99–006

107TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 107–408

NATIONAL MONUMENT FAIRNESS ACT

APRIL 15, 2002.—Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Mr. HANSEN, from the Committee on Resources,

submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 2114]

[Including cost estimate of the Congressional Budget Office]

The Committee on Resources, to whom was referred the bill

(H.R. 2114) to amend the Antiquities Act regarding the establishment by the President of certain national monuments and to provide for public participation in the proclamation of national monuments, having considered the same, report favorably thereon with

an amendment and recommend that the bill as amended do pass.

The amendment is as follows:

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘National Monument Fairness Act’’.

SEC. 2. CONGRESSIONAL REVIEW OF NATIONAL MONUMENT STATUS AND CONSULTATION.

Section 2 of the Act of June 8, 1906, commonly referred to as the ‘‘Antiquities Act’’

(34 Stat. 225; 16 U.S.C. 431) is amended—

(1) by striking ‘‘SEC. 2. That the’’ and inserting ‘‘SEC. 2. (a) The’’;

(2) by adding the following at the end of subsection (a) (as so designated by

paragraph (1)): ‘‘A proclamation of the President under this section that, during

one calendar year, creates a national monument that is more than 50,000 acres

or that, during one calendar year, adds more than 50,000 acres to an existing

national monument may not be issued until 30 days after the President has

transmitted the proposed proclamation to the Governor of the State or States

in which such acreage is located and solicited such Governor’s or Governors’

written comments, and any such proclamation shall cease to be effective on the

date 2 years after issuance of the proclamation unless the proclamation has

been approved by an Act of Congress. Land and interests in land that were subject to a proclamation issued after the date of the enactment of the National

Monument Fairness Act that ceases to be effective under the preceding sentence

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shall revert to the land use status such land and interests in land had immediately before the proclamation was issued.’’; and

(3) by adding after subsection (a) (as so designated by paragraph (1)) the following new subsections:

‘‘(b)(1) To the extent consistent with the protection of the historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest located on the public lands to be designated, the President shall—

‘‘(A) solicit public participation and comment in the development of a monument proclamation; and

‘‘(B) consult with the Governor and entire congressional delegation of the

State or territory in which such lands are located, to the extent practicable, at

least 60 days prior to any national monument proclamation.

‘‘(2) Before issuing a proclamation under this section, the President shall consider

any information made available in the development of existing plans and programs

for the management of the lands under consideration for proclamation as a monument, including such public comments as may have been offered.

‘‘(c) Any management plan for a national monument developed subsequent to a

proclamation made under this section shall comply with the procedural requirements of the National Environmental Policy Act of 1969.’’.

PURPOSE OF THE BILL

The purpose of H.R. 2114, is to amend the Antiquities Act regarding the establishment by the President of certain national

monuments, and to provide for public participation in the proclamation of national monuments.

BACKGROUND AND NEED FOR LEGISLATION

In 1906, Congress passed the Antiquities Act (Act of June 8,

1906, codified at 16 U.S.C. 431) in response to a national movement to stop vandalism and looting that was occurring on public

lands with landmarks of prehistoric, historic or scientific interest

and value. Using this authority, President Theodore Roosevelt established 18 national monuments, including the Grand Canyon.

Many of these monuments, and subsequent monuments, have become a part of the National Park system.

While the intent of the Antiquities Act was to allow the President to act quickly to preserve archeological sites, the language

was broad enough to also allow the President to withdraw sites of

scientific and historic interest such as paleontological and geological sites. The Act specifically stated, however, that the President

should not withdraw more land than was necessary to protect the

named specific objects.

Since 1906, Congress has passed numerous laws which give the

Congress and the Executive Branch different tools to protect public

lands and resources, including legislation creating the National

Park System, the Wildlife Refuge System, the National Wilderness

Preservation System, the National Historic Preservation Act, the

Wild and Scenic Rivers System, the Archaeological Resources Protection Act, the Federal Land Policy and Management Act, and the

National Environmental Policy Act.

