Presidential Authority Over Wilderness Areas Under the

Federal Land Policy and Management Act of 1976

Under the Federal Land Policy and M anagement Act of 1976 (FLPMA), the President is required to 

forward to the Congress his recommendations with respect to federal lands studied by the Bureau 

o f Land M anagem ent for possible designation as wilderness. He has no authority to refuse to make 

recom m endations for areas he believes unsuitable for wilderness designation, or to return such 

lands to multiple use management without congressional action upon his recommendation. U nder 

the FLPM A, as under the W ilderness Act of 1964, only Congress has authority to determ ine 

whether an area should or should not be designated as wilderness.

January 11, 1982

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

We have been asked by the Office of Legislative Affairs for our views 

concerning whether § 603 of the Federal Land Policy and Management Act of 

1976 (FLPMA), 43 U .S.C. § 1782 (1976), authorizes the President to determine 

that areas being studied for wilderness designation are not suitable for such 

designation and to return such areas to general use management without congressional action.

This question has arisen as a result of a proposal by the Department of the 

Interior urging the President unilaterally to take such action with respect to the 

Shoshone Pygmy Sage area either in the form of a presidential executive order or 

a memorandum from the President. An executive order would have to be 

submitted to the Attorney General for consideration as to both form and legality 

prior to submission to the President. Exec. Order No. 11030, 3 C.F.R. 610 

[1959-1963 Comp.], as amended. Interior has not articulated a legal rationale for 

suggesting a memorandum rather than an executive order. However, a memorandum contemplating action of this nature certainly implicates the Attorney General’s responsibility to provide legal advice to the President, 28 U.S.C. § 509 

(1976), on issues relative to the President’s constitutional obligation “ to take 

Care that the Laws be faithfully executed.” U.S. Const., Art. II, § 3. Therefore, 

since your legal advice will be sought with respect to this matter irrespective of 

the procedure contemplated, these views are submitted directly to you.

We do not believe that the President has the legal authority to take the action 

being suggested by the Department of the Interior. We believe that he must 

forward to the Congress his recommendations as to whether land should or 

should not be designated as wilderness and that he cannot remove land from

63
consideration for such designation and return it to multiple use management by 

unilateral action.1

I. Background

The FLPM A, 43 U.S.C. §§ 1701-1782 (1976), was an attempt to establish a 

coherent, comprehensive scheme of federal land management based on multiple 

use and sustained yield. Id., § 1701(a)(7). In order to effect this goal, the 

FLPM A required the Secretary o f the Interior (Secretary) to prepare and maintain 

on a continuing basis an inventory of all federal lands. Id., § 1711. Based on 

lands identified in the inventory, the Bureau of Land Management (BLM) is 

required to conduct a study o f all areas with wilderness characteristics. Id.,

§ 1782.2 The Secretary must, as the studies are completed, make recommendations to the President as to the suitability or non-suitability of each area for 

permanent designation as a wilderness. Id ., § 1782(a). The President is then 

required to forward to the Congress “his recommendations with respect to 

designation as wilderness of each such area. . . .” Id., § 1782(b). The statute 

explicitly states how the land is to be managed in the interim between the 

beginning of the study period and the final decision, a period that may last years.

During the period of review of such areas and until Congress has 

determined otherwise, the Secretary shall continue to manage 

such lands . . . in a m anner so as not to impair the suitability of 

such areas for preservation as wilderness. . . .

Id ., § 1782(c).

II. Dispute Over the FLPMA, § 603, 43 U.S.C. § 1782

In Septem ber of this year, an Associate Solicitor Designate of Interior submitted a memorandum (Memorandum) to the Secretary concluding that the President has the discretion to release land he deems unsuitable for wilderness 

designation to multiple use management without congressional action.3 Although conceding that § 603 did not give the President this authority explicitly, 

the M emorandum concluded that the “ better conclusion” is that § 603 implicitly 

granted the President that authority. The Memorandum concluded that the 

President need forward to Congress only those recommendations that favor 

wilderness designation of areas under study. It expressed the view that unilateral 

presidential action to release land under review to multiple use management if the 

President determ ined that such land was not suitable for wilderness designation 

was consistent with congressional intent.

