’s Full Testimony

Background:

Six lawsuits have been filed against the Federal Government challenging the Sage-Grouse Records of Decisions (ROD) and various land use plan amendments.

Plaintiffs include two governors, a state legislature, an attorney general, a state land board, counties in two states, grazing interests, mining interests and environmental NGOs (organizations that are not run by federal or state governments but rather have funds issued to them by governments, private donors, corporations, and other institutions).

Two of the issues in five of the cases are against the BLM for violating the Federal Land Policy and Management Act, or FLPMA and the National Environmental Policy Act (NEPA). FLPMA is the United States federal law that governs the way public lands are administered/managed by the Bureau of Land Management. NEPA is a United States environmental law that promotes the enhancement of the environment and establishes the President’s Council on Environmental Quality (CEQ). In both cases, it is claimed that the BLM violated these existing laws. In her testimony, Laura Skaer examines theses claims and the conflicts the Presidential Memorandum has with the Mining Law and existing land management statutes. She asks Congress to use their constitutional authority to manage the public lands and not to let the Presidential Memorandum usurp their power.

Summary of Findings Discussed in the Testimony:

The cases discussed in Skaer’s testimony state that the BLM violated FLPMA and NEPA in two ways. The first is when they adopted a “net conservation benefit or gain standard” because it conflicts with FLPMA’s “prevent unnecessary or undue degradation standard”. Second, because they inserted SFAs into the final LUPAs.

To understand the FLPMA and NEPA Violation with the adoption of “net conservation benefit or gain standard”, understand that outside of special management areas, BLM, under FLPMA, simply has no authority to require locatable mineral operations on the public lands provide a net benefit, net conservation gain or no net loss of natural resources. Furthermore, FLPMA does not authorize BLM to require compensatory mitigation that goes beyond the direct impacts from mining activities, or to require offsite mitigation including advanced mitigation. Both directives were assigned in the Presidential Memorandum.

To understand the second claim that FLPMA and NEPA were violated with the BLM’s adoption of “prevent unnecessary or undue degradation standard”, understand that normally, FLPMA authorizes necessary degradation and due degradation, meaning that some degradation of the public lands will be necessary and due or reasonable under the circumstances. Congress could have, but did not require the public lands to be managed for a net resource benefit or to a no net loss of resources standard.

Conclusion:

When Skaer asks congress to use their constitutional authority to manage the public lands and not to let the Presidential Memorandum usurp their power, she backed up her request by referencing Article IV, Section 3 of the United States Constitution which states, in part,

“the Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; . . . ”

She represents those that feel the Presidential Memorandum was overreaching. Just like all constitutional power, there is a checks and balance system in place to make sure one governing entity does not have too much power. Congress has delegated this authority accross many agencies to ensure the same balance of power. Specifically, the Departments of the Interior and Agriculture, and their respective land management agencies, the Bureau of Land Management and the U.S. Forest Service, through the Mining Law of 1872 (30 U.S.C. 21, et seq), the Federal Land Policy and 3 Management Act (FLPMA), the Organic Act of 1897 (16 U.S.C. 473 et seq), the National Forest Management Act of 1976 (NFMA) (16 U.S.C. 1600, et seq), the Multiple-Use Sustained-Yield Act of 1960 (MUSY) (16 U.S.C. 528 et seq), and the Surface Use Act (SUA) (30 U.S.C. 612(b)).

In these statutes, Congress has clearly stated that the public lands and National Forest Lands are to be managed for multiple-use and sustained yield.

Congress also retained certain authority and put sideboards or limitations on the delegation of authority.

These laws also provide the tools and standards the Departments, agencies and bureaus require to meet the Nation’s need for minerals, food, timber and fiber, to conserve and protect our natural resources, and to manage the public lands and balance these sometimes competing values.

Thus, the Presidential Memorandum is unnecessary – especially considering that many of the directives conflict with existing statutory authority.

Sources:

 https://www.miningamerica.org/aema-executive-director-testifies-before-congress/

http://www.energy.senate.gov/public/index.cfm/hearings-and-business-meetings?ID=E445AAA0-CDB2-47FE-B73E-34A9E0A50F63

https://www.miningamerica.org/wp-content/uploads/2016/03/AEMA-testimony-Presidential-Memorandum-on-Mitigation-3-15-16.pdf

 
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