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Show LEGAL ASPECTS OF MINERAL RESOURCES EXPLOITATION 737 Since the Pickett Act was not directly involved the issue was confined to the validity of the 1909 withdrawal. After the case was twice argued, Justice Lamar delivered the opinion of the majority upholding the order. Justice McReynolds, who had only recently come from the office of the Attorney General, did not participate. There was a vigorous dissenting opinion by Justice Day. This was concurred in by Justices Van Devanter and McKenna, whose votes came as no surprise since they were from Wyoming and California, the only two states affected by the withdrawal. The majority opinion was reluctant to attack the real issue, for it opened with the disclaimer: "We need not consider whether, as an original question, the President could have withdrawn from private acquisition what Congress had made free and open to occupation and purchase."276 It then noted that prior to 1910 at least 252 Executive orders making reservations for various purposes had been issued without prior statutory authorization from Congress. In all these Congress had simply acquiesced, and since "government is a practical affair intended for practical men,"277 the Court felt that Congress had impliedly consented to the practice.278 The dissent pointed out that previous decisions sustaining specific withdrawals had involved situations in which Congress either had already approved a policy of dedicating the specific land for the purpose for which the withdrawal was made or had adopted conflicting policies which necessitated emergency administrative action to 176 236 U.S. at 469. ¦" Id. at 472. 278 The Midwest case was similarly explained in Sioux Tribe of Indians v. United States, 316 U.S. 317, 326 (1942) . Judicial hostility to Executive aggression by no means ended with the Midwest case, however. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 79, (1952). Mr. Justice Frankfurter, concurring, did not feel that the Midwest case was persuasive on the issue presented in the Steel Seizure Case. clarify the ambiguity. The two opinions actually reflect a basic disagreement as to the role of the Chief Executive. It was clear from the terms of the Pickett Act that it had no retroactive effect279 and could not, therefore, be regarded as ratifying the 1909 withdrawal. Still, it is likely that the act did influence the decision of the Court to some indeterminable extent. There seemed to be no question but that the Pickett Act itself was valid. In the Midwest Oil case, the Court noted that the majority of the Senate Committee on Public Lands felt that the Pickett bill "operated to restrict the greater power already possessed"280 by the President. The question thus raised was not, however, before the Court and has not been answered to the present time. On the one hand, it has been argued that the act superseded the power which the President was held to have in the Midwest decision (the "implied consent" power). If it was an all-inclusive codification of the authority delegated to the President in this area, any withdrawal would necessarily have to be in accordance with the terms of the 1910 statute. On the other hand, if it merely supplemented the right which already existed, withdrawals could be made either under the act or under the implied powers of the President. The choice of the type of withdrawal would determine whether the land withdrawn remained open to location for metalliferous minerals. In 1941281 Attorney General Robert H. Jackson ruled that there were, indeed, two legal bases for withdrawals: the implied power and 279 A proviso in sec. 2 states: "That this and the preceding section shall not be construed as a recognition, abridgment, or enlargement of any asserted rights or claims initiated upon any oil or gas bearing lands after any withdrawal of such lands made prior to June 25, 1910." 36 Stat. 847 (1910). 280 236 U.S. at 482-83. 281 Withdrawal of Public Lands, 40 Ops. Att'y. Gen. 73 (1941). |