Fanizzo on Separation of Powers, Federal Land Management, and the Antiquities Act

Kelly Y. Fanizzo (Temple) has posted Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, from Environmental Law, Vol. 40, No. 3, 2010 .  The abstract:

When can a third party sue to force an executive agency to take an action in compliance with the direction of the President? In 2001, President Bill Clinton designated a half million acre national monument in southeastern Arizona and ordered the Bureau of Land Management to study whether cattle grazing would harm the significant historic and scientific sites he intended to protect. The Bureau allowed grazing to continue without doing the study. A non-profit conservation group, the Western Watersheds Project, sued the Bureau to implement Clinton’s orders. The group asked the court to exercise its authority under the Administrative Procedure Act to compel agency action unlawfully withheld and set aside arbitrary, capricious, and unlawful agency action. The Bureau responded that judicial review was not available to enforce its compliance. This article argues that courts should enforce the terms of such presidential proclamations when third parties sue the non-compliant agency. The intent of Congress in delegating to the President the ability to act quickly and reserve public lands for certain uses and not others and the broad deference given by the courts to the exercise of presidential discretion at the time of the designation support the application of this judicial review. Set against the backdrop of preserving our national cultural heritage, this case highlights the respective, and at times, overlapping roles of the executive, legislative, and judicial branch in federal land management.

Matt Festa