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05/23/2017

High Seas and Misdirection: The Antiquities Act is not Among the Statutory Schemes that Govern U.S. Internal Waters, Oceans, and Coasts (Part 2)

Yesterday we provided a synopsis of certain statutory and regulatory schemes that govern America’s coastal and internal waters and reviewed the definitions of the jurisdictional zones that apply to United States’ waters. Today we continue our discussion of how the various schemes apply in the jurisdictional zones.

SOURCE: U.S. Commission on Ocean Policy, 2004.

A full description of all programs that touch on the jurisdictional waters of the United States and the activities that take place thereon is beyond the scope of this analysis. However, the following programs should inform—and in some cases are legally necessary to—any change in status relating to United States’ coastal and internal waters.

Land and Water Management Laws

The Coastal Zone Management Act (“CZMA”) was enacted to “preserve, protect, develop, and where possible, to restore or enhance, the resources of the nation’s coastal zone for this and succeeding generations;” with the purpose, “to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values as well as the needs for compatible economic development.”

The CZMA is administered by the National Oceanic and Atmospheric Administration (“NOAA”) and thus falls under the jurisdiction of the Department of Commerce. Under the CZMA, states are incentivized to develop coastal management programs with the assurance that, with some exceptions, federal actions will be constrained to those that are consistent with state-developed and federally-approved coastal management programs (the “federal consistency” provision). More information about the CZMA may be found on NOAA’s website, and individual state coastal management programs may be accessed here. State coastal management programs can be quite extensive, addressing such diverse issues as seafloor and habitat mapping, flooding and erosion, lake access, education, beach management, seismic mapping, and protecting natural habitats and wildlife.

With the exception of Alaska, all 35 coastal and Great Lakes states and territories participate in the National Coastal Zone Management Program.

The Clean Water Act (“CWA”) was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s Waters.” The goals of the CWA were to make all waters safe for fish and people, and to eliminate the discharge of pollutants into the waters of the United States.[1] Amendments to the Act provide for estuary management and protection, with special programs authorized for the Chesapeake Bay, the Great Lakes, and Long Island Sound. The CWA is administered primarily by the Environmental Protection Agency (“EPA”), which has established a similar program for the Gulf of Mexico.[2] States that have a federally-approved coastal management program must develop and submit a coastal nonpoint[3] pollution control plan to NOAA and the EPA for approval, identifying land uses that contribute to coastal water quality degradation and critical coastal areas.[4]

The Submerged Lands Act (“SLA”) established in the states: “(1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States.”[5] Natural resources, for purposes of the SLA, include oil, gas, and other minerals; and fish, shellfish, sponges, kelp, and other marine life; but do not include the use of water for the production of power.[6]

The Outer Continental Shelf Lands Act (“OCSLA”) established federal jurisdiction over the submerged lands “lying seaward and outside of” lands subject to the Submerged Lands Act extending “of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” The Act purported to extend limited-purpose constitutional and political jurisdiction over the area:

The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.[7]

Under the Act, the Secretary of the Interior is authorized to develop oil, gas, and other mineral deposits via permitting and leasing; and is also charged with suspending or prohibiting such activity “if there is a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life), to property, to any mineral deposits (in areas leased or not leased), or to the marine, coastal, or human environment.” Activity under this Act must be coordinated with the CZMA and requires the Secretary to coordinate with other agencies and the affected states.[8]

Fishery and Species Management Laws

In 1976, the Fishery Conversation and Management Act, now the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), extended exclusive U.S. fishery jurisdiction to 200 miles offshore, covering the area that later became the EEZ.[9] The Magnuson-Stevens Act established eight regional fishery management councils.

The Regional Councils are composed of members representing commercial and recreational fishing, environmental, and academic interests, as well as state and federal government. Regional Councils are required to:

  • Develop and amend Fishery Management Plans
  • Convene committees and advisory panels and conduct public meetings
  • Develop research priorities in conjunction with a Scientific and Statistical Committee
  • Select fishery management options
  • Set annual catch limits based on best available science
  • Develop and implement rebuilding plans

The Magnuson-Stevens Act has been amended by the Sustainable Fisheries Act of 1996 and the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which were intended to strengthen sustainable fish stock requirements; promote market-based management strategies, such as catch shares; strengthen the role of science through peer review; and enhance international fisheries sustainability. Catch shares are exclusive allocations of fishing rights that are provided by the fishery management council and are transferable in accordance with the policy and criteria established by the controlling fishery management council.

