U.S. GOVERNMENT PRINTING OFFICE

58–958 u WASHINGTON : 1999

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

(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MARK E. SOUDER, Indiana

GREG WALDEN, Oregon

DON SHERWOOD, Pennsylvania

ROBIN HAYES, North Carolina

MIKE SIMPSON, Idaho

THOMAS G. TANCREDO, Colorado

GEORGE MILLER, California

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́, Puerto

Rico

ROBERT A. UNDERWOOD, Guam

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-CHRISTENSEN, Virgin

Islands

RON KIND, Wisconsin

JAY INSLEE, Washington

GRACE F. NAPOLITANO, California

TOM UDALL, New Mexico

MARK UDALL, Colorado

JOSEPH CROWLEY, New York

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

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

RICHARD W. POMBO, California

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

CHRIS CANNON, Utah

RICK HILL, Montana

JIM GIBBONS, Nevada

MARK E. SOUDER, Indiana

DON SHERWOOD, Pennsylvania

CARLOS A. ROMERO-BARCELO ́, Puerto

Rico

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

DONNA CHRISTIAN-CHRISTENSEN, Virgin

Islands

RON KIND, Wisconsin

JAY INSLEE, Washington

TOM UDALL, New Mexico

MARK UDALL, Colorado

JOSEPH CROWLEY, New York

RUSH D. HOLT, New Jersey

ALLEN FREEMYER, Counsel

TODD HULL, Professional Staff

LIZ BIRNBAUM, Democratic Counsel

GARY GRIFFITH, Professional Staff

(III)

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

(1)

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:]

2

3

4

5

6

7

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,

8

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.

9

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.

10

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.

11

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 StaircaseEscalante 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

12

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.

13

14

15

16

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 StaircaseEscalante 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:]

17

18

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.

19

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 midAugust 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 creVerDate 11-SEP-98 07:11 Nov 17, 1999 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 58958 HRESOUR1 PsN: HRESOUR1
20

ated 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 boneheaded 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——

21

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

22

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 inVerDate 11-SEP-98 07:11 Nov 17, 1999 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6621 58958 HRESOUR1 PsN: HRESOUR1
23

crease 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.

[The information follows:]

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

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 boneheaded 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?

46

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

47

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?

48

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 decisionmaking. 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

49

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

50

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,

51

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

52

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

53

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

54

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—91⁄2 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 governVerDate 11-SEP-98 07:11 Nov 17, 1999 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6602 58958 HRESOUR1 PsN: HRESOUR1
55

ment 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.

56

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.

57

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.

58

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

59

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

60

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.

61

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 govVerDate 11-SEP-98 07:11 Nov 17, 1999 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6602 58958 HRESOUR1 PsN: HRESOUR1
62

ernor 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

63

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

64

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

65

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

66

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.]

67

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

68

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 opportuniVerDate 11-SEP-98 07:11 Nov 17, 1999 Jkt 000000 PO 00000 Frm 00071 Fmt 6602 Sfmt 6602 58958 HRESOUR1 PsN: HRESOUR1
69

ties 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

70

‘‘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.