Monument Making, the Antiquities Act of 1906 and the Extent of Presidential Power

On April 26, 2017, President Trump issued an Executive Order (“EO”), “Review of Designations under the Antiquities Act,” to address what he called a “massive federal land grab.” The EO directs Interior Secretary Zinke to review all monument designations made under the Antiquities Act since 1996 that either exceed 100,000 acres or were “made without adequate public outreach and coordination” and make recommendations on legislative or administrative changes. The following week, on May 2, 2017, the House Natural Resources Subcommittee on Federal Lands held an oversight hearing, “Examining the Consequences of Executive Branch Overreach of the Antiquities Act,” to hear from witnesses in states with “widely opposed designations.” Why all the high-level interest in a 111 year-old law?

We last blogged on this topic in October 2015 to highlight how President Obama was using the Act’s authority for his conservation legacy and to note that Congress was reacting by considering legislation to limit the Act. President Obama used his last year in office to create or expand 15 monuments from the expansion of the enormous Hawaiian Papahānaumokuākea Marine National Monument (283.4 million acres) to the designation of the tiny Stonewall National Monument (0.12 acre) in New York and, in late December, the Utah Bears Ears National Monument (1.35 million acres). In total, as was described in the Subcommittee Hearing memo, President Obama used the Act 34 times “to lock up 553,599,880 acres of land and water as national monuments” which represents “66% of all monuments ever designated.” See list in CRS, “National Monuments of the Antiquities Act” App. C (Jan. 30, 2017).

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Monument Making And The Presidency

Like presidents before him, President Obama is using the 1906 Antiquities Act, 16 U.S.C. § 431-433, as part of his presidential legacy. In September, 2014, Obama exercised this authority for the 12th time and expanded a national monument, created by his predecessor George W. Bush, from 87,000 square miles to more than 490,000 square miles to take the title as the president with the most acres preserved in the last 50 years. In July, 2015, President Obama designated three monuments, one requested by out-going Senator Harry Reid (NV-D) to protect 704,000 acres in southern Nevada, including a series of strange sculptures by artist Michael Heizer, petroglyphs and a migration corridor for deer and pronghorn – the Basin and Range National Monument. The President also designated the more controversial 330,780 acre Berryessa Snow Mountain National Monument in northern California on BLM and Forest Service land and a five acre monument preserving mammoth remains in Waco Texas.

House Natural Resource Chair Rob Bishop (R-UT) objected to the three monuments, scoffing that the lands were not “antiquities” and that the president’s action was a “land grab” by “the stroke of a pen.” These types of congressional complaints are as old as the Act. The 1906 Act authorizes presidents to proclaim “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments and was enacted to prevent the looting and destruction of Native American sites. President Roosevelt established the first national monument in Wyoming – Devils Tower— in 1906 and followed that action with a total of 18 monuments including the designation of the Grand Canyon in 1908 to protect 800,000 acres from mining and development. The move was controversial, but in Cameron v. United States, 252 U.S. 450 (1920) the Supreme Court upheld the use of the Antiquities Act to designate the Grand Canyon. This has been the result for other legal challenges-- the statute is broadly written and courts have affirmed the president’s unilateral power to designate monuments—without public involvement or compliance with NEPA.

Preservationists see the Antiquities Act as a powerful tool to protect lands when Congress won’t act on wilderness bills and the Forest Service and BLM are hamstrung by congressional riders or litigation in the creation of quasi-wilderness lands. See for example the 11 years of litigation over the Clinton-era Roadless Rule and the 2011 congressional rider preventing the designation of “Wildlands” by then-Interior Secretary Salazar. Environmental groups their eye and the President’s ear on other monuments they would like the President to designate before he leaves office—including the 1.7 million acre Grand Canyon Watershed National Monument in Utah and Arizona, 1 million acres of desert in southern California and the 2 million acres surrounding the Canyonlands National Park in Utah.

Although the Republican House recently introduced several pieces of legislation to narrow the president’s power under the Act, (HR 1459, “Ensuring Public involvement in the Creation of National Monuments Act”) to require NEPA review of monuments greater than 5000 acres and an appropriations rider to block funding for monuments in Arizona, California, Colorado, New Mexico, Nevada, Oregon and Utah, it is unlikely that the Act will be changed. One of the last times the Act was changed, which explains the absence of Wyoming from the preceding list, was in 1950, after the creation of the monument that later became Grand Teton National Park. At that time, Wyoming’s first Senator Simpson was successful in enacting a requirement for congressional approval of all future monument designations in the state.

President Obama’s counselor, John Podesta, in 2014 remarks celebrating the Wilderness Act, indicated that President Obama’s national monument “signing pen still has some ink left in it.” If President Obama looks to the last Democratic president as an example, we can expect a lot of monument making in 2016. In his last year in office, President Clinton expanded or designated 18 monuments – the vast majority of the 22 monuments on his watch.

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Massive New National Monument Proposed in Southern Utah

A coalition of environmental, recreational, political and business groups has come together to support the establishment of a 1.8 million acre national monument in the Colorado Plateau region of Southern Utah. The proposed Monument, covering an area larger than Delaware, would include areas surrounding Canyonlands National Park, Glen Canyon National Recreation Area and the Manti-La Sal National Forest. As stated on the Coalition’s website, there is an urgent need to protect this area from “[i]ncreasing pressure from oil and gas development, potash and uranium mining, and even tar sands development [which] threaten the archeological, biological, and recreational values of this unique region — not to mention threatening the source of the Southwest’s most critical watershed.” Not surprisingly, this initiative has been opposed by those in the extractive industries. The proposed monument is also being actively opposed by Utah’s Congressional delegation and Utah Governor Gary Herbert.

For the time being, President Obama has said that there will be no designation of the proposed Greater Canyonlands Monument. However, earlier this month, the President announced the creation of three new national monuments, including the 704,000 acre Basin and Range National Monument in neighboring Nevada. This action nearly doubled the amount of land protected by the President under the Antiquities Act during his administration. Those concerned about the formation of the Greater Canyonlands National Monument are left to wonder whether this move by the President is signaling a shift in policy that may lead to the Monument’s eventual formation. Only time will tell.

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