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U.S. SUPREME COURT DECISIONS THAT SHAPED DEPARTMENT'S 20TH CENTURY RESPONSIBILITIES

MARKING INTERIOR'S 150TH YEAR Stewardship and The Law An Introduction by John D. Leshy, Solicitor 1

AMERICAN INDIAN WATER RIGHTS Maters v. United States ,1908—Indian Water Rights} 2

POWER TO PROTECT NATURAL RESOURCES Cornfield v. United States (1897—Property Clause Power' 4

CHALLENGING THE ANTIQUITIES ACT Cameron v. United States 1920—The Antiquities Act 6

THE INFAMOUS SNAIL DARTER CASE TVA v. Hill (1978—The Endangered Species Act) 8

PROTECTING INDIAN LAND RIGHTS County of Oneida v. 1985—Indian Land Claims) 10

PROTECTING AMERICAN INDIAN NATURAL RESOURCES v. Passenger Fishing Vessel Association ,1979—Tribal to Salmon) .... 11

DEFINING PUBLIC PURPOSE FOR NATIONAL PARKS United States v. Gettysburg Electric Railway Co. (1896—Establishing National Parks} 13

ALLOCATING COLORADO RIVER WATER Arizona v. California 1963—Lower Colorado River Apportionment) 15

POWER TO WITHDRAW PUBLIC LAND United States v. Midwest Oil .1915—Executive Power to Withdraw Lands) 17

SECURING THE FEDERAL ROLE IN WILDLIFE PROTECTION v. Holland 1920—Migratory Bird Treaties and Legislation) 18

STANDING IN ENVIRONMENTAL LITIGATION Sierra Club v. Morton (1972—Standing in Environmental Litigation, 21

THE CONSTITUTIONALITY OF THE SURFACE MINING ACT llodel v. Virginia Surface Mining Association and Hodel v. Indiana 1981—The Constitutionality of the Surface Mining Control and Reclamation Act; 23

Office of the Solicitor • STEWARDSHIP ct THE LAW Table of Contents /|v frV| Stewardship MARKING INTERIOR'S 150"'YEAR A-U^ The Law

John I). Lcshv. Solicitor

s part of the 150th anniversary Pete Itaynor. Assistant Solicitor. Division celebration at the Department of the of Parks and Wildlife: and (Maria A Interior, the Solicitor's Office consid­ Wiseman. Division of Indian Affairs. ered what it might do to bring attention to The case summaries included were one often-overlooked aspect of the work of prepared by Gina Guy. Regional Solicitor this Department—the role law and for the Rocky Mountain Region, TVA v. litigation have played over the years in Hill: Maria Wiseman of the Division of carrying out our important responsibilities. Indian Affairs Winters v. United States): We decided that an appropriate and Scott Miller. 1998-99 Honors Program informative project woidd be to select and Attorney Cameron v. United States : Chris briefly describe a dozen Supreme Court Fontecchio of the Division of Land & decisions that have had fundamental Water (Cornfield v. United States;: Tim impact on the work of the Department. Vollmami. Regional Solicitor for the We decided to publish four each of these in Southwest Region County of Oneida v. three successive editions of People. Land & Oneida Indian Nation:: Katherine Ott Verburg. Phoenix Field Solicitor Arizona Water. John D. Leahy v. California:: Maria Lnrie of the Division But which twelve decisions? There was Solicitor little disagreement about some—everyone's of Parks and Wildlife 'U.S. v. Gettysburg list included such landmarks as Winters v. United States. Electric Ry. Co: Robin Friedman of the Division of General Law which is the primary underpinning of Indian and other Washington v. Fishing Vessel Ass'n: Paul Kirton. of the federal reserved water rights. But winnowing to a final dozen Division of Land and Water Resources (United States v. Midwest was not easy; there is ample room to quibble with our Oil:: Ben Jesup of the Division of Parks and Wildlife (Missouri selections. v. Holland): K.C. Becker of the Division of Parks and Wildlife (Sierra Club r. Morton): and Gerald Thornton of the Knoxville Our criteria were: only United States Supreme Court Field Office (Hodel v. Virginia and Hodel i: Indiana). Paul decisions that were handed down during the life of the Smyth, Karen Sprecher Keating, Pete Raynor. Sharon Department and that had major impact on the Department Blaekwell, Glenda Owens, Maria Wiseman. David Watts, and American life. The criteria thus excluded foundational Vernon Peterson, and Sandra Ashton were particularly Indian law decisions like the Cherokee Cases (which predate helpful in providing editorial comments on these cases. the Department as well as seminal territorial law. the so- called Insular Cases (1901). which did not directly involve the Like the cases, the lawyers working on this project reflect a Department. Our selection also reflects an effort to illustrate cross-section of this Department. They range from the most the diverse responsibilities of the Department. recent law school graduates to senior management, and are Great credit goes to the volunteer committee of Solicitor's located in various divisions of the Washington Office as well as Office lawyers who conceived of and brought this project to in regional and field offices. What they have in common is an completion. Robin Friedman, of the Division of General enthusiasm for the history and mission of this Department Law. came up with the idea, and was rewarded with the task and a desire to share their knowledge with others. of committee chair. I thank all of the dedicated The members of the committee include Karen Sprecher lawyers in the Solicitor's Keating. Associate Solicitor. Division of General Law: Paul Office who brought this Smyth. Deputy Associate Solicitor, Division of Land and project to completion. We Water: Tim Vollmami. Solicitor for the Southwest Region: hope you find our efforts Sharon Blaekwell. formerly the Tulsa Field Solicitor who is worth reading. Comments are now the Deputy Commissioner for Indian Affairs: Glenda welcome, of course. Owens, Assistant Solicitor. Division of Mineral Resources:

7b help mark Interior's 150th Anniversary, a volunteer committee of lawyers from the Department's Solicitors Office wrote a series of articles that describe the origins and outcomes of significant U.S. Supreme Court decisions that have had an important influence on American life and the Department's role in managing the nation's natural resources on public land. Robin Friedman, ivho is ivith the Division of General Law, came up with the idea and led the committee that developed the series. The authors are identified ivith their respective articles. Robin Friedman

Marking Interior's 150th Year STEWARDSHIP X THE LAW • Office of the Solicitor • A Winters L ^TA, United | AMERICAN INDIAN WATER RIGHTS A States

Maria Wiseman

n the arid American West, public land for a certain purpose, water is life. It is no such as an to I accident that most of the serve as a permanent home for great cities of the West grew a tribe, it also implicitly and flourished on the hanks reserves enough water to of rivers that flowed through achieve that purpose. Like their desert landscapes. the Eastern system, this While the rivers helped right is associated with a bring prosperity to western particular piece of land. settlers, they also brought and cannot he lost through hitter conflict over the non-use. Like the Western right to use those waters. system, this right is based on The legal and political the concept of first in time, struggles we witness today first in right. over water use are strikingly The conflict leading to the similar to those that took Winters decision erupted place nearly 100 years ago between Indians living on the One such struggle took place Fort Belknap Indian Reservation before the United States Supreme and settlers in the then Territory of Court early in this century, and Montana. The Gros Ventre and Assinihoine resulted in an important water lights Tribes had been attempting to make a living at victory for Indian tribes in the case Winters v. United Fort Belknap since 1888 when Congress approved an States, 207 U.S. 564 (1908). This landmark case altered the agreement with the tribes setting aside 600.000 contours of water law forever by creating a new type of water acres bordering the Milk River in northern right, the "federal reserved water right." central Montana as a permanent home This new federal right differed significantly from the two for the tribes. existing state systems of water rights. The United States' This reservation was all that original type of water right, the "riparian doctrine." was remained after the Federal Gov­ imported from England to the Eastern United States ernment negotiated with the where water was plentiful. The riparian doctrine gives Creating tribes for the surrender of the right to use water to land owners adjacent to a over 17.500.000 acres of waterway. This right, dependent on land ownership, the Great Blackfeet cannot he lost by non-use of the water. the Federal Reservation, reducing As development expanded westward into areas the tribes' land to three where water was scarce, California gold miners of the Reserved smaller reservations: 1840's and 1850's developed a new system for Fort Peck, Blackfeet, and allocating water rights that was based on the miners' Fort Belknap. Govern­ custom of "first in time, first in right." Just as the Water Rights ment officials told tribal first miner to stake a claim earned the right to mine leaders that the demand the area, so too was the first user of water considered to for more settlement land have the first priority over water use. In years of short Doctrine was increasing every day. and supply, senior water users were entitled to their full water the time had come when needs before junior users received any water at all. Indians could not keep their vast Because water was too precious to waste, the right to use land holdings. The tribes, who were water under this system existed as long as the user put the suffering from starvation at the time, gave up their water to an actual beneficial use such as mining or irrigation. original land holdings in exchange for promises of houses, This system, known as the "doctrine of prior appropriation," livestock, medical care, farming machinery, and financial was eventually adopted by the western states and incorporated assistance to "promote their civilization, comfort, and into state law. improvement." Both the Federal Government and the tribes expected farming to be their primary means of support. To The Winters decision created the federal reserved water right make the arid lands productive, large amounts of irrigation by combining elements of the Eastern riparian doctrine and water would be required from the Milk River. The agreement the Western doctrine of prior appropriation. Under the federal was. however, silent on water. reserved water right, when the federal government reserves

