[House Hearing, 106 Congress]
[From the U.S. Government Publishing 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
______
U.S. GOVERNMENT PRINTING OFFICE
58-958 CC WASHINGTON : 1999
------------------------------------------------------------------------------
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
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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[GRAPHIC] [TIFF OMITTED] T8958.002
[GRAPHIC] [TIFF OMITTED] T8958.003
[GRAPHIC] [TIFF OMITTED] T8958.004
[GRAPHIC] [TIFF OMITTED] T8958.005
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.
[GRAPHIC] [TIFF OMITTED] T8958.006
[GRAPHIC] [TIFF OMITTED] T8958.007
[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.