Yount v. Salazar

• Decision Date: 16 May 2013
• Docket Number: Nos. CV11–8171–PCT DGC, CV12–8038 PCT DGC, CV12–8042 PCT DGC, CV12–8075 PCT DGC.,s. CV11–8171–PCT DGC, CV12–8038 PCT DGC, CV12–8042 PCT DGC, CV12–8075 PCT DGC.
• Citation: 933 F.Supp.2d 1215
• Parties: Gregory YOUNT, Plaintiff, v. Ken SALAZAR, et al., Defendants. National Mining Association, Plaintiff v. Ken Salazar, et al., Defendants. Northwest Mining Association, Plaintiff v. Ken Salazar, et al., Defendants. Quaterra Alaska Incorporated, et al., Plaintiff v. Ken SALAZAR, et al., Defendants.
• Court: U.S. District Court — District of Arizona

933 F.Supp.2d 1215

Gregory YOUNT, Plaintiff,

v.Ken SALAZAR, et al., Defendants.

National Mining Association, Plaintiff

v.Ken Salazar, et al., Defendants.

Northwest Mining Association, Plaintiff

v.Ken Salazar, et al., Defendants.

Quaterra Alaska Incorporated, et al., Plaintiff

v.Ken SALAZAR, et al., Defendants.

Nos. CV11–8171–PCT DGC, CV12–8038 PCT DGC, CV12–8042 PCT DGC, CV12–8075 PCT DGC.

United States District Court,

D. Arizona.

March 20, 2013.

Order Denying Reconsideration May 16, 2013.

Held Unconstitutional

43 U.S.C.A. § 1714(c)(1)

Gregory Yount, Chino Valley, AZ, pro se.

Constance E. Brooks, Michael B. Marinovich, Bradley David Damm, CE Brooks & Associates PC, Denver, CO, William George Klain, Lang Baker & Klain PLC, Scottsdale, AZ, for Defendants.

Jeffrey Wilson McCoy, Steven James Lechner, Mountain States Legal Foundation, Lakewood, CO, for Plaintiff, Northwest Mining Association.

DAVID G. CAMPBELL, District Judge.

Plaintiffs National Mining Association and Nuclear Energy Institute (“NMA/NEI”) and Plaintiff Northwest Mining Association (“NWMA”) have filed motions for partial summary judgment in this consolidated action. Docs. 73, ¹ 90. Plaintiffs assert in counts one and seven of their respective complaints that the Secretary of the Department of the Interior's withdrawal of more than one million acres from mining location and entry in Northern Arizona should be vacated because § 204(c) of the Federal Land Policy Management Act (“FLPMA”) is unconstitutional.

Defendants Kenneth L. Salazar, Secretary of the Department of the Interior; the Department of the Interior (“DOI”); the Bureau of Land Management (“BLM”); the Forest Service; and the Department of Agriculture (collectively, “Federal Defendants”), and Defendant–Interveners Grand Canyon Trust et al. (“the Trust”) have filed cross motions for partial summary judgment on these counts. Docs. 101, 102.

The motions and cross motions have been fully briefed (Docs. 101, 102, 110, 113, 115, 117), and the Court held oral argument on March 1, 2013. For the reasons stated below, the Court finds that § 204(c)'s legislative veto, which provides that Congress can block withdrawals in excess of 5,000 acres through a resolution of both houses, is unconstitutional. The Court also finds, however, that this provision is severable from the grant of authority relied on by the Secretary in this case. The Court therefore will deny Plaintiffs' motions for partial summary judgment and grant Federal Defendants' and Defendant-interveners' cross motions.

I. Background.

On July 21, 2009, Secretary Salazar published notice of his intent “to withdraw approximately 633,547 acres of public lands and 360,002 acres of National Forest System lands for up to 20 years from location and entry under the Mining Law of 1872.” Notice of Proposed Withdrawal, 74 Fed.Reg. 35,887, (July 21, 2009). The 2009 Notice had the effect of withdrawing the land from location and entry for up to two years to allow time for analysis, including environmental analysis under the National Environmental Protection Act (“NEPA”). Id.

On August 26, 2009, the BLM, an agency within DOI, published notice of its intent to prepare an Environmental Impact Statement (“EIS”) addressing the proposed withdrawal, as required by NEPA. 74 Fed.Reg. 43,152 (Aug. 26, 2009). The purpose of the withdrawal as explained in the notice was “to protect the Grand Canyon watershed from adverse effects of locatable mineral exploration and mining, except for those effects stemming from valid existing rights.” Id. at 43, 152–53.

After soliciting public comments, the BLM issued a notice of availability of a Draft EIS on February 18, 2011. 76 Fed.Reg. 9,594 (Feb. 18, 2011). The Draft EIS considered four alternatives: a “No Action” alternative; the withdrawal of approximately 1,010,776 acres for 20 years; the withdrawal of approximately 652,986 acres for 20 years; and the withdrawal of 300,681 acres for 20 years. Id. at 9,595. After an extended opportunity for public comment, the BLM published a notice of availability of the Final EIS on October 27, 2011. 76 Fed.Reg. 66,747 (Oct. 27, 2011). The Secretary issued a Record of Decision on January 9, 2012, choosing to withdraw “approximately 1,006,545 acres of federal land in Northern Arizona for a 20–year period.” See No. 3:12–cv–08042, Doc. 27–1 at 3.

