SPEAKERS CONTENTS INSERTS
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58–958 l
1999
H.R. 1487, THE NATIONAL MONUMENT NEPA COMPLIANCE ACT
HEARING
before the
SUBCOMMITTEE ON NATIONAL PARKS AND PUBLIC LANDS
of the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
JUNE 17, 1999, WASHINGTON, DC
Serial No. 106–38
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Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
or
Committee address: http://www.house.gov/resources
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
WILLIAM M. (MAC) THORNBERRY, Texas
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CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
RICK HILL, Montana
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MARK E. SOUDER, Indiana
GREG WALDEN, Oregon
DON SHERWOOD, Pennsylvania
ROBIN HAYES, North Carolina
MIKE SIMPSON, Idaho
THOMAS G. TANCREDO, Colorado
GEORGE MILLER, California
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
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ROBERT A. UNDERWOOD, Guam
PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
WILLIAM D. DELAHUNT, Massachusetts
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-CHRISTENSEN, Virgin Islands
RON KIND, Wisconsin
JAY INSLEE, Washington
GRACE F. NAPOLITANO, California
TOM UDALL, New Mexico
MARK UDALL, Colorado
JOSEPH CROWLEY, New York
RUSH D. HUNT, New Jersey
LLOYD A. JONES, Chief of Staff
ELIZABETH MEGGINSON, Chief Counsel
CHRISTINE KENNEDY, Chief Clerk/Administrator
JOHN LAWRENCE, Democratic Staff Director
Subcommittee on National Parks and Public Lands
JAMES V. HANSEN, Utah, Chairman
ELTON, GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
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RICHARD W. POMBO, California
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
CHRIS CANNON, Utah
RICK HILL, Montana
JIM GIBBONS, Nevada
MARK E. SOUDER, Indiana
DON SHERWOOD, Pennsylvania
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
DONNA CHRISTIAN-CHRISTENSEN, Virgin Islands
RON KIND, Wisconsin
JAY INSLEE, Washington
TOM UDALL, New Mexico
MARK UDALL, Colorado
JOSEPH CROWLEY, New York
RUSH D. HOLT, New Jersey
ALLEN FREEMYER, Counsel
TODD HULL, Professional Staff
LIZ BIRNBAUM, Democratic Counsel
GARY GRIFFITH, Professional Staff
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C O N T E N T S
Hearing held June 17, 1999
Statements of Members:
Cannon, Hon. Chris, a Representative in Congress from the State of Utah
Prepared statement of
Hansen, Hon. James V., a Representative in Congress from the State of Utah
Prepared statement of
Inslee, Hon. Jay, a Representative in Congress from the State of Washington
Romero-Barceló, Hon. Carlos, a Delegate in Congress from the Territory of Puerto Rico, prepared statement of
Udall, Hon. Mark, a Representative in Congress from the State of Colorado
Statements of witnesses:
Leshy, John, Solicitor, Department of the Interior
Prepared statement of
Additional material supplied:
Text of H.R. 1487
Communications submitted:
Leavitt, Hon. Michael O., Governor, prepared statement of
H.R. 1487, THE NATIONAL MONUMENT NEPA COMPLIANCE ACT
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THURSDAY, JUNE 17, 1999
House of Representatives,
Subcommittee on National
Parks and Public Lands,
Committee on Resources,
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m. in Room 1324, Longworth House Office Building, Hon. James V. Hansen [chairman of the Subcommittee] presiding.
Mr. HANSEN. The meeting will come to order. We expect Congressman Stump to be here in a minute. I understand that he is over at the Capitol Hill Club and is his on his way over. We would like to have our Ranking Member from Puerto Rico with us for this very important piece of legislation. So with the indulgence of our witness Mr. Leshy and other folks who are here, if we could just put things on hold for a moment, I would appreciate it. Thank you.
[Recess.]
STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
Mr. HANSEN. Good morning. Welcome to the Subcommittee on National Parks and Public Lands hearing on H.R. 1487, the National Monument NEPA Compliance Act.
[The information follows:]
Mr. HANSEN. I would like again welcome our witness John Leshy from the Interior Department. Thank you for being with us today.
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In 1906, the Antiquities Act was passed as a method to quickly withdraw small parcels of land from the public domain to preserve archaeological sites. Today it is being used to thwart Congressional control over the public lands, to avoid the National Environmental Policy Act, and to deny the American people the right to have input in public land decisions. An article in Monday's Washington Times quoted Secretary Babbitt as having said the following: Quote, ''We switched the rules on the game. We are not trying to do anything legislatively.''
The implication is that if Congress does not pass the laws that the Secretary wants passed, he will make his own laws through regulations, Executive Order, policy directives, et cetera. This is clearly an abuse of power. The Constitution specifically gives Congress the power over public lands. If Secretary Babbitt does not like a law such as the mining law, then he should work with Congress to change it. However, until Congress does, it is still the law of the land, and the Secretary has taken an oath to uphold it. It is not his place to change the law.
The September 1996 creation of the Grand Staircase-Escalante National Monument is a good example of how Interior is trying to use the antiquity law to thwart Congress and avoid NEPA. It appears that as early as August 1995, people in the Interior Department were talking about the possibility of designating national monuments as a way of thwarting Congress's control over the public lands. As the Utah wilderness debate started to heat up, the Interior Department started looking for a way to create wilderness without Congress. In August 3, 1995, memo within the Interior Solicitor's Office, from Dave Watts to Robert Baum, Mr. Watts says that John Leshy wanted to talk to them about the choices and legal risks involved in using the antiquity law. In that memo he warns that, quote, ''To the extent the Secretary proposes a national monument, NEPA applies. However, monuments proposed by the President do not require NEPA compliance because NEPA does not cover Presidential actions,'' end of quote.
Mr. Watts then opines that the court case Alaska v. Carter held that the Secretary could do all of the work on a national monument withdrawal without triggering NEPA if the monument is the President's proposal and the President asks the Secretary to help him. Later the Solicitor's Office sent a memo to Sam Kalen saying that they believed that they needed a letter from the President to the Secretary asking for national monument recommendations if they were to avoid NEPA problems on Antiquities Act work. They also expressed concern as to whether such a letter would be accessible to the public via the Freedom of Information Act. Further, they were afraid that if they did not get a letter from the President, a court might be able to set aside a proclamation due to the lack of NEPA compliance.
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Interior, therefore, spent the next several months trying to create a fake paper trail by trying to get the President to sign a letter asking Secretary Babbitt to start looking at the possibility of a national monument proposal even though Interior had been planning the monument since August of 1995. The Interior Department, however, went on with their proposal, and by July 26, Interior had Professor Wilkinson from the University of Colorado drawing up the actual proclamation. However, the President did not sign such a letter until August 7, 1996, after—keep in mind, after—the proclamation was already drafted. The State of Utah found out about the monument when President Clinton called Governor Leavitt at 2 a.m. On the day that the monument was created. As you can see, the Antiquities Act was used to thwart Congress, avoid NEPA and avoid public input into public land decisions.
When we held hearings last year on H.R. 1127, the National Monument Fairness Act, people came in here and told us that we didn't need to amend the Antiquities Act because the Grand Staircase-Escalante National Monument fiasco was a one-time thing, and no one would ever try a stunt like that again. Well, I guess they are wrong because rumors coming out of Interior tell us that the exact same thing is going on right now. Letters from the President have been generated in order to avoid NEPA. Secret monument plans are being thrown together. Congress is being left out of the picture, and, more importantly, the American people are left in the dark once again.
H.R. 1487 is intended to fix the Antiquities Act to avoid these types of serious abuses. It would require the Secretary of the Interior to do an environmental impact statement before the President could sign a national monument proclamation pursuant to the Antiquities Act. This would ensure that national monument designations are in the best interests of the environment and would assure public participation in the decision-making process. Further, it would prevent the use of the Antiquities Act as an election year ploy, as it was used in 1996, and discourage the Interior Department from going to such elaborate lengths to avoid NEPA.
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Mr. Leshy's testimony expresses concern that H.R. 1487 imposes a few extra procedural hurdles that NEPA wouldn't necessarily impose, such as hearings and a 6-month comment period. We would not have to statutorily impose such requirements on the Interior Department if we felt that we could trust them to allow full public participation in these sorts of decisions, but recent events have made it clear that we cannot do that.
A good example of this is the scoping on the recent Utah WSA 202 process. Because the Interior Department felt that their own agenda and timetable was more important than public participation, they tried to cram scoping on a proposal that would designate a land area over twice the size of Delaware as WSAs into 2 weeks. Further, constituents told us that the public meetings that were held were so lacking in information and structure as to be virtually useless. Interior has since extended the scoping period very slightly, but it is still woefully inadequate to allow meaningful public input into the process.
So, as you can see, we have to specify these sorts of things into law, otherwise Interior will not allow the public an adequate chance to participate. H.R. 1487 is a good bill. It would not gut the Antiquities Act. The President's authority under this Act would not be abrogated in any way. He would simply have to follow certain steps that allow public comment and input before using it.
I look forward to Mr. Leshy's testimony and the discussion on this bill, and again would like to reiterate that we went through this step by step on what happened on the Grand Staircase, and it should be obvious to anyone the abuse of power that we have seen, and we surely don't want that to happen again.
[The prepared statement of Mr. Hansen follows:]
STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
Good morning. Welcome to the Subcommittee on National Parks and Public Lands hearing on H.R. 1487 the National Monument NEPA Compliance Act. I would like to again welcome our witness John Leshy from the Interior Department. Thank you for taking the time to be with us today.
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In 1906 the Antiquities Act was passed as a method to quickly withdraw small parcels of land from the public domain to preserve archeological sites. Today it is being used to thwart Congressional control over the public lands, to avoid the National Environmental Policy Act, and to deny the American people the right to have input in public lands decisions.
An article in Monday's Washington Times quoted Secretary Babbitt as having said that quote ''We've switched the rules of the game. We're not trying to do anything legislatively.'' The implication is that if Congress does not pass the laws that the Secretary wants passed, he will make his own laws through regulations, executive orders, policy directives, etc.
This is clearly an abuse of power. The Constitution specifically gives Congress the power over public lands. If Secretary Babbitt does not like a law, such as the mining law, then he should work with Congress to change it. However until Congress does, it is still the law of the land, and the Secretary has taken an oath to uphold it. It is not his place to change the law.
The September 1996 creation of the Grand Staircase-Escalante National Monument is a good example of how Interior is trying to use the Antiquities Act to thwart Congress and avoid NEPA.
