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Challenging Clinton’s Abuse of the Antiquities Act

by William Perry Pendley

On September 18, 1996, President William Jefferson Clinton dropped a huge bombshell on Utah. Standing on the edge of the Grand Canyon in Arizona, more than 70 miles from the Beehive State, Clinton announced creation of a 1.7 million acre Grand Staircase-Escalante National Monument. The national media were there to record the event, as were Clinton’s friends and supporters from national environmental groups and other prominent Americans, including Robert Redford, who had been alerted in time to make the trip. Missing from the assembly, however, was any elected official from the State of Utah; not a single member of its congressional delegation or its governor was there. In fact, Utah’s Senators and Representatives had been told, consistently and repeatedly, that Clinton had made no decision regarding a monument in Utah but that, when any decision was reached, the delegation would be told. Governor Leavitt fared somewhat better: at 2:00 a.m. on September 18, he was advised by the White House that Clinton would make the announcement that day. Later, as Clinton and friends celebrated in Arizona, he was being hanged in effigy in Kanab, Utah in Kane County, which with its neighbor Garfield County, were two of Utah’s poorest counties. It was in the midst of these two counties that Clinton had located his first use of the Antiquities Act of 1906, 16 U.S.C. § 431.

Clinton acted, a congressional report would later reveal, not to save man-made works of earlier cultures, which the Antiquities Act was adopted to protect, but to resolve a debate over wilderness. Utah has more than 3.2 million acres of federal land set aside by Congress pursuant to the Wilderness Act of 1964, land where “man is a visitor” and no motorized vehicles or commercial use is permitted. Although environmental groups and activists outside the West favor more designations under the National Wilderness Preservation System (“wilderness”), westerners and their leaders usually oppose closing more federal lands to recreational and economic use. The reason is simple. For most rural western counties, federal lands predominate, which means local economies require use of those lands. Since 1872, national parks have been off limits to little more than the most limited use; in 1964, Congress, at the behest of a nascent environmental movement, developed a new federal land designation, wilderness, where use would be restricted even more. After a flurry of state wilderness bills, supported by each congressional delegation and state and local leaders, westerners sought to end the possibility that more land would be locked up. In 1976, Congress adopted the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701, et seq., or the Bureau of Land Management (BLM) Organic Act, and, among a lengthy list of other matters, put a deadline on the study of BLM land for future wilderness designation by Congress. In 1991, the Utah BLM ended its review of the 20 million acres of Utah’s BLM land: 5.4 million acres were examined; 3.2 million acres were placed in “wilderness study areas;” and, 1.9 million acres were recommended for wilderness designation by Congress, a recommendation that was sent to the Secretary of the Interior and the President. That recommendation was still in Washington, D.C., in 1993 when President Clinton was sworn in as the nation’s 42nd Chief Executive.

Not surprisingly, environmental groups, by 1993 a powerful monolith and often an important component of Democratic Party politics, were not satisfied with the BLM’s recommendation; they wanted 9 million acres of Utah’s BLM land recommended and designated as federal wilderness. While Utah’s leaders, its governor and congressional delegation, favored more wilderness designation, the lands to be set aside, in their view, were much more limited, targeted, and discreet. There the impasse stood, when, in July 1996, Clinton’s Secretary of the Interior Bruce Babbitt ordered a re-inventory of Utah’s BLM lands to find more land “suitable” for wilderness designation.

Meanwhile, federal employees were completing a study required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, et seq., regarding an underground mine in Kane County, the Andalex Smoky Hollow Mine, which would affect 60 acres of surface area, on the Kaiparowits Plateau, a plateau that covers 1,650 square miles.¹ The extraction of the thick-seamed (easily mined), low sulfur coal would provide high-paying jobs for nearly 1,000 local citizens and generate $20 million a year in local revenue.² As the NEPA study--an Environmental Impact Statement (EIS)--neared completion, after the expenditure of $8 billion and seven years of comprehensive study and analysis, it became clear that the Smoky Hollow project posed no “threat[]” to the environment or proposed wilderness areas in the region and that its impacts would be “minor” or “negligible.”³ So, while Utah’s leaders were enthusiastic about economic activity in this depressed region, environmental groups were enraged! The latter took their concerns to the White House!

