Recently, the Supreme Court ordered the federal government to respond to a petition for a Colorado woman whose hard-earned, rare, and valuable claims to minerals she discovered on federal land were seized by the Obama administration. In answer, President Trump should disown the illicit courtroom victories of his predecessor. More than the fruits of one woman’s years of labor and retirement nest egg are at stake. So too are a provision of the Constitution, the nation’s richest uranium supply, and Westerners’ right to be free of abuses by future presidents who owe allegiance, not to the rule of law, but to the demands of radical environmental groups.
Karen Wenrich graduated from high school in Wiesbaden, Germany, where her father was an Air Force colonel. Earlier, as a child in the American West, climbing rocks was a way of life and the stimulus for her interest in geology. At Penn State she won a scholarship, an assistantship, and a fellowship. After nine years, she earned a B.S., M.S., and Ph.D. in geology and volcanology. She returned to Colorado for a 25-year career with the U.S. Geological Society, published more than 175 papers, and became a consultant for the mining industry. Along the way, her work earned her a share of the 2005 Nobel Peace Prize.
Through the years, Wenrich searched for uranium deposits in northern Arizona, which, says the U.S. Geological Survey, has “the highest uranium potential in the country.” After spending $100,000, she staked 71 mining claims with joint interest in another 94 claims. In fact, she had a $200,000 agreement to sell 61 of the claims. Yet, in 2012, Secretary of the Interior Ken Salazar closed more than a million acres of federal lands from mining, blocking her from selling the 61 claims, developing her other claims, or exploring for more uranium resources.
Wenrich is a member of the American Exploration & Mining Association, which challenged the withdrawal of the nation’s highest-grade uranium ore as a violation of the Federal Land Policy and Management Act. The AEMA argued that Congress only authorized large withdrawals if they survived a legislative veto and because such “vetoes” are unconstitutional, the authorization for withdrawals exceeding 5,000 acres fails as well. An Arizona federal district court disagreed. The U.S. Court of Appeals for the 9th Circuit, the most often reversed appellate court in the land, upheld the lower court ruling.
The Property Clause gives Congress sole power to manage federal lands (“Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”). Thus, the executive has only the power delegated by Congress. For almost 200 years, no single act defined the executive’s power over public lands; however, on occasion, Congress delegated the executive authority to withdraw federal lands. Over the decades, even without authority, presidents withdrew public lands from such lawful purposes as mining. As a result, in 1915, the Supreme Court held that acquiescence by Congress to these withdrawals gave presidents authority to make them.
In 1976, Congress had enough. It repealed 29 withdrawal statutes, overruled the Court’s 1915 ruling, and revoked all implied executive powers to withdraw public lands. Then it delegated authority to the executive to make specific withdrawals of less than 5,000 acres; however, larger withdrawals required that Congress be notified, with documentation of the withdrawal’s necessity and impact, and survive a legislative veto. In 1983, however, the Supreme Court struck down a different legislative veto provision, thus apparently undoing the check on executive authority Congress imposed with its 1976 act.
Trump should urge the Supreme Court to grant certiorari to overturn the 9th Circuit, uphold the Constitution and its Property Clause, free up valuable uranium resources, and remove the threat that future presidents will close millions of acres of federal land to productive, economic, and recreational uses by Westerners.
William Perry Pendley is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of the Mountain States Legal Foundation, has argued cases before the Supreme Court, and worked in the Department of the Interior during the Reagan administration. He is the author of Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today.
