In recent months, the debate around national monuments has expanded to federal lands and monuments created on and within them. What are national monuments? Their function? The constitutionality of what presidents have been doing surrounding their designation? Legislation relating to their existence and their future?
What are National Monuments?
A national monument in the United States is a protected area, similar to a National Park. The difference is national monuments can be created from any land owned or controlled by the federal government via a Presidential proclamation through the power of the Antiquities Act of 1906.
Historically, some national monuments were managed by the War Department. Nowadays, national monuments are managed by one of any of the following federal agencies: the National Park Service, United States Forest Service, United States Fish and Wildlife Service or the Bureau of Land Management. Each agency has policies for safeguarding the land while also allowing some public use (like limits on mining, timber cutting and recreational activities such as riding off-road vehicles and camping).
The Antiquities Act gives the President the power to create national monuments for the purpose of protecting important natural, cultural or scientific features on federal lands. Throughout our history, presidents have used the act to designate 157 national monuments. Here is a map of the total acreage designated by past presidents:
This act was made in part as a response to the common practice of taking or destroying antiquities (looting) without permission in the west during the 20th century. The act allows for legitimate archaeological investigations and penalties for people who do not handle antiquities (think Native American artifacts) with the respect and care they deserve. President Theodore Roosevelt first used the act to declare Devils Tower in Wyoming as the first U.S. National Monument.
DevilsTower Photo by John Haig
In 1920, after issues with the size designation of the Grand Canyon, the US Supreme Court ruled unanimously the Grand Canyon was most certainly “an object of historic or scientific interest” – thus setting a precedent for the preservation of very large areas. Since then, federal courts have rejected every challenge to uses of Antiquities Act; continuously ruling the law gives the president “exclusive discretion” over the determination of size and nature of the objects protected.
Although there are current issues with these designations, it was not always viewed this way. When the West was much less populated, monuments helped stimulate local economies by attracting visitors to these remote or secluded areas. Popular geographical and historical features put many of these places on the map. However, as time went on, issues began to arise. Dwight T. Pitcaithley, former chief historian at the National Park Service, spoke about the gradual change; “But then the population fills in, and states’ rights [advocacy] rears its head, and people become concerned that for every park that’s created, it’s taking private taxable land and making it a public place”.
The Issue:
Many people have started viewing national monument designation as a type of “federal land grab”, ignoring the wishes of local residents. Critics of this idea state the land already belonged to the government or was under federal control and is being preserved because it is special and cannot be replaced.
So We Know the President Can Designate National Monuments, Can They Shrink Them?
Trump brought this issue to the forefront of everyone’s news feed for a solid few days in early December 2017. Through a Presidential Proclamation by way of the Antiquities Act, he diminished (the official term for shrinking the size of a monument) Utah’s Bears Ears and Grand Staircase Escalante monuments by about 1 million acres. This was swiftly followed by multiple lawsuits (Patagonia’s campaign gained a particular national spotlight). Courts, to this date, have not directly addressed whether or not shrinking monuments is covered in the Antiquities Act, but they have historically held up every single challenge to the use of the Presidential Proclamation for the creation of monuments.
Part of the Antiquities Act states “the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected” which has led some to believe diminishing is a power afforded to the president. Other’s believe diminishing monuments requires Congress. The Act only specifically limits the Secretary of the Interior in the amount they can modify existing protected areas, saying nothing about the President. Congress made a list of different areas where the executive branch is restricted from diminishment and didn’t include the Antiquities Act on that list. Here is paper defending the idea “that a general discretionary revocation power exists” arguing “the authority to execute a discretionary power includes the authority to reverse it.”
In contrast, this report by Alexandra M. Wyatt Legislative Attorney for the Congressional Research Service seems to agree with the theory that only Congress can diminish monuments after a presidential proclamation stating:
Once a President has proclaimed a national monument on federal land, later Presidents or Congresses may want to abolish, diminish, or otherwise change the monument. Congress has clear authority to do so, largely under the Property Clause of the U.S. Constitution, which provides that “Congress shall have Power to … make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Congress has used its authority to abolish or to remove acreage from national monuments on several occasions.
Regarding these several occasions of removal of acres, seven presidents have shrunk national monuments. In 1906, President William Howard Taft reduced the Navajo National Monument by nearly 90 percent, changing the monument to only cover exactly where the threats to cliff dwellings and other Native American antiquities existed.