1 M ultiple use m anagem ent is defined in 43 U .S .C . § 1702(c) to include “ a com bination of balanced and diverse 

resource uses . . . including, but not limited to , recreation, range, timber, m inerals, w atershed, wildlife and fish, 

and natural scenic, scientific and historical values."

2 W ilderness is defined in 16 U S.C § 1131 (c) ( 1976)

3 M em orandum for Secretary Watt from A ssociate Solicitor Designate G ood, Sept. 4, 1981

64
The Land and Natural Resources Division of the Department of Justice 

(Lands) disagrees with this analysis.4 It concludes that the statute requires the 

President to forward recommendations on all areas that have been studied, 

whether or not the recommendations favor wilderness designations. Lands 

believes that Congress has retained for itself the authority to determine whether 

or not an area should be designated as wilderness.

Your advice may be requested because of your duty to resolve interagency 

legal disputes, Exec. Order No. 12146, 3 C.F.R. 409 (1980), reprinted in 28 

U.S.C. § 509 note (Supp. V 1981), your duty to advise the President on the 

interpretation of the laws, 28 U.S.C. § 509, or to approve Presidential Executive 

Orders for legality. Exec. Order No. 11030, 3 C.F.R. 610 (1959—1963 Comp.), 

as amended. After a careful examination of § 603, its legislative history and prior 

administrative practice, we have concluded that the President must forward 

recommendations to Congress on all areas of land studied. We believe that the 

President does not have the authority to return lands to multiple use management 

without congressional action.

III. Analysis

The central issue is whether Congress intended the President to forward to it 

recommendations on all areas with wilderness characteristics that had been 

studied by BLM. The pertinent language of the statute is:

(a) [T]he Secretary shall review those roadless areas of five 

thousand acres or more and roadless islands of the public lands 

. . . having wilderness characteristics . . . and shall from time to 

time report to the President his recommendation as to the suitability or nonsuitability of each such area or island for preservation as wilderness. . . .

(b) The President shall advise the President of the Senate and 

the Speaker of the House of Representatives of his recommendations with respect to designation as wilderness c f each such area.

. . . A recommendation of the President for designation as wilderness shall become effective only if so provided by an Act of 

Congress.

(c) During the period of review of such areas and until Congress 

has determined otherwise, the Secretary shall continue to manage 

such lands . . . in a manner so as not to impair the suitability of

such areas for preservation as wilderness. . . .

43 U.S.C. § 1782 (emphasis added). The parallel construction of the statute 

leads us to conclude that Congress was referring, in each subsection, to the same

4 M em orandum for Attorney G eneral French Sm ith and D eputy Attorney G eneral Schmults from A ssistant 

Attorney General D inkins. Dec. 21. 1981

65
areas of land— those studied by BLM for possible designation as wilderness.5 For 

each such area the Secretary must prepare recommendations, the President must 

prepare recommendations, and the Secretary must, “ until Congress has determined otherw ise,” continue to manage such areas “ so as not to impair the 

suitability of such areas for preservation as wilderness.” Id., § 1782(c). There is 

nothing on the face of the statute which provides the President with any explicit 

authority to refuse to make recommendations for areas he believes unsuitable for 

wilderness designation or to release those lands for multiple use management 

without congressional action. A natural reading of the statute does not supply an 

inference that the President was given such authority and prior administrative 

practice is to the contrary.

The language in § 603 regarding transmission of recommendations is virtually 

identical to that found in the Wilderness Act of 1964. 16 U.S.C. § 1132(c) 

(1976).6 The W ilderness Act of 1964 directed the Secretary to review “ every 

roadless area” of 5,000 or more acres in the national park system and the national 

wildlife refuges and game reserves in order to identify those with wilderness 

characteristics. Id. The statute requires the Secretary to report to the President his 

recommendations “ as to the suitability or nonsuitability of each such area” and 

the President to report to Congress “ his recommendations with respect to 

designation as wilderness of each such area. . . .” Id. In applying this provision, 

at least three previous Presidents have interpreted it to require them to forward all 

recommendations to Congress, including those recommending against designation of certain areas as wilderness.7 Since the FLPM A’s wilderness review 

provisions are directed towards all the lands within the Secretary’s custody that 

are not covered by the Wilderness Act of 1964, the vast “ public lands” administered by BLM , it is unlikely that Congress, adopting the same statutory 

language for the same executive department, intended to change the process.8 

When Congress enacts a new law incorporating language contained in another 

law on the same subject with full awareness of administrative practice under the 

prior law, it would require compelling evidence to conclude that Congress 

intended to alter the process— especially in a direction which would reduce 

congressional power. L o rilla rd v. Pons, 434 U .S. 575, 580-81 (1978); 

Chem ehuevi Tribe v. FPC, 420 U.S. 395, 408-10 (1975); Com missioner v. 