The Clinton Administration got the message. In March 1996, Clinton officials sought a means of circumventing Congress’ wilderness authority given the refusal of the Utah delegation to support the wilderness legislation demanded by environmental groups. Could the Antiquities Act of 1906 be used, the Clinton White House asked?⁴ Later: “[i]s there another Utah hook?” besides the stalemate on wilderness legislation.⁵ The “hook” was the “threat” of an underground coal mine, which the White House chose to “rope in” to achieve “the President’s overall purpose,”⁶ even though the Council on Environmental Quality (CEQ) admitted, “these lands are not really endangered,”⁷ and the Office of Environmental Policy and Compliance (OEPC) declared: “it strains credulity to base a ‘go’ or ‘no go’ decision on an analysis of two alternatives which appear to indicate no significant difference in environmental impacts for the area of either permitting or not permitting the proposed Smoky Hollow Project.”⁸ Tellingly, in all of the White House communiqués, no mention is made of environmental concerns, antiquities, or impending threats to those values nor is there mention of real scientific or historical concerns by any of the government agencies that were involved.⁹ The decision made, on August 14, 1996, the CEQ advised Clinton of the reason for the Utah monument. “The political purpose of the Utah event is to show distinctly your willingness to use the office of the President to protect the environment… Designation of the new monument would create a compelling reason for persons who are now disaffected to come around and enthusiastically support the Administration.” ¹⁰ A month and four days later, in Arizona, Clinton expressed his “concern[] about a large coal mine proposed for the area” as well as his belief that “we shouldn’t have mines that threaten our national treasures.”¹¹

President Clinton must have been pleased with the Utah monument decree; over the next three plus years, he designated or expanded twenty-two national monuments. Of particular significance were these: January 2000: Agua Fria National Monument in Arizona (71,100 acres), and Grand Canyon-Parashant National Monument in Arizona (807,881 acres); June 2000: Ironwood Forest National Monument in Arizona (129,022 acres), Canyons of the Ancients National Monument in Colorado (163,892 acres), Cascade-Siskiyou National Monument in Oregon (52,947 acres), and Hanford Reach National Monument in Washington (195,000 acres); November 2000: Vermilion Cliffs National Monument in Arizona (280,324 acres), and Craters of the Moon National Monument in Idaho (271,847 acres); and, January 2001, on his way out of the Oval Office: Carrizo Plain National Monument in California (204,107 acres), Upper Missouri River Breaks National Monument in Montana (374,976 acres), and Sonoran Desert National Monument in Arizona (486,603 acres).¹²

Clinton may have been pleased but folks in Utah were not. On October 31, 1996, Mountain States Legal Foundation (MSLF), on behalf of its members in Kane and Garfield Counties, filed suit in Utah federal district court. Subsequently, Governor Mike Leavitt and the Utah Association of Counties (UAC) joined in the litigation, although the former later withdrew. MSLF and the UAC averred that Clinton had violated several federal statutes, including the Antiquities Act and its requirement that designations be only of “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” and “be confined to the smallest area compatible with the proper care and management of the objects to be protected.” 16 U.S.C. § 431. They also complained that Clinton had violated the Wilderness Act, which limits wilderness-style designations to Congress, and had acted ultra vires. Environmental groups called the litigation “frivolous” and declined to intervene.

On July 31, 1998, federal lawyers moved to dismiss or for summary judgment. Over the next four years, the parties battled over attempts by MSLF and UAC to engage in discovery, a dispute that was later amicably resolved. Meanwhile, on November 19, 1998, federal lawyers filed a motion to dismiss asserting that, by action or inaction, Congress had ratified President Clinton’s decree. In a 41-page opinion, the Utah federal district court denied the motion. On July 7, 2000, the U.S. Court of Appeals for the Tenth Circuit declined to hear an appeal on the matter.

By now, various environmental groups had decided that the lawsuit was no longer “frivolous;” therefore, on March 21, 2000, they moved to intervene to join in defending Clinton’s decree. On June 6, 2000, the Utah federal district court denied their motion; however, on July 10, 2001, the Tenth Circuit reversed. On September 6, 2001, the environmental groups were granted intervention.

