Withdrawal or Reservation of Public Lands
The federal public land statute provides that it is the policy of the U.S. that the Congress exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes[i]. Further, Congress may delineate the extent to which the Executive may withdraw lands without legislative action.
A public authority may withdrawn public lands from sale or settlement and appropriate to specific public uses[ii]. An executive order withdrawing public lands from appropriation is valid[iii]. The withdrawal could be accomplished in any way that Congress sees fit, with or without notice, at least prior to the time that private rights had vested[iv].
The term withdrawal means withholding an area of federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws[v].
Withdrawal maintains other public values in the area or reserves the area for a particular public purpose or program. Withdrawal also occurs by the transfer of jurisdiction over an area of federal land, other than property governed by the Federal Property and Administrative Services Act, from one department, bureau, or agency to another department, bureau, or agency[vi].
Pursuant to 43 USCS § 945, patents for lands west of the hundredth meridian must reserve a right of way for ditches or canals constructed by authority of the U.S.
The word reservation as applied to a description of land has a definite, specific meaning. It is defined as a tract of public land reserved for some special use, like schools, forests, or for the use of Indians.
In public land laws of the U.S., a reservation is a tract of land, more or less considerable in extent, which is by public authority withdrawn from sale or settlement and appropriated to specific public uses such as parks, military posts, and Indian lands[vii].
Pursuant to 43 USCS § 1714 (a), the Secretary of the Interior is authorized to make, modify, extend, or revoke withdrawals. Also, s/he may delegate the withdrawal authority to persons in the Office of the Secretary who have been appointed by the President, by and with the advice and consent of the Senate[viii].
However, the Secretary of the Interior is not authorized to make, modify, or revoke any withdrawal created by an act of Congress[ix].
In Tulare County v. Bush, 185 F. Supp. 2d 18 (D.D.C. 2001), the court held that a Presidential proclamation designating a national forest as a national monument pursuant to the Antiquities Act does not withdraw the land from the national forest system and does not violate the National Forest Management Act.
In the case of lands under the administration of any department or agency other than the Department of the Interior, the Secretary of the Interior may make, modify, and revoke withdrawals only with the consent of the head of the department or agency concerned, except in the case of emergency withdrawals[x].
Within thirty days of receipt of an application for withdrawal and whenever the Secretary of the Interior proposes a withdrawal on his/her own motion, the Secretary publishes a notice in the Federal Register stating that the application has been submitted for filing or the proposal has been made and the extent to which the land is to be segregated while the application is being considered by the Secretary[xi].
Upon publication of such notice, the land should be segregated from the operation of the public land laws to the extent specified in the notice.
The segregative effect of the application terminates upon[xii]:
- rejection of the application by the Secretary,
- withdrawal of lands by the Secretary, or
- the expiration of two years from the date of the notice.
Except for emergency withdrawals, all new withdrawals made by the Secretary of the Interior must be promulgated after an opportunity for a public hearing[xiii].
When an emergency situation requires that extraordinary measures be taken to preserve values that would otherwise be lost, the Secretary of the Interior must immediately make a withdrawal and file notice of it with House and Senate committees[xiv].
[i] 43 USCS § 1701 (a) (4).
[ii] State v. Gibbs, 234 N.C. 259, 260 (N.C. 1951).
[iii] Mason v. United States, 260 U.S. 545 (U.S. 1923).
[iv] Lutzenhiser v. Udall, 432 F.2d 328, 331 (9th Cir. Mont. 1970).
[v] 43 USCS § 1702 (j).
[vii] State v. Gibbs, 234 N.C. 259, 260 (N.C. 1951).
[viii] 43 USCS § 1714 (a).
[ix] 43 USCS § 1714 (j).
[x] 43 USCS § 1714 (i).
[xi] 43 USCS § 1714 (b) (1).
[xiii] 43 USCS § 1714 (h).
[xiv] 43 USCS § 1714 (e).