Antiquities Act: Five Things You Should Know

By Janelle DiLuccia posted 8 days ago

  

The latest issue of “Preservation Magazine” features an article about the recently designated Bears Ears National Monument, highlighting the tremendous cultural resources now protected as well as the immediate threats to the new monument. But Bears Ears is not alone among recently designated (and even longstanding) monuments that opponents seek to challenge, and the Antiquities Act itself is facing new uncertainties

BearsEars_CliffDwellers_cover_crDonaldJ_Rommes_mr.jpg

Cliff dwelling at sunset in Eastern Cedar Mesa, part of the Bears Ears National Monument. | Credit: Photo by Donald J. Rommes

Here are five things to know: 

1. The Antiquities Act doesn’t provide the president with the authority to undo monument designations.

The Antiquities Act is a short law—in fact, it was less than 500 words as enacted in 1906. It grants the president discretion to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments” (54 U.S.C. § 320301). 

In a recent "Washington Post" opinion piece, attorney Robert Rosenbaum explains that the president does not have explicit or implied legal authority to abolish national monuments. The Constitution, he points out, grants Congress the power to manage federal lands, and Congress has delegated to the president the authority to establish monuments that protect antiquities, but not the authority to undo those protections. Only Congress retains that power. President Franklin Roosevelt’s Attorney General Homer Cummings came to that conclusion in 1938, and Congress effectively incorporated his opinion in the Federal Land Policy and Management Act of 1976.

2. That doesn’t mean opponents won’t try.

In February Utah’s Republican governor, Gary Herbert, signed a resolution urging President Trump to rescind the Bears Ears National Monument designation. And on March 29, Senator Mike Lee, R-Utah, and House Natural Resources Committee Chairman Rob Bishop, R-Utah—both vocal critics of the Antiquities Act and the Bears Ears National Monument—spoke at a Capitol Hill event releasing a paper from John Yoo and Todd Gaziano. Yoo, a visiting scholar at the American Enterprise Institute, and Gaziano, executive director of the Pacific Legal Foundation, argue that the president does retain “a general discretionary power to revoke prior monument designations.” The paper is critical of the 1938 opinion and recommends a new attorney general examination of the question of presidential authority. To date, the Trump administration has not made substantive public comments on the issue.

3. New monuments involve substantial local input in management planning.

Designation as a national monument does not entail a standard set of rules or restrictions. Each monument proclamation is unique, and every monument goes through its own management planning process with opportunities for public input. The primary impact of monument designation is to focus management goals on protecting the resources outlined in the proclamation, replacing the broader, multiple-use approach to managing, for example, Bureau of Land Management (BLM) lands, which leaves the door open for activities like industrial resource extraction. Typically, uses of the land that don’t conflict with the monument’s purpose continue.

Take the Bears Ears designation, which protects one of the richest cultural landscapes in the nation and holds tremendous significance for Native American tribes in the region. The BLM and the Forest Service are charged with jointly developing a management plan with input from the public, tribes, and state and local governments.

Significantly, the monument designation established a Bears Ears Commission to ensure that management will reflect tribal input and traditional knowledge. The five sovereign tribes with ancestral ties to the area officially named their representatives to the commission on March 17, and the commission promptly invited Interior Secretary Ryan Zinke to discuss management priorities.

MarchBirmingham_0616_crMarkSandlin_mr.jpg
Exterior of the A.G. Gaston Motel, part of the Birmingham Civil Rights National Monument. | Credit: Photo by Mark Sandlin

4. National Monuments are popular.

Colorado College’s 2017 Conservation in the West poll found that 80 percent of Western voters support existing monument designations. Only 13 percent of respondents wanted to see designations removed. Even recent designations that are considered controversial—Bears Ears and Gold Butte National Monument in Nevada—enjoy much more support than opposition in their respective states. Utah respondents approved of the creation of Bears Ears by a margin of 15 percentage points. In Nevada, positive views on the designation of Gold Butte outweighed negative ones by 50 percentage points.

With national park visitation surging, monuments offer additional opportunities for visitors to explore public lands—as well as new opportunities to grow and diversify economies in nearby communities. Recently, the Department of the Interior highlighted several national monuments among its “21 Excellent Side Trips for Your Next National Park Visit.” The list suggests traveling the path of Lewis and Clark through the Upper Missouri Breaks and Pompeys Pillar national monuments in Montana, as well as exploring monuments with diverse historic and archaeological sites—Canyons of the Ancients in Colorado, Grand Canyon-Parashant in Arizona, and Mojave Trails in California.

5. Congress needs to hear from you.

The National Trust recently participated in a briefing attended by a large, bipartisan crowd of congressional staff. The Trust’s Deputy General Counsel Elizabeth Merritt joined speakers from the New Mexico Wildlife Federation, the Hispanic Federation, the Navajo Nations Council, and the Institute for Ocean Conservation Science at Stonybrook University to discuss the Antiquities Act. The briefing highlighted several recent national monuments that tell stories of our shared history, including the Birmingham Civil Rights National Monument in Alabama, Bears Ears, Pullman in Illinois, Organ Mountain-Desert Peaks in New Mexico, César E. Chávez in California, Stonewall in New York, and several marine monuments.

Don’t underestimate the value of engaging your elected officials in Congress. Constituent input helps shape the views of representatives, senators, and their staffs as they consider various bills that would weaken the Antiquities Act—for example, S. 33, S. 22/H.R. 243, and H.R. 2074.

Get involved by: 

  • Customizing and sending a letter to your senators and representative urging them to defend the Antiquities Act.
  • Calling your senators and representative to share your support for the Antiquities Act. The United States Capitol Switchboard at 202-224-3121 can connect you with the appropriate offices. 
  • For organization leaders, signing your organization on to our letter urging Congress to oppose any proposal that would weaken the Antiquities Act or previous monument designations.
  • Writing op-eds and letters to the editor. If there is a national monument in your state, consider writing an opinion piece in your local paper about its value to the local community and the role of the Antiquities Act in protecting cultural and historic resources. 

When advocating for the Antiquities Act, it may prove useful to know these fast facts:

  •  The act is highly bipartisan: eight Democrat and eight Republican presidents have designated national monuments for a total of more than 150 designations since the act was passed in 1906.
  • Many monuments have also been enlarged or modified, and very few have been abolished by Congress—less than a dozen and none since 1956. No president has ever revoked a monument designation. Separate from the Antiquities Act, Congress has established more than 40 national monuments through legislation.
  • More than 30 national parks and national historical parks—including Acadia, Zion, Denali, Olympic, Grand Canyon, and Joshua Tree—began as national monuments designated under the Antiquities Act.
  • Monuments range in size from less than an acre—Stonewall in New York and Birmingham Civil Rights in Alabama—to marine monument designations of more than 200 million acres. President Jimmy Carter established the largest land monument, Wrangell-St. Elias in Alaska. Congress subsequently made the 10 million–acre monument into a national park.
  • The National Park Service manages the most national monuments—more than 60—followed by BLM, which manages 25 in the West. Other agencies, including the U.S. Fish and Wildlife Service, the National Oceanic and Atmospheric Administration, and the Forest Service, also manage monuments.

Janelle DiLuccia is the associate director of public lands policy at the National Trust for Historic Preservation.

Permalink

Tag

  • Advocacy
  • Antiquities Act
  • National Monument
  • Public Lands

Comments