PART V. POWER OF EXECUTIVE TO WITHDRAW PUBLIC LANDS FROM ENTRY. 1701 DEPARTMENT OF THE INTERIOR, The honorable the SECRETARY OF THE INTERIOR. I think the last paragraph of this memorandum summarizes the matter fully and shows that the authority of the Secretary depends upon his views of the action required by the interests of the public service. The paragraph in question is expressed practically in the language used by the Supreme Court in its decisions upon this subject, and is as follows: The one question which the Secretary of the Interior has to decide in every such case is whether the reservation to be made is required by "the exigencies of the public service" and whether it is within his powers, as expressed by the Supreme Court, to prescribe the rules necessary "for the purpose of justice and to prevent the consequences of inadvertence, irregularity, mistake, and fraud and "to do justice to all claimants and preserve the rights of the people of the United States." Very respectfully, [Memorandum.} A. P. DAVIS, Acting Director. DEPARTMENT OF THE INTERIOR, March 27, 1909. AUTHORITY OF THE EXECUTIVE TO RESERVE PUBLIC LANDS. Secretary Lamar in connection with the Puyallup Indian Reservation held (10 L. D., 518) under the authority of Wolcott v. Des Moines Co. (5 Wall., 681) and Grisar v. McDowell (6 Wall., 363) found that the President by executive order can reserve a part of the public domain for a specific public purpose and referred to the following language of the Supreme Court in the decisions mentioned: "From an early period in the history of the Government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public use." The same principle was enunciated in Homestead Company v. Valley R. R. (17 Wall., 153) and in U. S. v. Leathers (6 Sawyer, 20). In some cases the reservations were for military purposes, but establishing a reservation for Indians is equally a public purpose. 1702 In an opinion dated January 17, 1882 (17 Op., 258) Attorney-General Brewster, in commenting on the above decisions and others, stated: "It appears from these authorities that not only has the President the powe make reservations of public lands for public uses, but if the reservations are mad by the heads of departments it will be presumed that the President has acted through them. "In 5 Wallace, page 688, where the reservation in question was for the improvement of the Des Moines River in Iowa, the court says that the President was competent through the Secretary of the Interior to make the reservation, and that he had this power ever since the establishment of the Land Department. "It has been shown above that the President has the power generally to reserve lands from the public domain for public uses.' 29 This was also the opinion of Attorney-General MacVeagh (1 L. D., 30), who further stated: "The question submitted, indeed, assumes the existence of the powers and suggests that there is doubt only as to whether it can be exercised with respect to lands which at the time are included in a preemption filing to homestead entry and to which steps have thus already been taken by an individual to acquire title under the general land laws. "The power of the President, above adverted to, extends to lands which belong to the public domain of the United States and are subject to sale or other disposal under the general land laws. It is capable of being exercised with respect to such lands as long as they remain unappropriated and unreserved from the public domain, but no longer.' As to reservations of lands in Alaska, Assistant Attorney Shields, in an opinion dated June 17, 1890 (13 L. D., 426), held: “The lands of Alaska are part of the public domain, and as such are subject to the supervision of the President as other public lands. There is no statute giving general authority to the President to reserve lands. But the right of the President to put public lands in reservation, so that all questions in reference to them might be properly considered, or as the exigencies of the public service demanded, or to aid in the execution of a proposed statute, has always been maintained by the courts. "a These opinions are based largely upon the case of Grisar . McDowell (6 Wall., 380). That decision concludes as follows: "It only remains to notice the objection taken to the authority of the President to make the reservation in question. The objection is twofold-first, that the lands reserved did not constitute any part of the public domain but were the property of the city, and were not, therefore, the subject of appropriation by order of the President for public purposes; and, second, if they did constitute a part of the public domain, they could only be reserved from sale and set apart for public purposes under the direct sanction of an act of Congress. "The first objection has been sufficiently answered in considering the nature of the claim of the city. It was not a claim to a tract which has been specifically defined; it was a claim only to a specific quantity embracing, it is true, the site of the public and adjoining lands, but which has yet to