On June 8, 1906, the American Antiquities Act was approved and signed by President Theodore Roosevelt. The Act allowed the President or Congress to declare certain areas as national monuments. Only months after its passage, on September 24th, Roosevelt used his new authority for the first time when he proclaimed Devils Tower in the state of Wyoming as a national monument. Sixteen of nineteen U.S. Presidents have since used the Antiquities Act at least once.[1] The act, though short on words, has not been short on success or resistance, however. Proponents of the Antiquities Act celebrate the amount of land that has been protected under the act, while opponents decry the same as an abuse of power outside of the original intents of the law. Opposition to the law has grown and ebbed since its inception, with major opposition during the presidency of Franklin Roosevelt, and more recently, during the presidency of Barack Obama.[2]
The roots of the Antiquities Act date to the mid- to late-1800s, and the growing interest of Americans in natural and archaeological sites. Interest was especially strong in the American west. Yellowstone National Park was established in 1872, but it was not until 1890 that another National Park was established, when Yosemite and Sequoia National Parks were created. Archaeological sites were different from natural sites, however. When “tourists” visited these sites, many of them took artifacts for themselves. Some building materials, such as stones and roof beams, were taken and repurposed. Others took ancient artifacts for their own personal collections or to be displayed in public museums. (Similar transgressions are what led, in part, to President Obama designating Bear Ears in Utah a National Monument in December 2016.) As more scholarly investigators began visiting the sites, they reported on the damage to ancient ruins. [3] When these reports of looting and destruction reached members of the U.S. Congress, that body began to consider the necessity of protecting antiquities on federal lands. Though Congress first discussed this in 1882, it was not until ten years and much more looting and devastation later that any action was taken.[4]
The Casa Grande Ruins in Arizona became the first prehistoric and cultural reserve established in the United States and laid the groundwork for the Antiquities Act. The prehistoric ruins were first rediscovered in the late 1600s and became more widely known in the mid-1800s following U.S. Army expeditions to the area. As the railroad and stagecoach lines reached the area, souvenir hunting and other vandalism began to take its toll on the ruins. In 1889, a petition went before the U.S. Senate to repair and protect the Casa Grande Ruins, and in 1892 President Benjamin Harrison set aside one square mile surrounding the Casa Grande Ruins as a prehistoric and cultural reserve,[5] concluding that might be the best way to halt looting and damage to archaeological ruins.
Establishing and preserving the early National Parks and prehistoric and cultural reserves, as Congress and President Harrison did with Casa Grande Ruins, were time-consuming, as it took an act of Congress and Presidential approval for creation. Furthermore, there was little guarantee that damage and looting would cease due to the designation.
In 1904, Edgar Lee Hewett, an archaeologist and explorer of archaeological ruins in Colorado and New Mexico, was asked by the commissioner of the General Land Office to review the questions surrounding antiquities preservation on public lands. Hewett’s result – “Memorandum concerning the historic and prehistoric ruins of Arizona, New Mexico, Colorado, and Utah, and their preservation” – presented a thorough appraisal of sites of importance on public lands in those four states. Using Hewett’s memorandum, and consideration of his further input, U.S. Representative John Fletcher Lacey (of Iowa) introduced a bill in the House of Representatives for the preservation of American Antiquities. Senator Thomas M. Patterson (of Colorado) introduced the same measure in the U.S. Senate less than two months later. Following a short debate period, the bill passed, and was signed by the President.[6]
The American Antiquities Act has four sections which cover important areas of preservation. The first section explains that the Act covers “lands owned or controlled by the Government of the United States,” and denotes the penalties for violators of the law (National Park Service, n.d. – American Antiquities…). The second section of the Act has authorized the President of the United States to declare national monuments.[7]
Flexibility was given for the scope and extent when declaring national monuments, due to the vagueness of the language in the Act. The law as-passed limited reservations to the “…smallest area compatible with proper care and management…” while some of the bills proposed in previous years called for reservations to be limited to 320 acres or 640 acres.[8] This section also allowed the Secretary of the Interior to obtain land that did not belong to the government of the United States to be preserved as part of a national monument. While no questions arose at the time of its passage, the ambiguous language of this section has caused controversy in more recent times.
