79–010

Calendar No. 750

106TH CONGRESS REPORT

2d Session " ! SENATE 106–372

NATIONAL MONUMENT PUBLIC PARTICIPATION ACT OF

1999

AUGUST 25, 2000.—Ordered to be printed

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

Mr. MURKOWSKI, from the Committee on Energy and Natural

Resources, submitted the following

REPORT

together with

MINORITY VIEWS

[To accompany S. 729]

The Committee on Energy and Natural Resources, to which was

referred the bill (S. 729) to ensure that congress and the public

have the right to participate in the declaration of national monuments on Federal land, having considered the same, reports favorably thereon without amendment and recommends that the bill do

pass.

PURPOSE OF THE MEASURE

The purpose of S. 729 is to amend the Antiquities Act to ensure

that Congress and the public have a right to participate in the declaration of national monuments on federal land.

BACKGROUND AND NEED

Under the Antiquities Act, 34 Stat. 225 (16 U.S.C. 431), the

President has the authority to designate national monuments on

land under federal jurisdiction in order to protect ‘‘objects of historic or scientific interest * * * and * * * parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the * * * management of the objects to be protected.’’

2

Since the passage of the Antiquities Act in 1906, Congress has

passed, and the President has signed into law, a substantial

amount of legislation dealing with the management of Federal

lands. These Acts reflect the evolution of public thought on the

management of their common lands. The statutes require agencies

to fully analyze ongoing activities and proposed actions which are,

or may have, a detrimental effect on public lands. In addition,

these laws require that public lands be managed in ways which

serve the common good, are based on sound science, include public

involvement, and mitigate environmental impacts to the maximum

extent practical. Among these laws are: National Park Service Organic Act of 1916; Wilderness Act of 1964; National environmental

Policy Act of 1970; Mining and Minerals Policy Act of 1970; Federal

Land Policy and Management Act of 1976; National Forest Management Act of 1977; Wild and Scenic Rivers Act of 1968; National

Trails System Act of 1968; Surface Mining Control and Reclamation Act of 1977; Archaeological Resources Protection Act of 1979;

Federal Cave Resources Protection Act of 1988; Archaeological Recovery Act of 1960; Fish and wildlife Conservation Act of 1980; endangered Species Act of 1973; Fish and wildlife Act of 1956; and,

the Forest Service Organic Act of 1958.

Congress has also provided limitations on the ability of Executive

Branch agencies to alter the use of Federal lands or withdraw them

from permitted uses. Emergency withdrawal authority, similar to

the authority contained in the Antiquities Act, is now limited in

scope and duration under statutes such as the Federal Land Policy

and Management Act in order to provide protection from immediate threats while preserving Congress’s Constitutional role with

respect to the management of Federal lands and property. These

changes reflect the development of the Nation. When the Antiquities Act as enacted, Congress met only briefly during the year

and communications were more limited. Considering the times, it

was appropriate to invest the Executive with emergency authority

to protect important and significant resources when there may not

have been adequate time to submit a legislative proposal to Congress. Although Congress had established several National Parks,

it had yet to establish general guidelines for their management.

This legislation was developed as a response to concerns that the

original purposes that led to passage of the Antiquities Act have

been overtaken by the passage of new legislation and that the Act

has become an opportunity to avoid both the constitutional role of

Congress and public participation, which is required in almost all

other administrative decisions relating to land management. Concerns have also been expressed that designations and withdrawals

pursuant to the Antiquities Act, while clearly major Federal actions

having a significant impact on the human environment, are not

made in a public and fully informed manner as required by the National Environmental Policy Act (NEPA). In part, the failure to perform the types of studies and analyses that would be required

under NEPA or any of the various land and resources management

statutes, also has led to concerns that significant energy and mineral resources are being adversely affected. Most recently, additional concerns have been raised that the Act is no longer being

used for its original objective, and that the limitation of reserving

‘‘the smallest area compatible’’ with management are being ignored

3

in favor of a public relations campaign to designate as many lands

as possible for political purposes.

Given that Congress has invested Federal agencies with emergency withdrawal authority, as well as with significant land management and enforcement authorities to protect lands and resources, there no longer appears to be any compelling reason to

avoid either public participation, informed decision-making as required by NEPA and other statutes, or the Constitutional role of

Congress under Article IV of the Constitution.

