[House Hearing, 106 Congress]
[From the U.S. Government Printing Office]



 
          H.R. 1487, THE NATIONAL MONUMENT NEPA COMPLIANCE ACT

=======================================================================

                                HEARING

                               before the

            SUBCOMMITTEE ON NATIONAL PARKS AND PUBLIC LANDS

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                     JUNE 17, 1999, WASHINGTON, DC

                               __________

                           Serial No. 106-38

                               __________

           Printed for the use of the Committee on Resources

                               

 Available via the World Wide Web: http://www.access.gpo.gov/congress/house
                                   or
           Committee address: http://www.house.gov/resources

                                 ______

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                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                NICK J. RAHALL II, West Virginia
JIM SAXTON, New Jersey               BRUCE F. VENTO, Minnesota
ELTON GALLEGLY, California           DALE E. KILDEE, Michigan
JOHN J. DUNCAN, Jr., Tennessee       PETER A. DeFAZIO, Oregon
JOEL HEFLEY, Colorado                ENI F.H. FALEOMAVAEGA, American 
JOHN T. DOOLITTLE, California            Samoa
WAYNE T. GILCHREST, Maryland         NEIL ABERCROMBIE, Hawaii
KEN CALVERT, California              SOLOMON P. ORTIZ, Texas
RICHARD W. POMBO, California         OWEN B. PICKETT, Virginia
BARBARA CUBIN, Wyoming               FRANK PALLONE, Jr., New Jersey
HELEN CHENOWETH, Idaho               CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas   PATRICK J. KENNEDY, Rhode Island
CHRIS CANNON, Utah                   ADAM SMITH, Washington
KEVIN BRADY, Texas                   WILLIAM D. DELAHUNT, Massachusetts
JOHN PETERSON, Pennsylvania          CHRIS JOHN, Louisiana
RICK HILL, Montana                   DONNA CHRISTIAN-CHRISTENSEN, 
BOB SCHAFFER, Colorado                   Virgin Islands
JIM GIBBONS, Nevada                  RON KIND, Wisconsin
MARK E. SOUDER, Indiana              JAY INSLEE, Washington
GREG WALDEN, Oregon                  GRACE F. NAPOLITANO, California
DON SHERWOOD, Pennsylvania           TOM UDALL, New Mexico
ROBIN HAYES, North Carolina          MARK UDALL, Colorado
MIKE SIMPSON, Idaho                  JOSEPH CROWLEY, New York
THOMAS G. TANCREDO, Colorado         RUSH D. HUNT, New Jersey

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director
                                 ------                                

            Subcommittee on National Parks and Public Lands

                    JAMES V. HANSEN, Utah, Chairman
ELTON, GALLEGLY, California          CARLOS A. ROMERO-BARCELO, Puerto 
JOHN J. DUNCAN, Jr., Tennessee           Rico
JOEL HEFLEY, Colorado                NICK J. RAHALL II, West Virginia
RICHARD W. POMBO, California         BRUCE F. VENTO, Minnesota
GEORGE P. RADANOVICH, California     DALE E. KILDEE, Michigan
WALTER B. JONES, Jr., North          DONNA CHRISTIAN-CHRISTENSEN, 
    Carolina                             Virgin Islands
CHRIS CANNON, Utah                   RON KIND, Wisconsin
RICK HILL, Montana                   JAY INSLEE, Washington
JIM GIBBONS, Nevada                  TOM UDALL, New Mexico
MARK E. SOUDER, Indiana              MARK UDALL, Colorado
DON SHERWOOD, Pennsylvania           JOSEPH CROWLEY, New York
                                     RUSH D. HOLT, New Jersey
                        Allen Freemyer, Counsel
                     Todd Hull, Professional Staff
                    Liz Birnbaum, Democratic Counsel
                   Gary Griffith, Professional Staff


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held June 17, 1999.......................................     1

Statements of Members:
    Cannon, Hon. Chris, a Representative in Congress from the 
      State of Utah..............................................    11
        Prepared statement of....................................    11
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     1
        Prepared statement of....................................     9
    Inslee, Hon. Jay, a Representative in Congress from the State 
      of Washington..............................................    10
    Romero-Barcelo, Hon. Carlos, a Delegate in Congress from the 
      Territory of Puerto Rico, prepared statement of............    10
    Udall, Hon. Mark, a Representative in Congress from the State 
      of Colorado................................................    16

Statements of witnesses:
    Leshy, John, Solicitor, Department of the Interior...........    18
        Prepared statement of....................................    21

Additional material supplied:
    Text of H.R. 1487............................................     2

Communications submitted:
    Leavitt, Hon. Michael O., Governor, prepared statement of....    67



          H.R. 1487, THE NATIONAL MONUMENT NEPA COMPLIANCE ACT

                              ----------                              


                        THURSDAY, JUNE 17, 1999

              House of Representatives,    
                       Subcommittee on National    
                                Parks and Public Lands,    
                                    Committee on Resources,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10 a.m. in Room 
1324, Longworth House Office Building, Hon. James V. Hansen 
[chairman of the Subcommittee] presiding.
    Mr. Hansen. The meeting will come to order. We expect 
Congressman Stump to be here in a minute. I understand that he 
is over at the Capitol Hill Club and is his on his way over. We 
would like to have our Ranking Member from Puerto Rico with us 
for this very important piece of legislation. So with the 
indulgence of our witness Mr. Leshy and other folks who are 
here, if we could just put things on hold for a moment, I would 
appreciate it. Thank you.
    [Recess.]

STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Mr. Hansen. Good morning. Welcome to the Subcommittee on 
National Parks and Public Lands hearing on H.R. 1487, the 
National Monument NEPA Compliance Act.
    [The information follows:]

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    Mr. Hansen. I would like again welcome our witness John 
Leshy from the Interior Department. Thank you for being with us 
today.
    In 1906, the Antiquities Act was passed as a method to 
quickly withdraw small parcels of land from the public domain 
to preserve archaeological sites. Today it is being used to 
thwart Congressional control over the public lands, to avoid 
the National Environmental Policy Act, and to deny the American 
people the right to have input in public land decisions. An 
article in Monday's Washington Times quoted Secretary Babbitt 
as having said the following: Quote, ``We switched the rules on 
the game. We are not trying to do anything legislatively.''
    The implication is that if Congress does not pass the laws 
that the Secretary wants passed, he will make his own laws 
through regulations, Executive Order, policy directives, et 
cetera. This is clearly an abuse of power. The Constitution 
specifically gives Congress the power over public lands. If 
Secretary Babbitt does not like a law such as the mining law, 
then he should work with Congress to change it. However, until 
Congress does, it is still the law of the land, and the 
Secretary has taken an oath to uphold it. It is not his place 
to change the law.
    The September 1996 creation of the Grand Staircase-
Escalante National Monument is a good example of how Interior 
is trying to use the antiquity law to thwart Congress and avoid 
NEPA. It appears that as early as August 1995, people in the 
Interior Department were talking about the possibility of 
designating national monuments as a way of thwarting Congress's 
control over the public lands. As the Utah wilderness debate 
started to heat up, the Interior Department started looking for 
a way to create wilderness without Congress. In August 3, 1995, 
memo within the Interior Solicitor's Office, from Dave Watts to 
Robert Baum, Mr. Watts says that John Leshy wanted to talk to 
them about the choices and legal risks involved in using the 
antiquity law. In that memo he warns that, quote, ``To the 
extent the Secretary proposes a national monument, NEPA 
applies. However, monuments proposed by the President do not 
require NEPA compliance because NEPA does not cover 
Presidential actions,'' end of quote.
    Mr. Watts then opines that the court case Alaska v. Carter 
held that the Secretary could do all of the work on a national 
monument withdrawal without triggering NEPA if the monument is 
the President's proposal and the President asks the Secretary 
to help him. Later the Solicitor's Office sent a memo to Sam 
Kalen saying that they believed that they needed a letter from 
the President to the Secretary asking for national monument 
recommendations if they were to avoid NEPA problems on 
Antiquities Act work. They also expressed concern as to whether 
such a letter would be accessible to the public via the Freedom 
of Information Act. Further, they were afraid that if they did 
not get a letter from the President, a court might be able to 
set aside a proclamation due to the lack of NEPA compliance.
    Interior, therefore, spent the next several months trying 
to create a fake paper trail by trying to get the President to 
sign a letter asking Secretary Babbitt to start looking at the 
possibility of a national monument proposal even though 
Interior had been planning the monument since August of 1995. 
The Interior Department, however, went on with their proposal, 
and by July 26, Interior had Professor Wilkinson from the 
University of Colorado drawing up the actual proclamation. 
However, the President did not sign such a letter until August 
7, 1996, after--keep in mind, after--the proclamation was 
already drafted. The State of Utah found out about the monument 
when President Clinton called Governor Leavitt at 2 a.m. On the 
day that the monument was created. As you can see, the 
Antiquities Act was used to thwart Congress, avoid NEPA and 
avoid public input into public land decisions.
    When we held hearings last year on H.R. 1127, the National 
Monument Fairness Act, people came in here and told us that we 
didn't need to amend the Antiquities Act because the Grand 
Staircase-Escalante National Monument fiasco was a one-time 
thing, and no one would ever try a stunt like that again. Well, 
I guess they are wrong because rumors coming out of Interior 
tell us that the exact same thing is going on right now. 
Letters from the President have been generated in order to 
avoid NEPA. Secret monument plans are being thrown together. 
Congress is being left out of the picture, and, more 
importantly, the American people are left in the dark once 
again.
    H.R. 1487 is intended to fix the Antiquities Act to avoid 
these types of serious abuses. It would require the Secretary 
of the Interior to do an environmental impact statement before 
the President could sign a national monument proclamation 
pursuant to the Antiquities Act. This would ensure that 
national monument designations are in the best interests of the 
environment and would assure public participation in the 
decision-making process. Further, it would prevent the use of 
the Antiquities Act as an election year ploy, as it was used in 
1996, and discourage the Interior Department from going to such 
elaborate lengths to avoid NEPA.
    Mr. Leshy's testimony expresses concern that H.R. 1487 
imposes a few extra procedural hurdles that NEPA wouldn't 
necessarily impose, such as hearings and a 6-month comment 
period. We would not have to statutorily impose such 
requirements on the Interior Department if we felt that we 
could trust them to allow full public participation in these 
sorts of decisions, but recent events have made it clear that 
we cannot do that.
    A good example of this is the scoping on the recent Utah 
WSA 202 process. Because the Interior Department felt that 
their own agenda and timetable was more important than public 
participation, they tried to cram scoping on a proposal that 
would designate a land area over twice the size of Delaware as 
WSAs into 2 weeks. Further, constituents told us that the 
public meetings that were held were so lacking in information 
and structure as to be virtually useless. Interior has since 
extended the scoping period very slightly, but it is still 
woefully inadequate to allow meaningful public input into the 
process.
    So, as you can see, we have to specify these sorts of 
things into law, otherwise Interior will not allow the public 
an adequate chance to participate. H.R. 1487 is a good bill. It 
would not gut the Antiquities Act. The President's authority 
under this Act would not be abrogated in any way. He would 
simply have to follow certain steps that allow public comment 
and input before using it.
    I look forward to Mr. Leshy's testimony and the discussion 
on this bill, and again would like to reiterate that we went 
through this step by step on what happened on the Grand 
Staircase, and it should be obvious to anyone the abuse of 
power that we have seen, and we surely don't want that to 
happen again.
    [The prepared statement of Mr. Hansen follows:]

 Statement of Hon. James V. Hansen, a Representative in Congress from 
                           the State of Utah

