Presidential Authority to Create a National Monument
on the Coastal Plain of the Arctic National Wildlife Refuge

Pamela Baldwin

Legislative Attorney American Law Division

June 19, 2000

RS20602

Background

In the Antiquities Act of 1906, 1 Congress authorized the President to create national monuments, and Presidents have used this authority numerous times. The 1906 Act authorizes creation of national monuments to protect historic landmarks, historic or prehistoric structures, and "other objects of historic or scientific interest." National Monuments are to be created on lands "owned or controlled by the Government of the United States," and are to be "confined to the smallest area compatible with the proper care and management of the objects to be protected."

The coastal plain of the Arctic National Wildlife Refuge (ANWR) in Alaska has a great diversity of wildlife and includes the calving area of the Porcupine caribou herd and nesting and feeding areas for many species of migratory birds. It also may have very large oil and gas deposits beneath it. In 1980 when Congress enacted the Alaska National Interest Lands Act (ANILCA), Congress directed studies of the coastal plain and precluded oil and gas development in the Refuge unless development is specifically authorized by Congress. 2 Therefore, the coastal plain is protected from development unless Congress acts. Some have advocated wilderness designation for the coastal plain to give it more permanent protection and others have advocated opening it to oil and gas development, but no legislation has been enacted. 3

Monument designation issues

There has been discussion recently of the possibility that the President might designate the coastal plain as a national monument. Doing so could raise several issues, one of which might be the size of the monument. The coastal plain is approximately 1.5 million acres. The Antiquities Act states that national monuments "in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected." This size issue was raised when President Carter created the large monuments in Alaska before the enactment of ANILCA in 1980. Lawsuits were filed, but there were no reported opinions on point. 4

Other withdrawals for national monuments have also been large: e.g. the lands comprising and surrounding Grand Canyon were originally withdrawn as a national monument of over 800,000 acres; the Mt. Olympic National Monument was over 600,000 acres; the 1918 Katmai National Monument was over a million acres; and the Death Valley National Monument totaled over 2 million acres. President Clinton has recently created several large monuments, notably the Grand Staircase-Escalante National Monument, which is now approximately 1.9 million acres 5 and the Grand Canyon-Parashant National Monument, which is approximately 1,014,000 acres 6

Litigation is pending that challenges the Grand Staircase-Escalante designation on the basis of its size, as well as on other grounds, but there have not been any rulings yet. However, the Supreme Court upheld the creation of the Grand Canyon National Monument (before it later became a park) 7 and another federal court has indicated that the President has considerable discretion as to what is protected with monument designations and as to the size compatible with the proper care of the protected objects. That court also noted that the court was not to concern itself with the motives of the President. 8 Although courts today might prove to be less deferential to a President, it is still true that the President has broad discretion under the 1906 Act and, although the issue is not free from doubt, successfully challenging a monument based on its size appears difficult.

Similarly, whether a particular national monument comports with the purposes of the Act could also be challenged. Historically, although many national monuments preserve historical sites, many have been made to protect natural and biological phenomena as well. The authority to create national monuments to protect areas of natural or biological interest has been upheld by the Supreme Court on several occasions. 9 

ANILCA provisions

However, § 1326 of ANILCA limits the authority of the President or the Secretary of the Interior to create large withdrawals in Alaska. Subsection (a) of that section states that a large withdrawal of public lands in Alaska terminates unless Congress extends the withdrawal by approving it in legislation enacted within one year after the withdrawal is made:

No future executive branch action which withdraws more than five thousand acres, in the aggregate, of public lands within the State of Alaska shall be effective except by compliance with this subsection. To the extent authorized by existing law, the President or the Secretary may withdraw public lands in the State of Alaska exceeding five thousand acres in the aggregate, which withdrawal shall not become effective until notice is provided in the Federal Register and to both Houses of Congress. Such withdrawal shall terminate unless Congress passes a joint resolution of approval within one year after the notice of such withdrawal has been submitted to Congress. 10

This provision appears to limit a withdrawal to create a national monument to one year duration unless Congress legislates to "approve" the withdrawal.11 Congress has acted in the past to terminate national monuments, 12 and could terminate a new monument withdrawal in Alaska before the expiration of the one-year period. Various political considerations might affect whether Congress might affirmatively enact approval of an ANWR monument. Absent such approval, it appears the monument designation would terminate and the situation as to the coastal plain would be as it is now - - that oil and gas development in the Refuge is prohibited until Congress acts to approve development.

