Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act
Fanizzo, Kelly Y., Environmental Law
I. INTRODUCTION II. THE SONORAN DESERT NATIONAL MONUMENT A. The Monument Proclamation B. Western Watersheds Project v. U.S. Bureau of Land Management C. The Antiquities Act of 1906 1. The Origins and Intent of the Antiquities Act 2. Managing the National Monument D. Multiple-Use Management III. SEPARATION OF POWERS A. Maintaining the Separation of Powers B. Challenging the Authority of the President Under the Antiquities Act C. Non-Delegation Doctrine IV. PRESIDENTIAL VERSUS AGENCY ACTION A. Balancing Power Within the Executive Branch B. The Umbrella of Presidential Action C. Final Agency Action D. Defining the Limits of Presidential Action V. PRESIDENTIAL PROCLAMATIONS AND JUDICIAL REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT A. Judicial Review of Executive Order Compliance Under the APA B. Enforcing Management Restrictions in a Monument Proclamation 1. Enforcing the Sonoran Desert National Monument Proclamation 2. Specific Statutory Foundation VI. NEED FOR JUDICIAL REVIEW A. Preserving the Exercise of Discretion Intended by the Antiquities Act B. The Specific Statutory Foundation in the Antiquities Act C. Procedural Safeguards Exist to Prevent a Violation of the Separation of Powers VII. CONCLUSION
The role of the President in managing federal lands is largely, and rightfully, limited--bound by constitutional doctrine and statutory authority. (1) Congress has, however, provided the President with the power to protect sites of significance to the nation through the Antiquities Act of 1906 (Antiquities Act or the Act). (2) Allowing the President to unilaterally reserve large tracts of land for the protection of historic and scientific objects and sites by designating them as national monuments, the Antiquities Act has been the subject of much debate regarding whether and how the President's exercise of this power might violate the separation of powers. (3) For instance, consider the controversy that arose in response to President Bill Clinton's 1996 designation of the Grand Staircase-Escalante National Monument, a monument consisting of 1.7 million areas in southern Utah. (4) Today, that designation still causes many to state that, "[i]n the West,... [the term 'monument' is] a fighting word, bound up for years with simmering resentments against the federal government and presidential powers." (5) Recently, a case in the United States District Court for the District of Arizona illuminated a new chapter in this discourse: whether a third party can sue to force an executive agency to take an action in compliance with the direction of the President.
Challenging the Bureau of Land Management's (BLM) management of the Sonoran Desert National Monument in Western Watersheds Project v. Bureau of Land Management (6) as "damag[ing] the soil, plant, wildlife, and historic resources" to be protected, (7) the Western Watersheds Project (WWP) asked the district court to exercise its authority under the Administrative Procedure Act (APA) (8) to compel agency action unlawfully withheld (9) and set aside arbitrary, capricious, and unlawful agency action. (10) WWP based its claim on BLM's lack of compliance with the President's management directives in the national monument proclamation; BLM responded that judicial review was not available to enforce its compliance. (11) Set against the backdrop of preserving our national cultural heritage, this case highlights the respective and, at times, overlapping roles of the executive, legislative, and judicial branch in federal land management decision making.
Questions over how best to regulate and protect historic places, sites, and property are not new. (12) Pieces of our national heritage are lost forever to illicit collecting and looting of archaeological sites and cultural resources. …