It appears that as early as August of 1995 people in the Interior Department were talking about the possibility of designating National Monuments as a way of thwarting Congressional control over the public lands. As the Utah Wilderness debate started to heat up, the Interior Department started looking for a way to create wilderness without Congress.
In August 3 , 1995 memo within the Interior Solicitor's office from Dave Watts to Robert Baum, Mr. Watts says that John Leshy wanted to talk to them about the choices and legal risks involved in using the Antiquities Act.
In that memo he warns that—quote ''To the extent the Secretary proposes a national monument, NEPA applies. However, monuments proposed by the president do not require NEPA compliance because NEPA does not cover presidential actions.''—end of quote. Mr. Watts then opines that the court case Alaska v. Carter held that the Secretary can do all of the work on a national monument withdrawal without triggering NEPA if the monument is the President's proposal and the President asks the Secretary to help him.
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Later, the Solicitor's office sent a memo to Sam Kalen saying that they believed that they needed a letter from the President to the Secretary asking for national monument recommendations if they were to avoid ''NEPA problems on Antiquities Act work.'' They also expressed concern as to whether such a letter would be accessible to the public via the Freedom of Information Act.
Further, they were afraid that if they did not get a letter from the President, a court might be able to set aside a proclamation due to the lack of NEPA compliance.
Interior, therefore, spent the next several months trying to create a fake paper trail by trying to get the President to sign a letter asking Secretary Babbitt to start looking at the possibility of a national monument proposal. Even though Interior had been planning the monument since August of 1995.
The Interior Department, however, went on with their proposal and by July 26th, Interior had Professor Wilkinson from the University of Colorado drawing up the actual proclamation. However, the President did not sign such a letter until August 7, 1996. After the proclamation was already drafted.
The State of Utah found out about the monument when President Clinton called Governor Leavitt at 2:00 A.M. on the day that the monument was created.
As you can see, the Antiquities Act was used to thwart Congress, avoid NEPA, and avoid public input into public lands decisions.
When we held hearings last year on H.R. 1127, the National Monument Fairness Act, people came in here and told us that we didn't need to amend the Antiquities Act because the Grand Staircase-Escalante National Monument fiasco was a one time thing and no one would ever try a stunt like that again.
Well, I guess they were wrong, because rumors coming out of Interior tell us that the exact same thing is going on right now. Letters from the President have been generated in order to avoid NEPA, secret monument plans are being thrown together, Congress is being left out of the picture, and the American people are left in the dark once again.
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H.R. 1487 is intended to fix the Antiquities Act to avoid these types of abuses. It would require the Secretary of the Interior to do an Environmental Impact Statement before the President could sign a national monument proclamation pursuant to the Antiquities Act.
This would insure that national monument designations are in the best interest of the environment, and would insure public participation in the decision making process.
Further, it would prevent the use of the Antiquities Act as an election year ploy and discourage the Interior Department from going to such elaborate lengths to avoid NEPA.
Mr. Leshy's testimony expresses concern that H.R. 1487 imposes a few extra procedural hurdles that NEPA wouldn't necessarily impose, such as hearings and a 6 month comment period.—We would not have to statutorily impose such requirements on the Interior Department if we felt we could trust them to allow full public participation in these sorts of decisions, but recent events have made it clear that we can not.
A good example of this is the scoping on the recent Utah WSA 202 process. Because the Interior Department felt that their own agenda and timetable was more important than public participation, they tried to cram scoping on a proposal that would designate a land area over twice the size of Delaware as WSAs into two weeks. Further, constituents told us that the public meetings that were held were so lacking in information and structure as to be virtually useless. Interior has since extended the scoping period slightly, but it is still woefully inadequate to allow meaningful public input into the process. So, as you can see, we have to specify these sorts of things in the law, otherwise Interior will not allow the public an adequate chance to participate.
H.R. 1487 is a good bill. It would not gut the Antiquities Act. The President's authority under that Act would not be abrogated in any way. He would simply have to follow certain steps that allow public comment and input before using it.
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I look forward to Mr. Leshy's testimony and the discussion on this bill.
Mr. HANSEN. I recognize the gentleman from Washington.
STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON
Mr. INSLEE. Thank you, Mr. Chair.
Mr. Chair, I am going to ask if we can submit to the record comments by Ranking Member Romero-Barceló, if we can. If I could submit that to the record since he is not able to join us, at least at the moment.
Mr. HANSEN. Without objection.
[The prepared statement of Hon. Romero-Barceló follows:]
STATEMENT OF HON. CARLOS ROMERO-BARCELÓ, A DELEGATE IN CONGRESS FROM THE TERRITORY OF PUERTO RICO
Mr. Chairman, we share your frustration with the lack of timely delivery of the Administration's testimony that caused you to cancel the hearing on H.R. 1487 last month. We are glad that Mr. Leshy is able to be with us today and note that the delays with the Administration's testimony last month were not the fault of Mr. Leshy.
As we noted at the earlier hearing on H.R. 1487, the House last Congress spent considerable time on legislation you authored (H.R. 1127) to limit the authority of the President to designate National Monuments. This year, you have introduced new legislation (H.R. 1487) to require that prior to a declaration of a President establishing a National Monument, a National Environmental Policy Act (known as ''NEPA'') analysis be undertaken.
The provisions of H.R. 1487 raise several questions that the Subcommittee will want to consider carefully. First, the bill establishes a significant precedent of making a Presidential action subject to NEPA. As you may know Mr. Chairman, actions of the President, the Congress and the Judiciary are currently not subject to NEPA. The bill also deviates from NEPA by presuming that all designations are a major Federal action and by including extended public and comment periods and hearing requirements that also deviate from current NEPA procedures.
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There are other problems as well. The bill requires the Secretary of the Interior to prepare the Environmental Impact Statement even though he may not administer the lands in question. Further, the authority of the Secretary to withdrawal lands on an emergency basis is less than the existing authority of the Secretary to make such withdrawals. The 24-month time period is also likely to be inadequate to deal with the time periods of the required Environmental Impact Statement.
Mr. Chairman, we look forward to the insights of the Administration and others as we try to sort through the questions raised by this legislation.
Mr. INSLEE. I would also like to note that we are looking forward to Mr. Leshy's testimony. We understand that he was unable to help us the last time, but I want to make sure that folks know it was not his fault, that there was something that occurred. I look forward to his testimony.
Mr. HANSEN. Thank you.
[The information follows:]
Mr. HANSEN. The gentleman from Utah, Mr. Cannon.
STATEMENT OF HON. CHRIS CANNON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
Mr. CANNON. Thank you, Mr. Chairman. I appreciate your introduction of this important legislation and our second attempt to hold a hearing on this issue, which both of us have been so heavily and personally involved. Our colleagues have heard continually of the trials of our constituents in Utah, which they expressed the result of the creation of the Grand Staircase-Escalante Monument nearly 3 years ago. This monument, encompassing over 2 million acres located in southern Utah, strips some of the most rural and poor communities of their land base and economy. What is most disturbing is a recent article in the Washington Times which describes in painful detail the additional withdrawals and monument designations this administration may attempt in yet another election year ploy.
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Mr. Chairman, I would like to submit this article as part of the record.
Mr. HANSEN. Without objection so ordered.
[The prepared statement of Mr. Cannon follows:]
STATEMENT OF HON. CHRIS CANNON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
Thank you, Mr. Chairman. I appreciate your introduction of this important legislation and our second attempt in holding a hearing on this issue in which we have been so heavily and personally involved.
Our colleagues have continually heard of the trials and turmoil our constituents in Utah have experienced as a result of the creation of the Grand Staircase-Escalante Monument nearly three years ago. This monument, encompassing over two million acres, located in southern Utah, stripped some of the most rural and poor communities of their land base and economy.
What is most disturbing is a recent article in the Washington Times, which describes in painful detail the additional withdrawals and monument designations this Administration may attempt in yet another election year ploy. Mr. Chairman, I would like to submit this article as part of the record.
I sincerely hope that this morning's debate is constructive and will encourage better implementation of the Antiquities Act of 1906. It simply is not right to subject other communities to the same devastation that my constituents suffered. The process, or lack thereof, used in 1996 to create the Grand Staircase-Escalante Monument was horribly flawed.
I believe the intent of Congress and President Roosevelt when he signed the Antiquities Act into law in 1906 was very clear. The Antiquities Act was designed to protect certain natural and pristine areas. Fortunately, over the past 93 years, Congress has been very diligent and has designed a number of statutes to respond to the needs of environmental preservation, such as the: Federal Lands Policy Management Act, National Environmental Policy Act; Wild and Scenic Rivers Act; Wilderness Act; and the National Park Service Organic Act. These important laws have allowed us to protect millions of acres of public land while allowing local communities a role, albeit minimal at times, in the designation process.
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Unfortunately, the process utilized in 1996 did not address or allow public participation at all. It appears that this Administration went to great lengths to avoid, not only public input, but even public knowledge of its plans to designate the Grand Staircase-Escalante National Monument. I find it ironic that the very Administration that has championed NEPA, took definite measures to avoid NEPA. The hypocrisy stuns me.
What is even more shocking are the rumors of future Administration plans. It is fairly common knowledge that this Administration is considering at least one additional monument in the southwest—but in light of the recent Times article—I suspect there are more in the works. I hope Mr. Leshy will take this opportunity to elaborate on the Administration's plans and any other monument designations it may be considering.
I look forward to the discussion we will have this morning. I am sure our witness will provide an interesting perspective. Again, Mr. Chairman, I appreciate your willingness to move this issue forward. It is time the President is subjected to the same environmental rules as the rest of us. It is clear that the Antiquities Act has been exploited and abused. H.R. 1487 seeks to end this blatant arrogance.
Thank you.
Mr. CANNON. I sincerely hope that this morning's debate is constructive and will encourage better implementation of the Antiquities Act of 1906. It simply is not right to subject other communities to the same devastation that my constituents suffer. The process, or lack thereof, used in 1996 to create the Grand Staircase-Escalante Monument was horribly fraudulent. I believe the intent of Congress and President Roosevelt when he signed the Antiquities Act into law in 1906 was very clear.
The Antiquities Act was designed to protect certain natural and pristine areas. Fortunately, over the past 93 years, Congress has been very diligent and has designed a number of statutes to respond to the needs of environment preservation, such as the Federal Lands Policy Management Act, the National Environmental Policy Act, the Wilderness and Scenic Rivers Act, the Wilderness Act, and the National Park Service Organic Act. These important laws have allowed us to protect millions of acres of public land while allowing local communities a role, albeit minimal at times, in the designation process.
