[Senate Report 106-372]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 750
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-372

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



 
           NATIONAL MONUMENT PUBLIC PARTICIPATION ACT OF 1999

                                _______
                                

                August 25, 2000.--Ordered to be printed

   Filed, under authority of the order of the Senate of July 26, 2000

                                _______
                                

  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 729]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 729) to ensure that congress and the 
public have the right to participate in the declaration of 
national monuments on Federal land, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                         Purpose of the Measure

    The purpose of S. 729 is to amend the Antiquities Act to 
ensure that Congress and the public have a right to participate 
in the declaration of national monuments on federal land.

                          Background and Need

    Under the Antiquities Act, 34 Stat. 225 (16 U.S.C. 431), 
the President has the authority to designate national monuments 
on land under federal jurisdiction in order to protect 
``objects of historic or scientific interest * * * and * * * 
parcels of land, the limits of which in all cases shall be 
confined to the smallest area compatible with the * * * 
management of the objects to be protected.''
    Since the passage of the Antiquities Act in 1906, Congress 
has passed, and the President has signed into law, a 
substantial amount of legislation dealing with the management 
of Federal lands. These Acts reflect the evolution of public 
thought on the management of their common lands. The statutes 
require agencies to fully analyze ongoing activities and 
proposed actions which are, or may have, a detrimental effect 
on public lands. In addition, these laws require that public 
lands be managed in ways which serve the common good, are based 
on sound science, include public involvement, and mitigate 
environmental impacts to the maximum extent practical. Among 
these laws are: National Park Service Organic Act of 1916; 
Wilderness Act of 1964; National environmental Policy Act of 
1970; Mining and Minerals Policy Act of 1970; Federal Land 
Policy and Management Act of 1976; National Forest Management 
Act of 1977; Wild and Scenic Rivers Act of 1968; National 
Trails System Act of 1968; Surface Mining Control and 
Reclamation Act of 1977; Archaeological Resources Protection 
Act of 1979; Federal Cave Resources Protection Act of 1988; 
Archaeological Recovery Act of 1960; Fish and wildlife 
Conservation Act of 1980; endangered Species Act of 1973; Fish 
and wildlife Act of 1956; and, the Forest Service Organic Act 
of 1958.
    Congress has also provided limitations on the ability of 
Executive Branch agencies to alter the use of Federal lands or 
withdraw them from permitted uses. Emergency withdrawal 
authority, similar to the authority contained in the 
Antiquities Act, is now limited in scope and duration under 
statutes such as the Federal Land Policy and Management Act in 
order to provide protection from immediate threats while 
preserving Congress's Constitutional role with respect to the 
management of Federal lands and property. These changes reflect 
the development of the Nation. When the Antiquities Act as 
enacted, Congress met only briefly during the year and 
communications were more limited. Considering the times, it was 
appropriate to invest the Executive with emergency authority to 
protect important and significant resources when there may not 
have been adequate time to submit a legislative proposal to 
Congress. Although Congress had established several National 
Parks, it had yet to establish general guidelines for their 
management.
    This legislation was developed as a response to concerns 
that the original purposes that led to passage of the 
Antiquities Act have been overtaken by the passage of new 
legislation and that the Act has become an opportunity to avoid 
both the constitutional role of Congress and public 
participation, which is required in almost all other 
administrative decisions relating to land management. Concerns 
have also been expressed that designations and withdrawals 
pursuant to the Antiquities Act, while clearly major Federal 
actions having a significant impact on the human environment, 
are not made in a public and fully informed manner as required 
by the National Environmental Policy Act (NEPA). In part, the 
failure to perform the types of studies and analyses that would 
be required under NEPA or any of the various land and resources 
management statutes, also has led to concerns that significant 
energy and mineral resources are being adversely affected. Most 
recently, additional concerns have been raised that the Act is 
no longer being used for its original objective, and that the 
limitation of reserving ``the smallest area compatible'' with 
management are being ignored in favor of a public relations 
campaign to designate as many lands as possible for political 
purposes.
    Given that Congress has invested Federal agencies with 
emergency withdrawal authority, as well as with significant 
land management and enforcement authorities to protect lands 
and resources, there no longer appears to be any compelling 
reason to avoid either public participation, informed decision-
making as required by NEPA and other statutes, or 
theConstitutional role of Congress under Article IV of the 
Constitution.
    S. 729 amends the Antiquities Act to require the 
Secretaries of Agriculture and the Interior to promulgate 
regulations that ensure the process to create monument 
designations is consistent with contemporary land management 
laws, including the opportunity for public notice and comment. 
In addition, a national monument designation will require an 
environmental impact statement, a mineral and surface resources 
survey, and an identification of inholdings and other existing 
rights. After inventory and analysis, the Secretaries will 
recommend to the President whether monument status is 
warranted, and within two years this recommendation will be 
forwarded to the Congress. The monument designation 
recommendation will become effective when approved by an Act of 
Congress.

