[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.