Academic journal article Duke Environmental Law & Policy Forum

Natural Resources Policy under the Bush Administration: Not What It Says, but What It Has Done in Court

Academic journal article Duke Environmental Law & Policy Forum

Natural Resources Policy under the Bush Administration: Not What It Says, but What It Has Done in Court

Article excerpt

September 18, 1996 was not a good day for Western Americans in general or for Utahans in particular. Standing at the edge of the Grand Canyon in Arizona, President Clinton announced the creation of a 1.7 million acre national monument in neighboring Utah. (1) He did so, he and others admitted, to kill an underground mine that would have employed 1,000 highly paid workers and generated more than $16 million in annual revenue in economically hard-pressed Garfield and Kane Counties. (2) Incredibly, as Governor Leavitt revealed later in congressional testimony, President Clinton called him at two o'clock in the morning on the day of the announcement, averring that no decision had been made and encouraging Governor Leavitt to provide Clinton with his thoughts on the possible designation of a national monument in Utah. (3) President Clinton did give Robert Redford advance notice of the photographic opportunity. (4) On the day of the announcement, which garnered headlines across the country, environmental groups lauded Clinton; westerners reviled him.

Therefore, it was not surprising that Dick Cheney's announcement. during the presidential campaign of 2000, that he would revoke all of Clinton's national monuments was greeted with enthusiasm throughout the west. (5) Of course, by this time, Clinton had abused the power that Congress had delegated to him through the Antiquities Act several more times in other Western states. (6) In the wake of Clinton's announcements, lawsuits had been filed challenging Clinton's authority to unilaterally create vast wilderness-style land designations by means of a statute adopted to protect items of antiquity. Observers concluded that the first evidence of Governor Bush's intention to do as Secretary Cheney suggested would come in the federal government's response to that litigation. (7)

Mountain States Legal Foundation (MSLF) filed two of those lawsuits. On Halloween, 1996, MSLF challenged President Clinton's creation of the Grand Staircase-Escalante National Monument, a lawsuit in which it was joined subsequently by both Governor Leavitt and the Utah Association of Counties. (8) Then, in August 2000. MSLF and the Blue Ribbon Coalition filed suit in Washington, D.C., contesting President Clinton's authority to designate six national monuments in four western states: Washington, Oregon, Colorado, and Arizona. (9) Naturally, the Clinton Administration vigorously defended Clinton's action, by stonewalling as to discovery and by asserting, in an unsuccessful attempt, that Congress had ratified Clinton's designation of the Utah monument through action and inaction. (10)

However, although there was a change in the occupant of the Oval Office on January 20, 2001, there was no change in the approach of the U.S. Department of Justice to assertions that Clinton had violated the Constitution and federal law by his designation of national monuments across the west. Indeed, in time, the Bush Administration leaked news that President Bush would not repeal the Clinton decrees. (11) Instead, Bush lawyers vigorously defended all of Clinton's actions, including those in the designation of the Utah monument that involved the illegal backdating of a presidential letter in order to escape the requirements of the National Environmental Policy Act (NEPA). (12) In fact, Bush lawyers even went so far as to suggest that no citizen had the right to challenge what MSLF and the Blue Ribbon Coalition asserted were the ultra vires actions of President Clinton in designating six vast monuments in four western states. (13)

The response of the Bush Administration is disappointing for two reasons. First, Governor Bush and Secretary Cheney campaigned throughout the American West by making common cause with westerners who were angry at the unilateral fashion in which President Clinton had designated national monuments. For not only were the wishes of the residents of the states and counties and their political leaders not considered--in fact, these individuals were not even consulted--but also, the creation of these monuments jeopardized the ability of these mostly rural counties to engage in economic and recreational activities. …

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