Once a Fishery Management Plan has been written to include the ten national standards and research about the fishery, it must be submitted to the Secretary of Commerce for approval.[10] The Secretary also has independent authority to prepare a Fishery Management Plan for a region.[11]

The focus of the Magnuson-Stevens Act is on maintaining sustainable fisheries. Accordingly, the Magnuson-Stevens Fishery Act is administered by the National Marine Fisheries Service within the Department of Commerce. Additional information on the Magnuson-Stevens Act may be found here.

The Marine Mammal Protection Act (“MMPA”) differs from the Magnuson-Stevens Act in that it focuses on the health of marine mammal populations rather than on fishing yield. Subject to a few exceptions, the MMPA places a moratorium on the taking and importation of marine mammals and marine mammal products.[12] The MMPA is administered by two agencies—the National Marine Fisheries Service and the U.S. Fish and Wildlife Service within the Department of the Interior. The MMPA does not impose management responsibility on states or localities; however, a state may enter into a cooperative agreement for delegation of the administration and enforcement of the MMPA.[13]

The Endangered Species Act (“ESA”) also focuses on conservation of species and, like the MMPA, is administered by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service.[14] The ESA does not mandate any permanent management structure that involves the states. However, Section 6 of the ESA does provide a mechanism for cooperation between the Fisheries Service and States in which the Fisheries Service is authorized to enter into agreements with any state that establishes and maintains an “adequate and active” program for the conservation of endangered and threatened species. Once a State enters into such an agreement, the Fisheries Service is authorized to assist in, and provide Federal funding for, implementation of the State’s conservation program.

The National Marine Fisheries Service also has obligations under the Fish and Wildlife Coordination Act and National Environmental Policy Act to consult, coordinate, and implement regulations regarding essential fish habitat with other federal agencies.[15]

These statutory frameworks are intended to work together in managing and protecting the coastal waters of the United States, in light of the interests of the coastal states, the preservation of marine life, natural resource development, and the interests of stakeholders such as fishermen, scientists, visitors, and foreign entities engaged in traditional uses of the seas (such as the right of safe passage). To achieve that purpose, coordination and accommodation is necessary to develop the comprehensive management plans required by, for example, the Coastal Zone Management Act and the Magnuson-Stevens Fishery Conservation and Management Act. Notably, this extensive coordination and balancing of local, federal, and international interests does not contemplate, and can be disrupted by, the sudden withdrawal of territory from the statutory schemes under the Antiquities Act; nor do these Acts include specific provisions for addressing lost rights; displaced scientific, commercial, or environmental planning; or conflict arising from a sudden change in jurisdiction between agencies.

Our series will continue next week with an update on the status of President Trump’s April 26 Antiquities Act Executive Order.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

[1] 33 U.S.C. §1251.

[2] 40 C.F.R. 230.

[3] Nonpoint pollution refers to runoff from rain or snow that picks up and carries away natural and human-made pollutants into coastal and internal waters

[4] 16 U.S.C. §1455b.

[5] 43 U.S.C. §§1311.

[6] 43 U.S.C. §1301.

[7] 43 U.S.C. §1333(a).

[8] 43 U.S.C. §1334.

[9] 16 U.S.C. § 1801-1882.

[10] 16 U.S.C. § 1854(a).

[11] 16 U.S.C. § 1854(c).

[12] 16 U.S.C. § 1371.

[13] 16 U.S.C. §1379(a).

[14] 16 U.S.C § 1531 et seq.

[15] Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, at 46.

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05/22/2017

High Seas and Misdirection: The Antiquities Act is not Among the Statutory Schemes that Govern U.S. Internal Waters, Oceans, and Coasts (Part 1)

We began our series of blog posts by examining the history, purpose, and limitations of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) (here and here), followed by a discussion of how the Act fits within the variety of other frameworks for protecting and using public lands (here and here). This week we explore the variety of statutory frameworks and federal government programs that are used to manage the jurisdictional waters of the United States.

There are numerous programs and statutory frameworks that relate to the management and conservation of water, water-based activities, natural resources, and living marine resources within the United States’ internal and the coastal waters, including: the Coastal Zone Management Act (“CZMA”); the Magnuson-Stevens Fishery Act (“Magnuson-Stevens”); the Marine Mammal Protection Act (“MMPA”); the Endangered Species Act (“ESA”); the Clean Water Act (“CWA”); the Submerged Lands Act (“SLA”); and the Outer Continental Shelf Lands Act (“OCSLA”).[1] The Antiquities Act of 1906 has not traditionally played a role within this collection for reasons that will be explored in a later post.