    Good morning. Welcome to the Subcommittee on National Parks 
and Public Lands hearing on H.R. 1487 the National Monument 
NEPA Compliance Act. I would like to again welcome our witness 
John Leshy from the Interior Department. Thank you for taking 
the time to be with us today.
    In 1906 the Antiquities Act was passed as a method to 
quickly withdraw small parcels of land from the public domain 
to preserve archeological sites. Today it is being used to 
thwart Congressional control over the public lands, to avoid 
the National Environmental Policy Act, and to deny the American 
people the right to have input in public lands decisions.
    An article in Monday's Washington Times quoted Secretary 
Babbitt as having said that quote ``We've switched the rules of 
the game. We're not trying to do anything legislatively.'' The 
implication is that if Congress does not pass the laws that the 
Secretary wants passed, he will make his own laws through 
regulations, executive orders, policy directives, etc.
    This is clearly an abuse of power. The Constitution 
specifically gives Congress the power over public lands. If 
Secretary Babbitt does not like a law, such as the mining law, 
then he should work with Congress to change it. However until 
Congress does, it is still the law of the land, and the 
Secretary has taken an oath to uphold it. It is not his place 
to change the law.
    The September 1996 creation of the Grand Staircase-
Escalante National Monument is a good example of how Interior 
is trying to use the Antiquities Act to thwart Congress and 
avoid NEPA.
    It appears that as early as August of 1995 people in the 
Interior Department were talking about the possibility of 
designating National Monuments as a way of thwarting 
Congressional control over the public lands. As the Utah 
Wilderness debate started to heat up, the Interior Department 
started looking for a way to create wilderness without 
Congress.
    In August 3 , 1995 memo within the Interior Solicitor's 
office from Dave Watts to Robert Baum, Mr. Watts says that John 
Leshy wanted to talk to them about the choices and legal risks 
involved in using the Antiquities Act.
    In that memo he warns that--quote ``To the extent the 
Secretary proposes a national monument, NEPA applies. However, 
monuments proposed by the president do not require NEPA 
compliance because NEPA does not cover presidential 
actions.''--end of quote. Mr. Watts then opines that the court 
case Alaska v. Carter held that the Secretary can do all of the 
work on a national monument withdrawal without triggering NEPA 
if the monument is the President's proposal and the President 
asks the Secretary to help him.
    Later, the Solicitor's office sent a memo to Sam Kalen 
saying that they believed that they needed a letter from the 
President to the Secretary asking for national monument 
recommendations if they were to avoid ``NEPA problems on 
Antiquities Act work.'' They also expressed concern as to 
whether such a letter would be accessible to the public via the 
Freedom of Information Act.
    Further, they were afraid that if they did not get a letter 
from the President, a court might be able to set aside a 
proclamation due to the lack of NEPA compliance.
    Interior, therefore, spent the next several months trying 
to create a fake paper trail by trying to get the President to 
sign a letter asking Secretary Babbitt to start looking at the 
possibility of a national monument proposal. Even though 
Interior had been planning the monument since August of 1995.
    The Interior Department, however, went on with their 
proposal and by July 26th, Interior had Professor Wilkinson 
from the University of Colorado drawing up the actual 
proclamation. However, the President did not sign such a letter 
until August 7, 1996. After the proclamation was already 
drafted.
    The State of Utah found out about the monument when 
President Clinton called Governor Leavitt at 2:00 A.M. on the 
day that the monument was created.
    As you can see, the Antiquities Act was used to thwart 
Congress, avoid NEPA, and avoid public input into public lands 
decisions.
    When we held hearings last year on H.R. 1127, the National 
Monument Fairness Act, people came in here and told us that we 
didn't need to amend the Antiquities Act because the Grand 
Staircase-Escalante National Monument fiasco was a one time 
thing and no one would ever try a stunt like that again.
    Well, I guess they were wrong, because rumors coming out of 
Interior tell us that the exact same thing is going on right 
now. Letters from the President have been generated in order to 
avoid NEPA, secret monument plans are being thrown together, 
Congress is being left out of the picture, and the American 
people are left in the dark once again.
    H.R. 1487 is intended to fix the Antiquities Act to avoid 
these types of abuses. It would require the Secretary of the 
Interior to do an Environmental Impact Statement before the 
President could sign a national monument proclamation pursuant 
to the Antiquities Act.
    This would insure that national monument designations are 
in the best interest of the environment, and would insure 
public participation in the decision making process.
    Further, it would prevent the use of the Antiquities Act as 
an election year ploy and discourage the Interior Department 
from going to such elaborate lengths to avoid NEPA.
    Mr. Leshy's testimony expresses concern that H.R. 1487 
imposes a few extra procedural hurdles that NEPA wouldn't 
necessarily impose, such as hearings and a 6 month comment 
period.--We would not have to statutorily impose such 
requirements on the Interior Department if we felt we could 
trust them to allow full public participation in these sorts of 
decisions, but recent events have made it clear that we can 
not.
    A good example of this is the scoping on the recent Utah 
WSA 202 process. Because the Interior Department felt that 
their own agenda and timetable was more important than public 
participation, they tried to cram scoping on a proposal that 
would designate a land area over twice the size of Delaware as 
WSAs into two weeks. Further, constituents told us that the 
public meetings that were held were so lacking in information 
and structure as to be virtually useless. Interior has since 
extended the scoping period slightly, but it is still woefully 
inadequate to allow meaningful public input into the process. 
So, as you can see, we have to specify these sorts of things in 
the law, otherwise Interior will not allow the public an 
adequate chance to participate.
    H.R. 1487 is a good bill. It would not gut the Antiquities 
Act. The President's authority under that Act would not be 
abrogated in any way. He would simply have to follow certain 
steps that allow public comment and input before using it.
    I look forward to Mr. Leshy's testimony and the discussion 
on this bill.

    Mr. Hansen. I recognize the gentleman from Washington.

STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF WASHINGTON

    Mr. Inslee. Thank you, Mr. Chair.
    Mr. Chair, I am going to ask if we can submit to the record 
comments by Ranking Member Romero-Barcelo, if we can. If I 
could submit that to the record since he is not able to join 
us, at least at the moment.
    Mr. Hansen. Without objection.
    [The prepared statement of Hon. Romero-Barcelo follows:]

 Statement of Hon. Carlos Romero-Barcelo, a Delegate in Congress from 
                      the Territory of Puerto Rico

    Mr. Chairman, we share your frustration with the lack of 
timely delivery of the Administration's testimony that caused 
you to cancel the hearing on H.R. 1487 last month. We are glad 
that Mr. Leshy is able to be with us today and note that the 
delays with the Administration's testimony last month were not 
the fault of Mr. Leshy.
    As we noted at the earlier hearing on H.R. 1487, the House 
last Congress spent considerable time on legislation you 
authored (H.R. 1127) to limit the authority of the President to 
designate National Monuments. This year, you have introduced 
new legislation (H.R. 1487) to require that prior to a 
declaration of a President establishing a National Monument, a 
National Environmental Policy Act (known as ``NEPA'') analysis 
be undertaken.
    The provisions of H.R. 1487 raise several questions that 
the Subcommittee will want to consider carefully. First, the 
bill establishes a significant precedent of making a 
Presidential action subject to NEPA. As you may know Mr. 
Chairman, actions of the President, the Congress and the 
Judiciary are currently not subject to NEPA. The bill also 
deviates from NEPA by presuming that all designations are a 
major Federal action and by including extended public and 
comment periods and hearing requirements that also deviate from 
current NEPA procedures.
    There are other problems as well. The bill requires the 
Secretary of the Interior to prepare the Environmental Impact 
Statement even though he may not administer the lands in 
question. Further, the authority of the Secretary to withdrawal 
lands on an emergency basis is less than the existing authority 
of the Secretary to make such withdrawals. The 24-month time 
period is also likely to be inadequate to deal with the time 
periods of the required Environmental Impact Statement.
    Mr. Chairman, we look forward to the insights of the 
Administration and others as we try to sort through the 
questions raised by this legislation.

    Mr. Inslee. I would also like to note that we are looking 
forward to Mr. Leshy's testimony. We understand that he was 
unable to help us the last time, but I want to make sure that 
folks know it was not his fault, that there was something that 
occurred. I look forward to his testimony.
    Mr. Hansen. Thank you.
    [The information follows:]
    Mr. Hansen. The gentleman from Utah, Mr. Cannon.

 STATEMENT OF HON. CHRIS CANNON, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Mr. Cannon. Thank you, Mr. Chairman. I appreciate your 
introduction of this important legislation and our second 
attempt to hold a hearing on this issue, which both of us have 
been so heavily and personally involved. Our colleagues have 
heard continually of the trials of our constituents in Utah, 
which they expressed the result of the creation of the Grand 
Staircase-Escalante Monument nearly 3 years ago. This monument, 
encompassing over 2 million acres located in southern Utah, 
strips some of the most rural and poor communities of their 
land base and economy. What is most disturbing is a recent 
article in the Washington Times which describes in painful 
detail the additional withdrawals and monument designations 
this administration may attempt in yet another election year 
ploy.
    Mr. Chairman, I would like to submit this article as part 
of the record.
    Mr. Hansen. Without objection so ordered.
    [The prepared statement of Mr. Cannon follows:]

 Statement of Hon. Chris Cannon, a Representative in Congress from the 
                             State of Utah

    Thank you, Mr. Chairman. I appreciate your introduction of 
this important legislation and our second attempt in holding a 
hearing on this issue in which we have been so heavily and 
personally involved.
    Our colleagues have continually heard of the trials and 
turmoil our constituents in Utah have experienced as a result 
of the creation of the Grand Staircase-Escalante Monument 
nearly three years ago. This monument, encompassing over two 
million acres, located in southern Utah, stripped some of the 
most rural and poor communities of their land base and economy.
    What is most disturbing is a recent article in the 
Washington Times, which describes in painful detail the 
additional withdrawals and monument designations this 
Administration may attempt in yet another election year ploy. 
Mr. Chairman, I would like to submit this article as part of 
the record.
    I sincerely hope that this morning's debate is constructive 
and will encourage better implementation of the Antiquities Act 
of 1906. It simply is not right to subject other communities to 
the same devastation that my constituents suffered. The 
process, or lack thereof, used in 1996 to create the Grand 
Staircase-Escalante Monument was horribly flawed.
    I believe the intent of Congress and President Roosevelt 
when he signed the Antiquities Act into law in 1906 was very 
clear. The Antiquities Act was designed to protect certain 
natural and pristine areas. Fortunately, over the past 93 
years, Congress has been very diligent and has designed a 
number of statutes to respond to the needs of environmental 
preservation, such as the: Federal Lands Policy Management Act, 
National Environmental Policy Act; Wild and Scenic Rivers Act; 
Wilderness Act; and the National Park Service Organic Act. 
These important laws have allowed us to protect millions of 
acres of public land while allowing local communities a role, 
albeit minimal at times, in the designation process.
    Unfortunately, the process utilized in 1996 did not address 
or allow public participation at all. It appears that this 
Administration went to great lengths to avoid, not only public 
input, but even public knowledge of its plans to designate the 
Grand Staircase-Escalante National Monument. I find it ironic 
that the very Administration that has championed NEPA, took 
definite measures to avoid NEPA. The hypocrisy stuns me.
    What is even more shocking are the rumors of future 
Administration plans. It is fairly common knowledge that this 
Administration is considering at least one additional monument 
in the southwest--but in light of the recent Times article--I 
suspect there are more in the works. I hope Mr. Leshy will take 
this opportunity to elaborate on the Administration's plans and 
any other monument designations it may be considering.
    I look forward to the discussion we will have this morning. 
I am sure our witness will provide an interesting perspective. 
Again, Mr. Chairman, I appreciate your willingness to move this 
issue forward. It is time the President is subjected to the 
same environmental rules as the rest of us. It is clear that 
the Antiquities Act has been exploited and abused. H.R. 1487 
seeks to end this blatant arrogance.
    Thank you.

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    [GRAPHIC] [TIFF OMITTED] T8958.008
    
    Mr. Cannon. I sincerely hope that this morning's debate is 
constructive and will encourage better implementation of the 
Antiquities Act of 1906. It simply is not right to subject 
other communities to the same devastation that my constituents 
suffer. The process, or lack thereof, used in 1996 to create 
the Grand Staircase-Escalante Monument was horribly fraudulent. 
I believe the intent of Congress and President Roosevelt when 
he signed the Antiquities Act into law in 1906 was very clear.
    The Antiquities Act was designed to protect certain natural 
and pristine areas. Fortunately, over the past 93 years, 
Congress has been very diligent and has designed a number of 
statutes to respond to the needs of environment preservation, 
such as the Federal Lands Policy Management Act, the National 
Environmental Policy Act, the Wilderness and Scenic Rivers Act, 
the Wilderness Act, and the National Park Service Organic Act. 
These important laws have allowed us to protect millions of 
acres of public land while allowing local communities a role, 
albeit minimal at times, in the designation process.
    Unfortunately, the process utilized in 1996 did not address 
or allow public participation at all. It appears that this 
administration went to great lengths to avoid not only public 
input, but even public knowledge of its plans to designate the 
to Grand Staircase-Escalante National Monument. I find it 
ironic that the very administration that has championed NEPA 
took definite measures to avoid NEPA. The hypocrisy here stuns 
me.
    What is even more shocking are the rumors of future 
administration plans. It is fairly common knowledge that this 
administration is considering at least one additional monument 
in the Southwest, but in light of the recent Times article, I 
suspect there are even more in the works.
    I hope that Mr. Leshy will take this opportunity to 
elaborate on the administration's plans and any other monument 
designations it may be considering. I look forward to the 
discussion we will have this morning. I am sure our witness 
will provide an interesting perspective.
    Again, Mr. Chairman I appreciate your willingness to move 
this issue forward as the President is subjected to the same 
environmental rules as the rest of us. It is this clear the 
Antiquities Act has been exploited and abused. H.R. 1487 seeks 
to end this blatant arrogance. Thank you.
    Mr. Hansen. Thank you, Mr. Cannon.
    [The information follows:]
    Mr. Hansen. The gentleman from Colorado, Mr. Udall.

STATEMENT OF HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM 
                     THE STATE OF COLORADO

    Mr. Udall of Colorado. Thank you, Mr. Chairman. Mr. 
Chairman, I don't have any comments at this time. I would ask 
unanimous consent that a letter from a number of groups, 
including the National Parks and Conservation Association and 
the National Trust for Historic Preservation be included in the 
record.
    Mr. Hansen. Without objection so ordered.
    Mr. Udall of Colorado. Thank you, Mr. Chairman.
    [The information follows:]
    [GRAPHIC] [TIFF OMITTED] T8958.009
    
    Mr. Hansen. Mr. Leshy, would you please step up to the area 
there. We appreciate you being with us and thank you so much 
for your testimony that you sent to us.
    Mr. Leshy, before you start your testimony, I would just 
like--not to be redundant, I would just to make sure that we 
have done this right. I am going to reread some of these 
things.
    It appears that as early as August 1995, people in the 
Interior Department were talking about the possibility of 
designating national monuments as a way of thwarting Congress's 
congressional control over the public lands. As the Utah 
wilderness debate started to heat up, the Interior Department 
started looking for a way to create wilderness without 
Congress. In August 3, 1995, memo within the Interior 
Solicitor's Office, from Dave Watts to Robert Baum, Mr. Watts 
says that John Leshy wanted to talk to them about the choices 
and legal risks involved in using the antiquity law. In that 
memo he warns that, quote, ``To the extent that the Secretary 
proposes a national monument, NEPA applies. However, monuments 
proposed by the President do not require NEPA compliance 
because NEPA does not cover Presidential actions,'' end of 
quote.
    Mr. Watts then opines that the court case Alaska v. Carter 
held that the Secretary could do all of the work on the 
national monument withdrawal without triggering NEPA if the 
monument is the President's proposal and the President asks the 
Secretary to help him.
    Later the Solicitor's Office sent a letter to Sam Kalen 
saying that they believe they needed a letter from the 
President to the Secretary asking for national monument 
recommendation if they were to avoid NEPA problems on 
Antiquities Act work. They also expressed concern as to whether 
such a letter would be accessible to the public because of the 
Freedom of Information Act. Further, they were afraid that if 
they did not get a letter from the President, a court might be 
able to set a proclamation aside due to the lack of NEPA 
compliance.
    Interior, therefore, spent the next several months trying 
to create a fake paper trail by trying to get the President to 
sign a letter asking Secretary Babbitt to start looking at the 
possibility of a national monument proposal, even though 
Interior had been planning the monument since August of 1995. 
The Interior Department, however, went on with their proposal, 
and by July 26, Interior had Professor Wilkinson from the 
University of Colorado drawing up the actual proclamation. 
However, the President did not sign the letter until August 7, 
1996, after the proclamation was already drafted.
    Mr. Leshy, what I have just read to you, is that a true 
statement?

