What is the Antiquities Act? Short Answer: Depends Who You Ask (Part 2)

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”). Today we continue discussing how the Act fits within the variety of other frameworks for protecting and using public lands. So what is the Antiquities Act?

In contrast to the Act’s ambiguous status, as discussed yesterday, the land management plans that arise from statutory schemes, and which are managed by the administrative agencies, are both comprehensive and detailed. The United States federal government owns approximately 640 million acres of land.[1] Of that, just over 610 million acres, or 95% of federally owned lands, are under the control of one of the four main federal land management agencies: The Bureau of Land Management (“BLM”), the Fish and Wildlife Service, the National Park Service, or, the Forest Service. The first three of these agencies are part of the Department of Interior (“DOI”), while the last is part of the Department of Agriculture. Federal public lands are administered subject to “a myriad of individual agency mandates to manage particular lands and particular resources” overlapped by “general environmental statutes.”[2] In addition, these agencies hold full or co-management responsibilities for all the national monuments.

The map below shows the extent of federally held lands in the United States:

Source: U.S. Geological Survey

Established in 1905, the Forest Service is the oldest of the four major federal land management agencies, and the only one to officially predate the passage of the Antiquities Act. Its mission is “to sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.” The National Park Service followed over a decade later in 1916 and has a dual mission to preserve natural and cultural resources and provide such for the enjoyment of the public. The BLM, founded in 1946, is charged with the “stewardship of our public lands” and its management of such lands is “based upon the principles of multiple use and sustained yield of our Nation’s resources within the framework of environmental responsibility and scientific technology.” In 1966, Fish & Wildlife was the last of these agencies to be established and was tasked with “working with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people.”

Read together, the missions of these federal public lands management agencies are to work collaboratively with numerous stakeholders to conserve and protect the nation’s natural and cultural resources with an eye towards multiple use and sustainable processes, as well as public access. The Antiquities Act is at odds with these major public lands management agencies to the extent that designations are made at the sole discretion of the President without consideration of existing land management, historic preservation, and/or environmental protection plans, and without any need for public input.

In addition to the laws providing for historic preservation, there are no less than twenty federal laws providing for the designation, protection, and management of environmentally sensitive areas located on public lands.[3] Many of those laws, such as the Federal Land Policy and Management Act of 1976 (“FLPMA”) and the National Environmental Policy Act (“NEPA”), require both public input and environmental assessments as part of their planning processes, which the Antiquities Act does not.

Although NEPA and FLPMA may be included in the final management plans for individual monuments, there is no affirmative requirement under the Antiquities Act to provide for environmental protections on the declared parcels. Curiously, some proponents of using the Antiquities Act have supported this aspect of the law because, in their view, bypassing congressional consensus or environmental review is a quicker and easier way to gain land protections. This perceived expediency and ease of using the Antiquities Act is no replacement for open and transparent discourse, particularly considering existing comprehensive historic preservation, land management, and environmental statutory and regulatory schemes that have established mechanisms for public and congressional oversight and input.

Given the hybrid nature the Antiquities Act and the sometimes arbitrary nature of its use, any reforms, if made, should consider existing statutory and regulatory frameworks for historic preservation, public lands management, and environmental protection, as well as methods for strengthening transparency and government accountability in decision-making.

Our series will continue next week with an overview of the environmental and fishery management laws that relate to marine or other water-based federal territories.

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


a[1] Cong. Research Serv., Federal Land Ownership: Overview and Data (Mar. 3, 2017).

[2] Marla Mansfield, A Primer of Public Land Law, 68 Wash. L. Rev. 801, 802 (1993).

[3] See e.g., Organic Act of 1897; Transfer Act of 1905; National Park Service Organic Act; Fish and Wildlife Act of 1956; Archaeological Recovery Act of 1960; Multiple-Use Sustained-Yield Act of 1960Wilderness Act of 1964; National Wildlife Refuge System Administration Act of 1966; The National Historic Preservation Act; Wild and Scenic Rivers Act; National Trails System Act of 1968; Mining and Minerals Policy Act of 1970; Endangered Species Act of 1973; The Wild and Free-Roaming Horses and Burros Act of 1971; National Forest Management Act of 1977; Surface Mining Control and Reclamation Act of 1977; Archaeological Resources Protection Act of 1979; Fish and Wildlife Conservation Act of 1980; Federal Cave Resources Protection Act of 1988; National Landscape Conservation System.

What is the Antiquities Act? Short Answer: Depends Who You Ask (Part 1)

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 20th 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).

The Antiquities Act – a Primer

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.

CoA Institute Highlights Problems with Presidents’ Unilateral Designation of Monuments

Washington D.C. – After President Trump yesterday signed an executive order to review previous presidents’ national monument designations under the Antiquities Act, Cause of Action Institute (“CoA Institute”) today sent a letter to Interior Secretary Ryan Zinke outlining why some designations may have been unlawful.

Signed into law over a century ago, the Antiquities Act authorizes the president to declare federal lands as part of monuments, which restricts how the lands can be used. Records obtained by CoA Institute indicate that some of President Obama’s designations may have resulted from collusion with outside environmental groups, while ignoring feedback from the local stakeholders who would be most harmed.

