Newspaper column: Bill would limit power to create national monuments

Gold Butte National Monument (BLM pix)

The House Committee on Natural Resources this past week approved a bill sponsored by Utah Republican Rep. Rob Bishop to rein in the powers granted by the Antiquities Act of 1906 that allow a president to unilaterally create huge national monuments.

The bill advanced on a party line vote of 27-13, with Democrats in opposition.

The bill, H.R. 3990, the National Monument Creation and Protection Act, amends the Antiquities Act to limit the size of future monuments and specifically grants the sitting president the power to reduce the size of existing monuments — a power Democrats have argued President Trump does not have under current law.

During his administration President Obama created 26 national monuments totaling more than 500 million acres — including the 700,000-acre Basin and Range National Monument on the border of Lincoln and Nye counties and the 300,000-acre Gold Butte National Monument in Clark County.

President Trump ordered Interior Secretary Ryan Zinke to review recent monument designations and Zinke sent a memo to the president recommending the reduction in size of six of those, including Gold Butte. The president has not yet acted on those recommendations.

Bishop’s bill would allow the president to unilaterally reduce the size of any monument by 85,000 acres — and by more with the consent of affected counties and states.

The bill would allow a president in the future to create a new monument unilaterally, but only up to 640 acres. Anything larger than that, up to 10,000 acres, would require an environmental review. Anything between 10,000 and 85,000 acres, the apparent size cap on new monuments, would require approval of counties and state officials, as well as the governor.

“Congress never intended to give one individual the power to unilaterally dictate the manner in which all Americans may enjoy enormous swaths of our nation’s public lands,” Bishop was quoted as saying. “Designations are no longer made for scientific reasons or archaeological value but for political purposes. Unfortunately, overreach in recent administrations has brought us to this point and it is Congress’ duty to clarify the law and end the abuse.”

Like the Natural Resources Committee, Nevada’s congressional delegation is divided along party lines when it comes to national monuments. The four Democrats have all objected bitterly and volubly to reducing the size of Nevada’s monuments.

But its two Republican delegates in January introduced legislation that would prevent future designations of monuments in Nevada without the consent of Congress — the Nevada Land Sovereignty Act of 2017 (H.R. 243, S. 22).

The legislation introduced by Sen. Dean Heller and Rep. Mark Amodei is terse and to the point. It basically piggybacks onto current law that reads: “No extension or establishment of national monuments in Wyoming may be undertaken except by express authorization of Congress.” Their bill would amend this by simply adding the phrase “or Nevada” after the word Wyoming.

In response to Bishop’s bill passing the committee, a Heller press aide sent out a comment, “Unilateral federal land grabs in a state like Nevada where the federal government already owns 85 percent of our land should not be permitted. Public input and local support remain critical to the decision-making process of federal land designations, and that is why I’ve introduced legislation that prevents last year’s land grab under the Obama administration from occurring without input from Congress and local officials. I’ll continue working with my colleagues to see that it is signed into law.”

Congressman Amodei said in January before Trump’s inauguration, “I continue to be amazed by the fact that some people hug unilateral, non-transparent monument designations, while at the same time, protesting vehemently over the introduction and public discussion of congressional lands bills proposals. In contrast to the last eight years of this administration’s one-sided approach on major land management decisions in Nevada, our bill simply ensures local stakeholders have a seat at the table going forward.”

Bishop’s proposal also declares that existing water and land rights are to preserved despite a monument designation.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Zinke recommendation to reduce Gold Butte Monument size met with usual blather

Interior Secretary Ryan Zinke’s memo to President Trump recommending an unspecified reduction in size of several recently created national monuments — including the 300,000-acre Gold Butte National Monument in Clark County — has sent the usual suspects into apoplexy.

Democrat Rep. Ruben Kihuen, whose district includes Gold Butte, screeched, “The latest leaks from this administration show that once again Secretary Zinke is ignoring the will of Nevadans by recommending that the size of Gold Butte National Monument be reduced. This decision will not only be detrimental to Nevada’s economy and shared cultural heritage, but it is further proof that the monument review process has been rigged from the start. Secretary Zinke promised that Nevadans’ voices would be heard. Instead, we got half-hearted attempts to meet with stakeholders and secret memos cooked up behind closed doors, all when the outcome was predetermined from the beginning. When it comes to altering our monuments and impacting our livelihood, Nevadans deserve more than unofficial leaks and uncorroborated reports. Secretary Zinke should look Nevadans in the eye and give it to us straight, rather than hide behind the administration’s continued shroud of secrecy.”

