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Show "withdrawals and reservations" of widely differing categories; (2) "secondary" executive withdrawals within areas already set aside for particular uses by Congress or the Executive; (3) special purpose restricted use "designations" within withdrawn areas; and (4) Secretarial "classifications" of the unappropriated public domain lands for either disposal or retention and, for the lands proposed for retention, various provisions for limitation or exclusion of the operation of certain public land laws. We are convinced that this complex and confusing array of planning tools must be replaced with a simpler system. As an integral part of the Commission's recommended land use planning and zoning system, the Forest Service and the BLM will need an effective classification authority. The kind of temporary authority provided the Secretary of the Interior in the Classification and Multiple Use Act of 1964 seems most appropriate for this purpose. To date it has been used primarily in a defensive manner to segregate large blocks of land from the operation of specified public land laws, usually without adequate information and planning, as we have pointed out. We believe it can and should be used in a more positive fashion, after adequate planning, to classify lands for disposal or retention and to designate retained lands for appropriate dominant uses, in the manner of present national forest zoning. In no event should it be used in the way that withdrawal authority has been traditionally employed by the Executive. Since the 1964 Act applies only to BLM lands, the Forest Service must prevail upon the Secretary of the Interior to make a withdrawal of specified national forest lands when it wants to restrict the operation of any public land laws with respect to which it lacks final decisional authority. Our recommendation would give the administrators of both classes of multiple use lands similar authority. It also would provide a broader authority than is available under existing law to "segregate" lands from the operation of the public land laws. The Pickett Act23 does not authorize the use of temporary withdrawals to preclude the operation of the mining law. Under the Taylor Grazing Act21 and the blanket withdrawals made in 1934 and 1935 to implement it, the operation of all of the land laws, except the mining law, is suspended unless the Secretary "classifies" the requested land as suitable for the use applied for. The temporary 1964 Act,25 however, provides that the notice of a proposed classification will segregate the subject lands from all forms of disposal except to the extent it "specifies that the land shall remain open for one or more of such forms of disposal." The actual 23 n. 2, supra. 24 n. 3, supra. 25 n. 5, supra. 54 classification, when made, obviously operates with like segregative effect. Since the act provides that the segregative effect applies to all public land laws, including the mining law, it is broader than the authority conferred on the Secretary in both the Pickett and Taylor Acts in 1910 and 1934. Under the planning system we recommend, executive withdrawals would play a very limited role. If our system is properly implemented, particularly its public participation aspects, arguments would be shifted from the fruitless controversy over whether the Secretary possesses legal authority to suspend the operation of certain laws to discussions on the merits of particular planning actions. Future Withdrawals Policy Recommendation 8: Large scale limited or single use withdrawals of a permanent or indefinite term should be accomplished only by act of Congress. All other withdrawal authority should be expressly delegated with statutory guidelines to insure proper justification for proposed withdrawals, provide for public participation in their consideration, and establish criteria for Executive action. The withdrawal process involves a complex interrelationship between the legislative and executive branches of the Government as discussed earlier in this chapter. Under the Constitution Congress is given the exclusive authority for the disposition and regulation of Federal properties,26 including the public lands. As indicated earlier, there are conflicting views on the limit of the Executive authority; Congress has delegated some of its authority; and Congress has exercised the withdrawal authority directly in many instances. We think it essential for Congress to specify clearly those kinds of withdrawals which should require legislative action and those which should be made by the Executive. The Commission recommends that large scale withdrawals and reservations for the purpose of establishing or enlarging any of the following should be reserved to congressional action: national parks, national monuments, national historic sites, national seashores, national recreation areas and other units of the National Park System looking toward permanent use, national forests, national riverways and scenic rivers, national trails, units of the wilderness system, other areas set aside for preservation or protection of natural phenomena or for scientific purposes, units of the national wildlife refuge and game range system, other areas set aside for protection of birds or animals, and reservations for defense purposes. We recognize the need for some continuing with- 26 U.S. Const., Art. IV, § 3. |