01-03-17 - THOMAS MITCHELL
After Obama unilaterally cordoned off 1.3 million acres of Utah and another 300,000 acres of Nevada as national monuments, Utah Attorney General Sean Reyes vowed to file a lawsuitand Nevada’s Attorney General Adam Laxalt called Obama’s action “a unilateral land grab,” but stopped short of threatening to sue.
The creation of Bears Ears National Monument in Utah and Gold Butte National Monument in Nevada has the self-styled environmentalists singing hosannas to the highest and the states’ rights crowd moaning with dejection.
Environmentalists have pooh-poohed legal challenges to the 1906 Antiquities Act in which Congress gave the president the power create national monuments, saying the courts have upheld the act several times.
But as I related a couple of months ago the law has never been challenged on the basis of its constitutionality.
Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”
The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906.
A Heritage Foundation essay by a federal judge argues it may not:
Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress.
Arguably, Congress may not abrogate the powers and authority defined in the Constitution without amending it.
Laxalt issued a statement saying: “This unilateral land grab is the latest attempt for the outgoing president to add another layer of unnecessary federal control to our State. Although I am not surprised by the president’s actions, I am deeply disappointed at his last minute attempt to cement his environmental legacy by undermining local control of Nevada’s communities, and damaging our jobs and economy.”
Though resigned to the Gold Butte designation, Gov. Brian Sandoval worked to avoid some of the problems it would create. “My priority was to mitigate any disruption a potential designation may cause the surrounding private land owners, communities and recreationists,” he said, citing especially water rights.
The governor said he worked with “the White House and Department of Interior to ensure Nevada water law is adhered to and that the Virgin Valley Water District would have access to its water infrastructure for continued development and maintenance.”
Maintenance perhaps, but development?
The Obama proclamation states: “The establishment of the monument is subject to valid existing rights, including valid existing water rights.” (2016goldbutte)
Existing water rights, not new ones.
The proclamation goes on to say “nothing in this proclamation shall be construed to preclude the renewal or assignment of, or interfere with the operation, maintenance, replacement, modification, or upgrade within the physical authorization boundary of existing flood control, pipeline, and telecommunications facilities, or other water infrastructure, including wildlife water catchments or water district facilities, that are located within the monument. Except as necessary for the care and management of the objects identified above, no new rights-of-way shall be authorized within the monument.”
Perhaps, the governor and the attorney general should discuss joining Utah in challenging the Antiquities Act itself.
They could also talk to President-elect Donald Trump about simply undoing the monument designations. A presidential right to declare implies a presidential right to rescind.
The Wall Street Journal pointed out recently, “In Myers v. United States (1926), the Supreme Court ruled that the president’s power to appoint officials, with the advice and consent of the Senate, includes the power to unilaterally remove them.”
The court said, “The power of removal is an incident of the power to appoint …”
Perhaps, Sen. Dean Heller could join the fray. He said in a statement: “I am terribly disappointed with today’s news. For years, I have urged for all new land designations, especially ones in Nevada, to be considered in an open and public Congressional process. Doing so allows for all voices and stakeholders to have an equal opportunity to be heard. Best of all, input from local parties guarantees local needs are addressed. In the future, I will continue to fight for an open process utilizing Congressional support to designate new national monuments.”
There is more than one way to flay this feline.
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