Utah Ass'n of Counties v. Bush

OPINION AND ORDER

INTRODUCTION

The present matter comes before the Court on defendants’ Motion to Dismiss or in the alternative for Summary Judgment and plaintiffs’ Motions for Summary Judgment. The motions were argued before the Court on January 15, 2004. The Court has considered the legal briefs and oral arguments of the respective parties and enters the following Opinion and Order.

BACKGROUND

A. THE LAWSUITS AND THEIR CONTENTIONS

On September 18, 1996, President William Jefferson Clinton, invoking his authority under the Antiquities Act, designated 1.7 million acres of federal land in southeastern Utah as the Grand Staircase-Escalante National Monument. On June 23, 1997, the Utah Association of Counties, (UAC) filed this lawsuit challenging the President’s actions, naming as defendants the United States of America, William J. Clinton in his official capacity as President of the United States, Kathleen McGinty in her official capacity as chair of the Council on Environmental Quality (CEQ), Secretary of the Interior Bruce Babbitt, the United States Department of the Interior (DOI), and Patrick Shea, Director of the Bureau of Land Management (BLM).

On November 5, 1997 Mountain States Legal Foundation (MSLF) filed a similar suit against defendants Clinton, Babbitt, and the United States of America. A month later, MSLF filed an amended complaint, which added defendant McGinty. UAC’s and MSLF’s cases were consolidated. 1

Plaintiffs allege:

1) The Antiquities Act is unconstitutional because it violates the delegation doctrine. Plaintiffs claim that only Congress has the authority to withdraw such lands from the federal trust.

2) By creating the Grand Staircase Monument the President acted ultra vires and violated the following provisions of the United States Constitution:

a) the Property Clause, U.S. Const., Art. IV, § 3, cl. 2; because the authority to *1177 manage federal lands rests exclusively with Congress; and

b)the Spending Clause, U.S. Const., Art. I, § 8, cl. 1; because only Congress has the authority to obligate money which will be drawn from the Treasury to purchase private property.

3) By creating the Grand Staircase Monument the President violated:

a) the Antiquities Act, 16 U.S.C. § 431; because he failed to designate the requisite objects of historic or scientific value and he did not limit the size of the monument to the “smallest area” necessary to preserve the objects.

b) the Wilderness Act, 16 U.S.C.A. § 1131 et seq.; because the President established as de facto wilderness areas within the Grand Staircase Monument, and only Congress has the authority to designate public lands as wilderness.

c) Executive Order 10355, because the President, rather than the Secretary of the Interior, withdrew the land.

4) By creating the Grand Staircase Monument the President and/or one or more of the other defendants violated:

a) the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 et seq; because the joint activities of the Department of the Interior and CEQ were carried out independently of the President and were in fact initiated by DOI, and therefore these actions required the preparation of an Environmental Impact Statement (EIS) and compliance with other NEPA regulations, which did not happen.

b) the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq.; because the President’s withdrawal of public lands did not comply with FLPMA’s withdrawal, notice and land use planning provisions.

c) the Federal Advisory Committee Act (FACA), 5 U.S.C. app 2; because advice and recommendations were received by the President and other defendants from various individuals who constituted an “advisory committee” within the meaning of FACA and therefore required compliance with FACA’s procedural standards.

d) The Anti-Deficiency Act, 31 U.S.C. § 1341; because an improper appropriation was created.

Both plaintiffs seek summary judgment as to all of the above claims.

All of the defendants seek dismissal or in the alternative summary judgment as to all claims. They challenge the Court’s jurisdiction to hear the case under the doctrines of standing (as to MSLF only), ripeness and lack of judicial review authority. As to the plaintiffs’ claims of violations of the United States Constitution and federal statutes, the defendants seek dismissal as a matter of law.

1. THE ANTIQUITIES ACT

The Antiquities Act of 1906, 16 U.S.C. § 431, gives the President authority to create national monuments. 2 Since its en *1178 actment, presidents have used the Antiquities Act more than 100 times to withdraw lands from the public domain as national monuments. President Clinton’s use of the Antiquities Act to create the Grand Staircase Monument in 1996 was the first use of the Antiquities Act in more than two decades. The Antiquities Act authorizes the President, “in his discretion,” to establish as national monuments “objects of historic or scientific interest that are situated upon the lands owned or controlled by the government of the United States.” Id. The Act requires the president to reserve land confined to the “smallest area compatible with the proper care and management of the objects to be protected.” Id. For purposes of this litigation, it is helpful to look to the creation of the Act and how it has been used and interpreted since its creation in 1906.