 STATEMENT OF JOHN LESHY, SOLICITOR, DEPARTMENT OF THE INTERIOR

    Mr. Leshy. Mr. Chairman, thank you very much for the 
opportunity to be here today. I again apologize for the mix-up 
that resulted in our late testimony coming up a month ago. I am 
delighted to appear and talk about H.R. 1487 and hopefully 
clear up some misconceptions about the planning involved in the 
Grand Staircase.
    It is not true that planning for Grand Staircase dates back 
to August of 1995, or 1995 at all, in fact. As with any 
Presidential power, from time to time in this administration, 
dating back to, I think, nearly to the beginning probably, we 
had conversations with people in the Executive Office of the 
President about various issues and powers that the President 
has over public lands, including the Antiquities Act.
    I don't remember exactly what happened in August of 1995 
that precipitated the memos that you referred to. I do know 
that there was no discussion of the Grand Staircase or anything 
like it in southern Utah at that time. There were discussions, 
I do recall, in the spring of 1996 about possible Antiquities 
Act proclamations in connection with park protection, because 
there was some park legislation pending in Congress at that 
time, and we had conversations with the White House about that 
in the spring of 1996, and there were memos about it. But the 
earliest that anybody in my office or the Department, as far as 
I know, ever had any conversations with the White House about a 
monument in southern Utah where the Grand Staircase is now 
located took place in early July of 1996. I think the record on 
that is absolutely clear. I think Katie McGinty, former Chair 
of CEQ, who was intimately involved in those discussions, 
testified in front of this Committee and the Senate on that.
    I was first contacted on July 3, 1996, by Ms. McGinty to 
come over to the White House. At that time she asked me to 
communicate to the Secretary the President's desire that the 
Secretary look at the possibility of establishing a monument in 
southern Utah. That was the very first mention of that subject 
and that proposed monument. In response to the President's 
request, which I think was communicated the next day by the 
President directly to Secretary Babbitt, we started work on 
responding to the President's request and over the course of 
the next 6 weeks or so prepared some materials, forwarded them 
to the White House in mid-August of 1996, and at that point the 
White House had some further conversations with us and with, I 
think, Members of Congress, Governors and others about 
establishing the monument in southern Utah, including members 
of the Utah delegation. I think that you were at least at one 
of those meetings in the Secretary's office in September of 
1996. And the decision--I believe the President did not make 
the decision to proclaim the monument until early on the 
morning of September 18th, after he had had a number of 
conversations with Members of Congress, Governor Leavitt, and 
others. So the Grand Staircase Monument planning from the 
Interior Department's perspective dates back only to early July 
of 1996.
    As with any Presidential power involving public lands, the 
Interior Department, as I said, is involved from time to time 
in discussions with the White House about proclamations under 
the Antiquities Act. It is a fairly continuing dialogue. It is 
an important power. It has been exercised more than 100 times 
over the last 90 some years by 14 Presidents of both parties. 
There is nothing lawless about that action. The Antiquities Act 
was passed by unanimous consent of both Houses of Congress in 
1906, a Congress, I should note, that was overwhelmingly 
Republican in both Senate and House. Presidents of both parties 
in equal numbers have created national monuments since 1906. 
About 75 million acres of land has been protected under the 
Antiquities Act in 24 different States and the Virgin Islands. 
Every President but three has made use of the Act, and the 
historic record shows, I think, without question that the 
authority the President has exercised under this power given to 
him expressly by Congress in this statute has not been abused.
    For that reason, we oppose the enactment of H.R. 1487. 
Should the legislation be presented to the President, the 
Secretary would recommend a veto because H.R. 1487 creates 
unprecedented strictures on Presidential action. The strictures 
are unnecessary. They seek to fix a problem that does not 
exist. The Antiquities Act, in our judgment, is one of the most 
successful environmental laws in American history. It has 
enabled Presidents to take decisive action to protect 
significant historical, natural, cultural resources on Federal 
lands for the past 93 years. If you just look down the list of 
monuments first protected under the Antiquities Act, we think 
they speak powerfully of the value and wisdom of action under 
that Act: Grand Canyon, Arcadia National Park, Muir Woods, 
Carlsbad Caverns, Channel Islands, Death Valley, the Statue of 
Liberty, the C&O Canal, and on and on. All of these Federal 
areas were first protected pursuant to congressional authority 
by the President of the United States under the Antiquities 
Act. It is an unparalleled resource protection success story.
    Sometimes those proclamations have created controversy at 
the beginning. Some local residents were outraged when Teddy 
Roosevelt first protected the Grand Canyon in 1908 under the 
Antiquities Act. But today the residents of Coconino County, 
Arizona, reap significant economic benefits from millions of 
annual visitors to the Grand Canyon. That practice, that 
pattern, has been repeated across the country over the last 90 
years.
    H.R. 1487 would throw procedural obstacles in the path of 
this amazing record of success. It would make the Antiquities 
Act the only act of Presidential discretion that is subject to 
the National Environmental Policy Act. It would force all 
monument designations, regardless of size or impact, to skip 
over the environmental assessment process of NEPA and require 
the preparation of an environmental impact statement. It would 
subject this impact statement to major new procedural 
requirements that are not required currently by NEPA or NEPA 
regulations for ordinary Federal agency action, including 
formal hearings on the record during all phases of a 
development of an EIS, 6-month comment period on the draft EIS, 
4-month public review on the final EIS. This kind of procedural 
straitjacket is unprecedented for any kind of Federal agency 
action. Ironically it would be imposed on one of the most 
successful environmental protection laws that we have. This is 
a great irony. It is also unnecessary. If the President does 
something truly bone-headed under the Antiquities Act, Congress 
can correct it; no harm, no foul. That has decidedly not been 
the pattern. This power has been exercised by 14 Presidents in 
this century wisely and skillfully.
    Mr. Cannon. Will the gentleman yield?
    Mr. Hansen. I think under our rules the witness has the 
right to finish his statement, and then we will come----
    Mr. Cannon. This is the opening statement then?
    Mr. Hansen. This is the opening statement. I am sorry for 
not mentioning that.
    Mr. Leshy. I will conclude.
    H.R. 1487 would severely undermine a Presidential authority 
that has contributed significantly to the growth and strength 
of an American system of conservation areas that is the envy of 
the world. Without the President's authority under the 
Antiquities Act, many of America's grandest places would never 
have been protected and preserved for future generations. It 
has had a proven successful track record of protecting at 
critical moments especially sensitive Federal lands and the 
unique historic and scientific objects they hold. These 
monuments have become universally revered, symbols of America's 
beauty and legacy. As I said, I attached a chart to the 
testimony that lists each monument created under the 
Antiquities Act in the last 93 years. Those places speak 
eloquently of the wisdom of leaving the Antiquities Act alone.
    That completes my statement, Mr. Chairman, I would be happy 
to answer any questions.
    Mr. Hansen. Thank you, Mr. Leshy.
    [The prepared statement of Mr. Leshy follows:]

   Statement of John D. Leshy, Solicitor, Department of the Interior

    Mr. Chairman, Members of the Subcommittee, thank you for 
the opportunity to appear before you today to present the views 
of the Department of the Interior on H.R. 1487, the ``National 
Monument NEPA Compliance Act.'' The Administration strongly 
opposes this legislation. Should it be presented to the 
President, the Secretary of the Interior will recommend that he 
veto the bill.
    H.R. 1487 would amend the Antiquities Act to create 
unprecedented strictures on Presidential action under the 
National Environmental Policy Act. In fact, amendment of the 
Antiquities Act is unnecessary. This legislation seeks to fix a 
problem that does not exist.
    The Antiquities Act is one of the most successful 
environmental laws in American history. It has enabled 
Presidents to take decisive action to protect significant 
natural, historical and scientific resources on Federal lands 
for the past ninety-three years. President Theodore Roosevelt 
made the first use of the Antiquities Act in 1906 to declare 
Devils Tower in Wyoming a national monument. Since then, 
Presidents of both parties have used the Antiquities Act as an 
important conservation tool. Fourteen Presidents have 
proclaimed 105 national monuments, many of which subsequently 
have been endorsed by Congressional action.
    The areas protected under the Antiquities Act have included 
such world-renowned sites as the Grand Canyon, Acadia National 
Park, Muir Woods National Monument, Carlsbad Caverns, the 
Channel Islands, Death Valley, the Statue of Liberty and the 
C&O Canal. The Black Canyon of the Gunnison, first designated a 
national monument by President Hoover, is now under 
consideration to become a national park. The 105 presidential 
designations ranged from less than 10 acres to nearly 11 
million acres. They are located in 24 different states and in 
the Virgin Islands. About 70 million acres of Federal land have 
been protected under the Antiquities Act.
    Protecting the resource jewels of the United States has 
been a bipartisan undertaking. Indeed, every President but 
three since 1906 has made use of the Antiquities Act to protect 
the special qualities of our Federal lands from potential harm. 
The historic record soundly refutes any notion that the 
authority of the President under the Antiquities Act has been 
abused. Sometimes the use of the Antiquities Act has initially 
sparked controversy and local opposition. History has taught 
us, however, that even initially controversial presidential 
proclamations are embraced by the public within a relatively 
short time and soon take their places among Americans' most 
treasured resources. For example, President Franklin D. 
Roosevelt designated 212,000 acres in Wyoming as the Jackson 
Hole National Monument, this area is now part of Grand Teton 
National Park. In Alaska, President Carter reserved 56 million 
acres of land as national monuments, most of these lands were 
soon designated by Congress as conservation units under the 
Alaska National Interest Lands Conservation Act. Most recently, 
President Clinton's declaration of the Grand Staircase-
Escalante National Monument in Utah, though initially 
controversial, was ratified by the 105th Congress with modest 
boundary adjustments.
    States and local communities have become staunch defenders 
of national monument designations. Some local residents were 
outraged when Teddy Roosevelt designated Grand Canyon National 
Monument in 1908, but today the residents of Coconino County, 
Arizona reap significant economic benefits from the millions of 
annual visitors to the Grand Canyon.
    As Congress recognized in enacting the Antiquities Act in 
the first place, the law provides needed flexibility for the 
President to respond quickly to impending threats to resource 
protection, while striking an appropriate balance between 
legislative and executive decision-making. Congress retains the 
power to overturn any monument designation. However, only a few 
proclamations involving a handful of small area, totaling less 
than 5,000 acres of the 17 million acres protected, have been 
rescinded since 1906. Moreover, Congress can control 
implementation of the Act through its authority over plans, 
programs and funding to manage the national monuments. In other 
words, the appropriations process and the laws and regulations 
governing the management of public lands provide appropriate 
checks and balances.
    These existing controls over the exercise of Presidential 
discretion under the Antiquities Act underscore the superfluity 
of the unprecedented requirements that would be imposed under 
H.R. 1487. This bill would amend the Antiquities Act to specify 
that a declaration by the President making an area a national 
monument would be both an action of the Federal Government and 
a major Federal action significantly affecting the quality of 
the human environment under the National Environmental Policy 
Act (NEPA). These two presumptions: (1) would make this the 
only act of Presidential discretion that is subject to NEPA; 
and (2) would force all such monument designations, regardless 
of size, to skip over the environmental assessment stage of 
NEPA and assume instead sufficient environmental impact to 
require preparation of an environmental impact statement (EIS).
    The EIS that would be prepared as a result of the 
legislative presumptions under H.R. 1487 would be prepared by 
the Secretary of the Interior. This EIS would be subject to 
procedural requirements that are not required by NEPA or the 
NEPA regulations. The additional procedural hurdles would 
include:

         requiring formal hearings, on the record, during all 
        phases of the development of the EIS, including the scoping 
        period;
         requiring at least 6 months of public review and 
        comment on the draft EIS before a final EIS could be published, 
        and
         requiring at least 4 months of public review and 
        comment on the final EIS before a record of decision could be 
        issued.
    None of these steps is currently required under NEPA or the NEPA 
regulations. Mandating all these procedural barriers for every national 
monument designation, no matter how small or how urgent, would be 
contrary to both protective purposes of the Antiquities Act and the 
flexible approach of the NEPA regulations. In addition, the bill would 
delay Antiquities Act protection still further by preventing the 
President from designating a national monument for at least 30 days 
after the record of decision is approved. And any emergency withdrawal 
of the area by the Secretary of the Interior under section 204(e) of 
the Federal Land Management and Policy Act could be in effect for only 
24 months.
    Mr. Chairman, in the view of the Administration, the new 
constraints that this bill would impose on the designation of national 
monuments are unwarranted. H.R. 1487 would severely hamper the 
authority enjoyed by 17 Presidents of both parties since 1906 to 
establish national monuments in a timely matter to protect important 
historic and scientific sites. The bill would impose restrictions on 
the process for designating national monuments that are not imposed on 
any other Federal actions. It would single out designations of national 
monuments as the only Presidential actions that would be subject to 
NEPA. By legislatively determining that designations of national 
monuments, regardless of their actual environmental impacts, 
``significantly affect the quality of the human environment,'' this 
bill would preempt and pre-judge factual analysis that NEPA requires 
for other Federal actions. At the same time, the bill would impose 
delays on Federal decision-making that NEPA does not require in any 
other circumstance, while limiting the length of time that the 
Secretary could protect the affected area pending a final decision.
    The problems this bill purports to solve are often imaginary. The 
bill would severely undermine a Presidential authority that has 
contributed significantly to the growth and strength of an American 
system of conservation areas that is the envy of the world. Without the 
President's authority under the Antiquities Act, many of America's 
grandest places might never have been protected and preserved for 
future generations. Adding mandated delays to decision-making under the 
Act would increase the opportunity and incentive to exploit resources 
that could irreparably harm the features and values to be preserved.
    The Antiquities Act has a proven track record of protecting, at 
critical moments, especially sensitive Federal lands and the unique 
historic and scientific objects they hold. These monuments have become 
universally revered symbols of America's beauty and legacy. A chart 
detailing each monument created under the Antiquities Act, and the 
objects protected in each, is attached to my testimony for your further 
review. These places speak eloquently of the wisdom of leaving the 
Antiquities Act alone.
    Mr. Chairman, this completes my statement. I am available to answer 
any questions you or other Members of the Subcommittee may have.

