Questions about FS national monument shrinkage

An excerpt from a letter to President Trump from two senators:

Because of the implications for USDA Forest Service land stemming from any future executive actions regarding national monuments, please promptly respond to the following questions:

Do you plan to recommend removal of Forest Service acres from the current boundary of the Bears Ears National Monument in Utah?

Do you plan to recommend removal of Forest Service acres from the current boundaries of any of the four California national monuments under review containing Forest Service acres?

If the answer to question one or two was yes, please explain why you plan to recommend removal of Forest Service acres where USDA did not recommend removal of Forest Service acres from these monuments.

15 Comments

  1. Senator Bennet is my Senator, and I don’t quite get what he is thinking about writing this letter. I thought I had posted about it but maybe not.

    It sounds as if he thinks the D of A needed to support removal of its acres from the Monument. But…the Monument is mostly an Interior thing. If we simply reverse the time dimension here and say “Did the Sec of Ag write a letter in support of Monument designation before the Monuments were designated (for Bears Ears, last December )?” We would think “of course, he did, OR it doesn’t matter if he didn’t, it’s an Administration policy.” If you are a minor player you don’t need to write a letter because duh, you serve the Administration and I would bet there were phone calls back and forth about what is in and what is out, just due to the idea of Agencies working together in pursuit of Administration goals.

    So this is simply a Bennet partisan tempest in a teapot, IMHO.

  2. I agree that it looks like political grandstanding. But here’s how it might mean something. If a federal agency applies a statute like the Antiquities Act, it is subject to the APA and it has to compile a record showing that what it did complied with the requirements of the law. The President isn’t subject to the APA when designating monuments. But if Congress didn’t clearly delegate unfettered authority under the Antiquities Act to the President to shrink monuments, the “arbitrariness” of the decision to “undesignate” parts of them might become an issue. (Just speculating.)

  3. I looked back and found that they sent this letter in June according to this story.
    https://coloradopolitics.com/bears-ears-bennet-trump/

    “Colorado’s Sen. Michael Bennet wants to know if the U.S. Forest Service is asleep at the switch as the Trump administration aims to trim Bears Ears National Monument.

    Bennet and Sen. Debbie Stabenow, a Democrat from Michigan, sent a letter Thursday to Agriculture Secretary Sonny Perdue, who oversees the Forest Service, asking pointed questions about how much of a fight the agency put up to defend its part of the southeast monument.”

    Hmm.. “asleep at the switch” or “happy to be not the target and watch the drama from afar?”

    Anyway, I’m sure someone must know why the Federal action of monumentizing is not subject to NEPA. Seems like it would require an EIS, formal notice and comment and so on. Does it not count as a Federal action? My concern would be the environmental and social impacts of Big Tourism which seems reasonably foreseeable…

  4. That’s the trail the already-filed complaints tread in seeking remedy.

    The challenge for them is that several monuments have been modified by presidents in the past, using their Antiquity Act powers, and none of those modifications were undone by the judiciary. Although some want to see an implied prohibition in the Act’s lack of reference to how the executive might modify existing monuments, there’s no judicial precedent for making that claim. There’s also the point that the Act’s lack of legislative stings on the executive’s powers in all other respects implies that the Congress did not intend for the president to be otherwise constrained in his discretionary powers to shrink, otherwise modify, or even abolish monuments created by his predecessors.

    That, and executive overreach in some previous administrations, is no doubt why there’s legislation moving in the Congress to amend the Antiquities Act.

    The senators chasing the inclusion of USFS-managed lands is a non-starter. The Antiquities Act does not limit its application only to DOI-managed lands. All federal public lands are available for inclusion, providing they meet the Antiquity Act’s extraordinarily broad provisions.

      • My memory isn’t what it was but I am pretty sure that a NEPA claim was rejected by the courts in all of the Clinton era lawsuits. Of course, NEPA would apply to any management plan. But not the Proclamation. Adding a NEPA/public involvement to any future Proclamations is/was a key pillar in several bills offered by several Western lawmakers. Maybe if one of those bills had passed the situation would be different today. Who knows?

        • Thanks, Brian. I wonder what the reasoning was? It seems odd to me that Executive Branch activities that do the same thing (FS and BLM planning) in terms of designations are subject to NEPA but if they are done via Proclamation they are not. If anyone knows the legal arguments I would be interested. I also don’t understand why pro-environmental Presidents like Clinton and Obama wouldn’t choose to follow NEPA even if they didn’t have to just because it’s such a fundamental law.

          • Maybe there’s more to it than this, but by its own terms NEPA applies only to “all agencies of the Federal Government.” The practical reason for not following the NEPA process might be that it takes too long (especially at the end of a president’s term). It’s also debatable whether a designation that stops potential environmental impacts from occurring would trigger NEPA requirements. (Perhaps actions to promote recreational use might.)

            • A different perspective: There is no action that “stops environmental impacts from occuring.” At least insofar as The NEPA is concerned. NEPA requires disclosure of impacts to the human environment. Including socioeconomic impacts. Anyway… I believe the courts agreed with Andy’s reasoning here.

            • Hmm.. good decisions take time to analyze and get public comment, but the Prez doesn’t need to do that because he or she knows the right answer without all that tedious and time consuming work.
              Seems to me that the rest of us need to analyze to show that the effects are not significant.. including for example Roadless rules. Industrial recreation may well have significant impacts to soil, water and air including climate impacts of travel of more out of state visitors.

              • Environmental impacts of designation are not one of the criteria in the Antiquities Act, so the president doesn’t need to consider them.

                Here’s what the Supreme Court had to say about what kinds of decisions are subject to NEPA because they have adverse environmental impacts (Metropolitan Edison Co. v. People Against Nuclear Energy, 460 US 766, 1983):

                “NEPA does not require the agency to assess every impact or effect of its proposed action, but only the impact or effect on the environment. If we were to seize the word “environmental” out of its context and give it the broadest possible definition, the words “adverse environmental effects” might embrace virtually any consequence of a governmental action that someone thought “adverse.” But we think the context of the statute shows that Congress was talking about the physical environment — the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment.”

                It’s not an equal opportunity statute. There’s a much better argument for applying it to shrinking preserved areas than to designating them.

                In may experience, both agencies and courts have been pretty expansive regarding when they think NEPA applies. That’s not necessarily a bad thing – until it reaches the point where it interferes with the environmental protection that NEPA was intended to promote.

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