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INAPPROPRIATE SHIFT IN FLPMA POLICY:

Section 3 amends Section 1703(a) of FLPMA and places priority emphasis on and includes under the umbrella of protection "environmental" and "ecological" resources and the enhancement of resources and value of its newly created "conservation system units" and provides for the restriction and prohibition of further development.

Further, Section 3 broadens the scope of ACEC designation to include the protection of resources and values "likely to be affected" by the use of "specific portions of the public lands."

These amendments evidence an intent generally to eliminate commercial or economic uses such as timber, mining and grazing in favor of non-consumptive uses. H.R. 1603 gives special priority to single uses at the expense of multiple uses of public lands.

Similarly, H.R. 1603's amendments to Section 1712 of FLPMA dealing with the criteria for the development and revision of land use plans also evidences this intent. Section 5(3)(6) amends Section 1712(C)(1) of FLPMA to require, beyond the use and observation of the principles of multiple use and sustained yield, that the Secretary "evaluate the feasibility of measures... that would enhance the extent to which the public lands can support increases in the numbers and types of plant communities and fish and wildlife populations located on or supported by such lands," (emphasis added) all the while giving priority to not only the designation and protection of areas of critical environmental concern but to the identification, protection and enhancement of the ecological, environmental, fish and wildlife and other resources and values of riparian areas. Section 5(3) spells out the consideration of present and potential uses to include "recreational and other non-consumptive uses" of the public lands.

Section 8(a) expands the Secretary's duty to conserve public lands and creates a nonimpairment standard for "conservation system units." As such, this section creates more wilderness without requiring the documentation of the wilderness characteristics previously incorporated by Section 603 of FLPMA. In fact, this section, through the expanded nonimpairment standard, effectively turns all public lands into a buffer zone for national parks and other "conservation system units."

IMPROPER EXPANSION OF JUDICIAL REVIEW:

Section 13, which replaced Section 14 in H.R. 1096, is intended to provide environmental plaintiffs with an avenue to sue where one is not otherwise available. It impermissibly relaxes the requirements for bringing suits imposed by Article III of the United States Constitution and eases and arguably eliminates requirements for review pursuant to the Administrative Procedures Act. 5 USC §§701-706 (1990)("APA").

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Article III of the Constitution limits the scope of federal judicial power of review to "[c]ases and [c]ontroversies." U.S. Const., art. III, §2. The APA limits courts to review of federal agency action. Section 702 of the APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Because FLPMA does not presently provide a private right of action for a violation of its provisions, a plaintiff must seek review under the general review provisions of the APA which provide for judicial review of "[a]gency action made reviewable by statute [which FLPMA does not so provide] and final agency action"... 5 USC Section 704. Therefore, when there is no specific authorization in the substantive statute (FLPMA) for review, and a plaintiff seeks review under the APA, the agency action in question must be "final." However, if Section 13 were interpreted to amend FLPMA to now provide a right of judicial review, albeit, "subject" to the APA, it would come within the Section 104 provision allowing review of "[a]gency action made reviewable by statute", thus eliminating the requirement of finality.

This section, as drafted, is the result of a last minute amendment on the floor presented by Mr. Rhodes from Arizona. It appears from the floor debate that Mr. Rhodes was concerned that this section, as previously drafted, would exempt agency actions under FLPMA from a number of significant protections against governmental abuse found in the APA. His amendment which specifically referenced the APA apparently satisfied his concerns, but does not begin to satisfy mine.

While the section was amended to add the language "subject to review" under the APA, other key terms were left out. Specifically, the term "final" preceding the terms "agency action" got lost in the translation. Mr. Rhodes' concerns did not address the real focus of this section which is to make actions not otherwise considered final, now reviewable in violation of the APA.

The real problem is that no analysis to date has addressed this amendment. The reasons provided in the last committee report may or may not be valid. On its face, this amendment appears to go much further than the original, H.R. 1096, in broadening the scope of judicial review. Absent the term "final" in Section 13, the amendment would make all agency actions including the formulation of policy and interpretative rules, which are not presently considered ripe for review under the APA, automatically reviewable. As such, Section 13 would contradict the constitutional requirements for judicial review imposed by Article III and would overturn a century of well-established, well-reasoned legal precedent defining the parameters of justiciability.

