On the Hill: Bill to Overhaul the Antiquities Act Moves Forward in the House, Tax Reform Update

By Janelle DiLuccia posted 11-02-2017 15:20


Update (12/20/2017): After more than five years of consistent advocacy, the National Trust for Historic Preservation, together with our partners at the National Trust Community Investment Corporation and the Historic Tax Credit Coalition, is pleased to report that the 20 percent historic tax credit (HTC) has survived the most significant rewrite of the tax code in more than 30 years. Congress has confirmed once again that incentivizing the rehabilitation of our historic buildings makes good economic sense.  Read More

Editor's Note: 
We have updated our recent piece on the current critical moment regarding the protection of the federal historic tax credit (HTC). Today the House Ways and Means Committee released a tax reform bill that eliminates the federal HTC. The bill language is not surprising—it reflects the guidance of an outline for tax reform that the “Big Six” released five weeks ago—but now is the time for the preservation community to show our strength if we are to save this vital preservation tool. Join us in urging lawmakers—in both the House and Senate—to include the HTC in final reform legislation. Call and write your members of Congress today to show your support for the HTC.

Legislation to rewrite the Antiquities Act took a step forward in the House of Representatives in October when the House Natural Resources Committee voted 23 to 17 to advance the National Monument Creation and Protection Act (H.R. 3990). Contrary to its name, this bill would make it more difficult for a president to create a national monument and much easier to reduce or eliminate one. But committee approval is just one step in the process; fortunately, there is still time to defeat this and other bills hostile to the Antiquities Act. 

President Theodore Roosevelt first designated the Grand Canyon a national monument under the Antiquities Act in 1908. At 808,120 acres, this monument could not have been designated under the provisions of H.R. 3990. | Credit: Jonathan Poston


The Legacy of Preservation on Public Lands 

For more than a century, the Antiquities Act has empowered presidents to protect nationally significant examples of our shared American heritage by designating national monuments on existing federal lands. Beginning with Theodore Roosevelt in 1906, 16 presidents—eight Republicans and eight Democrats—have used this authority to establish more than 150 national monuments. 

The Antiquities Act protects a diverse array of historic, prehistoric, and other features on public lands, including natural wonders like Devil’s Tower and built structures like President Lincoln’s Cottage. Monument designations have ranged in size from less than an acre, like the recently designated Birmingham Civil Rights National Monument, to the more than 10 million acres that President Jimmy Carter designated as the Wrangell-St. Elias National Monument (now a national park and preserve), to even-larger-scale marine national monuments. More than 30 national parks and eight World Heritage Sites were first national monuments, including Chaco Culture National Historical Park and the Grand Canyon

Despite its legacy, this foundational preservation law continues to face threats from the administration and Congress. The National Trust is continuing to fight for our national monuments in the face of Interior Secretary Ryan Zinke’s recommendations to shrink several of them. We also submitted testimony opposing H.R. 3990.   

National Monument Creation and Protection Act (H.R. 3990) 

H.R. 3990 would significantly limit the types of resources that could be protected; cap the size of monuments for the first time; and give local and state officials—and, in some cases, private individuals—unprecedented decision-making authority about public lands that belong to all Americans. It would also create new authority for the president to reduce the size of or eliminate existing national monuments. Any one of these policies would significantly undermine the Antiquities Act; as a whole, H.R. 3990 would largely dismantle this key tool for protecting our nation’s most historic places. 

H.R. 3990 would:

  • Limit what can be protected. If H.R. 3990 were enacted, a president could only designate national monuments to protect specific relics, artifacts, human or animal skeletal remains, fossils, and certain buildings. The bill strikes “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” from the law and specifically excludes natural geographic features. 

Why does this matter?

Narrowing the scope of the types of objects that may be protected curtails the ability to protect many sites, natural features, and landscapes that reflect our diverse history. The very first national monument, Devil’s Tower, has profound historic significance, yet it would not have qualified for a monument designation under this revised standard.

  • Cap the size of national monuments. H.R. 3990 would replace the Antiquities Act’s guiding principle of designating the “smallest area compatible with the proper care and management of the objects to be protected” with an overall cap of 85,000 acres.

Why does this matter?

At many national monuments, the historic significance of the objects being protected is best understood in the context of the landscape and setting. This size restriction would prohibit monuments that preserve intact cultural landscapes—like Bears Ears National Monument, which is 1.35 million acres large. Archaeologists estimate that Bears Ears includes more than 100,000 historic and prehistoric sites, structures, and other objects across a broad area that is sacred to many tribes.

This size restriction would have also prevented President Theodore Roosevelt from designating the Grand Canyon National Monument (808,120 acres) in 1908.

Chaco Canyon was first protected under the Antiquities Act in 1907. | Credit: W. Tyson Joye

  • Require new environmental review. For all but the smallest monuments (less than 640 acres), H.R. 3990 would require review under the National Environmental Policy Act (NEPA) prior to designation.

 Why does this matter?

NEPA requires federal agencies to evaluate the environmental impacts of their actions and consider reasonable alternatives. Its application to a discretionary presidential decision aimed at preservation is unprecedented. The agencies that manage the national monuments are already subject to the requirements of NEPA.

  • Allow counties and states to effectively veto a monument. For national monuments between 10,000 and 85,000 acres in size, H.R. 3990 would require approval from all county-level elected governments, state legislatures, and governors of the state(s) where the monuments lie prior to designation. Absent formal approval from each of these entities, a president could not designate a monument.

Why does this matter? 

National monument designations often follow years of consultation and engagement with a diverse range of stakeholders, including Native American tribes, state and federal elected officials, conservation and preservation organizations, and the public. The provisions in H.R. 3990 go well beyond ensuring local input—which is valuable and already legally mandated in management of our public lands—to effectively providing veto power to local and state governments over the management of public lands that belong to all Americans.

  • Create new authority to reduce the size of existing national monuments. H.R. 3990 gives the president new authority to reduce the size of designated national monuments by up to 85,000 acres—or, with local county- and state-level approval, by any amount.

 Why does this matter? 

The Antiquities Act was enacted to ensure the preservation of historic and prehistoric objects for future generations. Congress gave the president authority to designate monuments, not to undo them. Providing explicit authority to reduce monuments would undermine the long-term certainty and protections of designations under the Antiquities Act.

  • Remove the authority to designate marine national monuments. H.R. 3990 excludes submerged lands from being protected under the Antiquities Act, restricting presidential authority to establish marine national monuments.

Why does this matter? 

Resources should not be ineligible for protections simply because they are located on submerged lands. Under the provisions of H.R. 3990, former President George W. Bush could not have designated Papahānaumokuākea Marine National Monument, which protects native Hawaiian sacred sites, resources from 19th-century commercial whaling operations, and historic resources from the Battle of Midway. These are exactly the types of resources that the Antiquities Act was intended to protect.

The cultural landscapes and other places protected through the Antiquities Act help tell the full story of this nation in ways that cannot be adequately conveyed in a book or classroom. To ensure that this important preservation tool can continue to protect new and diverse places, join us in telling Congress to reject H.R. 3990. 

Take Action

  • Customize and send a letter to your senators and representative urging them to defend the Antiquities Act.
  • Call 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, sign your organization on to our letter urging Congress to oppose any proposal that would weaken the Antiquities Act or previous monument designations. 

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