2 Office of the Solicitor * STEWARDSHIP <£ THE LAW American Indian Water Rights As farmers, ranchers, and homesteaders established This decision established the principle of federal reserved communities in the Milk River Valley, they increased their water rights and came to he known as the Winters Doctrine. It demands for water from the Milk River. The settlers began states that when federal reservations are established, the diverting the water upstream from the reservation, reducing United States implicitly reserves enough water to fulfil] the the amount of water reaching fort Belknap. Initially, there was purposes of the reservations. While Winters clearly established enough water for all users. However, by 1905 the increased that this right existed, the ease left several important questions water use and a severe drought created a desperate situation on unanswered, such as determining the amount of water to the Fort Belknap Reservation. which the tribes were entitled, or whether In June of 1905. the government-appointed uses other than irrigation were also reservation superintendent of Fort Belknap wrote assured. These and other questions have to the Commissioner of Indian Affairs in been the subject of continued debate and Washington. DC to protest the water diversions by numerous lawsuits in the years since the the settlers. "The Indians have planted large crops 1908 landmark decision, as the aftermath and a great deal of grain." he wrote. "All this will of the decision showed. be lost unless some radical action is taken at once The decision was an important victory to make the settlers above the reservation respect for the tribes and for the Department's our rights. To the Indians it either means good advocacy on the tribes" behalf, at a time crops this fall, or starvation this winter." The when defeat was the norm. But the superintendent's recommendation was indeed struggle over the waters of the Milk River radical because he sought to protect the tribes at continues to this day. and illustrates the a time when Indians were widely viewed as sometimes conflicting missions of the standing in the way of westward expansion. Department of the Interior. Only one year Ethan Allen Hitchcock Secretary of the Interior Ethan Hitchcock, a after the Supreme Court's decision, supporter of Indian development, initiated a lawsuit in federal settlers in the Milk River Valley were able to convince Interiors district court to protect the tribes" right to their share of the Reclamation Sendee forerunner of the Bureau of Reclamation water from the Milk River. The lawsuit named 21 defendants, to undertake major water diversion projects on the Milk River, including Henry Winter misspelled "Winters'" in court and the tribes (and the Department on the tribes' behalf are documents), two irrigation companies and a cattle company. still seeking to quantify, by negotiated settlement, the tribes" The Federal Government asked the court to stop the water rights so that they can receive their full share of water. defendants from constructing or maintaining the dams and In the many years since the Winters decision, the reservoirs on the Milk River that prevented the water from Department's protection of tribal rigbts has evolved as the Bowing to the reservation. Attorneys for the government has gained expertise in the protection argued that water from the Milk River was necessai-y to fulfill of natural resources, and has successfully advocated for tribal the purpose for which the Fort Belknap Reservation was water rights in many cases. The role of other agencies in the created. The district court judge agreed and ruled that when Department has also evolved. They now are required to uphold the tribes negotiated the agreement with the United States their trust responsibility toward Indians in administering establishing the reservation, they implicitly reserved the right Departmental programs. to use the waters of the Milk River for irrigation without For many years, most observers thought Winters was interference from non-Indian water users. exclusively an Indian water rights case. However, in 1963 the The local reaction to the judge's order was swift and Supreme Court in Arizona v. antagonistic. The ruling alarmed settlers who feared they California. 373 U.S. 600 would lose water necessary to support their growing 1963 . explicitly extended communities. They called public meetings to denounce the the Winters Doctrine to non- ruling and to petition their congressmen for help in defeating Indian federal reservations the tribes' water rights, and they appealed the case to the such as wildlife refuges, Supreme Court. national parks, and national In the Supreme Court, the settlers acknowledged that they forests. The Supreme Court's began using the water after the establishment of the ruling in Winters is truly a reservation, hut argued that, because they actually began using landmark decision that has the water before the tribes did. their rights had priority. The affected, in major and Court dismissed the settlers' claims in an eight-to-one positive ways, the missions of decision, finding that the settlers' demands were secondary to the Department of the the rights of the tribes. In its opinion, the majority held that Interior. the 1888 agreement to establish the reservation clearly anticipated that the trilves would rely on agriculture, thus, Maria Wiseman is with the making water from the Milk River absolutely necessary. The Division of Indian Affairs in Court said that it was unreasonable to assume that the land the Solicitor's Office. would he reserved for farming without also reserving the water to make farming possible.

American Indian Water Rights STEWARDSHIP X THE LAW • Office of the Solicitor 3 I 1 Camfield

&T& „•;,,, POWER TO PROTECT NATURAL RESOURCES JL States Chris Fontecchio

he Property Clause of the U.S. Constitution, tucked sections. Their fence was completely located on private lands, away among the nation-building provisions of Article and it just so happened to enclose 18 sections of the public T IV. says simply. '"'Che Congress shall have Power to domain. [The Taylor Grazing Act was still two generations in dispose of and make all needful Rules and Regulations the future, so livestock operators could send their stock out respecting the Territory and other Property belonging to the onto the unreserved, unoccupied public domain wherever United States...." Like other constitutional clauses, its there was space, food, and wafer for them, without having to succinct words belie the tremendous significance it has on the get the Interior Department's prior permission. lives of so main. Congress had appreciated that The Supreme Court's the rectangular survey system decision in Camfield v. United A NOTORIOUS FENCE and the checkerboarded owner­ Stales. 167 U.S. 518 1897. ship patterns of the railroad land completely changed how 1 1 1 1 grants could lead to the very type courts interpret the Property 5 of monopolization Camfield and Clause without actually once 6 4 3 2 •T Drury had in mind when they mentioning it. As a result of built their notorious fence. So Camfield, elaborated on by 8 9 10 11 12 Congress had outlawed such subsequent decisions, courts J 7 schemes in the Unlawful for decades have routinely Enclosures Act in 18515. recognized Congress's broad 18 17 16 15 14 13 Camfield and Drury claimed authority to say how public that they were well within their lands shall be managed, rights to build a fence on their protected, disposed of. or 19 20 21 22 23 24 private land — the laws of otherwise administered, which Colorado allowed it, and if the authority no private or state federal Unlawful Enclosures Act interest can trump. 30 29 28 27 26 25 conflicted with that, then that This means that, under the federal law was unconstitu-tional. Property Clause. Congress can 32 33 34 35 36 It was beyond Congress's power establish national parks, under the Property Clause to J i J 1 national wildlife refuges, U interfere with their use of their national forests, wilderness areas, and so on. Congress can private property. As long as they did their business on their also say what can and cannot take place on federal property. own land. Camfield and Drury maintained, the consequences Congress can establish programs for disposing of federal of their actions affecting public lands were not their problem. resources through extractive uses like mining, grazing, and Thus was horn the seminal conflict between private rights and timber. Congress can even set restrictions on adjoining federal control and management of public lands. private lands when necessary to protect the property of the By now you can probably guess how the case came out. In United States. And finally. Congress can delegate that broad the conflict between the authority to the federal land management agencies, such as defendants" fence and the the Department of the Interior. The breadth of the Property Unlawful Enclosures Act. Clause touches almost every major program administered by Camfield and Drury fought the Secretary of the Interior. the law but the law won. The case stemmed from a clever scheme devised in 1893 by Writing for the Court. Justice Messrs. Camfield and Drury. a pair of Colorado cattle Brown declared that the ranchers, to fence in 20.000 acres of public land. The pair Unlawful Enclosures Act did bought all the odd-numbered sections in two townships from prohibit this type of fence, the Union Pacific Railroad. The even-numbered sections and because Congress has remained public lands. Due to the rectangular survey system the power to protect federal in effect since the Ordinance of May 20. 1785. every even- lands, it was a constitution­ numbered section is surrounded on all four sides by odd- ally valid law. numbered sections, and vice versa. 'Sec accompanying The Court's reasoning goes diagram.) something like this: For one Thus Camfield and Drury were able to build a huge, square thing, the United States Chris Fontecchio is with the fence around 36 sections, half of which were public lands, by government is a landowner Division of Land and Water of putting the fence slightly inside the adjoining odd-numbered here too, and a longstanding the Solicitor's Office.

4 Office of the Solicitor • STEWARDSHIP c£ THE LAW Power to Protect Natural Resources principle of common law holds that one neighbor does not 529 1976 . In Kleppe, the Court upheld BLM's demand for the have the right to use its land in a way that is a nuisance to the return of 19 protected wild burros that the New Mexico other. So. though the defendants may have a right to build a Livestock Board tried to remove from public lands. The fence, even one with ill intent, they did not have a right to Livestock Board had challenged the validity of the federal make their fence a nuisance to their government neighbors. Wild Free-Roaming Horses and Burros Act. claiming Just as one individual need not suffer another's nuisance Congress's power to protect, dispose, and regulate the use of actions, so loo the Federal Government need not suffer the public lands was narrow. Regulating wildlife was traditionally nuisance actions of its neighbor. Congress was thus well a slate function, and if the Wild Horse law prevented the state within its lights to pass a law to prevent the nuisance of from running its livestock programs, then, the state argued, enclosures on the public domain. the federal law must be unconstitutional. The Court then compared Congress's power over federal But the Court upheld the act. saying it was not only lands to the police power of states. States can exercise their constitutionally valid hut negated any conflicting state power. police power within some limits to the extent they need to This was because, with regard to public lands. Congress has do so to protect their citizens. The Federal Government, duly the authority of both a proprietor and a legislator. Drawing on empowered by Congress, is the trustee for the people of the Cornfield and other cases, the Kleppe court stated in blunt United States when it comes to protecting public lands. This words that "the power over the public land thus entrusted to special role means Congress possesses greater power than that Congress is without limitations." and then trotted out a long of an ordinar\ landowner, the extent of which power is list of examples and cases to convincingly illustrate the point. "measured by the exigencies of the particular case." Congress This authority, the Court said, necessarily includes may. in other words, exercise its broad police powers over the authority over the wildlife living on the lands, federal lands so long as the exercise is directed toward notwithstanding the state's traditional role. Thus, what protecting the lands for the public's benefit, even when those Cornfield did for public lands jurisprudence in the first half of powers begin to conflict with the private rights of others. this century. Kleppe repeated and extended for modern times. Subsequent cases seized upon this notion and spelled it out more completely, especial!) KIcppe v. New Mexico, 426 U.S.

