Defending the indefensible

Published January 1, 2002

In 1976, Congress adopted the Federal Land Policy and Management Act (FLPMA) to end seven decades of ad hoc Presidential withdrawals of federal land from public use.

The 1970 Public Land Law Review Commission Report had chastised Congress for its acquiescence to Presidential usurpation of powers assigned to Congress by the Constitution’s Property Clause. In response, Congress painstakingly described in FLPMA the only way to withdraw federal lands.

For nearly 20 years, federal land managers and their political bosses knew that all withdrawals had to comply with FLPMA. Then came the Clinton administration.

There’s gold in Montana

Earnest Lehmann, of Minneapolis, Minnesota, has an innate sense for hidden bodies of ore. With hard work and knowledge gained from years of experience, Lehmann has identified ore bodies throughout the world–ore bodies later taken over and developed by large mining concerns.

Years ago, Lehmann and two partners located a world-class gold deposit in northern Montana’s Liberty and Toole Counties, in an area that has been mined since the first miners came West. In fact, so much mining has occurred in the area that it consists of intermingled private, state, and federal surface and mineral interests; most is privately owned.

In the 1980s and early 1990s, the Bureau of Land Management (BLM), recognizing both its duty to permit mineral development and the area’s mineral potential, worked with Lehmann to permit environmentally sensitive mining operations.

“Careful handling”

That changed after Bill Clinton was inaugurated; the BLM became virulently anti-mining, with BLM employees looking for ways to end Lehmann’s mining activity. BLM employees asked government lawyers if they could simply reject Lehmann’s mining plan. When the lawyers said no, the BLM employees concluded that “[w]ith careful handling, the approval [of Lehmann’s plan] could be delayed many months or even years.”

BLM employees, under pressure from then-Congressman Pat Williams (D-Montana), who also opposed Lehmann’s mining, convened a Washington, DC task force “to study avoidance measures,” “recommend an alternative to mineral exploration,” and “stop [mineral] development” in the area of Lehmann’s claims. Finally, the BLM withdrew the area from mining activity for two years. The asserted basis was a sham; all the reasons given by the BLM had been ruled of no consequence in an earlier BLM decision. But the withdrawal had its impact: Lehmann’s partners left, taking with them the $500,000 allocated to delineate the mineral deposit, endangering the $1,000,000 already invested in the project.

Meanwhile, the BLM sought to complete the paperwork to make it appear as if the withdrawal complied with federal law. But, due to internal conflicts and outside pressure (from Congressman Williams, among others), the BLM could not meet the legal deadlines. When the two-year withdrawal expired, the BLM had to issue another two-year withdrawal, in violation of FLPMA.

The BLM brushed the legal difficulties aside and issued a new two-year withdrawal, saying it was in “aid of legislation,” a bill introduced by Williams. That too was illegal.

After the first withdrawal expired, Lehmann staked new claims. The BLM declared those claims null and void, a ruling upheld by the Interior Board of Land Appeals. Lehmann objected, asserting the second withdrawal was illegal because it was the same as the first, in violation of FLPMA. Finally, in March 1997, one of Babbitt’s officials withdrew the entire area from mining activity.

No better under Bush

Now, Lehmann is in federal court to determine whether the law so carefully crafted by Congress in 1976 means anything at all.

Lehmann knew the law meant nothing to the Clinton administration. Not easily shocked, he was stunned when Bush administration lawyers defended the Clinton administration’s actions, saying those actions were “balanced” and therefore legal; or, if illegal, had been ratified by congressional inaction.

Worst was Bush’s lawyer’s reliance upon a 1910 statute that Congress repealed when it passed FLPMA.

When Lehmann sued, he knew Bush’s lawyers would make him prove his case. But he never imagined they would show the former administration’s disdain for federal law.

William Perry Pendley is president and chief legal officer of the Mountain States Legal Foundation.