The Clinton administration’s controversial designation last year of 1.7 million acres of land in southern Utah as a “national monument” was “politically motivated and probably illegal,” according to a report released by the majority staff on the House Resources Committee’s subcommittee on National Parks and Public Lands.
Compiled only after a lengthy battle with the White House over subpoenaed documents, the report quotes extensively from e-mail messages among administration officials involved in the monument designation decision. The e-mail traffic shows, among other things, the extraordinary efforts taken by administration officials to shield their activities from the public and Congress, including the Utah delegation.
The report, “Behind Closed Doors: The Abuse of Trust and Discretion in the Establishment of the Grand Staircase Escalante National Monument,” accuses the administration of misusing a turn-of-the-century law, created for an entirely different purpose, to circumvent Congress and avoid compliance with two key environmental statutes.
Getting the White House to grant Congressional investigators access to the relevant documents proved a monumental undertaking. In March, the House Resources Committee launched a review of the Utah affair and requested the White House Council on Environmental Quality (CEQ) and the Department of Interior (DOI) to turn over pertinent documents. CEQ chair Kathleen McGinty refused to produce copies of the documents, arguing they should be kept secret because they were “privileged.”
Protracted Legal Battle
McGinty’s refusal to cooperate set off a protracted legal battle between the Resources Committee and the White House, during the course of which Congressional staffers were allowed to see some documents but not all they felt they were entitled to. Frustrated by the lack of cooperation, the Resources Committee subpoenaed the records on October 7. When that produced no results, Committee staffers began preparing a contempt resolution, a step that persuaded the CEQ to release the documents to the Committee on October 22–six months after they first had been requested.
The documents show clearly that the administration purposely chose to designate the new national monument under the obscure Antiquities Act of 1906 as a way to avoid public and Congressional discussion of what it was prepared to undertake. The Antiquities Act, designed to protect Indian artifacts such as cliff dwellings or historic relics, pre-dates the era in which regulatory decisions require public notice. The Act allows the President, under certain circumstances, to create a monument unilaterally. The advantages to the administration of using the Antiquities Act were several. Under the Act,
- it is not necessary to work with Congress;
- it is not necessary to comply with the Administrative Procedures Act, which requires public notice or opportunity to be heard;
- it is not necessary to comply with the National Environmental Policy Act, which requires involvement of the public and establishment of an administrative record on environmental impacts.
The documents make clear that the initiative for the Utah monument designation, using the Antiquities Act, came from Bruce Babbitt’s Department of Interior and was coordinated by Katie McGinty’s CEQ. Documents turned over to the Resources Committee show that, as early as August 3, 1995, staffers in DOI’s Solicitors Office were discussing the legal risks involved with DOI studying lands for national status. A memo from DOI’s “Dave” notes:
“To the extent that the Secretary [of the Interior] proposes a national monument, NEPA applies. However, monuments proposed by the President do not require NEPA compliance because NEPA does not cover Presidential actions. To the extent that the President directs that a proclamation be drafted and an area withdrawn as a monument, he may direct the Secretary of Interior to be a part of the President’s staff and to undertake and complete all the administrative support. This Interior work falls under the Presidential umbrella.”
This meant creating a paper trail that would give the impression that the President, not the Secretary of Interior, had requested the monument designation. The report notes that the paper trail was produced in a letter from Clinton to Babbitt indicating that the initiative was generated in the executive branch. McGinty underscored the importance of the letter in a revealing e-mail message to the White House on July 29, 1996:
“letter needs to be signed asap so that [the] secy has what looks like a credible amount of time to do his investigation of the matter.”
At one point, McGinty appeared to have second thoughts about using the Antiquities Act as an excuse for the Federal government to seize the land, since the area in question was not environmentally threatened. On March 25, 1996, she wrote:
“i’m increasingly of the view that we should just drop these utah ideas. we do not really know how the enviros will react and i do think there is a danger of ‘abuse’ of the withdraw/antiquities authorities especially because these lands are not really endangered.”
But by August 14, 1996 McGinty had cast aside such legal misgivings for the political gains to be achieved by the Federal takeover of the lands just three months before the election. In a memo to the President, she wrote:
“The political purpose of the Utah event is to show distinctly your willingness to use the Office of the President to protect the environment. . . . It is our considered assessment that an action of this type and scale would help to overcome the negative views toward the administration created by the timber rider. Designation of the new monument would create a compelling reason for persons who are now disaffected to come around and enthusiastically support the administration. . . .”
The Resources Committee summarized its assessment of the Utah affair by noting that the designation of the monument was almost entire politically motivated; the plan to designate the monument was purposefully kept secret from Americans and Utah Members of Congress; the monument designation was put forward even though administration officials did not believe that the lands proposed for protection were in danger; the use of the Antiquities Act was intended to sidestep Congressional involvement in land designation decisions and evade the requirements of the National Environmental Policy Act.