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Show Objectives Unrelated to Public Land Values Recommendation 98: Whenever the Federal Government utilizes its position as landowner to accomplish, indirectly, public policy objectives unrelated to protection or development of the public lands, the purpose to be achieved and the authority therefor should be provided expressly by statute. One of the most controversial executive actions involving the imposition of conditions on the granting of public land privileges reaching beyond public land uses and values was the issuance of regulations in 1963 by the Secretaries of Interior and Agriculture providing governing rights-of-way for electric facilities across public lands administered by those agencies.20 Under these regulations, grants of rights-of-way for a facility to generate electricity, or to transmit or distribute electric power of 33 or more kilo volts, are authorized only if the Secretary of the Interior or Agriculture determines that the proposed structure will not conflict with the "power-marketing program of the United States," or where plans for it can be modified to eliminate such conflict. The Secretaries also reserve the right to determine, or to invoke arbitration to determine, whether the applicant's transmission or other facilities have "surplus capacity" {i.e., transmission capacity in excess of that needed by the grantee for his operations). The regulations provide that the Government may use such surplus capacity or increase the capacity of the facility at its expense to create surplus capacity to transmit federally generated electric power to statutory preference customers, other than those receiving service from the grantee on the date he applied for the grant. These regulations are not based on any specific statutory language other than the general authority for granting easements and rights-of-way across public lands for the transmission of electrical energy found in the acts of February 15, 1901, and March 4, 1911.21 There is no provision for reciprocal wheeling by the Federal Government, and application of these regulations may be waived by the Department of the Interior where they are superseded by a specific contract between the utility and the power marketing agency. Another example of the use of public land law authority to achieve unrelated program objectives occurred in 1967. The Secretary of the Interior was able to block the proposed construction of a high-voltage powerline near the Antietam battlefield be- 20 See 43 C.F.R. 2234.4-1 (c) (5) (1969). 21 43 U.S.C. §§ 959, 961 (1964). cause the Potomac Edison Company required his permission for the line to cross the Chesapeake and Ohio Canal National Monument, some distance from the battlefield. He would have been unable to act except for the accident that the line would be required to cross Federal property. In this case the objective was not merely to remove the powerline from an area near the battlefield, but to eliminate the line, at substantial additional cost to the company, from the envisioned Potomac River National Landscape, which has not been approved by Congress. The Secretary's action did give the State of Maryland time to amend its law and provide for adequate consideration of esthetic values in such situations. We take no position on the merits of the objectives in each of these actions. However, we are concerned that they were undertaken without clear guidelines or direction from Congress. Every constitutional tool available to the Federal Government should be used to accomplish public policy goals, but the decision to utilize indirect approaches to promote such objectives should be made by Congress. Authority to impose conditions unrelated to public land values should be expressly provided by statute where appropriate. This would remove present uncertainty and controversy and promote sound planning and development. In our chapter on Public Land Policy and the Environment we point out how useful and necessary this tool is. Administration Recommendation 99: While control and administration of occupancy uses should remain with the agencies managing the lands, assistance should be obtained from agencies having technical competence in connection with specific programs. The Commission considered placing the control over the granting of a broad class of public land occupancy uses in a single agency or in a number of agencies that have expertise in those particular uses. Such uses would include rights-of-way for transmission lines, pipelines, highways, sites for radio and television transmission facilities, airports, and perhaps urban or community uses, but would not necessarily include such privileges as individual vacation homes, ski slopes or other recreation sites, and individual industrial or commercial sites that are not located in urban communities. The Commission rejected the idea because it believed that many of the occupancy uses are closely related to, or have considerable impact on, other resource uses which must be carefully considered in the decisions of the responsible land management 229 |