Protecting Our Land and Our National Sovereignty

The United Nations involvement in settling an environmental dispute raises growing concerns over who is really in control of our land.

Adapted from a Study Published by the Competitive Enterprise Institute and Authored By Jermey Rabkin

Yet another clash between industry and environmentalists erupted in 1989 over an area outside of Yellowstone National Park. Public land disputes have not been uncommon in recent years, but this particular one is different from all others currently making their way through the courts. In this case, international pressure was invoked to change the course of events.

The controversy regarding Yellowstone arose from a proposal by Crown Butte Mines, Inc. to develop a Montana mining site—known as the New World Mine—located three miles from the boundary of Yellowstone Park. From the outset, environmental advocacy groups denounced the project as a threat to the Yellowstone ecosystem. Based on its own initial studies, Crown Butte disagreed.

The New World Mine location is in an area that has seen mining activity since 1875. By 1952, gold production in the area helped to make Park County, Montana the third highest gold-producing area in the state. In 1978, when Congress created the Absaroka-Beartooth Wilderness Area to the north and east, it excluded the mining area as a result of the U.S. Geological Survey’s prediction of future mineral development. The mine would be located on lands managed by the U.S. Forest Service, in accordance with multiple use principles. The mine, a site of rare world class ore bodies, would not be visible from any place in Yellowstone Park.

To go forward with the project, the company would first have to convince state and federal authorities that its proposed mining operation would be environmentally sound. The company was so confident of this conclusion that it was prepared to invest several million dollars in the research effort required to prove the environmental safety of the project.

In 1993, the company started a formal process to produce an Environmental Impact Statement (EIS) as required by the National Environmental Policy Act. Had the EIS revealed any scientific basis for concern, the mining operations would have been prohibited by federal authorities. Even if the EIS concluded that the project posed no significant environmental threat, the adequacy of its analysis could have been challenged in federal court by dissatisfied environmental advocates. But the advocacy groups had no intention of waiting that long. Instead, they found a new forum in which to challenge the proposal.

Fourteen U.S. environmental advocacy groups, including the World Wildlife Fund, the Sierra Club and the National Parks and Conservation Association brought the World Heritage Committee into the dispute. The World Heritage Committee was formed in 1972 by the World Heritage Convention, a United Nations-sponsored treaty that provides a mechanism for governments to seek international recognition for places of special historic, cultural or natural significance, through a roster of "world heritage sites." This roster is developed and maintained by the Committee, which operates in association with the United Nations Educational Scientific and Cultural Organization (UNESCO). The Committee is composed of delegates from 21 nations, elected by delegates of all nations that are party to the convention. Sites that are not properly maintained can be removed from the list by vote of the Committee. Previous to that, the Committee can register its concern by placing a particular site on a special list of "in danger" sites. Currently, Yellowstone Park is on this list.

The park was added because of the proposed New World Mine. The 14 environmental groups sent a letter in February, 1995, to the chairman of the Committee, Dr. Adul Wichiencharoen of Thailand, asking the Committee to investigate the "threat" posed by the proposed mine. The Committee sought clarification from the U.S. government. In response, Assistant Secretary of the Interior George Frampton explained that the government could not provide a detailed assessment to the Committee until the completion of the EIS. However in the same letter Frampton indicated that the Interior Department was already concerned that the mining project would put the park "in danger." Frampton then invited the World Heritage Committee to make its own on-site inspection and volunteered to cover the cost of this inspection from Interior Department funds. Several months later, a press release from the Department of Interior denied ever paying for the trip. It is still unknown who paid for the visit.

Under pressure from the same environmental groups that requested a World Heritage Committee visit, President Clinton visited Yellowstone Park. On August 25, 1996 he announced a mining moratorium on 4,500 acres of federally-owned land near the park. The New World Mine was located in this area. "[The announcement] doesn’t kill the project, but it tightens the noose," boasted an environmental activist.

The World Heritage Committee visit would prove to be the project’s "hanging." When the on-site visit was conducted in September, the agenda, arranged by the Interior Department, was dominated by environmental advocacy groups hostile to the mine. Crown Butte and other mining interests were given relatively little attention. In statements to local journalists, the international visitors promised to make no decision until the conclusion of the EIS process. However, the following December at the next World Heritage Committee meeting, the Committee voted to place Yellowstone on its list of endangered sites, even though the draft EIS had not yet been completed. The American delegate at the meeting assured the committee that the United States government did not regard this decision as an improper intrusion into the domestic law or policy of the United States.