The original purpose of the proposed Act was to protect objects of antiquity. 3 The substance of the Act, developed over a period of more than six years, was created in response to the demands of archaeological organizations. Although the scope of the archaeological organizations’ proposals was limited to preservation of antiquities on federal lands, the United States Department of the Interior proposed adding the protection of scenic and scientific resources to the Act. For six years Congress rejected attempts to include the Department’s proposal. It appears, however, that Congress was unable to pass the limited archaeologists’ bill because of bureaucratic delays and various disagreements between museums and universities seeking authority to excavate ruins on public lands. See Richard M. Johannsen, Public Land Withdrawal Policy and the Antiquities Act, 56 Wash. L.Rev. 439, 448 (1981).

Edgar Lee Hewitt, a prominent archaeologist, drafted the bill that was finally enacted in 1906. Government officials persuaded Hewitt to broaden the scope of his draft by including the phrase “other objects of historic or scientific interest.” This phrase essentially allowed the Department of the Interior’s proposal, which Congress had previously rejected, to be included in the final bill. In addition, while earlier proposals had limited the reservations to 320 or at the most 640 acres, Hewitt’s draft allowed the limit to be set according to “the smallest area compatible with the proper care and management of the objects to be protected.” Despite the presence of this broader language, there is some support for the proposition that Congress intended to limit the creation of national monuments to small land areas surrounding specific objects. Illustrative of this intent is House Report No. 2224, which states “[tjhere are scattered throughout the southwest quite a large number of very interesting ruins ... [t]he bill proposes to create small reservations reserving only so much land as may be absolutely necessary for the preservation of these interesting relics.” h.R. Rep. no. 2224, 59th congRess, 1st sess. at 1 (1906).

Despite what may have been the intent of some members of Congress, use of the Antiquities Act has clearly expanded beyond the protection of antiquities and *1179 “small reservations” of “interesting ruins.” Nothing in the language of the Act specifically authorizes the creation of national monuments for scenic purposes or for general conservation purposes. Nonetheless, several presidents have used the Act to withdraw large land areas for scenic and general conservation purposes. President Theodore Roosevelt was the first president to withdraw land under the Act, establishing a precedent other presidents later followed to create large scenic monuments. Within two years of enactment of the Act, President Roosevelt made eighteen withdrawals of land. 4

Several monuments have been created within the general vicinity of the Grand Staircase Monument. In Utah alone, there are six such national monuments: Cedar Breaks, Hovenweep, Timpanogos Cave, Dinosaur, Rainbow Bridge, and Natural Bridges. Surrounding areas in Colorado and Arizona have also been designated as monuments under the Antiquities Act. Presidential proclamations creating these monuments cited geologic, paleonto-logic, archaeologic, and other features similar to those in the Grand Staircase Monument proclamation. Zion National Park to the west of the Grand Staircase Monument was originally Mukuntuweap National Monument, created by President Taft in 1909 to protect its “many natural features of unusual archaeologic, geologic, and geographic interest.” See Proclamation No. 877, 36 Stat. 2498. President Wilson enlarged the boundaries of the monument in 1918 and Congress converted it to a national park in 1919.

President Hoover established Utah’s Arches National Monument to the northeast of the Grand Staircase Monument in 1929, citing its “unique wind-worn sandstone formation, the preservation of which is desirable because of their educational and scenic value.” Proclamation No. 1875, 46 Stat. 2988. Congress designated Arches a National Park in 1971. President Franklin D. Roosevelt established Utah’s Cedar Breaks National Monument, located west of the Grand Staircase Monument, in 1933 (Proclamation No.2054, 48 stat. 1705.), and Capital Reef National Monument, which is located to the immediate east of the Grand Staircase Monument, in 1938. (Proclamation No. 2246, 50 Stat. 1856.)

