Why isn't Interior publicly releasing its monuments review?

Secretary Zinke announced that his Department has submitted its review of national monuments to the President, but he’s not ready to let you and me see it

Today, the Department of Interior announced that it had sent to the White House its report of the review demanded by an April Executive Order of national monument designations under the Antiquities Act over the last 20 years. In an ordinary world, I would have expected that announcement to be accompanied by a link to the report, but all we got was a 2-page “summary” that attempts to defend the review process, acknowledges that public comments “overwhelmingly” supported keeping the monuments as they are, and suggests that Interior now takes an extraordinarily narrow view of the types of resources that can support monument designation. (Apparently Secretary Zinke doesn’t consider “landscape areas, biodiversity, and view sheds” to be “objects of historic or scientific interest”.) What the summary doesn’t do is reveal the particular recommendations made about specific monuments.

Of course, this is far from an ordinary world. I wrote yesterday about the Trump administration’s penchant for hiding its own head from bad news. It’s also distinctly prone to keeping as much information as possible from the public, so this latest lack of transparency shouldn’t really come as a surprise.

But secrecy in this case makes no sense. I leave it to my fellow Planeteers to argue the merits of whether the President can, or should, alter any monuments. Eric, Sean, and Nick have addressed the question of presidential authority quite capably here. (My colleague John Yoo disagrees.) My view on the authority question is no secret — together with Eric, Dan, Sean, Ann, Rick and more than 100 colleagues across the country, I signed on to the law professor comment letter Eric linked to in this post. But that’s not what I want to talk about here.

Instead, I want to ask why Interior (or more likely the White House) thinks it’s a good idea not to publicly release Zinke’s full review. I don’t see anything to be gained. There already aren’t a whole lot of secrets here. Zinke has said publicly that he’s not recommending elimination of any of the reviewed monuments; the Interior press release listed six for which no change is recommended; a draft report recommending some unspecified downsizing of the Bears Ears National Monument in Utah was made public in June; and unnamed sources have told the Washington Post that Interior is also recommending changes to the boundaries of Grand Staircase-Escalante and Cascade-Siskiyou National Monuments.

So why doesn’t the Department go ahead and show its work to the public? Greenwire (subscription required) quotes House Natural Resources Committee chair Rob Bishop as saying the White House needs time to review the report, but with all due respect that’s bunk. Sure, the White House may need time to decide what to do, especially in light of the clear public opposition to monument downsizing, but that’s no reason to keep Interior’s recommendations secret.

Eventually, if the White House decides to try any downsizing, it will have to publicly reveal its reasoning, first in a proclamation and surely shortly thereafter in court. I’m guessing the administration (or maybe the very capable career lawyers at Interior) think the legal case is weak. It sure looks that way in Zinke’s “summary.” But holding it close to the vest won’t make the legal grounding stronger.

I also suspect there are (rightly) internal concerns about the politics of monument downsizing, but again secrecy won’t help. It is definitely not holding opposition in abeyance. REI has publicly pledged its opposition to any changes; Oregon’s Governor and Attorney General have expressed their concerns about reports that Cascade-Siskiyou is being targeted; California Senator Feinstein has called for public release of the report; and environmental groups are not waiting to express their outrage.

Maybe the White House thinks this secrecy will allow President Trump to take any credit for the eventual decision and deflect any blame, as is his wont. You’d think he would have learned by now, though, that it’s hard to keep a secret and that delay rarely makes the story look more favorable for the White House. I’m pretty sure we’ll be reading the full report before long. Meanwhile, the Secretary of the Interior looks like he’s so under the White House’s thumb that he’s not permitted to have an independent view of what should happen to high-profile lands nominally under his stewardship. And the White House looks like it doesn’t have the guts to face up publicly to the difficult decisions its penchant for thoughtless bluster forces it to confront. Hard to see this decision as a plus for anyone in the administration.

4 Replies to “Why isn’t Interior publicly releasing its monuments review?”

When this review of monuments first came up, I brought up the fact there was no Federal Register Notice for National Environmental Policy Act (NEPA) analysis. Why wasn’t NEPA done on these reviews? How could it not be done?

