MISCELLANEOUS FISHERIES AND WILDLIFE LEGISLATION-1965 Land Disposal-National Wildlife Refuge System TUESDAY, JULY 20, 1965 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION The subcommittee met at 10 a.m., in room 1310, Longworth Building, Hon. John D. Dingell (acting chairman of the subcommittee) presiding. Mr. DINGELL. The Subcommittee on Fisheries and Wildlife Conservation will come to order. This morning the Subcommittee on Fisheries and Wildlife Conservation will begin hearings on two bills introduced by me, H.R. 8807 and H.R. 8432, which have to do with the disposal of lands in the national wildlife refuge system. Early this year the Secretary of the Interior announced plans to close out or reduce in size several hundred thousand acres of lands in the national wildlife refuge system designed to save the Federal Government in fiscal year 1966 approximately $200,000. To the present occupant of the chair, this appears to be totally inconsistent with the wetlands acquisition program. On the one hand, we emphasize the extreme need for expansion of wildlife refuges and habitat in the face of industrial and residential pressures on land and increased fishing and hunting recreational use and on the other hand we are adopting an attitude of false economy in order to save a few dollars. The bills to be heard this morning would require the consent of the Migratory Bird Conservation Commission before any lands in the system could be disposed of. It is hoped that the testimony to be offered will be of great benefit to the committee in their consideration of this matter. Let the bills and the departmental reports appear in the record at this point. (The bills and agency reports referred to follow :) [H.R. 8807, 89th Cong., 1st sess.] A BILL To amend the Migratory Bird Conservation Act to provide that no land contained in the national wildlife refuge system shall be sold, transferred for any other use, or otherwise disposed of without the approval of the Migratory Bird Commission, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 2 of the Migratory Bird Con would require the payment into the migratory bird conservation fund, rather than into the land and water conservation fund, of the fair market value of surplus fish and wildlife lands. We are strongly opposed to this change in the fund act. We recommend against the enactment of H.R. 8807. The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the administration's program and that the Bureau of the Budget and the Department of Justice concur in the comments made herein on the doctrine of separation of powers as it applies to this bill. Sincerely yours, STANLEY A. CAIN, Assistant Secretary of the Interior. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington, D.C., July 19, 1965. Hon. HERBERT C. BONNER, Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. BONNER: Your committee has requested this Department's views and recommendations on H.R. 8432, a bill to amend the Migratory Bird Conservation Act with respect to the disposal of land and interests in land acquired pursuant to such act. In 1929 Congress enacted the Migratory Bird Conservation Act and gave to the Secretary of the Interior broad authority to acquire by purchase, lease, gift, or devise areas of lands and interests therein for use as inviolate sanctuaries for migratory birds. The act also provided that before the Secretary acquires any lands by purchase he must first obtain the approval of the Migratory Bird Conservation Commission which will fix the price at which these areas may be purchased. Approximately 1.4 million acres have been acquired pursuant to this act since 1929. Although the Migratory Bird Conservation Act does not authorize the disposition of any land acquired thereunder, the bill amends the act to prohibit the disposition of any such lands, presumably under other authority, without the prior approval of the Migratory Bird Conservation Commission. At the present time, lands acquired under the Migratory Bird Conservation Act may be disposed of only if they are surplus to program needs. In that event they may be conveyed to a State for fish and wildlife purposes under the act of May 19, 1948 (62 Stat. 240), as amended (16 U.S.C. 667b-667d), or they may be disposed of under the Federal Property and Administrative Services Act of 1949, as amended. The bill would in effect qualify such disposition authority by requiring prior Commission approval. The bill does not apply to fish and wildlife lands that are transferred pursuant to a cooperative agreement to a State for administration and management purposes because such lands are not surplus and the transfers are not dispositions. The bill is constitutionally objectionable because it contravenes the separation of powers doctrine. The Constitution specifically grants to the executive branch the power to execute all laws, which include, of course, the laws relating to the disposal of surplus property. This power cannot properly be shared with a commission which includes legislative and nongovernmental members. The President has expressed his views on this subject in his signing statement on the Water Resources Research Act of 1964 and in his recent statement withholding approval of a bill providing assistance to the flooded areas of the Northwest. Congress has the unquestioned authority to provide for the acquisition and disposition of real property of the United States. This is a power of Congress, however, and it does not extend to individual members, committees, or even one House. Congress could provide for the disposition of each parcel of surplus land by separate acts. We believe, however, that such an approach would be unduly burdensome to the Congress and impracticable. Congress has recognized this fact by enacting the general surplus property laws. We believe that the purposes of the Migratory Bird Conservation Act and other statutes relating to conservation and protection of fish and wildlife can best be accomplished if the Secretary is given flexibility in the administration of these programs. H.R. 8432 would deny