The third section of the Antiquities Act allows certain government agencies to grant excavation permits to reputable individuals or institutions “with a view to increasing the knowledge of such objects, and that the gatherings shall be made for permanent preservation in public museums.” The final section calls for those named government agencies to “make and publish…uniform rules and regulations” necessary to carry out this act.[9]
The first national monument to be designated under the Antiquities Act was Devils Tower in Wyoming. On September 24, 1906, President Theodore Roosevelt designated the monument by proclamation, citing it as a “natural wonder and an object of historic and great scientific interest.”[10] On December 8, 1906, Roosevelt designated three more national monuments, each with a different purpose,[11] but it was not until March 11, 1907 that Roosevelt used his authority under the Antiquities Act to preserve an area rich in prehistoric archaeological ruins. On that date he proclaimed the Chaco Canyon Ruins in New Mexico as a national monument due to the “extraordinary interest because of…the innumerable and valuable relics of a prehistoric people which they contain.”[12] Preservation of these ruins had been at the top of the list for archaeologists and ethnologists for many years, and their protection made them “probably the most important group of prehistoric ruins ever to be made a national monument under the Antiquities Act.”[13]
To date, the U.S. Supreme Court has heard only three cases related to the Antiquities Act, upholding the President’s authority each time. The first challenge was in 1920. In Cameron v. United States, Ralph Cameron, who had a number of mining claims around the Grand Canyon, argued, among other things, that the President of the United States did not have the authority to designate the Grand Canyon as a national monument under the Antiquities Act. The Court’s ruling against Cameron further solidified the President’s authority in creating national monuments, even of larger size, and when in conflict with other laws, in this case, the 1872 Mining Law.[14]
The Grand Canyon was not the only unpopular national monument decision made by Roosevelt during his Presidency. The last of President Roosevelt’s eighteen national monument designations, Mount Olympus in Washington state, was proclaimed two days before leaving office. Though this designation did not receive any legal challenges, it was not well-received. Although no court actions were taken, successive orders by Presidents William Taft, Woodrow Wilson, and Calvin Coolidge diminished the size of the 600,000-plus acre monument designated by Roosevelt to about half.[15]
Between the passage of the Antiquities Act and the year 1969, eighty-seven national monuments were created by presidential proclamation (though only six between 1943 and 1969). It was not until 1978 that another President designated a national monument, when Jimmy Carter proclaimed seventeen national monuments in the state of Alaska. While the next two Presidents did not use the Act, fifty-one national monuments have been designated since 1996. A possible explanation for the dearth of designations between 1943 and 1996 (besides President Carter’s designations in 1978) may be explained by politics.
Five years prior to the Cameron decision, the case of United States v. Midwest Oil Co. upheld the President’s authority to designate lands for conservation purposes.[16] In 1916, Congress passed the Organic Act, establishing the National Park Service (NPS) as part of the Department of the Interior to conserve and maintain national parks, monuments, and reservations.[17] Following Ralph Cameron’s case in 1920, the Antiquities Act largely functioned in the Theodore Roosevelt model and proclaiming national monuments remained steady.[18] Many of these monuments later became national parks, or parts of national parks. This routine changed when Franklin Roosevelt became President.
