Magazine | December 31, 2017, Issue

Reform the Antiquities Act

Trump’s reduction of national monuments is a stopgap, not a solution

‘The President Stole Your Land,” the outdoor retailer Patagonia proclaimed in a widely circulated advertisement earlier this month. The company was reacting to what it called “an illegal move” by President Donald Trump to reduce the size of two national monuments in Utah. Patagonia’s founder, Yvon Chouinard, didn’t hold back his contempt, deriding the Trump administration and “the wacko politicians out of Utah and places” for scaling back the land protections. “I mean, it’s evil,” he told CNN.

Utah’s crime? Its elected officials had the audacity to oppose executive actions, made by prior administrations, that imposed unwanted restrictions on large amounts of federal public land in the state. The two monuments, Bears Ears and Grand Staircase–Escalante, which together comprise more than 3 million acres, were unilaterally created by presidential proclamation in the face of opposition from Utah’s congressional representatives. On a visit to Utah on December 4, Trump partially reversed those decisions with an executive action of his own, cutting the Bears Ears monument by nearly 85 percent and Grand Staircase by half.

The fight centers on the Antiquities Act of 1906, a vaguely worded law that grants presidents broad authority to designate federal lands that are of historical, cultural, or scientific significance as national monuments and to restrict livestock grazing, timber harvesting, energy development, and other land uses. The act states that such designations should be limited to “the smallest area compatible with proper care and management of the objects to be protected,” originally meant to include archaeological sites, historical structures, and “other objects of historic or scientific interest.” But presidents have often used the law to place large areas off limits to many traditional uses — without congressional approval, public input, or local support.

The Antiquities Act has, in effect, become a tool for the executive branch to impose wide-ranging conservation protections by presidential fiat. Since 1996, more than 11 million acres of land have been designated as national monuments, primarily in rural western areas, and about 760 million acres of ocean as marine monuments. Past presidents have used the act to justify setting aside geological formations and natural landscapes and even to protect biodiversity, as in the case of Oregon’s Cascade-Siskiyou monument, created by President Bill Clinton in 2000. President Barack Obama was especially fond of the act, using it to create more monuments than any other president.

While such designations are controversial elsewhere, they are especially so in Utah, where two-thirds of the land is owned and managed by the federal government. The state has long sought to gain more control of the lands within its borders, even calling for some federal lands to be transferred to state ownership in recent years. Those efforts have been fought tooth and nail by environmental groups, which seek to restrict livestock grazing, motorized-vehicle operation, energy development, and other public-land uses — often at the expense of many of the state’s rural communities. For environmental groups, the Antiquities Act is an effective tool to do just that.

Last December, after months of speculation, Obama created the 1.35 million–acre Bears Ears monument in southeastern Utah during the final weeks of his presidency, despite opposition from Utah’s governor, its state legislature, and its entire congressional delegation. The region is home to numerous archaeological sites, but many Utahns objected to the size of the designation, which encompassed far more land than just the sites containing Native American antiquities. This wasn’t the first time such an outsized designation had been made in the region. In 1996, over similar local resistance, President Bill Clinton established the nearby 1.9 million–acre Grand Staircase–Escalante monument, which nixed a proposed coal mine that was predicted to provide hundreds of jobs for nearby communities.

Monument designations such as these run roughshod over the legislative process that is at the core of American governance. In the case of Bears Ears, Obama’s designation bypassed a multi-year legislative compromise, known as the Public Lands Initiative, that sought to reach a “grand bargain” across the region. That effort, led by Representative Rob Bishop (R., Utah) and former congressman Jason Chaffetz (R., Utah), would have protected wilderness areas while also opening other lands for resource development, but it was thwarted by Obama’s monument designation.

The law undermines the potential for such collaborative solutions to public-land-use conflicts. With the Antiquities Act at their disposal, environmental groups are less likely to come to the bargaining table in good faith to find common ground with competing groups. Indeed, in the case of Bears Ears, environmentalists were able to stymie legislative efforts to establish a grand bargain in eastern Utah by simply holding out for a lame-duck monument designation from Obama. And why not? After all, there’s no reason to bother with the pesky details of conventional lawmaking, with its incessant demands for compromise and local buy-in, when a president can simply declare a national monument from afar. And since the designations can be made in the waning days of an administration, as many of them are, others are left to deal with the consequences.

Utah’s political leaders, however, were determined to fight back. In February, the governor, Gary Herbert, signed a resolution, approved by the state’s legislature, calling on President Trump to rescind the Bears Ears designation. In April, at the request of Utah’s congressional delegation, Trump ordered his interior secretary, Ryan Zinke, to review large monuments designated since 1996, when Grand Staircase–Escalante was established. Trump said the review was intended “to end another egregious abuse of federal power.” Zinke’s final report, released this month, calls for reductions to the two Utah sites and several other large monuments elsewhere, as well as for easing land-use restrictions on some monuments.

The fight will now turn to the courtroom. Several groups, including Patagonia, have filed suit to challenge Trump’s reductions of the Utah monuments. While the Antiquities Act gives presidents seemingly limitless power to create monuments, it is unclear whether it also provides them with the authority to abolish or shrink monuments, as Trump has done. (Several presidents — including Woodrow Wilson, who nearly halved the size of Mount Olympus National Monument — have in fact shrunk national monuments, but none of those reductions were challenged in court.) The ensuing court battle could take several years.

But regardless of how the legal action shakes out, one thing should be noted: The lands in question are still federally owned. Despite Patagonia’s claim that Trump “stole your land,” the lands remain public. Monument or not, they are still subject to strict laws, such as the National Environmental Policy Act and the Endangered Species Act. And, like all public lands, they remain protected through other, yet-broader federal laws such as the Archaeological Resources Protection Act, created in 1979 to protect ancient artifacts on public land from looting or desecration, and the National Historic Preservation Act, established in 1966 to protect historic structures on federal property.

In light of past monument abuses, Trump’s efforts to downsize monuments and loosen land-use restrictions may indeed be righting the wrongs of prior administrations. But what’s really needed is an overhaul of the Antiquities Act, and that may be on its way. This fall the House Natural Resources Committee approved a bill, introduced by Bishop, that would limit the size of monuments that can be designated by unilateral executive authority. Monuments of more than 640 acres would require public input, and large monuments, up to a maximum of 85,000 acres, would need approval from local and state lawmakers.

The proposed legislation would also clarify the scope of the Antiquities Act by limiting the types of resources that it can be used to protect. Bishop’s bill would define “objects of antiquity” as “relics,” “artifacts,” “skeletal remains,” “fossils,” and “certain buildings” already constructed. The bill would also codify the president’s power to reduce the size of monuments designated by predecessors.

Regardless of the bill’s outcome, the Antiquities Act should be recognized as an ineffective and inappropriate law that is incompatible with our American system of government, which typically rejects such wide-ranging executive authority. If nothing else, this much should be clear: If monument designations were good public policy, they wouldn’t require presidential proclamations. The same, of course, could be said of Trump’s unilateral monument reductions, should they withstand legal challenges. As long as such decisions are made by presidential decree, any particular outcome will be hopelessly uncertain and may last only as long as a president’s tenure in the White House — and that’s hardly an effective conservation strategy.

The only real solution is to get rid of the antiquated law that got us in this position in the first place. Congress should make the Antiquities Act a thing of the past and require that national monuments be established through individual legislative action, as is the case with national parks and federal wilderness areas. After all, if government is simply the word for the things we do together, as progressives like to tell us, then let’s actually govern together — even when it comes to our land-conservation policies.

– Mr. Regan is a research fellow at the Property and Environment Research Center in Bozeman, Mont.

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