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    Mr. Hansen. The gentleman from Utah, Mr. Cannon, is 
recognized for 5 minutes.
    Mr. Cannon. Thank you, Mr. Chairman.
    Just one thing that you said that caught my attention. If 
the President does something truly bone-headed, then Congress 
has the ability to change what the President does.
    I take it that you think that we could override a 
Presidential action, and that--I suspect you would think that a 
simple majority should be able to change the President's 
action, or if he truly did something bone-headed, would he veto 
the action of Congress and require a two-thirds majority?
    Mr. Leshy. Well, the President exercises authority under 
the Antiquities Act that Congress has given him. Congress can 
withdraw that authority, or Congress can override the exercise 
by ordinary legislation. But after the ordinary legislative 
process, it would have to be presented to the President for 
signature or veto. If the President vetoed it, obviously a veto 
could be overridden. I can't prejudge what----
    Mr. Cannon. Then we would probably have to have fewer than 
a third of the Members of the Congress who are also not bone-
headed to actually override a truly bone-headed activity by the 
President.
    Mr. Leshy. Well, it is an interesting but, frankly, very 
hypothetical question.
    Mr. Cannon. No. You raised the issue. You said that 
Congress could change it. But that is not how the American 
system works very well, is it?
    Mr. Leshy. I think the American system works that Congress 
can pass legislation and can override a President's veto if the 
President vetoes such legislation. But the record is absolutely 
clear that of the 104 or -5 national monuments created, none of 
them have been overridden by legislation except for a very tiny 
handful of very small monuments. All of the monuments have all 
been ratified, affirmed and endorsed subsequently by Congress.
    Mr. Cannon. I am sorry. You said a great number of things, 
including a reference to ratification by Congress. When you 
suggested that the appropriations process, in your opening 
statement or earlier submitted--when you suggest that the 
appropriations process and current laws and regulations provide 
appropriate checks and balances, are you ratifying the use of 
riders as reasonable?
    Mr. Leshy. Well, riders are a part of the legislative 
process that many people find offensive because they bypass the 
ordinary committee and authorizing committee processes if they 
are put on appropriations bills. I don't think that anybody 
denies that a rider that is attached to a bill goes through the 
process and, signed by the President or veto-overridden, 
becomes law. That is a given. I acknowledge that.
    Mr. Cannon. Mr. Leshy, in the President's statement when he 
designated the monument, he said, we will save the Grand 
Escalante canyons and the Kaiparowitz Plateaus of Utah for our 
children.
    Could you explain exactly what these lands were being saved 
from?
    Mr. Leshy. The Antiquities Act is authorized as a 
proclamation of national monuments. It is an affirmative act of 
recognition of the value of scientific and historic resources 
found on those lands. It is also a means of protecting those 
resources. So it is really both. I think the proclamation at 
Grand Staircase goes into great detail describing those 
resources, what their value is, and why they should be 
protected. The proclamation speaks for itself.
    Mr. Cannon. What was it that we were trying to protect 
there? What were we protecting those resources from? What was 
the danger to those resources?
    Mr. Leshy. Well, this area of southern Utah had probably 
been debated in terms of how it should be managed more than any 
other area of Federal land that I know of for the last 25 
years. There had been a huge debate dating back to the late 
1960s, early 1970s, about whether this area should be 
industrialized. As you probably remember, there were proposals 
to build coal-fired power plants in southern Utah in the Grand 
Staircase area by southern California. That goes back to the 
early 1970s.
    Mr. Cannon. Those go back, way back. What at the time of 
this monument designation was the danger that was perceived by 
the President that precipitated such dramatic action that so 
dramatically affected the lives of so many American citizens?
    Mr. Leshy. Some of those proposals to industrialize that 
area continued. There were coal mining proposals that were 
pending at the time.
    Mr. Cannon. The coal mining, was that the precipitating 
factor?
    Mr. Leshy. As I said, there were a number of precipitating 
factors, including the fact that the future management of this 
area, should it be industrialized or not was an issue. There 
was also a sense, I believe, as the proclamation itself 
expresses, that there are important historic, scientific, 
cultural values in this area that ought to be protected.
    Mr. Cannon. What made it, what precipitated, what caused 
the action to actually happen? Was there a danger other from 
the coal mining that made it so important that the President in 
secrecy go around any kind of open process and designate this 
monument? Was there something that was urgently in need of 
protection?
    Mr. Leshy. First of all, there is no requirement in the 
Antiquities Act that there be an immediate threat or danger. 
The Antiquities Act says if the President identifies important 
scientific, historical, cultural resources on the Federal lands 
that he thinks ought to be given recognition and protection, he 
can exercise the power under the Antiquities Act. This was not 
done in secret.
    For the last several weeks leading up to the proclamation, 
there was an active vigorous debate involving the Utah 
delegation, the Governor of Utah, and many other people about 
whether this should be done and how it should be done. I 
participated in some of those discussions with members of the 
Utah delegation. During those discussions we heard concerns 
about if the President does this, what is going to happen to 
water rights; what is going to happen to hunting, fishing, 
grazing; which agency is going to manage this area. All of 
those concerns were expressed to the President, to the 
Secretary and others in the days leading up to the 
proclamation. Frankly, I am happy to say that the proclamation 
addresses each one of those issues, because that consultation 
process, while brief, worked, and the President listened, the 
Secretary listened, and the proclamation is unprecedented in 
its detailed address of those issues. While we heard lots of 
complaints about how short that----
    Mr. Cannon. My time has, in fact, expired. I do hope that 
we will have another round of questioning.
    Mr. Hansen. We will have another round of questioning. The 
time for the gentleman from Utah has expired.
    The gentleman from Colorado, Mr. Udall.
    Mr. Udall of Colorado. Thank you, Mr. Chairman. I want to 
welcome the solicitor. It is good to see you here today. I want 
to start out just asking you under the Antiquities Act, is it 
your opinion that anybody but the President can establish a 
monument?
    Mr. Leshy. Mr. Chairman, Congressman Udall, that is a very 
interesting question. I don't know that anybody knows the 
answer. It has only been the President who has done it. The 
President, as far as I know, in 93 years, none of the 17 
Presidents that have lived under this have ever tried to 
delegate that power to the Secretary of the Interior or 
somebody else. It has been regarded certainly by practice as a 
uniquely Presidential power.
    Mr. Udall of Colorado. So whatever may have been going on 
in your Department, the decision to establish the Grand 
Staircase was made by the President himself; is that right?
    Mr. Leshy. I want to make it absolutely clear. This process 
was initiated by the President, by the White House. We did not 
start working on this proposal or recommendation until we were 
asked to do so by the President of the United States, and the 
President ultimately made the decision.
    Mr. Udall of Colorado. Is it your opinion that the decision 
was made in compliance with the Antiquities Act and all of the 
other applicable laws?
    Mr. Leshy. Yes. It is our firm position that the President 
acted well within his authority, that all of the processes 
required by law were followed.
    I should add that there is a litigation pending in Utah as 
I speak involving the Mountain States Legal Foundation. It's a 
plaintiff that is challenging our authority in the processes. 
We are confident that we are going to win that litigation. The 
courts will tell us.
    There have been a number of cases over the last 93 years in 
court that have involved challenges to the President's exercise 
of power. The Supreme Court of the United States in 1920 
unanimously upheld Teddy Roosevelt's designation of the Grand 
Canyon as a national monument, rejecting all legal challenges. 
Grand Teton by Franklin Roosevelt was challenged in court and 
upheld. Jimmy Carter's exercise of Antiquities Act authority in 
Alaska was challenged in court and upheld. We have had legal 
challenges, and the government has won them all.
    Mr. Udall of Colorado. It appears to me then that today we 
are not discussing whether or not the law was followed, but 
whether we ought to change the law. The question becomes would 
it be better for the purposes of the Antiquities Act and for 
the country to change it or continue to use it in the way that 
it has been applied in the past. Would you agree?
    Mr. Leshy. Yes.
    Mr. Udall of Colorado. Let me ask you a couple of questions 
about the proposal itself. There are lands that potentially the 
Secretary would not administer for which he would have to 
prepare an EIS. Do you think this would present problems?
    Mr. Leshy. Yes, it could present problems because sometimes 
speed is important. Decisive action is sometimes necessary. In 
the Grand Staircase, I should point out that the President made 
it very clear in the proclamation that the on-the-ground 
management of this area would be determined through an open 
public process creating a management plan for the monument that 
would fully comply with NEPA. We are in the middle of that 
process now. We have gone through a draft plan, public 
hearings, environmental impact statement, et cetera. The final 
environmental impact statement is under preparation now, and we 
will be out with a final plan this fall. So NEPA applies to the 
detailed management of this monument once it is created.
    Mr. Udall of Colorado. So right now there is this EIS 
process going on, and it seems like it is working well, from 
all that I have heard. There is a great amount of input. Would 
you care to comment any more on the process itself?
    Mr. Leshy. I think it is working well. This is a 
complicated undertaking. We are managing nearly 2 million acres 
of land and trying to set the management guidelines for that 
area. You obviously can't please everybody, but there has been 
a very vigorous public involvement. We have had well-attended 
public hearings. We have had thousands of comments from people 
all over the country, as well as people in Utah, about the 
management plan. We have devoted a lot of time and effort to 
it, and we think it is working well.
    Mr. Udall of Colorado. One last question, I believe. I have 
some concerns that the requirements in H.R. 1487 might open up 
the action of the President to judicial review prior to that 
final decision. Do you read it that way? Would you care to 
comment on that?
    Mr. Leshy. Well, it is certainly possible. NEPA actions, 
the adequacy of environmental impact statements, generally 
speaking, are subject to a judicial challenge, and sometimes 
injunctions are possible against Federal actions. The President 
has never been subject to NEPA. The CEQ guidelines from the 
very beginning of NEPA have made it clear NEPA does not apply 
to Presidential decision-making. NEPA also does not, as you 
probably know, apply to congressional decision-making.
    The President in a sense is the most politically 
accountable person in the country. He is the only person who 
stands up in front of all of the people subject to periodic 
elections, and in that sense his actions are the most visible, 
accountable things that we have. It has never been understood 
that NEPA applies to Presidential decision-making. NEPA was 
intended to open up agency, Federal agency, decision-making by 
the unelected bureaucrats that we speak of and not to 
Presidential action.
    I should also point out that H.R. 1487 does not simply 
apply NEPA to the Antiquities Act. It goes beyond NEPA in a 
number of important respects to make it even more cumbersome 
and more difficult, more procedural requirements than NEPA 
itself or the CEQ guidelines require. If you add up the time 
requirements for public hearings and comment periods and all of 
that, it is a 2- to 3-year process if you would comply with 
that process in H.R. 1487. It is interesting that H.R. 1487, as 
I read it, only gives the President emergency protective 
authority for 2 years. So I am not sure the Act would even work 
well because you would, in essence, lead to unprotected areas; 
the 2-year period would expire before you finish the process 
requirements of H.R. 1487. So it is a real problem in its 
mechanics, I think.
    Mr. Udall of Colorado. Thank you Mr. Leshy. Thank you, Mr. 
Chairman.
    Mr. Hansen. Thank you.
    Mr. Leshy, when I outlined to you the procedure that you 
went through, you said it wasn't true. I would agree with you, 
the procedure is true. Where I would agree with you is that you 
hadn't narrowed it down to the Grand Staircase-Escalante, and 
that is true. You are correct in that statement. But as you 
know, we subpoenaed all of these papers. Unless all of this 
stuff we subpoenaed from you is wrong, then I guess that we 
have got a problem here. But there were other areas that you 
were looking at.
    Also, let me state this. NEPA, in effect, asked for public 
input. That is basically what we are looking at. Now, if I have 
got this gob of papers in front of me coming from people from 
the White House and others, let me go to Mr. Udall's question, 
why is it that this administration tried so hard for this not 
to get out? Quote, ``Some of the people in the White House said 
it is imperative this does not get out. If this gets out, the 
whole deal is off.''
    Why is it that this administration and this Interior 
Department did not want this information to get out?
    Mr. Leshy. Well, first of all, as I said, the planning for 
the Grand Staircase started in early July of 1996, and it got 
out, information got out, and the proposal was made public, in 
essence, in either late August or early September. So the very 
early stages were conducted without public involvement. That 
was a decision the White House made. We were responding to the 
President's request for information, advice, and 
recommendations. And obviously, it is not up to us to decide to 
make public those deliberations or not. But it did, word 
eventually did get out.
    As I said, there was a vigorous, if brief, but very 
vigorous public debate over several days in September about 
whether and, if so, how this should be done. The President, I 
believe, took all of that debate into account and all of the 
issues that were raised during that consultation process into 
account in putting the final proclamation together.
    Mr. Hansen. The proclamation was already drafted at that 
time, if our records are correct, and didn't change one iota.
    Mr. Leshy. There were changes. I can recall at least one or 
two changes made literally at the very last minute.
    Mr. Hansen. We could see some minor changes. We didn't see 
any substantive changes.
    Also, Mr. Cannon brought up the idea of this, as to what is 
it that you were protecting--actually the President in his oral 
statement said that he wanted to stop the mine. Tell me, have 
you ever been to that mine site? Has Mr. Babbitt ever been to 
that mine site? Has the President ever been to that mine site? 
Has the Vice President ever been to Smokey Hollow?
    Mr. Leshy. I have been. I believe the Secretary has been. I 
don't know about the President or the Vice President.
    Mr. Hansen. What did you find there? You said that you have 
been there.
    Mr. Leshy. Yes, I have been there.
    Mr. Hansen. I have been there a number of times. Describe 
to the Committee what it is like, would you, please?
    Mr. Leshy. It is in the heart of a very remote area. In 
fact, I do recall that when we were in the early planning 
stages looking at this area, Car and Driver Magazine 
coincidentally----
    Mr. Hansen.  What is the ground covered with other than 
sagebrush? Did you see anything unique and beautiful, Mr. 
Leshy?
    Mr. Leshy. According to the geological studies that have 
been done, very interesting geology. I think the Kaiparowitz 
Plateau where this mine site is in the heart of has been 
described as having world-class paleontological deposits, 
scientific resources that tell us about the past of the Earth. 
It is one of those great places that has a lot of geologic and 
scientific information.
    Mr. Hansen. If I may interrupt you, the geologist from the 
State of Utah said this mine site is no different than millions 