It can be said that the Antiquities Act was transformed during Roosevelt’s Presidency, but it might also be said that it became politicized as well. In 1933, months after becoming President, Roosevelt signed Executive Order 6166, reorganizing the executive branch and transferring administration of the national monuments to the NPS. (They had previously also been administered by the Forest Service and the War Department.) This transfer made the NPS the only federal agency responsible for preservation, and New Deal funds ensured money would not be an issue. This consolidation removed some clarity over the national monument designation, however. The NPS was responsible for natural parks, battlefields, cemeteries, memorials, as well as archeological and historical sites. As preservation expanded, the need for the Antiquities Act as the central piece of federal preservation and conservation efforts changed.[19]
Jackson Hole was the tenth national monument established by Roosevelt. It covered over 220,000 acres. Opposition to this designation was strong not only locally, but also in Congress, where one congressman complained the act never intended for a national monument to approach the size of a state.[20] The State of Wyoming sued claiming there was no historic or scientific value (despite what Roosevelt’s proclamation stated), and that the Act states the monument must be limited to the smallest area compatible for proper care and management. The U.S. District Court for the District of Wyoming heard the case in 1945 and found liberally in favor of the President. Congress, though, was not so kind. Congress first attempted to abolish the monument, but Roosevelt pocket vetoed that bill. Instead, exercising their Constitutional authority, Congress passed legislation denying the President the right to proclaim any new national monuments in the state of Wyoming and refused to fund the new monument.[21]
Only six national monuments were created by Presidents over the next thirty-five years. One of these monuments, the Chesapeake & Ohio Canal national monument, was established in 1961 by President Dwight Eisenhower. This proclamation so upset the Chair of the House Committee on Interior and Insular Affairs that he denied funding the monument, effectively nullifying the Antiquities Act by refusing appropriations.[22] Congress had found a way to block national monuments with which they did not agree, at least temporarily.
President Richard Nixon did not use the Antiquities Act at all, and President Gerald Ford only used it to expand two existing monuments. The law was challenged in the U.S. Supreme Court for the second time, however, in 1976. The case dated back to the 1952 creation of Devils Hole National Monument by President Harry Truman, which protected forty acres of public land near Death Valley National Monument. Truman’s proclamation cited the scientific importance of the area – a unique subterranean prehistoric chain of lakes in which lives a “peculiar race of desert fish… found nowhere else in the world” – as the reason for establishing the monument.[23]
The case Cappaert v. United States involved the pumping of water from the wells of ranch owners in the area. The Cappaerts well was using the same source water as the water in Devils Hole, and that usage was reducing the water level in the national monument, endangering the fish there. Relying, in part, on the reserved water rights doctrine, the U.S. Supreme Court once again ruled in favor of the Antiquities Act, rejecting the Cappaert’s claim that the Act authorized the President to “reserve federal lands only to protect archeologic [sic] sites,” stating that the pool and “its rare inhabitants are ‘objects of historic or scientific interest.’”[24] This case would most likely make it easier for future Presidents to preserve aquatic areas as well as land.
On December 1, 1978 President Jimmy Carter proclaimed seventeen new or expanded national monuments in Alaska, totaling about fifty-six million acres, and including the almost-eleven million acre Wrangell-St. Elias National Monument, the largest national monument created to that time.[25] The Anaconda Copper Company challenged Carter in court, citing the size of the national monuments were outside the limitations of the Antiquities Act. The court did not agree.[26] The Alaska monuments created by President Carter were confirmed or redesignated as national parks, wildlife refuges, or national preserves by Congress in 1980, more or less confirming Congressional acquiescence to the scope of President’s authority under the law. After more than seventy years, the Antiquities Act continued to stand up against all challenges.
Following President Carter’s term, Presidents Ronald Reagan and George H.W. Bush did not use the Antiquities Act. It was not until 1996 that the Act was used again, by President Bill Clinton. It was believed by some that President Clinton’s proclamation of Grand Staircase-Escalante national monument in Utah was partly a political move – a way for him to earn the votes of environmentalists in the upcoming Presidential election.[27] Whether or not this was the case, President Clinton’s designation of this land created a firestorm of negativity. U.S. Senator Orrin Hatch of Utah threatened, “there would be real hell to pay” for the designation.[28]
Hatch led a legislative proposal that would have exposed the land to mining and other operations, and for good reason – the largest known coals reserves in the U.S. – nearly seven billion tons worth up to a trillion dollars – lay on that land.[29] It was for this reason that Clinton proclaimed the 1.7 million acres a national monument, showing why the Antiquities Act is an important tool of preservation and conservation. Negative reaction occurred in the immediate aftermath, however, even outside of Congress. Protests took place in the towns nearest to the new monument, with the president and Interior Secretary hung in effigy.[30]
Congress, which was controlled by Republicans, offered legislative objections to the Antiquities Act following Clinton’s designation of Grand Staircase-Escalante. The House voted to limit the President’s authority to declare national monuments, in October 1997, stating that Clinton had abused his authority. The legislation would have required Congressional approval within two years whenever a President declared an area of more than 50,000 acres to be a national monument and would allow the President to designate only one national monument per year.[31] The Senate did not approve these measures, though. Still, Clinton waited until January 2000 to use the Antiquities Act again. By July of that year he had established nine more national monuments setting aside nearly two million additional acres of land, more than any other President had done in the Continental United States. Before the end of his term, Clinton designated nearly 1.4 million acres more as national monument land.[32]
Clinton’s new designations faced legal challenges as well, although they reached the courts after his term as President had ended. In Tulare County v. Bush in 2001 the plaintiffs alleged nine claims, from designating things that do not qualify under the act to failing to conform to the smallest area compatible to violating a number of other laws.[33] In Mountain States Legal Foundation v. Bush in 2002, the plaintiff alleged that Clinton’s proclamations reached “far beyond the purpose, scope, and size of any national monuments contemplated by Congress under the Act and are contrary to various statutes relating to the protection of environmental values on federal land.”[34] In both of these cases, the U.S. District Court for the District of Columbia sided again with the President and his authority under the Antiquities Act.