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Unfortunately, the process utilized in 1996 did not address or allow public participation at all. It appears that this administration went to great lengths to avoid not only public input, but even public knowledge of its plans to designate the to Grand Staircase-Escalante National Monument. I find it ironic that the very administration that has championed NEPA took definite measures to avoid NEPA. The hypocrisy here stuns me.
What is even more shocking are the rumors of future administration plans. It is fairly common knowledge that this administration is considering at least one additional monument in the Southwest, but in light of the recent Times article, I suspect there are even more in the works.
I hope that Mr. Leshy will take this opportunity to elaborate on the administration's plans and any other monument designations it may be considering. I look forward to the discussion we will have this morning. I am sure our witness will provide an interesting perspective.
Again, Mr. Chairman I appreciate your willingness to move this issue forward as the President is subjected to the same environmental rules as the rest of us. It is this clear the Antiquities Act has been exploited and abused. H.R. 1487 seeks to end this blatant arrogance. Thank you.
Mr. HANSEN. Thank you, Mr. Cannon.
[The information follows:]
Mr. HANSEN. The gentleman from Colorado, Mr. Udall.
STATEMENT OF HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO
Mr. UDALL OF COLORADO. Thank you, Mr. Chairman. Mr. Chairman, I don't have any comments at this time. I would ask unanimous consent that a letter from a number of groups, including the National Parks and Conservation Association and the National Trust for Historic Preservation be included in the record.
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Mr. HANSEN. Without objection so ordered.
Mr. UDALL OF COLORADO. Thank you, Mr. Chairman.
[The information follows:]
Mr. HANSEN. Mr. Leshy, would you please step up to the area there. We appreciate you being with us and thank you so much for your testimony that you sent to us.
Mr. Leshy, before you start your testimony, I would just like—not to be redundant, I would just to make sure that we have done this right. I am going to reread some of these things.
It appears that as early as August 1995, people in the Interior Department were talking about the possibility of designating national monuments as a way of thwarting Congress's congressional control over the public lands. As the Utah wilderness debate started to heat up, the Interior Department started looking for a way to create wilderness without Congress. In August 3, 1995, memo within the Interior Solicitor's Office, from Dave Watts to Robert Baum, Mr. Watts says that John Leshy wanted to talk to them about the choices and legal risks involved in using the antiquity law. In that memo he warns that, quote, ''To the extent that the Secretary proposes a national monument, NEPA applies. However, monuments proposed by the President do not require NEPA compliance because NEPA does not cover Presidential actions,'' end of quote.
Mr. Watts then opines that the court case Alaska v. Carter held that the Secretary could do all of the work on the national monument withdrawal without triggering NEPA if the monument is the President's proposal and the President asks the Secretary to help him.
Later the Solicitor's Office sent a letter to Sam Kalen saying that they believe they needed a letter from the President to the Secretary asking for national monument recommendation if they were to avoid NEPA problems on Antiquities Act work. They also expressed concern as to whether such a letter would be accessible to the public because of the Freedom of Information Act. Further, they were afraid that if they did not get a letter from the President, a court might be able to set a proclamation aside due to the lack of NEPA compliance.
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Interior, therefore, spent the next several months trying to create a fake paper trail by trying to get the President to sign a letter asking Secretary Babbitt to start looking at the possibility of a national monument proposal, even though Interior had been planning the monument since August of 1995. The Interior Department, however, went on with their proposal, and by July 26, Interior had Professor Wilkinson from the University of Colorado drawing up the actual proclamation. However, the President did not sign the letter until August 7, 1996, after the proclamation was already drafted.
Mr. Leshy, what I have just read to you, is that a true statement?
STATEMENT OF JOHN LESHY, SOLICITOR, DEPARTMENT OF THE INTERIOR
Mr. LESHY. Mr. Chairman, thank you very much for the opportunity to be here today. I again apologize for the mix-up that resulted in our late testimony coming up a month ago. I am delighted to appear and talk about H.R. 1487 and hopefully clear up some misconceptions about the planning involved in the Grand Staircase.
It is not true that planning for Grand Staircase dates back to August of 1995, or 1995 at all, in fact. As with any Presidential power, from time to time in this administration, dating back to, I think, nearly to the beginning probably, we had conversations with people in the Executive Office of the President about various issues and powers that the President has over public lands, including the Antiquities Act.
I don't remember exactly what happened in August of 1995 that precipitated the memos that you referred to. I do know that there was no discussion of the Grand Staircase or anything like it in southern Utah at that time. There were discussions, I do recall, in the spring of 1996 about possible Antiquities Act proclamations in connection with park protection, because there was some park legislation pending in Congress at that time, and we had conversations with the White House about that in the spring of 1996, and there were memos about it. But the earliest that anybody in my office or the Department, as far as I know, ever had any conversations with the White House about a monument in southern Utah where the Grand Staircase is now located took place in early July of 1996. I think the record on that is absolutely clear. I think Katie McGinty, former Chair of CEQ, who was intimately involved in those discussions, testified in front of this Committee and the Senate on that.
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I was first contacted on July 3, 1996, by Ms. McGinty to come over to the White House. At that time she asked me to communicate to the Secretary the President's desire that the Secretary look at the possibility of establishing a monument in southern Utah. That was the very first mention of that subject and that proposed monument. In response to the President's request, which I think was communicated the next day by the President directly to Secretary Babbitt, we started work on responding to the President's request and over the course of the next 6 weeks or so prepared some materials, forwarded them to the White House in mid-August of 1996, and at that point the White House had some further conversations with us and with, I think, Members of Congress, Governors and others about establishing the monument in southern Utah, including members of the Utah delegation. I think that you were at least at one of those meetings in the Secretary's office in September of 1996. And the decision—I believe the President did not make the decision to proclaim the monument until early on the morning of September 18th, after he had had a number of conversations with Members of Congress, Governor Leavitt, and others. So the Grand Staircase Monument planning from the Interior Department's perspective dates back only to early July of 1996.
As with any Presidential power involving public lands, the Interior Department, as I said, is involved from time to time in discussions with the White House about proclamations under the Antiquities Act. It is a fairly continuing dialogue. It is an important power. It has been exercised more than 100 times over the last 90 some years by 14 Presidents of both parties. There is nothing lawless about that action. The Antiquities Act was passed by unanimous consent of both Houses of Congress in 1906, a Congress, I should note, that was overwhelmingly Republican in both Senate and House. Presidents of both parties in equal numbers have created national monuments since 1906. About 75 million acres of land has been protected under the Antiquities Act in 24 different States and the Virgin Islands. Every President but three has made use of the Act, and the historic record shows, I think, without question that the authority the President has exercised under this power given to him expressly by Congress in this statute has not been abused.
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For that reason, we oppose the enactment of H.R. 1487. Should the legislation be presented to the President, the Secretary would recommend a veto because H.R. 1487 creates unprecedented strictures on Presidential action. The strictures are unnecessary. They seek to fix a problem that does not exist. The Antiquities Act, in our judgment, is one of the most successful environmental laws in American history. It has enabled Presidents to take decisive action to protect significant historical, natural, cultural resources on Federal lands for the past 93 years. If you just look down the list of monuments first protected under the Antiquities Act, we think they speak powerfully of the value and wisdom of action under that Act: Grand Canyon, Arcadia National Park, Muir Woods, Carlsbad Caverns, Channel Islands, Death Valley, the Statue of Liberty, the C&O Canal, and on and on. All of these Federal areas were first protected pursuant to congressional authority by the President of the United States under the Antiquities Act. It is an unparalleled resource protection success story.
Sometimes those proclamations have created controversy at the beginning. Some local residents were outraged when Teddy Roosevelt first protected the Grand Canyon in 1908 under the Antiquities Act. But today the residents of Coconino County, Arizona, reap significant economic benefits from millions of annual visitors to the Grand Canyon. That practice, that pattern, has been repeated across the country over the last 90 years.
H.R. 1487 would throw procedural obstacles in the path of this amazing record of success. It would make the Antiquities Act the only act of Presidential discretion that is subject to the National Environmental Policy Act. It would force all monument designations, regardless of size or impact, to skip over the environmental assessment process of NEPA and require the preparation of an environmental impact statement. It would subject this impact statement to major new procedural requirements that are not required currently by NEPA or NEPA regulations for ordinary Federal agency action, including formal hearings on the record during all phases of a development of an EIS, 6-month comment period on the draft EIS, 4-month public review on the final EIS. This kind of procedural straitjacket is unprecedented for any kind of Federal agency action. Ironically it would be imposed on one of the most successful environmental protection laws that we have. This is a great irony. It is also unnecessary. If the President does something truly bone-headed under the Antiquities Act, Congress can correct it; no harm, no foul. That has decidedly not been the pattern. This power has been exercised by 14 Presidents in this century wisely and skillfully.
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Mr. CANNON. Will the gentleman yield?
Mr. HANSEN. I think under our rules the witness has the right to finish his statement, and then we will come——
Mr. CANNON. This is the opening statement then?
Mr. HANSEN. This is the opening statement. I am sorry for not mentioning that.
Mr. LESHY. I will conclude.
H.R. 1487 would severely undermine a Presidential authority that has contributed significantly to the growth and strength of an American system of conservation areas that is the envy of the world. Without the President's authority under the Antiquities Act, many of America's grandest places would never have been protected and preserved for future generations. It has had a proven successful track record of protecting at critical moments especially sensitive Federal lands and the unique historic and scientific objects they hold. These monuments have become universally revered, symbols of America's beauty and legacy. As I said, I attached a chart to the testimony that lists each monument created under the Antiquities Act in the last 93 years. Those places speak eloquently of the wisdom of leaving the Antiquities Act alone.
That completes my statement, Mr. Chairman, I would be happy to answer any questions.
Mr. HANSEN. Thank you, Mr. Leshy.
[The prepared statement of Mr. Leshy follows:]
STATEMENT OF JOHN D. LESHY, SOLICITOR, DEPARTMENT OF THE INTERIOR
Mr. Chairman, Members of the Subcommittee, thank you for the opportunity to appear before you today to present the views of the Department of the Interior on H.R. 1487, the ''National Monument NEPA Compliance Act.'' The Administration strongly opposes this legislation. Should it be presented to the President, the Secretary of the Interior will recommend that he veto the bill.
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H.R. 1487 would amend the Antiquities Act to create unprecedented strictures on Presidential action under the National Environmental Policy Act. In fact, amendment of the Antiquities Act is unnecessary. This legislation seeks to fix a problem that does not exist.
