Separation of powers and federal land management: enforcing the direction of the president under the Antiquities Act.

• Author: Fanizzo, Kelly Y.

1. 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 I. INTRODUCTION

   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. (13) Generally, the term "cultural resources" refers to evidence of the human past. (14) In the late nineteenth and early twentieth century, there was a particular concern with the destruction and loss of prehistoric sites and features, and the valuable information contained within them, in the American Southwest. (15) Unchecked collecting and vandalism (16) pushed a number of archaeologists, anthropologists, scholars, and historians to secure much needed legislation. (17) The Antiquities Act was established to preserve threatened resources, protect against the loss of valuable scientific data, and give the President the authority to protect those historic and scientific structures and objects by unilaterally reserving public lands as national monuments. (18)

   In response to multiple challenges, the courts have given broad deference to the ability of the President to designate national monuments. (19) Congress provided the President with considerable discretion in the statutory language of the Act. (20) The President, in turn, has arguably pushed the limits of that discretion, but the courts have continued to support the President's exercise of authority in determining the reservation necessary to protect significant resources. (21) However, as demonstrated by Western Watersheds Project Antiquities Act cases can raise other separation of powers issues. In responding to WWP's challenge to its management of the Sonoran Desert National Monument, BLM argued that its actions, while not in compliance with the monument proclamation's directives, constituted presidential action that was not subject to judicial review. (22) Accordingly, BLM argued that it was up to the executive branch and not the judiciary to enforce the proclamation. This article argues that BLM's ability to exercise its expertise and discretion is guided by the President's direction, and that an agency's lack of compliance with the President's direction cannot constitute presidential action that is exempt from judicial review.

   The proclamation designating a national monument constitutes the written directive of the President--changing the manner in which the subject property is to be treated. It presents the will of the executive, unilaterally and without need for congressional approval, directing certain actions and policies; it is thus comparable to an executive order. (23) Executive orders, and by extension, presidential proclamations, have been considered "an important weapon in the arsenal of presidential policymaking." (24) Generally, the directives in each proclamation instruct the land managing agency to implement certain nondiscretionary use restrictions and in most cases, exercise its expertise to develop a management strategy for the monument. (25) The directives both direct and limit the exercise of agency discretion to achieve the protective purpose of the proclamation. (26) Preservationists submitted amicus briefs that argued that to find the President lacked such authority in the development of monument proclamations could undermine the protective purpose of the Antiquities Act. (27)

   With few exceptions, each President since the passage of the Antiquities Act has exercised his authority to designate national monuments. (28) At the time of designation, the President in office arguably has the best ability, as seen through the intent the Act's drafters and the courts' deference to the exercise of presidential discretion in the designation of the monument, to determine the management directives necessary to ensure that the protective purpose of each proclamation is achieved. After significant deliberation, Congress gave the executive office the authority, and arguably the responsibility, to identify those sites and objects that might be threatened with destruction or misuse, to respond quickly to threats and withdraw the necessary property from the public domain, and to establish the level of protection that is required to achieve the intent of the Act. (29) The exercise of the President's discretion at that moment in time should be preserved and enforced through judicial review. Careful planning and consideration through the traditional legislative process should determine whether significant change or revocation of that designation is needed in those cases where the resource is no longer threatened or the reservation is no longer in the nation's best interests. (30)

   Judicial enforcement of a monument proclamation's directives ensures that protection is maintained through subsequent administrations and political changes. In light of differing agency missions, responsibilities, and of course political will, how a proclamation's directives are enforced could significantly influence the level and consistency of the protection intended by each proclamation and tangentially, that intended by the Antiquities Act. While the Arizona district court looked to BLM's statutory authority to find the "specific statutory foundation" to allow for judicial review under the APA, (31) this article suggests the existence of the specific statutory foundation in the Antiquities Act itself. (32) In considering the enforceability of a proclamation, the court should look directly to the Antiquities Act, which provides substantive limits for the President's exercise of discretion in reserving a monument, and the management directives themselves as the law to apply in assessing the nondiscretionary aspects of the agency's actions. Additional procedural safeguards, such as whether the presidential proclamation intended to preclude judicial review and the issue of standing, can also guide the court's review of agency action under the APA to ensure the separation of powers is maintained and to stop any potential for unnecessary litigation to constrain the managing agency's ability to manage the federal property under its care.

   Part II of this article describes the Sonoran Desert National Monument and WWP's challenge to BLM's management. To provide context for the questions that arise in this case, Part II develops a focused review of the Antiquities Act and its legislative history, and explains the President's ability to...