House calls for monument designation oversight

Cattle and Beef Industry News
Mar 31, 2014

If the president designates 2 million acres of federal land as a national monument, and nobody is around to hear it, can it still bring a local economy to its knees? According to university research, interviewed locals, and Congress, yes, it can. In fact, it’s precisely what happened after President

Clinton single-handedly in 1996 designated the Grand Stair-Case Escalante National Monument (GSENM) in southern Utah. Not long after he made his eleventhhour announcement of the designation—not in one of the affected communities, but in a neighboring state—residents in and around the monument began to feel the anvillike effects of the monument’s restrictive new land management requirements on their economy and culture.

At a 2013 congressional hearing, witnesses testified as to the impacts of national monuments such as the GSENM. The hearing was held, in part, to consider various bills designed to limit the President’s ability to unilaterally designate national monuments. One of those bills, Rep. Rob Bishop’s (R- UT) Ensuring Public Involvement in the Creation of National Monuments Act (EPIC Act), passed the U.S. House of Representatives last week.

The legislation’s passage has been hailed by industries and local governments that count on resources found on federal lands in the West. According to Dave Eliason, a Utah rancher who testified at the 2013 congressional hearing, the ranching industry was hit hard by the GSENM designation. Eight grazing allotments were fully or partially closed within three years of the designation, accounting for roughly 6,000 lost animal unit months (AUMs).

“They say with monuments, livestock grazing is grandfathered in and everything will be fine,” Eliason told WLJ. “But it’s pretty rough. On top of them cutting the AUMs in the 1999 planning process, the monument designation made it so you can’t take motor vehicles in—so managing livestock and maintaining your range improvements is really hard.”

Eliason is the Secretary/Treasurer of Public Lands Council, past president of the Utah Cattlemen’s Association, and a member of the National Cattlemen’s Beef Association. He testified on behalf of all three organizations.

Of monuments’ impacts on local communities, Eliason told WLJ, “It just kills them. Usually ranching is the backbone of most of these communities. Down there around the Grand Staircase, they’re closing schools. Guys just have to find something else for work…” And finding “something else” won’t be easy. Another witness testified that $2 billion in mineral lease royalties were made untouchable by the designation, as was 60 percent of Utah’s known coal reserves.

Research by Utah State University and Southern Utah University has shown that per-capita income in counties within the GSENM is roughly $1,800 below that of comparable counties. This finding goes hand-in-glove with the same researchers’ finding that wilderness designations (similar to monuments in their restrictive management regimes), when compared to analogous nonwilderness counties, have overall lower per capita income, lower total payroll, and lower total tax receipts.

“Just like wilderness, the on-the-ground management on monuments goes downhill, too,” said Eliason. “Plus, there are real transparency issues. Decisions start getting made at high levels, where there’s no knowledge of the resource—just political calculations.”

In his 2013 testimony, Eliason cited a report by the National Riparian Service Team (NRST), which was commissioned by the Bureau of Land Management (BLM) in 2011 after 10 years of failed attempts to complete a grazing management plan on the monument. Among the reasons for this failure, said NRST, was the fact that decisions on the monument no longer seemed to be in local managers’ hands. The report stated there was a “power dynamic at play as evidenced by the long and well-known history of successfully circumventing local BLM management decisions through appeals to higher levels of the agency or Department...” The local BLM personnel “readily acknowledged the difficulty this pose[d] for them in matters such as…permit actions, and in the types of choices they [made] in various environmental documents.” The report cited “little reason for managers to aggressively pursue entry into controversial decision-making venues when it [was] likely that they [would] be overturned by higher authorities who [had] not been part of the process.” In a fairly harsh analysis of the monument’s management, the NRST said, “Transparency and credibility of federal decision-making are casualties of this approach to management. People asked why they would invest time and effort into a process that will simply be overturned based on favorable political connections of one group or another.”

Eliason said these kinds of management problems lead to dangerous situations, such as fuel buildup due to lack of active management. Similarly to wilderness areas, he said, catastrophic wildfire becomes a major threat.

While monuments and wilderness areas may look much like the same animal, they come into the world in two very different ways. On the one hand, wilderness is born of a congressional designation process that usually includes public hearings on the proposed designation’s expected impacts. Local government and stakeholders take their concerns to their elected representatives, who can be held accountable if they make a wilderness designation that is harmful to their constituents. On the other hand, national monuments can hit the ground with no local involvement or support, no public notice, and no deliberation by Congress. Instead, they are signed into law at the sole discretion of the president, under the auspices of the Antiquities Act of 1906.