Coincidentally, during the 1930s, the Franklin D. Roosevelt administration considered the creation of a monument in virtually the same area as the Grand Staircase Monument. President Roosevelt received a recommendation to withdraw 4.4. million acres of Utah’s red rock country, creating Escalante National Monument. The Roosevelt administration ultimately rejected the idea, in large part because of local opposition. See James R. Rasband, Utah’s Grand Staircase: The Right Path to Wilderness Preservation?, 70 U. Colo. L. Rev. 483, 488 (1999).

Most of the presidential withdrawals have been uncontroversial. However, there have been several legal challenges to presidential monument designations under the Antiquities Act. Every challenge to date has been unsuccessful. See Cameron *1180 v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659 (1920) (the President’s designation of the Grand Canyon as a national monument was a valid use of his authority under the Antiquities Act); Wyoming v. Franke, 58 F.Supp. 890 (D.Wyo.1945) (the proclamation creating the Jackson Hole National Monument complied with the standards set forth in the Antiquities Act); Cappaert v. United States, 426 U.S. 128, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976) (presidential proclamation withdrawing the Devil’s Hole tract of land and accompanying water from the public domain and combining it with the Death Valley National Monument, explicitly reserved water rights to the federal Government and constituted a valid exercise of presidential authority under the Antiquities Act); Anaconda Copper Co. v. Andrus, No. A79-101 (D.Alaska, 1980); Alaska v. Carter, 462 F.Supp. 1155 (D.Alaska 1978) (president not subject to requirements of National Environmental Policy Act when proclaiming national monuments under the Antiquities Act).

2. THE WILDERNESS ACT

Also relevant to the present motions is the Wilderness Act, 16 U.S.C. §§ 1131-36 (1964). The Wilderness Act, signed into law in 1964, was intended to preserve the undeveloped character of designated areas. Prior to passage of the Wilderness Act, the United States Forest Service and the United States National Park Service were the only two federal agencies with a management scheme to preserve wilderness areas. Selection and management of the lands was discretionary. Concerned that some areas were not receiving the necessary protection and perhaps that some were receiving too much, Congress created a means by which a system of wilderness could be created that would provide the appropriate safeguards and that designated Congress alone as the final arbiter of which federal lands would actually achieve status as wilderness areas. See Leann Foster, Wildlands and System Values: Our Legal Accountability to Wilderness, 22 Vt. L. Rev. 917, 921-22 (1998).

The Wilderness Act directed the Secretary of Agriculture and the Secretary of the Interior to review certain lands within their jurisdictions and make recommendations as to their suitability for wilderness classification. See id. § 1132(d)(1). The areas to be studied were identified as Wilderness Study Areas (WSAs). See id. § 1131. Once the lands were inventoried, BLM was to conduct a study of each WSA, pursuant to Section 603 of FLPMA, 43 U.S.C. § 1782. The BLM would then make a recommendation to the President, who in turn would recommend to Congress whether any of the WSAs should be designated as wilderness. Until such designation occurs, the administering agency is to manage the WSAs so as not to impair their suitability for possible wilderness classification by Congress. See 16 U.S.C. § 1133. Once an area receives actual wilderness status, commercial enterprises, roads, motorized equipment, mining, and oil and gas leasing are prohibited in the wilderness area. See id.

Approximately 900,000 acres, roughly one-half of the acreage within the Grand Staircase Monument, are classified as WSAs and therefore preserved for suitability for possible future preservation as wilderness. Congress has not made a final determination with regard to the WSAs within the Grand Staircase Monument.

3. EVENTS LEADING TO THE GRAND STAIRCASE PROCLAMATION

From 1978 to 1991, the BLM conducted various studies which resulted in a recommendation that 1.9 million acres of WSAs in the state of Utah should receive wilderness designation. This recommendation, *1181 which included some of the land now part of the Grand Staircase Monument, was forwarded by then Secretary of the Interi- or Manuel Lujan to President George H.W. Bush in October, 1991. The recommendation was supported by a final EIS, and more than 11 years of BLM evaluation and public involvement. However, a change in presidential administrations in 1992 ended discussion about the proposed designation.

