Monument Proclamations Under Executive Order Review: Comparison of Selected Provisions
Released: 2017-07-11T00:00:00

Introduction

The Antiquities Act of 1906 (54 U.S.C. §§320301-320303) authorizes the President to proclaim national monuments on federal lands that contain "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest." The President is to reserve "the smallest area compatible with the proper care and management of the objects to be protected." The act does not further specify the process to be used by Presidents in proclaiming monuments. From 1906 to date, Presidents have established 157 monuments and have enlarged, diminished, or otherwise modified previously proclaimed monuments.

Presidential establishment of monuments sometimes has been contentious, based on the size of the areas and types of resources protected; the effects of monument designation on land uses; and the lack of requirements for public participation, congressional and state approval, and environmental review, among other issues. Congress continues to face a variety of national monument issues. Whether to establish, amend, or abolish national monuments is of current interest. Congress has broad authority to take these actions, and it has exercised this authority on numerous occasions. In establishing and amending national monuments, questions for Congress include the optimal size of the areas to be protected and the extent to which various land uses and activities will be allowed, barred, or restricted. Congress also oversees presidential exercise of authority to proclaim monuments and has considered measures to alter this authority.

Executive Review of Monuments

On April 26, 2017, President Trump issued an executive order requiring the Secretary of the Interior to review national monuments established or expanded by Presidents since 1996. The order requires review of national monuments where the size at establishment or after expansion exceeded 100,000 acres or where the Secretary determines that the action was taken "without adequate public outreach and coordination with relevant stakeholders." The Antiquities Act does not specifically require public outreach and coordination in monument designations. The executive order sets out a policy with regard to monument designation, including that designations are made "in accordance with the requirements and original objectives" of the Antiquities Act and "appropriately balance the protection of landmarks, structures, and objects against the appropriate use of Federal lands and the effects on surrounding lands and communities." The review is to determine if the establishment or expansion of post-1996 monuments conforms to the policy in the executive order and to develop any recommendation for presidential actions, legislative proposals, or other actions to carry out the policy.

In a May 5, 2017, press release, the Department of the Interior (DOI) identified 27 national monuments that would be reviewed under the President's executive order. One of the 27 monuments, Katahdin Woods and Waters National Monument, is under review based on the adequacy of public outreach and coordination with stakeholders in establishing the monument. The other 26 monuments are under review because the size at establishment or after expansion exceeded 100,000 acres. Five of the 26 monuments are marine based, and the Secretary of Commerce is taking the lead in reviewing these monuments. Twenty-one of the 26 monuments are land based, and the Secretary of the Interior is taking the lead in their review.

The Administration sought public comment on monuments under review through July 10, 2017. A total of 1,410,857 comments were received.

On June 10, 2017, the Secretary of the Interior issued an interim report on one of the land-based monuments—Bears Ears National Monument. This report was due within 45 days of the issuance of the executive order. A final report on the secretarial review of monuments is due within 120 days of the issuance of the executive order—August 24, 2017.

Overview of Land-Based Monument Proclamations

This report provides a compilation and summary of provisions of monument proclamations that could facilitate congressional decisionmaking on monuments and oversight of presidential monument authority. As noted, in establishing and amending monuments, Congress can set the size of monument areas and regulate uses of monument lands. This report covers the 21 land-based national monuments established or expanded since 1996 in which the size exceeded 100,000 acres, which are being reviewed under President Trump's executive order. Monument proclamations provide presidential direction on management of federal lands and resources within the monument boundaries. Although proclamations vary as to the number and type of topics covered, they typically address particular uses and activities on monument lands as well as management planning. This report focuses on provisions of proclamations related to six topics that have been important in the debate on national monuments: energy, livestock grazing, use of motorized and non-motorized mechanized vehicles, timber, hunting and fishing, and tribes. The major provisions on each of these topics are summarized to provide an overview of their emphasis and variation. An analysis of the impact (if any) on changes in land management on the ground resulting from the proclamations is beyond the scope of this report.

This report does not reflect more general provisions of the proclamations that may bear on the six topics discussed. As examples of the more general provisions, the proclamations typically "warn" against destroying or removing any "features" of the monument and make the monument the dominant reservation of the land without revoking existing reservations or withdrawals. The proclamations also usually establish the monuments subject to valid existing rights; this report addresses valid existing rights only in the context of the energy-related activities. An examination of the provisions on the six topics in the context of these more general provisions and the entirety of the proclamations might provide additional insights on monument management.

The summaries of provisions on the six topics are not intended to capture all textual differences (or nuances) in the language of the proclamations. For this purpose, the verbatim text of the pertinent provisions for the 21 monuments is provided in six separate tables. Monuments are listed in the tables in alphabetical order.