E state o f N oel, 380 U .S. 678, 682 (1965).

5 This parallel construction is even more evident in an earlier version of the bill, H .R . 5622, 94th C o n g ., 1st 

S ess., 121 C ong Rec 8999 (1975), introduced by Rep. S eiberling. Section 103 of H .R . 5622 was an almost 

verbatim version of § 603 except thal it was written as one long paragraph, rather than three subsections.

6 “ fT]he S ecretary of the Interior shall report to the President his recom m endation as to the suitability or 

nonsuitabihty o f each such area o r island for preservation as w ilderness T he President shall advise the President of 

the Senate and the Speaker o f the House of R epresentatives of his recom m endation with respect to the designation as 

w ilderness o f each such area o r island . 16 U .S .C . § 1132(c).

7 T hese actions by Presidents Ford, N ixon, and Johnson are reflected in the following material: Letter of 

Transm ittal from President Ford, Dec 4, 1974, Public Papers o f G erald R Ford, at 70 9 -1 0 , Letter of Transm ittal 

from President N ixon, June 13, 1974, Public le p e rs of Richard N ixon, at 496; M emorandum to the Congress from 

President N ixon, N ov 28, 1973, Public f^ p e rs of Richard N ixon, at 985; Letter of Transm ittal from President 

N ixon, Apr. 2 8 , 1971, Public ftipers of R ichard N ixon, at 592; Letter of Transmittal from President Johnson, 

Jan. 18, 1969, Public Papers o f Lyndon B . Johnson, at 1365.

8 Public lands, 43 U S C . § 1702(e), constitute the vast m ajority of the lands overseen by Interior.

66
Taken as a whole, therefore, we believe that § 1782 establishes a scheme 

whereby the Executive Branch supplies recommendations and data for Congress 

for a congressional decision as to each area. Until a congressional determination 

is made, the Secretary is required to manage such land “ so as not to impair the 

suitability of such areas for preservation as wilderness.” 43 U .S.C. § 1782(c).

This plain reading of § 603 is supported by the available legislative history. 

Both the House and Senate versions o f the FLPMA, H.R. 13777 and S. 507, had 

wilderness review sections. The Senate’s version, S. 507, § 103(d), was very 

short and ordered reviews to be done in accord with the Wilderness Act of 1964.

(d) Areas identified pursuant to section 102 as having wilderness 

characteristics shall be reviewed within fifteen years of enactment 

of this Act pursuant to the procedures set forth in subsections 3(c) 

and (d)ofthe [Wilderness Act of 1964, 16U .S.C .§ 1132(c), (d).]

S. 507, § 103(d), reprinted in S. Rep. No. 583, 94th C ong., 1st Sess. 5 (1975). 

The sectional analysis states:

Subsection (d) . . . provides that once these areas are identified 

the Secretary must study them to determine whether or not they 

are suitable for inclusion in the National Wilderness Preservation 

System and submit his recommendations to the President, who, in

turn, must submit his own recommendations to the Congress.

Id. at 46 (emphasis added).9

The House version, H.R. 13777, § 603, was longer, in large part because it 

repeated in full the language of the Wilderness Act of 1964. Compare 16 U .S.C . 

§ 1132(c) with 43 U.S.C. § 1782(a)-(c). When, in preparation for the conference committee, the Senate staff prepared a Committee Print attempting to 

merge S. 507 and H.R. 13777, it adopted the expanded language of the H ouse’s 

version, § 60 3 ,10 and it was this language that was ultimately adopted by 

Congress.

The Committee Print highlighted proposed § 603(d) as the one provision of 

§ 603 which differed from the Senate’s version." This subsection stated:

Where the President recommends pursuant to subsection (b) of 

this section that a roadless area or island is not suitable for 

inclusion in the National Wilderness Preservation System, that 

recommendation shall take effect [unless vetoed within 120 days 

by one House.]

