Congressional attack on national monuments ignores America’s conservation history

The misleadingly named “National Monument Creation and Protection Act,” which narrowly passed the House Natural Resources Committee last week, is an assault on our public land heritage. H.R. 3990 would make it harder to create new national monuments and would authorize presidents to reduce the size of all existing monuments, from the Canyons of the Ancients in Colorado to the Muir Woods in California.

One hundred and eleven years ago, Congress passed the Antiquities Act, empowering presidents to designate national monuments protecting federal lands that contain objects of interest. Congress believed swift presidential action is sometimes needed to protect threatened landscapes from private exploitation. Since then, 16 presidents, Republicans and Democrats alike, have created 157 national monuments on existing federal lands. Congress often followed up to give these lands even more protection, by converting presidentially-designated national monuments into some of our most cherished and visited national parks. These include the Grand Canyon, Zion, Olympic, Acadia, Saguaro, Death Valley, and thirty-two others.

{mosads}Despite this history, H.R. 3990 would bar presidents from creating monuments that protect “natural geographic features.” Its backers say that Congress never intended presidents to protect these resources. But history shows otherwise. Our first national monument, protected by President Teddy Roosevelt, was the striking geologic wonder Devils Tower. And in 1908, Roosevelt protected the Grand Canyon as a national monument. Under H.R. 3990, neither could have been protected, nor would most of the monuments Congress has later designated as national parks. Dozens of other worthy features like giant saguaro cactus, Joshua trees, and even the majestic Denali (Mount McKinley) wouldn’t have been eligible for protection.

The Supreme Court has twice unanimously confirmed that presidents may create national monuments, including landscape-scale monuments, to protect scenic areas and the geologic formations, plants, and animals they contain. Rebuffing an assault on the Grand Canyon by mining interests, the Court in 1920 described the monument as a “natural wonder,” and the kind of “object of historic or scientific interest” embraced by the Antiquities Act. In 1976, the Court found that protecting Devil’s Hole National Monument – including the rare fish that inhabit it and the water necessary to sustain those fish – was a proper use of presidential power.

Rep. Rob Bishop (R-Utah), who authored H.R. 3990, would also prohibit creation of monuments larger then 85,000 acres because, he says, Congress never intended for presidents to create large monuments. History again says otherwise. Congress expressly rejected limits on national monument size in the debate leading up to the Antiquities Act’s passage. Presidential monument designations or expansions have exceeded 85,000 acres 54 times, and every legal challenge based on monument size has failed. Indeed, over two dozen times Congress converted monuments into national parks or preserves, affirming presidential actions and further protecting these important lands.

The original 1908 Grand Canyon monument, later expanded by subsequent presidential and Congressional action, was over 800,000 acres. In the early 20th century, Republicans including Herbert Hoover and even Calvin Coolidge (who the Heritage Foundation has called an “intellectual and political forefather of modern American conservatism”) designated individual monuments of more than a million acres in size. While Mr. Bishop may take issue with large monuments, painting them as an abuse of presidential power ignores 100 years of tradition, history, and practice.

H.R. 3990 would also grant state and local governments the right to veto new monuments between 10,000 and 85,000 acres in size. Public lands are owned and enjoyed by all Americans, and putting their fate in the hands of even well-intentioned state and local officials, who represent only a small number of Americans, doesn’t make sense. It wasn’t that long ago that Disney proposed a Civil War theme park next to the Manassas National Battlefield Park, and Gov. George Allen promised to “kick down any hurdles” to its development. It took a national movement to protect the battlefield at Bull Run from state and local governments focused on relentless growth. Let’s learn from history and maintain national control over national treasures.

Finally, the bill would empower presidents to “reduce the size of any national monument,” placing every existing monument at risk. Just as Congress always keeps the authority, under the Property Clause of the Constitution, to convert monuments into national parks, it also retains the power to reduce the size or protection of individual monuments. There’s no reason to allow presidents to act unilaterally to help private interests to profit from exploiting oil, gas, and other resources on sensitive federal lands.

The “National Monument Creation and Protection Act” in short, will neither create nor protect national monuments, but will only undermine them. Our public lands and future generations deserve better.

Sean B. Hecht is the Co-Executive Director of the Emmett Institute on Climate Change and the Environment, and Evan Frankel Professor of Policy and Practice, at UCLA School of Law. John Ruple is a Research Associate Professor of Law and Wallace Stegner Fellow at the University of Utah’s SJ Quinney College of Law.