THE CAMFIELD DECISION & INTERIOR LAND MANAGEMENT

till not sure what Camfield means to you? Here are relied on Cornfield to uphold the resulting prosecution and some other cases which used Camfield as a basis for the park's complete ban on hunting within the park, even on S sound public lands management: In 1911, when the the state-owned waters running through the park. Forest Sendee sought damages against a rancher grazing In 1980. when the state of Minnesota objected to cattle without a permit in the Holy Cross Forest Reserve, the regulations prohibiting motor boats and snowmobiles in the Supreme Court relied on Camfield to rule that the Property Boundary Waters Canoe Area Wilderness, the Eighth Circuit Clause allowed Congress to establish forest reserves cited Cornfield to uphold the regulations throughout and to require grazing permits, notwithstanding the wilderness, even on the waters and on the 10 Colorado law. percent of surface land in the wilderness In 1917, when the Federal Government which the state owned. shut down a hydropower operation built by And on it goes. The debate that began in a private utility on public lands in Utah Cornfield with a challenge to an Act of without federal permission, the court Congress has extended to link the rebuffed the operators1 claim of a private Constitution to many—if not all—of the right to build structures on public lands by land management programs the Interior citing Cornfield. In 1927. when the Federal • * Department employs to protect public Government tried to enforce a statute lands. From the day Justice Brown issued his prohibiting setting forest fires on or near a opinion, there has been little question that Forest Reserve and punishing anyone who did so, Congress, and the federal agencies it authorizes, the Supreme Court used Cornfield to uphold both the have broad authority to do what it takes to properly statute and the punishment. manage and protect our nation's natural assets. In 192B ami again in 1940. when state wildlife managers Had Messrs. Camfield and Drury known as they devised tried to stop public land managers in Kaibab National their clever fence that they were helping to prevent forest Forest, the Grand Canyon, and Pisgah National Game fires, save wild horses and burros, limit intrusive machines Preserve from removing excess deer populations which were in wilderness areas, and otherwise give America's land damaging vegetation, the court cited Cornfield to uphold the managers the authority needed to keep public lands federal actions. In 1977, when the Voyageurs National Park protected and open for all citizens, they no doubt woidd caught a man hunting ducks in the park, the circuit court have taken enormous civic pride in their work.

Power to Protect Natural Resources STEWARDSHIP X THE LAW • Office of the Solicitor 5 Cameron v. United CHALLENGING THE ANTIQUITIES ACT Stales

Scott Miller

lasting significance of the Supreme Court's decision in Cameron r. United Slates. 252 A,U.S . 450 1920;. is found in its four sentence assessment of presidential authority under the Antiquities Act of 1906 to protect extraordinary federal lands through the creation of national monuments. The case also colorfully illustrates another important chapter in the history of the federal lands: namely, the ahuses of the public land and mining laws. One of the most misused of these laws is the Mining Law of 1872. and '"[pierhaps the single most spectacular abuse of the Mining Law is found in the saga of Ralph Cameron's mining claims at the Grand Canyon." (J. Leshy. The Mining Lair: A Study in Perpetual Motion 1987). Today. Grand Canyon National Park attracts Using the Antiquities Act. President Theodore Rooserelt proclaimed the Grand about five million visitors every year. Among the Canyon a national monument in 1908. Photo inset courtesy of the NPS Harpers Ferry Center Historic Photograph Collection. first non-Indian visitors to the region were miners prospecting for copper, asbestos, silver, and lead. They arrived logical ruins of the American Southwest, was crafting at the Grand Canyon in the 1880s and 1890s. staking claims legislation to protect important resources on federal lands. In under the Mining Law. which provided, as it does today, that 1906, it unanimously passed the Antiquities Act. providing certain public lands would he "free and open" to exploration that: "The President of the United States is authorized, in his and occupation for mining. The tourists were not far behind discretion, to declare by public proclamation historic the prospectors, however, and by the end of the first decade of landmarks, historic and prehistoric structures, and other the new century, thousands were peering in awe over the rim objects of historic or scientific interest that are situated upon and into the canyon's depths. the lands owned or controlled by the Government of the Somewhere in between the prospectors and the tourists—in United States to he national monuments, and may reserve as time and place—was Ralph Henry Cameron, "the most a part thereof parcels of land, the limits of which in all cases audacious and flamboyant of all the early prospectors and shall he confined to the smallest area compatible with the promoters in the Grand Canyon; .... At one time or another proper care and management of the objects to he protected. he promoted schemes for the development of mining claims, [Act of June 8. 1906. ch. 3060. § 2. 34 Stat. 225 (codified at dams for electric power, a scenic railway along the rim and a 16 U.S.C. § 431 (1994);.] tourist hotel." (B. Babbitt. Grand Canyon: An Anthology Meanwhile, the Grand Canyon was becoming a carnival of 1978 . page 8. tourist attractions. President Teddy Roosevelt looked to the By no accident, his most new Antiquities Act in response. On January 11, 1908. profitable mining claims Roosevelt proclaimed the area in and around the Grand were located on the Bright Canyon—including Cameron's fraudulent mining claims—as Angel overlook and trail. the Grand Canyon National Monument. Roosevelt's Having "staked his claim" to proclamation, which rested upon an expansive reading of the the two most popular spots act, was simple and to the point: "WHEREAS, the Grand in the Grand Canyon. Canyon of the Colorado River ... is an object of unusual Cameron quickly traded in scientific interest, being the greatest eroded canyon within his pickaxe for a toll booth, the United States, ... it appears that the public interests hotel, and stables, mining would be promoted by reserving it as a National Monument. riches not from the deposits with such other land as is necessary for its proper protection.'" in the ground, but from the (Proclamation No. 794 (January 11, 1908), 35 Stat. 2175.) tourists' wallets. Unlike the previous ten sites that had been proclaimed But while Cameron was national monuments under the Antiquities Act, which aver­ working the tourists at the aged just over 8.000 acres in size (and included such treasures Scott Miller is an Honors Grand Canyon, the United as Devil's Tower, the Petrified Forest, and Chaco Canyon), the Program Attorney with the States Congress, alarmed by Grand Canyon National Monument set aside an enormous Solicitor's Office. the plunder of the archaeo- expanse of the Arizona Territory—over 800.000 acres.

6 Office of the Solicitor • STEWARDSHIP

Challenging the Antiquities Act STEWARDSHIP X THE LAW • Office of the Solicitor 7 TVA V. THE INFAMOUS SNAIL DARTER CASES Hill

Gina Guv

his case concerned the endangered snail darter Percina November. 1975 primarily (Imostoma) tanasi, a small, perch-like fish named for because it was about to lose its T its taste for snails, only known habitat. and the Tennessee Valley The lawsuit challenging the Authority's Tellico Dam construction of the Tellico Project was filed and Reservoir, located a in the United States District Court for the few miles southeast of Eastern District of Tennessee on February Knoxville. Tennessee. 1!!. 1976. The plaintiffs asked the judge to TVA v. Hill. 437 U.S. 133 enter an order stopping the ongoing 1978. primarily address­ construction of the dam and prohibiting the ed the duties of federal expected impoundment behind the dam agencies with respect to planned for January, 1977. There were two the Endangered Species basic allegations, first that the TVA. as an Act of 1973. The statute instrumentality of the United States, was contained two major man­ violating Section 7 of the Endangered dates to federal agencies: Species Act by using first, that all agencies use its authorities to their authorities to further A small, perch-like fish named for its taste jeopardize the con­ the conservation of listed for snails and the Tennessee Valley tinued existence of Authority's Tellico Dam and Reservoir were species; and second: that the species and that the major dramatis personae of one of the with respect to all agency nation's most celebrated environmental it was also violating actions, each agency was disputes-the controversial snail darter cases Section 9 of the required to ensure that its of the 1970s. The Supreme Court held that Endangered Species actions did not jeopardize even though the Tellico Project-two dams Act, which prohib­ listed species or adversely and a reservoir located on the Little Tennessee River a few miles southeast of ited "take" of the Knoxville-teas substantially complete and the reservoir ready to be filled, the TVA modify the species' desig­ species. The only was barred from doing so because the inundation would destroy the only known nated critical habitat. habitat of the endangered snail darter. Percina (Imostoma: tanasi. The dispute defendant was the The Supreme Court begot the "God Squad" but even it could not find a satisfactory resolution of the TVA. held that even though the issue. Eventually the Congress exempted the project from the application of the After a trial, the Endangered Species Act and the reservoir was filled. Tellico Project consisting request for an order of two dams, one earthen and one concrete, was substantially halting the project was denied, essentially because so much of complete and the reservoir ready to he filled, the TVA was it was already built. Using what are called equitable principles, haired from doing so because the inundation would destroy or balancing of interests and costs, the court found that the the only known habitat of the snail darter. In a strongly- TVA had acted reasonably in trying to protect tbe fish, most worded opinion, the Court said "the Congress intended that notably by trying to relocate it. Up to that time, no case had federal agencies use all their authorities to conserve listed held that a federal project that was either complete or under species, irrespective of their primary missions . . . [and] . . . the construction would be permanently halted because of the plain intent of Congress in enacting this statute was to halt and presence of listed (endangered or threatened) species affected reverse the trend toward species extinction, whatever the cost." or harmed by the project. The trial court's decision is: Hill v. In 1966. Congress authorized construction of and Tennessee Valley Authority. 419 F.Supp. 753 (E.D. Tenn 1976 . appropriated money for the Tellico Dam and Reservoir on the The plaintiffs appealed to the United States Court of Appeals Little Tennessee River. Work began promptly after for the Sixth Circuit, which included Tennessee. This time the authorization. Congress appropriated money in succeeding results were far different. The appeals court found that the years until the project was complete. The TVA. of course, had lower (federal district: court had "abused its discretion" by been a centerpiece of the New Deal, and had transformed the failing to issue an injunction halting the continuing landscape and economy of much of Tennessee and adjacent construction of the dam. The appeals court reasoned that the lands in Alabama and Kentucky in the decades since the upcoming inundation of that reach of the river woidd result in Depression. a statutory violation by jeopardizing as well as "taking" the fish and by adversely modifying the species critical habitat. After In 1975. the named plaintiff. Hiram G. Hill, Jr, and others the suit was filed, but before it was decided, the U.S. Fish and petitioned the Secretary of the Interior, acting through the Wildlife Sendee designated (effective May 3, 1976 the portion Fish and Wildlife Sendee, to place the snail darter on the list of the stream where the dam was being built as "critical of endangered species pursuant to the 1973 Act. Over the habitat" as that term is used in the Endangered Species Act. objections of the TVA. the fish was listed as endangered in

