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107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-408

======================================================================



 
                     NATIONAL MONUMENT FAIRNESS ACT

                                _______
                                

 April 15, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Hansen, from the Committee on Resources, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2114]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 2114) to amend the Antiquities Act regarding the 
establishment by the President of certain national monuments 
and to provide for public participation in the proclamation of 
national monuments, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``National Monument Fairness Act''.

SEC. 2. CONGRESSIONAL REVIEW OF NATIONAL MONUMENT STATUS AND 
                    CONSULTATION.

  Section 2 of the Act of June 8, 1906, commonly referred to as the 
``Antiquities Act'' (34 Stat. 225; 16 U.S.C. 431) is amended--
          (1) by striking ``Sec. 2. That the'' and inserting ``Sec. 2. 
        (a) The'';
          (2) by adding the following at the end of subsection (a) (as 
        so designated by paragraph (1)): ``A proclamation of the 
        President under this section that, during one calendar year, 
        creates a national monument that is more than 50,000 acres or 
        that, during one calendar year, adds more than 50,000 acres to 
        an existing national monument may not be issued until 30 days 
        after the President has transmitted the proposed proclamation 
        to the Governor of the State or States in which such acreage is 
        located and solicited such Governor's or Governors' written 
        comments, and any such proclamation shall cease to be effective 
        on the date 2 years after issuance of the proclamation unless 
        the proclamation has been approved by an Act of Congress. Land 
        and interests in land that were subject to a proclamation 
        issued after the date of the enactment of the National Monument 
        Fairness Act that ceases to be effective under the preceding 
        sentence shall revert to the land use status such land and 
        interests in land had immediately before the proclamation was 
        issued.''; and
          (3) by adding after subsection (a) (as so designated by 
        paragraph (1)) the following new subsections:
  ``(b)(1) To the extent consistent with the protection of the historic 
landmarks, historic and prehistoric structures, and other objects of 
historic or scientific interest located on the public lands to be 
designated, the President shall--
          ``(A) solicit public participation and comment in the 
        development of a monument proclamation; and
          ``(B) consult with the Governor and entire congressional 
        delegation of the State or territory in which such lands are 
        located, to the extent practicable, at least 60 days prior to 
        any national monument proclamation.
  ``(2) Before issuing a proclamation under this section, the President 
shall consider any information made available in the development of 
existing plans and programs for the management of the lands under 
consideration for proclamation as a monument, including such public 
comments as may have been offered.
  ``(c) Any management plan for a national monument developed 
subsequent to a proclamation made under this section shall comply with 
the procedural requirements of the National Environmental Policy Act of 
1969.''.

                          Purpose of the Bill

    The purpose of H.R. 2114, is to amend the Antiquities Act 
regarding the establishment by the President of certain 
national monuments, and to provide for public participation in 
the proclamation of national monuments.

                  Background and Need for Legislation

    In 1906, Congress passed the Antiquities Act (Act of June 
8, 1906, codified at 16 U.S.C. 431) in response to a national 
movement to stop vandalism and looting that was occurring on 
public lands with landmarks of prehistoric, historic or 
scientific interest and value. Using this authority, President 
Theodore Roosevelt established 18 national monuments, including 
the Grand Canyon. Many of these monuments, and subsequent 
monuments, have become a part of the National Park system.
    While the intent of the Antiquities Act was to allow the 
President to act quickly to preserve archeological sites, the 
language was broad enough to also allow the President to 
withdraw sites of scientific and historic interest such as 
paleontological and geological sites. The Act specifically 
stated, however, that the President should not withdraw more 
land than was necessary to protect the named specific objects.
    Since 1906, Congress has passed numerous laws which give 
the Congress and the Executive Branch different tools to 
protect public lands and resources, including legislation 
creating the National Park System, the Wildlife Refuge System, 
the National Wilderness Preservation System, the National 
Historic Preservation Act, the Wild and Scenic Rivers System, 
the Archaeological Resources Protection Act, the Federal Land 
Policy and Management Act, and the National Environmental 
Policy Act.
    On September 18, 1996, President Bill Clinton established 
the 1.7 million acre Grand Staircase-Escalante National 
Monument in Southern Utah. According to testimony and documents 
received in previous Congresses by the Committee on Resources, 
this Presidential action was accomplished to appease some in 
the environmental community and timed accordingly to the 
November Presidential election. Some of these documents make it 
clear that this action had very little to do with protection of 
lands but was focused on political advantage. For example, an 
E-mail dated March 22, 1996, from Linda Lance in the Clinton 
White House to the Council on Environmental Quality and the 
Office of Management and Budget staff discussing a draft letter 
from the President said:

          I realize the real remaining question is not so much 
        what this letter says, but the political consequences 
        of designating these lands as monuments when they're 
        not threatened with losing wilderness status, and 
        they're probably not the areas of the country most in 
        need of this designation. Presidents have not used 
        their monument designation authority in this way in the 
        past. * * *