receive its precise limits and bounds from the officers of the Government. Until this was done, the Government was not precluded from setting apart and appropriating any portions of the lands claimed which might be necessary for public uses. Until then the claim of the city was subservient to the right of the Government in this respect. "On the other hand, it the lands were at the time a part of the public domain, as they must be considered to be, because they have been excluded from the lands confirmed to the city in satisfaction of the claim, it is of no consequence to the plaintiff whether or not the President possessed sufficient authority to make the reservations in question. It is enough that the title had not passed to the plaintiff, but remained in the United States. But further than this, from an early period in the history of the Government it has been the practice of the President to order, from time to time as the exigencies of the public service required, parcels of lands belonging to the United States to be reserved from sale and set apart for public uses. "The authority of the President in this respect is recognized in numerous acts of Congress. Thus, in the preemption act of May 29, 1830, it is provided that the right of preemption contemplated by the act shall not 'extend to any land which is reserved from sale by act of Congress, or by order of the President, or which may have been appropriated for any purpose whatever. 'b Again, in the preemption act of September 4, 1841. Lands included in any reservation by any treaty, law, or proclamation of the President of the United States, or 1703 reserved for salines or for other purposes. are exempted from entry under the act. So by the act of March 3, 1853, providing for the survey of the public lands in California, and extending the preemption system to them, it is declared that all public lands in that State shall be subject to preemption, and offered at public a For further discussion, see Mem., 1 L. D., 702. b4 Stat. L., 421. c5 Stat. L., 456. sale, with certain specific exception, and among others of lands appropriated under the authority of this act, or reserved by competent authority.'a The provisions in the acts of 1830 and 1841 show very clearly that by competent authority' is meant the authority of the President, and officers acting under his direction.b "The action of the President in making the reservations in question was indirectly approved by the legislation of Congress in appropriating moneys for the construction of fortifications and other public works upon them. The reservations made at the same time embraced seven distinct tracts of land, and upon several of them extensive and costly fortifications and barracks and other public buildings have been erected." 4202 SECRETARY OF THE INTERIOR, DEPARTMENT OF JUSTICE, Washington, D. C. SIR: The question has been presented as to the power of the Executive without specific statutory authority to withdraw public lands from settlement and entry under the laws of the United States, particular attention being directed to the following orders heretofore made: 1. For conservation of water resources, dated January 7th and 18th and. February 27, 1909, whereby about 677,000 acres of land in Montana, Utah, and Oregon were "reserved from all forms of entry in order that they may be held available for the benefit of the public in connection with future development. * * 4203 2. For reservoirs and power plants, dated March 2, 1909, withdrawing "from disposal under any of the public land laws except the various right of way acts" "made under the general supervisory authority of the Executive in order to make certain that these lands shall not be acquired wrongfully under other laws than the right of way acts, thus defeating the purpose of Congress, and also to give Congress opportunity to so change or modify the public land laws that these particular lands may be devoted to their best use. 3. For bird reservations by various orders made since March 13, 1903. 4. For winter game refuge, dated February 24, 1909, whereby over 138,000 acres of land in Wyoming were "withdrawn from all forms of location, disposal, and entry under the public land laws, pending proposed legislation looking to the creation of a winter game refuge. 5. Of coal lands in Alaska, dated November 12, 1906, modified November 27, 1906, and December 17, 1906, whereby about 8,000,000 acres of coal lands in Alaska were withdrawn from entry under the coal land law merely." 6. Of coal lands, dated July 26, 1906, whereby over 68,000,000 acres situate in Colorado, Montana, New Mexico, Oregon, Utah, Washington, and Wyoming were "suspended and withdrawn from entry, filing, or selection under the public land laws. Of these lands about two-thirds have been restored to entry. 7. So-called "phosphate withdrawals," dated December 9, 1908, covering over 4,000,000 acres in Idaho, Wyoming, and Utah “in aid of proposed legislation affecting the disposal of phosphate deposits. 