The Antiquities Act is one of the most successful environmental laws in American history. It has enabled Presidents to take decisive action to protect significant natural, historical and scientific resources on Federal lands for the past ninety-three years. President Theodore Roosevelt made the first use of the Antiquities Act in 1906 to declare Devils Tower in Wyoming a national monument. Since then, Presidents of both parties have used the Antiquities Act as an important conservation tool. Fourteen Presidents have proclaimed 105 national monuments, many of which subsequently have been endorsed by Congressional action.
The areas protected under the Antiquities Act have included such world-renowned sites as the Grand Canyon, Acadia National Park, Muir Woods National Monument, Carlsbad Caverns, the Channel Islands, Death Valley, the Statue of Liberty and the C&O Canal. The Black Canyon of the Gunnison, first designated a national monument by President Hoover, is now under consideration to become a national park. The 105 presidential designations ranged from less than 10 acres to nearly 11 million acres. They are located in 24 different states and in the Virgin Islands. About 70 million acres of Federal land have been protected under the Antiquities Act.
Protecting the resource jewels of the United States has been a bipartisan undertaking. Indeed, every President but three since 1906 has made use of the Antiquities Act to protect the special qualities of our Federal lands from potential harm. The historic record soundly refutes any notion that the authority of the President under the Antiquities Act has been abused. Sometimes the use of the Antiquities Act has initially sparked controversy and local opposition. History has taught us, however, that even initially controversial presidential proclamations are embraced by the public within a relatively short time and soon take their places among Americans' most treasured resources. For example, President Franklin D. Roosevelt designated 212,000 acres in Wyoming as the Jackson Hole National Monument, this area is now part of Grand Teton National Park. In Alaska, President Carter reserved 56 million acres of land as national monuments, most of these lands were soon designated by Congress as conservation units under the Alaska National Interest Lands Conservation Act. Most recently, President Clinton's declaration of the Grand Staircase-Escalante National Monument in Utah, though initially controversial, was ratified by the 105th Congress with modest boundary adjustments.
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States and local communities have become staunch defenders of national monument designations. Some local residents were outraged when Teddy Roosevelt designated Grand Canyon National Monument in 1908, but today the residents of Coconino County, Arizona reap significant economic benefits from the millions of annual visitors to the Grand Canyon.
As Congress recognized in enacting the Antiquities Act in the first place, the law provides needed flexibility for the President to respond quickly to impending threats to resource protection, while striking an appropriate balance between legislative and executive decision-making. Congress retains the power to overturn any monument designation. However, only a few proclamations involving a handful of small area, totaling less than 5,000 acres of the 17 million acres protected, have been rescinded since 1906. Moreover, Congress can control implementation of the Act through its authority over plans, programs and funding to manage the national monuments. In other words, the appropriations process and the laws and regulations governing the management of public lands provide appropriate checks and balances.
These existing controls over the exercise of Presidential discretion under the Antiquities Act underscore the superfluity of the unprecedented requirements that would be imposed under H.R. 1487. This bill would amend the Antiquities Act to specify that a declaration by the President making an area a national monument would be both an action of the Federal Government and a major Federal action significantly affecting the quality of the human environment under the National Environmental Policy Act (NEPA). These two presumptions: (1) would make this the only act of Presidential discretion that is subject to NEPA; and (2) would force all such monument designations, regardless of size, to skip over the environmental assessment stage of NEPA and assume instead sufficient environmental impact to require preparation of an environmental impact statement (EIS).
The EIS that would be prepared as a result of the legislative presumptions under H.R. 1487 would be prepared by the Secretary of the Interior. This EIS would be subject to procedural requirements that are not required by NEPA or the NEPA regulations. The additional procedural hurdles would include:
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• requiring formal hearings, on the record, during all phases of the development of the EIS, including the scoping period;
• requiring at least 6 months of public review and comment on the draft EIS before a final EIS could be published, and
• requiring at least 4 months of public review and comment on the final EIS before a record of decision could be issued.
None of these steps is currently required under NEPA or the NEPA regulations. Mandating all these procedural barriers for every national monument designation, no matter how small or how urgent, would be contrary to both protective purposes of the Antiquities Act and the flexible approach of the NEPA regulations. In addition, the bill would delay Antiquities Act protection still further by preventing the President from designating a national monument for at least 30 days after the record of decision is approved. And any emergency withdrawal of the area by the Secretary of the Interior under section 204(e) of the Federal Land Management and Policy Act could be in effect for only 24 months.
Mr. Chairman, in the view of the Administration, the new constraints that this bill would impose on the designation of national monuments are unwarranted. H.R. 1487 would severely hamper the authority enjoyed by 17 Presidents of both parties since 1906 to establish national monuments in a timely matter to protect important historic and scientific sites. The bill would impose restrictions on the process for designating national monuments that are not imposed on any other Federal actions. It would single out designations of national monuments as the only Presidential actions that would be subject to NEPA. By legislatively determining that designations of national monuments, regardless of their actual environmental impacts, ''significantly affect the quality of the human environment,'' this bill would preempt and pre-judge factual analysis that NEPA requires for other Federal actions. At the same time, the bill would impose delays on Federal decision-making that NEPA does not require in any other circumstance, while limiting the length of time that the Secretary could protect the affected area pending a final decision.
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The problems this bill purports to solve are often imaginary. The bill would severely undermine a Presidential authority that has contributed significantly to the growth and strength of an American system of conservation areas that is the envy of the world. Without the President's authority under the Antiquities Act, many of America's grandest places might never have been protected and preserved for future generations. Adding mandated delays to decision-making under the Act would increase the opportunity and incentive to exploit resources that could irreparably harm the features and values to be preserved.
The Antiquities Act has a proven track record of protecting, at critical moments, especially sensitive Federal lands and the unique historic and scientific objects they hold. These monuments have become universally revered symbols of America's beauty and legacy. A chart detailing each monument created under the Antiquities Act, and the objects protected in each, is attached to my testimony for your further review. These places speak eloquently of the wisdom of leaving the Antiquities Act alone.
Mr. Chairman, this completes my statement. I am available to answer any questions you or other Members of the Subcommittee may have.
[The information follows:]
Mr. HANSEN. The gentleman from Utah, Mr. Cannon, is recognized for 5 minutes.
Mr. CANNON. Thank you, Mr. Chairman.
Just one thing that you said that caught my attention. If the President does something truly bone-headed, then Congress has the ability to change what the President does.
I take it that you think that we could override a Presidential action, and that—I suspect you would think that a simple majority should be able to change the President's action, or if he truly did something bone-headed, would he veto the action of Congress and require a two-thirds majority?
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Mr. LESHY. Well, the President exercises authority under the Antiquities Act that Congress has given him. Congress can withdraw that authority, or Congress can override the exercise by ordinary legislation. But after the ordinary legislative process, it would have to be presented to the President for signature or veto. If the President vetoed it, obviously a veto could be overridden. I can't prejudge what——
Mr. CANNON. Then we would probably have to have fewer than a third of the Members of the Congress who are also not bone-headed to actually override a truly bone-headed activity by the President.
Mr. LESHY. Well, it is an interesting but, frankly, very hypothetical question.
Mr. CANNON. No. You raised the issue. You said that Congress could change it. But that is not how the American system works very well, is it?
Mr. LESHY. I think the American system works that Congress can pass legislation and can override a President's veto if the President vetoes such legislation. But the record is absolutely clear that of the 104 or -5 national monuments created, none of them have been overridden by legislation except for a very tiny handful of very small monuments. All of the monuments have all been ratified, affirmed and endorsed subsequently by Congress.
Mr. CANNON. I am sorry. You said a great number of things, including a reference to ratification by Congress. When you suggested that the appropriations process, in your opening statement or earlier submitted—when you suggest that the appropriations process and current laws and regulations provide appropriate checks and balances, are you ratifying the use of riders as reasonable?
Mr. LESHY. Well, riders are a part of the legislative process that many people find offensive because they bypass the ordinary committee and authorizing committee processes if they are put on appropriations bills. I don't think that anybody denies that a rider that is attached to a bill goes through the process and, signed by the President or veto-overridden, becomes law. That is a given. I acknowledge that.
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Mr. CANNON. Mr. Leshy, in the President's statement when he designated the monument, he said, we will save the Grand Escalante canyons and the Kaiparowitz Plateaus of Utah for our children.
Could you explain exactly what these lands were being saved from?
Mr. LESHY. The Antiquities Act is authorized as a proclamation of national monuments. It is an affirmative act of recognition of the value of scientific and historic resources found on those lands. It is also a means of protecting those resources. So it is really both. I think the proclamation at Grand Staircase goes into great detail describing those resources, what their value is, and why they should be protected. The proclamation speaks for itself.
Mr. CANNON. What was it that we were trying to protect there? What were we protecting those resources from? What was the danger to those resources?
Mr. LESHY. Well, this area of southern Utah had probably been debated in terms of how it should be managed more than any other area of Federal land that I know of for the last 25 years. There had been a huge debate dating back to the late 1960s, early 1970s, about whether this area should be industrialized. As you probably remember, there were proposals to build coal-fired power plants in southern Utah in the Grand Staircase area by southern California. That goes back to the early 1970s.
Mr. CANNON. Those go back, way back. What at the time of this monument designation was the danger that was perceived by the President that precipitated such dramatic action that so dramatically affected the lives of so many American citizens?
Mr. LESHY. Some of those proposals to industrialize that area continued. There were coal mining proposals that were pending at the time.
Mr. CANNON. The coal mining, was that the precipitating factor?
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Mr. LESHY. As I said, there were a number of precipitating factors, including the fact that the future management of this area, should it be industrialized or not was an issue. There was also a sense, I believe, as the proclamation itself expresses, that there are important historic, scientific, cultural values in this area that ought to be protected.
Mr. CANNON. What made it, what precipitated, what caused the action to actually happen? Was there a danger other from the coal mining that made it so important that the President in secrecy go around any kind of open process and designate this monument? Was there something that was urgently in need of protection?
Mr. LESHY. First of all, there is no requirement in the Antiquities Act that there be an immediate threat or danger. The Antiquities Act says if the President identifies important scientific, historical, cultural resources on the Federal lands that he thinks ought to be given recognition and protection, he can exercise the power under the Antiquities Act. This was not done in secret.
For the last several weeks leading up to the proclamation, there was an active vigorous debate involving the Utah delegation, the Governor of Utah, and many other people about whether this should be done and how it should be done. I participated in some of those discussions with members of the Utah delegation. During those discussions we heard concerns about if the President does this, what is going to happen to water rights; what is going to happen to hunting, fishing, grazing; which agency is going to manage this area. All of those concerns were expressed to the President, to the Secretary and others in the days leading up to the proclamation. Frankly, I am happy to say that the proclamation addresses each one of those issues, because that consultation process, while brief, worked, and the President listened, the Secretary listened, and the proclamation is unprecedented in its detailed address of those issues. While we heard lots of complaints about how short that——
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Mr. CANNON. My time has, in fact, expired. I do hope that we will have another round of questioning.