                          Legislative History

    S. 729 was introduced by Senators Craig, Bennett, Burns, 
Campbell, Crapo, Enzi, Hagel, Helms, Inhofe, Kyl, Lott, 
Murkowski, Sessions, Shelby, Smith of Oregon, Stevens, and 
Thomas on March 25, 1999. The Subcommittee on Forests and 
Public Land Management held a hearing on S. 729 on July 20, 
1999. At the business meeting on June 7, 2000, the Committee on 
Energy and Natural Resources ordered S. 729 to be favorably 
reported, without amendment.

            Committee Recommendation and Tabulation of Votes

    The Senate Committee on Energy and Natural Resources, in 
open business session on June 7, 2000, by a voice vote of a 
quorum present recommends that the Senate pass S. 729.

                      Section-by-Section Analysis

    Section 1. Refers to the short title of the bill as the 
``The National Monument Public Participation Act of 1999''.
    Section 2. This section states that the purpose of the act 
is to ensure that Congress and the public have a right and an 
opportunity to participate in the decisions to declare national 
monuments.
    Section 3 amend the Antiquities Act of 1906 by adding 
section 5 which requires: (1) public notice, hearings, and 
comment; (2) an environmental impact statement; (3) a mineral 
survey; (4) an assessment of surface values; (5) an inventory 
of existing rights; and (6) identification of State and private 
inholdings. The section also requires potential monuments to be 
recommended to the President upon completion of the surveys and 
analysis above, with designation effective when approved by an 
Act of Congress.

                   Cost and Budgetary Considerations

    The Congressional Budget Office (CBO) estimate of the costs 
of this measure follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 23, 2000.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources,
Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 729, the National 
Monument Public Participation Act of 1999.
    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.

S. 729--National Monument Public Participation Act of 1999

    CBO estimates that implementing S. 729 would increase 
discretionary costs related to the designation of national 
monuments. Costs that would be incurred to meet the 
requirements of the bill could exceed $1 million a year, 
depending on the characteristics of new national monument 
recommendations made in the future. The bill would not affect 
direct spending or receipts; therefore, pay-as-you-go 
procedures would not apply. S. 729 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.
    Under the Antiquities Act of 1906, the President may 
declare landmarks, structures, and other objects of historic or 
scientific interest that are on federal land to be national 
monuments. The Secretary of Agriculture or the Secretary of the 
Interior typically advise the President and make 
recommendations for such declarations. S. 729 would amend the 
Antiquities Act to require that the Secretary of Agriculture 
and the Secretary of Interior establish procedures to ensure 
that federal, state, and local governments and the public 
participate in planning of national monuments. Specifically, 
the bill would require the Secretaries to complete an 
environmental impacts statement and conduct certain surveys 
prior to recommending the declaration of a monument. S. 729 
would require the President to advise the Congress on the 
status of any recommendations for new monuments made by the two 
Secretaries. Finally, under the bill, future Presidential 
declarations of national monuments would be subject to 
Congressional approval.
    Based on information from the Department of the Interior 
and the Council for Environmental Quality, CBO estimates that 
requiring environmental impact statements prior to 
recommendations for new monuments would increase the cost of 
national monument declarations by between $100,000 and $1 
million per recommendation, assuming the availability of 
appropriated funds. The current Administration has established 
or expanded 10 national monuments within the past five years.
    On July 16, 1999, CBO transmitted a cost estimate for H.R. 
1487, similar legislation that was ordered reported by the 
House Committee on Resources on June 30, 1999. Differences 
between the two cost estimates reflect differences in the 
procedures required under the bills.
    The CBO staff contact is Megan Carroll. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 729.
    The bill is not a regulatory measure in the sense of 
imposing Government-established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 729, as ordered reported.