Id. at 857.

9 T he identical analysis was provided on an earlier version of the bill, S. 424. See S Rep. N o. 873, 93rd C o n g ., 

2d Sess. 38 (1974) (§ 103(e))

10 See Staff o f Senate Com m , on Energy and N atural R esources, 95th Cong , 2d S ess., Legislative History c f the

Federal Land Policy and Management Act c f 1976. at 747 (C om m . Print 1978).

11 Id at 857 T he House version was originally § 3 1 1(d) but was renum bered as § 603 by the Senate staffers 

com piling the Com m ittee Print. See n 10 supra

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This language makes it manifest that the President was expected to make 

recommendations under § 603(b) for areas he believed unsuitable for wilderness 

designation as well as for those he believed suitable. The difference was that the 

House version would have allowed the President’s recommendation regarding 

areas he regarded as unsuitable to become effective absent an affirmative vote by 

one H ouse.12 This understanding is reflected in the House Report. “ Subsection 

(d) provides options whereby areas which the President has recommended as 

being non-suitable as wilderness either can be restored with minimum delay to 

full multiple-use management or considered further by the Congress for possible 

inclusion in the N ational W ilderness Preservation S ystem .” H .R . Rep. 

No. 1163, 94th Cong., 2d Sess. 17 (1976) (§ 3 1 1(d)). See also 122 Cong. Rec. 

24701 (1976) (remarks of Sen. Jackson).

In the conference, Rep. Seiberling objected to language in § 603(c) and to all 

of § 603(d). Transcript of Conference Committee on S. 507, 94th Cong., 2d 

Sess., at 88-97 (Transcript).

CONGRESSM AN SEIBERLING: [T]his means, even where 

you had something that was statutorily made part of the study, or 

had previously been withdrawn and was covered by the 15-year 

review period, that some special interests could get the Secretary 

to knock it out and the period of review would terminate.

So, here again we have an e ffo rt to w hittle this thing 

down. . . .

CONGRESSM AN MELCHER: What the gentleman from Ohio 

is proposing is we delete what words?

CO N G RESSM A N SEIBERLING: [DJelete paragraph (d) on 

page 109.

Transcript at 88-89.

A fter a vigorous but inconclusive debate on § 603(c), Rep. Seiberling 

intervened.

CONGRESSM AN SEIBERLING: Mr. Chairman, we are getting 

hopelessly bogged down in this. My suggestion is the House 

Conferees propose we leave Section (c) as it is in the draft bill 

before us. I will withdraw my objections to it provided we take out

(d) which is the bold-face type on page 109 which, in my view, 

would deprive Congress which would give the Secretary the 

ability to deprive Congress of the ability to finally decide what to 

do at the end of the study period.13

12 This M em orandum does not address the constitutionality o f such a one-H ouse veto

13 As discussed infra in m ore detail, we attach no particular significance to the somewhat garbled structure of this 

sentence. We believe the context clearly indicates that the C ongressm an was expressing concern that subsection (d) 

w ould give the Executive B ranch power to deprive the Congress o f the authority to finally decide w hether a 

particular area was to be designated wilderness o r not. The Interior Departm ent M em orandum , through the use of an 

ellipsis, gives this statem ent the same effect.

68
He could completely by-pass the study period by simply recommending a certain area be taken out of the study program and 

that would be the end of it unless Congress vetoed it.

CONGRESSMAN MELCHER: Is there any objection to the 

proposal by Mr. Seiberling on the House side?

CONGRESSMAN YOUNG: Do I understand the gentleman correctly? All we are doing is deleting (d)?

CONGRESSMAN MELCHER: Deleting (d), leaving the rest of 

the language.

Transcript at 93-94. Section (d) was deleted, therefore, id. at 97, because of the 

concern articulated by Rep. Seiberling that it placed too much power in the hands 

of the Executive by diluting Congress’ check on the President’s recommendations 

as to non-suitable areas. The concern which was expressed is that an area could 

be declared unsuitable and taken out of eligibility for wilderness treatment 

merely as a result of an Executive Branch decision and the absence of affirmative 

action by Congress. The entire debate proceeded on the assumption that the 

President had the duty to make recommendations as to non-suitable areas under 

§ 603(b) prior to the deletion of subsection (d)— and afterwards. The only 

difference after the deletion of (d) is that those recommendations cannot become 

law without affirmative congressional action. They remain recommendations.

