Exectuive power: overreaching, overzealous, dream-dashing

by Marita Noon, June 9, 2014

President Obama is in trouble with his usual allies, not to mention his ever-ready opponents, over two recent acts of excessive executive power: the Bergdahl prisoner swap and the new CO2 regulations announced on Monday, June 2.

Senator Diane Feinstein (D-CA), Senate Intelligence Committee chairman, has been publicaly critical of the administration’s decision not to adhere to a law requiring 30 days’ notice to Congress before releasing detainees from the Guantanamo Bay facility in Cuba. Bloomberg reports: “she’s not convinced there was a ‘credible threat’ against the life of freed Army Sergeant Bowe Bergdahl that motivated the White House to keep its plans secret.”

Regarding the CO2 regulations, Senator Mary Landrieu (D-LA), Senate Energy and Natural Resources Committee chairman, has come out against the president’s approach, saying: “This should not be achieved by EPA regulations. Congress should set the terms, goals and timeframe.” Representative Nick Rahall (D-WV), who, like Landrieu is in a tough reelection fight, has come out with even stronger opposition to the president’s plan calling it: “Overreaching, overzealous, beyond the legal limit.” Rahall says the actions of the EPA “have truly run amok.”

Both stories have dominated the news cycle for the past week. Yet, just a couple of weeks earlier, another story of executive overreach got little coverage and the affected allies stood by the President’s side as he signed an order creating, what the Washington Post called: “the largest national monument of the Obama presidency so far.”

After years of heated local debate and despite polling that shows the people are not behind the president, on May 21, Obama declared the Organ Mountains-Desert Peaks region of New Mexico, nearly 500,000 acres, a national monument—his eleventh such designation “so far.” Senators Tom Udall and Martin Heinrich, and Representative Ben Ray Lujan, (all D-NM) were present at the signing ceremony. The official Department of the Interior photo shows each of them with big smiles as they look on.

They should be happy. Udall and Heinrich had previously proposed similar federal legislation. Praising the president’s effort, Udall said: “The president’s decision finally puts into motion a plan that began with the people of southern New Mexico, who wanted to ensure these special places would continue to be available for local families and visitors to hike, hunt and learn from the hundreds of significant historic sites throughout the area for generations to come.”

But not everyone is smiling. The Las Cruces Sun-News (LCSN) reports: “Republican Rep. Steve Pearce, whose congressional district covers the region, issued a statement taking issue with Obama’s use of the 1906 U.S. Antiquities Act, saying monuments created under it are supposed to cover only the ‘smallest area compatible’ with the designation. He contended the approval ‘flies in the face of the democratic process.’” Pearce’s statement says: “This single action has erased six years of work undertaken by Doña Ana County ranchers, business owners, conservationists, sportsmen officials and myself to develop a collaborative plan for the Organ Mountains that would have preserved the natural resource and still provided future economic opportunities.”

Ranchers and off-road vehicle users have opposed the large-scale monument. The LCSN states: “In particular, ranchers have been concerned about impacts to their grazing allotments on public lands in the wake of the new monument.”

Steve Wilmeth, a vocal ranching advocate, whose family has been ranching in New Mexico since 1880 says his ranch, and many others with whom he’s worked side-by-side, will be impacted by the designation. “The Organ Mountains-Desert Peaks National Monument designation puts America’s ranchers on a glide path to destruction. The full implications won’t be known until the management plan is complete, but, due to the private lands that are embedded within the designation and based on historic evidence, with a single stroke of his pen, President Obama’s actions has likely put the livelihood of nearly 100 families fully in jeopardy, and, based on all other such designations will likely destroy what many, myself included, have spent a lifetime creating.”

Wilmeth’s view is based on experience. Another New Mexico rancher, Randall Major, lost his ranch due to the El Malpais National Monument designation. In a letter detailing his story, Major explained: “On December 31, 1987, our area was designated as the El Malpais NCA [National Conservation Area] and National Monument. This made a third of our allotment wilderness, a third NCA, and a third non-NCA. At this time, the El Malpais NCA was to be managed by the BLM [Bureau of Land Management] and required the BLM to develop a general management plan for the management of the NCA.”