S. 729 amends the Antiquities Act to require the Secretaries of

Agriculture and the Interior to promulgate regulations that ensure

the process to create monument designations is consistent with

contemporary land management laws, including the opportunity for

public notice and comment. In addition, a national monument designation will require an environmental impact statement, a mineral and surface resources survey, and an identification of

inholdings and other existing rights. After inventory and analysis,

the Secretaries will recommend to the President whether monument status is warranted, and within two years this recommendation will be forwarded to the Congress. The monument designation

recommendation will become effective when approved by an Act of

Congress.

LEGISLATIVE HISTORY

S. 729 was introduced by Senators Craig, Bennett, Burns, Campbell, Crapo, Enzi, Hagel, Helms, Inhofe, Kyl, Lott, Murkowski, Sessions, Shelby, Smith of Oregon, Stevens, and Thomas on March 25,

1999. The Subcommittee on Forests and Public Land Management

held a hearing on S. 729 on July 20, 1999. At the business meeting

on June 7, 2000, the Committee on Energy and Natural Resources

ordered S. 729 to be favorably reported, without amendment.

COMMITTEE RECOMMENDATION AND TABULATION OF VOTES

The Senate Committee on Energy and Natural Resources, in

open business session on June 7, 2000, by a voice vote of a quorum

present recommends that the Senate pass S. 729.

SECTION-BY-SECTION ANALYSIS

Section 1. Refers to the short title of the bill as the ‘‘The National

Monument Public Participation Act of 1999’’.

Section 2. This section states that the purpose of the act is to ensure that Congress and the public have a right and an opportunity

to participate in the decisions to declare national monuments.

Section 3 amend the Antiquities Act of 1906 by adding section 5

which requires: (1) public notice, hearings, and comment; (2) an environmental impact statement; (3) a mineral survey; (4) an assessment of surface values; (5) an inventory of existing rights; and (6)

identification of State and private inholdings. The section also requires potential monuments to be recommended to the President

upon completion of the surveys and analysis above, with designation effective when approved by an Act of Congress.

4

COST AND BUDGETARY CONSIDERATIONS

The Congressional Budget Office (CBO) estimate of the costs of

this measure follows:

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, June 23, 2000.

Hon. FRANK H. MURKOWSKI, Chairman, Committee on Energy and Natural Resources,

Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 729, the National Monument Public Participation Act of 1999.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Megan Carroll.

Sincerely,

BARRY B. ANDERSON

(For Dan L. Crippen, Director).

Enclosure.

S. 729—National Monument Public Participation Act of 1999

CBO estimates that implementing S. 729 would increase discretionary costs related to the designation of national monuments.

Costs that would be incurred to meet the requirements of the bill

could exceed $1 million a year, depending on the characteristics of

new national monument recommendations made in the future. The

bill would not affect direct spending or receipts; therefore, pay-asyou-go procedures would not apply. S. 729 contains no intergovernmental or private-sector mandates as defined in the Unfunded

Mandates Reform Act and would impose no costs on state, local, or

tribal governments.

Under the Antiquities Act of 1906, the President may declare

landmarks, structures, and other objects of historic or scientific interest that are on federal land to be national monuments. The Secretary of Agriculture or the Secretary of the Interior typically advise the President and make recommendations for such declarations. S. 729 would amend the Antiquities Act to require that the

Secretary of Agriculture and the Secretary of Interior establish procedures to ensure that federal, state, and local governments and

the public participate in planning of national monuments. Specifically, the bill would require the Secretaries to complete an environmental impacts statement and conduct certain surveys prior to recommending the declaration of a monument. S. 729 would require

the President to advise the Congress on the status of any recommendations for new monuments made by the two Secretaries.

Finally, under the bill, future Presidential declarations of national

monuments would be subject to Congressional approval.

Based on information from the Department of the Interior and

the Council for Environmental Quality, CBO estimates that requiring environmental impact statements prior to recommendations for

new monuments would increase the cost of national monument declarations by between $100,000 and $1 million per recommendation,

assuming the availability of appropriated funds. The current Administration has established or expanded 10 national monuments

within the past five years.

5

On July 16, 1999, CBO transmitted a cost estimate for H.R.

1487, similar legislation that was ordered reported by the House

Committee on Resources on June 30, 1999. Differences between the

two cost estimates reflect differences in the procedures required

under the bills.

The CBO staff contact is Megan Carroll. This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget

Analysis.

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing

Rules of the Senate, the Committee makes the following evaluation

of the regulatory impact which would be incurred in carrying out

S. 729.

The bill is not a regulatory measure in the sense of imposing

Government-established standards or significant economic responsibilities on private individuals and businesses.