On September 18, 1996, President Bill Clinton established the

1.7 million acre Grand Staircase-Escalante National Monument in

Southern Utah. According to testimony and documents received in

previous Congresses by the Committee on Resources, this Presidential action was accomplished to appease some in the environmental community and timed accordingly to the November Presidential election. Some of these documents make it clear that this

action had very little to do with protection of lands but was focused

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on political advantage. For example, an E-mail dated March 22,

1996, from Linda Lance in the Clinton White House to the Council

on Environmental Quality and the Office of Management and

Budget staff discussing a draft letter from the President said:

I realize the real remaining question is not so much

what this letter says, but the political consequences of designating these lands as monuments when they’re not

threatened with losing wilderness status, and they’re probably not the areas of the country most in need of this designation. Presidents have not used their monument designation authority in this way in the past.***

President Clinton’s creation of the Grand Staircase-Escalante

National Monument is a prime example of the need for more public

input in national monument decisions. Additional documents obtained in previous Congresses by the Committee show that this

particular monument was being planned for months, yet the Governor of Utah and Utah’s Congressional delegation were not informed of the Presidential decision until 2 a.m. the morning that

the proclamation was signed. These documents also demonstrated

that the monument proclamation was kept secret until just before

the announcement to avoid public input and Congressional scrutiny, in addition to avoiding the environmental analysis otherwise

required for public land designations under the National Environmental Policy Act. [For further information on this topic see the

November 7, 1997, House Committee on Resources Majority Staff

Report, ‘‘Behind Closed Doors: The Abuse of Trust and Discretion

in the Establishment of the Grand Staircase-Escalante National

Monument,’’ (Committee Report 105–D), and the October 16, 1998,

Committee on Resources Report, ‘‘Monumental Abuse: The Clinton

Administration’s Campaign of Misinformation in the Establishment

of the Grand Staircase-Escalante National Monument’’ (H. Rept.

105–824)].

H.R. 2114 would amend the Antiquities Act of 1906 by ensuring

it is used only for those purposes originally intended. It would also

strengthen the Act by ensuring that state and local officials are

consulted and provided a role in the designation process. The bill

would amend the Act as follows:

(1) Require the President to transmit the proposed monument proclamation to the Governor of the state(s) in which a

monument is located at least 30 days in advance of the notification if the monument exceeds 50,000 acres, or enlarges an

existing national monument by more than 50,000 acres;

(2) Require Congressional approval within two years of any

national monument proclamation that creates a national

monument more than 50,000 acres, or enlarges an existing national monument by more than 50,000 acres. If Congressional

approval does not occur within two years, the proclamation

shall cease to be in effect, and

(3) Require the President to solicit public participation and

comment, and to consult with the Governor and congressional

delegation of the state at least 60 days prior to any national

monument proclamation.

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COMMITTEE ACTION

H.R. 2114 was introduced on June 7, 2001, by Congressman

Mike Simpson (R–ID), and referred to the Committee on Resources.

On June 14, 2001, the bill was referred to the Subcommittee on

National Parks, Recreation, and Public Lands. On July 17, 2001,

the Subcommittee held a hearing on the bill. On July 31, 2001, the

Subcommittee met to mark-up the bill. Congressman Mike Simpson offered an amendment requiring the Secretary of Interior to revert the land uses and interests in the land that were subject to

a proclamation under the Act should Congress not approve the

proclamation within two years. The amendment was adopted by

voice vote. The bill, as amended, was then forwarded to the Full

Committee by voice vote. On March 20, 2002, the Full Resources

Committee met to consider the bill. Congressman Mike Simpson offered an additional amendment to clarify that land and interests

in land that were subject to a proclamation not approved by Congress and are reverted back to their use prior to the proclamation

will only affect those proclamations issued after the date of enactment of this Act, and not all prior proclamations under the Antiquities Act. The amendment also clarified that Congressional approval must be by an Act of Congress. The amendment was adopted by voice vote. The bill, as further amended, was then ordered

favorably reported to the House of Representatives by a roll call

vote of 23 to 18, as follows:

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COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII

of the Rules of the House of Representatives, the Committee on Resources’ oversight findings and recommendations are reflected in

the body of this report.

