[House Report 106-252]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    106-252

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



 
 PUBLIC PARTICIPATION IN THE DECLARATION AND SUBSEQUENT MANAGEMENT OF 
                           NATIONAL MONUMENTS

                                _______


 July 22, 1999.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                             together with

                           SUPPLEMENTAL VIEWS

                        [To accompany H.R. 1487]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 1487) to provide for public participation in the 
declaration of national monuments under the Act popularly known 
as the Antiquities Act of 1906, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.
  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. PUBLIC PARTICIPATION IN THE DECLARATION AND SUBSEQUENT 
                    MANAGEMENT OF NATIONAL MONUMENTS.

  Section 2 of the Act of June 8, 1906 (34 Stat. 225, 16 U.S.C. 431; 
popularly known as the Antiquities Act of 1906), is amended--
          (1) by striking ``Sec. 2. That the'' and inserting ``Sec. 2. 
        (a) The''; and
          (2) by adding at the end the following:
  ``(b)(1) To the extent consistent with the protection of the historic 
landmarks, historic and prehistoric structures, and other objects of 
historic or scientific interest located on the public lands to be 
designated, the President shall--
          ``(A) solicit public participation and comment in the 
        development of a monument declaration; and
          ``(B) consult with the Governor and congressional delegation 
        of the State or territory in which such lands are located, to 
        the extent practicable, at least 60 days prior to any national 
        monument declaration.
  ``(2) Before issuing a declaration under this section, the President 
shall consider any information made available in the development of 
existing plans and programs for the management of the lands in 
question, including such public comments as may have been offered.
  ``(c) Any management plan for a national monument developed 
subsequent to a declaration made under this section shall comply with 
the procedural requirements of the National Environmental Policy Act of 
1969.''.

                          Purpose of the Bill

    H.R. 1487, introduced by Congressman James V. Hansen of 
Utah, would provide for public participation in the declaration 
of national monuments under the Act popularly known as the 
Antiquities Act of 1906.