The comprehensive statutory and regulatory schemes governing America’s coastal and internal waters often turn on exacting definitions of jurisdictional zones that apply to those waters, a matter complicated by the fact that the zones sometimes overlap—for example, the Contiguous Zone is wholly contained within the Exclusive Economic Zone (“EEZ”). Before examining the major programs that apply to United States’ coastal and internal waters, an overview of these jurisdictional zones is in order.

The jurisdictional zones, which include varying degrees of sovereignty, are measured relative to the baseline, which, in the United States, is defined as the low-water line along the coast as marked on the NOAA nautical charts in accordance with the articles of the Law of the Sea. Bodies of water that are inland from the baseline, such as bays, estuaries, rivers, and lakes, are considered internal waters and are subject to national sovereignty.

SOURCE: National Oceanographic and Atmospheric Administration (“NOAA”)

The zone closest to shore is the Territorial Sea, which measures from 0 to 12 nautical miles from the baseline. Within its territorial sea, the United States has sovereignty over the air space, water column, seabed, and subsoil.[2] Under the Submerged Lands Act of 1953, within the United States’ territorial sea, most coastal states have jurisdiction over the coast and the submerged lands and waters extending up to 3 nautical miles from their coastlines. Texas, Puerto Rico, and the Gulf Coast side of Florida differ from this standard, having jurisdiction over the submerged lands and waters extending 9 nautical miles from their coastlines.[3]

Generally, land above the mean hightide line is held in private ownership; while the land below the hightide line, including the tidewaters, is held in public trust by the state (although this varies by state). The federal government has jurisdiction over the balance of the Territorial Sea (beyond the 3 or 9-mile area), in addition to limited authority within the state’s jurisdictional waters. Under the SLA, the federal government has the right, authority, and jurisdiction to regulate commerce, navigation, power generation (from water), national defense, and international affairs throughout the state waters.[4]

International law recognizes a Contiguous Zone that stretches from 12 to 24 nautical miles from the baseline.[5] Within the contiguous zone the United States can enforce its customs, fiscal, immigration, and sanitary laws against foreign flag vessels.

The EEZ extends from 12 to 200 nautical miles from baseline.[6] Within the EEZ, the United States has sovereign rights for the purposes of exploring, exploiting, conserving, and managing the natural resources, both living and non-living, of the ocean waters, the seabed, and subsoil, and with regard to other economic or explorative activities, such as production of energy (wind, water, etc.), as well as jurisdiction over artificial islands or other structures and protection and preservation of the marine environment. President Reagan’s Proclamation of the EEZ stated that, “the Exclusive Economic Zone remains an area beyond the territory and territorial seas of the United States in which all States enjoy the high seas freedoms of navigation, overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea.” The EEZ has thus not been incorporated into the territory of the United States.

The continental shelf, under international law (UNCLOS), generally refers to the seafloor and subsoil (not the water column) beyond the territorial sea to the outer edge of the continental margin (including the shelf, the slope, and the rise) up to 200 miles from the baseline. It is similar in lateral extent to the EEZ but does not include the water column.[7] The United States, however, is not a party to UNCLOS and has separately declared jurisdiction over the natural resources of the subsoil and seabed of the continental shelf via the Truman Proclamation, as well as the right to free and unimpeded navigation upon the waters above the continental shelf. The essence of the Truman Proclamation was codified in the Outer Continental Shelf Lands Act.

The high seas are the areas of ocean that are beyond national jurisdiction, including the water column. Traditional freedoms on the high seas that apply to all nations include freedom of: surface and submerged navigation; flight; fishing; laying of cables and pipelines; scientific research; and the construction of artificial islands (and other structures).

Tomorrow we will address a variety of federal statutory frameworks that are used to manage and protect the jurisdictional waters of the United States.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

[1] There are additional programs for protecting and using offshore federal waters, but the array is too extensive to cover here. Readers are directed to the Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, for a more comprehensive review.

[2] Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, at 5;  United Nations Convention on the Law of the Sea, Article 2 et seq. [hereinafter “UNCLOS”].

[3] See 43 U.S.C. § 1301(b).

[4] 43 U.S.C. §§1301(e), 1311(d), and 1314(e).

[5] Proclamation No. 7219, 64 Fed Reg. 48,701 (Sept. 8, 1999); see also UNCLOS Article 33.

[6] Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 14, 1983); see also UNCLOS Article 55 et seq.

[7] UNCLOS Article 76 et seq.

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05/16/2017

What is the Antiquities Act? Short Answer: Depends Who You Ask (Part 2)

We recently began our series of blog posts examining the history, purpose, and limitations of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”). Today we continue discussing how the Act fits within the variety of other frameworks for protecting and using public lands. So what is the Antiquities Act?