                        Executive Communications

    On June 7, 2000 the Committee on Energy and Natural 
Resources requested legislative reports from the Secretary of 
the Interior, the Secretary of Agriculture, and the Office of 
Management and Budget setting forth Executive agency 
recommendations on S. 729. These reports had not been received 
at the time the report on S. 729 was filed. When the reports 
become available, the Chairman will request that they be 
printed in the Congressional Record for the advice of the 
Senate. The testimony provided by the Council on Environmental 
Quality at the Subcommittee hearing follows:

 Statement of George Frampton, Acting Chair, Council on Environmental 
               Quality, Executive Office of the President

    Mr. Chairman and members of the Committee, thank you for 
the opportunity to appear before you today to present the views 
of the Council on Environmental Quality on S. 729, the 
``National Monument Public Participation Act of 1999.''
    The Administration strongly opposes this legislation. 
Should it be presented to the President, his senior advisers 
would recommend that he veto the bill.
    S. 729 would amend the Antiquities Act of 1906 (16 U.S.C. 
431), one of the most successful environmental laws in American 
history. It would impose unprecedented limitations on the 
presidential authority provided by that Act, which has existed 
unchanged since 1906. Amendment of this Act is unnecessary and 
unwarranted.
    The Act permits the President, in his discretion, to 
protect our most precious resources by declaring lands that are 
already owned or controlled by the federal government to be 
national monuments. It has been used consistently by Presidents 
of both parties to protect some of our nation's national 
treasures.
    Between 1906 and 1999 fourteen Presidents have used the 
Antiquities Act to protect significant natural, historical and 
scientific resources on Federal lands. All but three Presidents 
in this century have made use of the Act, creating 105 national 
monuments in 24 different states and the Virgin Islands and 
protecting about 70 million acres.
    President Theodore Roosevelt was the first to use the 
Antiquities Act in 1906 to declare Devils Tower in Wyoming a 
national monument. Since then, the Antiquities Act has been 
used to protect sites including the Grand Canyon, Acadia 
National Park, Muir Woods National Monument, Carlsbad Caverns, 
the Channel Islands, Death Valley, the Edison Laboratory, the 
Statue of Liberty, and the C&O Canal. The history of the Act 
contains no evidence of abuse of this authority. Rather, it is 
filled with instances of the Act's use to protect areas that 
now seem sacrosanct from threats that were very real. For 
example, President Theodore Roosevelt proclaimed the Grand 
Canyon a national monument to protect it from threatened 
mining. The coastal redwoods in Muir Woods were threatened by a 
condemnation action filed by a power company that wanted to 
flood the land for a reservoir, and President Roosevelt was 
able to take immediate action to accept the land and protect 
it.
    Some uses of the Act have been initially controversial and 
generated local opposition. However, again history has taught 
us that even the actions that are controversial at the outset 
are soon embraced by the public and often ratified by Congress. 
For example, the 212,000 acres in Wyoming designated as Jackson 
Hole National Monument are now part of Grand Teton National 
Park. Most of the lands in Alaska protected by President Carter 
were soon designated by Congress as conservation units under 
the Alaska National Interest Lands Conservation Act. Most 
recently, President Clinton's designation of the Grand 
Staircase-Escalante in Utah was ratified by the 105th Congress 
through a landmark land exchange bill benefiting the school 
children of Utah and all Americans.
    A few presidential proclamations have sparked efforts to 
amend the Act, including the designation of Jackson Hole and 
President Carter's reservation of 56 million acres in Alaska. 
Those efforts were rejected by the Congress, and the lands 
protected are among the most precious to the American people.
    It is important to note that, notwithstanding the 
discretion provided to the President under the Antiquities Act, 
Congress retains considerable authority to exercise oversight 
and to affect the status of the lands involved and their 
management. Congress obviously retains the power to overturn 
any presidential monument designation. However, as further 
evidence of the careful use that has been made by presidents of 
this authority, only a few proclamations totaling less than 
5,000 acres of the 70 million acres protected have been 
rescinded since 1906. In addition, Congress can affect the 
implementation of the Act through its authority over laws 
governing the management of public lands as well as through the 
appropriations process.
    In contrast to current law, S. 729 would impose new and 