Meanwhile, Clinton’s monument decrees had drawn the attention of other users of the public lands of the West, including the Blue Ribbon Coalition (BRC), a family-oriented group that uses multiple use federal lands for off-highway motorized recreation. On January 26, 2001, MSLF and BRC challenged Clinton’s designation of six national monuments in four states averring that Clinton’s actions were ultra vires in violation of the Constitution’s Property Clause. Specifically, MSLF and BRC challenged the Hanford Reach in Washington, the Cascade-Siskiyou in Oregon, the Canyons of the Ancients in Colorado, and three Arizona monuments: the Grand Canyon-Parashant, the Ironwood Forest, and the Sonoran Desert. On March 26, 2001, federal lawyers and various environmental groups, which had intervened, filed separate motions to dismiss responding that President Clinton had complied with the Antiquities Act of 1906.

By now, of course, Governor George W. Bush had been sworn in as the United States’ 43rd President. The Bush Administration’s position on the Clinton monuments was uncertain. After all, both Governor Bush and Secretary Dick Cheney campaigned throughout the West by opposing Clinton’s monuments. Bush, said, for example, in a June 26, 2000, story in the Seattle Post-Intelligencer, that he did not know if he could "unscramble the egg" regarding Clinton's monuments, but that Clinton’s actions had "virtually shut down the ability of a lot of people to use lands." Moreover, on a related issue, Bush promised to reverse Clinton’s closure of 60-million acres of “roadless” forest lands. Secretary Cheney was even more forthright. In an August 2000 speech in Oregon, Cheney, attacking Clinton’s “willy-nilly” designation of monuments throughout the West, promised a review and possible reversal of the monument decrees.

It was not to be. Although Attorney General John Ashcroft and Secretary of the Interior Gale Norton were confirmed and in place within days of Bush’s inauguration, they were, as the media joked, “home alone,” since their deputies were not confirmed for months. In fact, Assistant Attorney General Thomas L. Sansonetti, of the Environment and Natural Resources Division, was not in place to manage the litigation involving Clinton’s monuments until November 30, 2001. By then, more with a whimper than a bang, word leaked out that the Bush Administration would not withdraw any Clinton monuments but might, in the right case, make boundary adjustments. But by that time, the litigation strategy of the Bush Administration had been decided for months; it was to be the same strategy as existed during the Clinton Administration: defend Clinton.

On November 15, 2001, the federal district court for the District of Columbia heard oral arguments regarding the legality of the six monuments. Immediately after those arguments, the court rule that it lacked jurisdiction to review the President’s actions beyond the face of the challenged proclamations, that is, because President Clinton had declared in his proclamations that the designated monuments contained items “historic and scientific” and were “confined to the smallest area compatible with the proper care and management of the objects to be protected” the court could inquire no further. Thus, Clinton’s use of such “magic words” barred judicial inquiry. The court reached the same decision in a challenge by Tulare County to Clinton’s designation of the Giant Sequoia National Monument in south-central California in April 2000. All plaintiffs appealed.

On October 18, 2002, the U.S. Court of Appeals for the District of Columbia reversed the district court’s holding, in both cases, that it lacked the authority to conduct the inquiry sought, relying on Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996). Mountain States Legal Foundation, et al. v. Bush, 306 F.3d 1132 (D.C. Cir. 2002), and Tulare County, et al. v. Bush, 306 F.3d 1138 (D.C. Cir. 2002). “[R]eview is available to ensure that [monument] Proclamations are consistent with constitutional principles and that the President has not exceeded his statutory authority.” 306 F.3d at 1136. Moreover, “[c]ourts remain obligated to determine whether statutory restrictions have been violated” given that “the Supreme Court has indicated generally that review is available” to ensure presidential compliance with statutory obligations. Id.

The D.C. Circuit affirmed the dismissal of both complaints, however, by holding that neither complaint “present[ed] factual allegations that would warrant ultra vires review of the challenged proclamation.” Tulare County, 306 F.3d at 1144. The holding was curious given the differing approaches of the two complaints. While MSLF and BRC had utilized bare-boned notice pleading, setting forth the details of the monuments being challenged and alleging, in a single count, that President Clinton had acted ultra vires in their designation, Tulare County had crafted a detailed 215- paragraph complaint. (For example, Tulare County alleged that “Sequoia groves comprise only six percent of the [Giant Sequoia National] Monument.”) Neither complaint, in the D.C. Circuit’s view, met notice pleading requirements. On January 30, 2003, the Court of Appeals denied MSLF’s and BRC’s petition for en banc review. Likewise, and perhaps not surprisingly given the procedural issues presented, the U.S. Supreme Court denied the two petitions filed regarding these seven monuments.