Secretary Ryan Zinke talks to media in Bunkerville during a visit to Gold Butte. (R-J pix)

Actually, the residents of Mesquite welcome the reduction, especially if the free land assures the town it will have access to springs in the region that will be needed to supply the growing community with drinking water in the future.

Zinke’s memo specifically noted that the water district has historic water rights to six springs and five of those are within the Obama-designated national monument boundaries.

Democrat Rep. Dina Titus weighed in by proclaiming, “Secretary Zinke leaked a memo in the middle of the night because he knows his plan to hack away at monuments like Gold Butte is an overreach opposed by the majority of Americans. Gold Butte’s opponents have created a straw man argument about water rights without mentioning that the monument’s proclamation includes language to protect them. Now we must recommit our effort to protect these precious public lands in the courts and send a strong message to Zinke and Trump to keep their hands off our monuments.”

Democrat Rep. Jacky Rosen claimed, “No President has unilateral power to revoke a national monument under the Antiquities Act and any decision to redefine protections for Nevada’s national monuments is a blatant overreach. This rash decision by the Trump Administration will not only endanger Nevada’s natural beauty and chip away at our cultural heritage, but it will also hurt our state’s outdoor recreation economy by eliminating jobs that have contributed significantly to our local tourism industry. I’ll continue to stand up to this administration, in every way I can, to protect Nevada’s public lands.”

Democrat Sen. Catherine Cortez Masto in the past has opposed reducing the footprint of any national monument.

But Republican Sen. Dean Heller and Rep. Mark Amodei had opposed the designation of Gold Butte and the 700,000-acre Basin and Range National Monument in Nye and Lincoln counties. Zike’s memo makes no mention of Basin and Range.

Heller said, “As a strong proponent of states’ rights, the Obama Administration’s decision to bypass Congress and designate two national monuments in Nevada despite widespread disagreement at the local level is an example of extreme overreach and the failed Washington-knows-best mentality. That is why I welcomed Secretary Zinke to Nevada to see first-hand the impact of monuments designated under the Antiquities Act with no local input. After talking to and meeting with the Secretary several times, I am pleased that he has taken my recommendation to ask the President to modify Gold Butte’s boundaries to allow the Virgin Valley Water District to access its water rights that were lost under the previous Administration. These actions recommended by me and Secretary Zinke prioritize local concerns over the opinion of Washington bureaucrats, and I hope that President Trump will agree with the Secretary.”

Frankly, the designations as national monuments did little more than create paperwork, because the all the land was under the jurisdiction of various federal land agencies, primarily the Bureau of Land Management. The monument designation does nothing to add actual protection for the few petroglyphs and other artifacts that are located on the sites.

Zinke noted this lack of protection and wrote that his agency “should work with Congress to secure funding for adequate infrastructure and management needs to protect objects effectively” in Gold Butte.

As we have already noted, these monuments need not be so large.

The Antiquities Act of 1906 was passed in order to protect prehistoric and Indian ruins and artifacts on federal land in the West and the law limits such designations to “the smallest area compatible with proper care and management of the objects.” While earlier monuments averaged 422 acres, several of Obama’s designations exceeded a million acres.

The Gold Butte portion of the Zinke memo:

Editorial: Western congressmen seek monument size reductions

Recently the 17 members of the Congressional Western Caucus — which includes Nevada’s Rep. Mark Amodei — took Interior Secretary Ryan Zinke up on his request for feedback on what to do about all the national monuments created in the past two decades, sending him a letter with specific recommendations about 27 of those monuments.

These recommendations called for vastly scaling back the size of two monuments created by President Obama in his last year in office at the urging of then-Sen. Harry Reid — the 300,000-acre Gold Butte in Clark County and the 700,000-acre Basin and Range in Nye and Lincoln counties.

The letter repeatedly points out that the Antiquities Act of 1906, which authorizes the president to create monuments, was passed in order to protect prehistoric and Indian ruins and artifacts on federal land in the West and the law limits such designations to “the smallest area compatible with proper care and management of the objects.” While earlier monuments averaged 422 acres, several of Obama’s designations exceeded a million acres, the letter notes.