The environmental groups which had originally protested the mine issued a press release trumpeting the action of the Committee and emphasizing that it was the proposed mine that "warranted [Yellowstone’s] addition to the list." This in turn provoked angry protests from local residents, soon echoed by members of Congress from Montana and Wyoming. "It’s astonishing that a group of extreme environmentalists can invite a few folk from the United Nations to circumvent laws that Americans and Montanans have worked hard for and lent their voices to," commented Senator Conrad Burns (R-MT). "We have an exhaustive procedure on the books in Montana to decide where mines can and cannot be sited. Why should we allow the United Nations to pick and choose when these laws and rules will be allowed to work?"

Senator Alan Simpson (R-WY) also expressed his outrage over the Committee’s visit. "I think that the United Nations and those remarkable international tribunals can often hardly do their own laundry," he said. "And then they embark on things at the urging of groups which have an agenda which is so clear that it doesn’t take any sensible Park Countyite or Wyomingite to find out ‘what’s up.’ If there is some way to ameliorate the mess and do something with it, that’s fine. But I do have terminal fatigue with people who talk about this mine site as one of the most pristine areas of the world when it’s anything but. It’s just a dead stream, ripped foliage and clawed landscape." In Crown Butte’s proposal to the Forest Service, the company included a plan for reclamation efforts of the "clawed landscape" surrounding the proposed mine, along with the mine itself.

But Crown Butte saw the handwriting on the wall. Rather than try to defend its project and await the release of the draft EIS, it announced in fall,1996 that it was abandoning its effort to develop a mine in the Yellowstone area. The completed draft EIS was never officially released, but the conventional wisdom was that the mine would have had a minor environmental impact and the project would have been approved. Instead of fighting an environmental and political battle, which had expanded to include President Clinton and the United Nations, the company accepted a U.S. government offer to trade its mining claims there for others at another site to be determined.

New World Mine was the site of two underground gold-copper-silver bearing deposits. The deposits would have supported a 10-to-12 year mine with year-round employment of 175 people at an average wage of $35,000 (compared to the area’s current average wage of $16,000) plus benefits. The annual payroll would have exceeded $7 million, with an additional $7 million expended on goods and services in the local economy. Eighty secondary jobs would have also been created. Annual tax revenue would have exceeded $2.33 million. Clinton’s moratorium and the federal government’s facilitation of the World Heritage Committee’s visit ultimately contributed to the defeat of a project that would have produced jobs, wealth, tax revenues and an eventual clean up of abandoned mine sites.

There are 20 World Heritage sites in the United States, with two listed on the endangered list—Yellowstone National Park and Everglades National Park. The assumption behind the World Heritage program and treaty is that a site of special historic, cultural or scenic importance is better protected by an international consortium of governments than by the particular sovereign state on whose territory it exists. In other words, such sites will be better protected by diffusing responsibility for their protection among many different governments than by focusing responsibility on the government most concerned. Although this is the program’s intent, an enforcement mechanism has yet to be included in preservation plans.

To be sure, the treaty insists that its operations will "fully respect the sovereignty of the states on whose territory [the designated sites are] situated" and also will operate "without prejudice to property right [sic] provided by national legislation…" But the treaty is surely designed to cloud or blur the rights of sovereignty and property to some extent. If it imposes no new obligations on the signatory states, what is the point of having a formal treaty? It is unclear precisely who would be injured if a particular signatory failed to perform such obligations. It is also unclear who gets to enforce this obligation. But that’s the point—in place of a definite system of rights and duties, the World Heritage Convention imposes or adds a vague, indefinite obligation to the world at large.

Defenders of the World Heritage convention contend that a scenic site or natural wonder is better preserved by diffusing or pooling responsibility for its protection. It may be true in some sense that the grizzly bears of Alaska are of concern to all the world, not just to the citizens of that state. In much the same way one might say that the Mona Lisa now "belongs" to the whole world and not merely to the government of France, which happens to be its current legal owner. But no one seriously imagines that famous artworks would be better preserved by blurring the legal ownership of each painting so that the whole world, or a conclave of its governments, becomes jointly responsible for deciding what to do with any particular painting. But this is the central premise of such programs—so much so that one might fairly describe these programs as institutional monuments to the collectivist and internationalist philosophy which inspires them.

