Virtual Guest Speakers 

March 15:

Paul Smyth - U.S. Department of Interior, Solicitor's Office
Topic: Grand Staircase Esclante National Monument
Virtual Lecture  (Real Audio format)
Transcript of Lecture
Other links
Discussion List   (Paul Smyth will participate from March 15 - March 19).

Short Biography of Paul Smyth

Biography:  Paul B. Smyth is the Deputy Associate Solicitor for the Division of Land and Water Resources, in the Department of the Interior's Office of the Solicitor in Washington, D.C.  Mr. Smyth has practiced law for over twenty four years and has broad experience in water, public land, and environmental law.  He was Acting Director of Interior's Office of Hearings and Appeals from 1993-1994.  He is also an adjunct faculty member with the George Washington University Law School's Environmental Law Program.  Mr. Smyth served for four years as Budget Officer of the ABA's Section of Natural Resources, Energy, and Environmental Law (SONREEL).  He also has been a SONREEL Council Member and a member of the editorial board for SONREEL's Natural Resources & Environment magazine, serving as executive editor from 1989-1991.  He graduated from Trinity College in 1971 and Boston College Law School in 1974.

Virtual lecture

Grand Staircase Escalante National Monument  (not available)

This lecture is recorded in RealAudio format.  To download the free RealAudio Player, click here.

Transcript of lecture

Thank you, one and all.  Thank you, J.B.  I'm appearing today in my role as an adjunct faculty member at George Washington University Law School.  I'm also a career attorney at the Office of the Solicitor, Department of Interior.  Let me just say that  my views today are my own and do not necessarily represent the views of the Department of Interior.  I'm sure you've heard that boilerplate before from federal speakers.  There's no inside information today, folks.  All I'll tell you today is either a matter of public record, or my own thinking....

Because this is a class about the Endangered Species Act, I wanted to try to make a connection with the land management tool that the Endangered Species Act can be, and the Antiquities Act.  I'll be trying to give you a feel for the Antiquities Act as an important tool, still, in public land management today.  And my thesis, for your consideration today, is that the Antiquities Act, which is one of the few old public land acts not repealed by congress in 1976, stands as a current day anomaly in the standard framework of administrative law...  But nonetheless, being an anachronism, actually serves to help it be a potent tool for public land management.  While there are lots of tools in the preservation arsenal of the Department of Interior, such as the National Environmental Policy Act, the Endangered Species Act,  in it's realm, the Antiquities Act remains extremely potent.

Let me begin with a brief history of the country's public land law experience.  The history of the country can be broken down into several eras, the first one being the era of acquisition and disposal of public lands.  The acquisition was from the 13 original states and from foreign sovereigns.  The first public lands in the United States were actually lands ceded by Virginia, North Carolina, Georgia and other original states to the federal government about the time of the U.S. Constitution.  So the lands that now comprise Alabama, Tennessee, etc., up to the Mississippi River were really the first federal public lands.  And then, over time, by either purchase, such as the Louisiana purchase in 1803, or conquest, the Mexican War treaty (1848), the entire land mass of the continental United States was obtained.  Simultaneously during this era of acquisition, was the ongoing disposal of public lands.  You may be familiar, of course, with the Homestead Act, the Mining Law of 1872.  You may have attended a land grant university in your state in your undergraduate days.  (Lands granted at the time of statehood to various states from the federal government out of this original public domain.)  The transcontinental railroads got huge land grants from the federal government on which to place the railroad right of way, but also, adjacent to the railroad, as sort of a bonus to the investment that the railroads were making.  So, basically in the nineteenth century, we have federal ownership of lands growing, and, at the same time, a disposal of lands.

Late in the nineteenth century, we come to the conservation or reservation era.  You had a time  where people were out there staking mining claims, staking homesteads, and they were finding some great places to put these cabins and mines and this sort of thing...  But there was a growing concern that places like Yellowstone would be lost to homesteaders or miners, and we have the beginning of the reservation era, and what I mean by reservation is, literally, federal lands were reserved from the operation of the public land law.  They were taken out and reserved away from - withdrawn from - homesteading and mining, and reserved for a particular purpose, such as being a national park.  Also, slightly later, around the turn of the century, we see the national forest system develop.  Again, a reservation of the lands away from the homesteading ... and to a purpose of national forest management.  At that same time, we have the Antiquities Act in 1906, very much a reservation statute.  I'll read it to you in a few minutes.  The thrust was that there were Native American antiquities, like the Mesa Verde cliff dwellings and that sort of thing, you may be familiar with, that were ... being despoiled.  The legislative history of the Antiquities Act shows that it was intended to ... allow the president to step in and reserve those lands (take it out of the system of the Homestead Act or the Mining Law, and reserve it for preservation of those relics).