Section 13 is incorrectly cast by the Committee Report as a "response" to an invitation extended by the United State Supreme Court in Lujan v. National Wildlife Federation, 1105 Ct. 3177 (1990). Not only does Section 13 show up at the party uninvited, but it is inappropriately dressed. Moreover, the impact of Lujan on standing doctrine and its application to environmental plaintiffs is grossly exaggerated; there is, after all, life after Lujan. In Lujan, the NWF claimed that the BLM's administration of its "land withdrawal

review program" violated FLPMA and the National Environmental Policy Act of 1969 ("NEPA"). Since the plaintiffs in Lujan had alleged only that NWF members used "unspecified portions" of federal lands on which mining activity has occurred or probably will occur, the Court found that they had not demonstrated that they had been "adversely affected or aggrieved" by the BLM's actions. Id. at 3189.

In addition, and most important, the court in Lujan found that NWF's challenge to the BLM's entire "land withdrawal review program" was no more an identifiable "agency action" -- much less a "final agency action" -- than a "drug interdiction program" of the DEA. Id. In doing so, it stressed the importance of the requirement that the agency action being reviewed be final.

The court, in Lujan, simply reiterated its long-standing rule of law that plaintiffs pursuing review under the APA must demonstrate "actual or threatened harm" from a "final agency action" to have standing.

The court in Lujan flatly refused to allow NWF to seek the kind of "wholesale improvements" that Section 13 proposes to allow. Section 13 would allow review of all kinds of proposed agency actions before they are "ripe" for review, that is, ready to be decided. According to the Committee Report, these actions would include the development or adoption of policies to govern or direct agency action whether or not adopted by a formal rule-making proceeding which, by their nature, would be "less than immediate in their effects." Opening the doors of review to less than final agency actions and less than actual or threatened harm would be tantamount to opening the floodgates to litigation and the disruption of administrative procedure as we know it.

The bottom line, whether Congress thinks it is appropriate to allow judicial review right down to the BLM's thought processes or not, is that Section 13 as drafted, contradicts the constitutional requirements mandated by Article III and in doing so ignores the principles behind the evolution of standing requirements. Standing analyses has evolved as a combination of both constitutional considerations and prudential considerations which set forth the circumstances in which federal courts have subject matter jurisdiction. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982). Since Article III's subject matter jurisdiction only extends to "cases and controversies" federal courts are limited to addressing adversarial questions and those capable of judicial resolution. As such, Article III limits the allocation of judicial power to federal courts so that the courts won't intrude on the other branches of government and thus acts as a check on the separation of powers. On this point, the Supreme Court has made it clear that "[n]either the Administrative Procedure Act, nor any other Congressional enactment, can lower the threshold requirements of standing under Art. III." Id. at 487-488 n.24. At best, Section 13 constitutes "judicial infringement upon the people's prerogative to have their elected representatives determine how laws that do not bear upon private rights shall be applied." Center for Auto Safety v. National Highway Traffic Safety Admin., 793 F.2 1322, 1342 (D.C. Cir. 1986)(Scalia, J., dissenting).

USURPATION OF RS 2477 RIGHTS-OF-WAY:

As a preliminary matter, before addressing my specific concerns with Section 14, dealing with claimed rights-of-way and its accompaniment Section 319, I am particularly concerned that any legislative action which is taken involving RS 2477 rights-of-way, be based upon a fair, unbiased and detailed examination of the history of these rights, wellestablished judicial and administrative interpretation and an accurate assessment of the economic consequences accompanying any action affecting these rights. For this reason, I have attached to this statement, as an appendix, comments I submitted together with my colleague, the Honorable Don Young from Alaska, on the CRS REPORT (Highway Rightsof-Way: The Controversy Over Claims Under RS 2477) and my comments on the BLM DRAFT REPORT on RS 2477. These materials more than adequately address the various concerns I have relative to the two reports which have purported to address the issues surrounding RS 2477 claims.

