[Senate Report 106-372]
[From the U.S. Government Publishing Office]
Calendar No. 750
106th Congress Report
SENATE
2d Session 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
R E P O R T
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.''
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 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
theConstitutional 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.
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-as-you-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.
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 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 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 environmental 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.
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.
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.
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.
(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.