8 Office of the Solicitor * STEWARDSHIP X THE LAW The Infamous Snail Darter Case The appellate decision was somewhat critical of the lower Project was approved by < longress by means of a rider on an court for its failure to find a violation of the Endangered appropriations bill on Stmt. 25. 1979. which even specified the Species Act. normal summer fill level for the lake in addition to exempting The court deferred to the lush and Wildlife Service decision the project from the Endangered Species Act. designating the river as critical habitat, and that loss of the In the years immediately following the filling of Tellico habitat meant loss of the fish. Deference by reviewing courts to Reservoir, a few small populations of the snail darter were agency decisions generally means courts accept the judgments located in six streams near the Little Tennessee River in of agencies acting in a reasonable way in the exercise of Tennessee. Alabama, and Georgia. On July 5. 1981 the U.S. whatever their statutory duties may he. The opinion strongly Fish and Wildlife Service changed the listing of the species rejected all the economic arguments put forth by TVA. The from endangered to threatened. The critical habitat court sent the ease hack to the trial court in Tennessee, with designation for the species was rescinded because the habitat instructions to issue "a permanent injunction halting all activi­ had been flooded by Tellico Reservoir and was no longer used ties incident to the Tellico Project which may destroy or modify by snail darters. Section 4(1 of the Endangered Species Act the critical habitat of the snail darter until Congress exempts allows, but does not require, the application of less stringent Tellico from compliance or the snail darter has been deleted legal protections for threatened species, which are known as from the list of endangered species or its critical habitat special rides. There is no such rule in place for the snail materially redefined". The Court of Appeals decision is: Hill i: darter, which means that lake of this species is still prohibited, Tennessee Valley Authority, 549 F.2d 1064 (6th Cir. 1977). just as it was in 1975. The TVA then sought and obtained review by the United Over the years since the Endangered Species Act was States Supreme Court. In a David v. Goliath scenario featuring enacted, the U.S. Fish and Wildlife Sendee and others in the a tiny fish and a big dam. the same group of citizens continued scientific community have come to believe that the to use the citizen suit provision of the statute to challenge a requirement to designate critical habitat at or near the listing prominent and well-funded federal agency. Resources could decision has not offered additional protection for listed hardly have been more disparate. species. Indeed, it sometimes can have the On April 18, 1978 the Attorney General of the opposite effect. In declining to designate other United States. Griffin Bell of Atlanta, argued areas as critical habitat for the snail darter, the the case himself on behalf of the TVA. hut to no Fish and Wildlife Sendee found it would be avail. On June 15. 1978. in a 6-3 decision imprudent to do so. fearing that the notoriety delivered by Chief Justice Warren Burger. associated with the litigation would increase the nation's highest Court affirmed the Sixth the fish's vulnerability to illegal take and Circuit, held that the Endangered Species Act deliberate vandalism. The designation of trumped the Tellico Project authorizations, and critical habitat requires publication of the exact that the fully-constructed dam could not be locations where the species has been found. opened to create the planned 33-mile long T.V.A. v. Hill has stood the test of time. All reservoir. The Supreme Court recited the federal agencies now afford serious attention to language in Section 7 of the Endangered Endangered Species Act compliance, as does Species Act, which commanded all federal anyone who is an applicant for a federal license agencies: "to insure that actions authorized, or permit which may affect a listed species. The funded or carried out by them do not Gina Gay is the Rocky Mountain opinion's broad language about the prohibition jeopardize the continued existence [of an Regional Solicitor for the of illegal "take" reverberated throughout the endangered species orj result in the destruction Department of the Interior. country. or modification of habitat of such species." The Court stated In 1995. the United States Supreme Court once again heard unequivocally that t his language admits of no exception. a critical Endangered Species Act case, this time involving Emphasis added. Northwest timber interests and the U.S. Fish and Wildlife Thus, the Supreme Court found that the judicial branch Service regulations which prohibit all unpermitted take of could not exempt the Tellico Project from the Endangered listed species. The industry was concerned about how the Fish Species Act. Following the decision. Congress amended the act and Wildlife Sendee was administering the regulations with in 1978 to provide for a process to review whether or not there respect to the Northern spotted owl. a threatened species, should be an exemption for federal agency actions which have which lives in old-growth forests. The decision. Babbitt v. been found to jeopardize listed species and for which there are Sweet Home Communities for a Great Oregon, addressed no alternative courses of action. This process, involving several primarily private parties and private activities while T.V.A. v. cabinet members and the governors of the affected states, Hill addressed primarily federal activities. 1 launched the nickname "the God Squad' into the American Siceet Home held that the "take" prohibitions apply on legal lexicon. private lands. Taken together, these decisions from the nation's The exemption application of the TVA for the Tellico Project highest court further established the legal protections was rejected. On January 23. 1979, the "God Squad" denied federally-listed species receive under U.S. law. T.V.A. v. Hill. the exemption, finding that alternatives to the reservoir could and its descendant Sweet Home are landmark cases involving he implemented. The legislative branch, however, ultimately listed species of enduring legal and scientific importance to granted relief from the Endangered Species Act. The Tellico American societv.

The Infamous Snail Darter Case STEWARDSHIP X THE LAW • Office of the Solicitor 9 County of Oneida v. Oneida Indian PROTECTING INDIAN LAND RIGHTS \ation of New York

Tim I bllmann

he Department of the Interior claim was just too old to allow the lias frequently played an tribe to succeed. In County of T important role in the protection Oneida r. Oneida Indian Nation of of Indian treaty and land rights before New York. 170 U.S. 226 1985 . the the Supreme Court. A major example defendants argued that because no involves the Department's efforts in federal statute of limitations was vindicating rights secured to the Oneida applicable to Indian efforts to Indian Nation at the time the United enforce their property rights, the States secured its independence. courts should adopt state In 1985 the United States Supreme limitation statutes as "federal Court ruled by a 5-1 vote that the tribe common law," which would retained a viable claim to lands lost in prevent any Indian tribe from Above, Mary Cornelius Winder. left, and Delia seeking to invalidate past illegal an illegal sale to the State of New York in Cornelius Waterman led the Oneida land chums 1795. The Court held that to apply the effort from the 1930s through the 1950s. Others sales of their reservation lands. statute of limitations against the Oneida who played important roles in the quest through Most state laws prohibit such would he contrary to the will of the 1960s and 70s included Wisconsin Oneida lawsuits unless they are filed Tribal Chairman Norbert Hill. Sr.. below left, and Congress regarding Indian land claims within 20 years or less after lands Oneida elder Ruth Baird. center. They are have been lost.) policy dating hack to 1790. presenting an award to Robert L. Bennett, The Oneida had been allies of the chairman of the Wisconsin Oneida Tribe, who A slim five-member majority colonists in the War of Independence. became Commissioner of Indian Affairs at rejected this contention. It noted Interior in 1966. A longtime RIA employee. In three treaties executed in the decade that Congress had on many Bennett encouraged the Oneida claim when he following that war. the new United reestablished the BIA office in New York and met occasions passed legislation States of America promised the with Oneidas and Onandagas on visits to protective of Indian lands and had Oneida that they would be secured in Syracuse. never subjected Indian land claims the possession of their lands in to a statute of limitations. It also central New York. In 1790. at the urging found that Indian treaty claims of President . were uniquely federal in character. Congress passed the Indian The Court thus held that "it would Nonintercourse Act. which flatly be a violation of Congress's will" if prohibited conveyances of tribal land it were to bar the tribes' claim except through a treaty approved by the based upon a state statute of United States. limitations. Only five years later, however, under The defendants also argued that pressure to open western lands for the 1795 transaction had been settlement, the governor of New York ratified by Congress in later years. ignored the advice of federal Congress had in fact ratified two commissioners and entered into a later treaties between the Oneida transaction with the Oneida to and New Y'ork State and had purchased virtually all of the tribe's enacted other laws specifically remaining 300,000 acres. The price paid to the tribe was applicable to New York Indian reservations. But the Supreme considerably less than the value of nearby lands being sold to Court held that those actions by Congress did not operate to Revolutionary War veterans. ratify the 1795 purchase, because "congressional intent to In 1970 the three modern tribal successors to the historical extinguish Indian title must be plain and unambiguous." Oneida Indian Nation the Oneida Indian Nation of New York, Before deciding this case, the Supreme Court invited the the Oneida Tribe of Indians of Wisconsin, and the Oneida of Solicitor General to present the views of the United States, the Thames Band Council from Ontario. Canada) brought suit following the recommendation of the Department of the to reclaim their lands. In 1974 a unanimous U.S. Supreme Interior, the Department of Justice filed an amicus curiae Court upheld the jurisdiction of the federal court to hear the brief supporting the tribe's pursuit of its ancient claim. The tribe's claim in Oneida Indian Nation v. County of Oneida. Court's majority opinion acknowledged and relied upon the This earlier decision is important for its discussion of federal government's brief with its emphasis on the unique jurisdiction, but it is not the focus here. obligations that Congress had assumed towards the Indians. More than ten years later, the case came back before the The decision of the Department and of the Executive Supreme Court to decide whether, among other things, the Branch and ultimately, of the United States Supreme Court, to

10 Office of the Solicitor • STEWARDSHIP <£ THE LAW Protecting Indian Land Rights recognize the tribal claim was controversial, as it clouded titles to thousands of acres of land held by people who had purchased them without knowledge of the invalidity of the 77m Tollman, the Southwest Regional Solicitor for- the long-forgotten transaction. Department, recently received The United States" brief acknowledged the difficulties the Presidential Rank Award inherent in the litigation of such claims, hut referred to the for Meritorious Executive. Rhode Island Indian Claims Settlement Act of 1978 and the loll man has been with Interior Maine Indian Land Claims Settlement Act of 1980 as examples since 1975. working primarily on American Indian land and of the power of Congress to address such claims. The majority water claims issues and has opinion agreed with the United States that "this litigation written a number of federal makes abundantly clear the necessity for congressional laics settling Indian land action."" claims. He is based in Albuquerque. Although Oneida was a landmark decision in vindicating the New Mexico. rule of law in protecting Indian rights, to this day no Act of Congress has settled the Oneida Indian land claim.