A few caveats about the tables deserve note. First, the tables provide the text of the provisions of monument proclamations, as noted, rather than characterizations or legal interpretations of the provisions. Second, although the tables may show differences in the text of provisions on a particular topic, these textual differences may not necessarily reflect differences in meaning. Third, the tables do not reflect other authorities pertaining to monument lands, such as laws, regulations, and agency land management plans. These other authorities govern use and protection of resources on agency lands, the development of land management plans, and public and other participation in agency decisionmaking, among other topics. The authorities vary from agency to agency, with Bureau of Land Management and Forest Service lands generally managed for multiple uses, Fish and Wildlife Service lands managed under a dominant use mission, and National Park Service lands governed by a dual-use mission. An analysis of the monument proclamations in the context of other authorities would be necessary to determine the extent to which activities are authorized on particular lands and the role of the public, states, and tribes in decisionmaking by the four agencies.

Topical Summary of Provisions of Land-Based Monument Proclamations

Energy

The proclamations for the national monuments generally bar new mineral and geothermal leases, mining claims, and prospecting or exploration activities, subject to valid existing rights. This is typically accomplished by language to withdraw the lands within the monuments from entry, location, selection, sale, leasing, or other disposition under public land laws, including mining laws and mineral and geothermal leasing laws. A few of the proclamations contain exceptions. For instance, Canyons of the Ancients National Monument is to remain open for oil and gas leasing and development because most of the lands have already been leased and development is occurring, according to the proclamation. However, the Secretary of the Interior is authorized to issue new leases only for specified purposes. Another example is the proclamation for the San Gabriel Mountains National Monument, which allows for the disposal of materials under the Materials Act of 1947.

In addition to the general protections for valid existing rights for land uses, the proclamations for three of the monuments—Canyons of the Ancients, San Gabriel Mountains, and Upper Missouri River Breaks—also specify how energy development or energy-related rights are to be managed. Although monument proclamations (at least since 1996) typically contain protections for valid existing rights, the extent to which monument designations may affect existing rights is not always clear. A common concern is that monument designation potentially could result in new constraints on development of existing mineral and energy leases, claims, and permits. Some fear that mineral exploration and extraction activities may have to adhere to a higher standard of environmental review, and may have a higher cost of mitigation, to ensure compatibility with the monument designation.

Several of the monument proclamations also contain provisions pertaining to facilities and/or rights-of-way, such as for pipelines, utilities, and other purposes. The extent to which such facilities or rights-of-way pertain to energy-related land uses or other activities, such as telecommunications, has not been analyzed for this report. The provisions vary across monuments. Some contain broad assertions that the proclamations are not to be construed as interfering with these structures and uses. As an example, the proclamation for the Sand to Snow National Monument states that it is not to be construed as interfering with the operation, maintenance, replacement, or modification of existing water resource, flood control, utility, pipeline, or telecommunication facilities; existing facilities may be expanded; and new facilities may be constructed—to the extent consistent with the proper care and management of monument resources. Other proclamations appear more restrictive. For instance, the proclamation for the Basin and Range National Monument states that no new rights-of-way for electric transmission or transportation will be authorized in the monument except as necessary for the care and management of the protected objects or for livestock grazing.

Table 1 provides the energy-related provisions of the proclamations for the 21 national monuments. The table does not identify the extent to which there have been determinations of valid existing rights on monument lands or the status of any rights, such as if there is development activity under such rights or federal government efforts to buy out the rights.

Livestock Grazing

For all but one of the 21 monuments—Sand to Snow—the proclamations address livestock grazing. The most common language among the proclamations provides that legal authorities governing livestock grazing on agency lands also apply to lands within the monument. The precise text on this point varies among monuments. However, the proclamation for Ironwood Forest National Monument is an example: "Laws, regulations, and policies followed by the Bureau of Land Management in issuing and administering grazing permits or leases on all lands under its jurisdiction shall continue to apply with regard to the lands in the monument." Some of the provisions within proclamations make explicit that the application of livestock grazing authorities is to be consistent with the care and management of objects in the monument that were identified for protection (e.g., Berryessa Snow Mountain).

For a couple of monuments, the proclamations appear to authorize grazing only under existing permits and leases at the time of monument designation. However, further research or analysis, such as of other authorities governing the lands at issue, might be needed to determine if grazing could be authorized under new permits and leases. For example, the proclamation for the Grand Staircase-Escalante National Monument provides that "[n]othing in this proclamation shall be deemed to affect existing permits or leases for, or levels of, livestock grazing on Federal lands within the monument; existing grazing uses shall continue to be governed by applicable laws and regulations other than this proclamation." This proclamation does not expressly ban future permits and leases while affirming that existing permits and leases are unaffected by the proclamation.