                  Background and Need for Legislation

    In 1906 Congress passed the Antiquities Act (Act of June 8, 
1906, codified at 16 U.S.C. 431). The Act was designed to 
respond to an urgent need to protect the Nation's archeological 
sites that were located on public lands. At the time there was 
no statutory authority for the President to conduct emergency 
withdrawals of the public domain from entry under the public 
land laws. The Antiquities Act was specifically designed to 
allow the President to act quickly, as soon as an archeological 
site was discovered, to protect it from looting and 
desecration. As a consequence of this, no public input was 
allowed on any monument declarations.
    While the intent of the Act was to allow the preservation 
of archeological sites, the language was broad enough to also 
allow the President to withdraw areas of scientific and 
historic interest such as paleontological and geological sites. 
The Act specifically stated, however, that the President should 
not withdraw more land than was necessary to protect these 
specific objects.
    The legislative history of the Antiquities Act makes clear 
that the national monument withdrawal power was not intended as 
a delegation of Congress's power to create national park-type 
reservations. However, because the Antiquities Act was the only 
statutory withdrawal power available to the Executive Branch in 
the early 20th century, several Presidents chose to use the 
Antiquities Act to create huge national park-type national 
monuments. For example, President Theodore Roosevelt created 
the Grand Canyon National Monument using the Antiquities Act. 
While such withdrawals were clearly outside of the scope of 
power intended by the Antiquities Act, they were understandable 
given the fact that other withdrawal powers were not yet 
statutorily granted to the Executive Branch.
    The Antiquities Act served the public well during the first 
several decades of its existence and several important sites 
were preserved through Antiquities Act withdrawals. However, 
since that time Congress has passed numerous laws that protect 
public lands more fully and by authorizing large-scale 
executive withdrawals to protect endangered sites. These laws 
include the Archeological Resources Protection Act, the 
National Park Organic Act, the Wilderness Act, the Wild and 
Scenic Rivers Act, the Federal Land Policy and Management Act, 
and the National Forest Management Act. These laws protect our 
public lands, and have virtually eliminated the need for the 
Antiquities Act. In fact, besides some boundary adjustments by 
President Lyndon Johnson, the Antiquities Act has only been 
used on two occasions in the last 35 years. On both of these 
occasions--President Jimmy Carter's declaration of 56 million 
acres of Alaska monuments in 1978 and President Bill Clinton's 
1.8 million-acre Grand Staircase-Escalante Utah monument in 
1996--the President used the Antiquities Act to thwart public 
involvement in federal land management decisions. Protection of 
the land and its resources was available under numerous other 
laws which would have involved the public and Congress.
    President Clinton's creation of the Grand Staircase-
Escalante National Monument in September 1996 is a prime 
example of the need for more public input in national monument 
decisions. Documents obtained from the Clinton Administration 
by the Committee show that the monument was being planned for 
months--yet the Governor of Utah was not informed of the final 
decision to create a monument until 2:00 A.M. the morning that 
the proclamation was signed. The documents also demonstrate 
that the monument was planned as an election year ploy to help 
President Clinton's reelection campaign. The monument was kept 
secret until just before the announcement for political reasons 
and to avoid public input and environmental analysis otherwise 
required for public land designations under the National 
Environmental Policy Act. For further information on this topic 
see the November 7, 1997, House Committee on Resources Majority 
Staff Report Behind Closed Doors: The Abuse of Trust and 
Discretion in the Establishment of the Grand Staircase-
Escalante National Monument (Committee Report 105-D), and the 
October 16, 1998, Committee on Resources Report Monumental 
Abuse: The Clinton Administration's Campaign of Misinformation 
in the Establishment of the Grand Staircase-Escalante National 
Monument (H. Rept. 105-824).
    This recent monument proclamation, as well as recent 
rumored efforts to create other large national monuments 
without public scrutiny, is the impetus behind H.R. 1487. H.R. 
1487 is intended to preserve the President's authority under 
the Antiquities Act, while insuring public input into the 
process. The American public should be afforded extensive 
information and time to respond to decisions of such magnitude.
    H.R. 1487, as introduced, required that all monument 
declarations be subject to public review and environmental 
analysis under the National Environmental Policy Act (NEPA, 42 
U.S.C. 4331 et seq.). The bill required the Secretary of the 
Interior to complete an Environmental Impact Statement on a 
Presidential national monument proposal prior to the signing of 
any national monument proclamation by the President. This would 
have required extensive public input into national monument 
proclamation decisions and it was hoped that it would have 
ended the recent spate of secret back-room national monument 
decisions.
    At the hearing on H.R. 1487, the Administration indicated 
that it was inappropriate to subject the President to the 
rigors of NEPA. Therefore, in an effort to work with the 
Administration, the Committee chose to adopt an approach that 
would amend the Antiquities Act so as to require public 
participation without actually addressing the NEPA issue. H.R. 
1487 as reported from the Committee on Resources requires the 
President to solicit public partici-