No personal information would be collected in administering the

program. Therefore, there would be no impact on personal privacy.

Little, if any, additional paperwork would result from the enactment of S. 729, as ordered reported.

EXECUTIVE COMMUNICATIONS

On June 7, 2000 the Committee on Energy and Natural Resources requested legislative reports from the Secretary of the Interior, the Secretary of Agriculture, and the Office of Management

and Budget setting forth Executive agency recommendations on S.

729. These reports had not been received at the time the report on

S. 729 was filed. When the reports become available, the Chairman

will request that they be printed in the Congressional Record for

the advice of the Senate. The testimony provided by the Council on

Environmental Quality at the Subcommittee hearing follows:

STATEMENT OF GEORGE FRAMPTON, ACTING CHAIR, COUNCIL ON ENVIRONMENTAL QUALITY, EXECUTIVE OFFICE OF

THE PRESIDENT

Mr. Chairman and members of the Committee, thank

you for the opportunity to appear before you today to

present the views of the Council on Environmental Quality

on S. 729, the ‘‘National Monument Public Participation

Act of 1999.’’

The Administration strongly opposes this legislation.

Should it be presented to the President, his senior advisers

would recommend that he veto the bill.

S. 729 would amend the Antiquities Act of 1906 (16

U.S.C. 431), one of the most successful environmental laws

in American history. It would impose unprecedented limitations on the presidential authority provided by that Act,

which has existed unchanged since 1906. Amendment of

this Act is unnecessary and unwarranted.

The Act permits the President, in his discretion, to protect our most precious resources by declaring lands that

are already owned or controlled by the federal government

to be national monuments. It has been used consistently

6

by Presidents of both parties to protect some of our nation’s national treasures.

Between 1906 and 1999 fourteen Presidents have used

the Antiquities Act to protect significant natural, historical

and scientific resources on Federal lands. All but three

Presidents in this century have made use of the Act, creating 105 national monuments in 24 different states and

the Virgin Islands and protecting about 70 million acres.

President Theodore Roosevelt was the first to use the

Antiquities Act in 1906 to declare Devils Tower in Wyoming a national monument. Since then, the Antiquities

Act has been used to protect sites including the Grand

Canyon, Acadia National Park, Muir Woods National

Monument, Carlsbad Caverns, the Channel Islands, Death

Valley, the Edison Laboratory, the Statue of Liberty, and

the C&O Canal. The history of the Act contains no evidence of abuse of this authority. Rather, it is filled with instances of the Act’s use to protect areas that now seem

sacrosanct from threats that were very real. For example,

President Theodore Roosevelt proclaimed the Grand Canyon a national monument to protect it from threatened

mining. The coastal redwoods in Muir Woods were threatened by a condemnation action filed by a power company

that wanted to flood the land for a reservoir, and President

Roosevelt was able to take immediate action to accept the

land and protect it.

Some uses of the Act have been initially controversial

and generated local opposition. However, again history has

taught us that even the actions that are controversial at

the outset are soon embraced by the public and often ratified by Congress. For example, the 212,000 acres in Wyoming designated as Jackson Hole National Monument are

now part of Grand Teton National Park. Most of the lands

in Alaska protected by President Carter were soon designated by Congress as conservation units under the Alaska National Interest Lands Conservation Act. Most recently, President Clinton’s designation of the Grand Staircase-Escalante in Utah was ratified by the 105th Congress

through a landmark land exchange bill benefiting the

school children of Utah and all Americans.

A few presidential proclamations have sparked efforts to

amend the Act, including the designation of Jackson Hole

and President Carter’s reservation of 56 million acres in

Alaska. Those efforts were rejected by the Congress, and

the lands protected are among the most precious to the

American people.

It is important to note that, notwithstanding the discretion provided to the President under the Antiquities Act,

Congress retains considerable authority to exercise oversight and to affect the status of the lands involved and

their management. Congress obviously retains the power

to overturn any presidential monument designation. However, as further evidence of the careful use that has been

made by presidents of this authority, only a few proclamations totaling less than 5,000 acres of the 70 million acres

7

protected have been rescinded since 1906. In addition,

Congress can affect the implementation of the Act through

its authority over laws governing the management of public lands as well as through the appropriations process.

