Presidential Authority to Create a National Monument on the Coastal Plain of the Arctic National Wildlife Refuge, and Possible Effects of Designation
CRS Report for Congress
Presidential Authority to Create a National
Monument on the Coastal Plain of the Arctic
National Wildlife Refuge, and Possible Effects of
Designation
Pamela Baldwin
Legislative Attorney
American Law Division
Summary
In the Antiquities Act of 1906, Congress authorized the President to create National
Monuments. Recently, there has been discussion of a possible monument designation
involving the coastal plain of the Arctic National Wildlife Refuge in Alaska, an area rich
in wildlife and quite possibly also rich in oil reserves. Several issues surround that
possibility, including the potential size of such a monument, whether provisions of the
Alaska National Interest Lands Conservation Act (ANILCA) might preclude or limit
such a designation, and how protections afforded by monument designation might differ
from current protection of the coastal plain. This report will be updated as circumstances
warrant.
Background
In the Antiquities Act of 1906,1 Congress authorized the President to create 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.” Numerous Presidents have used this authority and President Clinton has
recently created eleven new monuments and expanded two others.2
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
1 Act of June 8, 1906, ch. 3060, 34 Stat. 225, codified at 16 U.S.C. §§431 et seq.
2 For a discussion of monument issues, see CRS Report RL30528, National Monuments and the
Antiquities Act,, by Carol Hardy Vincent and Pamela Baldwin.
Congressional Research Service The Library of Congress
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 Conservation 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.3 Therefore, the coastal plain currently is protected from
development unless Congress enacts a law to permit it. Some have advocated wilderness
designation for the coastal plain to give it more permanent protection from roads and
development of any kind, and others have advocated opening it to oil and gas
development, but no legislation has been enacted to date that accomplishes either of these
alternatives. 4
Monument designation issues
There has been discussion recently of the possibility that President Clinton might
designate the coastal plain of ANWR as a national monument. Doing so could raise
several issues.
Size. One issue might be the size of a coastal plain monument since that area 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."
Many national monuments have been large: e.g. the lands comprising and surrounding
Grand Canyon were originally withdrawn as a national monument of over 800,000 acres;
and the Wrangell-St. Elias National Monument was 10,950,000 acres. President Clinton
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 Lawsuits have
been filed that challenge these two recent monuments, in part because of their size, but
there have not yet been rulings on this issue.
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
a 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.8 The size issue
was raised when President Carter created the large monuments in Alaska before the
3 Pub. L. No. 96-487, 94 Stat. 2374, codified in part at 16 U.S.C. §§ 3101 et seq. 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.
4 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;
IB10055, updated regularly.
5 Proc. 6920, September 18, 1996; 61 Fed. Reg. 50,223 (September 24, 1996).
6 Proc. 7265, January 11, 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).
enactment of ANILCA in 1980. Lawsuits were filed challenging the Alaska monuments,
but only one, unreported, opinion on point resulted.9 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 solely on its size appears difficult.
Purpose. 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 wildlife resources of the coastal plain are renowned.
The authority to create national monuments to protect areas of natural or biological
interest has been upheld by the Supreme Court on several occasions.10
Management. The Fish and Wildlife Service (FWS) currently manages ANWR.
Whether the Fish and Wildlife Service (FWS) would continue to manage a coastal plain
monument if one were to be created could present another issue. Presumably,
management by FWS would be logical and desirable, given the wildlife resources of the
area. Most monuments have been managed by the National Park Service (NPS), but
management of some of the recent monuments created by President Clinton has been given
to other agencies, including the FWS. The authority of the president to assign
management of monuments to an agency other than the NPS may not be clear, especially
if the managing agency is outside the Department of the Interior. (Both the NPS and Fish
and Wildlife Service are in the Department of the Interior.) Some contend that the
authority of the president encompasses the discretion to choose the managing agency;
others allege that doing so may constitute a “reorganization” of the government, which the
president currently lacks authority to do. However, the president may be able to assign
management that previously has been that of the NPS to the Fish and Wildlife Service
under the congressionally-approved authority allowing transfers of function within the
Department of the Interior in Reorganization Plan No. 3 of 1950.
