Dec. 1, 2023
Vanessa A. Countryman, Secretary Securities and Exchange Commission 100 F Street, NE Washington, DC 20549-1090 RE: Comment on File No. SR-NYSE-2023-09 Ms. Countryman, The proposed SEC rule ignores and offends a variety of existing public lands and natural resources laws that were duly passed by Congress according to the U.S. Constitution, Article 1 Section 1, and which currently remain in effect. The proposed rule fails to mention or consider any existing federal, State or local land, environmental, and natural resource management laws or policies. As just one example of numerous such laws, the SEC has chosen to ignore 43 USC §1701, also known as The Federal Lands Policy and Management Act or FLPMA. Section 102(a) states unambiguously that it is the policy of the United States that the public lands be managed in a manner which recognizes the Nation’s need for domestic sources of minerals, food, timber, and fiber from the public lands including implementation of the Mining and Minerals Policy Act of 1970 (84 Stat. 1876, 30 U.S.C. 21a) as it pertains to the public lands. The SEC rule proposes that public lands be withdrawn from such purposes. It is incompatible with this mandate from Congress. Congress never intended “conservation” to be recognized as a separate land “use” on any level, much less “on par” with the principal or major uses of the public lands. In fact, Congress expressly prohibited it. 43 U.S.C. §1702(l) of FLPMA unambiguously states, “The term "principal or major uses" includes, and is limited to, domestic livestock grazing, fish and wildlife development and utilization, mineral exploration and production, rights-of-way, outdoor recreation, and timber production.” (emphasis added) Section Sec. 204 [43 U.S.C. 1714] states that the Interior Secretary is authorized to make, modify, extend, or revoke withdrawals but only in accordance with the provisions and limitations of this section. The Interior Secretary may delegate this withdrawal authority only to individuals in the Office of the Secretary who have been appointed by the President, by and with the advice and consent of the Senate. The proposed SEC rule violates this requirement by conferring extra-jurisdictional authority outside of the Department of the Interior without the advice or consent of the Senate. Sec. 301 [43 U.S.C. 1731] Section 3 states that, subject to the discretion granted to [the Secretary] by Reorganization Plan Numbered 3 of 1950 [15 Fed. Reg. 3174 (May 29, 1950), 64 Stat. 1262, 43 U.S.C. 1451 note], the [Interior] Secretary shall carry out through the Bureau [of Land Management] ALL functions, powers, and duties vested in [him or her] and relating to the administration of laws which, on October 21, 1976, were carried out by [the Secretary] through the Bureau of Land Management established by section 403 of Reorganization Plan Numbered 3 of 1946. The Bureau shall administer such laws according to the provisions thereof existing as of October 21, 1976, as modified by the provisions of this Act or by subsequent law. Nowhere does this law mention the SEC. In proposing to turn management authority of federal lands over to the NYSE, the SEC and unelected owners of opaque private corporations called Natural Asset Companies, the SEC is unconstitutionally and illegally overstepping its jurisdiction. I could go on and on, showing how the proposed rule offends a variety of federal land management and natural resource laws including the National Environmental Policy Act, the Multiple Use and Sustained Yields Act, the Taylor Grazing Act, the Administrative Procedure Act, but the SEC opened this comment period for too short a period of time, did so in a very sneaky manner, posting a proposed rule at regulations.gov as an easily overlooked “notice” rather than as a “proposed rule” that would have been noticed by more interested citizens of the USA. In this apparently deliberate avoidance of public comment on the rule, the SEC has clearly demonstrated disrespect for the laws and Constitution of the USA. The rule will face an uphill battle in court. Congress never authorized the SEC as a land or natural resources regulatory agency. Under the “major questions doctrine,” there are “extraordinary cases” in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. The Supreme Court of the United States considered the “major questions doctrine” in West Virginia v. EPA No. 20-1530, 597 US _ (2022) . The Court opined, “Extraordinary grants of regulatory authority are rarely accomplished through “modest words,” “vague terms,” or “subtle device[s].” Whitman, 531 U. S., at 468. Nor does Congress typically use oblique or elliptical language to empower an agency to make a “radical or fundamental change” to a statutory scheme. MCI Telecommunications Corp. v American Telephone & Telegraph Co., 512 U. S. 218, 229(1994). Agencies have only those powers given to them by Congress, and “enabling legislation” is generally not an “open book to which the agency [may]add pages and change the plot line.” E. Gellhorn & P. Verkuil, Controlling ChevronBased Delegations, 20 Cardozo L. Rev. 989, 1011 (1999). We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies.” United States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc). Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. Utility Air, 573 U. S., at 324. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims. Ibid.”' In the proposed rule the SEC must point to “clear congressional authorization” for the authority it claims. It cannot do so. This proposed rule and its method of promulgation are not merely unethical. The proposed rule is patently illegal and unconstitutional, and must be immediately withdrawn. Sincerely, Cindy Coping