NOTE: “Consider how far the Antiquities Act has strayed from its original intent: The act states that monument designations should be limited to “the smallest area compatible with proper care and management of the objects to be protected.” In recent years, however, it has been used as a large-scale conservation policy, dictated by presidential decree. Many recent monuments have comprised more than one million acres each.
“[A]n act that grants presidents such authority without Congress’ approval or local input should be viewed for what it truly is: an antiquated law.”
Time to Modernize the Antiquities Act
Shawn Regan, Property and Environment Research Center (PERC)
May 24, 2017
During his Senate confirmation hearing earlier this year, Interior Secretary Ryan Zinke said he is an “unapologetic admirer” of Teddy Roosevelt. But the former Montana congressman now finds himself tasked with reining in the very same executive powers Roosevelt created to set aside federal lands.
Last month, President Donald Trump signed an executive order instructing Zinke’s Interior Department to review national monuments recently created under the Antiquities Act of 1906. The law, signed by Roosevelt, allows presidents to unilaterally place federal lands off limits to development and other uses without local input or approval from Congress.
The act was created to protect small archaeological sites and other “antiquities” from looting or desecration. But in recent decades, it has been abused by presidents who have used its executive authority to set aside vast swaths of public land as national monuments, often in the final days of their administration. The review process presents an opportunity for Zinke to help reverse these abuses and encourage Congress to reform Roosevelt’s antiquated law.
Consider how far the Antiquities Act has strayed from its original intent: The act states that monument designations should be limited to “the smallest area compatible with proper care and management of the objects to be protected.” In recent years, however, it has been used as a large-scale conservation policy, dictated by presidential decree. Many recent monuments have comprised more than one million acres each.
President Barack Obama was especially fond of the act. He used it to create more national monuments than any other president, including the controversial 1.35 million-acre Bears Ears National Monument in Utah, which he designated at the end of his administration despite opposition by Utah’s legislature, governor, and the state’s entire congressional delegation, as well as local officials.
The act runs roughshod over the legislative process that is at the core of American governance, which seeks to promote compromise and coalition-building. In the case of Bears Ears, a multi-year legislative effort was underway in Utah to reach a “grand bargain” that would protect wilderness areas in the region while also opening other lands for resource development. But the effort was thwarted once Obama declared the Bears Ears monument.
The Antiquities Act can even corrode the democratic process and undermine comprise. After all, why would environmental groups come to the bargaining table in good faith when they can instead lobby the White House to single-handedly set aside land as monuments?
Zinke has an opportunity to begin reversing these abuses. His review will include 27 large monuments designated since 1996, including Bears Ears and the 377,000-acre Upper Missouri River Breaks National Monument in eastern Montana, created by President Clinton in 2011.
It is unclear whether Trump has the authority to rescind or shrink any monument designations without approval from Congress. The Antiquities Act does not explicitly state that presidents can unilaterally undo monument designations, although Congress has occasionally reduced the size of monuments in the past. Nonetheless, the review process could help clarify the scope of the law and lead to reforms that would allow for more accountability and local input.
Already, the process is encouraging more local input. Last week, Zinke announced that the public will be able to submit comments to the Department of the Interior after May 12 to provide input on any of the monuments under review. This stands in sharp contrast to the Antiquities Act, which requires no such public input.
Zinke should reject Roosevelt’s legacy of conservation-by-presidential-decree in favor of an approach that requires local input and congressional approval. At a time when Americans on both sides of the political aisle are growing increasingly wary of the expansion of executive powers, an act that grants presidents such authority without Congress’ approval or local input should be viewed for what it truly is: an antiquated law.
Shawn Regan is a research fellow at the Property and Environment Research Center (PERC) in Bozeman.
Today, the Subcommittee on Energy and Mineral Resources held a legislative hearing on the “Community Reclamation Partnerships Act” (Rep. Darin LaHood, R-IL), discussion draft legislation to authorize partnerships between states and non-governmental entities for the purpose of expanding abandoned mine reclamation projects.
“I’m honored to be the author of this proposed legislation… I’ve interacted with a lot of private organizations that want to help, that want to be involved,” Rep. LaHood said. “This is not only [an issue] for the Rocky Mountains and Appalachia, but all across the country.”
According to the Department of Interior, over 6,650 abandoned mine lands (AML) sites remain with estimated remediation costs exceeding $10.5 billion. States are primarily responsible for reclamation activities and projects are financed through fees levied on current coal mining activities.