Regarding Utah wilderness, the new Secretary of the Interior, Bruce Babbitt, disagreed with the recommendations of his predecessor, believing significantly more land should be set aside. In 1994, then BLM Director Jim Baca wrote to an environmental group stating that the 1.9 million acre wilderness recommendation made by former Interior Secretary Lujan was “off the table.” However, Secretary Babbitt’s ability to undertake a new wilderness study pursuant to Section 603 of FLPMA had expired. Nevertheless, Secretary Babbitt testified before Congress on several occasions, urging that a considerable number of additional wilderness areas should be designated in Utah. Consequently, the 104th Congress (1995-96) considered several different Utah wilderness bills, including a bill sponsored by members of Utah’s congressional delegation which would designate about two million additional acres of wilderness, which was essentially the same as the previous recommendation from former Secretary Lu-jan. Also under consideration was a bill sponsored by Congressman Hinchey of New York and supported by national and Utah environmental groups. The Hinchey bill sought to designate 5.7 million acres of wilderness in Utah. Neither bill reached the floor of the House, and a filibuster precluded a vote in the Senate. Thereafter, Secretary Babbitt directed a second wilderness inventory, the Utah Wilderness Review, in hopes of showing that Congressman Hinchey’s proposed 5.7 million acres bill warranted passage. This Utah Wilderness Review included the evaluation of the wilderness characteristics of approximately 800,000 acres of public land now part of the Grand Staircase Monument. Eventually, however, Secretary Babbitt’s efforts, along with all other efforts made by those in Congress to establish wilderness in the state of Utah, were unsuccessful.

Plaintiffs contend in this litigation that the lack of success in the effort to designate additional wilderness areas in Utah was a motivating factor behind the President’s decision to designate the Grand Staircase Monument. Once the proclamation was announced the affected land was preserved in much the same manner as if it had received wilderness designation.

Plaintiffs assert, and the record appears to support, that another driving force behind Secretary Babbitt’s, the DOI’s, and eventually the President’s efforts to create the Grand Staircase Monument was to prevent the proposed Andalex Smoky Hollow coal mining operation in Kane County, Utah from coming to fruition. 5 Besides supporting Congressman Hinchey’s proposed wilderness designation, which would encompass the property proposed for the Smoky Hollow Mine, Secretary Babbitt and the DOI also attacked the validity of the federal Smoky Hollow coal leases by *1182 attempting to cancel the suspension in the interest of conservation granted to the holders of the coal leases several years earlier by the Utah BLM State Director. The suspension was originally granted to allow Andalex sufficient time to secure mining permits and complete preparation of an EIS.

From the exhibits submitted by plaintiffs, the majority of which were secured by congressional subpoena, it appears that in early 1996, efforts involving various officials within the executive branch of government began discussing the possibility of creating a national monument in Utah by way of a presidential proclamation. Internal memoranda indicate that as early as March 1996, the DOI requested that CEQ or White House officials send a letter to Secretary Babbitt under the President’s signature requesting an investigation and recommendations for a Utah national monument. Plaintiffs assert that the reasoning behind the request was to enable defendants to avoid having to comply with NEPA and FLPMA, because the President is not a federal agency and not subject to either NEPA or FLPMA. An internal CEQ memorandum from Ms. McGinty to Todd Stern reveals even broader reasoning behind the request that the President sign a letter to be sent to Secretary Babbitt:

the president will do the utah event on Aug. 17. however, we still need to get the letter (from the President to Interi- or Secretary Babbitt) signed asap. the reason: under the antiquities act, we need to build a credible record that will withstand legal challenge that: (1) the president asked the secretary to look into these lands to see if they are of important scientific, cultural, or historic value; (2) the secy undertook that review and presented the results to the president; (3) the president found the review compelling and therefore exercised his authority under the antiquities act. presidential actions under this act have always been challenged, they have never been struck down, however, so, letter needs to be signed asap so that secy has what looks like a credible amount of time to do his investigation of the matter, we have opened the letter with a sentence that gives us some more room by making it clear that the president and babbitt had discussed this some time ago. [sic] (McGinty, e-mail to Todd Stern, July 29,1996).

Plaintiffs allege that no such letter was sent to Secretary Babbitt.

From March 1996 to September 18, 1996, DOI officials worked closely with CEQ Director Kathleen McGinty and others to identify the lands to include in the proclamation and the actions needed to ensure that the proclamation would survive judicial scrutiny. In August 1996, the DOI conducted a database and bibliography search to prepare a record to support the proclamation. Some of the reasons for creating Grand Staircase Monument focused on the proposed Smoky Hollow coal mine and contentions that the mine would irreversibly damage the environment and Utah’s public lands. These contentions, plaintiffs allege, were contradicted by the BLM’s draft EIS.

