The Antiquities Act: A Broken Process and Dangerous Precedent

 In Public Lands

By Barret Anderson | July 16, 2019

The views contained in this piece are those of the author and STRATA and do not necessarily reflect the official policy or position of any other agency, organization, employer or company.

Presidential hopeful Elizabeth Warren recently visited Utah for a campaign rally and in an accompanying release of her public lands plan promised to “restore protections” to the Grand Staircase Escalante and Bears Ears National Monuments. Although she is the first Democratic candidate to release a plan concerning public lands, others are sure to follow and commit to similar actions under presidential authority outlined in the Antiquities Act.1 Such commitments paint a painful picture for the future of public lands and the resulting precedent they could set for presidential candidates from both parties. As the White House continuously changes hands between Republicans and Democrats promising to reduce or expand public land designations, federal agencies’ ability to manage lands for multiple uses and sustainable yields will grind to a halt due to constantly shifting designations, an overwhelming flow of administrative paperwork, and the uncertainty of elections. Senator Warren is correct in her statement that America’s lands are one of our greatest treasures. The politicization of public land designations by elected officials of both parties, however, will only further hamstring management agencies’ abilities to properly manage resources and protect America’s greatest treasures.

The current process of designating a national monument under the Antiquities Act is broken. Presidents from both political parties have drifted far from the intent of this act, which was originally passed to give the president authority to protect antiquities by declaring the “smallest area compatible with the proper care and management” as a national monument.2 Debates over what constitutes an antiquity continue;3 however, regardless of the definition of antiquities, the current process is in dire need of reform.

Utah’s experiences over the past 25 years perfectly highlight how the Antiquities Act places excessive authority in the President, which has resulted in discontent with the process from all sides of the political aisle. For Republicans, the abuses of the Antiquities Act became apparent in 1996 when President Bill Clinton, from the rim of the Grand Canyon in Arizona, designated 1.8 million acres of federal land within Utah as the Grand Staircase Escalante National Monument. Without consulting Utah’s local elected officials, Governor, or members of Congress, President Clinton single-handedly ignored strong opposition to the monument (including from former Democratic Congressman Bill Orton) and without stepping foot in the state, altered management for an area the size of Delaware and Rhode Island combined.4 Utah faced a similar situation in 2016 when outgoing President Obama designated an additional 1.3 million acres as the Bears Ears National Monument in the final three weeks of his presidency despite similar opposition from Utah’s elected officials on all levels as well as Native American groups that live in close proximity to the monument.5

Democrats’ awakening to the abuses of the Antiquities Act came on December 4th, 2017 when President Trump utilized the same authority to cut the Grand Staircase Escalante National Monument by 46 percent and the newly designated Bears Ears National Monument by 85 percent.6 President Trump did so despite opposition from tribal coalitions, environmental groups, and a significant portion of Utah’s population.7 Although environmental and Native American groups are currently challenging the reductions in court, there is solid legal precedent for presidents to reduce monument boundaries under the Antiquities Act.8

Both Republicans and Democrats oppose recent uses of presidential authority under the Antiquities Act, so why doesn’t Congress pass an amendment restricting the president from unilaterally designating or shrinking national monuments? Some members of Congress have introduced amendments to the Antiquities Act, however, they have not yet gained any traction.9 All parties are beginning to see that we have a broken system and there are viable alternatives that need to be explored. Wyoming and Alaska both have special exemptions to monument designations.10 Similar concepts must be seriously considered by Congress for all states. The time to amend the Antiquities Act is now, or the state of America’s public lands will only worsen as political promises supplant sound science-based management.

On average, the presidency changes parties every eight years, which would entail subsequent alterations in public land management and protections if presidential candidates go down the path that Senator Warren has signaled. The National Environmental Policy Act (NEPA) requires an average of three or more years to complete land use plans. Thus, the impacts of presidential politics on public land designations would be an almost constant state of planning and re-planning, wasting federal and state agencies’ time and resources as well as creating conflicting management regimes that regularly change.

Senator Warren’s commitment to restore former national monument boundary designations sets a dangerous precedent and contradicts her goal to meaningfully include all stakeholders in the management of public lands. If Senator Warren is truly committed to meaningfully cooperate with all stakeholders, she should support amending the Antiquities Act.

Barrett Anderson is a resident of Utah who is interested in public land issues. He is also former campaign staff for Rep. Rob Bishop.

Notes


  1. Warren, Elizabeth. 2019. “My Plan for Public Lands.” Medium. Medium. April 15, 2019. https://medium.com/@teamwarren/my-plan-for-public-lands-e4be1d88a01c.  