pation and comment while preparing a national monument proposal 
``to the extent consistent with the protection of historic 
landmarks, historic and prehistoric structures, and other 
objects of historic or scientific interest located on the 
public lands to be designated.'' In addition, H.R. 1487 as 
reported requires the President to consult ``to the extent 
practicable'' with the Governor and Congressional delegation of 
the State in which the lands in question are located at least 
60 days before declaring a monument.
    The Committee has several specific concerns regarding these 
qualifiers. The first is the possibility that a President could 
still ignore the public consultation and official notice 
provisions of theAntiquities Act because of ambiguous phrases 
such as ``to the extent consistent'' and ``to the extent practicable.'' 
While such phrases were intended to give the President a certain amount 
of latitude to cope with unusual circumstances, they were not intended 
to give the President carte blanche to ignore the provisions of the 
Antiquities Act, nor were they intended to preclude judicial review if 
the President does abuse this limited discretion.
    The Committee strongly intends that the phrases ``to the 
extent consistent'' and ``to the extent practicable'' should 
not be interpreted as allowing the President to ignore the 
public participation and consultation provisions of the 
Antiquities Act simply because he can point to possible 
problems that may occur from delay. A certain amount of delay 
is inherent in a statutory scheme that requires public 
participation, and subsequent to the passage of this bill, 
Antiquities Act decisions could take considerably more time to 
make. The President, however, may not skip the public 
participation phase simply because it may take time. The 
President is expected to use other available provisions of law 
to protect the land if such protection is needed while public 
participation proceeds. For example, the fact that mining 
claimants might stake claims within a proposed monument would 
not give the President the right to forego public participation 
and consultation. In that case, the appropriate action would be 
for the President to ask the Secretary of the Interior to 
conduct a segregation or withdrawal under section 204 of the 
Federal Land Policy and Management Act (FLPMA) while public 
debate on the proposed monument proceeds.
    The second issue is the nature of public participation that 
the President is required to allow prior to a national monument 
declaration. As previously stated, the original bill would have 
required the preparation of an Environmental Impact Statement 
pursuant to NEPA. The bill as amended does not address the NEPA 
issue but comparable public participation is still required. 
During Committee deliberations on the bill, Congressman Rick 
Hill (R-MT) expressed the concern that the bill, as amended, 
did not provide detailed procedures for the President to follow 
unlike the well-established process under NEPA. It is the 
Committee's strong intent that the President, subject to a few 
modifications reflecting the peculiarities of national monument 
declarations and the intent of this legislation, should follow 
the same general public participation pattern that the Interior 
Department follows when preparing Environmental Impact 
Statements on major land decisions under NEPA. This would 
include a formal scoping period on the proposal, a draft 
proposal period, a final proposal period and a record of 
decision. The President should also provide at all stages 
(including scoping) for the dissemination of appropriate 
information, meaningful hearings, and allow generous comment 
periods. It is anticipated that the President may delegate the 
creation and administration of these procedures to an 
appropriate agency such as the Department of the Interior or 
the Department of Agriculture.
    The Committee also expects any designation process under 
the Antiquities Act to address pertinent issues that are 
necessary for meaningful public comment and sound decision-
making. This would include:
          A description of the historic landmarks, historic and 
        prehistoric structures, and other objects of historic 
        or scientific interest that are to be protected by the 
        proposed monument;
          A map of the proposed boundaries of the national 
        monument accompanied by notations describing the 
        location of the objects to be protected;
          A statement describing why each particular section of 
        land is needed to protect the objects at issue;
          An explanation describing how existing law is or is 
        not operating to protect such objects and describing 
        how national monument status would further such 
        protection;
          A statement describing which agency will manage the 
        proposed national monument;
          A statement describing how national monument status 
        would affect natural resource uses in the area, 
        including timber harvesting, grazing rights, water 
        rights, wildlife management activities including 
        hunting and fishing, and mineral resource development;
          An estimate of whether and by how much national 
        monument status would increase visitation pressure to 
        the area and an estimate as to how such an increase 
        would affect the resources of the area; and
          An inventory of all State and private land and any 
        existing private or State rights held on federal land 
        within the boundaries of the proposed monument.
    The Gubernatorial and Congressional delegation consultation 
provisions of H.R. 1487 are straightforward. While it is 
anticipated that the relevant Governors and Congressional 
delegations will be engaged in the dialogue on a national 
monument proposal throughout the public participation period, 
once the decision to proceed has been made, the President 
should formally consult with them at least 60 days prior to the 
signing of any national monument proclamation. The President 
should ensure that such consultation is meaningful and 
productive, and should adjust the final proclamation to take 
into account any concerns expressed by Governors and 
Congressional delegations.
    H.R. 1487 also requires the President to consider any 
information made available in the development of existing plans 
and programs for the management of the lands in question, 
including public comments. This provision asks the President to 
consider such information as an aid to his decision-making 
process. The President should also make copies of such plans 
available to the general public during the scoping stage to 
facilitate constructive public input. If, as is often the case, 
very few copies of a dated management plan are available, the 
President should provide for another printing of such plan, 
including maps, to facilitate distribution of the plan to the 
public to aid in the scoping process.
    Finally, H.R. 1487 would require any subsequent management 
plans developed for a national monument to comply with NEPA. 
The fact that the President has gone through an extensive 
public input process on the decision whether to declare a 
monument should not be interpreted to replace the NEPA/public 
input process that will be associated with the subsequent 
management plan.

