There is no question that an Act of Congress can eliminate, shrink, or weaken a national monument proclaimed by a president pursuant to authority granted by Congress. What Congress giveth, Congress can taketh away. The property clause of the U.S. Constitution (Article 4, Section 3, Clause 2) ensures that. Yet in fifty-five Congresses over the past 110 years, Congress has rarely acted to eliminate, reduce, or weaken a national monument proclamation by a president.
Past Congressional Actions on Monuments
Congress has eliminated a few national monuments. Some it has abolished, but most it has elevated to national park status. In fact, twenty-six of America’s fifty-nine national parks were based on national monuments (Arches, Acadia, Black Canyon of the Gunnison, Bryce Canyon, Capitol Reef, Carlsbad Caverns, Channel Islands, Death Valley, Denali, Dry Tortugas, Gates of the Arctic, Glacier Bay, Grand Canyon, Grand Teton, Great Basin, Great Sand Dunes, Katmai, Kenai Fjords, Kobuk Valley, Lake Clark, Lassen Volcanic, Olympic, Pinnacles, Saguaro, Wrangell–St. Elias, and Zion, but who’s counting?).
In a few cases, Congress has legislatively established national monuments, such as the Santa Rosa and San Jacinto Mountains National Monument in 2000. In two cases (Mount St. Helens in Washington and Newberry in Oregon), Congress has legislated national monuments on Forest Service land called national volcanic monuments to distinguish them from national monuments.
In 1933 President Franklin Roosevelt, by executive order, transferred jurisdiction of all national monuments to the National Park Service. Until then, some were under the control of the Forest Service, the Army, and other agencies. From 1933 to 1978, anything called a national monument was administered by the National Park Service (NPS) as part of the National Park System. In 1978, President Carter proclaimed seventeen national monuments in Alaska—fourteen under the National Park Service, two under the Fish and Wildlife Service (FWS), and one under the Forest Service (USFS).
In 1996 Interior Secretary Bruce Babbitt persuaded President Clinton to proclaim the Grand Staircase–Escalante National Monument on Bureau of Land Management holdings and to keep the monument under BLM control. Today, national monuments are administered by the BLM, the NPS, the FWS, and the USFS; marine national monuments are administered the National Oceanic and Atmospheric Administration.
In the case of Wyoming and Alaska, in exchange for one or more national monuments becoming one or more national parks, Congress revoked its grants of authority to the president to proclaim national monuments in those two states. In Wyoming in 1950, a grand bargain expanded Grand Teton National Park (est. 1929) to include Jackson Hole National Monument and revoked the power granted to the president to proclaim additional national monuments within the state. Similarly, in the Alaska National Interest Lands Act of 1980, Congress elevated President Carter’s seventeen national monuments proclaimed two years before (totaling 78 million acres) to national park status, but in exchange limited the authority for a president to ever again proclaim national monuments in the nation’s largest state.
Three Monumental Cases
National monuments proclaimed by presidents, while always popular at the national level, have most of the time been controversial locally. For every time there has been local support—if not local instigation—for the president to proclaim a national monument, there have been many more times when locals have been in fierce opposition.
In the first half-century of the application of the Antiquities Act, the “local” opposition often was statewide (or territory-wide). Today, “local” opposition is more likely to arise in the county in which the national monument has been proclaimed, or it comes from federal elected officials whose base includes anti-monument constituents.
Consider the cases of three national monuments in the states of Maine, Utah, and Oregon (and California) created during the waning days of the Obama administration.
In Maine, the Katahdin Woods and Waters National Monument (a down-payment on a proposed Maine Woods National Monument) was proclaimed by the president on August 24, 2016 with a size of ~87,500 acres. While there was broad support throughout Maine, and even very vocal business support within the affected county, the Maine congressional delegation was split. Senator Susan Collins (R-ME) was in opposition, as was Representative Bruce Poliquin (R-2nd-ME). Senator Angus King (I-ME, who caucuses with the Democrats) and Representative Chellie Pingree (D-1st-ME) were in support. Governor Paul LePage (R) was opposed.
In Utah, the Bears Ears National Monument was proclaimed by the president on December 28, 2016, with a size of ~1,350,000 acres. While polling showed broad support throughout Utah, the opposition was strenuous and vociferous from the entire Utah congressional delegation—Senators Orin Hatch (R-UT) and Mike Lee (R-UT), along with Representatives Rod Bishop (R-1st-UT), Christ Stewart (R-2nd-UT), Jason Chaffetz (R-3rd-UT), and Mia Love (R-4th-UT)—as well as Governor Gary Herbert (R) and the Republican majority in the Utah Legislature.
In Oregon and California, a ~48,000-acre addition to the Cascade-Siskiyou National Monument was proclaimed by the president on January 12, 2017 (~5,000 acres in CA). U.S. Senators Ron Wyden (D-OR) and Jeff Merkley (D-OR) were strong and persuasive advocates for Obama to proclaim as he did. The monument and its expansion are located in the districts of Representatives Greg Walden (R-2nd-OR) and Doug LaMalfa (R-1st-CA), both of whom opposed the expansion. Governor Kate Brown (D) was in support.