In contrast to the Act’s ambiguous status, as discussed yesterday, the land management plans that arise from statutory schemes, and which are managed by the administrative agencies, are both comprehensive and detailed. The United States federal government owns approximately 640 million acres of land.[1] Of that, just over 610 million acres, or 95% of federally owned lands, are under the control of one of the four main federal land management agencies: The Bureau of Land Management (“BLM”), the Fish and Wildlife Service, the National Park Service, or, the Forest Service. The first three of these agencies are part of the Department of Interior (“DOI”), while the last is part of the Department of Agriculture. Federal public lands are administered subject to “a myriad of individual agency mandates to manage particular lands and particular resources” overlapped by “general environmental statutes.”[2] In addition, these agencies hold full or co-management responsibilities for all the national monuments.

The map below shows the extent of federally held lands in the United States:

Source: U.S. Geological Survey

Established in 1905, the Forest Service is the oldest of the four major federal land management agencies, and the only one to officially predate the passage of the Antiquities Act. Its mission is “to sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.” The National Park Service followed over a decade later in 1916 and has a dual mission to preserve natural and cultural resources and provide such for the enjoyment of the public. The BLM, founded in 1946, is charged with the “stewardship of our public lands” and its management of such lands is “based upon the principles of multiple use and sustained yield of our Nation’s resources within the framework of environmental responsibility and scientific technology.” In 1966, Fish & Wildlife was the last of these agencies to be established and was tasked with “working with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people.”

Read together, the missions of these federal public lands management agencies are to work collaboratively with numerous stakeholders to conserve and protect the nation’s natural and cultural resources with an eye towards multiple use and sustainable processes, as well as public access. The Antiquities Act is at odds with these major public lands management agencies to the extent that designations are made at the sole discretion of the President without consideration of existing land management, historic preservation, and/or environmental protection plans, and without any need for public input.

In addition to the laws providing for historic preservation, there are no less than twenty federal laws providing for the designation, protection, and management of environmentally sensitive areas located on public lands.[3] Many of those laws, such as the Federal Land Policy and Management Act of 1976 (“FLPMA”) and the National Environmental Policy Act (“NEPA”), require both public input and environmental assessments as part of their planning processes, which the Antiquities Act does not.

Although NEPA and FLPMA may be included in the final management plans for individual monuments, there is no affirmative requirement under the Antiquities Act to provide for environmental protections on the declared parcels. Curiously, some proponents of using the Antiquities Act have supported this aspect of the law because, in their view, bypassing congressional consensus or environmental review is a quicker and easier way to gain land protections. This perceived expediency and ease of using the Antiquities Act is no replacement for open and transparent discourse, particularly considering existing comprehensive historic preservation, land management, and environmental statutory and regulatory schemes that have established mechanisms for public and congressional oversight and input.

Given the hybrid nature the Antiquities Act and the sometimes arbitrary nature of its use, any reforms, if made, should consider existing statutory and regulatory frameworks for historic preservation, public lands management, and environmental protection, as well as methods for strengthening transparency and government accountability in decision-making.

Our series will continue next week with an overview of the environmental and fishery management laws that relate to marine or other water-based federal territories.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

 

a[1] Cong. Research Serv., Federal Land Ownership: Overview and Data (Mar. 3, 2017).

[2] Marla Mansfield, A Primer of Public Land Law, 68 Wash. L. Rev. 801, 802 (1993).

[3] See e.g., Organic Act of 1897; Transfer Act of 1905; National Park Service Organic Act; Fish and Wildlife Act of 1956; Archaeological Recovery Act of 1960; Multiple-Use Sustained-Yield Act of 1960; Wilderness Act of 1964; National Wildlife Refuge System Administration Act of 1966; The National Historic Preservation Act; Wild and Scenic Rivers Act; National Trails System Act of 1968; Mining and Minerals Policy Act of 1970; Endangered Species Act of 1973; The Wild and Free-Roaming Horses and Burros Act of 1971; National Forest Management Act of 1977; Surface Mining Control and Reclamation Act of 1977; Archaeological Resources Protection Act of 1979; Fish and Wildlife Conservation Act of 1980; Federal Cave Resources Protection Act of 1988; National Landscape Conservation System.

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05/15/2017

What is the Antiquities Act? Short Answer: Depends Who You Ask (Part 1)

We recently began our series of blog posts examining the history, purpose, and limitations of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”). This week we discuss how the Act fits within the variety of other frameworks for protecting and using public lands. So what is the Antiquities Act?

