“The President may, in the President’s discretion, 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.” Antiquities Act 54 U.S.C.A. § 320301(a)
On May 5th, the Department of the Interior announced a public comment period for specific National Monuments which are currently under review. Public comment periods are not required for National Monument designations, making this the first chance for a formal comment on the designations. This public comment period stems from Executive Order 13792, which requires Secretary of the Interior Ryan Zinke to review several National Monument designations and expansions from the last twenty years. The Order then instructs Secretary Zinke to provide a final report to the President with recommendations for actions. The scope of the review reflects the stated concern and instructs Secretary Zinke to consider whether each specific Monument complies with the purpose of the Act, are appropriately classified under the Act, and how their designation has affected land management, private land use, and local concerns. The full review requirements can be found in Further Reading at the bottom of this post.
Upper Missouri River Breaks National Monument
“The President may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Antiquities Act 54 U.S.C.A. § 320301(b)
The stated reason for the Order is that National Monuments have a large impact on federal lands and when created without sufficient public input may “also create barriers to achieving energy independence, restrict public access to and use of Federal lands, burden State, tribal, and local governments, and otherwise curtail economic growth.” The skeptical reader will no doubt notice that the concerns are book-ended by oil and gas drilling euphemisms “achieving energy independence” and “economic growth”. This is where the strongest conflict lays in this review process. A brief overview of National Monuments and the Antiquities Act can help explain why.
Gold Butte National Monument
The Antiquities Act was signed in-to law by President Roosevelt in 1906 and was conceived as a comprehensive law intended to preserve ruins and other items of cultural significance on public lands. Additionally, the Act has been used to preserve natural landscapes since the designation of the Grand Canyon National Monument just two years after the signing of the Act. National Monuments are diverse designations ranging from the Statue of Liberty to Grand Staircase-Escalante. However, since the current review focuses on proclamations and expansions of at least 100,000 acres, we will limit this discussion to larger Monuments. The Monuments may be managed by the National Park Service, the Forest Service, Fish and Wildlife Service, or the Bureau of Land Management. The Antiquities Act is unique in that it allows the President to make designations, as opposed to Congress. The Act is also exempt from the National Environmental Policy Act, the foremost procedural environmental law. This allows the President to swiftly, and singularly, designate lands. But what protections does that designation offer?
Bears Ears National Monument
The answer is that the protections each National Monument is granted differ. The goal is to protect the objects described in the Monument proclamation, whether the objects are historical or natural in character. Management provisions may be prescribed by the President in the proclamation, or later by agency management plans and policies. For example, the proclamation for Grand Staircase-Escalante National Monument explicitly allows for continued grazing, the proclamation for Giant Sequoia explicitly prohibits future timber harvesting, and the proclamation for Katahdin Woods and Waters allows for snowmobile use and hunting in certain areas. However, what all National Monuments have in common is increased preservation and management. Additionally, they almost all include this language:
All Federal lands and interests in lands within the boundaries described on the accompanying map are hereby appropriated and withdrawn from all forms of entry, location, selection, sale, or other disposition under the public land laws, from location, entry, and patent under the mining laws, and from disposition under all laws relating to mineral and geothermal leasing.
While it is hard to describe exactly what changes when land is designated a National Monument, it can be summarized as such:
- All steps are made with the purpose of protecting the resources set forth in the proclamation
- Continuation of pre-existing rights (leases already in effect may run their course)
- Prohibition of future oil and gas leasing
- Increased management planning and on-the-ground management
- Increased visitation
- Restrictions on motorized vehicle use and potentially other forms of recreation
The Antiquities Act provides certain protections to significant landscapes, monuments, and ruins with the stroke of the President’s pen. There is no Congressional review or formal public comment required. This process is perceived by many as too much power for the President to have, and this is not the first time the Antiquities Act has come under attack. Lawsuits have previously challenged the Antiquities Act as unconstitutional and failed. With the recent controversial declaration of Bears Ears and the fact that the review only reaches as far back as Grand Staircase-Escalante, this current battle seems to focus more on oil and gas development than congressional delegation. While the review process brings up important questions about local input and public involvement, it is being widely perceived by many in the environmental movement as a ploy to repeal some Monuments’ protections in order to open up more oil and gas development. However, oil and gas development is often closely tied to local interests and certain factions have not been shy about their feelings that outside interests have taken away potential economic development from their area. What effect this may have on outdoor recreation and what those who are concerned can do will be covered in “Pt. 2- Outdoor Recreation in the National Monuments” on Friday, May 12th. Stay tuned.
Executive Order 13972: https://www.gpo.gov/fdsys/pkg/FR-2017-05-01/pdf/2017-08908.pdf
Dept. of Interior Press Release: https://www.doi.gov/pressreleases/interior-department-releases-list-monuments-under-review-announces-first-ever-formal
National Monuments and Antiquity Act Summary: https://fas.org/sgp/crs/misc/R41330.pdf
Utah Association of Counties v. Bush (challenging the Grand Staircase-Escalante proclamation): https://www.courtlistener.com/opinion/2578208/utah-assn-of-counties-v-bush/
Mountain State Legal Foundation v. Bush (challenging several President Clinton’s proclamations): http://openjurist.org/306/f3d/1132/mountain-states-legal-foundation-v-w-bush
NPR Article on Bears Ears and the National Monument Review: http://www.npr.org/2017/05/05/526860725/with-national-monuments-under-review-bears-ears-is-focus-of-fierce-debate