BLM Tries to Remove a Congressional Tool for Protecting Lands

A Congressional move to stop uranium mining around the Grand Canyon has led the BLM to propose removing the rules that allowed the Congressional action.

The House Natural Resources Committee had used its ability authorized in Section 204(e) of the 1976 Federal Land Policy and Management Act (and implemented in 43 CFR. 2310.5) to make a June 25, 2008, emergency request that the Secretary of Interior stop the mining, saying it threatens the natural resources in the area. The Senate Energy and Natural Resources Committee has been given the same power, and such requests can be applied to other potentially threatening land uses, such as oil and gas drilling, other types of mining, or other land development. If the Secretary of the Interior were to grant such requests, Congress could then deliberate over whether more permanent protection of the land in question is warranted.

Instead of responding to the request, the BLM is trying to remove the authorizing rules, according to Rep. Raul Grijalva, Chairman of the Subcommittee on National Parks, Forests, and Public Lands. As part of the agency's expedited effort (which Grijalva notes was announced shortly before a 3-day weekend when Congress wasn't in session), there is only a 15-day public comment period, which ended Oct. 24, 2008. Such a short comment period is nearly unprecedented, says the Western Watersheds Project's Jon Marvel, 208-788-2290.

As part of its justification for the proposed change, the BLM says the rules allowing emergency requests don't significantly add to the authority the Secretary of Interior already has, and removing the rules would help clear up some legal issues.

The emergency rules have rarely been used, but they have drawn the attention of other Republican administrations, resulting in two lawsuits in the Reagan years, and a very similar effort to delete them in the last year of George H.W. Bush's administration.

If BLM approves the rule before Bush leaves office, Congress, if it is so inclined, can pass legislation to override it, or ask the next president to use his or her executive powers to abolish it.

• BLM proposed rule: Oct. 9, 2008, press release (includes link to Federal Register notice).
• Rep. Grijalva statement on the BLM action, Oct. 14, 2008; media contact, Natalie Luna, 520-622-6788.