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 and Article IV, section 3, of the Constitution

of the United States grant Congress the authority to enact this legislation.

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of

the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides

that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974.

2. Congressional Budget Act. As required by clause 3(c)(2) of rule

XIII of the Rules of the House of Representatives and section

308(a) of the Congressional Budget Act of 1974, this bill does not

contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures.

According to the Congressional Budget Office, enactment of this

legislation would have no significant impact on the federal budget

and would not significantly affect federal costs.

3. General Performance Goals and Objectives. This bill does not

authorize funding and therefore, clause 3(c)(4) of rule XIII of the

Rules of the House of Representatives does not apply.

4. Congressional Budget Office Cost Estimate. Under clause

3(c)(3) of rule XIII of the Rules of the House of Representatives and

section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the

Director of the Congressional Budget Office:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, April 5, 2002.

Hon. JAMES V. HANSEN, Chairman, Committee on Resources,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2114, the National Monument Fairness Act.

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.

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H.R. 2114—National Monument Fairness Act

CBO estimates that implementing H.R. 2114 would have no significant impact on the federal budget. The bill would not affect direct spending or receipts; therefore, pay-as-you-go procedures

would not apply. H.R. 2114 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform

Act and would impose no costs on state, local, or tribal governments.

The Antiquities Act of 1906 authorizes the President to declare

landmarks, structures, and other objects of historic or scientific interest on federal lands to be national monuments. H.R. 2114 would

amend that act to require the President to solicit public participation and comment and to consult with governors and congressional

delegations from affected states at least 60 days before designing

a monument of any size. H.R. 2114 would prohibit the President

from designating monuments exceeding 50,000 acres until 30 days

after notifying the governors of states in which the proposed monuments would be located. Under the bill, designations of such monuments would require Congressional approval within two years to

remain in effect. Finally, H.R. 2114 would require that management plans for national monuments developed subsequent to a declaration made under H.R. 2114 comply with the procedural requirements of the National Environmental Policy Act of 1969.

According to the Department of the Interior, the Administration

currently follows procedures for designating monuments that would

satisfy new requirements under H.R. 2114. Hence, CBO estimates

that implementing this bill would not significantly affect federal

costs.

The CBO staff contact for this estimate is Megan Carroll. This

estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

COMPLIANCE WITH PUBLIC LAW 104–4

This bill contains no unfunded mandates.

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

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

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

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

existing law in which no change is proposed is shown in roman):

SECTION 2 OF THE ACT OF JUNE 8, 1906

CHAP. 3060.—An Act For the preservation of American antiquities.

(Commonly referred to as the ‘‘Antiquities Act’’)

* * * * * * *

øSEC. 2. That the¿ SEC. 2. (a) The President of the United States

is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and

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other objects of historic or scientific interest that are situated upon

the lands owned or controlled by the Government of the United

States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined

to the smallest area compatible with the proper care and management of the objects to be protected: Provided, That when such objects are situated upon a tract covered by a bona fide unperfected

claim or held in private ownership, the tract, or so much thereof

as may be necessary for the proper care and management of the

object, may be relinquished to the Government, and the Secretary

of the Interior is hereby authorized to accept the relinquishment of

such tracts in behalf of the Governmet of the United States. A proclamation of the President under this section that, during one calendar year, creates a national monument that is more than 50,000

acres or that, during one calendar year, adds more than 50,000

acres to an existing national monument may not be issued until 30

days after the President has transmitted the proposed proclamation

to the Governor of the State or States in which such acreage is located and solicited such Governor’s or Governors’ written comments,

and any such proclamation shall cease to be effective on the date 2

years after issuance of the proclamation unless the proclamation

has been approved by an Act of Congress. Land and interests in

land that were subject to a proclamation issued after the date of the

enactment of the National Monument Fairness Act that ceases to be

effective under the preceding sentence shall revert to the land use

status such land and interests in land had immediately before the

proclamation was issued.