                            Committee Action

    H.R. 1487 was introduced on April 20, 1999, by Congressman 
James V. Hansen (R-UT). The bill was referred to the Committee 
on Resources, and within the Committee to the Subcommittee on 
National Parks and Public Lands. On June 17, 1999 the 
Subcommittee held a hearing on the bill, where the 
Administration testified in opposition. On June 24, 1999, the 
Subcommittee met to mark up the bill. Subcommittee Chairman 
Hansen offered an amendment in the nature of a substitute 
clarifying that the Secretary of the Interior (not the 
President) would do NEPA work on monument proposals. The 
amendment also removed some procedural hurdles, allowed the 
President to issue a proclamation as soon as the signing of a 
NEPA record of decision, deleted language that the 
Administration felt pre-judged NEPA threshold questions, and 
allowed for a withdrawal extension. The amendment was adopted 
by voice vote. The bill was then ordered favorably reported to 
the Full Committee by a roll call vote of 10-8, as follows:


    On June 30, 1999, the Full Resources Committee met to 
consider the bill. Congressman Bruce Vento (D-MN) offered an 
amendment in the nature of a substitute which required the 
President to solicit public participation and comments and 
confer with a State's governor and Congressional delegation 60 
days prior to signing any monument declarations. Delegate 
Robert Underwood (D-Guam) offered an amendment to the Vento 
amendment which clarified that consultation requirement also 
extended to territories as well as States. The Underwood 
amendment was adopted by unanimous consent. After lengthy 
debate on the intent of the language, the Vento amendment, as 
amended, was adopted by voice vote. The bill as amended was 
then ordered favorably reported to the House of Representatives 
by voice vote.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8, and Article IV, section 3 of the 
Constitution of the United States grant Congress the authority 
to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation.--Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act.--As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. Government Reform Oversight Findings.--Under clause 
3(c)(4) of rule XIII of the rules of the House of 
Representatives, the Committee has received no report of 
oversight findings and recommendations from the Committee on 
Government Reform on this bill.
    4. Congressional Budget Office Cost Estimate.--Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 16, 1999.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1487, a bill to 
provide for public participation in the declaration of national 
monuments under the act popularly known as the Antiquities Act 
of 1906.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 1487--A bill to provide for public participation in the 
        declaration of national monuments under the act popularly known 
        as the Antiquities Act of 1906

    The Antiquities Act of 1906 authorizes the President to 
declare landmarks, structures, and other objects of historic or 
scientific interest that are on federal land to be national 
monuments. H.R. 1487 would amend this act to require that the 
President solicit public participation and comment and consider 
information available from existing management plans and 
programs in the development of national monument declarations. 
The bill also would require that management plans for national 
monuments developed subsequent to a declaration made under H.R. 
1487 comply with the procedural requirements of the National 
Environmental Policy Act of 1969.
    CBO estimates that implementing this legislation would not 
have a significant impact on the federal budget. The bill would 
not affect direct spending or receipts; therefore, pay-as-you-
go procedures would not apply. H.R. 1487 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    The CBO staff contact is Megan Carroll. This estimate was 
approved by Paul N. Van de Water, Assistant Director for Budget 
Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                  SECTION 2 OF THE ACT OF JUNE 8, 1906


            (POPULARLY KNOWN AS THE ANTIQUITIES ACT OF 1906)

CHAP. 3060.--AN ACT For the preservation of American antiquities.