Mr. HANSEN. We will have another round of questioning. The time for the gentleman from Utah has expired.
The gentleman from Colorado, Mr. Udall.
Mr. UDALL OF COLORADO. Thank you, Mr. Chairman. I want to welcome the solicitor. It is good to see you here today. I want to start out just asking you under the Antiquities Act, is it your opinion that anybody but the President can establish a monument?
Mr. LESHY. Mr. Chairman, Congressman Udall, that is a very interesting question. I don't know that anybody knows the answer. It has only been the President who has done it. The President, as far as I know, in 93 years, none of the 17 Presidents that have lived under this have ever tried to delegate that power to the Secretary of the Interior or somebody else. It has been regarded certainly by practice as a uniquely Presidential power.
Mr. UDALL OF COLORADO. So whatever may have been going on in your Department, the decision to establish the Grand Staircase was made by the President himself; is that right?
Mr. LESHY. I want to make it absolutely clear. This process was initiated by the President, by the White House. We did not start working on this proposal or recommendation until we were asked to do so by the President of the United States, and the President ultimately made the decision.
Mr. UDALL OF COLORADO. Is it your opinion that the decision was made in compliance with the Antiquities Act and all of the other applicable laws?
Mr. LESHY. Yes. It is our firm position that the President acted well within his authority, that all of the processes required by law were followed.
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I should add that there is a litigation pending in Utah as I speak involving the Mountain States Legal Foundation. It's a plaintiff that is challenging our authority in the processes. We are confident that we are going to win that litigation. The courts will tell us.
There have been a number of cases over the last 93 years in court that have involved challenges to the President's exercise of power. The Supreme Court of the United States in 1920 unanimously upheld Teddy Roosevelt's designation of the Grand Canyon as a national monument, rejecting all legal challenges. Grand Teton by Franklin Roosevelt was challenged in court and upheld. Jimmy Carter's exercise of Antiquities Act authority in Alaska was challenged in court and upheld. We have had legal challenges, and the government has won them all.
Mr. UDALL OF COLORADO. It appears to me then that today we are not discussing whether or not the law was followed, but whether we ought to change the law. The question becomes would it be better for the purposes of the Antiquities Act and for the country to change it or continue to use it in the way that it has been applied in the past. Would you agree?
Mr. LESHY. Yes.
Mr. UDALL OF COLORADO. Let me ask you a couple of questions about the proposal itself. There are lands that potentially the Secretary would not administer for which he would have to prepare an EIS. Do you think this would present problems?
Mr. LESHY. Yes, it could present problems because sometimes speed is important. Decisive action is sometimes necessary. In the Grand Staircase, I should point out that the President made it very clear in the proclamation that the on-the-ground management of this area would be determined through an open public process creating a management plan for the monument that would fully comply with NEPA. We are in the middle of that process now. We have gone through a draft plan, public hearings, environmental impact statement, et cetera. The final environmental impact statement is under preparation now, and we will be out with a final plan this fall. So NEPA applies to the detailed management of this monument once it is created.
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Mr. UDALL OF COLORADO. So right now there is this EIS process going on, and it seems like it is working well, from all that I have heard. There is a great amount of input. Would you care to comment any more on the process itself?
Mr. LESHY. I think it is working well. This is a complicated undertaking. We are managing nearly 2 million acres of land and trying to set the management guidelines for that area. You obviously can't please everybody, but there has been a very vigorous public involvement. We have had well-attended public hearings. We have had thousands of comments from people all over the country, as well as people in Utah, about the management plan. We have devoted a lot of time and effort to it, and we think it is working well.
Mr. UDALL OF COLORADO. One last question, I believe. I have some concerns that the requirements in H.R. 1487 might open up the action of the President to judicial review prior to that final decision. Do you read it that way? Would you care to comment on that?
Mr. LESHY. Well, it is certainly possible. NEPA actions, the adequacy of environmental impact statements, generally speaking, are subject to a judicial challenge, and sometimes injunctions are possible against Federal actions. The President has never been subject to NEPA. The CEQ guidelines from the very beginning of NEPA have made it clear NEPA does not apply to Presidential decision-making. NEPA also does not, as you probably know, apply to congressional decision-making.
The President in a sense is the most politically accountable person in the country. He is the only person who stands up in front of all of the people subject to periodic elections, and in that sense his actions are the most visible, accountable things that we have. It has never been understood that NEPA applies to Presidential decision-making. NEPA was intended to open up agency, Federal agency, decision-making by the unelected bureaucrats that we speak of and not to Presidential action.
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I should also point out that H.R. 1487 does not simply apply NEPA to the Antiquities Act. It goes beyond NEPA in a number of important respects to make it even more cumbersome and more difficult, more procedural requirements than NEPA itself or the CEQ guidelines require. If you add up the time requirements for public hearings and comment periods and all of that, it is a 2- to 3-year process if you would comply with that process in H.R. 1487. It is interesting that H.R. 1487, as I read it, only gives the President emergency protective authority for 2 years. So I am not sure the Act would even work well because you would, in essence, lead to unprotected areas; the 2-year period would expire before you finish the process requirements of H.R. 1487. So it is a real problem in its mechanics, I think.
Mr. UDALL OF COLORADO. Thank you Mr. Leshy. Thank you, Mr. Chairman.
Mr. HANSEN. Thank you.
Mr. Leshy, when I outlined to you the procedure that you went through, you said it wasn't true. I would agree with you, the procedure is true. Where I would agree with you is that you hadn't narrowed it down to the Grand Staircase-Escalante, and that is true. You are correct in that statement. But as you know, we subpoenaed all of these papers. Unless all of this stuff we subpoenaed from you is wrong, then I guess that we have got a problem here. But there were other areas that you were looking at.
Also, let me state this. NEPA, in effect, asked for public input. That is basically what we are looking at. Now, if I have got this gob of papers in front of me coming from people from the White House and others, let me go to Mr. Udall's question, why is it that this administration tried so hard for this not to get out? Quote, ''Some of the people in the White House said it is imperative this does not get out. If this gets out, the whole deal is off.''
Why is it that this administration and this Interior Department did not want this information to get out?
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Mr. LESHY. Well, first of all, as I said, the planning for the Grand Staircase started in early July of 1996, and it got out, information got out, and the proposal was made public, in essence, in either late August or early September. So the very early stages were conducted without public involvement. That was a decision the White House made. We were responding to the President's request for information, advice, and recommendations. And obviously, it is not up to us to decide to make public those deliberations or not. But it did, word eventually did get out.
As I said, there was a vigorous, if brief, but very vigorous public debate over several days in September about whether and, if so, how this should be done. The President, I believe, took all of that debate into account and all of the issues that were raised during that consultation process into account in putting the final proclamation together.
Mr. HANSEN. The proclamation was already drafted at that time, if our records are correct, and didn't change one iota.
Mr. LESHY. There were changes. I can recall at least one or two changes made literally at the very last minute.
Mr. HANSEN. We could see some minor changes. We didn't see any substantive changes.
Also, Mr. Cannon brought up the idea of this, as to what is it that you were protecting—actually the President in his oral statement said that he wanted to stop the mine. Tell me, have you ever been to that mine site? Has Mr. Babbitt ever been to that mine site? Has the President ever been to that mine site? Has the Vice President ever been to Smokey Hollow?
Mr. LESHY. I have been. I believe the Secretary has been. I don't know about the President or the Vice President.
Mr. HANSEN. What did you find there? You said that you have been there.
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Mr. LESHY. Yes, I have been there.
Mr. HANSEN. I have been there a number of times. Describe to the Committee what it is like, would you, please?
Mr. LESHY. It is in the heart of a very remote area. In fact, I do recall that when we were in the early planning stages looking at this area, Car and Driver Magazine coincidentally——
Mr. HANSEN. What is the ground covered with other than sagebrush? Did you see anything unique and beautiful, Mr. Leshy?
Mr. LESHY. According to the geological studies that have been done, very interesting geology. I think the Kaiparowitz Plateau where this mine site is in the heart of has been described as having world-class paleontological deposits, scientific resources that tell us about the past of the Earth. It is one of those great places that has a lot of geologic and scientific information.
Mr. HANSEN. If I may interrupt you, the geologist from the State of Utah said this mine site is no different than millions of millions of acres all throughout the West. In fact, when we were trying to find it the last time, the pilot, even with ground positioning stuff, couldn't find it because every hill looked alike for 50 miles. But we all have our own interpretation of beauty. I will surely acquiesce to that.
Let me go back to one other thing you point out. The bill—if I am correct, the law says, ''And he shall use the smallest acreage available to protect the site.''
The Golden Spike site is infinitesimal. Some of those are infinitesimal. By that I am not referring to the Arches National Park, I am referring to the one in Grand Canyon, the Rainbow Bridge. How come we need 1.7 million acres to protect that site when the law says the smallest amount? The mine site was only 40 acres.
Mr. LESHY. If you look at the proclamations done through history, I think you will find that the sizes of the monuments vary dramatically from a few acres to—I think the biggest one is 11 million acres in Alaska. The size is dictated, I think, faithfully in accordance with the statute by the resources you are protecting. In the Grand Staircase the proclamation goes on at some length about all of the different kinds of resources there and what their extent is.
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Mr. HANSEN. They just pulled them all together; 50 Mile Mountain, Burning Hills, Paria Canyon, the mine site? They said, okay, we will just get them all in one big fell swoop and not go to the law, which says we protect one site; is that what you are saying then?
Mr. LESHY. We follow the guidance of the unanimous decision of the Supreme Court of the United States in 1920 where exactly this question was raised, where people challenged the creation of the Grand Canyon National Monument, what was in the Grand Canyon National Monument, by saying that it is way too big, you are not following the intent of the law. The Supreme Court, frankly, just brushed it off saying, you are talking about a resource that is certainly a very large resource, but who is to say that that resource does not have historic and scientific value? The Grand Canyon is one of the great places on Earth.
Mr. HANSEN. Mr. Leshy, I see my time is up. We will have another round.
I want to go back to what you said about the statement from Mr. Kalen to you and Mr. Watts, and Mr. Baum, and read that back to you, because it is contrary to what you have stated.
I will now turn to the gentleman from Minnesota and then the gentleman from Tennessee and then the gentleman from Pennsylvania. The gentleman from Minnesota is recognized for 5 minutes.