Following this history, the Proclamation itself took place on September 18, 1996, when President Clinton stood at the south rim of the Grand Canyon in Arizona and announced the establishment of the 1.7 million acre Utah monument. There was virtually no advance consultation with Utah’s federal or state officials, which may explain the decision to make the announcement in Arizona. The monument created a good deal of controversy, heightened even more because the presidential election was less than 8 weeks away. In making the announcement, President Clinton emphasized his “eoncern[] about a large *1183 coal mine proposed for the area” and his belief that “we shouldn’t have mines that threaten our national treasures.” Remarks Announcing the Establishment of the Grand Staircase-Escalate National Monument, 32 Weekly Comp. Pres. Doc. 1785 (Sept. 23,1996).

In the written Proclamation, President Clinton cited “geologic treasures” as the initial reason for creation of the monument. See Proclamation No. 6920, 61 Fed.Reg. 50,223 (1996). Specifically, the President noted “sedimentary rock layers ... offering a clear view to understanding the processes of the earth’s formation” and “in addition to several major arches and natural bridges, vivid geological features are laid bare in narrow, serpentine canyons, where erosion has exposed sandstone and shale deposits in shades of red, maroon, chocolate, tan, gray, and white. Such diverse objects make the monument outstanding for purposes of geologic study.” Id. Secondly, the President cited “world class paleontological sites” as grounds for the Proclamation. Id. According to the President, those things in need of protection consisted of “remarkable specimens of petrified wood” and “significant fossils, including marine and brackish water mollusks, turtles, crocodili-ans, lizards, dinosaurs, fishes, and mammals .... ” Id. Archeological interests in “Anasazi and Fremont cultures” were also said to be “of significant scientific and historic value worthy of preservation for future study.” Id. Finally, the President mentioned the “spectacular array of unusual and diverse soils,” “cryptobiotic crusts,” and the “many different vegetative communities and numerous types of endemic plants and their pollinators” as warranting protection since “[m]ost of the ecological communities contained in the monument have low resistance to, and slow recovery from, disturbance.” Id.

The President’s Proclamation designating the monument required that the BLM prepare an approved Monument Management Plan no later than September 18, 1999. The approved Management Plan did not make the September deadline, but was finally approved on February 28, 2000. Since approval of the Monument Management Plan the BLM has been responsible for management of the Grand Staircase Monument.

4. SUMMARY OF OPINION

The record is undisputed that the President of the United States used his authority under the Antiquities Act to designaté the Grand Staircase Monument. The record is also undisputed that in doing so the President complied with the Antiquities Act’s two requirements, 1) designating, in his discretion, objects of scientific or historic value, and 2) setting aside, in his discretion, the smallest area necessary to protect the objects. With little additional discussion, these facts compel a finding in favor of the President’s actions in creating the monument. That is essentially the end of the legal analysis. Clearly established Supreme Court precedent instructs that the Court’s judicial review in these circumstances is at best limited to ascertaining that the President in fact invoked his powers under the Antiquities Act. Beyond such a facial review the Court is not permitted to go. Dalton v. Specter, 511 U.S. 462, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994); Franklin v. Massachusetts, 505 U.S. 788, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). When the President is given such a broad grant of discretion as in the Antiquities Act, the courts have no authority to determine whether the President abused his discretion. See United States v. George S. Bush & Co., Inc., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259 (1940). To do so would impermissibly replace the *1184 President’s discretion with that of the judiciary.

This Court has the authority to review whether the President’s actions violated the United States Constitution or another federal statute, such as the Wilderness Act. See Franklin v. Massachusetts, 505 U.S. at 801, 112 S.Ct. 2767; see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); and Chamber of Commerce v. Reich, 74 F.3d 1322, 1327 (D.C.Cir.1996). In the present case plaintiffs’ constitutional and statutory claims are without factual or legal support. Congress clearly had the authority to pass the Antiquities Act of 1906. It is a proper constitutional grant of authority to the President. The Act itself, and the President’s designations pursuant to the Act, are not inconsistent with the Constitution’s Property Clause, Spending Clause, or the delegation doctrine; nor is the President’s Proclamation in violation of the Wilderness Act or any other federal statute. No statute passed after the Antiquities Act has repealed or amended the Antiquities Act. It stands as valid law. Only Congress has the power to change or revoke the Antiquities Act’s grant of virtually unlimited discretion to the President.