As discussed in our previous posts (here and here), the Antiquities Act permits a President to proclaim “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments. To protect these objects, the President is also permitted to “reserve parcels of land as part of the national monument” subject to the limitation that “the parcels are confined to the smallest area compatible with proper care and management of the objects to be protected.[1]

These two limitations on designating monuments are designed to reinforce each other. First, the land parcels must encompass “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” This limitation makes sense considering the impetus for the law—the desire to protect Native American artifacts from being pillaged from federal lands and a method for quickly withdrawing such “land[s] from the public domain to preserve archaeological sites.”[2] Second, the parcel must be confined to the smallest area compatible with this purpose—a limitation that only makes sense relative to objects that require “proper care and management . . . to be protected.”

By recent standards, the first national monuments declared under the Antiquities Act were small. Thirty-seven of the first forty declared national monuments measured less than 100,000 acres in total; each monument averaged just 5,350 acres. And the other three? Two of those national monuments were incorporated into Grand Canyon National Park and the third, Mount Olympus, is now part of Olympic National Park.

Despite the modest size of the early national monuments, it only took a little over a decade before the first million-acre-plus monument was declared, Katmai National Monument, which was proclaimed to “preserve an area that is of significant importance in the study of volcanism.”[3]  Like the Grand Canyon and Mount Olympus designations before it, the Katmai declaration offers a small but helpful case study of large-scale monument declarations.

In 1912, Mount Novarupta in Alaska erupted, causing the most powerful volcanic eruption of the 20th century (nearly thirty times more powerful than Mount St. Helens) and devastating the surrounding landscape. In the following years, explorers from the National Geographic Society conducted several expeditions into the remote region. As described by one of the explorers, Robert Griggs, “[t]he whole valley as far as the eye could reach was full of hundreds, no thousands— literally, tens of thousands— of smokes curling up from its fissured floor.” After his exploration of the region, Griggs, along with the National Geographic Society, lead the campaign to get the Katmai region made into a national park.[4]

National Park Service officials, however, worried that the creation of a new national park in Alaska would burn what limited good will the agency had with Congress.[5] Park Service officials informed the Society that the only possible protection for Katmai would be through the Antiquities Act.[6] At the time, the National Geographic Society proponents were worried about whether an Antiquities Act declaration could cover such a large area but were convinced by Park Service officials that it was the preferred method.[7] The declared monument “embraced little more than the area of active volcanic peaks surrounding Mount Katmai, along with the Valley of Ten Thousand Smokes and most of Iliuk Arm,”—all identifiable features of established scientific value.[8] Nearly sixty years after its declaration, this large monument was established as a National Park and Preserve by Congress.

The growth in the size and scale of national monuments, and the routine re-designation of large-scale monuments as National Parks, highlight a key issue in the discussion regarding recent use, and possible reform, of the Antiquities Act—namely what type of law is it? Is it an historic preservation law? A public lands management law? An environmental law? Or a little of each? The answer depends on whom you ask. Each alternative has merits and flaws; and therein, we believe, lies the wellspring of debate over the proper purpose of the Antiquities Act.

For example, there is some basis for categorizing the Antiquities Act as an historic preservation program—or at least for arguing that Congress views it as such. In December 2014, Congress passed Pub. L. 113-287 enacting title 54, United States Code, “National Park Service and Related Programs”, as positive law. Although nothing in Pub. L. 113-287 “created new law or changed the meaning or effect of existing law,” it did recodify the Antiquities Act into “National Preservation Programs” alongside historic preservation laws. This arguably leads to a presumption that the Antiquities Act is an historic preservation law.

However, many groups argue that the Antiquities Act is an environmental law, particularly because of its recent stated use as a tool to curb climate change through prohibitions in proclamations barring new oil and gas leasing, and/or mining on monument lands.

In application, the Antiquities Act is also a public lands management law, as declarations of new national monuments have significant impacts on existing public lands management plans.[9]

We will continue discussing how the Act fits within the variety of other frameworks for protecting and using public lands tomorrow.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

 

[1] 54 U.S.C. § 320301 (2014).

[2] See Eric C. Rusnack, The Straw that Broke the Camel’s Back, 64 Ohio State Law Journal 669, 674 n.23 (2003).

[3] Nat’l Park Serv.,U.S. Presidents and Katmai, https://www.nps.gov/katm/blogs/u-s-presidents-and-katmai.htm (Feb. 14, 2016); Proclamation No. 1487, 83 Stat. 926 (Jan. 20, 1969).