  2. NPS.gov. 2019. “American Antiquities Act of 1906.” Nps.Gov. 2019. https://www.nps.gov/history/local-law/anti1906.htm.  

  3. Bishop, Rob. 2017. “Rep. Rob Bishop: Antiquities Act Is a Menace to Constitutional Government.” Washington Examiner. October 10, 2017. https://www.washingtonexaminer.com/rep-rob-bishop-antiquities-act-is-a-menace-to-constitutional-government.; Bishop, Rob. 2019. “REP. BISHOP: It’s Time For Congress To Reform The Antiquities Act.” Daily Caller. The Daily Caller. May 2, 2019. https://dailycaller.com/2019/05/02/bishop-congress-antiquities-act/.  

  4. Larmer, Paul. 1996. “1996: Clinton Takes a 1.7 Million-Acre Stand in Utah.” Hcn.Org. High Country News. September 30, 1996. https://www.hcn.org/issues/90/2795.  

  5. “HCR011.” 2017. Utah.Gov. 2017. https://le.utah.gov/~2017/bills/static/HCR011.html.; Clark, Erin. 2017. “Monumental Dissent Over Bears Ears.” Realclearinvestigations.Com. November 6, 2017. https://www.realclearinvestigations.com/articles/2017/11/02/bears_ears.html.  

  6. Nordhaus, Hannah. 2018. “What Trump’s Shrinking of National Monuments Actually Means.” Nationalgeographic.Com. February 2, 2018. https://news.nationalgeographic.com/2017/12/trump-shrinks-bears-ears-grand-staircase-escalante-national-monuments/.; “Presidential Proclamation Modifying the Grand Staircase Escalante National Monument.” 2017. The White House. The White House. December 4, 2017. https://www.whitehouse.gov/presidential-actions/presidential-proclamation-modifying-grand-staircase-escalante-national-monument/.; “Presidential Proclamation Modifying the Bears Ears National Monument.” 2017. The White House. The White House. December 4, 2017. https://www.whitehouse.gov/presidential-actions/presidential-proclamation-modifying-bears-ears-national-monument/.  

  7. Bears Ears Inter-Tribal Coalition. 2018. “Tribes Uniting to Protect Bears Ears.” Bears Ears Inter-Tribal Coalition. 2018. https://bearsearscoalition.org/tribal-statements-of-support/.; Visser, Nick. 2017. “Environmental Groups Sue White House After Trump Takes Axe To National Monuments.” HuffPost. HuffPost. December 5, 2017. https://www.huffpost.com/entry/environmental-groups-sue-trump_n_5a263011e4b07324e8402ab7?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAJ4H6421mjwczZBUCpn5whczUo2bq1cHeZ-u5jhWxIl4HdummNwcKcM7NXUa4GbbRXcHhXNSxp2_JdgkPN1dLqAv2NAvGrZ7AshjvrwppaeS5sYpyzjmfVCYauvqBY_59XOSb5yeQAU0rFU_uFvYKkelm3LUxpvR1PZL214A5paf.; Maffly, Brian. 2017. “Majority of Utahns Favors Trimming Bears Ears, but Most Oppose Breaking up Grand Staircase, Poll Says.” The Salt Lake Tribune. SLTrib. October 24, 2017. https://www.sltrib.com/news/environment/2017/10/24/majority-of-utahns-favor-trimming-bears-ears-but-most-oppose-breaking-up-grand-staircase-poll-says/.  

  8. Natural Resources Defense Council. 2019. “Grand Staircase-Escalante Case Documents.” NRDC. March 4, 2019. https://www.nrdc.org/resources/complaint-against-trumps-proclamation-stripping-protections-grand-staircase-escalante.; Native American Rights Fund. 2018. “Protecting Bears Ears National Monument.” Native American Rights Fund. November 16, 2018. https://www.narf.org/cases/protecting-bears-ears-national-monument-bears-ears/.; Hudak, John. 2017. “President Trump Has the Power to Shrink National Monuments.” Brookings. Brookings. December 7, 2017. https://www.brookings.edu/blog/fixgov/2017/12/07/president-trump-has-the-power-to-shrink-national-monuments/.  

  9. Republican House Committee on Natural Resources. 2019. “Bishop Introduces Bill to Reform Outdated Antiquities Act.” Committee on Natural Resources Republican Office. March 12, 2019. https://republicans-naturalresources.house.gov/newsroom/documentsingle.aspx?DocumentID=406031.  

  10. Royster, Whitney. 2006. “Antiquities Act Turns 100.” Casper Star Tribune. June 8, 2006. https://trib.com/news/state-and-regional/antiquities-act-turns/article_178ee6e9-27d5-571c-a308-45bc164d7548.html.; Raffensperger, Lisa. 2008. “The Highs and Lows of the Antiquities Act.” NPR.Org. May 23, 2008. https://www.npr.org/templates/story/story.php?storyId=90631198.