Last week we posted an analysis of the recent Executive Order regarding the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) and the letter we sent to Secretary Zinke highlighting concerns we have regarding recent designations of National Monuments. This week we begin a series of blog posts that examine the history of the Antiquities Act, how the Act fits within other frameworks for protecting and using public lands, how the Act has been misused by recent Presidents, and the ramifications of that misuse. We will conclude the series by proposing a variety of approaches for cabining use of the Antiquities Act to its proper sphere.
Today we begin with some background on the Antiquities Act: its purpose, history, and limitations.
The Antiquities Act provides that
The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.[1]
This version of the statute was recodified in 2014, but is nearly identical to the original statutory language, as passed in 1906, in that it applies to objects of historic or scientific interest that are on land owned or controlled by the Federal Government.
The Act provides that the Secretary of the Interior, the Secretary of Agriculture, and the Secretary of the Army publish regulations to carry out the Act.[2] In practice, the National Park Service and the Bureau of Land Management (Department of the Interior), and the United States Forest Service (Department of Agriculture) manage the majority of the monuments.
The Antiquities Act was enacted in 1906 in response to concerns that Native American artifacts were being pillaged from federal lands.[3] The Act was originally proposed solely to protect objects of historic interest; but, prior to enactment, was expanded to include objects of scientific interest as well.[4]
Urgency in protecting relics against looting and trafficking was the driving force behind the Act.
These relics are priceless when secured by proper scientific methods, and of comparatively little value when scattered about either in museums or private collections without accompanying records. No scientific man is true to the highest ideals of science who does not protest against this outrageous traffic, and it will be a lasting reproach upon our Government if it does not use its power to restrain it.[5]
Although expansion of the Act to include “scenic areas” was considered, Congress ultimately rejected that proposal and limited the scope of national monuments to “the smallest area compatible with the proper care and management of the objects to be protected.”[6] Indeed, concern that vast tracts of land could be appropriated under the Antiquities Act was fiercely debated and resolved via the “smallest area” provision. The following dialogue illustrates the concern over expansive use of the proposed Act:
Mr. STEPHENS of Texas. Will that take this land off the market, or can they still be settled as part of the public domain?
Mr. LACEY. It will take that portion of the reservation out of the market. It is meant to cover the cave dwellers and cliff dwellers.
Mr. STEPHENS of Texas. How much land will be taken off the market in the Western States by the passage of the bill?
Mr. LACEY. Not very much. The bill provides that it shall be the smallest area necesstry [sic] for the care and maintenance of the objects to be preserved.
Mr. STEPHENS of Texas. Would it be anything like the forest-reserve bill, by which seventy or eighty million acres of land in the United States have been tied up?
Mr. LACEY. Certainly not. The object is entirely different. It is to preserve these old objects of special interest and the Indian remains in the pueblos of the Southwest.[7]
President Teddy Roosevelt designated Devils Tower in Wyoming, measuring approximately 1,150 acres, as the first historical monument under the Act.[8] Since its founding, Devils Tower National Monument has been expanded once, by approximately 150 acres, through an Act of Congress.
Photograph care of the NPS. https://www.nps.gov/deto/index.htm
President Roosevelt went on to designate an additional 17 monuments,[9] the largest of which, at roughly 800,000 acres, was the Grand Canyon. That designation was subject to an unsuccessful legal challenge that went to the Supreme Court (Cameron v. United States, 252 U.S. 450 (1920)). The decision in Cameron set the precedent for using the Act to designate large tracts of land as a national monument without reference to a specific historical or scientific object—although, arguably, the Grand Canyon is itself an identifiable object. Congress later incorporated the monument into the Grand Canyon National Park.
From the time of President Taft through the administration of G.H.W. Bush, designations of national monuments ranged from a minimum of zero to a maximum of 15 per president. Designations have not gone unchallenged—particularly when the size of the land withdrawn was extensive and burdensome to the States in which the monuments were situated. But no legal challenge to the proclamation of a national monument has yet been successful. Congress, however, has occasionally stepped in.
For example, when President Franklin Roosevelt designated 220,000 acres of land as the Jackson Hole National Monument, the State of Wyoming objected.[10] Congress also objected to what it viewed as a usurpation of its authority (it had been debating the inclusion of the land into a national park), and for several years thereafter attached provisions to Department of Interior appropriations bills that prohibited expenditures for the monument.[11] Wyoming sued; but the court upheld the designation.[12] Congress eventually passed legislation that restored some of the monument lands to Teton National Forest and merged the rest with Grand Teton National Park. The legislation also prohibited future unilateral presidential use of the Antiquities Act in Wyoming absent express Congressional authorization.[13]
Similarly, when President Carter set aside fifty-six million acres of land in Alaska to simultaneously create 15 national monuments (the high end of the range of designations noted above), the state of Alaska sued, seeking an injunction against President Carter’s use of the Antiquities Act.[14] As in previous cases, the President prevailed.[15] Congress, however, stepped in and repealed President Carter’s proclamations, imposed its own set of protections and uses for the land, and prohibited future withdrawals of Alaska land by the President that exceed 5,000 acres in the aggregate without approval by Congress.[16]
Beginning with President Clinton and continuing through President Obama, the scope and nature of designations began to grow and change. Some designations, such as President Obama’s designation of The Chimney Rock National Monument, encompassing 4,726 acres, or Stonewall National Monument, which encompasses 0.12 acres, appear to be consistent with Congress’ original intent, being limited in size and relevant to discernible “objects of historic interest.” Others, which will be discussed later in this series, departed markedly from the traditional application of the Antiquities Act.
Our series will continue next week with an overview of the environmental and public lands management laws the government currently uses to protect lands in its ownership or control.
Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org
Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. Kara is admitted only in New York and New Jersey. Practice limited to matters and proceedings before United States Courts and agencies. You can follow her on Twitter @Kara_McK
[1] 54 U.S.C. § 320301 (2014).
[3] See Eric C. Rusnack, The Straw that Broke the Camel’s Back, Ohio State Law Journal, Vol. 64:669, 2003 at p. 674, n. 23.
[4] Id. at 674-75.
[5] H.R. Rep. No. 59-2224 at 2 (1906) (citing memorandum from Professor Edgar L. Hewett).
[6] Id.; 54 U.S.C. § 320301.
[7] 40 Cong. Rec. 7888 (1906). The version of the bill that was passed by the Senate in 1904 limited withdrawals to 640 acres, but that limitation was not included in the final Act.
[8] Proclamation No. 658, 34 Stat. 3236 (Sept. 24, 1906).
[9] Cong. Research Serv., National Monuments and the Antiquities Act (2017).
[10] Rusnack, supra, at 683.
[11] See David H. Getches, Managing the Public Lands: The Authority of the Executive to Withdraw Lands, Natural Resources Journal, Vol. 22, April 1982, at 304, n. 140.
[12] Wyoming v. Franke, 58 F. Supp. 892 (D. Wyo. 9145).
[13] Id. at 305; 54 U.S.C. § 320301(d) (“No extension or establishment of national monuments in Wyoming may be undertaken except by express authorization of Congress.”).
[14] Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978).
[15] Id. At 1160.
