Grand Staircase-escalante National Monument: Presidential Discretion Plus Congressional Acquiescence Equals a New National Monument
| Publication year | 1997 |
| Pages | 20 |
| Citation | Vol. 10 No. 10 Pg. 20 |
David Negri, J.
On September 18, 1996, President Clinton, by Presidential Proclamation, established the Grand Staircase-Escalante National Monument encompassing 1,700,00 acres in Kane and Garfield Counties.[1] This action was taken pursuant to the authority granted the President by the Antiquities Act to designate national monuments based upon "historic or scientific interest."[2] In the October issue of the Bar Journal, William Pendley vehemently criticized the President for establishment of the Monument and argued that the President's action was unlawful. Contrary to Pendley's assertions, the Monument designation is well within the President's authority under the Antiquities Act, is amply supported by the Presidential Proclamation itself and, in fact, accomplishes the stated purpose of the Antiquities Act - protection of an area of scientific and historic significance. If history if my guide, and if judicial precedent has any meaning, legal attacks on the establishment of Grand Staircase-Escalante are certain to fail.
The best starting point for analyzing President Clinton's action is the Presidential Proclamation establishing the Monument. Although Pendley derides the President for "dron[ing] on and on," the Proclamation is a concise recognition of the extraordinary opportunities for historic and scientific study found in the Monument. The President's staff did its homework and presented, within the Proclamation, a compelling picture of the historic and scientific values found within the Monument. The Proclamation rightfully notes that the area designated as the Grand Staircase-Escalante Monument provides "exemplary opportunities for geologists, paleontologists, archeologists, historians, and biologists." The following features of the Monument form the basis of and are explicitly relied upon in the President's Proclamation:
1. Some of the more striking geologic features in the southwest, including the I twisted rock of the Cockscomb monocline, the canyon-cut uplift known as the I Waterpocket Fold, the rugged canyon country of the Paris and Escalante regions, the geologic stairway known as the Grand Staircase, and numerous arches and natural bridges.
2. World-class paleontological sites, in the Circle Cliffs, the Kalparowitz Plateau, and the Straight Cliffs.
3. Countless archeological sites, including rock art panels, occupation sites, campsites, and granaries dating from the prehistoric times of the Anasazi and Fremont.
4. Historic sites from the Navajos, the Southern Paiutes, the Powell expedition, and Mormon pioneers.
5. The incredible biology of the area -spanning five life zones and containing relict plants and grasslands, thousand-year-old piny on and juniper, impressive fauna, and relatively intact ecosystems.[3]
Anyone who has spent any significant amount of time in southern Utah in general, and the Grand Staircase-Escalante area in particular, should have little trouble understanding that the region is blessed in all the respects noted by the President. Completely ignoring its scenic value, southern Utah is a treasure trove for scientists of many disciplines. As just one example, the scientific value of the Grand Staircase area was recognized as early as 1880 by geologist Clarence Dutton's Report of the Geology of the High Plateaus of Utah. The Presidential Proclamation is no more than a recognition of the scientific and historical significance of the Grand Staircase-Escalante area. This significance has been rather thoroughly documented by the Bureau of Land Management's listing I of numerous geologic, paleontologic, prehistoric, historic and biological areas and I sties within the Monument.[4]
As such, arguments that the designation of Grand Staircase-Escalante was unlawful are, to say the least, questionable. The Antiquities Act grants the President broad powers to designate areas of historic and scientific value. These powers, by the explicit language of the Act, are to be exercised in the President's discretion. There certainly is no fundamental legal flaw in ' the President's Proclamation; on its face, it is a lawful exercise of presidential power under the Antiquities Act. Indeed, even assuming that the factual basis of the President's Proclamation is subject to judicial review, it should be clear to anyone with even a perfunctory knowledge of the area that the Proclamation accurately describes the land and features contained within the Monument. To conclude that the entire area that now composes the Grand Stair-case-Escalante National Monument is not an area of exceptional scientific and historic interest is to deny the reality of what is on the ground.
Similarly, it is difficult to quarrel, at a factual level, with the Proclamation's assertion that the Monument boundaries are the "smallest area compatible with the proper care and management of the objects to be protected." How does one properly care for and manage the shale badlands of the Blues; the 42-mile long escarpment known as the Straight Cliffs; the red and rugged coal-fired Burning Hills; hundred-foot waterfalls; dinosaur, crocodile, and mollusk fossils; the best record of Late Cretaceous terrestrial life in the world; riparian corridors which connect high mountains with desert lowlands; relict populations of plants and trees; eleven plant species found nowhere else in the world; thousands of prehistoric sties, covering at least 8,000 years of prehistory; and Mormon trails and settlements and other historic routes from the 19th century?[5] A quite persuasive argument could be made that, given proper care and management as the goal, a much larger area than that chosen should have been considered.
Additionally, the current fervor worked up by the creation of Grand Staircase-Escalante, although quite captivating, is nothing new. Monument designations often have been opposed initially by local interest who wish to use the affected area as they see fit.
Lawsuits have been filed, and the same arguments now raised in opposition to Grand Staircase-Escalante have been forcefully advocated in public forums and courts of law. In the courts, the results have been consistent and clear: Presidential designations under the Antiquities Act have been uniformly upheld.
The Antiquities Act has been used at least 103 times by a long list of Presidents of both parties: Taft, Hoover, Coolidge, T. Roosevelt, F.D. Roosevelt, Harding, Wilson, Truman, Eisenhower, Kennedy, Johnson, Ford, Carter...
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