In contrast to current law, S. 729 would impose new and

unprecedented requirements on the exercise of presidential

authority. Specifically, the bill would require that the Secretaries of the Interior and Agriculture, before preparing

any recommendation to the President regarding national

monument designation, prepare a full environmental impact statement under the National Environmental Policy

Act (NEPA). It would further require that any such recommendation include assessments of the value of minerals

and surface resources, and identification of any existing

rights and State and private inholdings within the Federal

land in question. In addition, it apparently would require

that not only the ultimate recommendation but also the accompanying studies be individually subject to NEPA.

It also would require that ‘‘adequate notice and opportunity’’ for public comment, potentially including public

hearings, be provided before monument designation. This

appears to contemplate some additional public process,

perhaps between the time of the cabinet official’s recommendation and the President’s action, beyond that already required by the application of NEPA.

Finally, section (f) could be read effectively to annul the

President’s authority under current law by requiring congressional approval in advance of any national monument

designation.

It has long been accepted that discretionary presidential

actions are excluded from NEPA. Applicability of NEPA to

the preparation of recommendations by cabinet officials to

the President can have the same effect as requiring presidential NEPA compliance and interfere with the President’s Constitutional right to seek advice from his appointees. Thus, a Court reviewing President Carter’s use of

the Antiquities Act held that the Secretary’s preparation of

a recommendation to the President to assist in his consideration of action under the Antiquities Act is similarly exempt from EPA requirements. As the Court pointed out, if

cabinet secretaries could not advise the President on such

matters without triggering NEPA, it would create a result

that ‘‘approaches the absurd.’’ The President would be required to ‘‘personally draw lines on maps, file the necessary papers, and [attend to] the other details that are

necessary to the issuance of a Presidential proclamation in

order to escape the procedural requirements of NEPA.

* * *’’

Moreover, S. 729 goes beyond merely requiring that cabinet officials comply with NEPA in preparing their Antiquities Act recommendations to the President. It would

force all recommendations on monuments, regardless of

size or complexity, to skip over the environmental assessment stage of NEPA and assume instead sufficient environmental impact to require preparation of an environVerDate 11-MAY-2000 06:45 Aug 26, 2000 Jkt 079010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6969 E:\HR\OC\SR372.XXX pfrm03 PsN: SR372
8

mental impact statement (EIS). In addition, it would mandate preparation of certain studies not necessarily required

by NEPA, including mineral and surface resource valuation, and apply NEPA procedures to those studies as well.

As the Committee is aware, the Administration and the

Council on Environmental Quality are fully supportive of

public input and the applicability of NEPA generally to

management decisions by federal agencies on federal

lands. However, it would be inappropriate to use the general value of such procedures to undermine the unique and

carefully crafted presidential authority involved in the Antiquities Act. The authority provided to the President by

the Act is necessary to allow him to act quickly and decisively to protect our most significant resources. If the mandatory processes set out in S. 729 had limited the President’s authority, some of our most treasured places might

have been lost during this century. We cannot now accept

that risk for future generations in order to address a problem that does not exist.

The President’s ability to act unilaterally and decisively

does not preclude public input on the management of the

lands involved. Presidential action to declare a national

monument does not substitute for, and is typically followed

by, the development of a management plan for the new

monument that is fully subject to NEPA and the public

input it requires. This process, and the oversight of monument decisions available to Congress as discussed above,

strikes the appropriate balance between the branches of

government, the public, and the protection of our national

treasures.

This system has worked well for almost 100 years. Historical perspective not only ratifies the actions taken under

the Antiquities Act, but also demonstrates that they are of

the highest possible significance. To alter this system now

is unwarranted and unprecedented. Erosion of the President’s authority would not just be a loss for the President,

but most importantly for all of our citizens who so value

the priceless resources that have been and will be protected by this Act.

This concludes my statement. I would be happy to answer any questions the Committee may have.

(9)

MINORITY VIEWS OF SENATORS BINGAMAN, AKAKA,

GRAHAM, LANDRIEU, BAYH, AND LINCOLN

At its business meeting on June 7, 2000, the Committee ordered

several bills to be favorably reported en bloc by voice vote, including S. 729. However, if there had been a separate vote on S. 729,

we would have opposed reporting the bill.

S. 729 would essentially terminate the President’s authority to

designate national monuments under the Antiquities Act, by requiring Congressional approval for any monument designation to

become effective. The bill’s proponents contend it is needed to ensure that notice and public participation are required before a

President designates a new national monument under the Antiquities Act. However, the Committee has already reported a bill

which would provide for additional notice and public participation

in this process. That measure, H.R. 1487 (Calendar No. 477), was

favorably reported by the Committee last October. We were willing

to support that bill because it provided for public participation

while making clear that the President’s authority to designate national monuments is not modified or otherwise restricted.