of millions of acres all throughout the West. In fact, when we 
were trying to find it the last time, the pilot, even with 
ground positioning stuff, couldn't find it because every hill 
looked alike for 50 miles. But we all have our own 
interpretation of beauty. I will surely acquiesce to that.
    Let me go back to one other thing you point out. The bill--
if I am correct, the law says, ``And he shall use the smallest 
acreage available to protect the site.''
    The Golden Spike site is infinitesimal. Some of those are 
infinitesimal. By that I am not referring to the Arches 
National Park, I am referring to the one in Grand Canyon, the 
Rainbow Bridge. How come we need 1.7 million acres to protect 
that site when the law says the smallest amount? The mine site 
was only 40 acres.
    Mr. Leshy. If you look at the proclamations done through 
history, I think you will find that the sizes of the monuments 
vary dramatically from a few acres to--I think the biggest one 
is 11 million acres in Alaska. The size is dictated, I think, 
faithfully in accordance with the statute by the resources you 
are protecting. In the Grand Staircase the proclamation goes on 
at some length about all of the different kinds of resources 
there and what their extent is.
    Mr. Hansen. They just pulled them all together; 50 Mile 
Mountain, Burning Hills, Paria Canyon, the mine site? They 
said, okay, we will just get them all in one big fell swoop and 
not go to the law, which says we protect one site; is that what 
you are saying then?
    Mr. Leshy. We follow the guidance of the unanimous decision 
of the Supreme Court of the United States in 1920 where exactly 
this question was raised, where people challenged the creation 
of the Grand Canyon National Monument, what was in the Grand 
Canyon National Monument, by saying that it is way too big, you 
are not following the intent of the law. The Supreme Court, 
frankly, just brushed it off saying, you are talking about a 
resource that is certainly a very large resource, but who is to 
say that that resource does not have historic and scientific 
value? The Grand Canyon is one of the great places on Earth.
    Mr. Hansen. Mr. Leshy, I see my time is up. We will have 
another round.
    I want to go back to what you said about the statement from 
Mr. Kalen to you and Mr. Watts, and Mr. Baum, and read that 
back to you, because it is contrary to what you have stated.
    I will now turn to the gentleman from Minnesota and then 
the gentleman from Tennessee and then the gentleman from 
Pennsylvania. The gentleman from Minnesota is recognized for 5 
minutes.
    Mr. Vento. Mr. Leshy, I guess the issue, of course, here in 
terms of this bill is--I think the spirit of it is to try to 
provide more public participation. I think that obviously tries 
to superimpose the NEPA process, which I think was your 
response to Congressman Udall's comments. You pointed out that 
it would be the first time that any Presidential action would 
be subject to NEPA, and that the Courts and the Congress are 
not subject--our actions are not subject to NEPA. Is there a 
constitutional question, do you believe, in that vein?
    Mr. Leshy. Well, I am not sure. There could be. For 
example, the Constitution quite clearly gives the President the 
power, the specific authority, to ask subordinates for their 
opinions and advice, the so-called opinion clause in the 
Constitution in Article II. To the extent that the Congress 
wants to interpose some sort of procedural or public disclosure 
requirements on that advice, it could well raise a 
constitutional issue. I haven't looked at that issue closely. 
Clearly, the President--the Antiquities Act itself is a 
creature of Congress, and so the antiquities, Congress clearly 
has some power to modify it or even repeal it, I suppose. I am 
not sure that there is a serious constitutional question there, 
but there could be.
    Mr. Vento. What is the status, Mr. Solicitor, with the NEPA 
and with the some of the lands use planning? How would you say 
that NEPA is best used today generally in terms of public 
domain or other types of public lands? I think initially when 
NEPA was first enacted, that there was a lot of problems and 
delays, but it is pretty efficient. Most of our lands, for one 
reason or another, under the various FLPMA process or other 
general management plans for parks, we are really going through 
it. Most of our lands have been subject to at least an 
environmental assessment at various times and EISs; is that 
correct?
    Mr. Leshy. Yes. I should point out that, frankly, in the 
Grand Staircase situation, there had been, as I mentioned 
earlier, a number of proposals to industrialize the area. There 
was NEPA applied to those reviews. The Kaiparowits power plant 
that was proposed in the early 1970s, there was a big 
multivolume environmental impact statement done on that 
proposal. The proposal eventually went away, but that process 
produced a lot of useful information.
    Mr. Vento. Parts of it has been subject to wilderness study 
and review; is that correct?
    Mr. Leshy. Absolutely. Many of those were also accompanied 
by environmental impact statements. The BLM's original 
inventory, the wilderness study area established in the late 
1970s and the BLM land use planning in that area has also been 
subject to environmental impact statements. So there were a 
number of layers of environmental impact statements and review 
in that area already present when the President acted.
    Mr. Vento. One of the issues, of course, has been whether 
or not under FLPMA, where we were with some of the formal plans 
for the BLM lands. I remember chairing committees and working 
with John Seiberling. They point out they were really way 
behind in the 1980s in terms of getting this information up to 
date because it didn't have the funding. And today we have sort 
of a 10-year cycle. I guess probably your report to me would be 
back with the same circumstances.
    Mr. Hansen. Would the gentleman from Minnesota yield?
    Mr. Vento. Sure, I would be happy to, Mr. Chairman.
    Mr. Hansen. I appreciate that.
    Let me point out that when the EIS was done on this piece 
of land, the finding was there was no significant impact. That 
was the finding on EIS. I appreciate the gentleman yielding.
    Mr. Vento. I would be happy to yield, Mr. Chairman.
    What I am trying to suggest is that there is a body of 
information, whether it is supported or didn't support, but 
there was information available, and it was done, and obviously 
we have got this problem with this 10-year cycle where we have 
got a commitment to do this, but we don't do it every 10 years 
simply because of limits in terms of funding. I would suggest 
that might be a place that you would want to put some 
additional resources so that we are up to speed. But the 
information is out there. Is there any problem with suggesting 
that the administration would have to look at existing 
information since there is a base of information, some at EIS 
and some EAs, you know, and many other--actually, it is much 
more complete than just an EIS, isn't it, because an EIS has a 
specific target in terms of use. In one way this would be even 
more comprehensive. It might have been studied for an ACEC; is 
that correct?
    Mr. Leshy. Yes. All of those things are possible. There is 
a wealth of information available, public information that, as 
I said, a great public debate about how this area--Grand 
Staircase--should be managed at the time the President acted. I 
mean this was not just done on a clean slate.
    Mr. Vento. So I think the question only here, I think a 
valid one that is being raised in terms of how does the public 
or how can the public participate in this particular process, 
because clearly Grand Staircase-Escalante National Canyon, or 
whatever is being designated, or put it under the Antiquities 
Act and give monument status there is--we are talking an 
emergency situation generally, are we not, that there is some 
threat to it, some action that needs to be taken, is that 
right?
    Mr. Leshy. Yes, there is no requirement in the law that 
there is an emergency or a threat, but in fact if you look at 
history, a number of national monuments were created in 
situations where there was some sort of an immediate threat. 
But it doesn't have to be.
    Mr. Vento. I mean we have got a wealth of information 
albeit it isn't precisely tailor made to the exact--to a 
monument status and for how long. And the monument status can 
be temporary and very often is, isn't it? Very often Congress 
has come back and decided those decisions, you know, by 
declaring wilderness, by making parks and I know the Alaska 
situation, by very often ratifying what the President has done, 
but I expect not always.
    Mr. Leshy. That is right. Very often Congress comes back 2, 
10, 15, 20 years later, and confirms the monument status or 
changes it into a park or some other form of status.
    Mr. Vento. Expands the bill. I think that is the balance 
and, of course, you can come back, I mean, I don't know what 
harm is done here, in terms I guess probably. But you have to 
honor all patented claims. You cannot take private land, all of 
that, those rights were all preserved, are they not?
    Mr. Leshy. Yes, first of all, the Antiquities Act applies 
only to Federal lands so we cannot set aside private or state 
lands, only Federal lands, as a national monument. And second, 
all proclamations are subject to valid existing rights or 
whatever property rights exist on the land.
    Mr. Vento. Obviously you have been under the firing range 
for a few years. I can understand my colleagues' concerns about 
it, so I have sat through a few of these hearings and I guess 
we are going to sit through a few more. But thank you, Mr. 
Leshy.
    Mr. Hansen. Thank you, Mr. Vento. Let me just exercise a 
priority of the chair and make one statement, we are barking up 
the wrong tree on some things here. The President is not 
subject to NEPA under this Act that is being proposed, 
regardless what you have heard. As John Sideman says, when all 
else fails read the Act. And I am not accusing you, Mr. Vento, 
I don't know anybody that spends any more time reading it. The 
bill asks the Secretary to do the NEPA work, not the President. 
It just sets the completion of the EIS by the Secretary's 
condition must be met prior to the Presidential proclamation. 
Let's get that thing ironed out right now.
    The gentleman from Tennessee.
    Mr. Duncan. Thank you, Mr. Chairman.
    Let me read a portion of the briefing paper that we 
received on this, it says--in regard to the designation of the 
Utah monument, it says that the President used the Antiquities 
Act to thwart public input into Federal land management not to 
protect land. President Clinton's creation of the Grand 
Staircase-Escalante Monument in September of 1996 is a prime 
example of the need for more public input in national monument 
decisions.
    Documents obtained from the Clinton Administration show 
that the monument was being planned for months, yet the State 
of Utah was not informed of the decision to create a monument 
until 2 a.m. The morning that the proclamation was signed.
    The documents show that the monument decision process was 
kept secret in order to help Clinton's reelection campaign.
    Now, let me say this, following up on what the chairman was 
talking about a while ago. It is simply false, it is not true 
to say that the public knew about this or that word got out. We 
were told in testimony by the Governor of Utah that he did not 
find out about this until he read about it on the front page of 
the Washington Post and he didn't find out about this until--
and he had to desperately try to get ahold of the President at 
1 or 1:30 in the morning, and as the briefing paper says, he 
got final information at 2 o'clock in the morning of the day 
the proclamation was signed.
    And then in one hearing that we held later on on this, we 
actually had a memo or a letter from a law professor in 
Colorado who was on the committee that used words to the effect 
that he couldn't overemphasize the need for secrecy.
    And this is the kind of thing that used to go on in 
Communist countries, all of this--all of these big important 
decisions being made in secret, with trying to suppress as much 
public involvement as possible. It is shocking that this type 
of thing could go on in the United States of America. And you 
are talking about a great deal of land here.
    I represent a big portion of the Great Smoky Mountains 
National Park. It is the most heavily visited national park in 
the country with 9 or 10--9\1/2\ to 10 million visitors a year, 
the entire Great Smoky National Park is 565,000 acres. You are 
talking about here three times that much, 1.8 million acres.
    I guess because we talk about billions all the time, we 
regard a figure as 1.8 million as not being really significant.
    And then another thing that gets me whenever we have a 
hearing on this, we always hear from the other side about 
Theodore Roosevelt, that he was the first person to use this, 
because he was a Republican President that most Republicans 
still revere, it is just like we are supposed to accept 
anything that is done under this Act.
    Well, the situation is totally different today from when 
Theodore Roosevelt was in office. In fact, I think Theodore 
Roosevelt would be shocked if he knew how much land was under 
public ownership today. Theodore Roosevelt--I could come in 
here with all kinds of quotes about how he believed in private 
property.
    But today and especially over the last 25 or 30 or 40 years 
more and more and more land has been taken over, so that today 
almost one-third of the land of this country is owned by the 
Federal Government, another 20 percent is owned by State and 
local governments and quasi-governmental units, so over half 
the land today is in some type of public ownership.
    And this bill that is before us does not say that we have 
to do away with the Antiquities Act. Although this briefing 
paper says--points out that we now have in addition--this is 
totally different from when Theodore Roosevelt was in there--we 
now have the Archeological Resources Protection Act, the 
National Park Organic Act, the Wilderness Act, the National 
Environmental Policy Act, the Federal Land Policy and 
Management Act, the National Forest Management Act, and on and 
on and on.
    We have so many laws protecting land and putting land in 
public usage that there is really, as this briefing paper says, 
there is no need for this Antiquities Act anymore unless you 
just want to do something so that there can be no public 
involvement, so all that this bill before us is attempting to 
do is to try to allow a little more public input into these 
decisions before they are done in the middle of the night or 
done in secrecy so that the public can't be involved.
    You know, it is just a question of, are we going to have a 
government of, by and for the people, or are we going to have a 
government of, by and for the bureaucrats, because that is what 
it has become. And all this is doing is in some--in one, 
little, small way attempting to say that we don't want to have 
a government of, by and for the bureaucrats, we want to have a 
government of, by and for the people.
    And to do the things that was done in regard to this Utah 
thing is--these are decisions that would come from arrogant 
elitists who think they know better how to run everybody's 
life, and they don't want ordinary citizens to be involved in 
these things, because they are not intelligent enough to really 
make the correct decisions.
    And I have been shocked since I first learned about--that 
this type of thing would go on in this country. And I am really 
saddened that we have gotten to the point where the people 
involved in this don't want ordinary citizens to have a chance 
to say something about this, or some participation.
    And I yield back the balance of my time.
    Mr. Hansen. I thank the gentleman from Tennessee.
    Mr. Leshy. Mr. Chairman----
    Mr. Hansen. The gentleman from New Mexico, Mr. Udall.
    Mr. Leshy. Mr. Chairman, may I respond briefly?
    Mr. Hansen. Excuse me, Solicitor. Surely, if you would like 
to have a minute's response, go ahead.
    Mr. Leshy. Thank you, Mr. Chairman. Three very quick 
points.
    First of all, the Antiquities Act, as I said, only applies 
to Federal lands, so it does not bring--the President can't 
bring land, can't take over land, can't bring land into Federal 
ownership that is in private or State ownership. We can only 
designate what the taxpayers already own as national monuments.
    Second, to the extent the briefing paper suggests that 
nobody knew about this, including the governor of the 
delegation, until 2 a.m. on the morning of the day the monument 
was proclaimed, the briefing paper is flat wrong. I think 
everybody involved in the process knows that there was a period 
of several days of discussions and intense consultations in the 
days leading up to the establishment of the national monument.
    Third, and last, this process, the President acted to 
culminate a very long decade's process of intense public debate 
about the future of this area. He exhibited decisive 
leadership, and I think his leadership and his proclamation 
will stand the test of time. It has already had enormous 