Washington v. Fishing Vessel PROTECTING AMERICAN INDIAN NATURAL RESOURCES Association

Robin Friedman

he Indian tribes in Northwest Washington Northwest Indian communities have T have been dependent relied on river fisheries for generations, on fishing for countless but faced legal challenges and generations, catching and declining stocks of salmon and steelhead due to development and curing salmon and steelhead. commercial fishing. The Snake River, These anadromous fish spend below, is an example of a Northwest the early part of their lives in river whose resources have been rivers in fresh water, migrate to seriously strained. the ocean, and return to the rivers to spawn and die. The once magnificent fishery has been in long decline due to pressure from many sources, including hydro power development, logging, and overfishing. In addition to the Indians. sport fishermen and commercial fishermen prize the fish both in the rivers and ocean. The treaties the United States negotiated with the tribes during 1854 and 1855 included provisions reserving to the • Indians "the right of taking fish ... in common with other citizens." This language proved to be the source of lasting controversy among the Ihiited States, the Indian tribes, the States of Washington and Oregon, and their citizens. The Supreme Court had interpreted this language in no fewer than six cases between 1905 and 1979. These cases held that the Indians reserved the right to fish separate from the rules that In Winans. a private party had received a license under state applied under state law to non-Indians, hut they did not fully law to operate a ""fish wheel."' a device which straddled the define the character of the right. banks of a river and permitted the operator to monopolize the The earliest of these cases. United States v. Winans. (1905 catch of fish. The United States brought suit to protect the was, in many ways, a prototype of the Court's decision almost right of the Indians to gain access to the river to catch fish seventy-five years later in Washington v. Fishing Vessel Ass'n. under their treatv. The lower court ruled against the United

Protecting American Indian Natural Resources STEWARDSHIP t£ THE LAW • Office of the Solicitor 11 States, holding that the treaties only gave the Indians the promulgate appropriate regulations protecting the Indians' right to fish on the same hasis as other people. The Supreme treaty rights. The State of Washington appealed, hut the Ninth Court held in essence that the fishery could not he managed Circuit Court of Appeals affirmed the lower court in 1976. and to allow non-Indians a monopoly or to exclude the Indians the Supreme Court denied the State of Washington's petition from the opportunity to fish. It described the nature of this for review. right in language that resounds through its later decisions In ordinary circumstances, that would have ended the interpreting the treaties: matter. But the Boldt decision proved highly controversial and The lower court held; that the Indians acquired no difficult to enforce. Private parties brought litigation in the rights hut what any inhabitant of the territory or state courts challenging the regulations the state had state would have. Indeed, acquired no rights hut such promulgated to implement the Boldt decision. The state as they would have without the treaty. This is Supreme Court held that the state could not legally comply certainly an impotent outcome to negotiations and a with Judge Boldt's decision. Judge Boldt then issued a series convention which seemed to promise more, and give of orders seeking to implement compliance with the 1974 the word of the nation for more. And we have said we decision, and his orders were upheld by the Ninth Circuit. will construe a treaty with the Indians as "that This conflict between the decisions of the federal and state unlettered people' understood it. and "as justice and courts put the matter before the U.S. Supreme Court. reason demand, in all cases where power is exerted In 1979. by a vote of 6-3. the Supreme Court substantially by the strong over those to whom they owe care and agreed with Judge Boldt. The Court majority found that, at protection." and counterpoise the inequality 'by the superior justice which looks only to the substance of the time they negotiated the treaties, neither the United the right, without regard to technical rules." States nor the Indians contemplated the possibility that the fish might ever become scarce. With the pressure that non- The right to resort to the fishing places in Indian settlement put upon the resource, the Court found controversy was a part of larger rights possessed by that an allocation was necessary to protect the treaty right of the Indians, upon the exercise of which there was not the Indians. It found authority for the division, as well as for a shadow of impediment, and which were not much the specific allocation of 50 percent, in the "in common with" less necessary to the existence of the Indians than the language of the treaties, in the presumption that the United atmosphere they breathed. New conditions came into States and the tribes treated with each other as equals, and in existence, to which those rights had to he the equitable powers of the federal courts to fashion a remedy accommodated. Only a limitation of them, however, to protect an underlying right. was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the With this Supreme Court decision, the United States Indians, but a grant of right from them—a attained its basic goal of defining and vindicating the Indian reservation of those not granted. treaty fishing rights in the Pacific Northwest. The result was a landmark interpretation of Indian treaty rights, the result of In 1970. litigation was brought to resolve continuing conflict vigorous action in their protection by the United States (and about the nature of the treaty fishing right. To address the by the Office of the Solicitor, which helped represent the U.S. continued frustration of the Indians' right to fish that position throughout the litigation). Fishing Vessel was the resulted from the overwhelming numbers of non-Indian sport best-known, but scarcely the only, court decision vindicating and commercial fishermen, the United States sought to have and enforcing Indian treaty rights. Other decisions have come the fishery allocated between Indian and non-Indian users, from other states and treaties. As recently as a few months and managed to accord the Indians the opportunity to catch a ago, a closely divided Supreme Court upheld the hunting, specific share of the fish. fishing, and gathering rights of tribes in Minnesota and focusing on the treaty language that reserved to the Indians Wisconsin under their treaties with the United States. the right to take fish "in common with other citizens," the (Minnesota v. Mille Lacs Band of Chippewa Indians.) United States proposed an allocation of fifty percent of the The Fishing Vessel decision vindicated the tribes" legal fish to the Indian tribes. Eventually 22 Indian tribes joined rights hut did not by itself assure the survival of sufficient with the United States as plaintiffs. The State of Washington salmon to serve the needs of the Indians or the non-Indians, maintained that the treaties did not reserve to the Indians a and the salmon runs have continued to decline. Many right to the opportunity to catch a specific share of fish. agencies—tribal, state, federal, and international—have an In 1974. after a lengthy trial. U.S. District Court Judge interest in restoring the once abundant salmon and steelhead George Bold! issued a historic decision, commonly referred runs of Northwest Washington and are attempting to work to as the "Boldt" decision, which agreed with the United cooperatively for conservation and managerial purposes, hut States and the tribes. The judge ordered the state to the outcome remains in doubt.

Robin Friedman is an attorney with the Division of General Law in the Office of the Solicitor. He proposed this series of articles to mark the Department's 150th anniversary and edited and coordi­ nated their publication.

12 Office of the Solicitor • STEWARDSHIP X THE LAW Protecting American Indian Natural Resources United Stales v. Gettysburg Electric DEFINING PUBLIC PURPOSE FOR NATIONAL PARKS Railway Company

Maria Lurie Left, a view of the Gettysburg Battlefield from he Battle of Gettysburg, a I LLC- SlrCrULLU. lifiUilr Roundtop. a major pivotal event in United high point on the historic landscape. T States history, raged for the ui" (MivsliiLL-g' Below, an electric first three days of July 1863. The trolley car run by battle resulted in a Union victory the Gettysburg for the Army of the Potomac, under Electric Railway the command of General George Company motors through the Valley G. Meade, which successfully of Death between turned back the second invasion of Little Round Top the North by General Koberl E. and Devil's Den Lee's Army of Northern Virginia. with milium More than 51.000 soldiers were Shields, the conductor, and killed, wounded or captured, Robert Felix, the making the Battle of Gettysburg motorman. circa both the bloodiest of the Civil War 11190s. and the largest ever fought in the Western Hemisphere. In the aftermath of the battle, the community of Gettysburg was thick with wounded and dying men. Most of the dead lay in hastily dug and inadequate graves: others received no burial. Distressed by this situation, the Pennsylvania governor commissioned a local attorney to purchase land for a proper burial ground for Union dead. Within four months of the battle, reinterment began on 17 acres that became the Gettysburg National Cemetery. Dedicated on Nov. 19, 1863, the cemetery—and battle which necessitated it— inspired President Lincoln's Gettysburg Address. In the years following the Civil War. citizens and veterans groups took steps to preserve the Gettysburg Battlefield. In 1893. Congress became involved. It included the following paragraph in a defense appropriation act. 27 Stat. 599: Monuments and Tablets at Gettysburg. For the purpose of preserving the lines of battle at distinct authority to Gettysburg, Pennsylvania, and for properly marking acquire the private lands necessary to execute the with tablets the positions occupied by the various purposes declared in the 1893 Act. Congress also became commands of the armies of the Potomac and of aware of the imminent danger that portions of the battlefield Northern Virginia on that field, and for the opening might be irreparably defaced by the construction of a railroad and improving avenues along the positions occupied over the battlefield site by the Gettysburg Electric Railway by troops upon those lines, and for fencing the same, Company (Railway), thus making impracticable the execution and for determining the leading tactical positions of of the provisions of the 1893 Act. batteries, regiments, brigades, divisions, corps, and In response to these problems, the Congress enacted other organizations, with reference to the study and legislation in 1894 authorizing the Secretary of War to acquire correct understanding of the battle, and to mark the Gettysburg Battlefield lands by purchase or by condemnation same with suitable tablets, each bearing a brief historical legend, compiled without praise and in order to earn out the 1893 act. Tbe 1891 legislation ex­ without censure, the sum of $25,000 to be expended pressly proclaimed that "the Secretary of War is authorized to under he direction of the Secretary of War. acquire by purchase (or by condemnation . . . such lands, or interest in lands, upon, or in the vicinity of said battlefield, as. Efforts by the Secretary of War to obtain the site of the in the judgment of the Secretary of War may be necessary for Battle of Gettysburg for tbe purposes outlined in the 1893 Act the complete execution of the act of March 3, 1893." 28 Stat. did not go smoothly. Within a year of its passage, the United 584, States court, sitting in Pennsylvania, had declared that Despite the efforts of Congress, the attempt by the Secretary Congress had failed to provide the War Department with the of War to obtain the site of the Gettysburg Battlefield still met

