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NATIONAL MINING ASSOCIATION, Petitioner, V

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NATIONAL MINING ASSOCIATION, Petitioner, V No. _________ ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- NATIONAL MINING ASSOCIATION, Petitioner, v. RYAN ZINKE, SECRETARY OF THE INTERIOR, ET AL., Respondents. --------------------------------- --------------------------------- On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit --------------------------------- --------------------------------- PETITION FOR A WRIT OF CERTIORARI --------------------------------- --------------------------------- KATIE SWEENEY R. TIMOTHY MCCRUM General Counsel Counsel of Record NATIONAL MINING ASSOCIATION THOMAS A. LORENZEN 101 Constitution Ave., NW ELIZABETH B. DAWSON Washington, DC 20001 CROWELL & MORING LLP 1001 Pennsylvania Ave., NW Washington, DC 20004 (202) 624-2500 [email protected] Counsel for National Mining Association March 9, 2018 ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i QUESTION PRESENTED In a provision of the Federal Land Policy and Man- agement Act of 1976, Congress delegated to the United States Department of the Interior authority to with- draw, for up to 20 years, large tracts of federal lands from availability for mineral development under the Mining Law of 1872, as amended. Congress included in the same provision a right of legislative veto over any large withdrawal, but all now agree the legislative veto violates the Presentment Clause. The question presented is: Can Congress’s delegation to the Department of the Interior of withdrawal authority over large tracts of land survive without the legislative veto right that Congress included as a check on the exercise of that authority? ii PARTIES TO THE PROCEEDINGS Petitioner National Mining Association was the Appellant in Ninth Circuit No. 14-17350. The Arizona Utah Local Economic Coalition and Metamin Enter- prises USA, Inc. were Appellants in consolidated case No. 14-17351. The American Exploration & Mining As- sociation was Appellant in consolidated case No. 14- 17352. Gregory Yount was Appellant in consolidated case No. 14-17374. Respondents Ryan Zinke, Secretary of the Interior; United States Department of the Interior; Michael Nedd, Acting Director, Bureau of Land Management; Bureau of Land Management; George E. Perdue, Sec- retary of Agriculture; United States Department of Agriculture; and United States Forest Service were Appellees in the consolidated appeals. Grand Canyon Trust, Sierra Club, National Parks Conservation Asso- ciation, Center for Biological Diversity, and Havasupai Tribe were Intervenor-Appellees in the consolidated appeals. RULE 29.6 STATEMENT The National Mining Association states that it has no parent corporation, and there is no publicly held company that owns 10% or more of its stock. iii TABLE OF CONTENTS Page QUESTION PRESENTED................................... i PARTIES TO THE PROCEEDINGS ................... ii RULE 29.6 STATEMENT .................................... ii TABLE OF AUTHORITIES ................................. vii OPINIONS BELOW ............................................. 5 JURISDICTION ................................................... 5 CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED........................................... 5 STATEMENT ....................................................... 6 I. STATUTORY BACKGROUND .................. 6 II. FACTUAL BACKGROUND ....................... 8 III. PROCEEDINGS BELOW .......................... 10 A. District Court Opinion ........................ 10 B. Ninth Circuit Opinion ......................... 10 REASONS FOR GRANTING THE PETITION .... 11 I. THE NINTH CIRCUIT OVERLOOKED A CRITICAL ELEMENT OF THIS COURT’S ANALYTICAL FRAMEWORK FOR DE- TERMINING THE SEVERABILITY OF A LEGISLATIVE VETO ................................ 14 II. REVIEW IS WARRANTED TO CLARIFY THE CORRECT SEVERABILITY STAN- DARD AND REVERSE THE NINTH CIR- CUIT’S IMPERMISSIBLE RECRAFTING OF FLPMA ................................................ 16 iv TABLE OF CONTENTS – Continued Page A. The Ninth Circuit Ignored the Plain Language of FLPMA Reflecting the Careful Balance Congress Struck Be- tween Executive and Legislative Power in Delegating Limited Large-Scale Withdrawal Authority ......................... 20 1. FLPMA Section 204 Prescribes the Only Conditions Acceptable to Con- gress for Large-Scale Withdrawal Authority, Including the Strong Con- gressional Oversight a Legislative Veto Provides .................................. 20 2. Congress Legislated Its Intent in FLPMA’s Policy Statement and Ab- rogation of Midwest Oil .................. 23 3. FLPMA’s Severability Clause Re- quires That the Entirety of the Rel- evant “Provision” Be Severed ......... 