CoA Institute President and CEO John Vecchione: “Major decisions impacting Americans’ livelihoods, vast public lands, natural resources, and property rights are currently left to the sole discretion of the president. This is contrary to most of our system of government. Presidents failed to substantiate many designations in any meaningful way, beyond the use of a few magic words on the face of the proclamations. Unchecked discretion and lack of recourse to remedy overbroad proclamations has resulted in misuse of the Antiquities Act and undue restrictions on future use of vast swaths of federal lands.”

CoA Institute has submitted more than 10 Freedom of Information Act (“FOIA”) requests to various agencies and executive branch offices involved with national monument declarations.

Evident from government records received and reviewed by CoA Institute, monument declarations have been made with little or no consideration of local stakeholders and those most adversely impacted by the designations.  More recent designations, such as the Northeast Canyons and Seamounts Marine National Monument and the expansion of the Cascade-Siskiyou National Monument have even been made in direct contravention of longstanding statutory frameworks established by Congress and trusted by local stakeholders.

To date, CoA Institute has received several interim releases, including over 1,000 records, but we anticipate that this represents only small fraction of the records that are responsive to our requests. These records, along with publicly available documents and conversations we have had with local stakeholders in multiple states, preliminarily confirm several of our concerns.

For example, it appears that third-party environmental groups knew about a forthcoming monument designation in the Atlantic Ocean prior to August 2015. However, local fishermen—who would be directly and adversely impacted by the designation— were notified only 12 days before the September meeting. As indicated in records we have reviewed, local fishermen were given only 250 words in a press release informing them of the meeting and seeking input on a then-undefined proposal. In contrast, third party organizations had enough in-depth information in advance of the meeting to build online petitions supporting a monument in the Atlantic Ocean that were pushed out to their members nationwide.

As part of our ongoing oversight, CoA Institute continues to investigate:

  • The role certain Members of Congress played in lobbying President Obama to take unilateral action under the Antiquities Act;
  • Potential collusion between outside groups and the Obama Administration to declare national monuments;
  • Lack of transparency regarding monument designations;
  • Pretextual public hearings relating to predetermined monument designations;
  • The continued acquisition of private lands in and around existing national monuments to expand such monuments; and
  • The legality of agency rulemakings to enforce Antiquities Act designations.

The full letter can be found here

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

CoA Institute Requests White House Communications with John Podesta, Interest Groups on Controversial National Monument Designations

Washington, DC – Cause of Action Institute (CoA Institute) today sent a Freedom of Information Act (FOIA) request seeking records of correspondence among the White House, Hillary Clinton campaign chairman John Podesta, and outside interest groups discussing current and proposed national monument designations.

Unconfirmed emails obtained by CoA Institute appear to show John Podesta and White House Council on Environmental Quality (CEQ) Managing Director Christy Goldfuss discussing controversial designations of new national monuments and expansion of existing monuments under the Antiquities Act.

The broad use of the Antiquities Act under the Obama administration has raised concerns about the opaque process and lack of consultation with local stakeholders leading up to the president’s designation of new national monuments. If verified, these emails raise additional transparency concerns and the specter of collusion.

Ms. Goldfuss, a White House political appointee, appears to have used her private email account to coordinate with outside interest groups and individuals, including John Podesta, regarding the selection or designation of national monuments. For instance, in one unconfirmed email exchange, Ms. Goldfuss sent a work-related email to Mr. Podesta using her Gmail account in which she stated:

Hi John, . . . It’s all coming together.  I may have an oceans monument question for you soon.  We’re looking at the NE, and it’s messy.  Hope all is well!  We sure do feel your absence now that Kristina is gone.  I always felt like she channeled you so well. Talk soon, Christy.

By using her personal email account to conduct government business, Goldfuss may have violated the Federal Records Act, if she failed to forward those emails to her official government email account so that they can be appropriately archived and searched.

In another unconfirmed email exchange, Mr. Michael Conathan, the Director of Ocean Policy at Center for American Progress, emailed John Podesta with the Subject: “Re: A couple of quick ocean things”:

Hey John, Welcome back to the world outside the White House gates… Jane and I had a good meeting with Christy and the CEQ team, and got over to meet Brian earlier this week, so we’re full steam ahead with the monuments process. Thanks for all your help on that front. …

While the veracity of this email cannot be independently verified, White House visitor logs indicate that Mr. Conathan was at the White House on Feb. 23, 2015 to meet with Hilary Atkin, who, per publically available information, worked for CEQ at the time of the meeting.

To ensure compliance with the law, CoA Institute today requested all communications, including personal emails, relating to the Obama administration’s use of the Antiquities Act to unilaterally proclaim new national monuments.

CoA Institute Assistant Vice President Henry Kerner: “Designating a new area as a national monument should be an open process where the public and local stakeholders have an opportunity to be heard. The public also has a right to know whether decisions to limit public use of federal lands are properly made.  If verified, these personal emails show possible collusion among the Hillary Clinton campaign, the White House, and activist organizations to further the goals of interest groups at the expense of the American people.”

The FOIA is available HERE

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