Arizona Monuments The Controversy Over President Clinton s New Designations Under the Antiquities Act by James Peck Remnants of a large mining operation boasts of a rich human history. Agua Fria National Monument, Pueblo la Plata, mesa meets large crevice. The Antiquities Act of 1906 provides the President of the United States the power to unilaterally protect public lands, a power constitutionally given to Congress. President Clinton s recent designation of the Grand Canyon- Parashant and Agua Fria National Monuments in Arizona illustrate the extent of that power and the potential public controversy it entails. This article reviews the background to the creation of the new monuments and takes a look at the President s authority under the Antiquities Act within the general framework of public lands statutes. 10 Arizona Attorney July 2000
Agua Fria National Monument, canyon view. Grand Canyon Parashant. Bordering the Grand Canyon, the monument offers spectacular views. Background Beginning in December 1999, the general public was introduced to a political disagreement over two areas of federal lands within Arizona: the Shivwits Plateau to the north and west of the Grand Canyon, and the Perry Mesa region along the Agua Fria River roughly 40 miles north of Phoenix. The Shivwits Plateau contains geologically significant exposures of rock formations and fossil beds, important watersheds for the Colorado River and the Grand Canyon, archeological sites, historical resources, and biological riches at the boundary of two contrasting ecosystem regions. The Perry Mesa region contains a network of late-prehistoric pueblos, petroglyphs, and other ruins of significant archeological interest. Secretary of the Interior Bruce Babbitt brought media focus to these areas on December 14, 1999, when he held a press briefing announcing his recommendation to President Clinton that they be protected as National Monuments under the Antiquities Act. As Secretary Babbitt explained, I think it s a statement that what these lands are is sufficiently important that we ought to commit to keeping them intact in perpetuity. 1 The political fault lines soon began to quake. Within days of Secretary Babbitt s press conference, Arizona Governor Jane Hull denounced the proposal as lacking input from affected Arizonans and for the potential harm it could have on the state s economy. Senator John McCain voiced his opinion that Babbitt was making a decision that should be made by the state and Congress, and Senator Jon Kyl claimed the proposal amounted to government by decree. 2 The Arizona Republic published an editorial opinion in favor of Secretary Babbitt s recommendation and criticized the Governor and congressional delegates for over-reacting. 3 A poll sponsored by environmental groups indicated that three-quarters of those polled favored the proposal. 4 Politics forced the Shivwits Plateau proposal. As a native of northern Arizona and avid hiker, Secretary Babbitt is personally familiar with the Shivwits Plateau. In late 1998, the Department of the Interior (DOI) reviewed a study from the 1970s which analyzed the need for protecting the Shivwits Plateau and its canyons as an extension of the Grand Canyon. As a consequence Secretary Babbitt withdrew the area from entry under the public lands laws and asked Congress to take a look at protecting the region. In August 1999, Representative Bob Stump and Senator Kyl introduced bills in Congress to create a National Conservation Area on the Shivwits Plateau. 5 But the Congressional bills were a different proposal from what Secretary Babbitt had in mind. The proposed National Conservation Area did not provide the protective management standards envisioned by Secretary Babbitt. Instead, the bills called for a management plan based on recommendations from local interests, established a mineral assessment program, prohibited land withdrawals during the assessment, and allowed for mining in the conservation area after the assessment. Secretary Babbitt was not pleased with the proposed (Continued on page 39) July 2000 Arizona Attorney 11
