Monday, December 14, 2009

The Monument: Questions, Start-Up, Challenges

Review: As early as 1900, GLO Commissioner B. Hermann had talked up legislation to provide the President with authority to declare national Parks. He seems to have been genuinely concerned with protection of significant places by national action, and he had a bill introduced. His successors, Richards and Ballinger, agreed with this course. In the years up to 1906, the history of relevant legislation was driven by the desire to protect archeological discoveries, but the broadening of what objects could be given Monument status was a sub-theme. This ended up with the phrase "and other objects of historic or scientific interest" being included in the Act, after the more explicit "historic landmarks, historic and prehistoric structures". [See 16 USC 431-33 (2003)]

Sidebar: For a very full legal analysis of the Act, see Mark Squillace, 37 Georgia Law Review 473. He was a participant in the burst of Monument creation in the Clinton administration organized by Interior Secretary Babbitt, and shortly after prepared an extensive defense.
 If you insist on checking the other side, I came across these: Eric C Rusnak, "The Straw that Broke the Camel's Back? Grand Staircase-Escalante National Monument Antiquates the Antiquities Act", OSU Law Journal 64, 2, 669ff;  Ann E. Halden, The Grand Staircase-Escalante National Monument and the Antiquities Act, 8 FORDHAM ENVTL. L.J. 713, 715–16 (1997);  Matthew W. Harrison, Legislative Delegation and Presidential Authority: The Antiquities Act and the Grand Staircase-Escalante National Monument—A Call for a New Judicial Examination, 13 J. ENVTL. L. & LITIG. 409, 410 (1998). Sample of legal whining over Clinton actions: "the Act has bred unintended powers, essentially allowing the president to single-handedly bypass congressional land management policies and initiatives and to determine the fate of public lands throughout America. " [Yes, that is the point; this is all part of a large, on-going, back and forth, debate. There will not be, nor can there be, any definitive resolution. Those who do not like the power do not use it; So far, those who do use it have not been reversed nor have their actions led to the Act's demise.] These articles present the articulations of lawyers (although work is thereby provided), not that of politician/governors. The argument that the President is legislating is absurd; the detailed disposition of public land is an executive, not a legislative function; but then, that is just part of the continuing debate.

Another sidebar: This debate also involves the interests of the tribe of scientists, who in their various specialties, certainly consider the Canyon an "object of scientific interest" -- indeed, an object of the kind that provides evidence best the less it is disturbed, and therefore one that should remain protected in an expansive way. That is, in science, it is a natural subject rather than an experimental object (where Glen Canyon Dam flows are the rule's destructive exception). Given the human uses already made in the Canyon, this is now a problematic, debatable point in detail, but the overall consideration is that protection of natural evidences and processes is the most appropriate stance to take toward the Canyon as an "object of scientific interest".

And another: The Antitquities Act states that the parcels of land included "shall be confined to the smallest area compatible with the proper care and management of the objects to be protected". And here is where TR really failed to meet the test. The Grand Canyon is 277 miles long. TR's Monument took in from about river miles 50 to 157. In the stretch above mile 50, there were several damsites, any one of which would have obliterated any scientific value in Marble Gorge. Downstream, again several damsites, some of which would actually have put reservoirs into the Monument. (This is not just a fantasy; as we shall see, the second Monument, 1932, would have had a proposed reservoir right through it, covering up features central to its creation, and into the then Park.) In other words, rather than being too large, TR's Monument was too small, by about 170 river miles; not even half was protected from the gathering intentions to drown and otherwise radically alter the entire reach of the Colorado River in the Canyon. The reason this could happen is certainly in part due to the mistaken conception of what the Grand Canyon is, represented right from the first proposal Powell asked Harrison to introduce in Congress. As with so many of the proposals and efforts to protect the Canyon, the desire to Do Something! resulted in partial measures that left more work to be done. (And we are not done yet.)

Back to our review: Of the Monuments declared by TR before the Grand Canyon, 5 were prehistoric structures, 4 were rock, 1 was forest. Monument status had been considered along with the park idea for a year. Federal agencies, like GLO and the Forest Service, and the Santa Fe, and citizen conservationists, were in favor. USGS was balky, but no real opposition appears in the files before the January 11 1908 proclamation.

Then, the cranks and exploiters show up.