Defining Public Purpose for National Parks STEWARDSHIP

Katherine Ott Verbure

hen you think of the Southwest today, you think "hot" and W "dry." And you're right. But today. Arizona. Southern California, and Nevada are far more than arid desert lands shimmering under a scorching heat. Urban areas in these states continue their relentless expansion across the landscape. Air conditioners, refrigerators, and televisions hum from power created by the generators on the Colorado River dams, managed by the Secretary of the Interior through the Bureau of Reclamation. Droughts and floods continue to he a fact of nature, but these extremes are now tempered by the regulatory and storage capacity of the dams and The placid waters of the Colorado Hirer, above, which provide the lifeblood for reservoirs along the Lower Colorado River Southwestern states, mask the controversy and struggle that has been waged over their managed by the Secretary of the Interior. allocation and use. These dams also ensure that water flows in the irrigation ditches on Indian reservations along the river. water from the river would l>e essential to the life of the Indian in the Imperial and Coachella Valleys in California, in the Yuma people and to the animals they hunted and the crops they Valley in Arizona, and elsewhere in the Lower Basin States. raised." All this happens in part as a result of decisions made by the In the last half of the nineteenth century, non-Indian farming United States Supreme Court 36 years ago in Arizona v. communities also began to develop in Arizona and southern California. The decision was the culmination of a hitter dispute California with water rights obtained under state law to the among the three Lower Basin States over the share each state natural flow of the Colorado River. Unfortunately, the natural would have in the waters of the Colorado River and its flow was exceedingly erratic. Droughts and floods undermined tributaries. the economic stability of these agricultural communities. Nevertheless, farmers persevered and their communities and The Uncontrolled Colorado urban areas (particularly in southern California) continued to expand. This development was a matter of great concern to the The Colorado River rises in the mountains of Colorado and Upper Basin States. Any rights to use Colorado River water flows generally in a southwesterly direction for about 1.300 developed in the lower basin had the potential to permanently miles through Colorado. Utah, and Arizona and along the reduce the water supply available for future upper basin Arizona-Nevada and Arizona-California boundaries, after which development. it passes into Mexico and ends in the Gulf of California. The Eventually the Upper and Lower Basin states struck an seven largely arid states through which the river passes form the agreement to divide the waters of the Colorado River. The 1922 Colorado River Basin States: Wyoming, Colorado. Utah, and New- Colorado River Compact provided that each basin was to receive Mexico are the Upper Basin States, while Nevada. California, and 7.5 million acre-feet (MAP) of water in a normal year. However, Arizona are the Lower Basin States. A line at Lees Ferry, Arizona, the compact did not divide the waters among the states in each divides the Upper from the Lower Basin. Utah, New Mexico, and basin (nor did it specifically address Indian or other federal Arizona have areas in each basin. Disagreements among these water rights . states about the management and allocation of Colorado River Lower Basin states continued to squabble over apportioning water are not uncommon. their supply, so Congress stepped into the fray, enacting the Southwest Indian tribes also have a stake in the river's Boulder Canyon Project Act of 1928. In the act. Congress management. In 1865, the United States set lands aside along authorized a compact among the Lower Basin States to divide the Colorado River for the use of the Colorado River Indian the lower basin's 7.5 MAF allotment with 4.4 MAF going to Tribes. Other lands would be reserved along the river for the use California. 2.8 MAF to Arizona, and .3 MAF to Nevada. of tribes in Arizona, California, and Nevada. As the Supreme The Boulder Canyon Project Act also authorized the Bureau of Court would later note in Arizona v. California, "most of the Reclamation to build Hoover Dam. a breathtaking achievement lands were of the desert kind—hot. scorching sands—and . . . in the otherwise disheartening days of the Great Depression.

Allocating Colorado River Water STEWARDSHIP e quantified based on "reasonably foreseeable needs" Simon II. Itifkind submitted a 133-page Report to the of the Indians, because this meant guessing as to the number of Supreme Court in 1961. It is a testament to his extraordinary tribal members there might he at any time in the future. acumen and conscientious efforts that the Court adopted nearly Instead, the Court set a general standard for quantifying Indian all of his recommendations. water rights that survives to this day: "enough water was The Supreme Court's basic conclusion was that the question reserved to irrigate all the practicably irrigable acreage on the of how water was to he divided among the Lower Basin States reservations." was controlled by Congress's enactment of the Boulder Canyon Finally, the decision contained the first recognition by the Project Act in 1928. It first observed that, while that act had Supreme Court that the rationale of the Winters doctrine applies authorized the three states to enter into a compact to apportion to non-Indian federal reservations such as national parks, the waters of the Lower Basin among themselves, they had failed national forests, and national wildlife reservations. to do so. In the absence of such an agreement. Although the decision in Arizona r California the Supreme Court held that Congress had gave the Secretary of the Interior broad authorized the Secretary of the Interior to authority over the management of the Colorado divide the waters among the states following the River, this power is not exercised in a vacuum. guidelines of the act 4,4 MAF to California. 2.8 On any given issue, the federal trust MAF to Arizona, and .3 MAF to Nevada. responsibility to Indians must be weighed, and The Court then addressed the difficult issue further, the Secretary is likely to hear from of the extent to which state or federal law might some or all of the congressional delegations of control the Colorado River. Recognizing the the seven Colorado River Basin states, the major complexities of managing interstate rivers, the cities and farming districts in each of those Court found that federal management was states, federal and state natural resource essential to the success of the project agencies, and numerous environmental envisioned by Congress in the Boulder Canyon organizations. Project Act. After weighing what the Supreme Court "Where the Government, as here, has called in Arizona r. California "the diverse, exercised this power and undertaken a Katherine Ott Uerburg is the often conflicting interests of the people and comprehensive project for the improvement of a Department's Field Solicitor in communities of the Lower Basin States." the great river and for the orderly and beneficial Phoenix. Arizona. Site joined Secretary must fashion a coordinated plan for distribution of water, there is no room for the Solicitor's Office in .January river management that aims, the Court stated, of 1995 and provides legal inconsistent state laws." the Court ruling stated. "at the Fall realization of the benefits Congress advice to the Loner Colorado The federal interests had. according to the Region of the Bureau of intended this national project to bestow." The Court, led Congress to conclude that "unitary Reclamation. Katherine has wisdom of this approach can he seen today in management" was essential to the success of practiced law in Phoenix since the healthy, multi-purpose economies of the the Boulder Canyon Project Act. l>ecause the 1975. specializing in water law Southwest. and federal Indian laic. United States "would want to make certain that the waters were effectively used."

16 Office of the Solicitor • STEWARDSHIP

Paul Kirton

rior to 1920. access to develop all valuable mineral deposits except P coal on federal lands could be obtained through the Mining Law of 1872. In this century's first decade. President Theodore Roosevelt launched a pro­ gram to withdraw certain areas of the public domain from the operation of the mining law to conserve major natural resources. He set aside areas that were thought to be valuable for petroleum and fertilizer minerals. There was concern, among other things, that the military might have to buy oil from claimants that it could otherwise obtain for free on federal lands. In September 1909. following his predecessor's lead. President William Howard Tal'l withdrew an area in Wyoming from operation of the 1872 mining law in order to protect oil and gas resources. In March 1910. Midwest Oil Company went on the land despite the withdrawal and discovered oil. The United States sued to evict from entry or location under the public land laws for various Midwest Oil and to recover the value of oil produced during public purposes. It relied upon a practice of frequent exercise its trespass. Midwest Oil defended itself by arguing that Taft's of such authority by many presidents, and upon Congress' withdrawal was unlawful and therefore ineffective. Eventually, longstanding acquiescence in the process. the case came before the U.S. Supreme Court. The Court pointed out that prior to 1910 the president had. In the meantime, because his power to make the withdrawal without explicit statutory authority, issued at least 252 had been questioned, the president asked the Congress to executive orders reserving public lands for such purposes as confirm it by statute. Congress agreed, and did so in Indian reservations, military reservations, and bird reserves. legislation known as the Pickett Act, signed into law on June Congress had not taken action to repudiate any of these 25. 1910. Because the Wyoming withdrawal preceded the executive orders and thus had. over the course of many years, Pickett Act. and the legislation was not retroactive. Midwest acquiesced in the president's actions. In fact. Congress had OiPs case remained alive. Moreover, the Pickett Act did not implicitly ratified the executive orders by appropriating permit withdrawals for metalliferous mining—the extraction moneys to earn out the purposes of the reservations. The of metal-bearing ore—a limitation which became important Court's explanation was frequently quoted in subsequent later, as explained below. cases: The issue before the Court in United States v. Midwest Oil It may be argued that while these facts and rulings Company. 236 U.S. 459 (1915), was whether the president had prove a usage they do not establish its validity. But the power, without express authority from Congress, to government is a practical affair intended for remove public lands from operation of the Mining Law7 of practical men. Both officers, lawmakers and citizens 1872. That statute seemed unqualified in its command: "(a]ll naturally adjust themselves to any long-continued valuable mineral deposits in lands belonging to the United action of the Executive Department—on the presumption that unauthorized acts would not haw States, both surveyed and unsurveyed, shall be free and open been allowed to be so often repeated as to crystallize to exploration and purchase, and the lands in which they are into a regular practice. That presumption is not found to occupation and purchase" under the Mining Law of reasoning in a circle but the basis of a wise and 1872. Yet the president in his withdrawal orders had quieting rule that, in determining the meaning of a essentially said that this command did not apply on certain statute or the existence of a power, weight shall be public lands. given to the usage itself—even when the validity of the practice is the subject of investigation. In 1915, after twice hearing arguments in the case, the Supreme Court held by a vote of 5-3 that the president had an The Midicest Oil decision, and its recognition of broad implied power, as an agent of Congress, to make withdrawals powers of the president over federal lands, became of renewed