8. Of land included within areas proposed to be reclaimed under the reclamation act, dated July 27, 1908, and March 3, 1909, whereby over 570,000 acres of land theretofore drawn under the so-called "second form" were "withdrawn from all forms of entry under the supervisory authority of the Secretary of the Interior.' While some of the withdrawals specified are justifiable and were probably made upon other grounds, authority for all of them is evidently found in the following statement appearing in the report of the Secretary of the Interior for the year 1908: "Full power under the Constitution was vested in the executive branch of the Government, and the extent to which that power may be exercised is governed wholly by the discretion of the Executive unless any specific act has been prohibited either by the Constitution or by legislation. In the exercise of this power it is the duty of the Executive to take such action as will protect the interests of all the people of the United States in their property rights, and, if the occasion requires, and the facts warrant, it is the duty of the Executive to prevent the acquisition of the public domain by private interest if such acquisition be detrimental to the public welfare." a 10 id., 246. b Wolcott v. Des Moines Co. (5 Wall., 688). This sweeping declaration of executive authority involves a misconception of the entire theory of the Federal Constitution, which is not a limitation, but à delegation and enumeration of powers. In Cotting v. Goddard, 183 U. S., 84, the Supreme Court said: "It has been wisely and aptly said that this is a government of laws and not of men; that there is no arbitrary power located in any individual or body of individuals; but that all in authority are guided and limited by those provisions which the people have, through the organic law, declared shall be the measure and scope of all control exercised over them." And in Burfenning v. Railway Company, 163 U. S., 319, the same court said: The action of the Land Department cannot override the expressed will of Congress or convey away public lands in disregard or defiance thereof." * * * Article 1, section 8, paragraph 18, of the Constitution provides "that Congress shall have power * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers; and all other powers vested * in the Government of the United States or in any department or officer thereof." Article 4, section 3, provides that "the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or property belonging to the United States;" and article 2, section 3, provides that the President “shall take care that the laws be faithfully executed." "The term 'territory' as here (in section 3 of article 4) used is merely descriptive of one kind of property and is equivalent to the word 'lands,' and Congress has the same power over it as over any other property belonging to the United States, and this power is vested in Congress without limitation." (United States v. Gratiot, 14 Peters, 533.) Mr. Justice Wilson, in his Lectures upon the Constitution of the United States (Works, volume 2, page 66), referring to the Executive Branch of the National Government, said: * "He (the President) is to take care that the laws are faithfully executed; ** in the Saxon Government the power of the first executive magistrate was also 4204 twofold. * * The person at the head of the executive department had authority, not to make or alter or dispense with the laws, but to execute and act the laws which were established; and against this power there was no rising up, so long as it gadded not like an unfeathered arrow at random. On the whole, he was no other than a primum mobile set in a regular motion by laws which were established by the whole body of the nation." In support of the foregoing he cites Bacon on Government at pages 32, 33, and 40, and that this Anglo-Saxon conception of executive authority was carried into our American institutions is demonstrated by the opinion in Kendall v. United States, 12 Peters, 524, wherein a writ of mandamus was sought to compel the Postmaster-General to carry into effect an act of Congress and the court said: "It was urged at the bar that the Postmaster-General was alone subject to the direction and control of the President with respect to the execution of the duty imposed upon him by law; and this right of the President is claimed as growing out of the obligation imposed upon him by the Constitution to take care that the laws be faithfully executed. This is a doctrine that can not receive the sanction of the court. It would be vesting in the President a dispensing power which is not countenanced for its support in any part of the Constitution and is asserting a principle, which, if carried out in its results to all cases falling within it, would be clothing the President with a power entirely to control the legislation of Congress and paralyze the administration of justice. By the laws of the United States, its citizens are accorded certain rights with reference to the acquisition of title to the public lands, and, under the Constitution, it is the duty of the President to see that these and all other laws are faithfully executed. To