Arizona Monuments (Continued from page 11) legislation. In testimony before the House Resources Subcommittee he warned that he would recommend that the President veto the bill if it passed. 6 In preparation for executive action, the DOI began holding public meetings to receive comment on more extensive protections of the Shivwits Plateau. Congress had less involvement in the Perry Mesa region. The area region was segregated from location and entry under the public land laws on August 6, 1999 to allow for up to two years to review the need for protection of the area. A Science and Resources Forum and three public open houses were held to solicit comments over perceived threats and the need for special resource protections, from which the DOI and Secretary Babbitt developed the recommendation for protection of Perry Mesa as a National Monument. The National Monument Designations President Clinton acted on Secretary Babbitt s recommendations at a proclomation ceremony just outside the Grand Canyon on January 11, 2000, the 92nd anniversary of Teddy Roosevelt s creation of the Grand Canyon National Monument. Two new National Monuments were created: the Grand Canyon-Parashant on the Shivwits Plateau and Agua Fria in the Perry Mesa region. 7 The Grand Canyon-Parashant National Monument encompasses more than one million acres of canyons and buttes northwest of the Grand Canyon. The Agua Fria National Monument encompasses a 71,000-acre archeological site east of Interstate 17 between Black Canyon City and Cordes Junction, and includes Black Mesa, Perry Mesa and the canyon of the Agua Fria River, (see map). The stated purpose of the proclamations is to conserve a variety of resources associated with the new monuments. To protect these resources, off-road use of motorized and mechanized vehicles is now prohibited within the monuments. All lands within the monuments have been withdrawn from entry or other dispositions under the public lands laws, most notably the mining laws. Timber sales in the Grand Canyon- Parashant are limited to authorized scientific ecological restoration projects. Existing rights, recreational uses such as hiking and fishing, and the management of grazing allotments are unaffected by the National Monument designations. 8 As President Clinton explained, [t]his is not about locking lands up; it is about freeing them up, from the pressures of development and the threat of sprawl, for all Americans for all time. 9 The controversy intensified in the wake of the presidential proclamations. Congressman Bob Stump issued a press release on the same day condemning the proclamations for failing to provide an open, public process and for showing contempt for a balance between environmental concerns and other uses of the land. 10 Governor Hull and Arizona s seven Republican congressional delegates wrote the president a strongly worded letter expressing their desire for a legislative approach to protecting these lands. 11 A concurrent resolution surfaced in the Arizona legislature denouncing the President s actions as an abuse of the Antiquities Act and requesting that Congress take action to prevent future designation of national monuments without public participation. 12 Congressman Stump summed up the indignation: It is irresponsible that this Administration has ignored the public process and has purposefully excluded Congress in a deliberate attempt to put politics before the wishes of the public. 13 The controversy raises legal and policy issues related to federalism, the separation of powers, and the system of checks and balances within our federal government. Does the executive branch have the authority to unilaterally protect public lands, or should such decisions be made exclusively by administrative planning or legislation? As a legal matter, the President s actions can be reviewed under legal precedent for the Antiquities Act. As a policy matter, the question is an open issue, as support for both positions can be found in our July 2000 Arizona Attorney 39
nation s public lands laws. Overview of Public Lands Laws The Constitution gives Congress plenary power over federal public lands. 14 As the nation expanded in the years after the ratification of the Constitution, the federal government obtained sovereignty and ownership of vast amounts of land in the western states. To manage these new territories Congress passed a number of laws primarily intended to dispose of the public lands through homesteading laws, mining laws, and railroad grants. 15 These policies promoted the westward expansion as pioneers and settlers moved west in hopes of a better life in the rich, fertile frontier of the burgeoning nation. The laws regarding public land management during these formative years came to be known collectively as the public lands laws, a phrase still used today to refer to the rights of private entities to access and use the public domain. As the frontier began to close, public policy shifted toward conservation of the remaining federal lands. The shift in policy is reflected in the increasing number of reservations of public lands created for specific purposes. Congress set the stage in 1872 with the establishment of a two-million-acre public park in Wyoming, 16 now Yellowstone National Park. The Forest Service Organic Act of 1897 established an agency to manage reserves of forest lands in a scientific manner. 