    President Clinton's creation of the Grand Staircase-
Escalante National Monument is a prime example of the need for 
more public input in national monument decisions. Additional 
documents obtained in previous Congresses by the Committee show 
that this particular monument was being planned for months, yet 
the Governor of Utah and Utah's Congressional delegation were 
not informed of the Presidential decision until 2 a.m. the 
morning that the proclamation was signed. These documents also 
demonstrated that the monument proclamation was kept secret 
until just before the announcement to avoid public input and 
Congressional scrutiny, in addition to avoiding the 
environmental analysis otherwise required for public land 
designations under the National Environmental Policy Act. [For 
further information on this topic see the November 7, 1997, 
House Committee on Resources Majority Staff Report, ``Behind 
Closed Doors: The Abuse of Trust and Discretion in the 
Establishment of the Grand Staircase-Escalante National 
Monument,'' (Committee Report 105-D), and the October 16, 1998, 
Committee on Resources Report, ``Monumental Abuse: The Clinton 
Administration's Campaign of Misinformation in the 
Establishment of the Grand Staircase-Escalante National 
Monument'' (H. Rept. 105-824)].
    H.R. 2114 would amend the Antiquities Act of 1906 by 
ensuring it is used only for those purposes originally 
intended. It would also strengthen the Act by ensuring that 
state and local officials are consulted and provided a role in 
the designation process. The bill would amend the Act as 
follows:
          (1) Require the President to transmit the proposed 
        monument proclamation to the Governor of the state(s) 
        in which a monument is located at least 30 days in 
        advance of the notification if the monument exceeds 
        50,000 acres, or enlarges an existing national monument 
        by more than 50,000 acres;
          (2) Require Congressional approval within two years 
        of any national monument proclamation that creates a 
        national monument more than 50,000 acres, or enlarges 
        an existing national monument by more than 50,000 
        acres. If Congressional approval does not occur within 
        two years, the proclamation shall cease to be in 
        effect, and
          (3) Require the President to solicit public 
        participation and comment, and to consult with the 
        Governor and congressional delegation of the state at 
        least 60 days prior to any national monument 
        proclamation.

                            Committee Action

    H.R. 2114 was introduced on June 7, 2001, by Congressman 
Mike Simpson (R-ID), and referred to the Committee on 
Resources. On June 14, 2001, the bill was referred to the 
Subcommittee on National Parks, Recreation, and Public Lands. 
On July 17, 2001, the Subcommittee held a hearing on the bill. 
On July 31, 2001, the Subcommittee met to mark-up the bill. 
Congressman Mike Simpson offered an amendment requiring the 
Secretary of Interior to revert the land uses and interests in 
the land that were subject to a proclamation under the Act 
should Congress not approve the proclamation within two years. 
The amendment was adopted by voice vote. The bill, as amended, 
was then forwarded to the Full Committee by voice vote. On 
March 20, 2002, the Full Resources Committee met to consider 
the bill. Congressman Mike Simpson offered an additional 
amendment to clarify that land and interests in land that were 
subject to a proclamation not approved by Congress and are 
reverted back to their use prior to the proclamation will only 
affect those proclamations issued after the date of enactment 
of this Act, and not all prior proclamations under the 
Antiquities Act. The amendment also clarified that 
Congressional approval must be by an Act of Congress. The 
amendment was adopted by voice vote. The bill, as further 
amended, was then ordered favorably reported to the House of 
Representatives by a roll call vote of 23 to 18, as follows:


            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 and Article IV, section 3, of the 
Constitution of the United States grant Congress the authority 
to enact this legislation.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures. According to the Congressional 
Budget Office, enactment of this legislation would have no 
significant impact on the federal budget and would not 
significantly affect federal costs.
    3. General Performance Goals and Objectives. This bill does 
not authorize funding and therefore, clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives does not 
apply.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 5, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2114, the National 
Monument Fairness Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 2114--National Monument Fairness Act

    CBO estimates that implementing H.R. 2114 would have no 
significant impact on the federal budget. The bill would not 
affect direct spending or receipts; therefore, pay-as-you-go 
procedures would not apply. H.R. 2114 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    The Antiquities Act of 1906 authorizes the President to 
declare landmarks, structures, and other objects of historic or 
scientific interest on federal lands to be national monuments. 
H.R. 2114 would amend that act to require the President to 
solicit public participation and comment and to consult with 
governors and congressional delegations from affected states at 
least 60 days before designing a monument of any size. H.R. 
2114 would prohibit the President from designating monuments 
exceeding 50,000 acres until 30 days after notifying the 
governors of states in which the proposed monuments would be 
located. Under the bill, designations of such monuments would 
require Congressional approval within two years to remain in 
effect. Finally, H.R. 2114 would require that management plans 
for national monuments developed subsequent to a declaration 
made under H.R. 2114 comply with the procedural requirements of 
the National Environmental Policy Act of 1969.
    According to the Department of the Interior, the 
Administration currently follows procedures for designating 
monuments that would satisfy new requirements under H.R. 2114. 
Hence, CBO estimates that implementing this bill would not 
significantly affect federal costs.
    The CBO staff contact for this estimate is Megan Carroll. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                  SECTION 2 OF THE ACT OF JUNE 8, 1906


   CHAP. 3060.--An Act For the preservation of American antiquities.