The same analysis of the statute’s requirement seems to have been made by at 

least one court. Utah v. Andrus, 486 F. Supp. 995 (D. Utah 1979), involved a 

charge that BLM ’s regulation of federal land that had been identified as having 

wilderness characteristics was injuring a piece of state property that it completely 

surrounded. In setting out the facts underlying the government’s interest, the 

court described the wilderness study procedure in an explanatory footnote.

The BLM procedure for carrying out the wilderness review 

portions of FLPMA is as follows: First, the agency identifies 

roadless areas of 5000 acres or more which have wilderness 

characteristics. These areas are then designated Wilderness Study 

Areas (WSAs), and BLM studies each area to determine the 

suitability of the area for inclusion in the Wilderness System. At 

this point in its planning, BLM looks at all the potential uses of an 

area, including the potential for mineral development. After 

completion of this phase BLM reports to the President its recommendation as to each area’s suitability (or lack thereof) for inclusion in the Wilderness System. The President then makes his

re c o m m e n d a tio n s to C o n g r e s s , w h ich m a k e s th e f in a l

determination.

486 F. Supp. at 1001 n.9 (emphasis added) (dictum).

69
IV. The Associate Solicitor’s Memorandum

The M emorandum relies on the statutory language of 43 U .S.C . § 1782 and 

congressional intent to support its position. We are not convinced by its 

arguments.

1. The M emorandum points out that whereas the Secretary makes recommendations to the President “ as to the suitability or nonsuitability of each such area,” 

43 U .S.C . § 1782(a), the President makes recommendations to Congress only 

“ with respect to designation as wilderness of each such area.” Id., § 1782(b). 

The difference in language between subsections (a) and (b) is read by the 

Associate Solicitor to mean that Congress did not intend to require the President 

to submit recommendations as to unsuitable land— otherwise, Congress “ surely 

would have selected language similar to that contained in subsection (a).” 

M emorandum at 2.

We believe that the language employed by Congress does not support the 

construction suggested. First, subsection (b) does not require the President to 

submit only recommendations favoring designation as wilderness, but rather 

recommendations “ with respect to designation as wilderness of each such area.”

43 U .S.C . § 1782(b) (emphasis added). Requiring the President to make a 

recommendation “ with respect to ” “ each such area” seems fully as broad as 

requiring the Secretary to make a recommendation for each such area as to its 

suitability or non-suitability. W hile the language in subsections (a) and (b) is not 

identical, the words in subsection (b) are certainly broad enough to embrace the 

process referred to in subsection (a), do not expressly connote a more limited 

intent, and the terms of (a) are identical to those used in 16 U.S.C. § 1132 which 

has not been construed in the m anner suggested by the Associate Solicitor. In 

short, we can see no basis for the interpretation reached by the Associate 

Solicitor.

Second, we do not believe, as Interior does, that “ each such area” is ambiguous. M emorandum at 4. We believe that every use of “ each such area” in § 1782 

has the same meaning. Although the Memorandum argues that “ ‘of each such 

area’ can just as easily” be construed as referring only to the areas the President 

recommends as “ suitable for w ilderness,” id., we disagree. First, this would 

require assuming that Congress meant the same phrase to have two different 

m eanings within the space of a few sentences, a most unlikely event. Second, it 

would require reading “ of each such area” as referring back to some prior point 

in the section where “ such” areas are identified— but there is no prior reference 

that would give a narrow meaning to the word “ such.” The only possible “ areas” 

to which “ such” can refer are in § 1782(a) which, the Associate Solicitor 

concedes, includes all areas being studied.14

2. Interior believes that § 1782(c) is also ambiguous. Again, it is unlikely that 

Congress would intend “ such areas” and “ such lands,” both phrases found in

14 We w ould reach this conclusion even if w e did not have the exam ple of other statutes w hich com bine both these 

sentences in the sam e paragraph. See supra, notes 5 & 6

70
§ 1782(c), to differ so radically in meaning from such subsection to subsection. 