[4] Frank B. Norris, Isolated Paradise: An Administrative History of the Katmai and Aniakchak National Park Units ch. 2 (1996).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See generally U.S. Dep’t of Ag., San Gabriel Mountains National Monument Management Plan DRAFT Environmental Assessment (Aug. 2016).

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05/4/2017

The Antiquities Act – a Primer

Last week we posted an analysis of the recent Executive Order regarding the  Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) and the letter we sent to Secretary Zinke highlighting concerns we have regarding recent designations of National Monuments. This week we begin a series of blog posts that examine the history of the Antiquities Act, how the Act fits within other frameworks for protecting and using public lands, how the Act has been misused by recent Presidents, and the ramifications of that misuse. We will conclude the series by proposing a variety of approaches for cabining use of the Antiquities Act to its proper sphere.

Today we begin with some background on the Antiquities Act: its purpose, history, and limitations.

The Antiquities Act provides that

The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.[1]

This version of the statute was recodified in 2014, but is nearly identical to the original statutory language, as passed in 1906, in that it applies to objects of historic or scientific interest that are on land owned or controlled by the Federal Government.

The Act provides that the Secretary of the Interior, the Secretary of Agriculture, and the Secretary of the Army publish regulations to carry out the Act.[2] In practice, the National Park Service and the Bureau of Land Management (Department of the Interior), and the United States Forest Service (Department of Agriculture) manage the majority of the monuments.

The Antiquities Act was enacted in 1906 in response to concerns that Native American artifacts were being pillaged from federal lands.[3]  The Act was originally proposed solely to protect objects of historic interest; but, prior to enactment, was expanded to include objects of scientific interest as well.[4]

Urgency in protecting relics against looting and trafficking was the driving force behind the Act.

These relics are priceless when secured by proper scientific methods, and of comparatively little value when scattered about either in museums or private collections without accompanying records. No scientific man is true to the highest ideals of science who does not protest against this outrageous traffic, and it will be a lasting reproach upon our Government if it does not use its power to restrain it.[5]

Although expansion of the Act to include “scenic areas” was considered, Congress ultimately rejected that proposal and limited the scope of national monuments to “the smallest area compatible with the proper care and management of the objects to be protected.”[6] Indeed, concern that vast tracts of land could be appropriated under the Antiquities Act was fiercely debated and resolved via the “smallest area” provision. The following dialogue illustrates the concern over expansive use of the proposed Act:

Mr. STEPHENS of Texas. Will that take this land off the market, or can they still be settled as part of the public domain?

Mr. LACEY. It will take that portion of the reservation out of the market. It is meant to cover the cave dwellers and cliff dwellers.

Mr. STEPHENS of Texas. How much land will be taken off the market in the Western States by the passage of the bill?

Mr. LACEY. Not very much. The bill provides that it shall be the smallest area necesstry [sic] for the care and maintenance of the objects to be preserved.

Mr. STEPHENS of Texas. Would it be anything like the forest-reserve bill, by which seventy or eighty million acres of land in the United States have been tied up?

Mr. LACEY. Certainly not. The object is entirely different. It is to preserve these old objects of special interest and the Indian remains in the pueblos of the Southwest.[7]

President Teddy Roosevelt designated Devils Tower in Wyoming, measuring approximately 1,150 acres, as the first historical monument under the Act.[8] Since its founding, Devils Tower National Monument has been expanded once, by approximately 150 acres, through an Act of Congress.

Photograph care of the NPS. https://www.nps.gov/deto/index.htm

President Roosevelt went on to designate an additional 17 monuments,[9] the largest of which, at roughly 800,000 acres, was the Grand Canyon. That designation was subject to an unsuccessful legal challenge that went to the Supreme Court (Cameron v. United States, 252 U.S. 450 (1920)). The decision in Cameron set the precedent for using the Act to designate large tracts of land as a national monument without reference to a specific historical or scientific object—although, arguably, the Grand Canyon is itself an identifiable object. Congress later incorporated the monument into the Grand Canyon National Park.

From the time of President Taft through the administration of G.H.W. Bush, designations of national monuments ranged from a minimum of zero to a maximum of 15 per president. Designations have not gone unchallenged—particularly when the size of the land withdrawn was extensive and burdensome to the States in which the monuments were situated. But no legal challenge to the proclamation of a national monument has yet been successful. Congress, however, has occasionally stepped in.