Protection of Resources and ANILCA Limitations
Some people who have urged President Clinton to create a monument on the coastal
plain also urge that the area be withdrawn from all mineral development as part of the
9 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.Al. July 1, 1980).
10 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.
protections provided. Presidents have broad discretion in fashioning protections for a
national monument, and withdrawing monument lands from mineral development is
commonly, but not always, done.11 The exact protections that might be provided for the
coastal plain, of course, cannot be known until a president makes such a designation.
However, if a president were to withdraw the coastal plain from mineral leasing or mineral
development, this withdrawal would appear to trigger § 1326 of ANILCA.
Section § 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 withdrawal of public lands in Alaska larger than five thousand acres 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.12
This provision appears to limit a “withdrawal” to create a national monument to one
year duration unless Congress legislates to "approve" the withdrawal.13 Congress has
acted in the past to terminate national monuments, (although often as part of strengthening14
the applicable conservation designation) and could terminate a new monument
withdrawal in Alaska even before the expiration of the one-year period. Absent
congressional approval, it appears the monument designation would terminate and the
11 For example, new oil and gas leasing is allowed under some circumstances in the Canyons of the
Ancients National Monument, Proc. No. 7317, June 9, 2000.
12 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, even reserved lands in
Alaska appear to be subject to §1326.
13 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 can become
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).
14 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.
situation as to the coastal plain would be as it is now - - that oil and gas development in
the Refuge is prohibited unless and until Congress acts to approve development.
Some suggestions related to possible coastal plain designation raise the question of
what constitutes a “withdrawal.” Some observers have suggested that the president might
simply “prohibit” mineral development without “withdrawing” lands, thereby avoiding the
limitations of § 1326. However, it could be argued that prohibiting mineral development,
a significant land use, is a withdrawal, because the prohibition removes the lands from
entry under the mining laws, in order to limit mineral activities. “Withdrawal” in the legal
sense can be said to be the removing of lands from certain types of activities that the lands
otherwise could be subject to.15 In other words, the ‘withdrawal’ is the management
action with respect to the lands, as well as any paper indication of that legal action. If so,
any action by a president to limit mineral development arguably would be the act that
triggers § 1326, whether the word “withdrawal” is used or not.
Another option that has also been discussed is that a president might declare an area
to be a national monument without either withdrawing the area or making any
management directives. This action arguably would not trigger the § 1326 limitations.
Such designation would not provide any greater legal protections than are currently
available, but might make it more difficult politically to change the status quo. While
Congress can modify or revoke a monument designation, to whatever extent designation
might highlight the conservation values of the area, designation might serve to “raise the
bar” for enacting legislation to change the designation or to open the area to development.
Another section of ANILCA also may be relevant to designation, no matter how
constituted. Section 101(d) of ANILCA stated the sentiment of Congress in 1980 that
ANILCA presented a balance between conservation units and economic 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.
15 See, e.g., the definition of “withdrawal” in the Federal Land Policy Management Act at 43
U.S.C. § 1702(j): “The term ‘withdrawal’ means withholding an area of Federal land from
settlement, sale, location, or entry, under some or all of the general lands laws, for the purpose of
limiting activities under those laws in order to maintain other public values in the area or reserving
the area for a particular public purpose or program; ....”
It could be argued that this section does not preclude a monument designation
because, technically, this section speaks of types of conservation units other than national
monuments,16 and one Congress cannot tie the hands of another. On the other hand, one
could argue that a national monument is a type of conservation unit and that creation of
a new monument would violate the spirit if not the letter of the law. 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, and designation of the coastal plain
ought not to be subject to the § 101 policy. However, § 101 may ensure a lively debate
if Congress is faced with considering an ANWR national monument, whether in the
context of a joint resolution to approve its creation or otherwise.
16 Section 102 of ANILCA defines “national conservation unit” in a manner that does not include
national monuments.