Another section of ANILCA also appears relevant. Section 101(d) of ANILCA stated the sentiment of Congress in 1980 that ANILCA presented a balance between conservation units and development and disposal of lands:

This Act provides sufficient protection for the national interest in the scenic, natural, cultural and environmental values on the public lands in Alaska, and at the same time provides adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people; accordingly, the designation and disposition of the public lands in Alaska pursuant to this Act are found to represent a proper balance between the reservation of national conservation system units and those public lands necessary and appropriate for more intensive use and disposition, and thus Congress believes that the need for future legislation designating new conservation system units, new national conservation areas, or new national recreation areas, has been obviated thereby.

Technically, this section speaks of types of conservation units other than national monuments, 13 and it is true that one Congress cannot tie the hands of another. It could also be argued that because the fate of the coastal plain was expressly left to be decided in the future after additional studies of the area, the possibility of additional protection for the coastal plain was contemplated as part of ANILCA. Also, it could be noted that the President's 1906 authority was left intact as to Alaska, and §1326 expressly recognizes that additional large withdrawals might be made. Therefore, arguably, designation of the coastal plain might not be subject to the § 101 policy. However, that policy may ensure a lively debate if Congress is faced with considering approval of an ANWR national monument.

Footnotes

1 Act of June 8, 1906, ch. 3060,34 Stat. 225, codified at 16 U.S.C. §§431 etseq. For a discussion of monument issues, see Carol Hardy Vincent and Pamela Baldwin, National Monuments and the Antiquities Act, CRS Report RL30528, updated regularly.

2 Pub. L. No. 96-487, 94 Stat. 2374, codified in part at 16 U.S.C. §§ 3101 etseq. Section 1002 of the Act (16 U.S.C. §3142) directed studies of the coastal plain, and §1003 (16 U.S.C. §3143) precluded oil development in the Refuge unless authorized by Congress.

3 For a more complete discussion of the resources and policy considerations related to ANWR, see Lynne Corn and Pamela Baldwin, The Arctic National Wildlife Refuge: The Next Chapter, IB 10055, updated regularly.

4 The District Court for Alaska granted partial summary judgment for the United States on the issue of construction of the 1906 Act. The court concluded that, although the Act limited the authority of the President as to size and subject matter of withdrawals, the outermost parameters of that authority had not yet been articulated and the withdrawals before the court did not exceed the authority of the President. Unreported bench opinion, Anaconda Copper Company v. Andrus, A79-161 Civ., (D.AI. July 1, 1980).

5 Proc. 6920, September 18, 1996; 61 Fed. Reg. 50,223 (September 24, 1996).

6 Proc. 7265, January II, 2000; 65 Fed. Reg. 2825 (January 18, 2000).

7 Cameron v. United States, 252 U.S. 450 (1919).

8 ' Wyoming v. Franke, 58 F. Supp. 890, 895 (D. Wyo. 1945).

9 Cameron v. United States, 252 U.S. 450 (1919), upheld the Grand Canyon National Monument and noted that the Grand Canyon was an object of unusual scientific interest; Cappaert v. United States, 426 U.S. 128, 142 (1975), upheld the Devil's Hole National Monument which protected a cave, pool and type of fish; and United States v. California, 436 U.S. 32 (1978), upheld Presidential action to protect fossils and examples of volcanism. See also Wyoming v. Franke, 58 F. Supp. 890 (D. WY. 1945), which dismissed for lack of a reviewable question (on whether the discretion given the President had been improperly exercised with regard to the size of the Jackson Hole National Monument and its protection of natural phenomena), and Anaconda Copper, supra.

10 16 U.S.C. § 3213. Note that the section applies to withdrawals of "public lands" in Alaska. That term can have diverse meanings and inquiry must always be made as to its meaning in any particular instance. At times, "public lands" is interpreted as meaning unreserved federal public domain lands, and hence would not include ANWR lands as subject to §1326. However, ANILCA defines public lands as federal lands (title in the U.S.) situated in Alaska, except for certain Native lands and lands subject to selections by natives or the State. Therefore, arguably even reserved lands are subject to §1326.

11 This provision seems to be a grant of temporary withdrawal authority, with the power reserved to Congress to extend or make permanent any such withdrawal through an act of Congress. (Joint resolutions are acted upon by both chambers and presented to the President and hence are laws.) As such, this does not appear to present the same constitutional issues as did the partial congressional action ("legislative veto") that was the subject of INS v. Chadha, 462 U.S. 919 (1983).

12 Congress has sometimes converted a national monument into a national park, but also terminated some of the Carter monuments in ANILCA and replaced them with enacted conservation units.

13 Section 102 of ANILCA defines "national conservation unit" in a manner that does not include national monuments.