Legislative opposition also intensified at the turn of the century. In 2000, the National Monument NEPA Compliance Act passed in the House of Representatives. This bill would have required “management plans for a national monument developed subsequent to a declaration to comply with the procedural requirements of the National Environmental Policy Act of 1969.”[35] In 2003 the National Monument Fairness Act was introduced in Congress. Reintroduced might be a more accurate word, as this was similar to the 1997 bill which passed in the House. This time, however, the bill did not make it out of committee.[36]
About the same time, President George W. Bush used the Antiquities Act without controversy, twice. In 2003 Bush reaffirmed Governors Island National Monument in New York, which was established by President Clinton in 2001. In 2006 he established the African Burial Ground National Memorial, also in New York. Four months later, Bush established Northwestern Hawaiian Islands National Monument. The proclamation covered 140,000 square miles surrounding the land and sea around a 1,200-mile-long chain of small islands in the Pacific Ocean.[37] (This area is now known as Papahanaumokuakea Marine National Monument (PMNM).) Despite the Antiquities Act not explicitly providing for marine designations, there were no legal challenges for the designation.
Three years later, days before the end of his term, President Bush used the Antiquities Act again to protect oceanic areas, this time preserving almost 200,000 square miles of land and sea. Though Bush, who may be one of the least environmentally friendly Presidents to date, had much support in designating these areas, some claimed that Bush’s unilateral protection of these areas was an overreach of his authority under the Antiquities Act. Once again, though, there were no legal challenges to his authority.
During President Barack Obama’s first term, legislative opposition intensified once again, despite the President designating only four new national monuments during that time. In 2011, Congress introduced a number of bills to limit the President’s authority under the Antiquities Act. The Preserve Land Freedom For Americans Act would require the President to obtain permission from a state before designating a national monument in that state.[38] House Resolution 817 would have required congressional approval prior to the establishment of a national monument. Five other bills would have limited the President’s authority within specific states. None of these became law.
During his second term, President Obama used the Antiquities Act extensively, drawing more ire from Congress. On March 25, 2013, Obama established five new national monuments, although only one was over 12,000 acres in size and did not face much opposition. The following year, Obama used the Act twice more, establishing national monuments totaling over 840,000 acres. Following these designations, the House of Representatives passed a bill that would require a number of environmental reviews before a President could designate a national monument, while a bill was introduced in the Senate to give Congress veto power over a President’s designation.[39]
At the beginning of 2015, the Improved National Monument Designation Process Act was introduced in the Senate. This law would have required the President to “obtain congressional approval, certify compliance with the National Environmental Policy Act of 1969 (NEPA), and receive notice from the governor of the state in which the monument is to be located that the state legislature has enacted legislation approving its designation.” It also would have placed restrictions on designation of marine national monuments.[40] The bill went nowhere, and in July President Obama designated over one million acres as national monument land in California and Nevada. This created more hostile responses from Congress in the form of a resolution to block the Department of the Interior from using federal money to use federal funds on national monuments in “specified counties in Arizona, California, Colorado, Nevada, New Mexico, Oregon, and Utah.” The bill was pulled the following day, but an enhanced version was introduced in November 2015.[41] Neither Obama nor Congress was done.