benefits for the people of Utah.
    With the help of the chairman of this Subcommittee, we last 
year fulfilled an important promise the President made in 
creating the national monument, which was to give the people of 
Utah and the school children of Utah fair value for the State 
in-holdings that were found in this area.
    And we engineered with the help of the Chairman and others 
a massive land trade where the State of Utah got millions and 
millions of dollars' worth of value for those State in-
holdings. That exchange would never have taken place without 
the creation of the monument.
    And there have been other benefits as well.
    Thank you very much.
    Mr. Hansen. Thank you. Just let me quickly clarify another 
point.
    Mr. Duncan, there were hundreds and thousands of acres of 
schools, trust lands, it may be a gray area whether or not--who 
owns that, but the Constitution gives it to the State of Utah. 
Mr. Leshy is correct, we traded that.
    Would we have been able to do it without the monument? I 
think we would. We go back to one of the fine Democratic 
governors, Scott Matheson, who tried to do that all the way 
back in the 1970s. Scott was a visionary and ahead of his time.
    The gentleman from New Mexico, Mr. Udall.
    Mr. Tom Udall of New Mexico. Thank you very much, Mr. 
Chairman. I am looking at the second page of the bill, down at 
the bottom, and then at the top of the third page, Mr. Leshy, 
and in general, it says here, ``In general, the President, 
subject to subsections (b) and (c),'' and ``may''; and then at 
the top of the next page it talks about ``Compliance With 
National Environmental Policy Act of 1969.''
    And there is a section there that looks to me, under 
subsection (A) and (B), ``an action by an agency of the Federal 
Government, a major Federal agency significantly affecting the 
quality of human life.''
    It looks to me like these two sections clearly put the 
President under NEPA.
    I mean, do you disagree with that?
    Mr. Leshy. No.
    Mr. Chairman, Congressman Udall, I think you are exactly 
right, this bill makes basically presidential action under the 
Antiquities Act subject to NEPA. Yes, the Secretary of the 
Interior, not the President, prepares the environmental impact 
statement; but the President can't act, can't take action under 
the Antiquities Act without those processes being followed.
    So he is basically made subject to those processes, and 
that is unprecedented, I believe.
    Mr. Tom Udall of New Mexico. Thank you very much. The other 
point, it has been said in some of the background and things 
that we have used the Antiquities Act to thwart public input 
into Federal land management, not to protect land.
    Well, my memory is seeing the process that President Carter 
followed as far as public input, that this was a very extensive 
process. I mean, President Carter's action in invoking the 
Antiquities Act came after a very long process starting under 
President Nixon that included extensive studies of areas in 
Alaska that Interior Secretary Rogers Morton withdrew pursuant 
to 17(d)(2) of the Alaska Native Land Claims Settlement Act.
    The Carter proclamations also came after subcommittee 
hearings by Morris Udall. And the subcommittee in Washington, 
Atlanta, Chicago, Denver, Seattle, Juneau, Sitka, Ketchikan, 
Anchorage, Fairbanks and a number of other small town meeting-
type hearings in Alaskan villages.
    The Carter proclamations also came after the House of 
Representatives that passed the Alaska lands bill by an 
overwhelming vote of 300 to maybe 31, 32 opposed, and the bill 
had been reported favorably by the Senate Committee on Energy 
and Natural Resources.
    Also the chairman of the Interior Committee here in the 
House, and the chairman of the relevant subcommittee, Mr. 
Seiberling, wrote the President and asked him to act.
    So I can't see any more of a record that is out there that 
evidences public input than what was done on Alaska with 
respect to the Congress. I don't know if you have any comments 
on that.
    Mr. Leshy. Mr. Chairman, Congressman Udall, I agree 
wholeheartedly, and I think there is a good parallel between 
the experience you described with President Carter and what 
President Clinton did in southern Utah, because there, too, 
there was a very vigorous public debate over the future of this 
area. There were bills pending in Congress to create some 
wilderness and to release other lands from wilderness 
protections pending at this time when the President acted. 
There have been many years of history and public hearings and 
debates on these issue.
    I should also point out that Congress has come back to the 
Antiquities Act after NEPA passed when it reviewed public land 
law generally. When Congress passed FLPMA in 1976, 6 years 
after NEPA passed, Congress discussed whether or not the FLPMA 
process should somehow overtake or result in the repeal of the 
Antiquities Act; and Congress very clearly preserved the 
President's authority under the Antiquities Act when Congress 
enacted FLPMA.
    Similarly, 2 years after President Carter created monuments 
in Alaska, an unprecedented scale, Congress came back to that 
whole issue and passed the ANILCA and there too had an 
opportunity to look at how the Antiquities Act and the exercise 
of authority under that Act had worked, and left it alone 
basically.
    Mr. Tom Udall of New Mexico. Thank you, Mr. Leshy, for 
clarifying the record. I mean, there were clearly two very 
extensive public processes going on under the Clinton 
Administration and under the Carter Administration with regard 
to these kinds of activities. Thank you.
    Mr. Hansen. Mr. Udall, let me point out that under 
President Carter, you are absolutely right. But also what 
happened under President Carter is the Interior Department 
prepared NEPA documents. Under the Grand Staircase there was no 
such thing, no one was made aware of it. In fact, we would like 
to give you the documents that we subpoenaed from the White 
House and from Interior where they went out of their way to 
say, we have to keep this thing quiet.
    The governor of the State was not even made aware of it 
till 2 a.m. On the morning that it happened. The only way--what 
Mr. Leshy said, the administration, we knew about it, we knew 
there was--the Washington Post said we were leaking a story. In 
fact, my administrative assistant, Nancy Blochinger, called up 
Kathleen McGinty the day before and pointedly asked the 
question, We are hearing about this proposed monument in Utah, 
is there any truth in this? And she said, We heard the same 
rumor, but there is no truth in it.
    Now, then, we go back and see the correspondence between 
the White House, entirely different situation if I may say so, 
but I agree, your relatives did a very fine job. I don't argue 
with that, but I surely think there is a tremendous difference 
between the two.
    Thank you very much for allowing me to have that little 
input.
    The gentleman from Pennsylvania, Mr. Sherwood.
    Mr. Sherwood. Thank you, Mr. Chairman.
    What bothers me here a little bit is that if any private 
citizen or any township supervisor or any county official or 
any State official wants to change the use of land in this 
country in a major way, we have very extensive laws that we 
follow; and what you have told me here today is that the 
President designated this monument sort of in the dark of night 
without following those procedures.
    And I think a basic tenet of any democracy is the sunshine 
law; we have in Pennsylvania a sunshine law that goes right 
down to our school boards or anything else. And I don't 
understand why you are concerned about Chairman Hansen's bill, 
which basically just asks that the public be involved, that we 
let the sunshine in.
    When the Governor of Utah learns about 1.8 million acres of 
land in his own State at 2 o'clock in the morning before it 
happens that has to, it seems to me--and I wasn't paying any 
attention at that time, but I listened to my chairman and the 
rest of these folks that have subpoenaed documents, and you are 
saying that there was input.
    We have got a base dichotomy here that I don't understand, 
and I frankly need you to help me understand why you are here 
protesting.
    Mr. Leshy. Mr. Chairman, Congressman, first of all, let me 
say once again, because it keeps being repeated and it is not 
true, this proposed action was generally known well before 2 
a.m. on the morning it was taken. The President, I think, made 
the final decision to go ahead, 2 a.m. in the morning it was 
taken, and I assume probably talked to Governor Leavitt about 
it. But he had talked to Governor Leavitt, and the chief of 
staff in the White House had talked to Governor Leavitt, I 
believe Secretary Babbitt had talked to Governor Leavitt.
    I had personally been in meetings with the Utah delegation. 
Days and days before 2 a.m. on the morning of the proclamation, 
it was generally known and vigorously debated that this was 
under consideration, so it was not, you know, that last-moment 
surprise. There was a very vigorous debate in the days leading 
up to the proclamation as to whether or not the President 
should do it or not.
    Second, as I said before, H.R. 1487 doesn't simply sort of 
say, ``Let the public know.'' It has an extremely elaborate set 
of processes that goes well beyond what NEPA now requires for 
ordinary Federal action before the President can act.
    And it, for the first time, I believe, in history, applies 
the National Environmental Policy Act to the President himself 
in making discretionary decisions. That is something that 
Congress has not imposed on itself. Congress has never imposed 
that on the President before; it has been well understood for 
the last 29 years that NEPA does not apply to Presidential 
action. And that is a very significant step, I think, to take.
    Third, these proclamations, if you look throughout history, 
do involve usually some form of consultation; and again, it is 
usually the President acting after a very extensive and 
vigorous public debate. In the case of the Grand Staircase, 25 
or 30 years of public debate about whether and the extent to 
which this particular area should be protected and how it 
should be managed, the Federal lands in these areas.
    So we think there is really nothing broken here to fix, and 
that H.R. 1487's remedy goes way beyond what existing law would 
require and creates a whole host of problems and, frankly, I 
think would undermine the implementation of one of the most 
successful laws that we have.
    If you just look around at the areas that have been 
protected under the Antiquities Act, it is an amazing 
collection of areas. I don't know of anybody who would point to 
the Grand Canyon or Acadia National Park or Olympic National 
Park and say, ``That was a mistake, protection of that area was 
a mistake.'' To the contrary, I think every one of those areas 
that was first protected by a monument is an amazing success 
story, and we ought to preserve that authority and that record.
    Mr. Sherwood. Well, I would have to agree that those 
previous actions have probably been good, but I don't 
understand why you think that the President should be able to 
act without the same adherence to the law that the rest of the 
world be asked to abide with.
    These public lands belong to everyone, not just the 
President. At a recent hearing with the Senate Energy 
Committee, Secretary Babbitt denied consideration using the 
Antiquities Act on the coastal plane of the ANWR, and I think 
you were staffing the Secretary at that hearing, were you not?
    Mr. Leshy. Probably. I don't recall specifically.
    Mr. Sherwood. Do you agree with his answer that the 
Antiquities Act would not be used?
    Mr. Leshy. As far as I know. I obviously can't speak for 
the President, but as far as I know, certainly the Interior 
Department, there are no discussions or deliberations going on 
about using the Antiquities Act in the Arctic refuge.
    Mr. Sherwood. Thank you very much.
    Mr. Hansen. Again, let me just say--I don't mean to take 
you on, Mr. Leshy, but you didn't have a conversation with me 2 
weeks before. You didn't have a conversation with Orrin Hatch. 
You didn't have a conversation with Bennett. You didn't have a 
conversation with Enid Greene, nor did you have a conversation 
with Bill Orton.
    We have discussed wilderness, and if we want to take your 
words apart, protection of the ground has been discussed since 
either you or I were born. But--and we can accept that from the 
days of Brigham Young. But no one had a conversation with us, 
this delegation, regarding this antiquities law; that just 
happens to be a fact.
    Do you want to respond to that?
    Mr. Leshy. Yes, Mr. Chairman. I have a very distinct memory 
of a Saturday morning meeting, my guess is, about 10 days or so 
before the President acted on September 1st in Secretary 
Babbitt's conference room. I am not sure you were there----
    Mr. Hansen. I was not there.
    Mr. Leshy. [continuing] but many members. Senator Hatch was 
there, Senator Bennett was there, at least a couple of House 
Members were there. And we had--and Secretary Babbitt chaired 
the meeting. I think Katie McGinty was there, I was there, two 
or three other staff members. We had a 2-hour, I think, 
discussion talking about what was being considered and the 
potential issues with it and an intense meeting. And there was 
a lot of full and frank discussion, as the diplomats would put 
it.
    Soon after that, I think 2 or 3 days later, I led a number 
of Interior Department people up to, I believe it was Senator 
Bennett's office, where I think the staff from most of the 
delegation members were present. We had another 2- or 3-hour 
discussion about the Grand Staircase, the proposed 
proclamation, the potential issues with it.
    As I said, we had talked at both of these meetings about 
who is going to manage this monument if the President decides 
to go ahead: Is it going to be the Park Service, is it going to 
be the BLM, or who? What are you going to say in the 
proclamation about water rights, if anything? What are you 
going to say in the proclamation about grazing? What are you 
going to be saying about hunting? What are you going to say 
about fishing, et cetera?
    And each one of those issues is addressed in the 
proclamation. And frankly, I believe it is addressed, generally 
speaking, to the satisfaction of the interests in Utah, that 
is, we're not claiming a Federal water right, grazing is 
protected, hunting and fishing is preserved, the Bureau of Land 
Management manages the monument, not the Park Service, which 
was something the Governor, I believe, and members of the 
delegation were very interested in.
    All of that discussion took place in the days leading up to 
the proclamation.
    Mr. Hansen. I don't want to get into a kicking match with 
you, but the recollection of the Senators as they explained it 
to me is a little bit different. And, of course, being the 
chairman of the Committee, I was omitted from these things, and 
I don't mean to let my ego show, it doesn't really bother me 
much; either way you could do it anyhow.
    That is not the issue before us today; the issue before us 
today happens to be public input. Public input is the whole 
issue before us.
    The gentleman from New York, Mr. Crowley. No comments.
    The gentleman from Utah, Mr. Cannon. Thank you.
    Mr. Cannon. Thank you, Mr. Chairman.
    My recollection of that meeting that you had is actually 
just the 3 days before, just the weekend prior to; could that 
be possible?
    Mr. Leshy. Mr. Cannon, I'm sorry, I don't remember exactly. 
I know it was days before, because I know at least a couple of 
days after that--that was a Saturday morning, I have a very 
distinct recollection of that.
    Mr. Cannon. You probably wouldn't quarrel about a week 
except you quadrupled or tripled the amount of time available 
for notice if it was 10 days or 3 days. My recollection is it 
was just the weekend before the designation.
    Let me just point out to the gentleman from Pennsylvania 
that the designation was not done in the dark of night, that 
was--that was the hearings that happened in the dark of night, 
2 o'clock in the morning of the designation.
    Now, Mr. Leshy, you said that the Antiquities Act can only 
designate what the Federal Government already owns, that is 
Federal lands, and that statement is true to a large degree.
    But isn't it true that that goes--that is probably too 
broad a statement, because there are many other property rights 
that are involved in land including, for instance, roads?
    Mr. Leshy. I am sorry, including what, I didn't hear.
    Mr. Cannon. For instance roads.
    Mr. Leshy. Oh, well, yes, Federal land--the Antiquities Act 
only authorizes the President to set aside, proclaim monuments 
on Federal lands. Sometimes those Federal lands are encumbered 
with mineral leases, rights and things like that.
    Mr. Cannon. We have a package of property rights and those 
are embodied even in Federal law, and not to be disrespected. 
The Department of the Interior is now suing Garfield County for 
civil damage to a road called the Burr Trail. Are you familiar 
with that?
    Mr. Leshy. Generally, yes.
    Mr. Cannon. Do you know particularly how many residents 