Power to Withdraw Public Land STEWARDSHIP X THE LAW A Office of the Solicitor 17 importance with the onset of Work! War II. Land areas could Missouri not effectively he set aside for military use. if the land v. remained open to exploration and location under the mining Holland laws. Moreover, the president could not withdraw lands under Ben Jesup the Pickett Act from metalliferous mineral activity. In 1941. then Attorney General Robert Jackson, just hefore he was named to the Supreme Court, issued an opinion holding n Missouri v. Holland. 252 U.S. 416 1920 . the Supreme that, despite passage of the Pickett Act. the president retained Court rejected a challenge to the constitutionality of the implied power under the I Migratory Bird Treaty Act of 1918. In so doing, the Court Midwest Oil decision to not only secured the role of the Federal Government in withdraw public lands, protecting wildlife, hut also spoke to fundamental issues of including withdrawal from our constitutional form of government in words that metalliferous mining activ­ reverberate to this day. ities. To appreciate the significance of the case, it is necessary to In succeeding years understand the context in which it was decided. Following the Presidents Roosevelt commercial slaughter in the late-1800s of species such as the and Truman issued exec­ bison and the passenger pigeon, wildlife preservation became utive orders delegating an issue of increasing concern in the United States. However. their withdrawal power to in the early years of the 20th Century, it appeared that the the Secretary of the federal role in wildlife protection was extremely limited. In Interior. Both the presi­ 1896. the Supreme Court had. in Geer v. Connecticut, held dent and the secretary that the state governments "owned" all wildlife within their have made many signifi­ borders. The corollary of the Court's holding was that the cant withdrawals of public did not authorize federal regulation of lands for public uses wildlife. (In fact, the first federal wildlife protection statute, relying on the broad known as the Lacey Act. passed in 1900. essentially reflected authority recognized in the "state ownership doctrine" espoused in Geer. It prohibited Midwest Oil. Some of these withdrawals are still in place. interstate transportation of wildlife taken in violation of state For example, in 1916. the president withdrew Naval law. thus simply adding a federal dimension to state Petroleum Reserves in California and Wyoming the latter regulation. commonly referred to as Teapot Dome. In 1923. a 23-million Against this background, there was growing concern in the acre withdrawal for Naval Petroleum Reserve Numbered 4 was early 1900s that state regulation of the killing of migratory made in Alaska. In 1943. Public Land Order 82 withdrew birds was not working. The states lacked a strong incentive to public lands totaling more than 75 million acres in three conserve these birds, as failure to harvest the birds while they major areas of Alaska. Most of the military reservations set were in one state would simply leave more birds for hunters aside during WW II and the Cold War were made under the in other states to take as the birds moved across state implied power of the president over the public lands. In 1958. boundaries. however. Congress reasserted its power by passing the Engle Thus. Congress enacted the Migratory Bird Act of 1913. Act. which required the president to submit all new proposed which prohibited the killing of migratory birds except withdrawals for military purposes over 5.000 acres in size to pursuant to federal regulation. Due to the questionable Congress for approval. constitutionality of this act, enforcement was rare. In section 704 of the Federal Land Policy and Management Where enforcement was Act of 1976. Congress acted to revoke the Midwest Oil power undertaken, it was swiftly of the president and the secretary to withdraw lands from the challenged. In 1911 and 1915, operation of the mining laws. In that same statute, however. two district courts held that Congress gave the secretary broad statutory authority to make the 1913 act was unconstitu­ withdrawals, and removed the limitation against withdrawals tional. The United States for metalliferous minerals. Thus, the secretary's broad power appealed one of these cases. to withdraw public lands for public purposes continues to the United States v. Shauver, to present day. although it is now undergirded by statute rather the Supreme Court. than the Midwest Oil decision. In the meantime, the Federal Government under­ Paul Kirton. is an attorney/advisor for the Division of Land took to secure a stronger and Water Resources. Branch of Federal Facilities Compliance. foundation for the legislation. His primary areas of responsibility are federal land and Article 2. section 2. of the resource law in the State of Alaska: land disposal programs U.S. Constitution expressly for Native Alaskans, the state, and others. He has been with delegates the power to make Ben Jesup is with the Division the Solicitor's Office for 39 years. of Parks and Wildlife of the treaties to the Federal Solicitor's Office. Government. The Supremacy

18 Office of the Solicitor * STEWARDSHIP X THE LAW Power to Withdraw Public Land SECURING THE FEDERAL ROLE IN WILDLIFE PROTECTION

In Missouri v. Holland, the Supreme Court created a mechanism to allow the Federal Government to expand its domestic legislative power through its treaty-making power.

Clause of Article VI provides that "This Constitution, the Laws Missouri sought to enjoin Holland from enforcing the law. The of the United States which shall he made in Pursuance state argued that Congress could not pass a law in furtherance thereof: and all Treaties made, or which shall he made, under of a treaty if the law would be unconstitutional in the absence the Authority of the United States, shall be the Supreme Law of the treaty. It argued further that the Migratory Bird Treaty of the Land." Thus, under the Supremacy Clause, treaties (and Act of 1918 was unconstitutional because it violated the Tenth domestic legislation implementing treaties take precedence Amendment, which reserves to the states powers not over conflicting state laws. delegated to the Federal Government. The district court The United States entered into negotiations with Great disagreed, and the state appealed to the Supreme Court. Britain on behalf of Canada to draft a treaty requiring the The Supreme Court's opinion was written by Justice conservation of migratory birds, many of which migrate Oliver Wendell Holmes, Jr.. one of the most celebrated between the United States and Canada. The result was the American jurists. Holmes first disposed of the state's Tenth Convention for Protection of Migratory Birds of 1916. Amendment argument by pointing out that the treaty-making Congress implemented the treaty in 1918. when it passed the power was expressly delegated to the Federal Government. Migratory Bird Treaty Act and simultaneously repealed the Holmes then held that the treaty with Canada and the 1913 act. During this time, the United States had managed to Migratory Bird Treaty Act of 1918 was a valid exercise of the delay the appeal of Shauver hefore the Supreme Court. The treaty-making power. appeal became moot when the 1913 act was repealed, and was He stated: "It is obvious that there may he matters of the eventually dismissed. sharpest exigency for the national well being that an act of Federal enforcement of the Migratory Bird Treaty Act of Congress could not deal with hut that a treaty followed by 1918 was more aggressive than had heen the case under the such an act could." Holmes criticized application of Geer's 1913 act. A federal game warden in Missouri. Kay Holland. state ownership doctrine to migratory birds as leaning on a ohtained indictments of two individuals for violating the new slender reed: "The whole foundation of the State's rights is federal regulations under the 1918 statute. The State of the presence within their jurisdiction of birds that yesterday

Securing the Federal Role in Wildlife Protoction STEWARDSHIP <£ THE LAW • Office of the Solicitor 19 had not arrived, tomorrow may be in another state and in a importance to the treaty-making power. This was the first ease week a thousand miles away." In affirming the district court's since the New Deal in which the Court struck down a federal ruling, Holmes concluded: law as beyond Congress" authority under the Commerce "Here a national interest of very nearly the first Clause. A number of commentators have suggested that the magnitude is involved. It can be protected only by national contraction of Commerce Clause authority Lopez likely signals action in concert with that of another [tower. The subject will lead to increased reliance on the treaty-making power matter is only transitorily within the State and has no and Missouri r. Holland) in justifying federal legislation. permanent habitat therein. But for the treaty and the statute The impact of Missouri v. Holland goes beyond its there soon might be no birds for any powers to deal with. We discussion of the scope of the treaty power. The case is an see nothing in the Constitution that compels the Government important statement in our ongoing national debate over the to sit by while a food supply is cut off and the protectors of proper method of interpreting the Constitution. Justice our crops tire destroyed." Holmes employed remarkably strong language in characterizing the Constitution as a living document: [Wjhen we are dealing with words that also are a constituent act. like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism: it has taken a century and cost their successors much sweat and blood to prove that they created a nation. The case before us must he considered in the light of our whole experience and not merely in that of what was said a hundred years ago. . . . We must consider what this country has become in deciding what the Tenth Amendment has reserved.

Beyond its broader importance to constitutional jurisprudence. Missouri v. Holland opened the door to increasing federal involvement, in particular by the Department of the Interior, in wildlife regulation. With respect to the Migratory Bird Treaty Act. the Court strongly endorsed the importance of bird conservation as a "national interest of very nearly the first magnitude." The United States signed bilateral bird conservation treaties with Mexico in 1936, Japan in 1972. and the Soviet Union now Russia in 1979. increasing bird conservation measures in those countries. In the United States, the Migratory Bird Treaty Act has been a great success. In addition to allowing for the comprehensive So why has Missouri v. Holland been described as "[plerhaps and successful management of migratory game bird hunting, the most famous and discussed ease in the constitutional law the act has been partially responsible for various measures of foreign affairs?" The answer is that the Court for the first that have reduced unintentional take of migratory birds. For time expressly stated that the Federal Government could example, most owners of power lines have modified or expand its authority to pass domestic legislation via designed equipment so as to minimize accidental involvement of an another country (in the form of a treat);. electrocutions of birds (and hence potential liability under the Holmes' failure to describe comprehensively the limits, if any. Migratory Bird Treat) Act. Similarly, the Fish and Wildlife of this mechanism led to charges, that on occasion are Sendee is currently engaged in identifying methods of repeated to this day. that the Court had created a loophole by minimizing the number of birds killed in collisions with this which our entire constitutional system of government might country's rapidly proliferating telecommunications towers. be subverted. In fact, during the 1950s, an attempt to amend Perhaps more importantly, by criticizing the doctrine of the Constitution to limit the treaty power, the so-called state ownership of wildlife espoused in (Jeer. Missouri r. Bricker Amendment, nearly passed the Senate. Holland paved the way for all future federal regulation of In recent years, the treaty-making power and Missouri v. wildlife, including the Endangered Species Act. the Marine Holland have been cited as authority for domestic legislation Mammal Protection Act. and the Bald and Golden Eagle such as the Endangered Species Act and the Hostage Taking Protection Act. Although the Supreme Gourt did not explicitly Act. Moreover, the Supreme Court's 1995 decision in United overrule Geer until 1979, it was Justice Holmes' attack on - Stales v. Lopez, in which the Court ruled the Gun Free School Geer's application to migrator) species that irrevocably put Zones Act of 1990 unconstitutional, has added renewed the Court on that course.