(b)(1) To the extent consistent with the protection of the historic

landmarks, historic and prehistoric structures, and other objects of

historic or scientific interest located on the public lands to be designated, the President shall— (A) solicit public participation and comment in the development of a monument proclamation; and

(B) consult with the Governor and entire congressional delegation of the State or territory in which such lands are located,

to the extent practicable, at least 60 days prior to any national

monument proclamation.

(2) Before issuing a proclamation under this section, the President

shall consider any information made available in the development

of existing plans and programs for the management of the lands

under consideration for proclamation as a monument, including

such public comments as may have been offered.

(c) Any management plan for a national monument developed

subsequent to a proclamation made under this section shall comply

with the procedural requirements of the National Environmental

Policy Act of 1969.

* * * * * * *

(9)

DISSENTING VIEWS

We are strongly opposed to H.R. 2114. The bill is a misguided

legislative proposal that would undermine an important law that

has been used to protect significant aspects of our national heritage.

Since its enactment 96 years ago, the Antiquities Act has been

used by 14 Presidents 122 times to protect unique and vulnerable

public lands from threats, both natural and man-made. While the

Antiquities Act of 1906 may sound outdated to some, the importance of the resource protection the Act has provided has only increased over time. Sprawl, development and pollution have intensified the pressure on sensitive areas of public lands containing significant natural, historical, and scientific resources.

At the core of H.R. 2114 are unworkable provisions left over from

a divisive and unsuccessful monument fight back in the 105th Congress. These provisions allow national monument opponents to

block new designations by stalling legislation in Congress and use

an arbitrary 50,000-acre threshold that has no relationship to the

protection of endangered resources on the ground.

Not only are the bill’s provisions unworkable but they are unwarranted as well. Contrary to the assertions that have been made,

the Antiquities Act does not authorize ‘‘land grabs.’’ The Act clearly

states that the President can only designate public lands as national monuments. All our national monuments were already

owned by the American people before they were designated. No private property has been or will be taken by a monument designation.

But these claims are not the real reason proponents are pushing

this bill. The real reason is more disappointing. President Clinton

left office more than 14 months ago, but it was obvious from the

comments of the bill’s supporters in Committee that they are still

fighting him. This legislation appears to be more about revenge

than developing sound public policy. There are those who don’t

want to accept the fact that the National Monuments proclaimed

by previous Presidents are supported and treasured by the American public. They dare not attack those monuments head-on, so

they resort to the backdoor approach of H.R. 2114.

In their haste to punish a former President, however, supporters

of this bill send a clear message that they don’t trust the current

President nor his Secretary of the Interior. This distrust is ironic

given that the only monument proposal of which we are aware is

one being prepared by Interior Secretary Norton that will encompass 640,000 acres of the San Rafael Swell in Utah; a proposal that

was suggested by the Republic Governor of Utah and is supported

by the Chairman of the Resources Committee.

There is nothing in either current law or the Constitution that

limits Congressional authority to pass legislation to amend, modify,

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or repeal the designation of a national monument. If there are

problems with an individual designation that is the process that

can and should be used.

Last year the Administration proposed oil and gas drilling in our

national monuments. The Congress wisely passed legislation preventing this exploitation of our national heritage. H.R. 2114 is a

new assault on the protection of sensitive and pristine public lands.

Congress would be wise to bury this proposal as well. We urge the

defeat of H.R. 2114.

NICK RAHALL.

GEORGE MILLER.

JAY INSLEE.

FRANK PALLONE, Jr.

RUSH HOLT.

HILDA L. SOLIS.

MARK UDALL.

DALE E. KILDEE.

ED MARKEY.

TOM UDALL.

BETTY MCCOLLUM.

PETER A. DEFAZIO.

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