Then, slightly later, as we move toward the present, we find that congress starts giving the Secretary various tools.  The reservation era was either removing it from the public land laws, but not ... giving the Secretary any sort of discretionary management.  So, they're either subject to the Homestead Act and Mining Law and all that, or not.  It was like an on-off switch.  As we get into the custodial era, we start to see statutes that give the Secretary a certain amount of discretion.  For example, ... we have the Mineral Leasing Act of 1920, which ... removed certain minerals from the Mining Law of 1872.  The Mining Law of 1872 ... said that if you find it out there on public lands and claim it, it's yours.  The Mineral Leasing Act of 1920 ... took coal, oil and gas out of that Mining Law, and ... gave to the Secretary discretion whether or not to lease oil, gas, coal.  We also see, in this era of custodial management, in 1934, the Taylor Grazing Act.  Prior to that time, you could run your cattle or sheep on public lands and we ... experienced, in this country, the tragedy of the commons, if you will.  There was no regulation.  The lands were ... being used up quite quickly.  The Taylor Grazing Act gave the Secretary discretion whether to lease or not for livestock grazing.

Shortly thereafter, you have, with the New Deal, a real expansion of agency power in this country.  You have, in the Roosevelt era, the creation of a lot of new agencies, but also a notion that the government could do a whole lot more.  And you also have, shortly after World War II, the enactment of the Administrative Procedures Act.  The APA really gave a framework for the exercise of agency discretion, and it certainly became part of the practice of the Department of Interior, that actions would have to be done through an APA process.  So we move into the 60s, we move into the environmental era.  Environmental concerns are beginning to become very important in the exercise of agency discretion.  Certainly, with the enactment of the National Environmental Policy Act (1969-70), ... [it] becomes a requirement for the exercise of discretion, that the environmental consequences of that action be analyzed.  And then, ultimately, as far as federal lands are concerned, we come to 1976 with the passage of the Federal Land Policy and Management Act.  That act basically changed the presumption that federal lands would be held only temporarily by the federal government for ultimate disposal under the mining law or homestead law, or other disposal laws.  It changed the presumption to one of retention and, literally, there's a wholesale, [repealer at the end of the statute] of all the laws that were repealed in 1976 by what we call FLPMA, the Federal Land Policy and Management Act.  So, the Homestead Act is repealed, and many of the ... various acts that congress had come up with the nineteenth century... to make it easier and easier to claim portions of the public land were repealed.

Two big exceptions to FLPMA in 1976.  The Mining Law of 1872 is not repealed.  But another big exception.  The Antiquities Act of 1906 is not repealed.  What's sort of interesting about that to me, is that there's sort of a symmetry there that one of the antidotes to the Mining Law of 1872 is, as it turns out, the Antiquities Act.  So if they were going to allow the Mining Law, it's a good thing they also left the Antiquities Act.  FLPMA has provisions in it allowing the withdrawal and reservation of lands.  But that authority is given to the Secretary of the Interior.  If the Secretary wants to withdraw land, say [he believes that] there's some threat that if mining expands in a particular area that valuable resources will be lost, well, the Secretary still has the authority in FLPMA to go in and withdraw the land from the mining law and reserve it for a particular purpose. [This requires that he] go through all of the administrative law machinery we're talking about.  We're talking about full NEPA compliance.  We're talking about an administrative record under the APA.  We're talking about [possible] lawsuits to try to stop what the Secretary's doing because it's arbitrary, capricious or abuse of discretion under the APA standard.

In contrast to that is the Antiquities Act.  It's much more streamlined as a tool because it allows the President rather than the Secretary to act.  And this is why this anachronism is so important here.  In 1906, when congress granted authority to the executive, there wasn't this notion of scores and scores of agencies, like congress' presumption today.  Congress writes a law today - "well, should we give it to the secretary of interior, secretary of agriculture, secretary of commerce? - who do we give this one?"  In 1906 it was - "well, it goes to the President, he's the head of the executive branch, let him figure it out."  This is how our laws were written in that era.  So let me go now and read to you the very, very simple law the Antiquities Act is.  I'm ... reading 16 United States Code, section 431.  And there are only two sentences to the key provision.  There are a couple of other sections to this law.  One that makes it a fine to violate the act, etc.  But, the key provision, 16 USC 431, I'll just read the first sentence, because that's the key sentence in the whole act:

 "The president of the United States is authorized, in his discretion, to declare by public proclamation, historic landmarks, historic and prehistoric structures and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected."

