Thursday, March 27, 2014

The House of Representatives wants to strip the President of the United States of his authority under the Antiquities Act to designate national monuments. The House feels that the President should not have the ability to act quickly to protect threatened land. Rather, those Republicans want to create an expensive, time-consuming, red-tape snarled bureaucracy to ensure that "local input" occurs. (By that, they mean greedy businesses who can stop or slow designation of a monument until it's so damaged it's not worth protecting any more.)

Why is the House so gol-darned interested in this?

The Wilderness Act of 1964 established a definition of "wilderness" in the United States, and sets guidelines the Dept. of the Interior must use when asking Congress to designate an area a wilderness. Under these rules, set-aside land must be managed as wilderness until Congress acts. Interior has set aside millions of acres as wilderness, even though Congress DOES NOT act. Congress never acts, because that's politically fraught. But Congress knew that by tossing the decision onto "faceless bureaucrats", they could get past the political minefield and allow tens of millions of acres of land to be designated "wilderness". (Congress has passed just a single wilderness bill since 2009.)

But what about land that is highly disturbed by roads, development, etc., and yet needs protecting? Under the Antiquities Act of 1906, the President has the authority to designate "national monuments" -- and if Congress doens't like it, they can undo his work by passing legislation. The Antiquities Act was passed three decades before the Administrative Procedure Act (APA). The APA requires that agencies issue draft regulations, hold hearing, solicit public comment, respond to all comments received (no matter how daft), issue revised regulations (if necessary), solict input again, and issue final rules -- all within a specified time-frame. The APA's goal is to create a formal mechanism for soliciting public input, and to ensure that no regulations, plans, or rules are imposed without adequate public notice. So how do monuments get created under the Antiquities Act?

All presidents have protected public land under the Antiquities Act. Ronald Reagan established four totalling 229,537.85 acres. George W. Bush established two totalling 63,032 acres. Bill Clinton established 20 national monuments totalling 5,817,683.08 acres. George H.W. Bush established six national monuments totalling 210,153,793.35 acres.

Ah, but the Tea Baggers don't like Obama. He's designated 10 national monuments totalling 281,685.65 acres. (Most of it comes from the 242,455-acre Río Grande del Norte National Monument in New Mexico.)
So now the House wants to STRIP the president of his unilateral authoirty to designate national monuments because Obama is "abusing" it.
Court challenges to national monument creation have been numerous, but none have succeeded. Only twice has Congress limited the President’s authority by requiring congressional authorization: In 1950, Congress expressly forbade the president from designating national monuments in Wyoming without its express approval, and in 1978 it limited the size of national monuments in Alaska to under 5,000 acres unless Congress gave its explicit congressional approval. Congress has abolished some monuments outright and converted others into different protective designations, such as national parks. (Almost half the national parks were first designated as national monuments.)

The Antiquities Act does not require a reason for establishment of a national monument, merely requiring that the land have "cultural or scientific interest". However, it does required that the monument be "the smallest area compatible with proper care and management". The lack of procedures was done on purpose: Native American, historic, and scientific sites (such as fossil beds) were being looted at will by commercial enterprises. The Antiquities Act was designed to allow the President to take prompt action to protect areas that are vulnerable to looting, vandalism, development, and other permanent changes.

Generally speaking, in order to meet the "smallest area" rule specified in the Act, the White House consults with local communities, members of Congress, environmental activists, recreational users, economic interests, and a wide range of other involved parties to ensure that the monument is adequately protected but that the "smallest area" rule is met. If push comes to shove, however, economic and development interests take a back seat. (To date, no presidential declaration of a monument has converted private property to federal property.) Many monuments -- like the Grand Canyon and Grand Teton -- were considered highly controversial, but today are widely accepted and beloved.

* * * * * * *

What's the brouhaha all about? In 2010, a White House aide leaked a draft report prepared for President Obama in which 14 new national monuments across the West would be created.
Republicans from the West immediately declared that the Antiquites Act was intended to protect "areas less than a few hundred acres" (Congress explicitly rejected that limitation when it enacted the legislation), and four bills were introduced to limit the president's authority under the Antiquities Act. None of them passed, and they expired at the end of the 111th Congress.

In 2012, EIGHT bills were introduced in the House to limit the President's authority under the Antiquities Act. None of them passed, and they all expired at the end of the 112th Congress.

Now the House is at it again.....................

Although it's amazing that the House Tea Baggers -- so usually opposed to regulatory action -- want to create a new bureaucracy that would impose a long, time-consuming, expensive process for creating national monuments.

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