there are in Garfield County?
    Mr. Leshy. No, not exactly, a few thousand.
    Mr. Cannon. A few thousand, 5,000 or more; this would not 
surprise you, that ballpark?
    Mr. Leshy. Yes, that sounds right.
    Mr. Cannon. How much do you expect--by the way Garfield 
county has about 98 percent of its land base is federally 
owned. What do you think the cost of that lawsuit has been to 
the county?
    Mr. Leshy. I have no idea. It has been----
    Mr. Cannon. Would a couple of hundred thousand dollars be 
in the ballpark?
    Mr. Leshy. I really--I couldn't say. It has been a 
difficult piece of litigation, I think, for all concerned. We 
have tried repeatedly to settle it, and Garfield County has 
tried to settle it over the years.
    Mr. Cannon. I am not actually quite so much interested in 
that as the process that the Department has gone through under 
your direction and the direction of the President and Vice 
President. The fact is it would not surprise you if it cost in 
the ballpark of a couple hundred thousand dollars for that 
county to litigate that road?
    Mr. Leshy. I really can't say. I don't know.
    Mr. Cannon. Would that be way high?
    Mr. Leshy. I'm sorry.
    Mr. Cannon. Would $200,000 be way high for that kind of 
litigation?
    Mr. Leshy. I don't know. I have no idea what they are 
paying their lawyers. I don't know.
    Mr. Cannon. But you practiced law.
    Mr. Leshy. I don't know how many motions have been filed, 
et cetera. I really can't say, I can't speculate.
    Mr. Cannon. Do you think it is important that a tiny county 
with 5,000 people spend something in the ballpark of $200,000 
to defend an action that you bring against them?
    Mr. Leshy. I can only tell you that we have been very 
interested for years in settling this litigation. We think we 
have put on the table many reasonable proposals to settle it. 
We have had the governor involved in trying to broker a 
settlement, we called in an inside----
    Mr. Cannon. The amount after issue is $7,000 in damage to 
the road that the government has claimed. What has been the 
problem of settling it? It is an etiological problem, is it 
not.
    Mr. Leshy. I think to some extent it is an argument about 
whether or not the county has a free hand to take actions to 
improve or enlarge the road and the right-of-way without 
consent, inside the national park.
    Mr. Cannon. Without the consent of the Department of 
Interior.
    Mr. Leshy. That is correct.
    Mr. Cannon. And it really comes down to the nature the 
ownership of those roads, whether they are owned by the State 
or whether they are controlled by the Department of the 
Interior? Is that not what you are doing in Garfield County?
    Mr. Leshy. No, not exactly, Mr. Chairman, Congressman 
Cannon. What the--the issue is not whether the county has a 
valid right-of-way in the Burr Trail. The issue--that right-of-
way goes through the heart of Capitol Reef National Park and 
the issue is what is the right of the Park Service that owns 
the underlying title and the borders of that right-of-way to 
control what happens in terms of enlarging that right-of-way. 
It is a regular--it is an issue of regulatory control not 
ownership.
    Mr. Cannon. The issue is not enlarging the right-of-way, 
but whether that right-of-way exists because you are not 
talking about enlarging a right-of-way in that particular case.
    But let me just congratulate you on keeping a straight face 
while saying there is a--there was consultation, albeit brief, 
on the reference to the 2 a.m. phone call between the governor 
and the President, where I think many of the issues which 
actually were considered were put together in a handwritten 
form and faxed to the President and not exactly what I would 
call a public input. That was, by the way, on the morning of 
the--2 a.m. In the morning on the morning of the designation.
    Mr. Leshy. Mr. Chairman, if I can just add a footnote to 
that, I believe that Governor Leavitt had an extensive 
conversation, I can't recall if it was telephone or in person, 
with then Chief of Staff Panetta, days before that about----
    Mr. Cannon. My time is about to expire.
    Mr. Leshy. About Grand Staircase.
    Mr. Cannon. I understand. I am congratulating you for the 
straight face you are putting on this. You deserve that. I want 
to point out that you did send a letter to Professor Wilkinson, 
you did, telling him to keep this secret?
    Now, I think this comes down to just a difference in view 
of governance between you and this administration, this 
President, this Vice President, and what I view and I think 
many Americans view as the proper rule of governance. I don't 
think that it is the role of Congress to override a President 
who pushes the envelope with a two-thirds majority of the 
Congress.
    I don't think that is how it ought to be done. I don't 
think even when a President does truly bone headed things that 
the responsibility ought to be on Congress not to have more 
than a third of its members so etiologically bound to the 
President that you can't override what he does.
    I believe there is a rule of law that requires a President 
to be considerate of the effects of what he does as opposed to 
looking at the law and seeing where the edges and however he 
can push that edge to advance his etiological interests and 
those of his Vice President and his narrow base and group of 
constituents.
    Thank you. I yield back, Mr. Chairman.
    Mr. Hansen. Thank you. In defense, it wasn't totally in 
public. The environmental community was made aware of this in 
great detail, and that is why they were there, Mr. Redford and 
a few others. Some of the citizens of Utah didn't quite have 
that benefit, however.
    The gentleman from Minnesota.
    Mr. Vento. Well, thanks, Mr. Chairman, I was--I didn't get 
to the Burr Trail today. I traveled it and obviously it is 
passable on a dry day. I don't know if I want to go across that 
clay but it would involve a lot of modification to make it 
usable year-round, and transportation in any of these remote 
areas, besides water, one of the big issues in terms of the 
community like the county of Garfield. But, you know, the 
unilateral paving of that, trying to improve it obviously is an 
action within the park, and it has to be addressed.
    I am sorry to hear that it has persisted as a case, because 
clearly Congress did not respond to that during our work on it 
with then Senator Garn and others.
    Mr. Leshy, on the 1978 Act, I don't know how much you know 
about the NEPA process, but the NEPA process wasn't aimed at 
the monument designation, was it; it was simply a NEPA process 
that had been developed generally in terms of the D2 lands?
    Mr. Leshy. That is exactly right. There were environmental 
documents in preparation under NEPA at the time Carter, 
President Carter, acted, but they were a separate process and 
that goes back, as you said, Congressman, to the--I guess it 
was the native claims action, section D(2) that created the 
process for studying the future of these Federal lands in 
Alaska, and those--Congress put a withdrawal on those lands 
that expired in 1978 by terms of law.
    And it was the continuation of that proposed withdrawal 
that was subject to NEPA and then NEPA documents were prepared. 
The President created the national monument with that in the 
record, but it was not NEPA on the monument creation.
    Mr. Vento. And I think that my institutional memory here, 
that in fact President Carter at that time did direct Secretary 
Andrus to look at other actions that the Secretary may take in 
terms of exploring all the options to protect the land and of 
course the Secretary's actions would have been subject to the 
NEPA; is that correct, Mr. Leshy?
    Mr. Leshy. Well, the President had asked the Secretary to 
give him Antiquities Act recommendations among others. And that 
issue was litigated actually, because after the President 
created the monuments in Alaska action, the State brought a 
lawsuit saying the President should have been subject to NEPA 
and the Secretary should have been subject to NEPA, and the 
court basically threw out all of those challenges and, among 
other things, said that there could be a constitutional 
problem, because the President's entitled under the 
Constitution to ask for the advice of his subordinates. And if 
his--and it is certainly appropriate in some circumstances that 
that be a confidential kind of advice, and if the Congress is 
going to come in and interfere with that, it could raise 
constitutional issues.
    Mr. Vento. But the Secretary's action generally in terms of 
some land use designations, whether it is ACEC, or other types 
of designations, would be subject to NEPA, the Secretary's 
action?
    Mr. Leshy. Yes, absolutely.
    Mr. Vento. So there may have been some exploration of that. 
I think the issue here, of course, is that--and I think what I 
heard you say is that the process that has been established 
here which indirectly, you know, I guess you know, kind of 
recognizing indirectly this makes--I mean it is a distinction 
without a difference. NEPA does apply to the Presidential 
action here, but this action sets a 2-year time frame. In the 
action that is being discussed here it is likely to--the 
framework that is laid out here, which is of course quite 
rigid, would take at least, could likely take a lot longer than 
that.
    Mr. Leshy. I think that is a concern, because this doesn't, 
the proposed legislation does not simply apply NEPA to the 
President, it has these additional procedures and if you chart 
those out----
    Mr. Vento. So you have a potentially 3-year process and a 
2-year protection of the lands, but I am not interested in 
fixing this, because I think that the process of what is being 
proposed is really to in essence take away this power from the 
President. I think that is really what the justification is.
    Is there an interest in terms of public participation? Do 
you think that the NEPA is the best possible way to get public 
participation? It seems to me that is a very awkward and 
cumbersome way to get participation from your statement. I 
think you agree with that, don't you?
    Mr. Leshy. If you look at--there will be public 
participation in these decisions. I think there always has 
been, there will be. The Secretary in response to the 
President's request, as has been mentioned, has looked at the 
possibility of Antiquities Act protection elsewhere and is 
going through a consultation process, openly and publicly.
    Mr. Vento. I suppose, you know, I suppose we could satisfy 
our own self while saying that the President has to consider 
public opinion and consult with him--it seems to be sort of a 
redundant type of activities. Certainly the President has to 
consider this. It may be, you know, popular in Utah with the 
people, but not necessarily with the public officials. There 
has sort of been some disparities I suppose in each of our 
States with regards to some of those matters.
    But certainly that has been the case if you believe the 
public opinion polls in some of the States, in Utah, so I don't 
know--or any State that that would be possible. So I don't have 
any objection to public, considering public input or views on 
this in some sort of consultation type of issue, but I think 
the problem here is, of course, that if it gets in the way of 
actually accomplishing the purposes of the Act, then you are in 
essence greatly weakening or at least in fact or repealing the 
basic law, which has been around and it may not be as necessary 
today as it was in 1908 because of Congress' and the 
President's willingness to act in a whole host of other laws, 
but it still is very much necessary I think to have that as a 
power.
    So I hope we can resolve this.
    Mr. Hansen. Thank you. Mr. Leshy, are you aware of any 
current national monument proposals besides the Shivwitz 
Plateau proposal in northern Arizona? I am not asking whether 
any final decision has been made or whether a recommendation 
has been forwarded to the President or whether you were in the 
formal planning stages.
    I am asking you to tell us of all the areas that you are 
aware of where the idea of a national monument has been 
suggested by anyone in the Interior Department.
    Mr. Leshy. As you know, and I think we have given you this 
information, the President has asked the Secretary to forward 
any recommendations he has on any further exercise of authority 
under the Antiquities Act. The Secretary has not forwarded any 
recommendations but has been visiting a number of areas, 
including Shivwitz Plateau, and--not simply in terms of 
protection under the Antiquities Act, but just areas that in 
his judgment need further protection, whether it is through 
congressional action or executive branch action, and those 
trips have been well publicized and--but no decisions or 
recommendations have been forwarded.
    We are in fact in the Shivwitz and elsewhere working with 
Members of Congress, the delegation. You chaired that public 
hearing, I believe, down in St. George a couple months ago 
exploring the ramifications of that proposal. So, you know, we 
are interested in consultation, obviously. And we are 
interested in listening to what Members of Congress and local 
citizens have to say about these issues and the Secretary is 
out there on the ground meeting with people and talking to them 
about it.
    Mr. Hansen. Thank you. The Secretary did indicate to me and 
members of the Arizona delegation that if they didn't get 
something going, he would. I am given to understand that the 
Arizona delegation is moving ahead with something, and there 
will be a meeting next week regarding legislation that will be 
introduced. I would hope you take a close look at that.
    Mr. Leshy. Yes, I am--I think I have a meeting scheduled 
with members of the delegation next week to talk about that.
    Mr. Hansen. All right, probably the same meeting. Further, 
Mr. Leshy, assuming that the provisions of this bill become 
law, and the Secretary of the Interior is required to prepare 
an environmental impact statement before the President can sign 
a monument proclamation, could you explain how these provisions 
would harm the environment?
    Mr. Leshy. Well, in some circumstances, in the past, as I 
said there has been the need for decisive action to be taken 
to--where proclaiming monuments can have an immediate 
protective effect. The problem that we just discussed, the way 
this bill is structured, I think it calls for up to 3 years of 
procedure, but only 2 years of protection. There could be a 
problem with that where the emergency protections allowed for 
in this bill would expire before the processes could be 
finished to allow the President to act. That would pose a 
significant risk, I think, to the environment, if that 
happened, because, as you know, once you express interest in 
proclaiming an area or withdrawing an area from mining claims 
or whatever, it can encourage some people to go out there and 
try to locate mining claims and create other kinds of problems 
for you, so they become sort of a magnet for potentially 
disruptive activities and that is certainly a protective risk 
under this legislation.
    Mr. Vento. Would the gentleman yield.
    Mr. Hansen. I would yield, yes.
    Mr. Vento. But the issue is that it is sort of an 
indefinite, it isn't just 3 years, it is indefinite, isn't it, 
because the court appeals and other matters and of course we 
are all familiar with individuals that make claims and then 
come back to try to reap a financial reward because of the 
designation issue. Isn't it indefinite really?
    Mr. Leshy. Yes, because I would guess that this bill would 
make the--not only NEPA compliance required but also subject it 
to judicial review, court injunctions and the like. And again 
if--I think one way to view the legislation here is to go back 
and look at all the monuments that have been created and say 
are they, are any of them really, truly bone headed, to use 
that word, exercises of presidential power, are we sorry the 
President first set aside these areas. And I think the answer 
in every case is no.
    Mr. Vento. Thank you, Mr. Chairman.
    Mr. Hansen. Thank you, Mr. Vento.
    Let me point out this to the gentleman from Minnesota, the 
President still has withdrawal power. In the case Mr. Leshy 
brought up and correctly has pointed out, an emergency comes 
up, he has withdrawal power. He doesn't really need that; in 
fact, he doesn't need the antiquities law. He has withdrawal 
power if he sees some problem coming up with the ground.
    We have a vote on. Is there anybody here that just has a 
dying need to ask Mr. Leshy further questions? We can come 
back, and I hate to hold you here. You have been very patient 
with us, and we appreciate it. But if no one has any big 
hangup, I will just consider this meeting over with.
    My whole issue has been why is the Interior Department and 
this President afraid of public input. But I won't make a big 
deal out of that, I guess we have said that before and you have 
answered it 15 different ways. And thank you so much, Mr. 
Leshy, for being with us. We appreciate your patience.
    We are adjourned.
    [Whereupon, at 11:45 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows.]
        Statement of Governor Michael O. Leavitt, State of Utah