Zinke’s review of the monuments comes at the behest of President Trump, who in April asked for the review in an executive order, giving Zinke till Aug. 26 to comply. Zinke was scheduled to be in Nevada this week to discuss the matter.

As for Basin and Range, the congressmen point out it is larger than Rhode Island and was created as “a personal favor to then-Senate Minority Leader Harry Reid. According to a former Obama adviser, ‘it is only due to Harry Reid that [Basin and Range] is getting done.’”

The letter quotes opposition to the monument from the Nevada Farm Bureau, as well as Lincoln and Nye County commissioners.

Nye County Commissioner Lorinda Wichman called the monument “an excellent example of hypocrisy,” noting that Reid insisted on local consent for the construction of a nuclear waste repository in Nye County at Yucca Mountain, which many in Nye favor, while ignoring the lack of local consent for Basin and Range, which many opposed because of its impact on recreation, grazing and mineral exploration.

The letter also points out that one of the motives for creating Basin and Range was to provide a buffer for an “art” project on a strip of private land, which has nothing to do with protecting antiquities.

According to a Washington Post article in 2015, Reid, who for two years could not get Congress to go along with his proposal to put the land off limits, asked Obama to create a national monument partly as a buffer for a giant earthen and concrete art project called “City” and described as “reminiscent of a ceremonial Mesoamerican city stretching across an expanse of desert nearly the size of the Mall” in Washington. The “artist” has been working on it for 50 years and allows only VIP visitors and journalists to view his work.

Though both Amodei and then-Rep. Cresent Hardy, in whose districts the monument is located, opposed it, Reid persuaded Obama, who owed him a favor or two for such things as ObamaCare and ending the filibuster for judicial nominations.
The caucus letter recommends the monument be reduced to about 2,500 acres — “the smallest area compatible with proper care and management of the objects to be protected.”

As for Gold Butte, the letter notes the designation specifically bans grazing and suggests it was “political retribution” against the Bundy family, whose cattle have grazed in the area for more than a century. Cliven Bundy and four of his sons are currently in jail awaiting trial on charges growing out of an armed standoff in 2014 when BLM agents attempted to confiscate their cattle.

In January, Amodei and Sen. Dean Heller introduced the Nevada Land Sovereignty Act, which intends to prevent the threat of executive action designating or expanding national monuments without congressional approval or local support.

Neither monument needs to be so large.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Gold Butte (BLM pix)

 

Does it really take a million acres of national monuments in Nevada to protect a few artifacts?

President Trump’s signing of an executive order calling for a review of the national monument designations made in the past 20 years prompted the local newspaper to drag out the usual suspects to moan and groan about the need to “protect” the million acres of Nevada land that Obama designated as national monuments in his last months in office.

Trump called Obama’s use of the Antiquities Act of 1906 to create monuments an “egregious abuse of federal power.”

“We’re very dismayed,” one of the lock-up-the-land advocates told the local paper. “We worked hard on this for 15 years. I think the issue has been decided.”

Largely decided without any input for local officials and residents.

“Today we’re putting the states back in charge,” Trump said Wednesday.

His Interior Secretary Ryan Zinke said his agency will recommend which monuments should be lifted or, perhaps, reduced in size. He also said local feedback will be sought.

Before Obama created with a stroke of his pen the 700,000-acre Basin and Range Monument on the Nye and Lincoln border and the 300,000-acre Gold Butte Monument near Mesquite, he might have asked someone to actually read that 1906 law which gives the president the power to declare land off-limits to productive use for the purpose of protecting “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” on public land. The law also says that the designation “shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”

Does it take a million acres to protect a few petrogylphs and artifacts?

Though the monuments’ backers say the Antiquities Act grants the president power to create monuments but does not grant the power to rescind previous designations, there is legal precedent that states a presidential right to declare implies a presidential right to rescind.

The Wall Street Journal pointed out earlier this year, “In Myers v. United States (1926), the Supreme Court ruled that the president’s power to appoint officials, with the advice and consent of the Senate, includes the power to unilaterally remove them.”