Interior argues, however, that “ the ‘such lands’ provision more appropriately 

refers to those lands that have been recommended to Congress for wilderness 

under section 603(b) . . . [They are lands] which have been determined by the 

President to be suitable for wilderness purposes.” Memorandum at 4, 5. We 

cannot agree that this interpretation comports with the “ broad scheme” of 

§ 1782. Id. at 4. If the lands can be returned to multiple use management as soon 

as the President decides they are unsuitable, it is certainly possible that such use 

would irreparably impair the suitability of such areas for preservation as wilderness. By the time Congress had learned of the decision and acted to override it, 

the characteristics sought to be preserved might no longer exist.15 The interim 

management provision would be frustrated by irreversible disturbances of the 

status quo. See Parkerv. U nited States, 448 F. 2d 793,797 (10th Cir. 1971 ),c ert.

denied, 405 U.S. 989 (1972).

3. Section 1782(b) concludes with the sentence, “A recommendation of the 

President for designation as wilderness shall become effective only if so provided 

by an Act of Congress.” The Memorandum takes the position that this demonstrates that Congress retained control only of areas which are to be designated as 

wilderness, not of unsuitable areas. “ The logical conclusion is that no provision 

[for unsuitable areas] was necessary since reports on such nonsuitable areas 

would not be required to be sent to Congress for decision.” Memorandum at 3.

The negative inference of this sentence provides, we believe, the strongest 

support for the interpretation urged by Interior. However, we believe that the 

Interior interpretation misapprehends Congress’ concern. One of the express 

congressional purposes for the FLPMA was to reassert Congress’ control over 

federal lands, specifically, to insure that

the Congress exercise its constitutional authority to withdraw or 

otherwise designate or dedicate Federal lands for specified purposes and that Congress delineate the extent to which the Executive may withdraw lands without legislative action.

43 U.S.C. § 1701(a)(4).16 The FLPMA repealed the President’s implied authority to make withdrawals, FLPMA, § 704(a) Pub. L. No. 94-579, 90 Stat. 

2792 (1976), and carefully limited the Executive’s express authority to make 

withdrawals. See 43 U .S.C. § 1714. Even § 603 contains a limit on the Secretary ’s withdrawal authority. 43 U .S.C . § 1782(c) (m ining lands). Section 

1782(b) is an expression of Congress’ concern that the President not make any 

effort to protect wilderness lands by unilateral action. It is very weak support for 

the argument that Congress left in the President’s hands the even broader 

authority to determine the status of areas by failing to make a recommendation.

15 T he rationale for preserving the character of the land is theoretically stronger, from Congress’ standpoint, for 

areas w hich the President does not believe to be suitable He would not be likely to need any congressional 

adm onition to avoid im pairing the w ilderness characteristics for lands which he believed suitable for w ilderness 

designation

16 W ithdrawals, 43 U S.C § 1702(j), are the withholding of Federal land from settlem ent in order to limit 

activities and thereby maintain som e particular public value, such as wilderness characteristics.

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This sentence of subsection (b), on which this argument is predicated, is also 

found in the Wilderness Act, 16 U .S.C. § 1132, which, as noted earlier, was 

administered by three Presidents to require reports and recommendations to 

Congress on suitable and non-suitable areas. This construction, the plain reading 

of the statute as a whole, the other inferences to be drawn from the language of the 

statute and the legislative history, considerably outweigh the argument made by 

Interior. In short, we do not believe that this sentence can be construed in the 

manner suggested.

4. Interior also finds support for its position in the fact that the Secretary is 

required to conduct mineral surveys only for areas he considers suitable for 

inclusion in the wilderness system , 43 U .S.C . § 1782(a). It argues that this 

indicates that Congress only wanted such information on suitable areas because it 

would not be involved in decisions about unsuitable areas. A short answer to this 

is that any inference about the mineral surveys must apply equally to the 

President. Since it is the Secretary who conducts the surveys based on his

assessment of what areas are suitable, Interior’s logic would compel the conclusion that the President also would only be involved in decisions regarding 

suitable areas because those areas are the only ones for which the President would 

receive surveys. Obviously, the statute does not permit such a conclusion. It 

seems more likely that, in the interests of administrative economy, Congress 

directed mineral surveys of the areas that will probably end up being designated 

as wilderness but did not intend this to be a limit on the areas as to which the 

Secretary or the President should make recommendations.