20 Office of the Solicitor * STEWARDSHIP

K.C. Becker

hat would our jobs at Interior lie like if courts would not W hear lawsuits brought by groups complaining about the effect of our decisions on the environment? The differences not only in our jobs, but also in the environment itself, might be substantial if the Supreme Court had decided Sierra Club r. Morton 1972 differently. In this ease, the .Sierra Club sued the U.S. Forest Service and the National Park Sendee to enjoin the approval of plans by Walt Disney Enterprises to build a major year-round resort in Mineral King Valley, in what was then the Sequoia National Forest in the Sierra Nevada mountain range in California. The proposed Even trees, rivers, and wildlife resort would have included should hare standing in hotels. a ski resort, environmental litigation affecting swimming pools, and stores them, argued Supreme Court on 1.000 acres. Justices William 0. Douglas and The Forest Service and the Harry Blackmun in their dissenting opinion in Siena Club National Park • Service V. Morton. planned to grant the permits necessary for this development to Disney, and whether the Sierra Club could the State of California bring such a lawsuit. The doubt planned to construct a major was based on the legal principle highway. accommodating of "standing." which is required 1.200 vehicles per day. and a for a party to bring a lawsuit. As power line, to traverse Justice Antonin Sealia put it Sequoia National Park to the in a subsequent case, standing is new resort. the question, "What's it to you?" The plaintiffs feared the In other words, what entitles developmental impacts that you to challenge the executive the resort would have on branch action in federal court? Sequoia National Park, Courts only want to hear cases which surrounds and brought by plaintiffs who have a overlooks Mineral King personal stake in the outcome of Valley, and the Sequoia a case, on the theory that only National Game Refuge .'.part then will such issues he of Sequoia National Forest sufficiently sharpened and which lies in the valley. The adequately presented. plaintiffs filed suit in June. In this case, the Sierra Club 1969 alleging that the Forest Service acted unlawfully be had not alleged that "any of its property would be damaged. permitting the ski facility, and that the Park Sendee acted that its organization or members will be endangered or that unlawfully in allowing the highway and power transmission its status will be threatened." Its lawsuit was thus not based lines to go through the park. on any alleged injury to the Sierra Club or its individual All of this sounds like a pretty run-of-the-mill lawsuit to us members, but rather was based simply on the ideological or at Interior, hut in 1969 there was ample room to doubt policy ground that the club disapproved of the Department

Standing in Environmental Litigation STEWARDSHIP <£ THE LAW • Office of the Solicitor 21 granting the necessary natural objects may be under the permits for the project and control of federal or state wanted some other action to agencies, those agencies cannot be taken. easily represent the "public The Sierra Club argued that interest" because they are often it could bring the lawsuit not controlled by powerful interests. because its members were Thus, he stated that, "the personally hurt, but because problem is to make certain that it. as a public interest group the inanimate objects, which are with a special focus on preser­ the very core of America's beauty, vation and conservation of the have spokesmen before thev are earth, was asserting the destroyed." Eloquent as his interests of its individual argument was. it did not win the members who cared about the day. area. In response, the United The importance of the stand­ States argued that the mere ing doctrine in environmental fact that a person or group cases is shown by the fact that the may care about a particular debate over how liberal standing action does not demonstrate a rules ought to he has continued to sufficient stake in the contro­ the present. In 1990. in Lujan v. versy to allow that person or National Wildlife Federation, the group to bring a lawsuit. Supreme Court held that the fact The Supreme Court ruled that members of a group had used for the United States. It said a and enjoyed land "in the vicinity" sincere interest in a problem is of the land involved was not not enough to show a suffi­ enough to confer standing. In cient injury to grant standing. 1992. in Lujan v. Defenders of Hut the Courts opinion also Wildlife, the Court tightened up said that if the Sierra Club the rules somewhat, though amended its complaint to without affecting the fundamen­ allege and if necessary to tal principle of Sierra Club v. show with proof that some of Morton. its members used the area in Most recently, in its 1997 question, and would therefore decision in Bennet v. Spear, the suffer esthetic injury from the Court ruled that a plaintiff has granting of the permits, that standing even if its underlying would be sufficient to confer standing on the Sierra Club. interests are adverse to the statute it seeks to enforce. All of The Ccourt firmly established that an injury does not have these cases were brought against the Department of the to be economic in nature to be real, so that groups who suffer Interior, and each highlights the fact that not everyone with no economic loss may still sue. Hut having a generalized any interest in what the interest in an area is not enough: a group must assert that its Department does can bring members are harmed in some concrete way: for example, us to court to defend it. but members must have actually visited the place and intend to that we must be held to do so again, so that their future enjoyment will he harmed by answer those who have a the action. sufficient stake in the Although the Sierra Club lost the case, the Court's decision controversy. solidified the ability of public interest membership groups, So, whatever happened to organized around particular interest areas, to challenge Mineral Valley? After the agency decisions in court. A number of lawsuits against the Supreme Court decision, the Department are filed by such groups. This case confirmed the Sierra Club amended its role of public interest groups in enforcing and upholding the complaint and the litigation law. and in playing a significant role in the decision making continued for a time. Eventu­ process of government agencies. ally Disney abandoned its The result is not one all of the justices would have plans and the Congress, in preferred. The vote in the case was 4-3 with two justices not 1978. added Mineral King ,. „ „ , participating. In a famous dissent. Justice William O. AX. Becker is an attornev- Valley to the Sequoia (l(h.jsor ,„ me DU.Lsio„ of Douglas, joined by Justice Harry Blai kniiiii. argued that National Park. forks and Wildlife. Branch of standing should be given to the inanimate objects themselves Parks and Recreation, in the "trees should have standing". Thev noted that although Office of the Solicitor.

22 Office of the Solicitor * STEWARDSHIP X THE LAW Standing in Environmental Litigation Hodel r. THE CONSTITUTIONALITY OF THE SURFACE MINING ACT \ irginia

Hodel v. Virginia Surface Gerald Thornton Mining & Reclamation Association, Inc.. 452 U.S. 264(1981) and n 1977, Congress enacted and Hodel v. Indiana. 452 U.S. 314(1981) President Carter signed into law th< I Surface Mining Control and Reclamation Act of 1977. The that the increased costs of operations that woidd follow from act established environmental protection standards for the strict reclamation requirements would drive them out of surface coal mining industry, requiring planning, permitting, business and make many of their coal reserves worthless. bonding, and reclamation, covering the full range of potential When the surface mining act became law, the stage was set impacts of the mining of coal. The enactment of the statute for litigation that would raise fundamental constitutional followed ten years of partisan disagreements, a pocket veto by issues and probe the limits of the Federal Government's power President Nixon and a veto by President Ford. to regulate interstate commerce under the Commerce Clause In the previous two decades, many people in Appalachian of the Constitution. Among the key issues was whether federal coal fields and some western states had become increasingly power under the Commerce Clause was limited by the Tenth concerned that "strip mining," a form of coal mining that had Amendment, which states that "[t]he powers not delegated to developed rapidly after World War II, was ravaging their land the United States by the Constitution, nor prohibited by it to and waters, lowering the quality of their lives, and the States, are reserved to the States respectively, or to the impoverishing their communities. They called for federal people." regulation of strip mining, arguing that the state governments The case also raised important issues about the scope of the had failed to effectively regulate the industry because they due process and takings provisions of the Fifth Amendment in were competing with one another to attract the coal the context of federal economic legislation. Several cases companies. challenging the surface mining act on constitutional grounds The coal industry and its allies lobbied vigorously for the were filed in various states, and eventually two cases reached status quo—continuing state regulation of coal mining the Supreme Court. practices. They argued that the Federal Government had no In Virginia, before any plaintiff was cited for any violations business telling states or landowners what they could do with of the law by Interior's newly created Office of Surface Mining their coal or how it should he mined. The industry also feared Reclamation and Enforcement (OSM), coal operators scored a

The Constitutionality of the Surface Mining Act STEWARDSHIP

24 Office of the Solicitor • STEWARDSHIP X THE LAW The Constitutionality of the Surface Mining Act The articles in this booklet originally appeared in the Sept/Oct '99, Not/Dec '99, and January 2000 issues of People, Land and Water, the employee news magazine of the U.S. Department of the Interior. Its news content is developed by Interior bureaus and offices and coordinated by the Office of Communications (Office of the Secretary). The publication is distributed through the U.S. Postal Service. For subscriptions, editorial contributions. Letters to the Editor, and other information: 1849 C St. NW. ms6013-MIB, Washington, DC, 20240; (ph) 202-208-7291; (fax) 202-208-7854; e-mail: PLWmos.doi.gov

Michael Gauldin, Publisher Teresa Rusnak, Budget Officer Frank Quimby. Editor Electronic Ink, Production and Graphics Walter Bottom, Asssistant Editor Tatni A. Heilemann. Photography Coordinator

Production and graphic services for this publication were provided by the National Business Center/Division of Logistic Services/Creative Communication Services. The articles in this booklet were redesigned to fit the current format by Mark Stephen Hall (NBC/DLS/CCS).

The cover was adapted from a poster originally designed by Mark Stephen Hall (NBC/DLS/CCS) for the Office of Communications (Office of the Secretary) for the Earth Day 2000 presentation of the Land and Water Conservation Fund.

Credits STEWARDSHIP