Mr. VENTO. Mr. Leshy, I guess the issue, of course, here in terms of this bill is—I think the spirit of it is to try to provide more public participation. I think that obviously tries to superimpose the NEPA process, which I think was your response to Congressman Udall's comments. You pointed out that it would be the first time that any Presidential action would be subject to NEPA, and that the Courts and the Congress are not subject—our actions are not subject to NEPA. Is there a constitutional question, do you believe, in that vein?
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Mr. LESHY. Well, I am not sure. There could be. For example, the Constitution quite clearly gives the President the power, the specific authority, to ask subordinates for their opinions and advice, the so-called opinion clause in the Constitution in Article II. To the extent that the Congress wants to interpose some sort of procedural or public disclosure requirements on that advice, it could well raise a constitutional issue. I haven't looked at that issue closely. Clearly, the President—the Antiquities Act itself is a creature of Congress, and so the antiquities, Congress clearly has some power to modify it or even repeal it, I suppose. I am not sure that there is a serious constitutional question there, but there could be.
Mr. VENTO. What is the status, Mr. Solicitor, with the NEPA and with the some of the lands use planning? How would you say that NEPA is best used today generally in terms of public domain or other types of public lands? I think initially when NEPA was first enacted, that there was a lot of problems and delays, but it is pretty efficient. Most of our lands, for one reason or another, under the various FLPMA process or other general management plans for parks, we are really going through it. Most of our lands have been subject to at least an environmental assessment at various times and EISs; is that correct?
Mr. LESHY. Yes. I should point out that, frankly, in the Grand Staircase situation, there had been, as I mentioned earlier, a number of proposals to industrialize the area. There was NEPA applied to those reviews. The Kaiparowits power plant that was proposed in the early 1970s, there was a big multivolume environmental impact statement done on that proposal. The proposal eventually went away, but that process produced a lot of useful information.
Mr. VENTO. Parts of it has been subject to wilderness study and review; is that correct?
Mr. LESHY. Absolutely. Many of those were also accompanied by environmental impact statements. The BLM's original inventory, the wilderness study area established in the late 1970s and the BLM land use planning in that area has also been subject to environmental impact statements. So there were a number of layers of environmental impact statements and review in that area already present when the President acted.
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Mr. VENTO. One of the issues, of course, has been whether or not under FLPMA, where we were with some of the formal plans for the BLM lands. I remember chairing committees and working with John Seiberling. They point out they were really way behind in the 1980s in terms of getting this information up to date because it didn't have the funding. And today we have sort of a 10-year cycle. I guess probably your report to me would be back with the same circumstances.
Mr. HANSEN. Would the gentleman from Minnesota yield?
Mr. VENTO. Sure, I would be happy to, Mr. Chairman.
Mr. HANSEN. I appreciate that.
Let me point out that when the EIS was done on this piece of land, the finding was there was no significant impact. That was the finding on EIS. I appreciate the gentleman yielding.
Mr. VENTO. I would be happy to yield, Mr. Chairman.
What I am trying to suggest is that there is a body of information, whether it is supported or didn't support, but there was information available, and it was done, and obviously we have got this problem with this 10-year cycle where we have got a commitment to do this, but we don't do it every 10 years simply because of limits in terms of funding. I would suggest that might be a place that you would want to put some additional resources so that we are up to speed. But the information is out there. Is there any problem with suggesting that the administration would have to look at existing information since there is a base of information, some at EIS and some EAs, you know, and many other—actually, it is much more complete than just an EIS, isn't it, because an EIS has a specific target in terms of use. In one way this would be even more comprehensive. It might have been studied for an ACEC; is that correct?
Mr. LESHY. Yes. All of those things are possible. There is a wealth of information available, public information that, as I said, a great public debate about how this area—Grand Staircase—should be managed at the time the President acted. I mean this was not just done on a clean slate.
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Mr. VENTO. So I think the question only here, I think a valid one that is being raised in terms of how does the public or how can the public participate in this particular process, because clearly Grand Staircase-Escalante National Canyon, or whatever is being designated, or put it under the Antiquities Act and give monument status there is—we are talking an emergency situation generally, are we not, that there is some threat to it, some action that needs to be taken, is that right?
Mr. LESHY. Yes, there is no requirement in the law that there is an emergency or a threat, but in fact if you look at history, a number of national monuments were created in situations where there was some sort of an immediate threat. But it doesn't have to be.
Mr. VENTO. I mean we have got a wealth of information albeit it isn't precisely tailor made to the exact—to a monument status and for how long. And the monument status can be temporary and very often is, isn't it? Very often Congress has come back and decided those decisions, you know, by declaring wilderness, by making parks and I know the Alaska situation, by very often ratifying what the President has done, but I expect not always.
Mr. LESHY. That is right. Very often Congress comes back 2, 10, 15, 20 years later, and confirms the monument status or changes it into a park or some other form of status.
Mr. VENTO. Expands the bill. I think that is the balance and, of course, you can come back, I mean, I don't know what harm is done here, in terms I guess probably. But you have to honor all patented claims. You cannot take private land, all of that, those rights were all preserved, are they not?
Mr. LESHY. Yes, first of all, the Antiquities Act applies only to Federal lands so we cannot set aside private or state lands, only Federal lands, as a national monument. And second, all proclamations are subject to valid existing rights or whatever property rights exist on the land.
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Mr. VENTO. Obviously you have been under the firing range for a few years. I can understand my colleagues' concerns about it, so I have sat through a few of these hearings and I guess we are going to sit through a few more. But thank you, Mr. Leshy.
Mr. HANSEN. Thank you, Mr. Vento. Let me just exercise a priority of the chair and make one statement, we are barking up the wrong tree on some things here. The President is not subject to NEPA under this Act that is being proposed, regardless what you have heard. As John Sideman says, when all else fails read the Act. And I am not accusing you, Mr. Vento, I don't know anybody that spends any more time reading it. The bill asks the Secretary to do the NEPA work, not the President. It just sets the completion of the EIS by the Secretary's condition must be met prior to the Presidential proclamation. Let's get that thing ironed out right now.
The gentleman from Tennessee.
Mr. DUNCAN. Thank you, Mr. Chairman.
Let me read a portion of the briefing paper that we received on this, it says—in regard to the designation of the Utah monument, it says that the President used the Antiquities Act to thwart public input into Federal land management not to protect land. President Clinton's creation of the Grand Staircase-Escalante Monument in September of 1996 is a prime example of the need for more public input in national monument decisions.
Documents obtained from the Clinton Administration show that the monument was being planned for months, yet the State of Utah was not informed of the decision to create a monument until 2 a.m. The morning that the proclamation was signed.
The documents show that the monument decision process was kept secret in order to help Clinton's reelection campaign.
Now, let me say this, following up on what the chairman was talking about a while ago. It is simply false, it is not true to say that the public knew about this or that word got out. We were told in testimony by the Governor of Utah that he did not find out about this until he read about it on the front page of the Washington Post and he didn't find out about this until—and he had to desperately try to get ahold of the President at 1 or 1:30 in the morning, and as the briefing paper says, he got final information at 2 o'clock in the morning of the day the proclamation was signed.
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And then in one hearing that we held later on on this, we actually had a memo or a letter from a law professor in Colorado who was on the committee that used words to the effect that he couldn't overemphasize the need for secrecy.
And this is the kind of thing that used to go on in Communist countries, all of this—all of these big important decisions being made in secret, with trying to suppress as much public involvement as possible. It is shocking that this type of thing could go on in the United States of America. And you are talking about a great deal of land here.
I represent a big portion of the Great Smoky Mountains National Park. It is the most heavily visited national park in the country with 9 or 10—9 1/2 to 10 million visitors a year, the entire Great Smoky National Park is 565,000 acres. You are talking about here three times that much, 1.8 million acres.
I guess because we talk about billions all the time, we regard a figure as 1.8 million as not being really significant.
And then another thing that gets me whenever we have a hearing on this, we always hear from the other side about Theodore Roosevelt, that he was the first person to use this, because he was a Republican President that most Republicans still revere, it is just like we are supposed to accept anything that is done under this Act.
Well, the situation is totally different today from when Theodore Roosevelt was in office. In fact, I think Theodore Roosevelt would be shocked if he knew how much land was under public ownership today. Theodore Roosevelt—I could come in here with all kinds of quotes about how he believed in private property.
But today and especially over the last 25 or 30 or 40 years more and more and more land has been taken over, so that today almost one-third of the land of this country is owned by the Federal Government, another 20 percent is owned by State and local governments and quasi-governmental units, so over half the land today is in some type of public ownership.
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And this bill that is before us does not say that we have to do away with the Antiquities Act. Although this briefing paper says—points out that we now have in addition—this is totally different from when Theodore Roosevelt was in there—we now have the Archeological Resources Protection Act, the National Park Organic Act, the Wilderness Act, the National Environmental Policy Act, the Federal Land Policy and Management Act, the National Forest Management Act, and on and on and on.
We have so many laws protecting land and putting land in public usage that there is really, as this briefing paper says, there is no need for this Antiquities Act anymore unless you just want to do something so that there can be no public involvement, so all that this bill before us is attempting to do is to try to allow a little more public input into these decisions before they are done in the middle of the night or done in secrecy so that the public can't be involved.
You know, it is just a question of, are we going to have a government of, by and for the people, or are we going to have a government of, by and for the bureaucrats, because that is what it has become. And all this is doing is in some—in one, little, small way attempting to say that we don't want to have a government of, by and for the bureaucrats, we want to have a government of, by and for the people.
And to do the things that was done in regard to this Utah thing is—these are decisions that would come from arrogant elitists who think they know better how to run everybody's life, and they don't want ordinary citizens to be involved in these things, because they are not intelligent enough to really make the correct decisions.
And I have been shocked since I first learned about—that this type of thing would go on in this country. And I am really saddened that we have gotten to the point where the people involved in this don't want ordinary citizens to have a chance to say something about this, or some participation.
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And I yield back the balance of my time.
Mr. HANSEN. I thank the gentleman from Tennessee.
Mr. LESHY. Mr. Chairman——
Mr. HANSEN. The gentleman from New Mexico, Mr. Udall.
Mr. LESHY. Mr. Chairman, may I respond briefly?
Mr. HANSEN. Excuse me, Solicitor. Surely, if you would like to have a minute's response, go ahead.
Mr. LESHY. Thank you, Mr. Chairman. Three very quick points.
First of all, the Antiquities Act, as I said, only applies to Federal lands, so it does not bring—the President can't bring land, can't take over land, can't bring land into Federal ownership that is in private or State ownership. We can only designate what the taxpayers already own as national monuments.