The court said, “The power of removal is an incident of the power to appoint …”

BLM pix

 

 

How Obama’s national monumental land grab can be undone

Gold Butte

Gold Butte

After Obama unilaterally cordoned off 1.3 million acres of Utah and another 300,000 acres of Nevada as national monuments, Utah Attorney General Sean Reyes vowed to file a lawsuit and Nevada’s Attorney General Adam Laxalt called Obama’s action “a unilateral land grab,” but stopped short of threatening to sue.

The creation of Bears Ears National Monument in Utah and Gold Butte National Monument in Nevada has the self-styled environmentalists singing hosannas to the highest and the states’ rights crowd moaning with dejection.

Environmentalists have pooh-poohed legal challenges to the 1906 Antiquities Act in which Congress gave the president the power to create national monuments, saying the courts have upheld the act several times.

But as I related a couple of months ago the law has never been challenged on the basis of its constitutionality.

Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906.

Heritage Foundation essay by a federal judge argues it may not:

Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress. 

Arguably, Congress may not abrogate the powers and authority defined in the Constitution without amending it.

Laxalt issued a statement saying: “This unilateral land grab is the latest attempt for the outgoing president to add another layer of unnecessary federal control to our State. Although I am not surprised by the president’s actions, I am deeply disappointed at his last minute attempt to cement his environmental legacy by undermining local control of Nevada’s communities, and damaging our jobs and economy.”

Though resigned to the Gold Butte designation, Gov. Brian Sandoval worked to avoid some of the problems it would create. “My priority was to mitigate any disruption a potential designation may cause the surrounding private land owners, communities and recreationists,” he said, citing especially water rights.

The governor said he worked with “the White House and Department of Interior to ensure Nevada water law is adhered to and that the Virgin Valley Water District would have access to its water infrastructure for continued development and maintenance.”

Maintenance perhaps, but development?

The Obama proclamation states: “The establishment of the monument is subject to valid existing rights, including valid existing water rights.” (2016goldbutte)

Existing water rights, not new ones.

The proclamation goes on to say “nothing in this proclamation shall be construed to preclude the renewal or assignment of, or interfere with the operation, maintenance, replacement, modification, or upgrade within the physical authorization boundary of existing flood control, pipeline, and telecommunications facilities, or other water infrastructure, including wildlife water catchments or water district facilities, that are located within the monument. Except as necessary for the care and management of the objects identified above, no new rights-of-way shall be authorized within the monument.”

Perhaps, the governor and the attorney general should discuss joining Utah in challenging the Antiquities Act itself.

They could also talk to President-elect Donald Trump about simply undoing the monument designations. A presidential right to declare implies a presidential right to rescind.

The Wall Street Journal pointed out recently, “In Myers v. United States (1926), the Supreme Court ruled that the president’s power to appoint officials, with the advice and consent of the Senate, includes the power to unilaterally remove them.”

The court said, “The power of removal is an incident of the power to appoint …”

Perhaps, Sen. Dean Heller could join the fray. He said in a statement: “I am terribly disappointed with today’s news. For years, I have urged for all new land designations, especially ones in Nevada, to be considered in an open and public Congressional process. Doing so allows for all voices and stakeholders to have an equal opportunity to be heard. Best of all, input from local parties guarantees local needs are addressed. In the future, I will continue to fight for an open process utilizing Congressional support to designate new national monuments.”

There is more than one way to flay this feline.

 

 

 

Obama declares Gold Butte a national monument

Gold Butte (R-J photo by Jeff Scheid)

Gold Butte (R-J photo by Jeff Scheid)

Obama has made another midnight ramble, locking up still more land from productive use in Nevada and Utah. Today he added to the already millions of acres of national monuments by naming Gold Butte in northeast Clark County and Bears Ears in Utah as monuments, according to the Washington Post.

Using the constitutionally questionable Antiquities Act, Obama basically declared the land in the two new monuments off limits, though we doubt Bundy’s free range cattle can tell where the boundary lies.

As WaPo noted Harry Reid has been pushing Obama to designate 300,000 acres of Gold Butte before leaving office. “Reid intensified his campaign when the Bundys were jailed earlier this year for a takeover at the Oregon wildlife refuge, arguing that any pushback would be minimized while they were incarcerated,” the paper reports.

Whether there will be a pushback from the new Trump administration remains to be seen.

Sen. Dean Heller had urged Obama to not designate Gold Butte, but Reid’s hand-picked Senate heir is not like to join with opposing the move.