(Commonly referred to as the ``Antiquities Act'')

           *       *       *       *       *       *       *


  [Sec. 2. That the] Sec. 2. (a) The President of the United 
States is hereby 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: Provided, That when 
such objects are situated upon a tract covered by a bona fide 
unperfected claim or held in private ownership, the tract, or 
so much thereof as may be necessary for the proper care and 
management of the object, may be relinquished to the 
Government, and the Secretary of the Interior is hereby 
authorized to accept the relinquishment of such tracts in 
behalf of the Governmet of the United States. A proclamation of 
the President under this section that, during one calendar 
year, creates a national monument that is more than 50,000 
acres or that, during one calendar year, adds more than 50,000 
acres to an existing national monument may not be issued until 
30 days after the President has transmitted the proposed 
proclamation to the Governor of the State or States in which 
such acreage is located and solicited such Governor's or 
Governors' written comments, and any such proclamation shall 
cease to be effective on the date 2 years after issuance of the 
proclamation unless the proclamation has been approved by an 
Act of Congress. Land and interests in land that were subject 
to a proclamation issued after the date of the enactment of the 
National Monument Fairness Act that ceases to be effective 
under the preceding sentence shall revert to the land use 
status such land and interests in land had immediately before 
the proclamation was issued.
  (b)(1) To the extent consistent with the protection of the 
historic landmarks, historic and prehistoric structures, and 
other objects of historic or scientific interest located on the 
public lands to be designated, the President shall--
          (A) solicit public participation and comment in the 
        development of a monument proclamation; and
          (B) consult with the Governor and entire 
        congressional delegation of the State or territory in 
        which such lands are located, to the extent 
        practicable, at least 60 days prior to any national 
        monument proclamation.
  (2) Before issuing a proclamation under this section, the 
President shall consider any information made available in the 
development of existing plans and programs for the management 
of the lands under consideration for proclamation as a 
monument, including such public comments as may have been 
offered.
  (c) Any management plan for a national monument developed 
subsequent to a proclamation made under this section shall 
comply with the procedural requirements of the National 
Environmental Policy Act of 1969.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We are strongly opposed to H.R. 2114. The bill is a 
misguided legislative proposal that would undermine an 
important law that has been used to protect significant aspects 
of our national heritage.
    Since its enactment 96 years ago, the Antiquities Act has 
been used by 14 Presidents 122 times to protect unique and 
vulnerable public lands from threats, both natural and man-
made. While the Antiquities Act of 1906 may sound outdated to 
some, the importance of the resource protection the Act has 
provided has only increased over time. Sprawl, development and 
pollution have intensified the pressure on sensitive areas of 
public lands containing significant natural, historical, and 
scientific resources.
    At the core of H.R. 2114 are unworkable provisions left 
over from a divisive and unsuccessful monument fight back in 
the 105th Congress. These provisions allow national monument 
opponents to block new designations by stalling legislation in 
Congress and use an arbitrary 50,000-acre threshold that has no 
relationship to the protection of endangered resources on the 
ground.
    Not only are the bill's provisions unworkable but they are 
unwarranted as well. Contrary to the assertions that have been 
made, the Antiquities Act does not authorize ``land grabs.'' 
The Act clearly states that the President can only designate 
public lands as national monuments. All our national monuments 
were already owned by the American people before they were 
designated. No private property has been or will be taken by a 
monument designation.
    But these claims are not the real reason proponents are 
pushing this bill. The real reason is more disappointing. 
President Clinton left office more than 14 months ago, but it 
was obvious from the comments of the bill's supporters in 
Committee that they are still fighting him. This legislation 
appears to be more about revenge than developing sound public 
policy. There are those who don't want to accept the fact that 
the National Monuments proclaimed by previous Presidents are 
supported and treasured by the American public. They dare not 
attack those monuments head-on, so they resort to the backdoor 
approach of H.R. 2114.
    In their haste to punish a former President, however, 
supporters of this bill send a clear message that they don't 
trust the current President nor his Secretary of the Interior. 
This distrust is ironic given that the only monument proposal 
of which we are aware is one being prepared by Interior 
Secretary Norton that will encompass 640,000 acres of the San 
Rafael Swell in Utah; a proposal that was suggested by the 
Republic Governor of Utah and is supported by the Chairman of 
the Resources Committee.
    There is nothing in either current law or the Constitution 
that limits Congressional authority to pass legislation to 
amend, modify, or repeal the designation of a national 
monument. If there are problems with an individual designation 
that is the process that can and should be used.
    Last year the Administration proposed oil and gas drilling 
in our national monuments. The Congress wisely passed 
legislation preventing this exploitation of our national 
heritage. H.R. 2114 is a new assault on the protection of 
sensitive and pristine public lands. Congress would be wise to 
bury this proposal as well. We urge the defeat of H.R. 2114.

                                   Nick Rahall.
                                   George Miller.
                                   Jay Inslee.
                                   Frank Pallone, Jr.
                                   Rush Holt.
                                   Hilda L. Solis.
                                   Mark Udall.
                                   Dale E. Kildee.
                                   Ed Markey.
                                   Tom Udall.
                                   Betty McCollum.
                                   Peter A. DeFazio.