“The cost of reclaiming these sites will continue to strain State resources in the coming decades and the conditions of these sites will only worsen over time,” Subcommittee Chairman Paul Gosar (R-AZ) said.
With the coal industry experiencing a shrinking market, there are concerns as to whether the full inventory of AML sites can be addressed relying solely on the existing financing mechanism.
“Now more than ever, the States and their AML-impacted communities could use the assistance of their passionate and capable Community Reclaimers partners, but current circumstances unfortunately heavily disincentive that possibility,” John Stefanko, Deputy Secretary for the Active and Abandoned Mine Operations in the Pennsylvania Department of Environmental Protection, stated.
The discussion draft addresses impediments potential “Community Reclaimers” face in the reclamation process by allowing states to assume liability on their behalf, shielding them from any undue responsibilities under the law. The legislation is designed to incentivize non-governmental organizations to contribute their resources towards these much-needed projects.
“Cleaning up these mines is pretty straightforward,” President of Trout Unlimited Chris Wood said. “Improving the nations water quality is a goal that every American shares.”
The discussion draft also undertakes a long-awaited solution to the problem of abating acid mine drainage (AMD). Currently, states are required to meet unrealistic, infeasible Clean Water Act (CWA) standards when treating contaminated water at AML sites. As a result, some states have established state-specific guidelines on how they will carry out their responsibilities under the CWA.
“The EPA has acknowledged and attempted to mediate the conflict between AMD treatment and the Clean Water Act in the past, but the Agency’s efforts have not meaningfully facilitated progress,” Stefanko said.
The discussion draft recognizes approved, state-specific agreements as appropriate standards at AMD treatment sites in lieu of CWA requirements.
The discussion draft garnered support from Members on both sides of the dias in addition to the witnesses testifying.
“Naturally I’m interested in any solution such as Mr. LaHood’s bill that can help speed up the pace of this cleanup as well as help the people of southwestern Virginia and other coal communities who are struggling with high unemployment and polluted water,” Rep. Don Beyer (D-VA) stated.
Click here to view full witness testimony.
Today, the Subcommittee on Oversight and Investigations held the first of a series of oversight hearings to examine the impacts of federal natural resources laws gone astray. The panel focused on three laws in particular: the Indian Reorganization Act (IRA), the Wilderness Act and the Federal Land Policy and Management Act (FLPMA).
“For too long, federal agencies have been permitted to disregard congressional intent and implement the laws Congress passes sometimes ignoring the law’s original purpose,” Subcommittee Chairman Raúl Labrador (R-ID) said. “[W]e must look to curb abuse by the Executive Branch and reassert power over the unelected bureaucracy.”
“I do not believe it was the intent of Congress to disenfranchise communities like mine when laws like FLPMA and the Wilderness Act were originally enacted, but that is certainly where we have ended up,” David Cook, a rancher from Globe, Arizona, said.
FLPMA, enacted in 1976, codified congressional intent to manage federal lands on the basis of multiple use and sustained yield. Land management agencies have instead used the act to withdraw millions of acres of federal locatable minerals in westerns states, deny permits to renew grazing allotments for ranchers, and attempt to expand the statute to regulate hydraulic fracturing.
Celeste Maloy, Deputy Attorney of Washington County, UT, asked for congressional action to “stop the expansion of agency authority” as land management agencies have far exceeded their statutory authority.
"My experience in interacting with land management agencies, particularly the Bureau of Land Management, is that administrative processes overshadow the agency mission given by Congress," Maloy said.
Local governments “have few effective options for limiting agency overreach. We cannot vote them out of office. We cannot fire them,” she added.
Napa County Supervisor Diane Dillon addressed the Department of the Interior’s (DOI) failure to abide by the IRA and its own guidelines when accepting land into trust on behalf of Indian tribes, and the resulting effects on states and localities.
Bureaucrats within the DOI have abused the IRA, Dillon argued, “to completely strip state and local governments of their authority over local land use, with little to no regard for state and local concerns.”
The IRA limited the Secretary’s ability to put land into trust only to Indians who were members of tribes “now under federal jurisdiction” as of the IRA’s enactment in 1934. However, despite this clear statutory prohibition, the federal government has routinely placed land into trust for members of tribes that were recognized after enactment of the IRA.
Click here to view full witness testimony.
Today, the Subcommittee on Indian, Insular and Alaska Native Affairs held a hearing on the Department of the Interior’s (DOI) Cobell Land Consolidation Program. The program authorizes DOI to purchase highly fractionated allotments and consolidate them in tribal ownership. After an expenditure of over $1 billion, it remains unclear that the program has greatly reduced Indian land fractionation.