17 Congress delegated authority to the President to create National Monuments to protect objects of historic or scientific interest with the passage of the Antiquities Act of 1906. 18 In 1915, the Supreme Court recognized an implied authority in the executive branch to withdraw specific lands from the public lands laws due to Congressional acquiescence to such withdrawals. 19 The National Park Service Organic Act of 1916 20 established an administrative system for managing the increasing number of national parks. The final closing of the frontier came in 1934 with the passage of the Taylor Grazing Act, 21 which gave the DOI authority to classify and limit certain types of entry upon unreserved public lands. A second wave of public lands laws were enacted in the 1960s and 1970s with the development of modern principles of land use planning. The new approach to public lands management was first tested in the National Forests with the Passage of the Multiple-Use, Sustained-Yield Act of 1960 (MUSYA). 22 The MUSYA directed the Forest Service to manage the renewable resources of the National Forests to best meet the needs of the American people in a sustainable manner. A similar policy was adopted for unreserved public lands with the passage of the Federal Land Policy and Management Act of 1976 (FLPMA), 23 which established a multiple-use and sustained-yield planning program for these lands. 40 Arizona Attorney July 2000
The FLPMA took up the thorny issue of executive withdrawals of public lands. New statutory withdrawal procedures were imposed to standardize the process by which the executive branch made withdrawals of public lands in an attempt to prevent administrative withdrawal practices that were perceived as not always in the best interest of all the people. 24 FLPMA revoked most statutory authority to make land withdrawals as well as the implied authority of the President to make land withdrawals. 25 In their place, a new statutory withdrawal authority was delegated not to the President, but directly to the DOI for an enumerated list of purposes under a specific set of procedural requirements. Under FLPMA, DOI is authorized to make small, temporary withdrawals of less than 5,000 acres on a discretionary basis. Withdrawals of lands over 5,000 acres require DOI to provide Congress with an information-intensive notification to facilitate Congressional review. Immediate withdrawals are authorized in emergency situations to preserve resource values that might otherwise be jeopardized. 26 The Antiquities Act Executive withdrawal authority under the Antiquities Act was not addressed in FLPMA. This conspicuous silence left the President with statutory authorization to make certain types of land withdrawals with no procedural requirements, durational limits, or provision for Congressional notification and review. The types of reservations authorized under the Antiquities Act allow for protection of historical landmarks and structures and other objects of historic or scientific interest. The amount of land reserved is restricted to the smallest area compatible with proper care and management of the objects to be protected. 27 The use of the Antiquities Act shows considerable expansion from the original intent of the law. It is generally recognized that the original legislative intent was to protect historical and prehistorical archeological sites. The understanding of the 59th Congress was that large permanent withdrawals would be made legislatively as National Parks, rather than executively as National Monuments, under the Antiquities Act. 28 However the statutory inclusion of other objects of historic or scientific interest left plenty of room for expansive interpretation. Shortly after its enactment, the Antiquities Act was used to protect extensive areas containing objects of a geological nature that were considered to be of scientific interest. In 1908, President Roosevelt used the Act to withdraw more than one million acres with the designation of the Grand Canyon National Monument as an object of unusual scientific interest, being the greatest eroded canyon within the United States... 29 In Cameron v. United States, the Supreme Court upheld the National Monu- July 2000 Arizona Attorney 41
