The Future of the Antiquities Act and Bears Ears

The Future of the Antiquities Act and Bears Ears- Part I

Author: Seth Todd, 3L Member

In 1906 the world saw the first featured film, the forward pass legalized in football, and the signing of the Antiquities Act. All three have stood the test of time, and are still current staples in society today. This blog is the first part of a three-part series concerning the recent actions taken by President Trump to reduce the size of the Bears Ears Monument in Utah. This first blog will lay the foundation for what the Antiquities Act is, followed by blogs showing the standing for those for and against the President’s reduction of Bears Ears.

The Antiquities Act was signed by President Roosevelt in 1906 to prevent the destruction and looting of ancient Indian artifacts.[1] The Antiquities Act states,

“That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected”[2]

16 Presidents have created 157 national monuments using the Antiquities Act, such as the Grand Canyon and the Statute of Liberty.[3] There is no formal way for the President to create a national monument, the statute simply references a “public proclamation” made by the President.  The authority for the President’s discretional designation of the monuments comes from the delegation powers granted to Congress. While the original purpose may be to protect Indian artifacts, in Cappaert v. United States the court held that the Antiquities Act could be used to protect ecosystems and scenic vistas. [4]

While past presidents use of the Antiquities Act has been challenged in the courts, if the question is whether the president abused his discretion then the court can typically only look at whether the President’s power under the Antiquities Act was indeed used. [5] The court is not allowed to go any further in establishing whether the President abused such his discretion. [6] Several other aspects of the Antiquities Act may be challenged, but I bring up the President’s use of discretion because it may come into play in ongoing litigation over Bears Ears.

The President’s use of discretion may arise if it is deemed that the President does have the power to withdraw lands from federal protection, which is the case for Bears Ears. The Antiquities Act only speaks of the President’s ability to create national monuments, it never touches upon if he can remove them. This will be examined in greater detail in the following blogs, as there are two camps regarding whether or not the President can remove land from federal protection without an act of Congress. Those for the President being able to remove land site the ability of the President to overturn/withdraw previous president’s executive orders, proclamations, etc. [7] Those opposing President Trump’s actions point directly to the statute, where no mention of the diminishing a national monument is mentioned. Opposition also points to the Federal Land Policy and Management Act of 1976, which places limits on the modification of national monuments. [8] These issues will be addressed in further detail in blogs to come, but it is important to recognize these arguments at the outset to set the stage.

While the Bears Ears issue is important in its own right, the impending judicial review may set the stage for future presidents to come, or push Congress to revise the Antiquities Act all together. Congress could amend the Antiquities Act to allow for the removal of land from federal management by the act of the President, or repeal the Antiquities Act all together to allow for full Congressional control over the designation of federal lands.

Be on the lookout for the next blog, where I will discuss the opposition’s arguments to Bears Ears, and why many people think the President overstepped his bounds when diminishing the size of the national monument created by President Obama.

[1] Tatiana Schlossberg, What Is the Antiquities Act and Why Does President Trump Want to Change It?, The New York Times, April 26, 2017,  https://www.nytimes.com/2017/04/26/climate/antiquities-act-federal-lands-donald-trump.html.

[2] 16 U.S.C. §§ 431-433 (1906)

[3] National Parks Conservation Association, Monuments Protected Under the Antiquities Act, https://www.npca.org/resources/2658-monuments-protected-under-the-antiquities-act (last visited Feb. 19, 2018)

[4] Cappaert v. United States, 426 U.S. 128 (1976).

[5] Utah Ass'n of Counties v. Bush, 316 F. Supp. 2d 1172 (D. Utah 2004).

[6] Id.

[7] Pamela Baldwin, Cong. Research Serv., CRS Report for Congress, Authority of a President to Modify or Eliminate a National Monument (2000), available at http://congressionalresearch.com/RS20647/document.php?study=Authority+of+a+President+to+Modify+or+Eliminate+a+National+Monument.  

[8] John Hudak, President Trump has the power to shrink national monuments, Brookings (Dec. 7, 2017), https://www.brookings.edu/blog/fixgov/2017/12/07/president-trump-has-the-power-to-shrink-national-monuments/ (last visited Feb. 19, 2018).