For example, when President Franklin Roosevelt designated 220,000 acres of land as the Jackson Hole National Monument, the State of Wyoming objected.[10] Congress also objected to what it viewed as a usurpation of its authority (it had been debating the inclusion of the land into a national park), and for several years thereafter attached provisions to Department of Interior appropriations bills that prohibited expenditures for the monument.[11] Wyoming sued; but the court upheld the designation.[12] Congress eventually passed legislation that restored some of the monument lands to Teton National Forest and merged the rest with Grand Teton National Park. The legislation also prohibited future unilateral presidential use of the Antiquities Act in Wyoming absent express Congressional authorization.[13]

Similarly, when President Carter set aside fifty-six million acres of land in Alaska to simultaneously create 15 national monuments (the high end of the range of designations noted above), the state of Alaska sued, seeking an injunction against President Carter’s use of the Antiquities Act.[14] As in previous cases, the President prevailed.[15] Congress, however, stepped in and repealed President Carter’s proclamations, imposed its own set of protections and uses for the land, and prohibited future withdrawals of Alaska land by the President that exceed 5,000 acres in the aggregate without approval by Congress.[16]

Beginning with President Clinton and continuing through President Obama, the scope and nature of designations began to grow and change. Some designations, such as President Obama’s designation of The Chimney Rock National Monument, encompassing 4,726 acres, or Stonewall National Monument, which encompasses 0.12 acres, appear to be consistent with Congress’ original intent, being limited in size and relevant to discernible “objects of historic interest.” Others, which will be discussed later in this series, departed markedly from the traditional application of the Antiquities Act.

Our series will continue next week with an overview of the environmental and public lands management laws the government currently uses to protect lands in its ownership or control.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.

Kara E. McKenna is a Counsel at Cause of Action Institute. Kara is admitted only in New York and New Jersey. Practice limited to matters and proceedings before United States Courts and agencies. You can follow her on Twitter @Kara_McK

[1] 54 U.S.C. § 320301 (2014).

[2] 54 U.S.C. § 320303.

[3] See Eric C. Rusnack, The Straw that Broke the Camel’s Back, Ohio State Law Journal, Vol. 64:669, 2003 at p. 674, n. 23.

[4] Id. at 674-75.

[5] H.R. Rep. No. 59-2224 at 2 (1906) (citing memorandum from Professor Edgar L. Hewett).

[6] Id.; 54 U.S.C. § 320301.

[7] 40 Cong. Rec. 7888 (1906). The version of the bill that was passed by the Senate in 1904 limited withdrawals to 640 acres, but that limitation was not included in the final Act.

[8] Proclamation No. 658, 34 Stat. 3236 (Sept. 24, 1906).

[9] Cong. Research Serv., National Monuments and the Antiquities Act (2017).

[10] Rusnack, supra, at 683.

[11] See David H. Getches, Managing the Public Lands: The Authority of the Executive to Withdraw Lands, Natural Resources Journal, Vol. 22, April 1982, at 304, n. 140.

[12] Wyoming v. Franke, 58 F. Supp. 892 (D. Wyo. 9145).

[13] Id. at 305; 54 U.S.C. § 320301(d) (“No extension or establishment of national monuments in Wyoming may be undertaken except by express authorization of Congress.”).

[14] Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978).

[15] Id. At 1160.

[16] 16 U.S.C. §§ 3101-3223.

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04/27/2017

Antiquities Act Executive Order—Overwrought Response Disregards Real Risks of Lack of Transparency and Unbridled Presidential Discretion

Since news broke earlier this week that President Trump would be signing an Executive Order (“E.O.”) regarding the Antiquities Act, hysteria has ensued. It’s as if the President had declared a new Oklahoma Land Rush on some of America’s most treasured landscapes, and the backhoes were lined up and waiting for the sound of the gun to start digging up the land.[1] In the 24 hours since its signing, the outcry has reached fever pitch.  Some claim the E.O. is but the first step in giving away the nation’s public lands to corporate interests. Others lament that the E.O. does not go far enough to restore the proper balance among the varied interests involved in public lands management. Either way, such hyperbole misrepresents and overstates what the E.O. actually says and what it will likely achieve in its implementation.

When considering vocal competing views, I often find myself asking “how did we get here?” and “how do we move forward productively?” Regarding national monument designations, the answer to the former is lack of transparency and Presidential accountability. The answer to the latter is more transparency and public involvement in the national monument designation process.

The E.O. directs the Secretary of the Interior, Ryan Zinke to review all national monuments created by the Antiquities Act since January 1, 1996, that measure more than 100,000 acres or lacked appropriate public input. The E.O. also directs Secretary Zinke to provide two reports – a 45-day interim report regarding Bears Ears National Monument and 120-day final report regarding all other national monuments. The final report is to include suggestions regarding potential legislative proposals, and executive or other appropriate actions to restore trust between local communities and Washington, give voice to Governors of States and local and Tribal governments who are affected by monument designations, and put America back on track to manage our federal lands in accordance with the traditional multiple-use philosophy. The E.O. does not direct any action regarding any national monument nor direct the Secretary to reach any predefined conclusion. The E.O. is thus a rational first step in clarifying “how we got here,” and “how we move forward productively.” It is not, as some would claim, the beginning of the end for America’s public lands.