“Indian land fractionation has been an enormous burden for the Department, and it has denied thousands of individual Indians any economic benefit from their lands,” Subcommittee Chairman Doug LaMalfa (R-CA) said. “It’s fair to ask: what kind of progress has been made, and has the program been a success?”
In many cases, a single tract of Indian land can be owned by dozens or hundreds of Indians. As generations of Indian owners die intestate, their heirs each own tiny, undivided interests often in multiple tracts. Consolidation into a single owner reduces the DOI’s burden in administering these lands and benefits Native Americans by increasing the potential for productively using these properties.
Acting Deputy Secretary of the Department of the Interior Jason Cason testified that the Obama administration-run program “has not been successful in materially reducing fractional interests” despite spending $1.3 billion dollars to date.
“It seems obvious to me that this is not something that we can just spend our way out of, but rather requires a careful approach and additional planning,” Rep. Aumua Amata Coleman Radewagen (R-American Samoa) stated.
Cason offered two options for the future of the program: either leaving the initial legislation in place and allowing the program to use the remaining funds to resolve a tiny portion of fractionation, or allow Interior to “leverage the reaming $586 million dollars to carefully target interests.” This would create a stream of revenue that could be put back into the program.
The program will end in 2022, but the funds will be depleted long before the sunset date. Without reform – administratively or legislatively – fractionation will continue to drain resources needed to meet DOI’s responsibilities to tribes across the country.
“I view the Buy-Back Program as a once in a lifetime opportunity to meaningfully address fractional interests that plague tribal communities and their efforts towards sovereignty and self-determination,” Cason stated. “[I]n my mind we are almost back where we started eight years later, just treading water.”
Click here to view full witness testimony.Read More
Today, the Subcommittee on Federal Lands held a legislative hearing on H.R. 2199 (Rep Cramer, R-ND), the “Federal Land Asset Inventory Reform Act of 2017” or the “FLAIR Act.”
The federal government owns an estimated 640 million acres of land, although, amazingly, the actual acreage number is not definitively known. The bipartisan FLAIR Act requires the Secretary of the Interior to develop and maintain a cadastre of Federal real property in a publicly available, graphically geo-enabled and searchable format.
“One of my great frustrations is the fact that although the federal government owns some 640 million acres of land it is such a bad landlord. [They don’t] take care of this land and can’t even provide a comprehensive list of its land holdings. GAO has warned for years of these forgotten and abandoned lands,” Subcommittee Chairman Tom McClintock (R-CA) said. “How can you manage land you don’t know or care that you even own?”
“‘You can’t manage what you can’t measure,’” MAPPS Executive Director John Palatiello stated. “The fact is the Federal government does not know what it owns, where it owns it, what condition it is in [or] whether it is still in the public interest for the government to own it.”
Starting in 2003, the Government Accountability Office (GAO) began listing federal real property management on its High Risk List due to the likelihood of “fraud, waste, abuse, and mismanagement” and the need for reforms.
Despite the federal government's efforts to better address management and ownership challenges with federal lands, a 2016 GAO report found that a range of challenges in managing real property still exist due to a lack of reliable data, complex disposal processes and costly environmental requirements.
The FLAIR Act will improve transparency and promote greater efficiency and cost savings for federal land management and ownership.
Click here to view full witness testimony.Read More
Today, the Subcommittee on Federal Lands held a legislative hearing on two bills to promote economic development, improve conservation and address targeted federal land management challenges.
H.R. 2423, the “Washington County, Utah, Public Lands Management Implementation Act,” (Rep. Chris Stewart, R-UT) fulfills a promise made to Washington County, after years of negotiations and compromises between local stakeholders in Utah, to designate the northern transportation route and utility corridors outlined under the Omnibus Public Land Management Act of 2009 (OPLMA).
"The bill before the subcommittee addresses the most grievous omissions in the RMP and clarifies the intent of Congress," Rep. Stewart said. "This language reflects the compromises the County negotiated with the federal government to minimize impacts on the desert tortoise and to allow the City of St. George to grow sustainably."
“The BLM hasn’t followed the letter or intent of the law, and they marginalized the needs of local communities as a result. This bill requires BLM to do what they should have done in the first place, and that’s to actually listen to people who know the area and balance conservation with the growing economic development needs of the county,” Chairman Rob Bishop (R-UT) said.
