We recently began our series of blog posts examining the history, purpose, and limitations of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”). This week we discuss how the Act fits within the variety of other frameworks for protecting and using public lands. So what is the Antiquities Act?

As discussed in our previous posts (here and here), the Antiquities Act permits a President to proclaim “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments. To protect these objects, the President is also permitted to “reserve parcels of land as part of the national monument” subject to the limitation that “the parcels are confined to the smallest area compatible with proper care and management of the objects to be protected.[1]

These two limitations on designating monuments are designed to reinforce each other. First, the land parcels must encompass “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” This limitation makes sense considering the impetus for the law—the desire to protect Native American artifacts from being pillaged from federal lands and a method for quickly withdrawing such “land[s] from the public domain to preserve archaeological sites.”[2] Second, the parcel must be confined to the smallest area compatible with this purpose—a limitation that only makes sense relative to objects that require “proper care and management . . . to be protected.”

By recent standards, the first national monuments declared under the Antiquities Act were small. Thirty-seven of the first forty declared national monuments measured less than 100,000 acres in total; each monument averaged just 5,350 acres. And the other three? Two of those national monuments were incorporated into Grand Canyon National Park and the third, Mount Olympus, is now part of Olympic National Park.

Despite the modest size of the early national monuments, it only took a little over a decade before the first million-acre-plus monument was declared, Katmai National Monument, which was proclaimed to “preserve an area that is of significant importance in the study of volcanism.”[3]  Like the Grand Canyon and Mount Olympus designations before it, the Katmai declaration offers a small but helpful case study of large-scale monument declarations.

In 1912, Mount Novarupta in Alaska erupted, causing the most powerful volcanic eruption of the 20^th century (nearly thirty times more powerful than Mount St. Helens) and devastating the surrounding landscape. In the following years, explorers from the National Geographic Society conducted several expeditions into the remote region. As described by one of the explorers, Robert Griggs, “[t]he whole valley as far as the eye could reach was full of hundreds, no thousands— literally, tens of thousands— of smokes curling up from its fissured floor.” After his exploration of the region, Griggs, along with the National Geographic Society, lead the campaign to get the Katmai region made into a national park.[4]

National Park Service officials, however, worried that the creation of a new national park in Alaska would burn what limited good will the agency had with Congress.[5] Park Service officials informed the Society that the only possible protection for Katmai would be through the Antiquities Act.[6] At the time, the National Geographic Society proponents were worried about whether an Antiquities Act declaration could cover such a large area but were convinced by Park Service officials that it was the preferred method.[7] The declared monument “embraced little more than the area of active volcanic peaks surrounding Mount Katmai, along with the Valley of Ten Thousand Smokes and most of Iliuk Arm,”—all identifiable features of established scientific value.[8] Nearly sixty years after its declaration, this large monument was established as a National Park and Preserve by Congress.

The growth in the size and scale of national monuments, and the routine re-designation of large-scale monuments as National Parks, highlight a key issue in the discussion regarding recent use, and possible reform, of the Antiquities Act—namely what type of law is it? Is it an historic preservation law? A public lands management law? An environmental law? Or a little of each? The answer depends on whom you ask. Each alternative has merits and flaws; and therein, we believe, lies the wellspring of debate over the proper purpose of the Antiquities Act.

For example, there is some basis for categorizing the Antiquities Act as an historic preservation program—or at least for arguing that Congress views it as such. In December 2014, Congress passed Pub. L. 113-287 enacting title 54, United States Code, “National Park Service and Related Programs”, as positive law. Although nothing in Pub. L. 113-287 “created new law or changed the meaning or effect of existing law,” it did recodify the Antiquities Act into “National Preservation Programs” alongside historic preservation laws. This arguably leads to a presumption that the Antiquities Act is an historic preservation law.

However, many groups argue that the Antiquities Act is an environmental law, particularly because of its recent stated use as a tool to curb climate change through prohibitions in proclamations barring new oil and gas leasing, and/or mining on monument lands.

In application, the Antiquities Act is also a public lands management law, as declarations of new national monuments have significant impacts on existing public lands management plans.[9]

We will continue discussing how the Act fits within the variety of other frameworks for protecting and using public lands tomorrow.

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. You can follow her on Twitter @Kara_McK

 

[1] 54 U.S.C. § 320301 (2014).

[2] See Eric C. Rusnack, The Straw that Broke the Camel’s Back, 64 Ohio State Law Journal 669, 674 n.23 (2003).

[3] Nat’l Park Serv.,U.S. Presidents and Katmai, https://www.nps.gov/katm/blogs/u-s-presidents-and-katmai.htm (Feb. 14, 2016); Proclamation No. 1487, 83 Stat. 926 (Jan. 20, 1969).

[4] Frank B. Norris, Isolated Paradise: An Administrative History of the Katmai and Aniakchak National Park Units ch. 2 (1996).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See generally U.S. Dep’t of Ag., San Gabriel Mountains National Monument Management Plan DRAFT Environmental Assessment (Aug. 2016).

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).

[2] 54 U.S.C. § 320303.

[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.

[16] 16 U.S.C. §§ 3101-3223.