An executive order issued by President Trump last week instructs the Department of Interior to review expansive restrictions placed upon vast areas of private and public lands over the past 20 years through excessive applications of a more than century-old Antiquities Act. In doing so, he vowed to “end another egregious abuse of federal power, and to give that power back to the states and to the people, where it belongs.”
Originally intended as an emergency measure to prevent looting of antiquities on Native American lands, the 1906 legislation grants Presidents discretionary power “to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest . . . to be national monuments.”
Such designations were to be limited to “the smallest area compatible with the proper care and management of the objects to be protected,” and were to be reserved for instances where lands or artifacts faced immediate threats.
For the most part, but with notable exceptions, presidents from Theodore Roosevelt to Lyndon Johnson issued these designations sparingly. Ronald Reagan and George H.W. Bush established none at all.
Bill Clinton dramatically changed all that, setting aside 1.9 million acres, larger than the state of Delaware, for a Grand Staircase-Escalante National Monument in Utah in order to block proposed mining. Barack Obama added another 1.6 million, creating and expanding more monuments than any other President in history.
Trump’s executive order was largely triggered by Obama’s highly controversial designation of a 1.35 million-acre Bears Ears National Monument site in Utah just prior to leaving office. Aimed primarily to prevent oil and gas drilling, the action was opposed by all area elected officials, the governor, and state legislators.
Bears Ears is nearly twice as large as Rhode Island, and 1 million acres larger than Utah’s largest national park.
Obama also designated national monument status to a 300,000 acre Gold Butte site in southern Nevada following unsuccessful attempts by then-Senate Minority Leader Harry Reid (D-NV) to accomplish this through congressional action. The proposal had faced stiff opposition following extensive negotiations involving local recreation groups, environmentalists, ranchers, and other private interests.
In addition, Obama quadrupled the size of the Papahanaumokuakea Marine National Monument originally created by President George W. Bush in 2006 to 582,578 square miles, nearly double the size of Texas. Opposed by the Western Pacific Regional Fishery Management Council, its spokesman Edwin Ebisui said, “Closing 60% of Hawaii’s waters to commercial fishing, when science is telling us that it will not lead to more productive local fisheries, makes no sense.”
President Trump’s new executive order instructs Administration officials to “review prior monument designations and suggest legislative changes or modifications to the monuments,” actions which his Department of Interior Secretary Ryan Zinke concurs are “long overdue.” Zinke stressed that although the order will not, in itself, strip landmarks of monument designations or loosen environmental laws on development, “When you designate a monument, the local community should have a voice.”
Speaker Ryan commended the Trump Administration for “stopping this cycle of executive abuse and beginning a review of past designations.”
While the Antiquities Act does not grant presidential authority to revoke previous national monument designations, it may be possible to change those physical boundaries. Congress can also convert a national monument into a national park, and has done so on multiple occasions.
National monument designations under the Antiquities Act have been amended twice since 1950. The first such event followed in the backlash of President Franklin Roosevelt’s 1943 designation of Jackson Hole National Monument. The result was a law requiring congressional consent for creation/enlargement of monuments in Wyoming.
Similarly, following Jimmy Carter’s designation of national monument status to 56 million acres in Alaska, future assignments in that state cannot exceed 5,000 acres without congressional consent. Utah’s two Senatiors, Orin Hatch and Mike Lee, have recently introduced congressional review and consent legislation for their state.
National monument designations circumvent procedures established in the Federal Land Policy and Management Act of 1976 and the National Environmental Policy Act for environmental review and public comments. And while 16 Presidents have established 152 national monuments, few have done so in defiance of state and local lawmakers.
Monumental danger lies when a president can unilaterally declare millions of acres of publicly and privately owned lands off limits to a variety of recreational and economic uses. Absent in those broadly publicized photo-op moments are the disgusted faces of those whose ranchlands and home properties have been stolen, whose hunting and fishing rights are blocked, and whose businesses and jobs have been lost for the sake of someone’s political legacy.