A month later, February 1908, H Barna worries about his Grand Valley, Colorado River, and South Pacific Railroad, to run 1200 miles following the River from Moab to the confluence of the Grand and the Green, then into Arizona, and so to a "desirable and convenient terminal" on the coast. Not to be outdone in fantasy, Johnson, attempted despoiler of the Havasupai lands, writes in May about his mining and water claims to the falls. They have lead and silver, and need a water ditch and a tramway. Few visit, perhaps 50 a year. He is a poor man (but he doesn't give up on his fantasies). OB Stanton claims to know the Secretary, the Senator, Arizona officials, and wants a hotel and railroad. Correspondence indicates no one wants to talk to him about his idea of a rim railway. When TR's secretary inquires, Interior Secretary Garfield (a good man, apparently) says Forest Service opinion is that railroad would  mar the general effects. Applications for mining claims in 1909 aimed at getting land for commercial development are denied. A New York lawyer wonders about water rights; response is that Secretary has discretion as to what to allow. In 1910, there was a revealing hearing on a Congressional bill to provide a private rim railroad right-of-way.

And then there is the effable Ralph Camerson, who at one point as Senator rose to the level of introducing a bill to validate his false Bright Angel claims. After the Monument was created, the government filed suit against Cameron, saying his mining claims were invalid, and he was to clean up and get out. The District Court ruled for the U.S. Cameron appealed to the 9th circuit, and losing there, went to the Supreme Court (252 US 450, 455-6), where in April 1920, the Court affirmed.  Most of the opinion discusses whether the Secretary of the Interior had the right to void Cameron’s mining claim; however, Cameron also questioned the validity of the monument designation, arguing that the Grand Canyon did not have historical interest, and thus could not be deemed a monument under the Antiquities Act. Here is what Justice Van Devanter wrote:

Since February 20, 1893, [the tract claimed] has been within a public forest reserve, established and continued by proclamations of the President under the Acts of March 3, 1891 … and since January 11, 1908, all but a minor part of it has been within a monument reserve established by a proclamation of the President under the act of June 8, 1906. The forest reserve remained effective after the creation of the monument reserve, but insofar as both embraced the same land, the monument reserve became the dominant one. The inclusion of the tract in the forest reserve withdrew it from the operation of the public land laws, other than the mineral land law, and the inclusion of the major part of it in the monument reserve withdrew that part from the operation of the mineral land law, but there was a saving clause in respect of any "valid" mining claim theretofore acquired. The United States still has the paramount legal title to the tract, and also has the full beneficial ownership if Cameron's asserted mining claim is not valid.The defendants insist that the monument reserve should be disregarded on the ground that there was no authority for its creation. To this we cannot assent. The act under which the President proceeded empowered him to establish reserves embracing "objects of historic or scientific interest." The Grand Canyon, as stated in his proclamation, "is an object of unusual scientific interest." It is the greatest eroded canyon in the United States, if not in the world, is over a mile in depth, has attracted wide attention among explorers and scientists, affords an unexampled field for geologic study, is regarded as one of the great natural wonders, and annually draws to its borders thousands of visitors.
The rest of the decision, much longer than this paragraph, deals with whether the Secretary could invalidate the claims. He could. But Cameron had done us the service of getting judicial recognition and approval of Presidential power to proclaim protective Monuments without restriction. It is worth arguing that anyway, Cameron's case was not about the Grand Canyon's appropriateness as a Monument, but about whether all public lands had to be open to the rascals who wanted to grab, often with fraud, the West for the momentary satisfaction of their greed.

Meanwhile, in June 1909, the WR Mattoon (a Forest Examiner) plan for the Monument had these features: protection against fire, government roads and trails, the boundary, tourist facilities, ranger needs, railroads. His opinion was clear:
The development of the Grand Canyon is a task too great in its propositions and a matter too world-wide in its significance and popular and scientific interest to be handed over to or attempted by private enterprise, whose interests are naturally for private gain rather than for the benefit of the public at large. The time of urgent need for the Federal Government to assert itself … for the benefit and use of the public at large has arrived.
He worries about fire from railroad and campfires. A rim drive, built by the government, is very much needed. Private trails by prospectors are not in good repair. About 11,000 acres needs to be added to the south to protect against fire and commercial enterprises. The Santa Fe needs a special use agreement; Grandview Hotel closed due to SF competition. Suggests eventually there will be an interior road from the Little Colorado to Cataract with a spur to trails and points. He himself looked over the route with SFRR engineer and landscape architect. They want to improve viewpoints. Road should be 30' back, with judicious thinning of trees. If SFRR doesn't build road, government should. Mattoon is ambivalent about railroad; sees the need to protect this masterpiece of world sculpture from private enterprise interfering with public benefit. Development best accomplished by public routes, and encouragement of slow travel.

Footnote: After the Monument proclamation, in June 1908, the Game Preserve was enlarged to include all of the Grand Canyon National Forest, which reinforces the view that the Preserve was for the game animals not the Canyon. Then in July, GCNF disappears, replaced by the Kaibab NF in the north, Tusayan to the south. A third proclamation, June 1909, drew the southern boundary of the Preserve up to that of the NM, to make the Preserve easier to administer, according to the Agriculture Secretary.

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