Livestock grazing is prohibited in two of the monuments analyzed. It is banned in the Hanford Reach National Monument to protect the objects identified in the proclamation. Hanford Reach is managed by the Fish and Wildlife Service and the Department of Energy. Lands of these agencies are not generally open to and managed for livestock grazing. Livestock grazing is also barred in the Gold Butte National Monument, where livestock grazing has not been permitted since 1998, according to the proclamation.

A couple of monument proclamations condition or restrict livestock grazing. For example, in the Sonoran Desert National Monument, grazing permits in a particular area of the monument cannot be renewed, and grazing in another area could continue only if the managing agency determines grazing to be compatible with the protective purposes of the monument. In another example, the Secretary of the Interior is to study the impacts of livestock grazing on biological objects in the Cascade-Siskiyou National Monument. Existing grazing may continue with "appropriate terms and conditions." If existing permit holders and leaseholders relinquish their permits and leases, the Secretary of the Interior can reallocate the forage only under specified conditions. If grazing is determined to be incompatible with protecting the biological objects in the monument, the Secretary of the Interior is to retire the grazing allotments. Table 2 lists the livestock grazing provisions of the proclamations reviewed for this report.

Use of Motorized and Non-Motorized Mechanized Vehicles

All but one of the monument proclamations—Grand Staircase-Escalante National Monument—addresses the use of motorized vehicles on monument lands. All but two of the monument proclamations—Grand Staircase-Escalante and the San Gabriel Mountains—address the use of non-motorized mechanized vehicles on monument lands. Most of the proclamations prohibit the use of motorized and non-motorized mechanized vehicles off-road except for emergency or administrative purposes. This is accomplished by either a direct prohibition against using vehicles off-road (with the specified exceptions), or by limiting the use of vehicles to designated roads and/or trails. Some of the proclamations generally limit the use of motorized vehicles to roads existing at the time of monument designation (e.g., Basin and Range, Mojave Trails, and Sand to Snow), or roads designated as open at the time of monument designation (Gold Butte).

Many of the proclamations call for development of transportation or management plans to address motorized and non-motorized mechanized use of vehicles. Some of them require planning to designate roads and trails where motorized and/or non-motorized mechanized vehicles are allowed (e.g., Basin and Range, Bears Ears, Mojave Trails). Several proclamations require plans to address actions, including road closures or travel restrictions, necessary to protect objects in the monuments (e.g., Canyons of the Ancients, Carrizo Plain, Cascade-Siskiyou, Craters of the Moon, Ironwood Forest, San Gabriel Mountains, Sonoran Desert, Upper Missouri River Breaks, and Vermilion Cliffs).

A few proclamations authorize the Secretary to allow off-road areas to be open to motorized use, such as in the Cascade-Siskiyou expansion area (for snowmobiles and non-motorized mechanized use) and San Gabriel Mountains (for off-highway vehicle areas existing on the date of the proclamation). In contrast, a few of the proclamations direct or authorize certain areas to be closed, as for the Cascade-Siskiyou National Monument (for a particular road) and the Giant Sequoia National Monument (for trails after a specified date, prior to issuance of the management plan). Table 3 identifies the provisions of monument proclamations on use of motorized and non-motorized mechanized vehicles for the 21 national monuments.

Timber

Relatively few of the monument proclamations address timber on monument lands. Specifically, the proclamations for the following four monuments address timber directly or possibly as part of language on vegetative management: Cascade-Siskiyou, Giant Sequoia, Grand Canyon-Parashant, and San Gabriel Mountains. The proclamation for the Cascade-Siskiyou National Monument bars the commercial harvest of timber or other vegetative material except under certain conditions. Further, both Cascade-Siskiyou National Monument and Giant Sequoia National Monument ban the removal of trees, except under specified circumstances, and bar monument lands from being "considered to be suited for timber production" or used in determinations of sustained yield of timber. Giant Sequoia contains additional provisions on completion of timber sales under contract when the monument was proclaimed.

In the San Gabriel Mountains National Monument, the Secretary is authorized to carry out vegetative management treatments, with timber harvest and prescribed fire allowed only under certain circumstances. San Gabriel Mountains as well as Grand Canyon-Parashant also allow for the sale of vegetative materials under specified laws or conditions—for instance, if part of a science-based ecological restoration project in the case of Grand Canyon-Parashant. The extent to which vegetative sales might relate to timber versus other types of materials has not been determined for this report. Table 4 identifies the timber-related provisions of the national monuments examined for this report. Table 4 does not reflect provisions of several monument proclamations pertaining to the traditional collection of monument resources, such as vegetation, tree and forest products, firewood, seeds, and other natural materials.