Second, to the extent the briefing paper suggests that nobody knew about this, including the governor of the delegation, until 2 a.m. on the morning of the day the monument was proclaimed, the briefing paper is flat wrong. I think everybody involved in the process knows that there was a period of several days of discussions and intense consultations in the days leading up to the establishment of the national monument.
Third, and last, this process, the President acted to culminate a very long decade's process of intense public debate about the future of this area. He exhibited decisive leadership, and I think his leadership and his proclamation will stand the test of time. It has already had enormous benefits for the people of Utah.
With the help of the chairman of this Subcommittee, we last year fulfilled an important promise the President made in creating the national monument, which was to give the people of Utah and the school children of Utah fair value for the State in-holdings that were found in this area.
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And we engineered with the help of the Chairman and others a massive land trade where the State of Utah got millions and millions of dollars' worth of value for those State in-holdings. That exchange would never have taken place without the creation of the monument.
And there have been other benefits as well.
Thank you very much.
Mr. HANSEN. Thank you. Just let me quickly clarify another point.
Mr. Duncan, there were hundreds and thousands of acres of schools, trust lands, it may be a gray area whether or not—who owns that, but the Constitution gives it to the State of Utah. Mr. Leshy is correct, we traded that.
Would we have been able to do it without the monument? I think we would. We go back to one of the fine Democratic governors, Scott Matheson, who tried to do that all the way back in the 1970s. Scott was a visionary and ahead of his time.
The gentleman from New Mexico, Mr. Udall.
Mr. Tom UDALL OF NEW MEXICO. Thank you very much, Mr. Chairman. I am looking at the second page of the bill, down at the bottom, and then at the top of the third page, Mr. Leshy, and in general, it says here, ''In general, the President, subject to subsections (b) and (c),'' and ''may''; and then at the top of the next page it talks about ''Compliance With National Environmental Policy Act of 1969.''
And there is a section there that looks to me, under subsection (A) and (B), ''an action by an agency of the Federal Government, a major Federal agency significantly affecting the quality of human life.''
It looks to me like these two sections clearly put the President under NEPA.
I mean, do you disagree with that?
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Mr. LESHY. No.
Mr. Chairman, Congressman Udall, I think you are exactly right, this bill makes basically presidential action under the Antiquities Act subject to NEPA. Yes, the Secretary of the Interior, not the President, prepares the environmental impact statement; but the President can't act, can't take action under the Antiquities Act without those processes being followed.
So he is basically made subject to those processes, and that is unprecedented, I believe.
Mr. Tom UDALL OF NEW MEXICO. Thank you very much. The other point, it has been said in some of the background and things that we have used the Antiquities Act to thwart public input into Federal land management, not to protect land.
Well, my memory is seeing the process that President Carter followed as far as public input, that this was a very extensive process. I mean, President Carter's action in invoking the Antiquities Act came after a very long process starting under President Nixon that included extensive studies of areas in Alaska that Interior Secretary Rogers Morton withdrew pursuant to 17(d)(2) of the Alaska Native Land Claims Settlement Act.
The Carter proclamations also came after subcommittee hearings by Morris Udall. And the subcommittee in Washington, Atlanta, Chicago, Denver, Seattle, Juneau, Sitka, Ketchikan, Anchorage, Fairbanks and a number of other small town meeting-type hearings in Alaskan villages.
The Carter proclamations also came after the House of Representatives that passed the Alaska lands bill by an overwhelming vote of 300 to maybe 31, 32 opposed, and the bill had been reported favorably by the Senate Committee on Energy and Natural Resources.
Also the chairman of the Interior Committee here in the House, and the chairman of the relevant subcommittee, Mr. Seiberling, wrote the President and asked him to act.
So I can't see any more of a record that is out there that evidences public input than what was done on Alaska with respect to the Congress. I don't know if you have any comments on that.
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Mr. LESHY. Mr. Chairman, Congressman Udall, I agree wholeheartedly, and I think there is a good parallel between the experience you described with President Carter and what President Clinton did in southern Utah, because there, too, there was a very vigorous public debate over the future of this area. There were bills pending in Congress to create some wilderness and to release other lands from wilderness protections pending at this time when the President acted. There have been many years of history and public hearings and debates on these issue.
I should also point out that Congress has come back to the Antiquities Act after NEPA passed when it reviewed public land law generally. When Congress passed FLPMA in 1976, 6 years after NEPA passed, Congress discussed whether or not the FLPMA process should somehow overtake or result in the repeal of the Antiquities Act; and Congress very clearly preserved the President's authority under the Antiquities Act when Congress enacted FLPMA.
Similarly, 2 years after President Carter created monuments in Alaska, an unprecedented scale, Congress came back to that whole issue and passed the ANILCA and there too had an opportunity to look at how the Antiquities Act and the exercise of authority under that Act had worked, and left it alone basically.
Mr. Tom UDALL OF NEW MEXICO. Thank you, Mr. Leshy, for clarifying the record. I mean, there were clearly two very extensive public processes going on under the Clinton Administration and under the Carter Administration with regard to these kinds of activities. Thank you.
Mr. HANSEN. Mr. Udall, let me point out that under President Carter, you are absolutely right. But also what happened under President Carter is the Interior Department prepared NEPA documents. Under the Grand Staircase there was no such thing, no one was made aware of it. In fact, we would like to give you the documents that we subpoenaed from the White House and from Interior where they went out of their way to say, we have to keep this thing quiet.
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The governor of the State was not even made aware of it till 2 a.m. On the morning that it happened. The only way—what Mr. Leshy said, the administration, we knew about it, we knew there was—the Washington Post said we were leaking a story. In fact, my administrative assistant, Nancy Blochinger, called up Kathleen McGinty the day before and pointedly asked the question, We are hearing about this proposed monument in Utah, is there any truth in this? And she said, We heard the same rumor, but there is no truth in it.
Now, then, we go back and see the correspondence between the White House, entirely different situation if I may say so, but I agree, your relatives did a very fine job. I don't argue with that, but I surely think there is a tremendous difference between the two.
Thank you very much for allowing me to have that little input.
The gentleman from Pennsylvania, Mr. Sherwood.
Mr. SHERWOOD. Thank you, Mr. Chairman.
What bothers me here a little bit is that if any private citizen or any township supervisor or any county official or any State official wants to change the use of land in this country in a major way, we have very extensive laws that we follow; and what you have told me here today is that the President designated this monument sort of in the dark of night without following those procedures.
And I think a basic tenet of any democracy is the sunshine law; we have in Pennsylvania a sunshine law that goes right down to our school boards or anything else. And I don't understand why you are concerned about Chairman Hansen's bill, which basically just asks that the public be involved, that we let the sunshine in.
When the Governor of Utah learns about 1.8 million acres of land in his own State at 2 o'clock in the morning before it happens that has to, it seems to me—and I wasn't paying any attention at that time, but I listened to my chairman and the rest of these folks that have subpoenaed documents, and you are saying that there was input.
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We have got a base dichotomy here that I don't understand, and I frankly need you to help me understand why you are here protesting.
Mr. LESHY. Mr. Chairman, Congressman, first of all, let me say once again, because it keeps being repeated and it is not true, this proposed action was generally known well before 2 a.m. on the morning it was taken. The President, I think, made the final decision to go ahead, 2 a.m. in the morning it was taken, and I assume probably talked to Governor Leavitt about it. But he had talked to Governor Leavitt, and the chief of staff in the White House had talked to Governor Leavitt, I believe Secretary Babbitt had talked to Governor Leavitt.
I had personally been in meetings with the Utah delegation. Days and days before 2 a.m. on the morning of the proclamation, it was generally known and vigorously debated that this was under consideration, so it was not, you know, that last-moment surprise. There was a very vigorous debate in the days leading up to the proclamation as to whether or not the President should do it or not.
Second, as I said before, H.R. 1487 doesn't simply sort of say, ''Let the public know.'' It has an extremely elaborate set of processes that goes well beyond what NEPA now requires for ordinary Federal action before the President can act.
And it, for the first time, I believe, in history, applies the National Environmental Policy Act to the President himself in making discretionary decisions. That is something that Congress has not imposed on itself. Congress has never imposed that on the President before; it has been well understood for the last 29 years that NEPA does not apply to Presidential action. And that is a very significant step, I think, to take.
Third, these proclamations, if you look throughout history, do involve usually some form of consultation; and again, it is usually the President acting after a very extensive and vigorous public debate. In the case of the Grand Staircase, 25 or 30 years of public debate about whether and the extent to which this particular area should be protected and how it should be managed, the Federal lands in these areas.
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So we think there is really nothing broken here to fix, and that H.R. 1487's remedy goes way beyond what existing law would require and creates a whole host of problems and, frankly, I think would undermine the implementation of one of the most successful laws that we have.
If you just look around at the areas that have been protected under the Antiquities Act, it is an amazing collection of areas. I don't know of anybody who would point to the Grand Canyon or Acadia National Park or Olympic National Park and say, ''That was a mistake, protection of that area was a mistake.'' To the contrary, I think every one of those areas that was first protected by a monument is an amazing success story, and we ought to preserve that authority and that record.
Mr. SHERWOOD. Well, I would have to agree that those previous actions have probably been good, but I don't understand why you think that the President should be able to act without the same adherence to the law that the rest of the world be asked to abide with.
These public lands belong to everyone, not just the President. At a recent hearing with the Senate Energy Committee, Secretary Babbitt denied consideration using the Antiquities Act on the coastal plane of the ANWR, and I think you were staffing the Secretary at that hearing, were you not?
Mr. LESHY. Probably. I don't recall specifically.
Mr. SHERWOOD. Do you agree with his answer that the Antiquities Act would not be used?
Mr. LESHY. As far as I know. I obviously can't speak for the President, but as far as I know, certainly the Interior Department, there are no discussions or deliberations going on about using the Antiquities Act in the Arctic refuge.
Mr. SHERWOOD. Thank you very much.
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Mr. HANSEN. Again, let me just say—I don't mean to take you on, Mr. Leshy, but you didn't have a conversation with me 2 weeks before. You didn't have a conversation with Orrin Hatch. You didn't have a conversation with Bennett. You didn't have a conversation with Enid Greene, nor did you have a conversation with Bill Orton.
We have discussed wilderness, and if we want to take your words apart, protection of the ground has been discussed since either you or I were born. But—and we can accept that from the days of Brigham Young. But no one had a conversation with us, this delegation, regarding this antiquities law; that just happens to be a fact.
Do you want to respond to that?
