WASHINGTON – Land rights advocates (search) are scratching their heads as to why the White House has asked the Supreme Court not to hear two cases challenging seven controversial national monuments named by President Clinton in the waning days of his administration.
During his race for president in 2000, then-Gov. George W. Bush campaigned against the monuments, giving hope to many western landowners who found their private property subject to strict federal protections.
Three years later, the monuments remain, encompassing millions of acres of land in places like Montana, Oregon, Nevada and Idaho, where the government already owns huge chunks of untamed wilderness. And some property owners are becoming disillusioned.
“They suggested during the campaign that they would overturn the most outrageous [proclamations], especially the ones that affected private landowners,” said R.J. Smith, adjunct scholar for the Competitive Enterprise Institute (search), who claims landowners were deceived into voting for Bush.
“The people who produce the fruit and fiber and so on of this country came out in unbelievable numbers against Al Gore (search). They thought George Bush was their salvation," Smith said.
With the Supreme Court undecided on whether to hear two lawsuits filed on behalf of Tulare County, Calif., and the Mountain States Legal Foundation (search), administration officials, now in the position of defending the White House, won't comment.
The attorneys in both cases argue that Clinton abused his power by designating 21 national monuments under the 1906 Antiquities Act (search), which provides federal protection to historic landmarks, structures and other objects of scientific or historic value. The cases argue in detail that former President Clinton gave broad, vague reasons why millions of acres in land should be given protected status.
For example, only 6 percent of the 30,000-acre Giant Sequoia National Park (search) created in California by Clinton houses the famous ancient trees, said Gary Stevens, attorney for Tulare County, where the park is located.
“The groves have always been subject to special protective status, dating back to the first Bush administration,” said Stevens. “We spell out in great detail why President Clinton failed to comply with the Antiquities Act. We need to have a court tell us we’ve raised legitimate questions and we deserve to argue our case on the merits.”
Two lower courts have dismissed the cases, ruling that they did not effectively argue that Clinton misused the Antiquities Act, and even if he did, the statute does not allow for judicial recourse. The White House pointed to these rulings as reason enough for the High Court to keep them off its docket.
"Even if petitioners had timely pleaded a claim that the president abused his discretion in applying the Antiquities Act standards to the designations at issue here, petitioners would not be entitled to judicial review of that contention,” wrote U.S. Solicitor General Theodore Olson (search) in a brief filed by the Justice Department in July. “Further review is not warranted.”
William Perry Pendley, attorney for the Mountain States Legal Foundation, which is challenging the designation of six monuments, said it sounds like the White House is protecting its authority, rather than following through with its own complaints against the Clinton designations.
“They could have just sent it back to the lower courts,” he said. “But there is a mentality in the Justice Department to win at all costs.”
Chuck Cushman, president of the American Land Rights Association (search), acknowledged that folks were disappointed that Bush didn’t try to reverse the proclamations, but said the administration has worked to relax some of the use restrictions on the designated lands, including timber, mining and recreation.
Bush has even talked about exploring such public lands for future energy production, drawing the ire of environmentalists.
“The emphasis is now on the flexibility in regulations, to allow the private owners to carry on with their activities,” which most often involve access routes and water rights, said Cushman.
Joy Crawford, a third generation rancher-farmer in Montana, whose land is surrounded by the property encompassed in the 377,246-acre Upper Missouri Breaks National Monument (search), said she has seen growing concerns by landowners regarding property access and water rights, though the bureaucracy has been slow in implementing permanent road closures and other crackdowns.
“I’m not sure [the administration] knows what is going on here,” Crawford said. “It’s kind of tough sometimes, because you don’t know what the future will bring.”
Land rights advocates said that leaving the monuments intact and instead opting to manage them better by relaxing regulations sounds good in theory, but will tumble like a house of cards if a more liberal president takes office.
“If Howard Dean (search) becomes president,” said Pendley, referring to the former governor of Vermont, who is running for the Democratic nomination for president, “the regulations will be rewritten and made worse.”
Stevens said the court will decide in September whether to hear the cases, and is dismayed that the White House has opposed them.
“We thought we were preaching to the choir, but it turns out we weren’t even let inside the church.”