Supreme Court review of Antiquities Act is overdue

The Biden administration has rushed to shift unprecedented powers to the executive branch — that is, to the president and his administrative agencies. Biden has been especially aggressive in stretching the intent of laws to expand his control over federal lands.

On March 22, the Supreme Court will consider hearing a challenge to one of the most abused federal-land statutes, not only by Biden but also by most presidents in the last 30 years. The future of much of the American West rides on its decision on whether or not to hear the case American Forest Resources Council v. United States. 

The case centers around the 1906 Antiquities Act. Passed with the support of then-President Theodore Roosevelt, it gave the chief executive the authority to declare “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the government of the United States to be national monuments…which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”

The idea was to protect rare deposits of Native American relics and globally unique topographies. That is why, upon passage, President Roosevelt declared the Grand Canyon our first national monument.

But recent presidents have stretched their authority under the act far beyond anything Roosevelt or the Congress could have anticipated, even citing it as authority for nullifying other acts of Congress.

For example, at issue in American Forest Resources Council v. United States is use of the Antiquities Act to nullify another law, the 1937 Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act.  

The Clinton, Obama and Biden administrations all moved step-by-step to undo one of this latter law’s primary purposes. That law, passed with full congressional knowledge of the Antiquities Act, set aside nearly 2.6 million acres of Oregon forestland as a permanent trust for local governments to fund public services through the harvesting of timber. Yet these presidential administrations disregarded Congress’s direction, and instead used the act to re-designate portions of these lands for other purposes. As a result, timber harvests have declined, revenues to the counties have plummeted and public services have been reduced.

In recent years, presidents have abused the Antiquities Act to claim for federal agencies unfettered control over massive swaths of land. The Biden administration has used the act to wall off nearly 1.5 million acres of land from fossil-fuel development.

In March 2021, Chief Justice John Roberts disapprovingly noted that President Barack Obama had used the Antiquities Act “[a]s part of managing the Northeast Canyons and Seamounts Marine National Monument … [to ban] almost all commercial fishing in the area with a complete ban to follow within seven years.” 

Radical liberals have clearly distorted this law’s purpose. The complete abolition of commercial logging and fishing have nothing to do with preserving “historic landmarks.”

This issue is particularly important in the western United States, where the intermingling of federal lands and local economies is extensive and intricate. For example, in cattle regions, people live and work in small communities. Public and private lands intermingle under rules that, by tradition as well as law, combine informal understandings and customs that generally go unnoticed until the administrative state or an out-of-control president steps in to disrupt them. As a matter of constitutionality, and for the smooth functioning of local societies, this case will have a tremendous impact throughout the West.   

The Supreme Court has shown an appetite for addressing issues of the administrative state and the separation of powers, as when reviewing Chevron deference questions. The need for a review of the Antiquities Act and hearing American Forest Resources Council v. U.S. is equally urgent.

David McIntosh, a former congressman from Indiana, is president of the Club for Growth.