Since its enactment in 1906, the Antiquities Act has been one of

the most successful environmental laws in the past century. Using

the authorities granted by the Act, all but three Presidents have

set aside and protected some of the most magnificent areas in our

nation, including the Grand Canyon in Arizona, Grand Teton National Park in Wyoming, Olympic National Park in Washington,

and most of the national parks in Utah and Alaska. Many areas

initially designated as national monuments, including all of the

previous examples, were subsequently redesignated by Congress as

national parks. The areas protected through the Antiquities Act

have protected many of the remarkable natural, cultural and historic features throughout the country.

While many of the monument designations have initially been

controversial, over time tremendous public support and appreciation has developed for the far-sighted protection of those areas.

Even though the Antiquities Act grants the President very broad

powers, Congress always retain the ability to enact legislation repealing a designation. Despite the controversy surrounding some of

the recent destinations, not one bill has been introduced in the

Senate to repeal any of the newly created monuments. And with

the benefit of history, nobody would even consider revoking any of

the earlier designations.

S. 729 would also mandate compliance under the National Environmental Policy Act for actions relating to the designation of a national monument, despite the fact that actions by the President are

not subject to NEPA.

10

We oppose S. 729 because it represents bad public policy and because the Committee has already acted to provide for public participation in the designation of national monuments.

JEFF BINGAMAN.

DANIEL K. AKAKA.

BOB GRAHAM.

MARY L. LANDRIEU.

EVAN BAYH.

BLANCHE L. LINCOLN.

(11)

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing

Rules of the Senate, changes in existing law made by the bill S.

729, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is

printed in italic, existing law in which no change is proposed is

shown in roman):

THE ACT OF JUNE 8, 1906 (AN ACT FOR THE

PRESERVATION OF AMERICAN ANTIQUITIES)

* * * * * * *

SEC. 4. That the Secretaries of the departments aforesaid shall

make and publish from time to time uniform rules and regulations

for the purpose of carrying out the provisions of the Act.

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

(a) IN GENERAL.—The Secretary of the Interior and the Secretary

of Agriculture shall promulgate regulations that establish procedures to ensure that Federal, State, and local governments and the

public have the right to participate in the formulation of plans relating to the declaration of a national monument on Federal land

on or after the date of enactment of this section, including

procedures—

(1) to provide the public with adequate notice and opportunity

to comment on and participate in the declaration of a national

monument on Federal land; and

(2) for public hearings, when appropriate, on the declaration

of a national monument on Federal land.

(b) OTHER DUTIES.—Prior to making any recommendations for

declaration of a national monument in an area, the Secretary of the

Interior and the Secretary of Agriculture shall—

(1) ensure, to the maximum extent practicable, compliance

with all applicable Federal land management and environmental laws, including the completion of a programmatic environmental impact statement under the National Environmental

Policy Act of 1969 (42 U.S.C. 4321 et seq.);

(2) cause mineral surveys to be conducted by the Geological

Survey to determine the mineral values, if any, that may be

present in the area;

(3) cause an assessment of the surface resource values of the

land to be completed and made available by the appropriate

agencies;

(4) identify all existing rights held on Federal land contained

within the area by type and acreage; and

(5) identify all State and private land contained within the

area.

12

(c) RECOMMENDATIONS.—On completion of the reviews and mineral surveys required under subsection (b), the Secretary of the Interior and the Secretary of Agriculture shall submit to the President

recommendations as to whether any area on Federal land warrants

declaration as a national monument.

(d) FEDERAL ACTION.—Any study or recommendation under this

section shall be considered a federal action for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(e) REPORTS.—Not later than 2 years after the receipt of a recommendation under subsection (c), the President shall—

(1) advise the President of the Senate and the Speaker of the

House of Representatives of the President’s recommendation

with respect to whether each area evaluated should be declared

a national monument; and

(2) provide a map and description of the boundaries of each

area evaluated for declaration to the President of the Senate

and the Speaker of the House of Representatives.

(f) DECLARATION AFTER EFFECTIVE DATE.—A recommendation of

the President for declaration of a national monument that is made

after the effective date of this section shall become effective only if

the declaration if approved by Act of Congress.

Æ