25 B. The Ninth Circuit Disregarded the Structural Context of the Legislative Veto That Demonstrates Congress In- tended Large-Scale Withdrawal Au- thority to Stand or Fall with It ........... 26 C. The Ninth Circuit Misinterpreted FLPMA’s Legislative History .............. 29 1. FLPMA – Including the Legislative Veto – Was Congress’s Reaction to an Executive Branch Riding Rough- shod over the Property Clause ........ 30 v TABLE OF CONTENTS – Continued Page 2. The Ninth Circuit Erroneously Attributed Conclusive Weight to Statements Disagreeing with What Ultimately Became the Law ........... 32 D. The Separation of Powers and Prop- erty Clause Concerns Implicated Here Reinforce the Importance of Removing Large-Scale Withdrawal Authority Along with the Veto ....................................... 34 III. THE NINTH CIRCUIT’S ERROR HAS FAR-REACHING IMPLICATIONS FOR THE MANAGEMENT OF FEDERAL LAND IN THE UNITED STATES, WARRANT- ING THE COURT’S REVIEW ................... 37 CONCLUSION ..................................................... 41 APPENDIX Ninth Circuit Opinion ................................................ 1a District Court Opinion ............................................. 66a District Court Order Denying Plaintiffs’ Motion for Reconsideration ............................................. 109a District Court Order Denying Motion for Final Judgment ............................................................. 128a District Court Order on Summary Judgment Motions ................................................................ 137a District Court Order Denying Motions to Dis- miss ...................................................................... 202a vi TABLE OF CONTENTS – Continued Page District Court Judgment ........................................ 271a FLPMA Section 102 (43 U.S.C. § 1701) .................. 272a FLPMA Section 204 (43 U.S.C. § 1714) .................. 275a FLPMA Section 704(a) (90 Stat. 2792) .................. 283a FLPMA Section 707 (90 Stat. 2794)....................... 284a Declaration of Dr. Karen Wenrich .......................... 285a vii TABLE OF AUTHORITIES Page CASES Ala. Power Co. v. U.S. Dep’t of Energy, 307 F.3d 1300 (11th Cir. 2002) ............................................... 27 Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) ............................................................... passim City of New Haven, Conn. v. United States, 809 F.2d 900 (D.C. Cir. 1987) ............................. 24, 33, 34 Cont’l Can Co. v. Chi. Truck Drivers Inc., 916 F.2d 1154 (7th Cir. 1990) ......................................... 29 Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013) ................................................. 39 Dorchy v. Kansas, 264 U.S. 286 (1924) ....................... 27 Hamad v. Gates, 732 F.3d 990 (9th Cir. 2013) ........... 10 Havasupai Tribe v. Provencio, 876 F.3d 1242 (9th Cir. 2017) ................................................................. 39 INS v. Chadha, 462 U.S. 919 (1983) ....... 2, 3, 10, 19, 27 Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1998) ............. 29 Kidd v. U.S. Dep’t of Interior, 756 F.2d 1410 (9th Cir. 1985) ................................................................. 35 Miller v. Albright, 523 U.S. 420 (1998) ................. 19, 22 Nat’l Mining Ass’n v. Zinke, 877 F.3d 845 (9th Cir. 2017) ............................................................... 4, 5 Nguyen v. INS, 533 U.S. 53 (2001) ................. 21, 22, 23 Planned Parenthood of Ctr. Mo. v. Danforth, 428 U.S. 52 (1976) .................................................... 17, 26 viii TABLE OF AUTHORITIES – Continued Page Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 (1985) ................................................. 26 Union Station Assocs., LLC v. Puget Sound En- ergy, Inc., 238 F. Supp. 2d 1218 (W.D. Wash. 2002) ........................................................................ 20 United States v. California, 332 U.S. 19 (1947) ......... 35 United States v. Locke, 471 U.S. 84 (1985) ........... 34, 35 United States v. Midwest Oil Co., 236 U.S. 459 (1915) ............................................................... passim United States v. Shumway, 199 F.3d 1093 (9th Cir. 1999) ................................................................. 37 STATUTES 8 U.S.C. § 1421(d) ........................................................ 22 16 U.S.C. § 1531 et seq. ............................................... 39 28 U.S.C. § 1254(1) ........................................................ 5 30 U.S.C. § 22 ................................................................ 8 30 U.S.C. § 612 ...........................................................
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