- The Washington Times - Monday, July 28, 2003

Attacks against President Clinton’s proclamation restricting access to seven national monuments and millions of acres of public land have reached the Supreme Court, where President Bush’s administration is defending the discretion Mr. Bush once denounced.

The Justice Department is asking the justices to reject two challenges to Clinton proclamations that Mr. Bush and running mate Dick Cheney, in the 2000 campaign, called “willy-nilly” and vowed to review, perhaps nullify. The question of Mr. Clinton possibly exceeding president’s powers was a charged issue.

“We found it painfully ironic but that’s unfortunately the way things sometimes go,” said Washington lawyer Gary G. Stevens, who represents Tulare County, Calif., in opposing the April 15, 2000, creation of “Giant Sequoia National Monument,” which barred logging on a third of a million acres in Sequoia National Forest.

“There’s an interesting policy issue here. I hope the court would see that and address it. As it is now, with a stroke of the pen a president could convert any property in the United States to a national monument, and that’s ridiculous,” Mr. Stevens said.

The administration’s stand also bothers such Clinton critics as constitutional lawyer William J. Olson, a Republican who lobbied Congress “to restrict a president’s ability to legislate by executive order or proclamation” and is discouraged that Justice Department allies back more power for the White House.

“You’d hope presidents would view power in their own hands with the same suspicion they view it in the hands of people they distrust,” Mr. Olson said of Mr. Bush.

Solicitor General Theodore Olson, who is unrelated to the McLean lawyer, asked the court to reject the Tulare County appeal and a separate appeal by the Mountain States Legal Foundation involving six more of the Clinton proclamations.

The solicitor general told the justices the Antiquities Act of 1906 does not permit court review and he said there is no other basis to sue a president on this issue.

“Neither the Antiquities Act nor any other federal statute authorizes abuse-of-discretion review of the president’s designation of national monuments under the act,” the solicitor general said. “Further review is not warranted.”

He urged the high court to refuse to hear both appeals when they consider the documents at a conference scheduled for Sept. 29.

On Oct. 18, the U.S. Circuit Court of Appeals for the District of Columbia rejected claims in both lawsuits that Mr. Clinton illegally exceeded presidential powers, in one case ruling the actions were within his discretion under the 1906 law that authorizes a president “in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”

The Mountain States challenge said that language permits designation only of man-made objects of historical or scientific interest, and only the smallest amount of surrounding land in support. The D.C. Circuit noted that the Supreme Court in 1920 ruled the Grand Canyon itself “an object of unusual scientific interest.”

The Mountain States case involves the creation during Mr. Clinton’s final year in office of the following national monuments: Grand Canyon Parashant, Ironwood Forest and Sonoran Desert in Arizona, Canyons of the Ancients in Colorado, Cascade-Siskiyou in Oregon and Hanford Reach in Washington state.

The lawsuit said all involved protection of “natural objects,” which it contends is not permitted by the Antiquities Act.

“I find the whole thing ironic, from the first day the United States walked into court,” said William Perry Pendley, president of Mountain States. He said federal lawyers might discourage the president from overturning the proclamations, but that cannot account for his defending them.

“As governor, Bush attacked Clinton for the monuments when he campaigned in the West. Dick Cheney did the same thing. Cheney said if he were president he would revoke the monuments. The rhetoric was very strong against the monuments,” said Mr. Pendley, who added he believes many Westerners voted for that promise.

“There certainly is precedent out there, not only for a change of position, but for saying that [the series of proclamations] is an illegal act and will not be defended,” Mr. Pendley said. “I cannot imagine that either President Bush or Attorney General [John] Ashcroft would say that whatever President Clinton did will be defended. There was obviously a decision made in this case to defend this action and I don’t know if it reflects things we heard during the campaign.”

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