To summarize, the CRS REPORT presents an inaccurate and biased analysis of these issues from which entirely unsubstantiated conclusions are drawn. It provides little evidence and mostly undocumented argument to support a preconceived hypothesis. Absent a fair and meaningful analysis and acknowledgement of the issues presented, the CRS REPORT does little to assist Congress and can only serve to manipulate and further confuse the issues. Because of serious concerns raised about the CRS REPORT's historical accuracy, legal analysis and lack of objectivity, Mr. Young and I, along with other members, requested that the CRS REPORT be withdrawn from further circulation and retrieved from those who already received it. Our request proved futile and was summarily rejected as if it were nonsubstantive. We received no response to the detailed substantive analysis set forth in our critique.

Unfortunately, the BLM DRAFT REPORT, with its extensive reliance on analysis and assertions made in the CRS REPORT, likewise undermines its credibility, objectivity, and ability to assist Congress in its evaluation of the issues. Accordingly, to the extent the BLM DRAFT REPORT relies on the CRS REPORT, it should also be disregarded. Viewing H.R. 1603, then, independent of any information contained in the two reports, I remain concerned about the following issues:

Section 319, as presented in the Committee Report, purports to provide a simple recordation requirement under the guise of the facilitation of federal land management. It is no more a simple recordation requirement than the wilderness inventory process was a simple inventory which the BLM had ten years to compete. Instead, it imposes elaborate procedural requirements, allows for exhaustive public participation in the process, provides an avenue to judicial review to virtually anyone -- eliminating established legal-standing requirements, and finally, it sets an impossible deadline for claiming rights which exist irrespective of any agency recognition, thus creating an "administrative dust storm that will choke BLM's ability to manage the public lands." Sierra Club v. Hodel, 848 F.2d 1068, 1082 (10th Cir. 1988).

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A far cry from a simple recordation requirement, Section 319(a) sets forth the basic filing requirements for recordation of an RS 2477 claim. This section not only creates an administrative dust storm but also it envisions an administrative miracle. It is highly unlikely that the BLM would be able to complete even the promulgation of the minimal requisite implementing regulations within the meager seven months remaining to record claims, assuming, that is, that H.R. 1603 were passed into law as we speak. For example, Emery County, Utah, alone has just submitted 1,100 RS 2477 claims to the BLM for processing, which, due to the present moratorium on assessing the validity of these claims, pending the BLM's Report to Congress due on June 1, cannot begin to be processed. Add to this number the approximately 1,500 claims submitted by Garfield County, and then include the other 15 rural counties in my district alone, not to mention the likely claims that will follow from the other 30 public lands states trying to protect their highway systems, and the result is more than an "administrative dust storm" -- it is, at the very least, a full fledged tornado which will do more than just "choke" the BLM's ability to manage the public lands - it will more likely cause total respiratory failure. Section 319(a) is as counterproductive as it is costly, in that it would require the filing and defense of claims already long-since administratively determined as valid RS 2477 highways by the BLM.

Rewriting both well-established legal precedent and departmental policy, Section 319(a) goes on to place the added and misguided requirement of "maintenance" to the criteria for assessing an RS 2477 claim. The fact that, as a matter of policy, the expenditure of construction or maintenance money by an appropriate public body is evidence of the highway being a "public" highway does not translate into a fourth criteria for acceptance of the grant.

Section 319(b) provides that the failure to comply with these onerous recordation procedures and further the failure to file a notice of intent to "hold and maintain" an RS 2477 right-of-way and accompanying documentation, and to publish this information consistent with the time allotted in Section 319(a) "shall be conclusively deemed to constitute an abandonment and relinquishment of the right-of-way." As such, Section 319(b) rewrites and reverses traditional property law principles governing the extensive abandonment procedures that must be followed for public highways.

For example, Utah law specifically provides that all highways, roads, paths and ways not designated to another governmental entity are within the jurisdiction and control of the county commissioners in the county where they are located. Utah Code Ann. §27-12 25 (1992). Further, Utah law provides that all public highways once established shall continue to be highways until abandoned or vacated by the authorities having jurisdiction over any such highway. Id. §27-12-90. Extensive procedural requirements are then set forth which require notice and a public hearing. Id. §27-12-102 through 102.5. In Utah, the abandonment of a public highway, such as the literally thousands of RS 2477 rights-of-way, is a serious and sophisticated process. Such significant and valued property rights, integral to the infrastructure of the rural counties of Utah and other states, cannot be so easily slated for extinguishment in the yard sale fashion Section 319(b) provides.