Major was told the plan didn’t affect his grazing allotment. However, he states: “after getting and reading the plan, I found out they wanted big changes on our allotment; such as the closing of most of our roads that we travel on to conduct our business—putting out salt, supplements, and repairing and maintaining our waters. They had plans to keep our livestock out of our springs for riparian area purposes. There is a long list of things that I could go on and on.”

Major says that the landowners were not included in the planning process. He quotes the BLM as saying: “It is our priority for acquisition of lands containing natural and or cultural resources requiring management or protection, and or lands needed for visitor access and facility development. For those areas where private uses are incompatible with NCA goals and purposes or where important resources are on private land.”

Major concludes: “It is my opinion that the radical environmental groups have teamed up with our federal agencies. Their goal is to take control of all the land and put ranchers out of business. It is a sad day in this country when this is allowed to happen. … My hat is off to ranchers who continue to fight for the property that belongs to them.”

On a recent radio interview featuring Congressman Pearce, Wilmeth, and Colin Woodall, Vice President, Government Affairs for the National Cattlemen’s Beef Association, discussing the new national monument, Woodhall pointed out that DC is not worried about ranchers and Pearce said: “The law allows the agencies to destroy you and there’s nothing you can do.” Agency personnel are appointed and hired by the federal government. They have great authority but little accountability—holding positions of power that can’t be voted out.

The law Pearce is referencing is known as the Antiquities Act, signed into law by President Roosevelt in 1906. The Act for the Preservation of Antiquities limited Presidential authority for National Monument designations to Federal Government-owned lands and to, as Pearce referenced, “the smallest area compatible with the proper care and management of the objects protected.” The Antiquities Act also authorized “relinquishment” of lands owned privately, authorizing the Federal Government to take land. The Constitution’s Fifth Amendment requires owners be compensated by the rest of us taxpayers. But fair market value can change dramatically when a policy change triggered by laws such as the Antiquities Act modifies the broad multiple use category for large segments of the federal estate to limited and recreational use.”

Addressing his Techado Allotment 50 miles south of Grants, New Mexico, originally purchased in 1968, Major says: “In the year 2003, we tried to be willing sellers. … They would not offer us value of the land based on neighboring comparable sales. They would not compensate us for our improvements on the allotment, such as, fences, waters, corrals, buildings, etc.”

While the Federal Government owns much of National Monument land, private, tribal and state lands are often enclosed inside new designations. Essentially, an Antiquities Act presidential proclamation transfers valuable “multiple use” land into a restricted use category as management plans can disallow historical use.

History shows that in cases where the Antiquities Act has been used—whether for a National Conservation Area, a National Park, or a National Monument—mining claims were extinguished, homes have been torn down, communities have been obliterated, and working landscapes been destroyed. The National Park Service Association’s website states: “ultimately, the Park Service is expected to own and manage virtually all privately owned lands within park boundaries. … private inholdings can disrupt or destroy park views, undermine the experience of visitors, and often diminish air and water quality while simultaneously increasing light and noise pollution. Park Service managers have stated … that privately owned land within park boundaries creates gaps that shatter the integrity of individual parks and the system as a whole, and make it more difficult and expensive for the Park Service to protect key resources.”

Proof of my claims can be found in the sad tales of federal land grabs, including what happened to the town of McCarthy, Alaska, when President Carter used the Antiquities Act to create the Wrangell-St. Elias National Monument in 1978; Ohio’s Cuyahoga River Valley’s conversion from “a patchwork of lovely scenery and structures: row crops and orchards, pastures and woodlots, barns and farmhouses, and tractors working the fields” as Dan O’Neill called it in A Land Gone Lonesome, to the Cuyahoga River Valley National Recreation Area that razed more than 450 homes; and what happened in Utah when President Clinton declared 1.7 million acres to be the Grand Staircase-Escalante National Monument that locked out a lot of ranchers and potential coal mining.

At an April 2013 Congressional hearing, Commissioner John Jones of Carbon County, Utah, told the Committee: “Please don’t insult rural communities with the notion that the mere designation of National Monuments and the restrictions on the land which follow are in any way a substitute for long-term wise use of the resources and the solid high wage jobs and economic certainty which those resources provide.”