The bill directs the Department of the Interior to fully implement the Washington County provisions of OPLMA by issuing any necessary rights-of-way for the northern transportation route and authorizing the development of additional utilities to keep up with the growing population of the City of St. George, one of the fastest growing metro regions in the nation.
“The story of Washington County is not about conflict,” Iverson stated. “It is a story about people who care very deeply for their environment who work together to find the right balance between protecting resources and enjoying them.”
H.R. 1107, the “Pershing County Economic Development and Conservation Act” (Rep. Mark Amodei, R-NV), codifies a bipartisan agreement between major stakeholders in Pershing County, Nevada to benefit conservation, improve public land management and promote economic development.
“[I] cannot stress enough the broad-based, all-inclusive nature of the long process to achieve consensus in Pershing County in regard to the future management of our public lands,” Perish County Commissioner Robert McDougal stated. “Hunters, hikers, four wheelers, rangers, environmentalists, miners, prospectors, educators, business owners and many other citizens were part of our process.“
The bill consolidates checkerboard land previously identified for disposal, conveys land for mining and public purposes, creates new Wilderness Areas and releases certain Wilderness Study Areas, to benefit conservation, recreation and economic development in Pershing County.
“Nevadans know how to come to the table in good faith and work together,” Shaaron Netherton, Executive Director of Friends of Nevada Wilderness, said. “Getting to this point was not easy. Everyone had to compromise, and no one got everything they wanted. But the end product of this give-and-take has broad support and advances all of our interests.”Read More
Today, the Subcommittee on Water, Power and Oceans held a legislative hearing on two bills to increase federal transparency, safeguard private and state water rights, and provide certainty to water and power users.
The “Water Rights Protection Act” discussion draft (Rep. Scott Tipton, R-CO) protects state water law and private property rights from future federal takings.
“Private water rights holders should not live in fear of the federal government coming after them. Mr. Tipton’s bill is necessary to ensure that privately held water rights cannot be extracted by the federal government in the future as a condition to secure a federal permit,” Subcommittee Chairman Doug Lamborn (R-CO) said.
“Over many decades, federal attempts to manipulate the federal permit, lease and land management process to circumvent long-established state water law and hijack privately-held water rights have sounded the alarm for all non-federal water users that rely on these water rights for their livelihood. The Water Rights Protection Act is commonsense legislation that provides certainty by upholding longstanding federal deference to state water law,” Rep. Tipton stated.
Vice President of the Utah Farm Bureau Randy Parker discussed the water rights issues he sees on the ground everyday as the U.S. Forest Service (FS) and the Bureau of Land Management (BLM) “systematically challeng[e] state sovereignty and historically held water rights on public lands.”
“The ongoing protests, claims, coercion and even bullying by agents of the FS and the BLM has created and continues to cause considerable uncertainty for ranching families across the West,” Parker said.
Chris Treese, Manager for External Affairs at the Colorado River Water Conservation District, urged swift passage of the “Water Rights Protection Act” to avoid the inevitable downward spiral of litigation.
“Unless the FS commits to respecting Western states’ individual water rights adjudication systems to accomplish its flow-related goals, the only sure outcome is contentious, lengthy and expensive litigation. This is a result in no one’s interest, including the environment,” Treese stated.
H.R. 2371 (Rep. Paul Gosar, R-AZ), the “Western Area Power Administration Transparency Act,” establishes a pilot project to increase the transparency of the Western Area Power Administration’s (WAPA) costs, rates, and other financial and operational dealings for utility ratepayers and taxpayers. Patrick Ledger, CEO of the Arizona Electric Power Cooperative, welcomed the transparency and accountability promoted by this bill in light of the recent trend of increased utility rates.
“With better information broken down in key components – and with a historical perspective – customers can have a better dialogue with [WAPA],” Ledger said. “This is perhaps the most fundamental benefit that the transparency legislation offers.”
Click here to view full witness testimony.Read More
Today, the Subcommittee on Federal Lands held an oversight hearing on “Seeking Better Management of America’s Overgrown, Fire-Prone National Forests.” Members and witnesses called for a paradigm shift in the way we manage the nation’s increasingly overgrown, disease infested and fire-prone federal forests and grasslands.
“Our forests are dying […]Nationwide, the Forest Service reports it is accomplishing less than 20 percent of its post-fire reforestation needs,” Subcommittee Chairman Tom McClintock said. “The American people want our forests returned to health. They want the growing scourge of wildfire brought back under control. They want the destruction of mountain habitats by fire, disease and pestilence arrested and reversed. They want the prosperity of their forest communities restored.”