Hunting and Fishing

The proclamations for the national monuments appear to recognize the primary authority of states to manage fish and wildlife. Proclamations for 20 of the monuments specify that they do not enlarge or diminish the jurisdiction of the relevant state with regard to fish and wildlife management, whereas the proclamation for Grand Staircase-Escalante references only "diminish." For several monuments, these provisions on fish and wildlife management are included in broader statements regarding state jurisdiction. For example, the proclamation for Basin and Range National Monument states, "Nothing in this proclamation shall be deemed to enlarge or diminish the jurisdiction of the State of Nevada, including its jurisdiction and authority with respect to fish and wildlife management." The proclamations for two of the monuments—Gold Butte and Grand Staircase-Escalante—explicitly say that the state authority regarding fish and wildlife management includes hunting and fishing. For instance, the proclamation for Gold Butte provides that "[n]othing in this proclamation shall be deemed to enlarge or diminish the jurisdiction of the State of Nevada, including its jurisdiction and authority with respect to fish and wildlife management, including hunting and fishing." Table 5 provides the provisions on hunting and fishing as contained in the proclamations for the 21 national monuments.

Tribes

The proclamations for 14 of the 21 national monuments contain provisions pertaining to tribal (or Indian) rights, land uses, or roles in monument management. All 14 proclamations state that they do not enlarge or diminish the rights of any Indian tribe; two of the 14 (for Bears Ears and Gold Butte) reference both Indian "rights or jurisdiction." Two of the proclamations, for Organ Mountains-Desert Peaks and Rio Grande del Norte, specify the rights of both Indian tribes and pueblos. Nine of the 14 proclamations also include language regarding protection of Indian sites and access to sites by members of Indian tribes for traditional cultural and customary uses, consistent with relevant authorities. The text of these protection provisions differs in a number of ways. For example, eight of the nine proclamations require protection by the relevant Secretary in consultation with Indian tribes, whereas the proclamation for the San Gabriel Mountains National Monument provides for the management plan to protect sites. Among other differences, the nine proclamations highlight different types of sites as protected (e.g., sacred, cultural, and/or religious), and some of them contain additional provisions on traditional collection of materials from monument lands.

The nine proclamations also require the relevant agency or department head to seek public input in the development of the monument management plan, including consultation with tribes (among other governments and entities). The proclamation for Bears Ears National Monument has additional provisions providing for tribal involvement. It establishes a Bears Ears Commission with members from several tribes "to provide guidance and recommendations on the development and implementation of management plans and on management of the monument." The Secretary of Agriculture and the Secretary of the Interior are to "meaningfully engage" the commission or a successor entity composed of tribal government officers should the commission cease to exist. If the Secretaries decide not to incorporate recommendations of the commission (or comparable entity) in developing or revising management plans, the Secretaries are to provide a written explanation of their reasoning.

Bears Ears National Monument further directs the Secretaries to establish an advisory committee to provide information and advice on developing the management plan and, "as appropriate, management of the monument." The membership of the advisory committee is to be drawn from tribes and a variety of other stakeholders. Table 6 reflects the tribal-related provisions of the proclamations for the 21 national monuments.

Summary

The proclamations for the 21 national monuments generally bar new mineral and geothermal leases, mining claims, and prospecting or exploration activities, subject to valid existing rights. For all but one of the 21 monuments—Sand to Snow—the proclamations address livestock grazing. They typically express that legal authorities governing livestock grazing on agency lands also apply to lands within the monument. Most of the proclamations prohibit the use of motorized and non-motorized mechanized vehicles off-road except for emergency or administrative purposes. Only four of the monument proclamations address timber on monument lands, directly or possibly as part of language on vegetative management. The proclamations appear to recognize the primary authority of states to manage fish and wildlife. Twenty proclamations specify that they do not enlarge or diminish the jurisdiction of the relevant state with regard to fish and wildlife management, whereas one proclamation (for Grand Staircase-Escalante National Monument) references only "diminish." The proclamations for 14 of the 21 national monuments state that they do not enlarge or diminish the rights of any Indian tribe. Nine of these 14 proclamations also include language regarding protection of Indian sites and access to sites by members of Indian tribes for traditional cultural and customary uses. This analysis of provisions of monument proclamations pertaining to land uses within monuments may be useful to Congress in establishing, amending, and overseeing national monuments and assessing presidential actions under the Antiquities Act.