unprecedented requirements on the exercise of presidential 
authority. Specifically, the bill would require that the 
Secretaries of the Interior and Agriculture, before preparing 
any recommendation to the President regarding national monument 
designation, prepare a full environmental impact statement 
under the National Environmental Policy Act (NEPA). It would 
further require that any such recommendation include 
assessments of the value of minerals and surface resources, and 
identification of any existing rights and State and private 
inholdings within the Federal land in question. In addition, it 
apparently would require that not only the ultimate 
recommendation but also the accompanying studies be 
individually subject to NEPA.
    It also would require that ``adequate notice and 
opportunity'' for public comment, potentially including public 
hearings, be provided before monument designation. This appears 
to contemplate some additional public process, perhaps between 
the time of the cabinet official's recommendation and the 
President's action, beyond that already required by the 
application of NEPA.
    Finally, section (f) could be read effectively to annul the 
President's authority under current law by requiring 
congressional approval in advance of any national monument 
designation.
    It has long been accepted that discretionary presidential 
actions are excluded from NEPA. Applicability of NEPA to the 
preparation of recommendations by cabinet officials to the 
President can have the same effect as requiring presidential 
NEPA compliance and interfere with the President's 
Constitutional right to seek advice from his appointees. Thus, 
a Court reviewing President Carter's use of the Antiquities Act 
held that the Secretary's preparation of a recommendation to 
the President to assist in his consideration of action under 
the Antiquities Act is similarly exempt from EPA requirements. 
As the Court pointed out, if cabinet secretaries could not 
advise the President on such matters without triggering NEPA, 
it would create a result that ``approaches the absurd.'' The 
President would be required to ``personally draw lines on maps, 
file the necessary papers, and [attend to] the other details 
that are necessary to the issuance of a Presidential 
proclamation in order to escape the procedural requirements of 
NEPA. * * *''
    Moreover, S. 729 goes beyond merely requiring that cabinet 
officials comply with NEPA in preparing their Antiquities Act 
recommendations to the President. It would force all 
recommendations on monuments, regardless of size or complexity, 
to skip over the environmental assessment stage of NEPA and 
assume instead sufficient environmental impact to require 
preparation of an environmental impact statement (EIS). In 
addition, it would mandate preparation of certain studies not 
necessarily required by NEPA, including mineral and surface 
resource valuation, and apply NEPA procedures to those studies 
as well.
    As the Committee is aware, the Administration and the 
Council on Environmental Quality are fully supportive of public 
input and the applicability of NEPA generally to management 
decisions by federal agencies on federal lands. However, it 
would be inappropriate to use the general value of such 
procedures to undermine the unique and carefully crafted 
presidential authority involved in the Antiquities Act. The 
authority provided to the President by the Act is necessary to 
allow him to act quickly and decisively to protect our most 
significant resources. If the mandatory processes set out in S. 
729 had limited the President's authority, some of our most 
treasured places might have been lost during this century. We 
cannot now accept that risk for future generations in order to 
address a problem that does not exist.
    The President's ability to act unilaterally and decisively 
does not preclude public input on the management of the lands 
involved. Presidential action to declare a national monument 
does not substitute for, and is typically followed by, the 
development of a management plan for the new monument that is 
fully subject to NEPA and the public input it requires. This 
process, and the oversight of monument decisions available to 
Congress as discussed above, strikes the appropriate balance 
between the branches of government, the public, and the 
protection of our national treasures.
    This system has worked well for almost 100 years. 
Historical perspective not only ratifies the actions taken 
under the Antiquities Act, but also demonstrates that they are 
of the highest possible significance. To alter this system now 
is unwarranted and unprecedented. Erosion of the President's 
authority would not just be a loss for the President, but most 
importantly for all of our citizens who so value the priceless 
resources that have been and will be protected by this Act.
    This concludes my statement. I would be happy to answer any 
questions the Committee may have.