           *       *       *       *       *       *       *


  [Sec. 2. That the] Sec. 2. (a) The President of the United 
States is hereby authorized, in his discretion, to declare by 
public proclamation historic landmarks, historic and 
prehistoric structures, and other objects of historic or 
scientific interest that are situated upon the lands owned or 
controlled by the Government of the United States to be 
national monuments, and may reserve as a part thereof parcels 
of land, the limits of which in all cases shall be confined to 
the smallest area compatible with the proper care and 
management of the objects to be protected: Provided, That when 
such objects are situated upon a tract covered by a bona fide 
unperfected claim or held in private ownership, the tract, or 
so much thereof as may be necessary for the proper care and 
management of the object, may be relinquished to the 
Government, and the Secretary of the Interior is hereby 
authorized to accept the relinquishment of such tracts in 
behalf of the Government of the United States.
  (b)(1) To the extent consistent with the protection of the 
historic landmarks, historic and prehistoric structures, and 
other objects of historic or scientific interest located on the 
public lands to be designated, the President shall--
          (A) solicit public participation and comment in the 
        development of a monument declaration; and
          (B) consult with the Governor and congressional 
        delegation of the State or territory in which such 
        lands are located, to the extent practicable, at least 
        60 days prior to any national monument declaration.
  (2) Before issuing a declaration under this section, the 
President shall consider any information made available in the 
development of existing plans and programs for the management 
of the lands in question, including such public comments as may 
have been offered.
  (c) Any management plan for a national monument developed 
subsequent to a declaration made under this section shall 
comply with the procedural requirements of the National 
Environmental Policy Act of 1969.

                           SUPPLEMENTAL VIEWS

    As the author of the amendment that was adopted by the 
Resources Committee and which now serves as the amended text of 
HR 1487, I believe it is useful to elaborate on the purpose and 
intent of my amendment.
    Over the past 90 years, the Antiquities Act has been used 
by fourteen Presidents a total of 105 times to protect such 
natural, historic and scientific treasures as the Grand Canyon, 
Death Valley, Carlsbad Cave, the Statue of Liberty, and Thomas 
Edison's laboratory. The language of HR 1487, as introduced, 
would have seriously undermined a President's authority to 
protect important public lands and resources under the 
Antiquities Act by placing unprecedented conditions on 
Presidential action subject to the National Environmental 
Policy Act. The delays and ambiguities caused by the provisions 
of HR 1487 would have placed unreasonable hurdles to the use of 
an important law that has protected significant aspects of our 
national heritage.
    The serious problems with HR 1487 generated strong 
opposition to the proposal from the Administration as well as 
conservation and historic preservation organizations. In light 
of this long controversy concerning the Antiquities Act, I 
initiated discussions with Subcommittee Chairman Hansen to see 
if a way could be found to address the bill's serious 
shortcomings in such a way as to maintain the important 
authority of the President to act when necessary to protect 
public lands and resources while still providing for public 
participation and consultation when appropriate and 
practicable. The result of these discussions was the sound 
amendment adopted by the Full Committee.
    The language of the Vento amendment is clear. There will be 
public participation and comment, as well as consultation on a 
monument declaration to the extent consistent with the 
protection of the resource values of the public lands to be 
designated. We can all be for public involvement in a monument 
declaration but this cannot be used to tie the President's 
hands in dealing with threats to the nationally significant 
resources found on our public lands. We cannot open the door to 
those who would use such a public participation process as a 
cloak to hide behind while they thwarted the protection of 
significant public resources. That is why the amended bill 
retains the authority of the President to act and act quickly 
to protect these resource values.
    I recognize the amendment may not be agreeable to all 
parties. But it seems to me that the language is a reasonable 
compromise that is responsive to the concerns expressed and 
that will allow for public participation in most cases while 
still retaining the ability of a President to use the 
Antiquities Act to protect public lands. I appreciate the 
cooperation of Chairman Hansen and his staff, as well as 
Chairman Young in reaching this agreement which I hope will 
settle the controversy that was originally generated by HR 1487 
and previous legislative proposals.

                                                       Bruce Vento.

                                  