That is basically the whole ball of wax there as far as the key provisions.  The second sentence  [states] that if there's private land within the lands set aside for the Antiquities Act, that the private land owner may relinquish those to the Secretary, ... but I'm not going to focus much on that second sentence here today.

What are the [elements] to this Presidential action?  First of all, the National Environmental Policy Act doesn't apply to the Executive Office of the President.  If this had been written that the Secretary of Interior may, in his discretion, declare by public proclamation, etc., etc., [Interior] would have the requirement to do an environmental impact statement in the case of the Grand Staircase Escalante National Monument.  Now let me just say as a footnote here, [Interior is] doing an impact statement, not on the creation of the monument itself, that's already occurred and legally completed, but [Interior is] doing a land use plan to decide exactly how this area is to be managed.  That is a secretarial action and subject to NEPA.  But the creation of the monument itself was not subject to NEPA.

The second element of presidential action is that there's no APA waiver of sovereign immunity for presidential action. [Interior is] involved in a lawsuit right now where the Utah Association of Counties and the Mountain States Legal Foundation are challenging the President's designation of the National Monument.  What is interesting about the case law pertaining to presidential action is that, in the 1990s, we've seen two, I think huge, cases in this area.  And I'll give you those citations.  One is Franklin v. Massachusetts, [505 U.S. 788 (1992)] and the other is Dalton [v. Specter, 511 U.S. 462 (1994)].  But I'll be happy to tell you about those cases.  The Franklin v. Massachusetts case involved the U.S. Census.  The census law basically says that the Secretary of Commerce is ... to count all the people and then turn that over to the president who ... announces the census, announces what the reapportionment would be, what states are going to gain congressmen, what states would lose.  So, when this occurred, the state of Massachusetts was losing a congressman because of the 1990 census, and a lawsuit was brought to challenge that.   ... [T]he Supreme Court said that the Secretary of Commerce's recommendation of this result to the president is not a final agency action.  There's still something more that needed to occur.  The President could reject it or send it back for a recount or something, or the president could accept it.  But nothing happened until the President did something.  So, you can't get review of the Secretary of Commerce's action, it's not final agency action within the meaning of the APA.  Then it turns to the President and says, "well, where's the waiver of sovereign immunity to sue the president because you don't like this?  The APA applies to agencies and the president is not considered an agency under the APA."

Similarly, with the Dalton case, which was a base closure case involving the Secretary of Defense.  It ... was a challenge to the base closure results recommended by the Base Closure Commission.  Again, a similar analysis.  The base closure result was then reported to the President, and the President actually had to either turn it all down or act on it all as a package.  So, before Presidential action, the APA wouldn't allow a suit because it wasn't final agency action.  The President still had to do something.  And then when the president did it, it wasn't subject to an APA waiver of sovereign immunity.  So here, in ... the challenge to the Grand Staircase Escalante National Monument, [there is] the recommendation from the Secretary of Interior to the president in 1996, basically saying, "this would be a good area to reserve for a national monument."  And then you have the president taking that action.  So, ... the briefs in this case, that are a matter of public record cite the Dalton and Franklin decisions as ... saying, "this is not reviewable on ... a facial challenge of the monument."