this flexibility. Presumably, the latter limitation would be accomplished through the use of appropriated funds. The bill also prohibits the construction of any road within any of these areas unless (1) such construction is first approved by the Commission, and (2) the Secretary pays into the migratory bird conservation fund the fair market value of the right-of-way. The bill excepts from these requirements roads constructed solely to maintain and protect these areas. Payments covered into the migratory bird conservation fund by the Secretary can only be used to acquire lands for migratory bird refuges, even though the payments might be derived from lands not acquired or reserved for this purpose. At the present time, lands reserved from the public domain or acquired for fish and wildlife purposes and incorporated in the National Wildlife Refuge System may be disposed of only if they are surplus to program needs. In that event such lands may be conveyed to a State for fish and wildlife purposes under the act of May 19, 1948 (62 Stat. 240), as amended (16 U.S.C. 667b-667d). Similarly, lands acquired for such purposes and, under limited circumstances, lands reserved for such purposes from the public domain may also be disposed of under the Federal Property and Administrative Services Act of 1949, as amended. In addition, the act of June 14, 1926 (44 Stat. 741), as amended (43 U.S.C. 869-869-4), now authorizes the Secretary of the Interior upon application to dispose of public lands for recreation and other public purposes. This authority extends to public lands within the National Wildlife Refuge System, except those that are incorporated in wildlife refuges. We have construed the Fish and Wildlife Coordination Act, as amended (16 U.S.C. 661-666c), as authorizing the Secretary to enter into cooperative agree ments for various purposes, including the transfer of fish and wildlife lands to a State for administration and management purposes only. Section 10 of the Migratory Bird Conservation Act now prohibits certain activities in any area which is "set apart or reserved for the use of the Department of the Interior as a game refuge or as a preserve or reservation and breeding ground for native birds, under any law, proclamation, or Executive order" except under regulations of the Secretary. This section has been construed to authorize the Secretary to permit rights-of-way for various public purposes, such as roads, pipelines, and telephone lines, subject to such conditions as he deems necessary to protect the wildlife and wildlife habitat within these areas. In addition, title 23, United States Code, section 317 authorizes the transfer of lands or interests therein owned by the United States to a State highway department for Federal-aid highway purposes, if, in the case of fish and wildlife lands, the Secretary of the Interior finds that the transfer is not contrary to the public interest "or inconsistent with the purposes for which such land (s) ** have been reserved." * H.R. 8807 would in effect qualify the above disposition and transfer authorities by requiring the prior Commission approval. The bill is constitutionally objectionable because it contravenes the separation of powers doctrine. The Constitution specifically grants to the executive branch the power to execute all laws, which include, of course, the laws relating to the disposal and transfer of fish and wildlife real property whether surplus or not. This power cannot properly be shared with a commission which includes legislative and nongovernmental members. The President has expressed his views on this subject in his signing statement on the Water Resources Research Act of 1964 and in his recent statement withholding approval of a bill providing assistance to the flooded areas of the Northwest. Congress has the unquestioned authority to provide for the acquisition, disposition, and transfer of real property of the United States. This is a power of Congress, however, and it does not extend to individual Members, committees, or even one House. Congress could provide for the disposition and transfer of each parcel of surplus land by separate acts. We believe, however, that such an approach would be unduly burdensome to the Congress and impracticable. Congress has recognized this fact by enacting the general surplus property laws. We believe that the purposes of the Migratory Bird Conservation Act and other statutes relating to the conservation and protection of fish and wildlife can best be accomplished if the Secretary of the Interior is given flexibility in the administration of this program. H.R. 8807 drastically and unnecessarily curtails this flexibility. We think this is undesirable. It should also be pointed out that H.R. 8807 would change the provisions of section 2 of the Land and Water Conservation Fund Act of 1965, insofar as it would require the payment into the migratory bird conservation fund, rather than into the land and water conservation fund, of the fair market value of surplus fish and wildlife lands. We are strongly opposed to this change in the fund act. We recommend against the enactment of H.R. 8807. The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the administration's program and that the Bureau of the Budget and the Department of Justice concur in the comments made herein on the doctrine of separation of powers as it applies to this bill. Sincerely yours, STANLEY A. CAIN, Assistant Secretary of the Interior. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington, D.C., July 19, 1965. Hon. HERBERT C. BONNER, Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. BONNER: Your committee has requested this Department's views and recommendations on H.R. 8432, a bill to amend the Migratory Bird Conservation Act with respect to the disposal of land and interests in land acquired pursuant to such act. In 1929 Congress enacted the Migratory Bird Conservation Act and gave to the Secretary of the Interior broad authority to acquire by purchase, lease, gift, or devise areas of lands and interests therein for use as inviolate sanctuaries for migratory birds. The act also provided that before the Secretary acquires any lands by purchase he must first obtain the approval of the Migratory Bird Conservation Commission which will fix the price at which these areas may be purchased. Approximately 1.4 million acres have been acquired pursuant to this act since 1929. Although the Migratory Bird Conservation Act does not authorize the disposition of any land acquired thereunder, the bill amends the act to prohibit the disposition of any such lands, presumably under other authority, without the prior approval of the Migratory Bird Conservation Commission. At the present time, lands acquired under the Migratory Bird Conservation Act may be disposed of only if they are surplus to program needs. In that event they may be conveyed to a State for fish and wildlife purposes under the act of May 19, 1948 (62 Stat. 240), as amended (16 U.S.C. 667b-667d), or they may be disposed of under the Federal Property and Administrative Services Act of 1949, as amended. The bill would in effect qualify such disposition authority by requiring prior Commission approval. The bill does not apply to fish and wildlife lands that are transferred pursuant to a cooperative agreement to a State for administration and management purposes because such lands are not surplus and the transfers are not dispositions. The bill is constitutionally objectionable because it contravenes the separation of powers doctrine. The Constitution specifically grants to the executive branch the power to execute all laws, which include, of course, the laws relating to the disposal of surplus property. This power cannot properly be shared with a commission which includes legislative and nongovernmental members. The President has expressed his views on this subject in his signing statement on the Water Resources Research Act of 1964 and in his recent statement withholding approval of a bill providing assistance to the flooded areas of the Northwest. Congress has the unquestioned authority to provide for the acquisition and disposition of real property of the United States. This is a power of Congress, however, and it does not extend to individual members, committees, or even one House. Congress could provide for the disposition of each parcel of surplus land by separate acts. We believe, however, that such an approach would be unduly burdensome to the Congress and impracticable. Congress has recognized this fact by enacting the general surplus property laws. We believe that the purposes of the Migratory Bird Conservation Act and other statutes relating to conservation and protection of fish and wildlife can best be accomplished if the Secretary is given flexibility in the administration of these programs. H.R. 8432 would deny this flexibility. In managing lands acquired for fish and wildlife purposes, including those acquired pursuant to the Migratory Bird Conservation Act, it has become increasingly apparent that some lands which are still valuable for these purposes can be more efficiently and economically managed for such purposes by the States. There are at least three situations where this may occur. First, in some cases the land areas are too small and cannot be managed by the Department in a manner that will adequately develop their program potential. Second, in some cases the lands are in close proximity to State lands which are being managed for identical or similar purposes. We should be able to take advantage of this proximity and thus insure more economical and efficient management. Third, in some situations changes brought about by nature, or man, or both, have resulted in the lands having more local, rather than national significance. We recommend against the enactment of H.R. 8432. The Bureau of the Budget has advised that there is no objection to the presentation of this report from the standpoint of the administration's program and that the Bureau of the Budget and the Department of Justice concur in the comments made herein on the doctrine of separation of powers as it applies to this bill. Sincerely yours, STANLEY A. CAIN, Assistant Secretary of the Interior. Mr. DINGELL. The Chair notes that Dr. Stanley A. Cain, Assistant Secretary for Fish and Wildlife and Parks is testifying before the Senate committee and will not be here for an hour or so. In order to expedite the business of the committee this morning, the chair will recognize Mr. Charles Callison, assistant to the president, National Audubon Society. STATEMENT OF CHARLES CALLISON, ASSISTANT TO THE PRESIDENT, NATIONAL AUDUBON SOCIETY Mr. CALLISON. Thank you, Mr. Chairman. I wish to apologize to you and the committee for not having my statement mimeographed for distribution in advance. As you know, there has been a rash-a rash we are happy aboutof hearings on conservation bills. I was looking forward to this one being tomorrow. Somehow I got mixed up on my dates. I am delighted to be here because the subject of the pending legislation is extremely important. When Congress passed the Migratory Bird Conservation Act and established the Migratory Bird Commission, I am sure it never occurred to the sponsors and supporters of that legislation that one day some of the national wildlife refuges might be given away lightly by unilateral executive action. Nor could they have foreseen the growth of the land grabbing octopus that exists in today's highway program, an octopus that gets its power from billions of dollars that are poured into the Treasury and into the State treasuries by taxes on gasoline and other taxes on motor vehicle users. Had the sponsors foreseen these future dangers. I am sure that the safeguards now proposed in H.R. 8807 would have been written into the original act because such safeguards belong by all logic in the law. A Commission to represent the interested executive departments, the States that are involved in the acquisition of lands for the refuges, and the Congress of the United States, was set up to review the proposed acquisitions which have made up the national wildlife refuge system. |