At the very least, these programs are a threat to the clarity of law. In the Yellowstone affair, when the intervention of the World Heritage Committee provoked a local clamor, the Interior Department was insistent that nothing at all had happened. In his testimony to the House Committee on Resources, Assistant Secretary Frampton was quite insistent that "international agreements, such as the World Heritage Convention" do not at all preempt domestic law "nor do they have the ability to do so ...The United Nations does not [original emphasis] have any authority to affect federal land management decisions within the United States."

But if the World Heritage Committee had no authority at all in the matter, why was the Interior Department so ready to bring in a delegation from the Committee for an on-site inspection of Yellowstone? Why were federal officials so accommodating to the Committee’s subsequent designation of Yellowstone as a site "in danger?"

One argument for American participation in these programs is that it confers a direct benefit on the United States by enhancing the value of our own designated sites. Assistant Secretary Frampton offered a clear version of this argument in his testimony before the House Committee on Resources in September, 1996: "U.S. participation in international conservation agreements insures that U.S. sites receive the prestige and recognition they deserve on a par with that enjoyed internationally by the Taj Mahal, the Great Wall of China, the Serengeti Plain and Vatican City."

Frampton reported that during the period 1990-95, tourist visits to national parks designated as World Heritage sites increased by nearly 10 percent, while tourist visits to national parks in general increased by somewhat less than five percent. Since a "significant part of the increase" derived from international tourism, "World Heritage" status may account for the higher rate of increase at those special sites. "World Heritage designation makes it more likely that foreign visitors, especially those with specialized interests, will learn about and consider visiting those parks," said Frampton. However, this argument is disingenuous. It was discredited by the very statements made by the Committee members, shortly after they arrived in Yellowstone, stating that the Park was already threatened by too much tourism!

No tourist needs the United Nation’s endorsement to notice that the Taj Mahal or the Grand Canyon are spectacular sites. Most World Heritage sites are not nearly so well known, of course. But only the most outstanding sites are supposed to be designated under the program. If tourism has increased at these sites more than others, that is doubtless because the sites are indeed outstanding, and not just because some international bureaucracy has recognized them as such. The World Heritage Committee does not, after all, distribute tourist brochures. What attracts tourists to these sites, one assumes, are glossy color pictures or rave reviews from travel writers rather than a listing on some U.N. roster.

Interestingly, developing nations have not rushed to participate in these programs despite the claims of increased tourism. UNESCO itself has lamented that "World Heritage" sites are disproportionately in Western Europe and in North America. The reason for this seems to be that less developed countries have been less eager to participate and therefore have nominated fewer sites to the list.

At the December 1995, meeting of the Committee (the one which placed Yellowstone on the list of endangered sites), Ecuador conceded that the Galapagos Islands were threatened with many serious environmental problems. Ecuador asked for international assistance, but specifically asked not to be embarrassed by having the Islands placed on the "in danger" list. But Yellowstone was. Is it really credible that sites under the control of the United States are more endangered than those remaining in the care of the impoverished, chaotic government of Ecuador?

Perhaps the outcome of the New World Mine would have been the same even if the World Heritage Committee had not been brought into the dispute. But environmental advocates thought they gained extra leverage by appealing to international authorities. And the U.S. government, rather than rely on its own legally-mandated procedures, readily cooperated in this effort to use an international shortcut to influence the outcome of a domestic policy dispute. At the least, the environmental groups were eager to propagate the notion that American policy should be swayed by the promptings of international monitors. In addition, the U.S. government was willing to arrange its own actions in a way that implied dutiful attention to such international directives and the leading actors in this drama were quite ready to invoke international obligations as a cover story for their actions.

If programs like the World Heritage convention are symbolic, they are symbols of an outlook that believes we can have regulations without law, obligation without enforcement, agreement without compromise, protection without possession and a world without borders. Does anyone really believe this?

This article has been adapted by Erica Olsen , with permission, from a study by Cornell University Professor Jeremy Rabkin published by the Competitive Enterprise Institute.The 35-page study "The Yellowstone Affair: Environmental Protection, International Treaties and National Sovereignty," is avaiable from CEI at (202)331-1010.

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