A lot of people might be uncomfortable with the notion that, "Hey, is this ... totally unreviewable?"  I'll point out that [challenges to monuments have occurred] where there's some kind of federal enforcement action.  The big case on the Antiquities Act, Cameron v. U.S., ...was the ...federal executive enforcing against a mining claimant in the Grand Canyon who wanted to stay there, [under] an unpatented mining claim that was found to be not a viable mining claim. [Following] the designation of the monument, ...Cameron (who later became a senator of the state of Arizona, by the way), ... goes back out there, and then, the federal government says, "get out of the Grand Canyon"....  And he says, "you can't kick me out, ... it's perfectly okay for me to be out here on an unpatented mining claim."  The federal executive ... said, "well, you can't do that anymore because, since your previous claim was found to be invalid, there's been this monument designation."  And so, by this federal enforcement action, the legality of the monument gets raised in the court system.  ... [T]he big supreme court case, Cameron v. United States 252 US 450 (1920). ... [T]he Antiquities Act designation at issue in this case was actually the Grand Canyon.  Teddy Roosevelt [had] set aside the Grand Canyon as a national monument.  Now, remember, I told you that the legislative history of the Antiquities Act talks about Native American dwellings and relics and this sort of thing....  Also, [the act itself] has language that "in all cases, the designation shall be confined to the smallest area compatible with the proper care and management of the objects to be protected."  So really, [I believe Congress] thought that this was going to have a very, very small geographic impact.  Well, Teddy Roosevelt goes out and creates a national monument of the Grand Canyon of 270,000 acres.  And, as I said, Cameron defended against the federal government's action to boot him out of this area.  So, it went all the way to the Supreme Court, and he basically argues that 270,000 acres is way more than [authorized].  The president somehow had to abuse his discretion here.  And, Justice VanDevanter, who was formerly chief legal officer of the Department of Interior, responds, "to this we cannot assent.  The act under which the president proceeded empowered him to establish reserves embracing 'objects of historic or scientific interest'.  The Grand Canyon, as stated in his proclamation, is an object of unusual scientific interest.  It is the greatest eroded canyon in the United States, if not the world.  It is over a mile in depth and has attracted wide attention among explorers and scientists, affords an unexampled field for geologic study, is regarded as one of the great natural wonders and annually draws to its borders thousands of visitors."  So, here we have in one stroke of the Supreme Court opinion, this law that had been focused basically at preserving Native American ruins and relics, now becomes a tool that can actually withdraw from the Homestead Law, the Mining Law, [and] all these other laws that we mentioned at the beginning of the talk, huge amounts of acreage.  A canyon can be an object of scientific interest or historic interest.  So we have a tremendous expansion of this authority.

The other area where there can be federal enforcement is ... where somebody is violating ... the terms of the monument, or the implied authority that the monument gives.  I'm going to talk briefly about Cappaert v. United States [426 U.S. 128 (1976)].  It involves the Devil's Hole National Monument in the southwestern desert near Death Valley... in California.  There lived in this monument in pools in underground caves the desert pup fish.  There was groundwater pumping in the area that was ... depleting the water supply for this pup fish.  The federal government brought an action to prevent this groundwater pumping, and ... said that the designation of the monument had reserved sufficient water to preserve the objects in the monument, including the natural ones such as this pup fish. ...[T]he case went to the U.S. Supreme Court, which validated the federal executive's view ... upholding the monument, and upholding the principle that it reserved water right went along with the creation of the monument.

So we have this very, very potent power now in the president.  What are some of the disadvantages of using this?  This is not just like a sword that the president can wield without some down side.  I'd say that probably the biggest down side is the public scrutiny of presidential action.  And I think the record with the Grand Staircase shows that there was a lot of skepticism about the reasons President Clinton designated the monument.  There was even a Rush Limbaugh story that the president had reserved the monument to end the possibility of a coal mine there, and that this coal was such high value I guess as far as its lack of sulfur content, etc., that the only other coal in the world that was of this sufficient quality was in Indonesia, and of course the Lippo group apparently had something to do with alleged campaign contributions and so Rush puts two and two together and says that the monument was done ... because the ... Lippo group paid off the president.  I just cite that as an example of when the President takes this kind of action, the President is subject to the highest level of sort of political criticism in this country.  Your actions taken by the Secretary of Interior, although subject to NEPA and APA review and everything, are at least a level below the political scrutiny that Presidential action would get.  That [scrutiny] is a big down side.  And there is also no consultation mechanism in the Antiquities Act.  The President is not required to talk to anybody before he makes a designation.  And the way in which the Grand Staircase Escalante was announced still rankles some folks....

I think that one of the unique things about a national monument designation that's important for federal land management is the extent to which the monument designation can be custom designed [by the President].  The important thing to know is that [a monument designation] doesn't automatically mean that the National Park Service is going to take it over.  In the case of the Grand Staircase Escalante National Monument, the President gave the administration of the monument to the Interior's Bureau of Land Management.  If the monument had been in a national forest, there would have been a choice between maybe the Forest Service or the Park Service.  Historically, the monuments were managed by whatever agency happened to get them, and then, I believe, in LBJ era, they were all consolidated under the Park Service for ... common management.  But there's no rule of law that says that another agency can't manage the land.  So, monument designation ... gives [the President] a choice. [He] can either put it into the Park Service with much more restrictive management, or [he] can perhaps allow a little flexibility by enabling it to be managed by the Bureau of Land Management.  I'll tell you the distinction ... between the two as far as the Interior is concerned is that the Park Service has the National Park Organic Act, very restrictive (I think it's 16 USC section one), which ... sets out the criteria for which parks are to be managed, and it's much more restrictive than the Bureau of Land Management Organic Act which is 43 USC section 1701, which calls basically for multiple use management so that the BLM is able to accommodate grazing and some mineral leasing and other things that you would [not usually] see in a park.  So, okay, if [he] picks the BLM over Park Service, [he is] wide open in what [he] can custom design into [the] proclamation.  And [he] can decide whether ... to have grazing or not.... [T]he President can just decree it in or out.  ...[He] can decide whether hunting is in or out.  In a park typically hunting is not allowed.  In a monument designation [he] can take a choice.  So in the Grand Staircase, hunting is ... allowed.