By this time, the challenge to the Grand Staircase-Escalante National Monument was ready for briefing and arguments. Bush Administration lawyers stood on the motions filed by Clinton Administration lawyers on July 31, 1998. The environmental groups, after some delay, filed their brief on March 17, 2003, to which MSLF and UAC responded; thus, the matter was joined. Oral arguments were held January 15, 2004.

The Utah federal district court’s decision was awaited eagerly. After all, none of Clinton’s monuments had generated the controversy and outrage that had taken place in Utah following Clinton’s 1996 announcement. Furthermore, in subsequent years, court orders regarding the protection required by the Endangered Species Act for the Mexican Spotted Owl had closed down the timber industry in southern Utah and northern Arizona. In addition, the district court had gone out of its way, government attorneys thought, to slap down the Clinton Administration’s congressional ratification gambit. Finally, during oral arguments, the court had brushed aside assertions by a lawyer for the various environmental groups that the economies of Kane and Garfield Counties had benefited from, not been burdened by, the Utah monument.

Nonetheless, on April 19, 2004, the Utah federal district court granted the federal government’s motion to dismiss and for summary judgment, concluding simply that the court had no authority to determine whether Clinton’s actions were in accordance with the requirements set forth in the Antiquities Act. In doing so, the court relied on United States v. George S. Bush & Co., 310 U.S. 371 (1940), the very case relied upon, unsuccessfully as it turned out on appeal, by the D.C. district court. George S. Bush is a slender reed upon which to rely given that: the decision turned on a specific provision in the Tariff Act, which expressly limited judicial review; the statutory delegation at issue committed the decision entirely to the discretion of the president; and the issue involved foreign affairs, which, under the Constitution, is the primary responsibility of the president.

Moreover, the U.S. Supreme Court has recognized repeatedly the availability of non-statutory review of executive action, that is, review not predicated on a specific or general statutory review provision. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 (1986). Such review flows from the general presumption of judicial reviewability of executive action, a remedy that is particularly necessary when one is injured by an act of a government official allegedly in excess of his express or implied powers. Harmon v. Brucker, 355 U.S. 579, 581-82 (1958). Thus, courts will “ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive [] violates such a command.” Bowen, 476 U.S. at 667. That is the conclusion reached by the D.C. Circuit in the decision relied on by the D.C. Circuit in ruling for MSLF and BRC, at least with regard to the duty of courts to review national monument decrees. “[T]he [president’s] power must be exercised consistently with the structure and purposes of the statute that delegates that power.” Reich, 74 F.3d at 1330-1331.

Because of its initial ruling as to its limited jurisdiction, the Utah federal district court declined to apply the “intelligible principles” of the Antiquities Act to the Clinton decree. Had it done so, MSLF argues, it would have been compelled to strike the Utah monument. First, the legislative history of the Antiquities Act demonstrates its extremely limited scope. The House Committee wrote of the need to protect “interesting relics of prehistoric times” and the Senate Committee referred to “historic and prehistoric ruins and monuments.” Moreover, Congress specifically declined to include authority to set aside areas of “scenic beauty” and “natural wonders.” Lee, Ronald F., The Antiquities Act of 1906, at 68-71 (Nat’l Park Svc. 1970).

Second, Congress provided the specific statutory mechanisms for protecting many of the values purportedly protected by Clinton’s Utah decree. In 1964, Congress adopted the Wilderness Act, 16 U.S.C. § 1133, as the sole means by which to withdraw land from public use so as to protect “scenic beauty,” “natural wonders,” and “wilderness values.” In 1973, Congress adopted the Endangered Species Act, 16 U.S.C. § 1531, et seq., as the sole means by which to protect threatened or endangered wildlife. In 1976, Congress adopted FLPMA, setting forth the only mechanisms by which federal land was to be withdrawn from use by the public and strictly limiting that withdrawal authority. Plus, in FLPMA, Congress set forth the sole mechanisms by which certain environmental values were to be protected; for example, Congress set forth the sole method of protecting “areas of critical environmental concern.” 43 U.S.C. § 1711.