Since September 2016, Cause of Action Institute (“CoA Institute”) has been investigating the use, misuse, and abuse of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) by recent presidential administrations. To that end, CoA Institute has submitted over ten (10) Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), requests to various and executive branch offices agencies – Council on Environmental Quality (“CEQ”), Department of the Interior (“Interior Dept.”), Bureau of Land Management (“BLM”), and the National Oceanic and Atmospheric Administration (“NOAA”) – involved with national monument declarations. To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only a small fraction of the records that are responsive to our requests. These records, along with publicly available documents and conversations we have had with local stakeholders in multiple states, preliminarily confirm several concerns and highlight the pressing need for transparency and oversight in the national monument designation process.

The Antiquities Act was intended to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government” by permitting the President to declare such landmarks, structures, and objects of historic or scientific interest as national monuments.[2] The Act also permits the President to “reserve” land parcels as part of the national monument so long as such parcels are “confined to the smallest area compatible with the proper care and management of the objects to be protected.”[3] Alternatively, if the object is not situated on federal land, the object and the land may be relinquished to the federal government.[4]

While such statutory language should limit use of the Antiquities Act, in practice, the Act has been used by presidents to declare or expand national monuments with little more than the stroke of a pen. Since 1996, Presidents Bill Clinton, George W. Bush, and Barack Obama have declared over 55 national monuments, many with little or no publicly-available data, analyses, or impact studies to substantiate “the smallest area compatible” with “the proper care and management of the objects to be protected.” Problematically, some courts have held that the Act does not require the President “to make any particular investigation” prior to a monument being designated.[5] Thus, a President may declare a national monument without any information or data supporting the declaration. Because courts have been reluctant to review monument designations absent facts establishing and identifying lands that were improperly designated,[6] public recourse to challenge designations is essentially nonexistent. Indeed, no such challenge has yet been successful.

Although the bulk of the hysteria surrounding the E.O. relies on the assumption that national monuments are a benign tool for protecting rural land, many Americans would likely be alarmed to learn that under the current statutory and judicial rubric, the Act would permit the establishment of national monuments of a very different kind. For example, by a simple transfer in ownership of the relevant property to the federal government, President Trump could declare Trump Tower or Mar-a-Lago a National Monument by simply parroting a few key phrases in the declaring proclamation. There would be zero need to substantiate the “historical significance” of the property, the appropriate scope of the land included, or the need for that particular form of preservation. And – here’s the kicker – the declaration could include whatever protections and uses he deemed fit (such as requiring searchlights to cast a “protective” glow on the name of the building on a nightly basis) and, according to some, the monument designation could not be revised or reversed by a subsequent President, though there is disagreement on this point. Outrageous? Of course, Possible under the Act as written and applied today? Absolutely.

From a government oversight and transparency perspective, Presidential use of the Antiquities Act is rife with abuse, as major decisions impacting vast public lands, natural resources, property rights, and livelihoods are left to the sole discretion of the President, who is not required to substantiate his designation in any meaningful way beyond the use of a few magic words on the face of the declaring proclamation. Unchecked discretion and lack of recourse to remedy overbroad declarations, has resulted in misuse of the Antiquities Act. Further, as publicly reported, and evident in government records received and reviewed by CoA Institute, monument declarations have been made with little or no consideration of local stakeholders and those most adversely impacted by the designations.

That is why today, CoA Institute submitted a letter to Secretary Zinke highlighting our concerns regarding recent misuse of the Antiquities Act, preliminary results of our ongoing investigations, and recommendations regarding oversight of existing monuments and increased transparency in the designation process.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org.

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.

Kara E. McKenna is a Counsel at Cause of Action Institute. Kara is admitted only in New York and New Jersey. Practice limited to matters and proceedings before United States Courts and agencies.

[1] Presidential Executive Order on the Review of Designations Under the Antiquities Act (Apr. 26, 2017) available at https://www.whitehouse.gov/the-press-office/2017/04/26/presidential-executive-order-review-designations-under-antiquities-act.

[2] 54 U.S.C. § 320301 (a).

[3] 54 U.S.C. § 320301 (b).

[4] 54 U.S.C. § 320301 (c).

[5] Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002).

[6] Id.

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