MINORITY VIEWS OF SENATORS BINGAMAN, AKAKA, GRAHAM, LANDRIEU, BAYH, AND 
                                LINCOLN

    At its business meeting on June 7, 2000, the Committee 
ordered several bills to be favorably reported en bloc by voice 
vote, including S. 729. However, if there had been a separate 
vote on S. 729, we would have opposed reporting the bill.
    S. 729 would essentially terminate the President's 
authority to designate national monuments under the Antiquities 
Act, by requiring Congressional approval for any monument 
designation to become effective. The bill's proponents contend 
it is needed to ensure that notice and public participation are 
required before a President designates a new national monument 
under the Antiquities Act. However, the Committee has already 
reported a bill which would provide for additional notice and 
public participation in this process. That measure, H.R. 1487 
(Calendar No. 477), was favorably reported by the Committee 
last October. We were willing to support that bill because it 
provided for public participation while making clear that the 
President's authority to designate national monuments is not 
modified or otherwise restricted.
    Since its enactment in 1906, the Antiquities Act has been 
one of the most successful environmental laws in the past 
century. Using the authorities granted by the Act, all but 
three Presidents have set aside and protected some of the most 
magnificent areas in our nation, including the Grand Canyon in 
Arizona, Grand Teton National Park in Wyoming, Olympic National 
Park in Washington, and most of the national parks in Utah and 
Alaska. Many areas initially designated as national monuments, 
including all of the previous examples, were subsequently 
redesignated by Congress as national parks. The areas protected 
through the Antiquities Act have protected many of the 
remarkable natural, cultural and historic features throughout 
the country.
    While many of the monument designations have initially been 
controversial, over time tremendous public support and 
appreciation has developed for the far-sighted protection of 
those areas. Even though the Antiquities Act grants the 
President very broad powers, Congress always retain the ability 
to enact legislation repealing a designation. Despite the 
controversy surrounding some of the recent destinations, not 
one bill has been introduced in the Senate to repeal any of the 
newly created monuments. And with the benefit of history, 
nobody would even consider revoking any of the earlier 
designations.
    S. 729 would also mandate compliance under the National 
Environmental Policy Act for actions relating to the 
designation of a national monument, despite the fact that 
actions by the President are not subject to NEPA.
    We oppose S. 729 because it represents bad public policy 
and because the Committee has already acted to provide for 
public participation in the designation of national monuments.

                                   Jeff Bingaman.
                                   Daniel K. Akaka.
                                   Bob Graham.
                                   Mary L. Landrieu.
                                   Evan Bayh.
                                   Blanche L. Lincoln.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 729, as ordered 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):

   THE ACT OF JUNE 8, 1906 (AN ACT FOR THE PRESERVATION OF AMERICAN 
ANTIQUITIES)

           *       *       *       *       *       *       *


    Sec. 4. That the Secretaries of the departments aforesaid 
shall make and publish from time to time uniform rules and 
regulations for the purpose of carrying out the provisions of 
the Act.

SEC. 5. CONGRESSIONAL AND PUBLIC ROLES IN NATIONAL MONUMENT 
                    DECLARATIONS.

    (a) In General.--The Secretary of the Interior and the 
Secretary of Agriculture shall promulgate regulations that 
establish procedures to ensure that Federal, State, and local 
governments and the public have the right to participate in the 
formulation of plans relating to the declaration of a national 
monument on Federal land on or after the date of enactment of 
this section, including procedures--
          (1) to provide the public with adequate notice and 
        opportunity to comment on and participate in the 
        declaration of a national monument on Federal land; and
          (2) for public hearings, when appropriate, on the 
        declaration of a national monument on Federal land.
    (b) Other Duties.--Prior to making any recommendations for 
declaration of a national monument in an area, the Secretary of 
the Interior and the Secretary of Agriculture shall--
          (1) ensure, to the maximum extent practicable, 
        compliance with all applicable Federal land management 
        and environmental laws, including the completion of a 
        programmatic environmental impact statement under the 
        National Environmental Policy Act of 1969 (42 U.S.C. 
        4321 et seq.);
          (2) cause mineral surveys to be conducted by the 
        Geological Survey to determine the mineral values, if 
        any, that may be present in the area;
          (3) cause an assessment of the surface resource 
        values of the land to be completed and made available 
        by the appropriate agencies;
          (4) identify all existing rights held on Federal land 
        contained within the area by type and acreage; and
          (5) identify all State and private land contained 
        within the area.
    (c) Recommendations.--On completion of the reviews and 
mineral surveys required under subsection (b), the Secretary of 
the Interior and the Secretary of Agriculture shall submit to 
the President recommendations as to whether any area on Federal 
land warrants declaration as a national monument.
    (d) Federal Action.--Any study or recommendation under this 
section shall be considered a federal action for purposes of 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 
et seq.).
    (e) Reports.--Not later than 2 years after the receipt of a 
recommendation under subsection (c), the President shall--
          (1) advise the President of the Senate and the 
        Speaker of the House of Representatives of the 
        President's recommendation with respect to whether each 
        area evaluated should be declared a national monument; 
        and
          (2) provide a map and description of the boundaries 
        of each area evaluated for declaration to the President 
        of the Senate and the Speaker of the House of 
        Representatives.
    (f) Declaration After Effective Date.--A recommendation of 
the President for declaration of a national monument that is 
made after the effective date of this section shall become 
effective only if the declaration if approved by Act of 
Congress.

                                
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