On Monday, President Trump reduced the size of two national monuments in Utah by about two million acres. Although some environmental activists are complaining the president has no authority to decrease the size of a national monument, the more salient question is how some 840 million acres of federal land and water became national monuments in the first place.
Despite the present outrage from the environmental community, presidents have long thought it proper to ensure that a prior monument designation complies with the terms of the Antiquities Act. As a 1938 opinion from the attorney general puts it, the president “from time to time has diminished the area of national monuments established under the Antiquities Act by removing or excluding lands.”
{mosads}President John F. Kennedy, for example, issued a proclamation removing nearly four thousand acres from the Bandelier National Monument. He cited the Antiquities Act as authority, declaring that “it appears that it would be in the public interest to exclude from … the monument approximately 3,925 acres of land containing limited archeological values which have been fully researched and are not needed to complete the interpretive story of the Bandelier National Monument.”
As President Trump correctly points out, the Antiquities Act has been much abused. The statute was enacted in 1906 to protect Native American burial sites and ruins on federal lands. It criminalized looting by pothunters and authorized the president unilaterally to set aside national monuments. The text, however, places two firm, but long-ignored, limits on an Executive’s authority under the Antiquities Act.
First, a 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 House Report confirms these textual limitations. It states that the Antiquities Act was meant to “create small reservations reserving only so much land as may be absolutely necessary for the preservation of these interesting relics of prehistoric times.” In response to the concern that a president might use the statute to prohibit resource development in the West, perhaps even tying up “seventy or eighty million acres of land in the United States” — a number that seems quaint now — the bill’s sponsor replied, “(c)ertainly not,” the Antiquities Act was intended merely to “preserve … old objects of special interest.”
Presidents have long felt immune from the textual limitations of the Antiquities Act. But the abuse has been getting worse. President Obama, for example, broke records by preserving some 553 million acres of federal lands and waters.
The irony is that we no longer live in 1906. Since that date, Congress has enacted a plethora of land preservation statutes. In particular, the Federal Land Policy and Management Act of 1976 comprehensively addresses the management of federal lands “in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental … and archeological values.” These statutes may be more unwieldy because they provide for public notice and comment, but they are an unquestionably better balance of preservation and procedure.
Land preservation by Executive Proclamation may be efficient, but it is hardly fair. The Antiquities Act affords affected communities no opportunity for input. Neither they nor their elected representatives have a say in a designation that may decimate an already-struggling rural community by reducing or eliminating long-held uses like grazing and timber, prohibiting drilling and mining, and decreasing taxes.
President Trump touched on the importance of local participation. Abuse of the Antiquities Act “give(s) enormous power to faraway bureaucrats at the expense of the people who actually live here, work here, and make this place their home.” It is high time someone paid attention to these men and women.
In the end, the flap over reducing the size of a national monument is much ado about nothing. The lands that are now outside a national monument designation remain federal lands and may be subject to additional protections under other statutes. The only catch is that more-modern statutes include procedural protections, like an opportunity for notice and comment, for affected communities. This is a win for everyone.
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.