5. The next rationale offered by Interior is that requiring the President to make 

recommendations on all areas will place the land into an administrative quasipermanent limbo that will frustrate FLPM A’s purpose. Memorandum at 5-6. 

This purpose, it is said, is the “ expeditious” return of land to management based 

on multiple use. Memorandum at 6. First, this ignores the categorical directive in 

§ 1782(c) that the land be managed to protect its wilderness characteristics “ until 

Congress has determined otherwise.” Second, it assumes that this interim management scheme requires the Secretary to act so narrowly that the land will be of 

no use for the long period of tim e that Congress has the area’s future under 

advisement. This ignores both the provisos in § 1782(c) that provide for certain 

continuing uses of the land and the court interpretations that have upheld various 

activities in the areas. See Rocky Mountain O il & G as Ass’n v. Andrus, 500 F. 

Supp. 1338 (D. Wyo. 1980) (mining), appeal docketed, No. 81-1040 (10th Cir. 

Jan. 5, 1981)*; Utah v. Andrus, 486 F. Supp. 995 (D. Utah 1979) (access roads 

for tim ber harvesting). Further, the status of an area recommended for noninclusion will stay in the status dictated by subsection (c) only as long as 

Congress wishes. It is difficult to conclude that this somehow is contrary to 

congressional intent.

♦ N o t e . In response Jo ihe Secretary's appeal in this case, the court of appeals narrowed the district co u rt’s 

construction o f the statutory exem ption for existing uses of designated lands, holding that “ Congress intended to 

lim it existing m ining and grazing activities to th e level of physical activity being undertaken so as to prevent 

im pairm ent o f w ilderness characteristics ’* 696 F.2d 734, 749 (10th C ir 1982) citing Utah v. Andrus. 486 F. Supp 

995 (D U tah 1979). Ed

72
6. Interior argues that the conference committee transcript indicates that Rep. 

Seiberling was confused and thought that proposed § 603(d) gave the Secretary,

rather than the President, the power to release unsuitable areas. Memorandum at 

9. See supra, n. 13. We doubt whether Rep. Seiberling was confused, not only 

because of his long involvement with FLPMA, see supra, n. 5, culminating in his 

being chosen as a member of the House delegation to the conference, but also 

because of his arguments, see Transcript, supra, at 88-97, detailing his objections to proposed § 603(d). The use of the word “ Secretary” is not material to the 

central issue under debate and we simply cannot attach any significance to it. Nor 

can we agree with Interior’s argument that Rep. Seiberling supported the deletion 

of § 603(d) “ even after recognizing that by such deletion the executive branch 

could release the land without Congressional approval.” Memorandum at 9. The 

Transcript seems to us to mean just the opposite— that Rep. Seiberling supported 

the deletion of § 603(d) because he did not want the Executive Branch to be able 

to bypass congressional action on this subject. Transcript, supra, at 94. The 

quoted language simply does not support the significance attached to it by the 

Associate Solicitor.

Finally, Interior argues that since § 603(b) already gave the President the 

power to release unsuitable land, the purpose of § 603(d) was to give Congress 

the authority to override that release. Deletion of § 603(d), therefore, is construed to mean that Congress did not want to exercise this review authority and 

left release to the President’s unfettered discretion. We disagree. Interior’s entire 

argument is based on the premise with which we are unable to agree, that 

§ 603(b) gives the President release authority. For the reasons stated above, we 

cannot agree with Interior’s reasoning.

We conclude that § 603 calls upon the Secretary to conduct a study of certain 

areas, to make recommendations to the President with respect thereto, and for the 

President to make recommendations concerning those areas to the Congress. We 

are unable to find any credible support for the argument that the President need 

not make recommendations to Congress as to some areas, but may in fact remove 

the land from further consideration without any congressional submission. The 

statute’s language, its legislative history, administrative practice regarding previous legislation which is virtually identical, and judicial interpretation all lead to 

the conclusion that there is no implicit authority in the President to unilaterally 

release lands from further study merely because he believes them to be unsuitable. The President must make recommendations as to all areas studied by the 

Secretary and he must await Congress’ decision as to their ultimate fate.

T h e o d o r e B. O l s o n

Assistant Attorney G eneral

Office of Legal Counsel

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