Third, even a facial comparison of the Utah proclamation with the Antiquities Act reveals a conflict with the will of Congress. The Monument purports, for example, to protect “bold plateaus and multi-hued cliffs,” “sedimentary rock layers,” “a wide variety of formations,” canyons, “many arches and natural bridges,” and “1,600 square miles of sedimentary rock,” 61 Fed. Reg. 50,223-50,226 (September 18, 1996), as well as various “vegetative communities,” “unusual and diverse soils,” grasslands, trees, wildlife (over 200 species of birds), “fragile cryptobiotic crusts,” and “numerous types of endemic plants and their pollinators.” 61 Fed. Reg. at 50,224-50,225. Although the proclamation generally describes the “cultural resources” to be protected, including “[h]undreds of recorded sites,” such as “rock art panels, occupation sites, campsites, and granaries,” as well as “many more undocumented sites,” the proclamation fails to identify any particular ancient ruin or artifact to be protected specifically by the monument reservation. 61 Fed. Reg. at 50,224. Finally, the Proclamation laughably asserts that 1.7 million acres “is the smallest area compatible with the proper care and management of the objects to be protected.” 61 Fed. Reg. at 50,225.

All of these matters are now before the U.S. Court of Appeals for the Tenth Circuit, as is one other matter, one involving a conflict between the Utah federal district court’s holding that the Clinton decree did not violate the Wilderness Act of 1964 and the Wyoming federal district court’s holding that Clinton’s “roadless” decree violated that statute. In Wyoming v. United States Dept. of Agriculture, 277 F. Supp.2d 1197, 1236-37 (D. Wyo. 2003), the Wyoming district court held that the U.S. Forest Service had usurped Congress’ power regarding access to, and management of, public lands by a de facto designation of “wilderness” in violation of the Wilderness Act of 1964. The Wyoming district court’s language has a familiar ring when considering the origins of the Utah monument: “[I]n [their] rush to give President Clinton lasting notoriety in the annals of environmentalism,” federal officials sought to establish de facto wilderness in violation of the Wilderness Act. Their action “negates the system of wilderness designation established by Congress” and must be set aside. Id. at 1232 and 1236.

Today, more than eight years after Clinton traveled to Arizona to designate a national monument in Utah, the controversy continues. With another two years likely before a ruling by the Tenth Circuit and potentially the U.S. Supreme Court, a final legal resolution of the issue may take a decade.

Footnotes:

¹ Monumental Abuse: The Clinton Administration’s Campaign of Misinformation on the Establishment of the Grand Staircase-Escalante National Monument, H.R. Rep. 105-824, 105th Cong., 2nd Sess., at 6 (Comm. Print 1998). The U.S. Geological Survey estimates that the Plateau contains 62.3 billion tons of coal, of which nearly half could be recovered. Id.

² Id.

³ Warm Springs Project Preliminary Draft Environmental Impact Statement (PDEIS) 4-12 (1995). This PDEIS was the last complete version of the Smoky Hollow EIS produced before Clinton’s 1996 decree; it is a comprehensive, 561-page document reflecting several previous drafts.

⁴ E-mail, March 19, 1996, from Linda Lance (CEQ) to Tom Jensen (CEQ).

⁵ E-mail, March 21, 1996, from Linda Lance to Kathleen McGinty.

⁶ E-mail message, March 27, 1996, from Tom Jensen (CEQ) to Linda Lance (CEQ), T.J. Glauthier (OMB), and Kathleen McGinty (CEQ).

⁷ E-mail message, March 25, 1996, from Kathleen McGinty to T.J. Glauthier (OMB) and Linda Lance (CEQ).

⁸ Memorandum, April 4, 1996, from Dave Alberswerth to A. Strasvogel.

⁹ Behind Closed Doors: The Abuse of Trust and Discretion of the Grand Staircase-Escalante National Monument, H.R. Rep. 105-D, 105th Cong., 1st Sess., at 7 (Comm. Print 1997).

¹⁰ Memo, August 14, 1996, from Kathleen McGinty to President Clinton.

¹¹ Remarks Announcing the Establishment of the Grand Staircase-Escalante National Monument, 32 Weekly Comp. Pres. Doc. 1785 (Sept. 23, 1996)

¹² http://en.wikipedia.org/wiki/National_Monument