Supporters of National Monuments often tout the economic benefits tourism will bring. Former Secretary of the Interior, Ken Salazar has said: “There’s no doubt that these monuments will serve as economic engines for the local communities through tourism and outdoor recreation—supporting economic growth and creating jobs.” The LCSN reported: “Many supporters of the Organ Mountains Desert-Peaks National Monument have argued it will boost the local economy by attracting tourists to the area.” Yet, Commissioner Jones, in his testimony, asked: “If recreation and tourism, which are supposed to accompany the designation of national monuments, are such an economic benefit to local communities, why is the school system in Escalante, Utah, in the heart of the Grand Staircase, about to close due to a continual decline in local population since the monument was created?”

Bill Childress is the Regional BLM director who will oversee the management plan for the new Organ Mountains Desert-Peaks National Monument—expected to take five years (long after Obama is out of office). He says that “at least for now” changes will not be noticed by many people. However, according to the LCNS, “some roads or trails could be closed after that document takes effect.” The LCNS report, What’s next for the Organ Mountains Desert-Peaks National Monument?, continues: “Asked if ranchers should be concerned about curtailment of their grazing rights after the record of decision has been made, Childress said: ‘I can’t prejudge the decision. All I can say is most monument lands that the bureau manages permit grazing. We do have a few examples where that’s not the case in small areas. But, (the proclamation) acknowledges that we need to manage those and make decisions on grazing based on the existing rules, and that's what we plan on doing.”

New Mexico ranchers know the history and they are worried. According to the LCSN: “Jerry Schickendanz, chairman of the Western Heritage Alliance, which opposed the Organ Mountains-Desert Peaks designation, said a key concern of the group is that ranching wasn’t listed prominently among the list of resources in Obama’s monument declaration.”

The impact goes beyond ranching. The LCNS reporting says: “the proclamation prevents the BLM from selling or getting rid of any of the land, allowing new mining claims or permitting oil and natural gas exploration.”

Federal land management policy has shifted from managing working landscapes populated by productive resource-based communities of ranchers, farmers, loggers, and miners, to a recreational landscape intended to delight visitors. This is especially troubling in the West where the vast majority of many states is owned by the federal government.

At the signing of the Organ Mountains-Desert Peaks National Monument Declaration, Obama repeated his State of the Union Address pledge: “I’m searching for more opportunities to preserve federal lands.” It is New Mexico today, but your community could be impacted next.

In Nevada, according to the Las Vegas Review-Journal, Senator Dean Heller (R) has just warned Obama “against designating a national monument in the Gold Butte region of Clark County.” Unlike Udall and Heinrich, who happily supported the New Mexico designation, Heller is quoted as saying: “I am extremely concerned about the impact a unilateral designation will have on my state.”

The Review-Journal states: “There has been heightened sensitivity among Western conservatives since Obama on May 21 designated 500,000 acres in the Organ Mountain-Desert Peaks region of southern New Mexico as a national monument that would allow it to be managed more like a national park. They have bristled at what they regard as federal ‘land grabs’ exercised by the president without approval by Congress, and seek to head off further designations.”

While there are some cases where Congress has abolished National Monuments and transferred the lands to other agencies, and Alaska and Wyoming have enacted legislation prohibiting the president’s power to 5,000 acres, New Mexico’s ranchers live in raw fear of the unlimited power the Antiquities Act allows the executive branch.

Hundreds of millions of acres have been set aside with the stroke of a pen. Each designation provides a photo op featuring a smiling President and his allies (Udall, Heinrich, and Lujan) with stunning pictures of the latest protected place. All while somewhere within the borders of a state or territory someone’s access is taken, someone’s hunting and fishing grounds are gone, someone’s land has been grabbed, someone’s life’s work is wiped out, and opportunities for the American dream of a future rancher, farmer, miner are dashed.

The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc. and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). Together they work to educate the public and influence policy makers regarding energy, its role in freedom, and the American way of life. Combining energy, news, politics, and, the environment through public events, speaking engagements, and media, the organizations’ combined efforts serve as America’s voice for energy.