The Secretary made this withdrawal under the authority granted in § 204 of FLPMA. 77 Fed.Reg. 2,563–01, 2,563 (Jan. 18, 2012). Section 204(c) authorizes the Secretary to make withdrawals “aggregating five thousand acres or more ... only for a period not more than 20 years.” ²43 U.S.C. § 1714(c)(1). It further provides that “[t]he Secretary shall notify both houses of Congress of such a withdrawal no later than its effective date[,] and the withdrawal shall terminate and become ineffective at the end of ninety days ... if the Congress has adopted a concurrent resolution stating that such House does not approve the withdrawal.” Id. The Secretary submitted its notice and reports to Congress on January 9, 2012, and Congress did not pass a concurrent action within 90 days to block the withdrawal. See Doc. 101 at 72–88. The withdrawal therefore remains in effect.

II. Discussion.

Plaintiffs argue that even though Congress did not exercise its authority to void the withdrawal, the legislative veto provision enabling it to do so is unconstitutional and so interwoven with the withdrawal authority given the Secretary in § 204(c) that the entire grant of authority must be struck down. See generally Docs. 73 & 90.³

A. The Legislative Veto.

Plaintiffs contend, and Defendants do not dispute, that the provision permittingCongress to terminate a withdrawal by concurrent resolution is unconstitutional because it allows Congress to act without adhering to normal constitutional requirements. The Supreme Court in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), found that where Congress delegates authority to an agency to make policy decisions that alter legal rights, thus enabling the agency to engage in “legislative action,” Congress must “abide by that delegation of authority until that delegation is legislatively altered or revoked.” Id. at 955, 103 S.Ct. 2764. Congress cannot alter a decision of such an agency merely through a resolution of one or both houses because Congress must act “in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President.” Id. at 958, 103 S.Ct. 2764. Section 204(c), which allows Congress to void the Secretary's decisions without presentment to the President, is clearly unconstitutional under Chadha.

B. Severability.

Plaintiffs argue that the legislative veto is not severable from the rest of § 204(c) and that the Court must therefore invalidate the entire section. The touchstone for determining whether a challenged statutory provision is severable from other provisions is the intent of Congress. Carter v. Carter Coal Co., 298 U.S. 238, 312, 56 S.Ct. 855, 80 L.Ed. 1160 (1936) (explaining that the test for severability is “What was the intent of the lawmakers?”); Chadha, 462 U.S. at 931–932, 103 S.Ct. 2764 (noting that invalid portions of a statute are to be severed “[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.”) (internal quotation marks and citations omitted); City of New Haven v. U.S., 809 F.2d 900, 903 (D.C.Cir.1987) (“[T]he question whether the unconstitutional legislative veto provision in section 1012 is severable from the remainder of that section ... [i]s purely one of congressional intent.”). Thus, the key question for the Court to decide is whether Congress would have conferred § 204(c) withdrawal authority on the Secretary in the absence of a legislative veto.

Plaintiffs argue that Congress would have discarded all of § 204(c) rather than enact a grant of authority to make withdrawals of 5,000 acres or more (“large-tract withdrawals”) without a legislative veto. Plaintiffs point to the historical and political events leading up to the FLPMA, the language, structure, and context of § 204(c), and the legislative history of the FLPMA, all as showing that Congress would not have granted the Secretary large-tract withdrawal authority had it known it could not rely on the legislative veto to control that authority. Docs. 73 at 8–13; 90 at 17–21. The Court will address these arguments separately.

Before doing so, however, the Court notes two legal principles that will bear on the decision in this case. First, a statute that contains an unconstitutional provision is presumed to be severable if Congress has included a severability clause in the statute. Chadha, 462 U.S. at 932, 103 S.Ct. 2764. “A provision is further presumed severable if what remains after severance ‘is fully operative as a law.’ ” Id. at 934, 103 S.Ct. 2764 (internal citation omitted). Second, when a presumption of severability arises, the party asking the Court to strike down a portion of the statute must present “strong evidence” that Congress would not have enacted the challenged portion of the statute in the unconstitutional provision. Alaska Airlines v. Brock, 480 U.S. 678, 686, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987).

The FLPMA includes a severability clause. Congress specifically stated that “[i]f any provision of the Act or the application thereof is held invalid, the remainder of the Act and application thereof shall not be affected thereby.” Act of Oct. 21, 1976, Pub. L. No. 94–579, § 707, 90 Stat. 2743; 43 U.S.C. § 1701, historical and statutory notes. This clause is similar in material respects to the severability clause in Chadha, where the Court emphasized that the clause applied to “ ‘ any particular provision of [the] Act.’ ” 462 U.S. at 932, 103 S.Ct. 2764 (emphasis added by Chadha ). The Court thus begins its analysis with...