The monument and expansion is within Oregon House District 5 and Oregon Senate District 3. During the period of most of the political consideration in 2016, the seats were held by Representative Peter Buckley (D-5-OR) and Senator Alan Bates (D-3-OR), both of whom supported monument expansion. Bates’s untimely death in August 2016 resulted in a caretaker senator who didn’t seek election that November. Buckley’s successor, Representative Pam Marsh (D-5-OR), strongly supported monument expansion while seeking election to that office and as a member of the Ashland City Council. Senator Alan DeBoer (R-3-OR), elected in November 2016, took no public position on the monument expansion.
The Jackson County, Oregon, Board of Commissioners (all three are Republicans) was in opposition, but the city councils of the two closest cities, Ashland and Talent, were in support. The Klamath County, Oregon, Board of Commissioners and the Siskiyou County, California, Board of Supervisors were also in opposition (the offices are officially nonpartisan, but if any were to seek higher office, they would likely run as Republicans).
Did you spot the divide in the three monumental cases? Democrats support and Republicans oppose. Very sad.
Bills to Neuter the Antiquities Act
So far in the 115th Congress (2017–18), three bills to neuter the Antiquities Act of 1906 have been introduced:
· S.33, Improved National Monument Designation Process Act, to provide for congressional approval of national monuments and restrictions on the use of national monuments, to establish requirements for the declaration of marine national monuments, and for other purposes, introduced by Senator Lisa Murkowski (R-AK) and twenty-seven cosponsors (all Republicans)
· S.132, National Monument Designation Transparency and Accountability Act of 2017, to amend title 54, United States Code, to provide for congressional and State approval of national monuments and restrictions on the use of national monuments, introduced by Senator Mike Crapo (R-ID) and five cosponsors (all Republicans)
· H.R.1489, Marine Access and State Transparency (MAST) Act, to amend title 54, United States Code, to provide for congressional approval of national monuments and restrictions on the use of national monuments, to establish requirements for declaration of marine national monuments, and for other purposes, introduced by Representative Don Young (R-at large-AK) with no cosponsors
All three bills would require that before a president could proclaim a national monument, there must be prior congressional approval, a National Environmental Policy Act process, and state or territorial legislature approval. Let’s break that down.
· Prior congressional approval. It would take an Act of Congress (signed by the president) authorizing the president to establish a particular national monument before the president could do so. If the votes are in Congress to protect an area for this and future generations, Congress will just do that and take the credit themselves. It may be called a national monument, or a wilderness, wild and scenic river, national recreation area, national scenic area, national park, or what have you.
· National Environmental Policy Act process. NEPA does not apply to actions by the president. The environmental review and public participation requirements of the law would have to be fulfilled before a president could proclaim a national monument. Ironically, most of the supporters of these bills also support bills to limit or eliminate NEPA compliance for other activities on public lands, such as mining, logging, and grazing.
· State or territorial legislature approval. Before a president could proclaim a national monument, the approval of the affected state legislature by legislation (which must be signed by the governor) would be required. In the case of national monuments to be proclaimed in the U.S. Exclusive Economic Zone (EEZ), if within 100 nautical miles (200 miles for H.R.1489) of a state or territory, the approval of that legislative body would be required before presidential proclamation.
In addition, S.33 and H.R.1489 would prevent any restrictions of uses in a national monument in the EEZ without public input and “congressional approval” (yet another Act of Congress). This provision would apply to existing and new marine national monuments. S.132 would go even further and apply this to all national monuments, previously proclaimed or if proclaimed after the bill is enacted into law.
Why Neutering the Antiquities Act Is a Bad Idea
Any and all of these provisions would be the death knell to presidential proclamation of new national monuments in states (or oceans) with hostile legislatures or congressional delegations in opposition. It is nearly impossible to “roll” a senator or representative regarding public land management for an area specific to his or her state or congressional district. It would be more intellectually honest to simply introduce legislation to repeal the Antiquities Act of 1906.
Presidents, being the only officials elected by the entire nation, can take the long view and the large view of what is in the national interest. It’s no surprise most monument proclamations come during second terms, when presidents know they will never have to seek election again and so can focus on their place in history.
In many cases—when its application is controversial—the Antiquities Act has been a way for the long-term national interest to prevail over short-term economic interests. Many national monuments have initially been highly controversial locally. After a generation or so, this opposition has faded and turned to support as the local area has moved on (or opponents have died) and has seen the economic benefits of national monument designation.
The Bishop Test
Not that it is, but if it is a good idea today to limit the power granted to the president by Congress in the Antiquities Act to proclaim national monuments, then it was always a good idea and should be applied retrospectively. I would ask those hostile to new national monuments if they favor the abolition of all national monuments.
Let’s subject previous national monuments to a test, which we shall call the Bishop Test, in dishonor of Representative Rod Bishop (R-2nd-UT), the current chair of the Committee on Natural Resources of the U.S. House of Representatives. If Antiquities Act language that Bishop wants today were in statute back then, almost all national monuments beloved today would not exist.
Do tell us, Representative Bishop: Which national monuments do you favor abolishing? Be specific. And you can’t just include those proclaimed by presidents who last names start with the letter “O”.
[A Monumental Battle, Part 1: National Monuments in the Courts addresses efforts to eliminate, shrink, or weaken national monuments proclaimed by a previous president.]