Approximately 60 to 80 million acres of national forest are at a high, to very high, risk of catastrophic wildfire. Data from the Forest Service indicates that thinning and prescribed burns reduce wildfire intensity and improve health, yet only a small fraction of high risk acres are being treated.
The panel outlined how the current regulatory environment and constant threat of litigation has significantly decreased management activities, including restoration activities following wildfires.
“[T]he myriad of environmental statutes, regulations, manuals, handbooks, letters of direction, and litigation make forest health and fuels reduction project development time consuming and costly,” stated Vice President of Public Resources at the California Forestry Association Steven Brink. “Many projects are stalled or stopped by litigation.”
Due in part to a lack of active management, insect infestations are killing mature trees on millions of acres of federal forests and catastrophic wildfires are burning unnaturally hot and growing in number and size, with devastating impacts on the environment.
In California, delayed restoration activities have resulted in the continued decay of 102 million dead trees in Federal forests of the Sierra Nevadas. National forests in California, traditionally carbon consumers, are now net emitters in the region, Brink estimated.
James Cummins, Executive Director of Wildlife Mississippi, described the budgetary challenge of fighting wildfires as a “secondary issue that can be solved by promoting more management.”
“Without giving the agencies the ability to work more quickly and efficiently, we cannot put forest management on the ground quickly enough,” Cummins added.
Last Congress, the House passed H.R. 2647 (Rep. Bruce Westerman, R-AR), the Resilient Federal Forests Act of 2015. The bill provided immediate tools for the Forest Service and Bureau of Land Management to dramatically improve the health of federal forests and rangelands. Through streamlining administrative and legal obstacles, the legislation would have reduced project planning times and the cost of implementing forest management projects.
Click here to view full witness testimony.
Today, the Subcommittee on Energy and Mineral Resources held a hearing on “Reviewing Recent State Successes with the Rigs to Reefs Program.” The panel focused on the environmental benefits of maintaining decommissioned oil and gas platforms as marine habitat and ways to optimize the program's use and benefits.
"Since the program’s formal inception in 1984, over 500 platforms of artificial reef have been established and maintained, giving rise to a collection of marine species and supporting local commercial and recreational fishing industries," Subcommittee Chairman Paul Gosar (R-AZ) said.
Dr. Greg Stunz’s, Professor and Endowed Chair for Fisheries and Ocean Health at the Heart Research Institute for Gulf of Mexico Studies at Texas A&M University – Corpus Christi, research finds flourishing ecosystems around decommissioned rigs repurposed as artificial reefs.
“[W]e observe higher densities of fish, faster growth or at least the same growth rate, and even similar reproductive output when compared to natural bottom,” Dr. Stunz stated. “[B]y all measures… Rigs-to-Reefs are functioning equivalently or better, and contribute similarly on a per-capita basis as natural habitat.”
In addition to supporting marine habitat, these artificial reefs have become major recreational attractions, including the HI A389 production platform in the Gulf of Mexico, which is the most popular and photographed scuba diving location in the region. They also benefit commercial fishing industries, including shrimpers, who trawl up to a quarter mile from reef sites and report higher yields in those areas.
“The Rigs-to-Reefs program is a win-win situation for all and puts older resource materials to good use. It is good for business, government and especially the environment,” Texas Parks and Wildlife Department’s Artificial Reef Program Leader Dale Shively stated.
Despite wide-ranging ecological and economic success and growing demand for innovative decommissioning solutions, the program’s permitting process can take years.
“The current process involves multiple federal and state agencies, all with their own required internal review processes that must be completed,” Vice President of Drilling, Completions and Facilities at W & T Offshore, Inc. David Bump said. “W & T has been waiting for approval for over three years on a single application.”
Click here to view full witness testimony.Read More
Today, the Environmental Protection Agency (EPA) announced an agreement to allow the Pebble Mine project in southwest Alaska to proceed to regular permitting under the Clean Water Act and the National Environmental Policy Act (NEPA). The proposed mineral development project was preemptively denied by the Obama administration outside of the traditional NEPA process.
Chairman Rob Bishop (R-UT) issued the following statement:
“Finally, this project can begin a transparent process of review that provides for public input, environmental analysis and fair shake at approval, not more arbitrary decisions and lawsuits. The Pebble project being unilaterally precluded from even beginning the NEPA process was emblematic of the reckless and abusive actions of EPA under the previous administration. I thank President Trump and Administrator Pruitt for efforts to establish a predictable federal permitting process which is fundamental to future growth and investment for Alaska and communities across the country.”Read More