    Thank you for allowing me the opportunity to speak to you 
today about the recently designated Grand Staircase-Escalante 
National Monument in Southern Utah.
    The protection of public lands in the State of Utah is a 
familiar issue. The Federal Government administers more than 65 
percent of the land in the State, and we are continually 
pursuing new and better ways to work with the Federal 
Government in the planning and administration of these lands. 
We have worked hard to build relationships, forge partnerships, 
and lay the groundwork for interagency cooperation unmatched by 
other public lands states. For these reasons, the chain of 
events surrounding the establishment of the Grand Staircase-
Escalante National Monument have caused me great concern, and 
created a greater distrust of governmental processes by many 
people in the State of Utah.
    On September 18, 1996, President Clinton invoked a 
provision of the 1906 Antiquities Act to designate 1.7 million 
acres in southern Utah as the Grand Staircase-Escalante 
National Monument. The first reports of this that I, or any 
other elected official in the State of Utah, had received were 
from a story in the Washington Post only 9 days prior to Mr. 
Clinton's public proclamation. I would like to share with you a 
day-by-day account from my perspective, of the events leading 
up to President Clinton's announcement:

    Monday, September 9, 1996: Upon reading of the new National 
Monument in the Washington Post, I placed a call to Secretary 
of the Interior Bruce Babbitt. I asked Secretary Babbitt about 
the article in the Post and was told that Interior was not 
involved and that I should call the White House.
    When I called the White House, I spoke with Director of 
Intergovernmental Affairs, Marsha Hales. She had seen the story 
and told me that they weren't certain were it came from. She 
committed to get back to me relative to how serious the 
proposal was.
    Wednesday, September 11, 1996: Two days later, Ms. Hales 
reported that a monument was being discussed but ``no decision 
had been made.'' I asked, ``what is the timing on this?'' 
``That's what we are trying to decide,'' she replied. I asked 
Ms. Hales for an appointment with President Clinton or his 
Chief of Staff, Leon Panetta. Later that week an appointment 
was confirmed with Mr. Panetta for the following Tuesday.
    Friday, September 13, 1996: My office became aware through 
the news media that an important environmental announcement was 
planned by the President at the Grand Canyon the following 
week. Preparations were being made by environmental 
organizations to transport groups from Utah. When we inquired 
directly of the Administration about the time, place and 
subject of an event they were not willing to even confirm the 
event would occur. Local governments in Utah were becoming more 
and more concerned. On two other occasions during the week I 
had conversations with Mr. Babbitt or his office. They 
continued to indicate that they had no information, insisting 
that this matter was being handled by the White House. When we 
called the White House we were referred to the Interior 
Department.
    Late Friday afternoon, Secretary Babbitt called an 
emergency meeting in his office for the next day, Saturday. The 
Congressional delegation was invited. I was not able to attend 
the meeting, but the fact that meetings were being called on a 
weekend added to the sense of inevitability. However, we were 
still being told that ``no decision had been made.''
    Monday, September 16, 1996: The weekend was a blur of phone 
calls, and meetings with local officials. Despite the fact that 
buses where being organized to take Utahn's to Arizona for the 
announcement, the Governors office could still not get 
confirmation of where or what the official announcement would 
be. I traveled to Washington for my meeting with Mr. Panetta.
    Tuesday, September 17, 1996: Tuesday afternoon, I met with 
Mr. Panetta. I was told that Mr. Panetta had the responsibility 
of making a recommendation to the President. Mr. Panetta said 
that he had set aside the afternoon to prepare that 
recommendation. Kathleen McGinty, Chair of the President's 
Council on Environmental Quality, Marsha Hale, Director of 
Intergovermnental Affairs and another member of the White House 
staff were also in attendance.
    My presentation focused on the problems caused by this 
complete abandonment of public process. I explained that it was 
our desire to protect the spectacular lands of this region but 
that this was the wrong way to go about it. I detailed for them 
a proposal ironically called, Canyons of the Escalante: A 
National EcoRegion that resulted from an intergovernmental 
public planning process I initiated three years earlier to 
protect the area. This concept was developed by state, local 
and Federal land managers working together for over a year. It 
would have provided flexibility and yet gave even more 
stringent protection for the most pristine areas. I also spent 
a considerable amount of time discussing our school trust 
lands. Mr. Panetta asked me to explain the status of those 
lands. Prior to our discussion he was unaware of their 
existence or the importance they hold to the school children of 
our state.
    Our meeting lasted just under an hour. Mr. Panetta told me 
that this was the first time he had been able to focus on this 
issue. He reiterated that he would make a recommendation to the 
President that afternoon. To Mr. Panetta's credit, he was very 
thoughtful in the questions he asked. He told me that he didn't 
like making decisions in a vacuum like this. At the conclusion 
of the presentation, Mr. Panetta said, ``you make a very 
compelling case.'' To which I replied, ``If this is compelling 
to you, then before the President sets aside part a piece of 
land equal to Rhode Island, Delaware and Washington, DC 
combined, he needs to hear the same information, directly from 
the Governor of the State.'' I was told Mr. Clinton was 
campaigning in Illinois and Michigan, but he would call me 
later in the evening.
    Wednesday. September 18, 1996: At 1:58 a.m., my telephone 
rang, it was the President. The President told me that he was 
just then beginning to review this matter. I restated in short 
form the material I discussed with Mr. Panetta. The call lasted 
for nearly 30 minutes. At 2:30 AM we were both very tired. I 
offered to write a memo that the President could read when he 
woke in the morning. He asked that I write the memo.
    I sat at the desk in my room and prepared a handwritten 2+ 
page memo to the President. It was faxed to him at 4 a.m. that 
morning. The memo, told the President that if a monument was 
going to be created he should create a commission that included 
state and local government officials to recommend boundaries 
and to solve a number of management questions. I told him that 
it should work toward a policy that protects the land, 
preserves the assets and maintains the integrity of the public 
process. I knew the local government leaders in this area would 
welcome such a process.
    At 7:30 a.m. I spoke with Mr. Panetta. He had reviewed the 
memo that was written for the President and again indicated he 
felt my ideas had merit. He said he would be reviewing the 
matter again with the President. Later in the morning Mr. 
Panetta called to inform me that the monument would be 
announced. He detailed the conditions of the action, which 
gratefully, incorporated some of my suggestions on water, 
wildlife access and a planning process with local and state 
participation.
    At 2 p.m. Eastern time, President Clinton stood on the 
north rim of the Grand Canyon to announce the creation of the 
Grand Staircase-Escalante National Monument, a 1.7 million acre 
expanse in Utah's Garfield and Kane counties. No member of 
Congress, local official or the Governor were ever consulted, 
nor was the public. As the Governor, I had not seen a map, read 
the proclamation or for that matter even been invited. This is 
not about courtesy, it is about process and public trust. A 
major land decision, the biggest in the last two decades, was 
being made. Obviously, this is not the way public land 
decisions should, nor were ever intended to be made.
    In 1976 this nation made an important public policy 
decision. Congress passed landmark legislation in the Federal 
Land Policy and Management Act (FLPMA), requiring great 
deliberation and careful process in determining how public 
lands would be used. That Act, and other related legislation, 
contains protections for states and local communities. It is 
the policy of my administration to assure that our state is not 
denied those protections. We will defend Utah's interest 
against abuses of our existing protections and we will seek 
additional protections where they are currently inadequate.
    The President's use of the Antiquities Act to create the 
monument was a clear example of inadequate protection. Our 
system of government was constructed to prevent one person from 
having that much power without checks or balances from another 
source. This law was originally intended to provide emergency 
power to protect Indian ruins and other matters of historic 
importance. Over the past ninety years the Federal courts have 
allowed a gradual expansion of the powers. The President's 
recent proclamation was a classic demonstration of why the 
founders of this nation divided power. Power unchecked is power 
abused. Utah and other states need protection from further 
abuses of the 1906 Antiquities Act. My administration will join 
other states in support of appropriate amendments.
    Land preservation decisions must consider the relationship 
between the land and the local economy. The State of Utah 
intends to intensify our efforts in assisting in the promotion 
of new economic opportunities for the region and will challenge 
the national government to be responsive to the needs that its 
actions in Southern Utah have created. Historically, whenever 
the Federal Government has determined that a local interest is 
subordinate to the national interest, then some form of Federal 
assistance is provided. We should all focus on developing real 
economic opportunities for rural Utah counties in order to 
build a more diversified and sustainable economy.
    There are many issues surrounding the creation of this 
monument apart from the designation process. One of the most 
controversial and most complicated are the school trust lands 
located within the boundaries of the monument. Approximately 
176,000 acres of school trust lands were included within the 
monument.
    The school trust lands are managed by the Utah School and 
Institutional Trust Lands Administration, an independent state 
agency. The Trust Lands Administration is governed directly by 
a separate Board of Trustees, and is required to optimize the 
value of the lands for both the short and long term. The 
Chairman of the Board of Trustees will testify later today and 
will give more details. However, I want to emphasize that not 
only did the declaration of the monument possibly affect the 
use and value of the trust lands in the long term, but also 
that several sources of revenue from the lands, including an 
imminent multi-million dollar deal involving coal, have been 
eliminated as a result of the declaration.
    The Board of Trustees, the Trust Lands Administration and 
myself are united in protecting the value of the trust lands 
within the monument and in protecting the purposes of the 
trust. We will work together to see that either the lands can 
be used for their purpose as the national economy permits or 
that other Federal assets will be available as compensation for 
the trust lands.
    I appreciate the President's remarks concerning the trust 
lands at the time he signed the declaration and appreciate his 
decision to resolve any reasonable differences in value in 
favor of the school children as part of any land exchange 
proposal. However, I must express some healthy skepticism about 
the efficiency of the Federal exchange or compensation process 
and the ability to bring such processes to conclusion at all. 
The problem of school trust lands within Federal reservations 
like the monument is both an old problem and a constantly 
recurring one. Currently, Trust Lands and the Federal 
Government are negotiating several different exchange packages, 
including the statutorily authorized process mentioned by the 
President in his remarks (P.L. 103-93). These exchange 
processes are complex, heavily laden with Federal rule-driven 
procedures and very costly to the trust. The Trust Lands 
Administration estimates that an exchange process for the 
monument lands, similar to that in P.L. 103-93, could cost $5 
to $10 million; a cost which, in all fairness, should be 
covered by the Federal Government.
    I would hope that we can learn from past experience and 
begin to take advantage of new ideas or approaches which are 
more expeditious, yet fair to both parties. The Trust Lands 
Administration intends to propose solutions for the trust lands 
within the monument in the near future. I will ask Congress to 
give these proposals serious consideration and to consider 
appropriating funds to the Trust Lands Administration to offset 
any costs resulting from the declaration of the monument.
    The State of Utah is committed to being a full partner in 
the planning process for the Grand Staircase-Escalante National 
Monument. Promises were made by both President Clinton and 
Secretary Babbitt which ensured the State a prominent role in 
the plan development and implementation process. The State of 
Utah intends to take full advantage of those commitments and 
has, in fact, already appointed five members of the planning 
team who will represent the State and its issues and concerns. 
We have every intention of being active participants in the 
process and committing the necessary resources to see that the 
Grand Staircase-Escalante National Monument best meets the 
needs of the citizens of the State of Utah. We intend to use 
every mechanism available to ensure that the Federal Government 
keeps its commitments to this end. We would appreciate your 
help in assuring that this happens.
    In closing, I would like to reiterate to you my support for 
the idea of some kind of protection of the sensitive and 
spectacular lands of the Escalante area in Southern Utah. 
However. I feel deeply that President Clinton did not keep the 
public trust by choosing this process to protect this area. Had 
Mr. Clinton been willing to discuss his ideas with those of us 
in Utah involved in public lands issues, he would have found 
both State and local representatives were ready and willing to 
work with his staff to provide the best protection of the 
natural resources of the area, while at the same time providing 
economic stability to those communities most impacted by it.
    Obviously, this did not happen. President Clinton was 
unwilling to reveal his plan to any elected officials in Utah. 
Perhaps the only thing more disappointing than this was his 
consultation with elected officials in other Western States but 
NOT in Utah, about this proposal. I have seen a copy of an 
August memo from Kathleen McGinty to Marcia Hale regarding 
contact with Governors Roy Romer and Bob Miller, former 
Governors Mike Sullivan and Ted Schwinden, Senators Harry Reid 
and Richard Bryan, and Representative Bill Richardson to get 
their reactions on this proposed ``Utah event.'' The memo 
states that these reactions and other factors, ``will help 
determine whether the proposed action occur(s).'' In addition, 
the memo states, ``If a final decision has been made on the 
event, and (sic) any public release of the information would 
probably foreclose the President's option to proceed.'' The 
event was a partisan, political rally that had been planned and 
executed as an ``under the cover of darkness'' surprise.
    I find it regrettable that someone we have entrusted to the 
highest office in the United States of America is willing to 
undertake a process which is purely partisan. We, as a nation, 
need to examine the power by which a single person is able to 
impact the lives of so many. It is too late for residents of 
Southern Utah living near the Grand Staircase-Escalante 
National Monument. However, in true Utah tradition, we will 
pull together and rise above the circumstances created by those 
in Washington.