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August 31 2017

The Antiquities Act is not a blank check to create federal land

via The Hill
by Erin Hawley

On Aug. 24, Interior Secretary Ryan Zinke recommended reducing the size of a handful of national monuments under review pursuant to President Trump’s executive order. A two-page summary of the report contains no details, but promises to maintain environmental protection while providing “a much needed change” for the local communities who rely on federal lands.

The Antiquities Act of 1906 made good sense when enacted. A lucrative market for original artifacts led to the widespread desecration of Native American burial sites across the West. The Act criminalized such acts on federal land. It also authorized the President to set aside national monuments to protect historical sites.

Under the act, President Obama set aside a record 553 million acres of federal land and water. But other presidents have also made liberal use of the statute. President Carter’s designated 56 million acres of land in Alaska (leading Congress to require congressional approval for monuments greater than 5,000 acres in the 49th state). And President Johnson added 264,000 to Arches and Capitol Reef National Monuments ninety minutes before he left office.

The text and legislative history of the Antiquities Act, however, make clearthe statute was not intended to set aside hundreds of millions of acres of federal land and water. The text cabins the executive’s discretion in two ways. First, the president may preserve only identifiable “objects” of historical or scientific interest. Second, adjacent land is limited “to the smallest area compatible with the proper care and management of the objects to be protected.”  

The summary of Secretary Zinke’s report indicates that he takes the act’s limitations seriously. “No President should use the authority under the Antiquities Act to restrict public access, prevent hunting and fishing, burden private land, or eliminate traditional land uses, unless such action is needed to protect the object,” said Secretary Zinke.

The trouble with land preservation by executive proclamation is its absence of procedural protections. Local communities may be surprised by a national monument designation, and neither they nor their elected representatives have any say in its creation or size. Of course, a designation can adversely affect already-struggling rural communities by reducing or eliminating long-held uses such as grazing and timber, reducing natural-resource-related jobs and royalty payments, and decreasing taxes.

Secretary Zinke’s seemingly modest recommendation to reduce in size a handful of national monuments is hardly the blow to environmental protection that activists suggest. It is no longer 1906. And Congress has enacted a number of other statutes that protect sensitive federal lands and waters and historical sites — including on an emergency basis. The difference: all of these more comprehensive statutes provide for public notice and comment. These modern statutes may be more unwieldy, but they better balance the important interests of preservation and procedure.

In fact, environmentalists – and all Americans – should embrace this trend toward better process. Our land policies should not depend on the whims of the president, but rather input from all stakeholders through a more robust process.

President Trump would not be the first president to diminish the size of a monument to comply with the terms of the Antiquities Act. Far from it: A 1938 opinion from the attorney general assumes this authority, notingthat, the president “from time to time has diminished the area of national monuments established under the Antiquities Act by removing or excluding lands.”

President John F. Kennedy, for example, issued a proclamation removing nearly four thousand acres from the Bandelier National monument. He relied on the Antiquities Act as authority. Similarly, Mount Olympus National Monument was reduced three times. In fact as many as seven different presidents, have reduced national monuments at least 18 times — sometimes by tens or hundreds of thousands of acres.

In an era when procedural protections are a given, the Antiquities Act is an odd darling. It is a relic from a prior time when speed was of the essence and other land protection statutes did not exist. As Secretary Zinke explained, however, the act is not a blank check. Its text includes clear internal limitations and the Trump administration is right to review prior designations for executive largess.

Erin Hawley is a legal fellow at the Independent Women's Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John G. Roberts Jr.

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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