Mr. LESHY. Yes, Mr. Chairman. I have a very distinct memory of a Saturday morning meeting, my guess is, about 10 days or so before the President acted on September 1st in Secretary Babbitt's conference room. I am not sure you were there——
Mr. HANSEN. I was not there.
Mr. LESHY. [continuing] but many members. Senator Hatch was there, Senator Bennett was there, at least a couple of House Members were there. And we had—and Secretary Babbitt chaired the meeting. I think Katie McGinty was there, I was there, two or three other staff members. We had a 2-hour, I think, discussion talking about what was being considered and the potential issues with it and an intense meeting. And there was a lot of full and frank discussion, as the diplomats would put it.
Soon after that, I think 2 or 3 days later, I led a number of Interior Department people up to, I believe it was Senator Bennett's office, where I think the staff from most of the delegation members were present. We had another 2- or 3-hour discussion about the Grand Staircase, the proposed proclamation, the potential issues with it.
As I said, we had talked at both of these meetings about who is going to manage this monument if the President decides to go ahead: Is it going to be the Park Service, is it going to be the BLM, or who? What are you going to say in the proclamation about water rights, if anything? What are you going to say in the proclamation about grazing? What are you going to be saying about hunting? What are you going to say about fishing, et cetera?
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And each one of those issues is addressed in the proclamation. And frankly, I believe it is addressed, generally speaking, to the satisfaction of the interests in Utah, that is, we're not claiming a Federal water right, grazing is protected, hunting and fishing is preserved, the Bureau of Land Management manages the monument, not the Park Service, which was something the Governor, I believe, and members of the delegation were very interested in.
All of that discussion took place in the days leading up to the proclamation.
Mr. HANSEN. I don't want to get into a kicking match with you, but the recollection of the Senators as they explained it to me is a little bit different. And, of course, being the chairman of the Committee, I was omitted from these things, and I don't mean to let my ego show, it doesn't really bother me much; either way you could do it anyhow.
That is not the issue before us today; the issue before us today happens to be public input. Public input is the whole issue before us.
The gentleman from New York, Mr. Crowley. No comments.
The gentleman from Utah, Mr. Cannon. Thank you.
Mr. CANNON. Thank you, Mr. Chairman.
My recollection of that meeting that you had is actually just the 3 days before, just the weekend prior to; could that be possible?
Mr. LESHY. Mr. Cannon, I'm sorry, I don't remember exactly. I know it was days before, because I know at least a couple of days after that—that was a Saturday morning, I have a very distinct recollection of that.
Mr. CANNON. You probably wouldn't quarrel about a week except you quadrupled or tripled the amount of time available for notice if it was 10 days or 3 days. My recollection is it was just the weekend before the designation.
Let me just point out to the gentleman from Pennsylvania that the designation was not done in the dark of night, that was—that was the hearings that happened in the dark of night, 2 o'clock in the morning of the designation.
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Now, Mr. Leshy, you said that the Antiquities Act can only designate what the Federal Government already owns, that is Federal lands, and that statement is true to a large degree.
But isn't it true that that goes—that is probably too broad a statement, because there are many other property rights that are involved in land including, for instance, roads?
Mr. LESHY. I am sorry, including what, I didn't hear.
Mr. CANNON. For instance roads.
Mr. LESHY. Oh, well, yes, Federal land—the Antiquities Act only authorizes the President to set aside, proclaim monuments on Federal lands. Sometimes those Federal lands are encumbered with mineral leases, rights and things like that.
Mr. CANNON. We have a package of property rights and those are embodied even in Federal law, and not to be disrespected. The Department of the Interior is now suing Garfield County for civil damage to a road called the Burr Trail. Are you familiar with that?
Mr. LESHY. Generally, yes.
Mr. CANNON. Do you know particularly how many residents there are in Garfield County?
Mr. LESHY. No, not exactly, a few thousand.
Mr. CANNON. A few thousand, 5,000 or more; this would not surprise you, that ballpark?
Mr. LESHY. Yes, that sounds right.
Mr. CANNON. How much do you expect—by the way Garfield county has about 98 percent of its land base is federally owned. What do you think the cost of that lawsuit has been to the county?
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Mr. LESHY. I have no idea. It has been——
Mr. CANNON. Would a couple of hundred thousand dollars be in the ballpark?
Mr. LESHY. I really—I couldn't say. It has been a difficult piece of litigation, I think, for all concerned. We have tried repeatedly to settle it, and Garfield County has tried to settle it over the years.
Mr. CANNON. I am not actually quite so much interested in that as the process that the Department has gone through under your direction and the direction of the President and Vice President. The fact is it would not surprise you if it cost in the ballpark of a couple hundred thousand dollars for that county to litigate that road?
Mr. LESHY. I really can't say. I don't know.
Mr. CANNON. Would that be way high?
Mr. LESHY. I'm sorry.
Mr. CANNON. Would $200,000 be way high for that kind of litigation?
Mr. LESHY. I don't know. I have no idea what they are paying their lawyers. I don't know.
Mr. CANNON. But you practiced law.
Mr. LESHY. I don't know how many motions have been filed, et cetera. I really can't say, I can't speculate.
Mr. CANNON. Do you think it is important that a tiny county with 5,000 people spend something in the ballpark of $200,000 to defend an action that you bring against them?
Mr. LESHY. I can only tell you that we have been very interested for years in settling this litigation. We think we have put on the table many reasonable proposals to settle it. We have had the governor involved in trying to broker a settlement, we called in an inside——
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Mr. CANNON. The amount after issue is $7,000 in damage to the road that the government has claimed. What has been the problem of settling it? It is an etiological problem, is it not.
Mr. LESHY. I think to some extent it is an argument about whether or not the county has a free hand to take actions to improve or enlarge the road and the right-of-way without consent, inside the national park.
Mr. CANNON. Without the consent of the Department of Interior.
Mr. LESHY. That is correct.
Mr. CANNON. And it really comes down to the nature the ownership of those roads, whether they are owned by the State or whether they are controlled by the Department of the Interior? Is that not what you are doing in Garfield County?
Mr. LESHY. No, not exactly, Mr. Chairman, Congressman Cannon. What the—the issue is not whether the county has a valid right-of-way in the Burr Trail. The issue—that right-of-way goes through the heart of Capitol Reef National Park and the issue is what is the right of the Park Service that owns the underlying title and the borders of that right-of-way to control what happens in terms of enlarging that right-of-way. It is a regular—it is an issue of regulatory control not ownership.
Mr. CANNON. The issue is not enlarging the right-of-way, but whether that right-of-way exists because you are not talking about enlarging a right-of-way in that particular case.
But let me just congratulate you on keeping a straight face while saying there is a—there was consultation, albeit brief, on the reference to the 2 a.m. phone call between the governor and the President, where I think many of the issues which actually were considered were put together in a handwritten form and faxed to the President and not exactly what I would call a public input. That was, by the way, on the morning of the—2 a.m. In the morning on the morning of the designation.
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Mr. LESHY. Mr. Chairman, if I can just add a footnote to that, I believe that Governor Leavitt had an extensive conversation, I can't recall if it was telephone or in person, with then Chief of Staff Panetta, days before that about——
Mr. CANNON. My time is about to expire.
Mr. LESHY. About Grand Staircase.
Mr. CANNON. I understand. I am congratulating you for the straight face you are putting on this. You deserve that. I want to point out that you did send a letter to Professor Wilkinson, you did, telling him to keep this secret?
Now, I think this comes down to just a difference in view of governance between you and this administration, this President, this Vice President, and what I view and I think many Americans view as the proper rule of governance. I don't think that it is the role of Congress to override a President who pushes the envelope with a two-thirds majority of the Congress.
I don't think that is how it ought to be done. I don't think even when a President does truly bone headed things that the responsibility ought to be on Congress not to have more than a third of its members so etiologically bound to the President that you can't override what he does.
I believe there is a rule of law that requires a President to be considerate of the effects of what he does as opposed to looking at the law and seeing where the edges and however he can push that edge to advance his etiological interests and those of his Vice President and his narrow base and group of constituents.
Thank you. I yield back, Mr. Chairman.
Mr. HANSEN. Thank you. In defense, it wasn't totally in public. The environmental community was made aware of this in great detail, and that is why they were there, Mr. Redford and a few others. Some of the citizens of Utah didn't quite have that benefit, however.
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The gentleman from Minnesota.
Mr. VENTO. Well, thanks, Mr. Chairman, I was—I didn't get to the Burr Trail today. I traveled it and obviously it is passable on a dry day. I don't know if I want to go across that clay but it would involve a lot of modification to make it usable year-round, and transportation in any of these remote areas, besides water, one of the big issues in terms of the community like the county of Garfield. But, you know, the unilateral paving of that, trying to improve it obviously is an action within the park, and it has to be addressed.
I am sorry to hear that it has persisted as a case, because clearly Congress did not respond to that during our work on it with then Senator Garn and others.
Mr. Leshy, on the 1978 Act, I don't know how much you know about the NEPA process, but the NEPA process wasn't aimed at the monument designation, was it; it was simply a NEPA process that had been developed generally in terms of the D2 lands?
Mr. LESHY. That is exactly right. There were environmental documents in preparation under NEPA at the time Carter, President Carter, acted, but they were a separate process and that goes back, as you said, Congressman, to the—I guess it was the native claims action, section D(2) that created the process for studying the future of these Federal lands in Alaska, and those—Congress put a withdrawal on those lands that expired in 1978 by terms of law.
And it was the continuation of that proposed withdrawal that was subject to NEPA and then NEPA documents were prepared. The President created the national monument with that in the record, but it was not NEPA on the monument creation.
Mr. VENTO. And I think that my institutional memory here, that in fact President Carter at that time did direct Secretary Andrus to look at other actions that the Secretary may take in terms of exploring all the options to protect the land and of course the Secretary's actions would have been subject to the NEPA; is that correct, Mr. Leshy?
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Mr. LESHY. Well, the President had asked the Secretary to give him Antiquities Act recommendations among others. And that issue was litigated actually, because after the President created the monuments in Alaska action, the State brought a lawsuit saying the President should have been subject to NEPA and the Secretary should have been subject to NEPA, and the court basically threw out all of those challenges and, among other things, said that there could be a constitutional problem, because the President's entitled under the Constitution to ask for the advice of his subordinates. And if his—and it is certainly appropriate in some circumstances that that be a confidential kind of advice, and if the Congress is going to come in and interfere with that, it could raise constitutional issues.
Mr. VENTO. But the Secretary's action generally in terms of some land use designations, whether it is ACEC, or other types of designations, would be subject to NEPA, the Secretary's action?
Mr. LESHY. Yes, absolutely.
Mr. VENTO. So there may have been some expl