Utah Ass'n of Counties v. Bush

316 F.Supp.2d 1172

UTAH ASSOCIATION OF COUNTIES, on behalf of its members Plaintiffs, v. George W. BUSH, in his official capacity as President of the United States, et al., Defendants. and Southern Utah Wilderness Alliance, et al., Defendants-Intervenors.

Mountain States Legal Foundation, on behalf of its members Plaintiffs, v. George W. Bush, in his official capacity as President of the United States, et al., Defendants. and Southern Utah Wilderness Alliance, et al., Defendants-Intervenors.

No. 2:97 CV 0479.

No. 2:97 CV 0863.

United States District Court, D. Utah, Central Division.

April 19, 2004.

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Ronald W. Thompson, Stephen H. Urquhart, Thompson Awerkamp & Urquhart LC, St. George, UT, Constance E. Brooks, Michael B. Marinovich, CE Brooks & Associates, Denver, CO, Steven J. Christiansen, Parr Waddoups Brown Gee & Loveless, Salt Lake City, William Perry Pendley, Todd S. Welch, S. Amanda Koehler, Mountain States Legal Foundation, Lakewood, CO, for Plaintiffs.

Carlie Christensen, U.S. Attorney's Office, Gary B. Randall, U.S. Department of Justice Environmental & Natural Resources Div., Washington, DC, Ann Navaro, Department of Justice, Lois J. Schiffer, U.S. Department of Justice Environment & Natural Resources Division, Washington, DC, Michael A. Gheleta, Department of Justice, Denver, CO, for Defendants.

Rodney R. Parker, Snow Christensen & Martineau, Heidi J. McIntosh, Stephen H. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT, William L. Underwood, Richard A. Duncan, Craig S. Coleman, Faegre & Benson, Minneapolis, MN, Karleen M. O'Connor, Faegre & Benson, Minneapolis, MN, for Defendants-Intervenors.

OPINION AND ORDER

BENSON, District Judge.

INTRODUCTION

The present matter comes before the Court on defendants' Motion to Dismiss or in the alternative for Summary Judgment and plaintiffs' Motions for Summary Judgment. The motions were argued before the Court on January 15, 2004. The Court has considered the legal briefs and oral arguments of the respective parties and enters the following Opinion and Order.

BACKGROUND

A. THE LAWSUITS AND THEIR CONTENTIONS

On September 18, 1996, President William Jefferson Clinton, invoking his authority under the Antiquities Act, designated 1.7 million acres of federal land in southeastern Utah as the Grand Staircase-Escalante National Monument. On June 23, 1997, the Utah Association of Counties, (UAC) filed this lawsuit challenging the President's actions, naming as defendants the United States of America, William J. Clinton in his official capacity as President of the United States, Kathleen McGinty in her official capacity as chair of the Council on Environmental Quality (CEQ), Secretary of the Interior Bruce Babbitt, the United States Department of the Interior (DOI), and Patrick Shea, Director of the Bureau of Land Management (BLM).

On November 5, 1997 Mountain States Legal Foundation (MSLF) filed a similar suit against defendants Clinton, Babbitt, and the United States of America. A month later, MSLF filed an amended complaint, which added defendant McGinty. UAC's and MSLF's cases were consolidated.¹

Plaintiffs allege:

1) The Antiquities Act is unconstitutional because it violates the delegation doctrine. Plaintiffs claim that only Congress has the authority to withdraw such lands from the federal trust.

2) By creating the Grand Staircase Monument the President acted ultra vires and violated the following provisions of the United States Constitution:

a) the Property Clause, U.S. Const., Art. IV, § 3, cl. 2; because the authority to manage federal lands rests exclusively with Congress; and

b) the Spending Clause, U.S. Const., Art. I, § 8, cl. 1; because only Congress has the authority to obligate money which will be drawn from the Treasury to purchase private property.

3) By creating the Grand Staircase Monument the President violated:

a) the Antiquities Act, 16 U.S.C. § 431; because he failed to designate the requisite objects of historic or scientific value and he did not limit the size of the monument to the "smallest area" necessary to preserve the objects.

b) the Wilderness Act, 16 U.S.C.A. § 1131 et seq.; because the President established as de facto wilderness areas within the Grand Staircase Monument, and only Congress has the authority to designate public lands as wilderness.

c) Executive Order 10355, because the President, rather than the Secretary of the Interior, withdrew the land.