contend that the obligation thus imposed on the President implies a power to take steps which will render them inoperative is a construction which is entirely inadmissible. Of course, in pursuance of the duty to see the laws faithfully enforced, occasion may arise, or even be anticipated, for the use by the Government of parcels of the public domain, and, under such circumstances, it would be the province and duty of the President to make appropriate withdrawal and reservation. This authority is recognized in the case of Grèsar v. McDowell, 6 Wall., 363, where the court said: "From an early period in the history of the Government it has been the practice of the President to order from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public use." If, however, in the absence of such exigency, and merely because in his opinion the general public welfare may be better subserved thereby, the Executive may withdraw any portion of the public domain from the operation of all or any of the public land laws, then he may withdraw all lands therefrom; and the concession of any such authority involves the existence of that "dispensing power" which is denied by the decisions above referred to. It would seem that upon general principles no general and unrestricted discretionary power to withdraw from the operation of the law because there is no expressed constitutional or statutory prohibition can be held to exist. But there is specific authority, both judicial and administrative, to the contrary. "There can be no reservation of public lands from sale except by reason of some treaty, law, or authorized act of the executive department of the Government." (Woolsey v. Chapment, 101 U. S., 770.) "The President, or a head of a department of the Government, can not reserve any public lands from sale except when authorized by some treaty, law, or authorization from Congress." (United States v. Blendauer, 122 Fed., 707.) In the case of the Fort Boise Reservation, 6 Land Decision 16, the Secretary of the Interior had under consideration a reservation by the War Department of certain lands, exceeding in quantity the 630 acres authorized by the act of February 14, 1853, and Secretary Lamar used the following language: "Will such an act take the lands out of the class of public lands and require their disposal by special enactment? To so hold would indicate that the Executive might, in violation of law, put in reserve for military purposes any amount of lands, and thus take them out of the operation of the general laws. To assert such a principle is to claim for the Executive power to repeal or alter the acts of Congress at will." Of course, the situation there under consideration involved an express congressional limitation and the overriding of the same by the Executive; but it would seem that the difference is only one of degree between overriding a congressional enactment that no more than a given quantity of land shall be reserved for a specific authorized public use, and rendering nugatory all public laws permitting the acquisition of lands by citizens in the manner prescribed. 4205 "The power to dispose of the public lands is granted to Congress. No appropriation of them can be made for any purpose but by the authority of Congress.' (United States v. Tichenor, 12 Fed., 422.) A very carefully prepared memorandum upon several of the questions here involved, made by Mr. Finney, is submitted herewith, and with the several conclusions announced therein I am in entire accord. Briefly, my views may be summarized as follows: No inherent power is vested in the President to withdraw public lands from the operation of the laws relating thereto, but such withdrawal can only be made by authority of law, or for a specific public use, or temporarily, in anticipation and for the purpose of accomplishing the objects of congressional action. In the latter case it would seem that the withdrawal should be canceled upon failure of the legislative department, after reasonable opportunity, to take the action desired or contemplated. OSCAR LAWLER, DEPARTMENT OF THE INTERIOR, Senator Guggenheim has introduced S. 2984, a bill to grant certain lands to the town of La Junta, Colo., for an arid park. He wants the land withdrawn pending congressional action. There is no law authorizing the withdrawal of these lands. It has, however, occurred to us that you might wish to make the withdrawal upon the same basis that you are withdrawing power sites. I send the papers to you for your action. Other Congressmen have repeatedly in the past and are now asking for similar withdrawals. So far as I know the policy of the department has always been not to make such withdrawals. I have directed the Land Office to hold the land in status until you can settle the matter yourself. Very respectfully, yours, Hon. RICHARD A. BALLINGER, LL. D., (Signed) FRANK PIERCE, First Assistant Secretary. Secretary of the Interior, Seattle, Wash. P. S. Since dictating the above, Congressman Taylor, of Colorado, has asked us to withdraw two sections of land for a picnic ground in western Colorado. |