An Antiquated Act: Updating how National Monuments are Made

In the final days of his presidency, President Obama created two new national monuments: Bear Ears Buttes in Utah and Gold Butte in Nevada, which together span over 1.65 million acres. Conservationists and wildlife lovers praised the move; states’ rights advocates and miners cursed it. Obama’s controversial actions were made possible through the Antiquities Act, a law that allows the president to designate national monuments of any size without seeking broader regulatory or congressional approval. Through his presidency, Obama used the act to protect over 553 million acres of land. His actions have drawn considerable attention to the Antiquities Act, which has proved controversial due to the immense power it grants the president. Though important for both historical and environmental conservation, the Antiquities Act represents an unchecked exercise of executive power and thus should be amended so that Congressional approval and several other checks are required for land designation.

Passed in 1906, the Antiquities Act was explicitly designed for “the protection of objects of historic and scientific interest,” but also had a far more specific, unwritten aim. At the end of the 19th century, looting of archaeological sites was a growing problem across the United States. A congressional investigative report found this scavenging to be particularly prevalent on Native American lands, where “pot hunters” would excavate artifacts for museums, profit, or their personal collections. The bill brought this to an end by declaring excavation illegal on sites protected by the Antiquities Act. But the act’s provisions extend far beyond looting protection: Once monuments are designated, no person or business may “appropriate, excavate, injure, or destroy” land covered by the act. Activities that are deemed injurious to the land vary: While resource extraction is ubiquitously banned on national monuments, they are usually still open for public recreation.

Unsurprisingly, then-president Teddy Roosevelt was a major supporter of the act and exercised it often. He first used it in 1906 to protect 1,193 acres in Wyoming for the Devil’s Tower, a large rock formation sacred to Northern Plains Indians. He went on to establish 18 other monuments during his presidency, many of which only occupied a few thousand acres or less. Notable exceptions include the Grand Canyon, which was granted 808,000 acres, and Mount Olympus, which was given 639,000.

Since then, every president except for Ronald Reagan, Richard Nixon, and George H.W. Bush has employed the act during his presidency, either to create new monuments or to alter existing ones. Several monuments, such as Acadia in Maine and the Petrified Forest in Arizona, have gone on to become National Parks, a separate designation that does require congressional approval. Earlier in the 20th century, Republican and Democratic presidents used the Act in equal measures, but in recent years Democrats have been far more likely to designate land –  Jimmy Carter used it 15 times and Bill Clinton 19, while George W. Bush only used it twice.

Beyond conserving land, protecting historical buildings, and preserving sacred Native American spaces, the act has been used to chronicle history in other ways while simultaneously scoring political points. Monuments such as Maryland’s Harriet Tubman National Monument, and Washington’s Belmont-Paul Women’s Equality National Monument were all created by Obama as a way to honor minority groups who played important roles in America’s history – all while appealing to his Democratic voting base.

Yet with land becoming scarcer across the country, the debate between conservation and utilization is growing louder. The trade-off is often viewed through the lens of oil extraction, but economic damages can range much further. In the 11 westernmost states in the continental US, 47 percent of land is owned by the federal government, rather than states or individuals. This land, which consists of almost a million square miles, is usually managed by federal organizations such as the Bureau of Land Management or Fish and Wildlife Services. In states such as Montana, farmers and ranchers already pay the federal government to graze their cattle on the land or lease it for farming. But when monuments are established, the right to graze cattle is often curbed or taken away. Mineral extraction and food retrieval are also important factors, especially when considering maritime designations. In Hawaii, for instance, President Obama expanded one monument – Papahanaumokuakea Marine National Monument – to cover a swath of ocean waters twice the size of Texas. In that case, the impact on the fishing industry resulted in two former Hawaiian governors, a former Hawaiian Senator, and advocates from the fishing industry to oppose the federal intervention, with the Western Pacific Regional Fishery Management Council stating that “closing 60 percent of Hawaii’s waters to commercial fishing makes no sense.”

The legality of these land designations is ambiguous when considered in context of the actual wording of the four-paragraph Antiquities Act.

Even worse, the legality of these land designations is ambiguous when considered in context of the four-paragraph Antiquities Act. The act limits monument designations to “the smallest area compatible with the proper care and management of the objects to be protected.” Million-acre monuments do not seem to prescribe to this method of choosing the “smallest area.” Throughout history, arbitrarily large designations have been made, and the size appears to veer wildly from the bill’s intended mission.

Over the course of 101 years and 157 monument designations, the Antiquities Act has only been amended twice. In Wyoming, following protests over President Roosevelt’s 200,000 acre Jackson Hole designation, Congress created an amendment that required Congressional consent for land designations in Wyoming. Similarly, after the uproar over Carter’s actions in Alaska, Congress mandated that presidents need Congressional consent for Alaskan designations over 5,000 acres. It’s time to amend the act again, in a corrective way that applies to all states. In altering the bill, it’s important to find a solution that protects American land from potentially destructive business interests while taking into account state economies and wishes.

In altering the bill, it’s important to find a solution that protects American land from potentially destructive business interests while taking into account state economies and wishes.

Alaskan Senator Lisa Murkowski, together with several other senators, introduced a bill earlier in 2017 that proposes three new measures for the Antiquities Act. The first requires specific authorization by Congress for a national monument to be created, similar to the process to create a National Park. The second mandates that any new national monument must be approved by state legislature. The third requires all national monuments to be consistent with the National Environment Policy Act, a set of environmental protection requirements invoked whenever the government plans “any major federal action that significantly affects the environment.” The bill fixes important flaws: Congress and state legislatures represent state wishes much better than the current unilateral method of designating land. Additionally, certification under the National Environmental Policy Act and environmental assessments would be required for any large government project – conservation designations would no longer be excluded from this requirement.

However, the bill has some downsides. Although the president shouldn’t be steamrolling the democratic process, business interests at the state level and bureaucracy could wreak havoc on necessary conservation efforts. While uncontested preservation is far too powerful, the current state of the perennially gridlocked Republican Congress may make it difficult for valuable land to ever be conserved. Therefore, mirroring the past amendments pertaining to Alaska and Wyoming, the bill should have a provision allowing the president to declare areas under 5,000 acres as national monuments without Congressional approval. This proviso would retain the president’s power to easily protect historical buildings and culturally important pieces of land.

Ideally, the bill would also create a federal committee for national monuments made up of environmental scientists, geologists, and economists to advise on monument authorization. But even with this fix, the geographical terrain of American states varies wildly, making just a one-size-fits-all solution impossible. Thus, in order to allow for local input and expertise, representatives from a proposed monument’s state should join with the federal committee to contribute their knowledge to the process. These representatives would work together with the committee to study the potential environmental and economic impact on whichever states may be affected before the monument is enacted; only then could they determine how large the “smallest area compatible with proper care and management of objects” should be.

It’s time for the act to be amended in a way that takes power out of the hands of the executive while acknowledging the importance of conservation in twenty-first century America.

The Antiquities Act grants an incredible presidential power that has benefited conservation efforts in the United States for over 100 years. It would be difficult to find someone who argues against the importance of protecting America’s land and natural beauty. However, the act also allows for uncurbed executive power which removes all semblance of state representation and grants the possibility of unguarded misuse. It’s time for the act to be amended in a way that takes power out of the hands of the executive while acknowledging the importance of conservation in 21st century America.