We talked about reserved water rights. In the case of the desert pup fish instance, that proclamation didn't say anything about water rights.  If nothing is said, the ... default position comes out of the so-called Winters doctrine, which basically says that when congress creates a reservation, it impliedly reserves enough water to carry out the purposes of that reservation.  So, if [the President says] nothing in one of these, the theory is ..., whatever the purposes of the monument are, you can get sufficient water to do that.  In the case of the Grand Staircase Escalante, the President ... punted and ... said this monument doesn't reserve any water, but I want the BLM to give me a report on whether or not water is needed.  So, that remains to be seen how that's going to play out.

[The President] can have mining or not, presumably. [He] could conceivably write a proclamation to allow certain types of mining that wouldn't interfere with whatever resources you were protecting (the scientific and historic interests in the monument).  That might be very tough to be able to do, but [he] could presumably do that. ....  There [are] two limits.  One, that the resource actually be protected.  If you say you're going to protect it for the preservation of the Grand Canyon, well you better darn well do things that preserve the Grand Canyon.  The other limit is basically valid existing rights.  Now, [the government] can take somebody's property, but [it has] to pay over at the court of federal claims.  So, in the case of the Grand Staircase Escalante National Monument, the proclamation was written to be subject to valid existing rights.  And so, those who have existing oil and gas leases in the monument or coal leases, are still able to exercise those rights.  Indeed, [Interior] did grant a permit to drill to one of the oil and gas lessees, took a lot of criticism about it from the environmental community, but nonetheless [Interior was] held to the standard of the proclamation, which was valid existing rights will be preserved.  And then there's  some coal leases in there, and Interior is talking to the coal companies about exchanges, etc., to satisfy their interests.

Where might the administration use the Antiquities Act again? ...  Secretary Babbitt has been reported by the press to be consulting with Senator McCain, Republican senator from Arizona, for a national monument designation for the Shivwitts Plateau, essentially an extension of protection of the Grand Canyon.  [N]ot all of the structure of the Grand Canyon itself is actually in the Grand Canyon National Park.  As the park ends to the west and to the north you ... have ... public lands managed by the Bureau of Land Management.  So there is potential to use the Antiquities Act as a tool to preserve these lands that would extend the protection around the Grand Canyon.  So, it's still ... a viable tool for reserving sensitive lands. [If the President wanted to use this authority] in the future, perhaps in other states, [one criterion] would be, obviously, you have to have federal lands.  This whole act is written in terms of the federal land base and the discretion given to the President, basically to change the management protocol for federal lands.  And you have to have a valuable resource, [an] object of scientific or historic interest.  In thinking about this in the Grand Staircase context, some of the objects are really pretty interesting to read about.  It's probably a much more thoroughly and completely written proclamation than some of the other ones you ... may have seen.  [T]he Kaiparowitz Plateau ... contains world class paleontology.  The interesting thing about this is that it's some of the remotest area in the lower 48 states.  I think it is the remotest.  The mail services couldn't get in to Boulter, Utah area until the 1950s or something like that.  Anyway, the paleontology, the studies that have gone in there have shown that this is really a world class paleontology.  It has, unbroken up, several hundred million years of fossil resources.  It's really a unique area....  So, you have to have federal lands, a valuable resource, and a few or manageable valid existing rights.  You could have valid existing rights to [that] make it so difficult to manage that this might not be the best tool.  There might be other tools, like the Federal Land Policy Management Act, that may be better for managing lands with [too many] valid existing rights.

That is basically it.  I just wanted to say that I think the Antiquities Act has played an important role in public land management, and still is a viable tool for conserving sensitive lands in the future.

Thank you.

Other links of interest

Links relating to the speaker

Links relating to Grand Staircase Escalante National Monument and Public Lands