As for plaintiffs’ myriad claims based on NEPA, FLPMA, FACA and the Anti-Deficiency Act, they too are of no merit. These statutes do not provide for a private right of action. The only way parties such as the plaintiffs here may complain of a violation of these statutes is through the Administrative ■ Procedure Act (APA), which requires a finding of final agency action. Here, there is no such final agency action. The President is not an agency, and the record is undisputed that the actions of the other defendants were only assisting the President in the execution of his discretion under the Antiquities Act.

Plaintiffs’ claim that the President’s designation of the Grand Staircase Monument violates the Wilderness Act is unavailing. Although a significant percentage of the land in the Grand Staircase Monument may qualify as wilderness under the Wilderness Act, the President did not designate wilderness; he designated a national monument. While the Antiquities Act and the Wilderness Act in certain respects may provide overlapping sources of protection, such overlap is neither novel nor illegal, and in no way renders the President’s actions invalid.

Executive Order 10355, adopted by the Executive Branch in 1952, did not eliminate the President’s withdrawal authority under the Antiquities Act. The President has no law-making authority. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 587, 72 S.Ct. 863. The use of executive orders may be employed by the President in carrying out his constitutional obligation to see that the laws are faithfully executed and to delegate certain of his duties to other executive branch officials, but an executive order cannot impose legal requirements on the executive branch that are inconsistent with the express will of Congress. Executive Order 10355 by its express terms does not eliminate the President’s authority, as granted specifically to the President by Congress. Furthermore, by specifically exempting the Antiquities Act from the reach of FLPMA in 1976, for example, Congress reaffirmed that the Antiquities Act was to continue to not be subjected to requirements that must be followed by lower-level executive officials. Whatever else may by said about the possible reach of Executive Order 10355, it is undisputed that since its passage in 1952 there have been 20 presidential proclamations creating national monuments and none have transferred the exercise of withdrawal authority to the Secretary of the Interior.

*1185 B. DISCUSSION

1. JUDICIAL REVIEW 6

Plaintiffs seek a searching review by this court of the President’s actions in creating the Grand Staircase Monument. Both plaintiffs claim the proclamation was ultra vires and unconstitutional. MSLF seeks a further determination that the President abused his discretion, asking in particular for a finding that the President violated the Antiquities Act by a) not properly designating objects of scientific or historic value, b) setting aside too much property, and c) using the Act for improper purposes, such as stopping a local coal mining operation and improperly creating wilderness areas. In conducting such a sweeping judicial review, the plaintiffs seek an interpretation of the Antiquities Act that requires a comprehensive examination of the Act’s legislative history. The extensive judicial review sought by the plaintiffs is, however, not available in this case.

While there has been some debate among the United States Supreme Court justices as to whether judicial review of executive actions by the President are subject to judicial review at all, 7 recent judgments have indicated the Court’s willingness to engage in a narrowly circumscribed form of judicial review. This willingness does not, however, allow judicial review of sufficient scope to assist plaintiffs’ cause; long-standing United States Supreme Court precedent has clearly foreclosed the broad review for which plaintiffs contend:

“Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts.” For the judiciary to probe the reasoning which underlies this Proclamation would amount to a clear invasion of the legislative and executive domains.

United States v. George S. Bush & Co., 310 U.S. 371, 380, 60 S.Ct. 944, 84 L.Ed. 1259 (1940) (quoting Martin v. Mott, 25 U.S. 19, 12 Wheat. 19, 31-32, 6 L.Ed. 537 (1827)). A grant of discretion to the President to make particular judgments forecloses judicial review of the substance of those judgments altogether:

*1186 [W]here a claim “concerns not a want of [Presidential] power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power. This must be since, as this court has often pointed out, the judicial may not invade the legislative or executive departments so as to correct alleged mistakes or wrongs arising from asserted abuse of discretion.”

Dalton v. Specter, 511 U.S. 462, 474, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994) (quoting Dakota Central Telephone Co. v. South Dakota ex rel. Payne, 250 U.S. 163, 184, 39 S.Ct. 507, 63 L.Ed. 910 (1919)).