In regards to what the president can do, the report states:
It appears that presidential authority may be more constrained. No President has ever abolished or revoked a national monument proclamation, so the existence or scope of any such authority has not been tested in courts. However, some legal analyses since at least the 1930s have concluded that the Antiquities Act, by its terms, does not authorize the President to repeal proclamations, and that the President also lacks implied authority to do so. Under this view, once a President has applied the Antiquities Act to protect objects of historic or scientific interest, only Congress can undo that protection. On the other hand, Presidents have deleted acres from national monuments, proclaiming that the deleted acres do not meet the Antiquities Act’s standard that the protected area be the “smallest area compatible with the proper care and management of the objects to be protected.” Presidents also can modify the management of national monuments, although the outer boundaries of this authority, too, appear to be untested.
The Bills.
Here is a map of the current bills around the US having to do with National Monuments:
- Specific authorization by an Act of Congress
- Approval by the state legislature, and for marine monuments, approval by each state legislature within 100 miles of the proposed monument
- Certification of compliance with the National Environmental Policy Act
U.S. Sen. Lisa Murkowski, a sponsor of the bill, said
“President Obama has locked up more acres through monument designations than the previous 18 presidents combined. His unilateral withdrawals have routinely come with complete disregard for local concerns and opposition, threatening energy, mining, fishing, ranching, recreation, and other reasonable uses of public land and waters. At this point, we have no choice but to reform the Antiquities Act to ensure that the people being impacted by these designations are heard and respected.”
Following this bill, there is US HR3990, the National Monument Creation and Protection Act. This bill amends the Antiquities Act to allow the President to declare by public proclamation an object or objects of antiquity (currently, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest) that are situated on lands owned or controlled by the federal government to be national monuments. “Objects of antiquity” means relics, artifacts, human or animal skeletal remains, fossils, and certain buildings constructed before enactment of this bill.
The bill places limits on land that may be declared to be a national monument based on acreage, proximity to other national monuments, whether it has been reviewed by the Department of the Interior or Agriculture (USDA) under the National Environmental Policy Act and whether it has been approved by each county and state within whose boundaries it will be located.
Colorado adopted HR1011 stating “Colorado’s national monuments play an important role in protecting our natural and cultural resources, supporting local and regional economies, and guaranteeing our world-renowned outdoor quality of life”. The bill also goes on to outline how in 2016, the state’s Dinosaur National Monument has created more than $20 million in economic benefits to nearby communities and that recent polls indicate approximately 83% of the residents of Colorado support keeping in place protections for national monuments like Canyons of the Ancients National Monument. Finally, the bill states “all national monuments in Colorado are important to the State’s interests and none should be revoked nor diminished.”
AZ HB2585 covers the justification and litigation surrounding national monuments; detailing reports which need to be filed and “determining whether the limits of a parcel comprising a national monument in this state are confined to the smallest area compatible with the proper care and management of the objects to be protected by the national monument.” Alaska proposed a bill aimed to limit the declaration of national monuments, requiring under the Improved National Monument Designation Process Act, that the President of the United States cannot establish a national monument unless it is approved by the United States Congress.
There were also bills aimed at the protection of wildlife, like humpback whales and bobcats, and expanding some of the national monuments we have all grown to love like the Red Woods. A US bill wanted to establish the Gold Butte National Conservation Area, while a Nevada bill urged Congress to abolish the Gold Butte National Monument. New Jersey also had a bill recognizing the 100th anniversary of National Park Service on August 25, 2016, which no matter your opinion about the current issues is pretty cool. Happy Birthday National Parks!
Concluding Thoughts.
When it comes down to examining the legality and constitutionality of diminishing monuments, the legal justification for a significant cutback leaves me in doubt simply because there is no historical context or concrete laws or principles. As a Coloradan and a lover of the outdoors, I can’t help but feel my heart break when I think about the possible amazing gifts we have from nature and history not being protected like they deserve.
When economic arguments are presented, they do make me take a second look at the issue. It does make sense to me to ensure monuments are protecting the land they are made to protect and not inconveniencing residents to the states they are in, but I don’t know where the line is drawn between what is “necessary” to protect and what can go without protection because of possible economic opportunity on the land (ie mining or oil and gas).
When my opinions and beliefs come down to it, Will Shafroth the CEO of the National Park Foundation and grandson of Colorado U.S. House Rep. John Shafroth, sums up the importance of the Antiquities Act in a way which resonates with me: “It’s a tool that Presidents can use to set aside something special for the country for future generations.”
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