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February 7 2017

It's Time to Abolish The Antiquities Act of 1906

National Law Journal
Erin Hawley

With less than a month to go in office, President Barack Obama set aside 1.65 million acres of federal land under the Antiquities Act of 1906. The act permits the president unilaterally to reserve federal land for special protection. Those familiar with Obama's record weren't surprised. During his tenure, he used the Antiquities Act to set aside 553 million acres of federal land and water.

Obama isn't the first to make dubious use of this law during the waning days of a lame-duck presidency. President Lyndon B. Johnson, for example, signed proclamations adding 264,000 acres to Arches and Capitol Reef National Monuments 90 minutes before he left office.

Such uses of the Antiquities Act routinely spark outrage from the local communities who are offered no procedural protections. A national monument designation often negatively affects a community by eliminating natural-resource-related jobs and royalty payments, decreasing property, sales and federal taxes (some of which return to the states) and curtailing long-held uses such as grazing.

Occasionally, a particularly aggressive designation will even move an inert Congress to action. In response to the designation of tens of millions of acres in Alaska, for example, Congress passed a bill banning large designations in the 49th State without congressional approval.

So what is to be done? The Obama administration has claimed nothing, arguing that President Donald Trump has no authority to rescind presidential proclamations under the Antiquities Act. But the answer is not nearly so clear cut.

In many federal statutes, the power to act is accompanied by the power to reverse that action. There is no obvious reason why the Antiquities Act should be any different. The act grants discretion to the president to designate national monuments, but it also contains internal limitations on purpose and scope.

The act's plain language permits a president to designate only identifiable "objects" of historical or scientific interest, and requires that protected land encompass "the smallest area" compatible with protecting said object. These limitations suggest that a president or his successor might modify or rescind a national monument proclamation that doesn't meet these criteria.

Indeed, several national monument proclamations have been modified — seeming to leave that option open for Trump. He should examine Obama's monument designations to determine whether they are consistent with the Antiquities Act. To the extent they are not, the president should take action.

It is even clearer that Congress can and should act. Under the property clause of the U.S. Constitution, Congress is given sole authority to manage federal lands. There is no question that it can rescind the monument designations. But Congress should go much further and repeal the Antiquities Act of 1906.

The act is a relic of a bygone era, when pot-hunters raided Native American burial mounds, and the federal government was powerless to act. Those circumstances no longer exist.

A plethora of federal statutes authorize the federal government to protect historical objects and environmentally sensitive lands — even on an emergency basis. There is no justification for a statute that allows a president to single-handedly avoid the procedural protections required by these more modern statutes.

The absence of procedural protections means that the designation of huge swaths of land in the West harms local communities that are powerless to voice their objections.

Consider the Grand Staircase-Escalante National Monument, which halted mining operations that would have provided critical resources to Kane County, where the average annual family income totaled $28,000 at the time the monument was created.

If the president had sought to protect the area under any of the newer statutes, this local community would have received notice and the ability to comment upon the significant economic losses they would suffer. These protections are critically lacking from the Antiquities Act.

Finally, the act has been distorted beyond recognition. Even proponents of aggressive preservation recognize that it was intended to protect small parcels of land containing specific objects of historical or scientific resources — not millions of acres of scenic land.

Indeed, at the time of enactment, western legislators proffered the now-prophetic concern that the Antiquities Act might be used to tie up "seventy or eighty million acres of land in the United States." The bill's sponsor, Republican U.S. Rep. John F. Lacey, rejected that suggestion out of hand: "Certainly not," he replied, the act was intended merely to "preserve … old objects of special interest."

Nevertheless, in four sparse sentences contained in two opinions, the U.S. Supreme Court has endorsed seemingly unfettered presidential discretion under the Antiquities Act of 1906. Neither the text nor the history of the statute can be stretched so far, but because the court has declined to review monument designations, egregious abuses of the act go unchecked.

Given the proliferation of statutes that protect federal lands and waters, the Antiquities Act is itself antiquated and should be repealed by Congress at the earliest opportunity.

Finally, the act has been distorted beyond recognition. Even proponents of aggressive preservation recognize that it was intended to protect small parcels of land containing specific objects of historical or scientific resources — not millions of acres of scenic land.

Indeed, at the time of enactment, western legislators proffered the now-prophetic concern that the Antiquities Act might be used to tie up "seventy or eighty million acres of land in the United States." The bill's sponsor, Republican U.S. Rep. John F. Lacey, rejected that suggestion out of hand: "Certainly not," he replied, the act was intended merely to "preserve … old objects of special interest."

Nevertheless, in four sparse sentences contained in two opinions, the U.S. Supreme Court has endorsed seemingly unfettered presidential discretion under the Antiquities Act of 1906. Neither the text nor the history of the statute can be stretched so far, but because the court has declined to review monument designations, egregious abuses of the act go unchecked.

Given the proliferation of statutes that protect federal lands and waters, the Antiquities Act is itself antiquated and should be repealed by Congress at the earliest opportunity.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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