If a Court may not review the President’s judgment as to the existence of the facts on which his discretionary judgment is based, the holdings in Dalton and George S. Bush do leave open one avenue of judicial inquiry. Although judicial review is not available to assess a particular exercise of presidential discretion, a Court may ensure that a president was in fact exercising the authority conferred by the act at issue. Thus, although this Court is without jurisdiction to second-guess the reasons underlying the President’s designation of a particular monument, the Court may still inquire into whether the President, when designating this Monument, acted pursuant to the Antiquities Act.

The Antiquities Act offers two principles to guide the President in making a designation under the Act:

The President of the United States is authorized, in his discretion, to declare by public proclamation ... objects of historic or scientific interest ... to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.

16 U.S.C. § 431. The Proclamation of which plaintiffs complain speaks in detail of the Monument’s natural and archeological resources and indicates that the designated area is the smallest consistent with the protection of those resources. The language of the Proclamation clearly indicates that the President considered the principles that Congress required him to consider: he used his discretion in designating objects of scientific or historic value, and used his discretion in setting aside the smallest area necessary to protect those objects.

It is evident from the language of the Proclamation that the President exercised the discretion lawfully delegated to him by Congress under the Antiquities Act, and that finding demarcates the outer limit of judicial review. Whether the President’s designation best fulfilled the general congressional intention embodied in the Antiquities Act is not a matter for judicial inquiry. This Court declines plaintiffs’ invitation to substitute its judgment for that of the President, particularly in an arena in which the congressional intent most clearly manifest is an intention to delegate decision-making to the sound discretion of the President. 8

*1187 Even if broad judicial review of the exercise of the President’s discretion is not available, plaintiffs still contend that the procedure which led to the designation fell so far afoul of the requirements of the National Environmental Policy Act (NEPA) as to warrant strip-mining the Monument. Plaintiffs contend that defendants conspired to violate the requirements of NEPA by (nefariously) creating a deceptive paper trail suggesting that it was the President, rather than the DOI, who provided the impetus to create the Grand Staircase Monument. In plaintiffs’ formulation of the law, the sine qua non of a valid exercise of the President’s discretion under the Antiquities Act is that the President proposed the idea to the DOI; the source of the inspiration for the monument determines whether NEPA and the Administrative Procedures Act (APA) are invoked:

Although Defendant Gale Norton and the Department of the Interior are required to implement NEPA, defendants correctly assert that presidential actions under the Antiquities Act are not subject to the requirements of NEPA. It is for this reason that it was essential to *1188 Defendants to make it appear that the request for consideration of a national monument in Utah came from the President rather than originating, as it did, within the agencies.

(Plaintiffs’ Combined Memo ISO Summary Judgment and Opp. Defendants’ Motions to Dismiss or for Summary Judgment) (internal citations omitted). If plaintiffs’ theory were correct, its evidence that the idea for the Grand Staircase Monument did not originate with the President would be relevant and perhaps sufficient to defeat a motion for summary judgment. Plaintiffs’ brief is innocent of any legal authority, however, that would connect the premises that the DOI’s final actions are subject to NEPA while the President’s actions under the Antiquities Act are not, with the conclusion that it is essential for the idea of a monument to have come from the President. Plaintiffs and defendants are correct that the requirements of NEPA do not apply to the exercise of presidential discretion under the Antiquities Act. To the extent that DOI takes action that could be characterized as final agency action for the purposes of the APA, Plaintiffs are also correct that the requirements of NEPA apply to DOI actions. However, plaintiffs do not cite any legal authority, nor is the Court aware of any, which suggests that these considerations affect the exercise of presidential authority pursuant to the Antiquities Act. 9 Plaintiffs err in importing a requirement of presidential inspiration into the Antiquities Act’s grant of authority to the President.

Since the Antiquities Act is silent as to whether there are limitations on the sources from which the President may draw the inspiration to act, if such a limitation exists it must be found in other statutory provisions, the Constitution, or in the common law. Although Plaintiffs have directed the Court to no statutory authority to suggest that NEPA has any application to the President’s actions in this case, it is reasonable to look to NEPA for the source of the requirements for which plaintiffs contend. NEPA cannot be the end of the inquiry, however, for NEPA supplies no private right of action. See Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177,