4) By creating the Grand Staircase Monument the President and/or one or more of the other defendants violated:

a) the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 et seq; because the joint activities of the Department of the Interior and CEQ were carried out independently of the President and were in fact initiated by DOI, and therefore these actions required the preparation of an Environmental Impact Statement (EIS) and compliance with other NEPA regulations, which did not happen.

b) the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq.; because the President's withdrawal of public lands did not comply with FLPMA's withdrawal, notice and land use planning provisions.

c) the Federal Advisory Committee Act (FACA), 5 U.S.C. app 2; because advice and recommendations were received by the President and other defendants from various individuals who constituted an "advisory committee" within the meaning of FACA and therefore required compliance with FACA's procedural standards.

d) The Anti-Deficiency Act, 31 U.S.C. § 1341; because an improper appropriation was created.

Both plaintiffs seek summary judgment as to all of the above claims.

All of the defendants seek dismissal or in the alternative summary judgment as to all claims. They challenge the Court's jurisdiction to hear the case under the doctrines of standing (as to MSLF only), ripeness and lack of judicial review authority. As to the plaintiffs' claims of violations of the United States Constitution and federal statutes, the defendants seek dismissal as a matter of law.

1. THE ANTIQUITIES ACT

The Antiquities Act of 1906, 16 U.S.C. § 431, gives the President authority to create national monuments.² Since its enactment presidents have used the Antiquities Act more than 100 times to withdraw lands from the public domain as national monuments. President Clinton's use of the Antiquities Act to create the Grand Staircase Monument in 1996 was the first use of the Antiquities Act in more than two decades. The Antiquities Act authorizes the President, "in his discretion," to establish as national monuments "objects of historic or scientific interest that are situated upon the lands owned or controlled by the government of the United States." Id. The Act requires the president to reserve land confined to the "smallest area compatible with the proper care and management of the objects to be protected." Id. For purposes of this litigation, it is helpful to look to the creation of the Act and how it has been used and interpreted since its creation in 1906.

The original purpose of the proposed Act was to protect objects of antiquity.³ The substance of the Act, developed over a period of more than six years, was created in response to the demands of archaeological organizations. Although the scope of the archaeological organizations' proposals was limited to preservation of antiquities on federal lands, the United States Department of the Interior proposed adding the protection of scenic and scientific resources to the Act. For six years Congress rejected attempts to include the Department's proposal. It appears, however, that Congress was unable to pass the limited archaeologists' bill because of bureaucratic delays and various disagreements between museums and universities seeking authority to excavate ruins on public lands. See Richard M. Johannsen, Public Land Withdrawal Policy and the Antiquities Act, 56 Wash. L.Rev. 439, 448 (1981).

Edgar Lee Hewitt, a prominent archaeologist, drafted the bill that was finally enacted in 1906. Government officials persuaded Hewitt to broaden the scope of his draft by including the phrase "other objects of historic or scientific interest." This phrase essentially allowed the Department of the Interior's proposal, which Congress had previously rejected, to be included in the final bill. In addition, while earlier proposals had limited the reservations to 320 or at the most 640 acres, Hewitt's draft allowed the limit to be set according to "the smallest area compatible with the proper care and management of the objects to be protected." Despite the presence of this broader language, there is some support for the proposition that Congress intended to limit the creation of national monuments to small land areas surrounding specific objects. Illustrative of this intent is House Report No. 2224, which states "[t]here are scattered throughout the southwest quite a large number of very interesting ruins ... [t]he bill proposes to create small reservations reserving only so much land as may be absolutely necessary for the preservation of these interesting relics." h.r. rep. no. 2224, 59th congress, 1st sess. at 1 (1906).

Despite what may have been the intent of some members of Congress, use of the Antiquities Act has clearly expanded beyond the protection of antiquities and "small reservations" of "interesting ruins." Nothing in the language of the Act specifically authorizes the creation of national monuments for scenic purposes or for general conservation purposes. Nonetheless, several presidents have used the Act to withdraw large land areas for scenic and general conservation purposes. President Theodore Roosevelt was the first president to withdraw land under the Act, establishing a precedent other presidents later followed to create large scenic monuments. Within two years of enactment of the Act, President Roosevelt made eighteen withdrawals of...