The Antiquities Act was enacted as a response to concerns over theft and destruction of archaeological sites. It authorizes the president to proclaim national monuments on federal lands that contain “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” While it requires him to reserve “the smallest area compatible with the proper care and management of the objects to be protected,” many presidents have abused their power by designating millions of acres of land at a time.

Congressional Report language from 1906 reveals that the bill’s enactors never intended for more than a few hundred acres—in totem—to be designated.

That hasn’t been the case.

Roughly 136 million acres have been designated over the years, mostly in the West. After President Jimmy Carter designated 56 million acres in one day in Alaska, that state succeeded in securing national legislation prohibiting further monument designations in Alaska without congressional approval. Wyoming had been the first to secure those protections for itself back in 1950, after President Theodore Roosevelt designated the Jackson Hole National Monument. But other states remain vulnerable—as evidenced by new monuments such as President Obama’s 243,000-acre Rio Grande del Norte National Monument in New Mexico, designated in 2013.

More monuments seem to be in the hopper. In 2010, a memo was leaked from the Department of Interior identifying 35 million acres as “worthy of special protection.” The document proposed that 13 million of those acres— covering 11 western states— be “protected” via monument designations. Language in the document revealed that the administration had its eye on hundreds of thousands of privately owned acres, some of which are already within monument boundaries. Private landowners who have become landlocked by monument designations could likely become “willing sellers” without much armtwisting. (Not only do monuments often become closed to grazing, timber harvesting, and mining—roads are often decommissioned, making access for any purpose impossible.) Among the areas listed in the leaked document are: 500,000 acres in the Berryessa Snow Mountains, California; 500,000 acres in Arizona’s Northwest Sonoran Desert; 1.2 million acres on the Otera Mesa of New Mexico; an expansion of the existing Cascade-Siskiyou National Monument into California; and the Owyhee Desert (Oregon and Nevada).

These are just to name a few listed in the document—and Congress reports that, despite its requests, thousands of pages of related documents are being withheld by the administration.

These designations could come at any time. Congressional action appears to be the only way to stop them, or at least bring public and congressional oversight. In addition to Rep. Bishop’s EPIC Act, many other bills are currently under consideration:

Rep. Jason Chaffetz’s (R-UT) H.R. 250, which would subject any designation to congressional approval; Rep.

Virginia Foxx’s (R-NC) H.R. 382, which would require state approval for designations; and targeted bills to prohibit designations without congressional approval in Nevada, Utah, New Mexico, Montana and Idaho.

Under the House-passed EPIC Act, any proposed monument designation exceeding 5,000 acres must undergo National Environmental Policy Act (NEPA) review. NEPA requires in-depth analysis and public and local government involvement for any proposed “major federal action significantly affecting the quality of the human environment.” As stated by the Council for Environmental Quality (CEQ), NEPA’s regulatory agency, “NEPA requires federal agencies to consider environmental effects that include, among others, impacts on social, cultural, and economic resources, as well as natural resources.” NEPA requires a public review and comment period and allows for local governments to engage in “cooperating agency status”—government-to-government pre-decisional development of alternatives and impact analyses.

NEPA also requires federal agencies to document any inconsistencies with local land use plans, along with an explanation of how those inconsistencies would be reconciled. While not action-forcing, NEPA does tell the federal government to work hand-in-hand with local governments and to collect and disseminate information to the public.

According to Dave Eliason, ill-conceived monuments could likely be avoided by shedding light on the expected impacts of a designation, and by allowing local governments to have a say.

“It’s not that we oppose every national monument designation,” said Eliason in an interview with WLJ. “We just want local participation.”

In addition to requiring that all proposed monuments of 5,000 acres or larger undergo NEPA review, the EPIC Act requires a study of the potential loss of federal and state revenue; places limits on the number of monuments one president may designate in a given state during a fouryear term (without congressional approval); and prevents the inclusion of private property in monument declarations without the prior approval of property owners.

Any new monument less than 5,000 acres must get congressional approval within three years, or it will sunset.

In a press release on the bill’s passage through the House, Rep. Bishop said, “It’s common sense that the public should be involved, regardless of whether or not Congress or the president initiates the designation. Today’s bill is a win for the American people.”

Eliason agreed. “This is a good, fair bill.

Even if the Senate doesn’t act, I’m glad this bill has gotten the attention it deserves. Already, we’re seeing light shed on a really big issue that the public needs to be aware of. We sure appreciate Rep. Bishop’s efforts, the [House Natural Resources] Committee’s efforts, and all our supporters in the House.” — Theodora Dowling, WLJ Correspondent