Mike Painter says:

August 25, 2017 at 8:19 am

NEPA’s not required when a president designates a national monument. This was supposed to be a review of those that have been designated since 1996, with a report of recommendations. It’s not an action, per se. And even if the president does act under his (very doubtful) authority under the Antiquities Act, since NEPA is not required to designate, it might be hard to claim it would be to de-designate.

My $0.02.

Interior is again calling this a “draft report.” What’s up with that?

Thanks for the comments. The NEPA question is actually pretty straightforward, although it takes a bit of doing to explain why. Mike Painter is right that NEPA does not apply to Presidential designation of National Monuments, even if the idea for designation originates with the Department of Interior (see, e.g., Utah Association of Counties v. Bush, 316 F. Supp. 2d 1172 (Utah 2004), because the President is not an agency subject to NEPA. Interior, of course, is an agency subject to NEPA. It’s been asked to supply recommendations for changing monuments, and NEPA by its terms kicks in whenever an agency makes a “recommendation or report” on a proposal for federal action. That would seem to apply here. But there’s a problem with getting federal courts involved. NEPA doesn’t provide a private right of action, so an allegation of NEPA violation has to be brought under the Administrative Procedure Act. The APA only allows challenges to final agency action, and action is only regarded as final when it not only ends the agency process but has concrete legal implications. That’s not the case here. As Michael Burger points out, Interior’s press release says a “draft” report has been submitted to the President, which means that Interior itself is describing its work as not finished. (I think the agency believes that description bolsters its justification for not making the “draft” public.) But even if Interior said it was done, its recommendations do not have any direct legal consequence; they don’t change anything unless and until the President acts on them. The Utah Association of Counties case cited above said on that basis that it could not review Interior’s compliance (or lack thereof) with NEPA in the course of recommending designation of the Grand Staircase as a national monument.

Comments are closed.

Reader Comments

David Keys, CEP says:

August 25, 2017 at 5:34 am

When this review of monuments first came up, I brought up the fact there was no Federal Register Notice for National Environmental Policy Act (NEPA) analysis. Why wasn’t NEPA done on these reviews? How could it not be done?
1. Mike Painter says:
  
  August 25, 2017 at 8:19 am
  
  NEPA’s not required when a president designates a national monument. This was supposed to be a review of those that have been designated since 1996, with a report of recommendations. It’s not an action, per se. And even if the president does act under his (very doubtful) authority under the Antiquities Act, since NEPA is not required to designate, it might be hard to claim it would be to de-designate.
  
  My $0.02.
MICHAEL BURGER says:

August 25, 2017 at 7:29 am

Interior is again calling this a “draft report.” What’s up with that?
Holly Doremus says:

August 25, 2017 at 10:51 am

Thanks for the comments. The NEPA question is actually pretty straightforward, although it takes a bit of doing to explain why. Mike Painter is right that NEPA does not apply to Presidential designation of National Monuments, even if the idea for designation originates with the Department of Interior (see, e.g., Utah Association of Counties v. Bush, 316 F. Supp. 2d 1172 (Utah 2004), because the President is not an agency subject to NEPA. Interior, of course, is an agency subject to NEPA. It’s been asked to supply recommendations for changing monuments, and NEPA by its terms kicks in whenever an agency makes a “recommendation or report” on a proposal for federal action. That would seem to apply here. But there’s a problem with getting federal courts involved. NEPA doesn’t provide a private right of action, so an allegation of NEPA violation has to be brought under the Administrative Procedure Act. The APA only allows challenges to final agency action, and action is only regarded as final when it not only ends the agency process but has concrete legal implications. That’s not the case here. As Michael Burger points out, Interior’s press release says a “draft” report has been submitted to the President, which means that Interior itself is describing its work as not finished. (I think the agency believes that description bolsters its justification for not making the “draft” public.) But even if Interior said it was done, its recommendations do not have any direct legal consequence; they don’t change anything unless and until the President acts on them. The Utah Association of Counties case cited above said on that basis that it could not review Interior’s compliance (or lack thereof) with NEPA in the course of recommending designation of the Grand Staircase as a national monument.