Before January 2016, there were a number of bills introduced in Congress to limit the President’s authority in creating national monuments. One bill, introduced in the Senate, would have made monument designations “temporary for three years, subject to approval by both Congress and a state legislature,” which would effectively eviscerate the Antiquities Act. This bill was defeated.[42]
As those bills did not progress, Obama continued to act. In February, the President established Mojave Trails National Monument in California, preserving an area totaling 1.6 million acres, and raising the total amount of land protected to more than 265 million acres – more than any other President. This drew immediate criticism from Republicans in Congress. Rob Bishop, a Representative from Utah, called the Antiquities Act “an evil bill” and said that Obama should “really be embarrassed” in the way he used it to take control of land without comment.[43]
In August and September, Obama designated two more national monuments, including nearly five thousand square miles in the Atlantic Ocean, off the coast of New England. The fishing industry, as well as the oil and gas industry, strongly opposed the establishment of Northeast Canyons and Seamounts Marine National Monument. He also expanded PMNM (established by President Bush ten years earlier) by over 400,000 acres. In December Obama drew even more criticism from opponents when he designated 1.35 million acres of land in Utah and about 300,000 acres in Nevada as national monuments. His opponents called the move a federal land grab and accused Obama of “attempting to silence the voices of those who will bear the heavy burden it imposes.”[44]
(Days before the end of his term, Obama used the Antiquities Act one final time when he designated three new national monuments dedicated to civil rights history.)
The future of the Antiquities Act is not certain. Opponents continue to attempt to weaken the law, or repeal it completely, claiming that Presidents have continuously acted outside of the limits of the law. Some experts believe that one of the underlying problems of the language of the Antiquities Act, and a reason for the continued resistance towards the law, is that it contains “both narrow language conserving objects of antiquity for human use, and broad language preserving areas in their natural condition.”[45] As long as the Act remains as is, and as long as the courts continue to side with the President, supporters have no reason to ask for any changes to the Antiquities Act. With the election of a Republican President and with Republican control of Congress, however, there was once again concern that the President will lose at least some authority under the Antiquities Act.
Although Congress can most definitely act in curtailing the President’s powers under the Act, or even repeal the Act completely, that proposition is dicey for legislators. Some have hoped that Donald Trump will act on his own to overturn at least some of the designations made by previous presidents. In fact, he was presented with proposals before he even took office. He finally made a move this week.[46]
Trump can reduce the size of national monuments on his own, but because it has never been done before, and because it is not explicitly prohibited by the Act, no one is sure of the President’s authority when it comes to completely abolishing a national monument created by a predecessor or reducing it to a relatively meaningless size. The Attorney General, in 1938, reasoned that because the statute does not confer such a power to the President, the President would need another act of the legislature to obtain such authority. It has generally been agreed that only Congress may undo a national monument designation.[47] Legal action has already been initiated to stop Trump’s order of dramatically shrinking the size of two National Monuments in Utah.[48]
Preservation of lands remains popular among the majority of voters. Western politicians and their constituents have generally railed against designations as land grabs or federal overreach. It seems that up until this point no President and few Congressional representatives were willing to pay the political price associated with reversing decisions associated with the Antiquities Act, or repealing it. Trump’s decision might be the first step in testing the waters. The judicial system will surely be involved in settling the extent of the President’s authority under the Antiquities Act, at least in this current situation. Even if it is determined that he is constrained by the Antiquities Act, Republicans may feel empowered to finally act legislatively.
The issue can be settled by Congress without completely destroying the Antiquities Act, by clarifying the Act with specific language in an amendment, to indicate whether or not the President or Congress (or both, or neither) has the authority to abolish a national monument. It is unclear whether Congress will act, though it may depend largely in how the courts rule on the most recent case. Although political and legal norms seem to have been upended recently, if history is any indication, the status quo will remain unchanged.
digestible intellect 