ment designation, agreeing with the President that the Grand Canyon was an object of scientific interest under the terms of the Antiquities Act. 30 In Wyoming v. Franke, a federal district court gave strong deference to the judgment of the President in determining that the objects could be protected and how much land is the smallest land area necessary for the designation of the Jackson Hole National Monument. The Court refrained from limiting expansive executive interpretations by stating that the burden is on the Congress to pass such remedial legislation as may obviate any injustice... 31 Under the Cameron and Franke opinions, there are few public lands that would not be candidates for National Monuments and no basis for judicially limiting their size. 32 President Clinton s Use of the Antiquities Act President Clinton s proclamations creating the new National Monuments in Arizona fit within the broad judicial constructions of the Antiquities Act. Both proclamations list extensive factual findings that sufficiently establish a historical or scientific object of interest, and both are based on an executive determination that the designated lands are the smallest area practicable for the proper care and management of the monument. But are the designations consistent with the spirit of the Antiquities Act and other public lands management law and policy? The is a matter of perspective. The Antiquities Act can be viewed as a powerful land conservation tool that empowers the President to unilaterally protect lands that are threatened as a result of congressional inaction or from proposed congressional actions. The Act provides a mechanism for decisive executive action, yet the public is protected from abuse by Congress which can legislatively alter or revoke any national monument designation. This view is justified by the historical use of the Antiquities Act by several Presidents, the expansive interpretation of the Act by the courts, and the implied Congressional approval of such use of the Act by the absence of restricting legislation. There are a few examples justifying such an interpretation. While Congress considered legislation to conserve extensive amounts of federal lands in Alaska in 1978, private claims upon the lands appeared imminent upon the expiration of the Alaska Native Claims Settlement Act. President Carter designated 56 million acres of these lands as National Monuments, which provided protections until the Alaska National Interest Lands Conservation Act of 1980 comprehensively addressed Alaskan land conservation. Another example is President Franklin Roosevelt s declaration of the Jackson Hole National Monument. After John D. Rockefeller Jr. donated 33,000 acres of mountain lands for conservation as a national park, the President took decisive action to protect these lands while Congress debated alternative designations and uses. 33 President Clinton s designation of the Grand Canyon-Parashant National Monument can be interpreted as similar to these actions by protecting the Shivwits Plateau against potential mineral development under the Shivwits Plateau National Conservation Area Establishment Act. Alternatively, President Clinton s designations can be viewed as an abuse of the intent of the Antiquities Act and as inconsistent with principles of modern land use planning and management. It is clear that the original intent of the Act did not include National Monuments as large as the Grand Canyon-Parashant or the Agua Fria National Monuments. Although most Presidents since the passage of the Antiquities Act have used the law to create National Monuments, there has been a dramatic reduction in executive designations since the enactment of FLPMA, and a corresponding increase in legislative protections as either National Monuments or National Conservation Areas. 34 This suggests a post-flpma policy of using the withdrawal provisions of FLPMA instead of the Antiquities Act for protecting large areas of federal lands. From this perspective the appropriate manner for implementing Secretary Babbitt s recommendations would have been for DOI to withdraw the lands and provide for Congressional review of the withdrawal pursuant to FLPMA. Congress would have been provided an alternative to Representative Stump s proposed Shivwits Plateau National Conservation Area that was based on the DOI s administrative judgment and supported by the President. Both proposals would be subjected to the light and heat of legislative review. Both perspectives are consistent with the stated policy of FLPMA that the Congress exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes and that Congress delineate the extent to which the Executive may withdraw lands without legislative action... The resolution of this dichotomy in public policy is clearly the responsibility of the Congress. Should public policy support the use of the Antiquities Act for conservation purposes, Congress should refrain from legal reform and recognize the executive s delegated authority. Should Congress feel it is necessary to restrain the use of the Antiquities Act for conservation purposes, it is the perogative of Congress to revise the Antiquities Act. 35 If such is the case, the Grand Canyon-Parashant and the Agua Fria National Monuments may come to be recognized not only for their unique historical and natural characteristics, but also for being catalysts to the most significant change in the Antiquities Act in its 94-year history. James Peck is an Arizona attorney practicing in environmental law. He can be reached at (480) 377-9423 or visit www.jamespeck.com. All photos and maps provided by the Bureau of Land Management. 42 Arizona Attorney July 2000
ENDNOTES: 1. Press Briefing by Secretary of the Interior Bruce Babbitt and Chair of Council on Environmental Quality George Frampton, December 14, 1999. 2. Steve Yozwiak, Hull, Kyl, McCain Decry Monuments by Decree, ARIZONA REPUBLIC, December 15, 1999, at A16. 3. Editorial Opinion, Monuments Right For Public Good, ARI- ZONA REPUBLIC, December 19, 1999, at B16. 4. Editorial Opinion, President Acted with Wide Support, State Politicians, Ease Up, ARIZONA REPUBLIC, January 12, 2000, at B10. The results of the poll are available online. 5. H.R. 2795, 106th Cong. (2000), S. 1560, 106th Cong. (2000). 6. The Shivwits Plateau National Conservation Area Establishment Act, Statement of Bruce Babbitt Secretary of the Interior Before the House Resources Subcommittee on National Parks and Public Lands, October 19, 1999, at 1. 7. Proclamations 7263 and 7265, published in 65 Fed.Reg. 2817-2829 (2000). 8. Id. 9. Remarks by the President at Announcement of New National Monuments, The White House Office of the Press Secretary (Jan. 11, 2000). 10. Press release from Representative Bob Stump, Presidential Proclamation Ignores Interests of Arizonans (Jan. 11, 2000). 11. Letter from Jane Dee Hull, Governor of Arizona, et.al., to President Clinton, President of the United States (Dec. 14, 1999). 12. H.J.R. 2001, 44th Leg., 2d Reg. Sess. (Az. 2000). 13. Bob Stump, Arizonans deserve input into declaration of national monuments, ARIZONA REPUBLIC, January 12, 2000 at B11. 14. U.S. CONST., Art. IV, 3, cl. 2 (the Property Clause) ( The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ). 15. See, e.g. The Homestead Act of 1862, 12 Stat. 392, Repealed 1976, Mining Law of 1872, codified as amended at 30 U.S.C. 22 et.seq. (1999), Act of September 20, 1850, 9 Stat. 466 (1850). 16. 17 Stat. 32 (1872). 17. Forest Service Organic Act of 1897, 30 Stat. 34, codified as amended at 16 U.S.C. 473 et.seq., Repealed 1976 (1999). 18. Antiquities Act of 1906, 34 Stat. 225, codified at 16 U.S.C. 431 (1999). 19. United States v. Midwest Oil Co., 35 S.Ct. 309 (1915). 20. National Park Service Organic Act of 1916, 39 Stat. 535, codified at 16 U.S.C. 1-18f (1999). 21. Act of June 18, 1934, 48 Stat. 1269, codified at 43 U.S.C. 315-315r (1999). 22. Multiple-Use, Sustained-Yield Act of 1960, 74 Stat. 215, codified at 16 U.S.C. 528-31 (1999). 23. Federal Land Policy and Management Act of 1976, 90 Stat. 2744, codified at 43 U.S.C. 1701-84 (1999). 24. 43 U.S.C. 1714 (1999). See H.REP. No. 94-1163, 94th Cong., 2d Sess. 1 (1976). 25. P.L. 94-579 704(a) (1976). 26. 43 U.S.C. 1714 (1999). 27. Antiquities Act of 1906, 34 Stat. 225, codified at 16 U.S.C. 431 (1999). 28. See David H. Getches, Managing the Public Lands: The Authority of the Executive to Withdraw Lands, 22 NAT.RESOURCES J. 279, 302 (1982) (summarizing the floor discussion regarding the concerns of some members of Congress that the Antiquities Act would be used to withdraw large areas of land). 29. Proclamation 794, 35 Stat. 2175 (Jan. 11, 1908). 30. Cameron et.al. v. United States, 40 S.Ct. 410 (1920). 31. State of Wyoming v. Franke, 58 F.Supp. 890 (D.Wyo. 1945). 32. The Franke court postulated that it might be arbitrary and capricious to create a National Monument on a bare stretch of sagebrush prairie where there are no objects of historic or scientific interest. Id. at 895. 33. See Getches, note 28, at 300-305. 34. Of 116 National Monuments created by presidential proclamation, 21 were created after FLPMA. Of these, 16 were established in Alaska by President Carter on Dec. 1, 1978. The remaining five were established by President Clinton, and include the Grand Canyon- Parashant and Agua Fria National Monuments. In contrast, there are 26 Congressionally designated National Monuments or National Conservation Areas, of which 17 were created after FLPMA. 35. At the time of this writing, congress is considering amending the Antiquities Act to provide public participation in the declaration of National Monuments. H.R. 1487, 106th Cong. (2000). July 2000 Arizona Attorney 43