The Antiquities Act - Preservation without Representation

NOTE: In April, 2013 the following article appeared in Frank DuBois’ The Westerner. The article was pertinent to the concern of the pending threat of an Executive Order by the president to unilaterally designate 600,000 acres of Dona Ana County, New Mexico as a national monument. That threat came to fruition on May 21, 2014 when President Obama did exactly that. A postscript is now in order.

What’s good for the Goose ain’t for the Gander

The Antiquities Act

Preservation without Representation

By Stephen L. Wilmeth

            New Mexico wasn’t the ideal candidate for admission into the lofty social realm of the United States.

            Much trepidation ensued before statehood was granted in 1912. There was concern the territory’s lower caste society was incapable of governing itself. After all, it was made up of remnant Native Americans, Mexican peons, known outlaws, unkempt townsfolk, suspect drifters, and migrant Texans.

            In order to assure Congress it was grounded, the enabling legislation set aside lands for the sole purpose of educating its uncouth youth. Sections 2, 16, 32, and 36 of each Township were deeded to the state for the purpose of revenue generation for educational funding. That checkerboard administrative nightmare set the stage for government dominion that was never checked.

            It only got worse when the federal government abrogated its Constitutional responsibility to dispose of lands within the states for the purpose of debt reduction and stimulating the economy.

            Environmentalism cometh 

The environmental movement isn’t new.

            It appeared years ago when society provided enough leisure dole to allow the pursuit of scientific reviews. The phenomenon occurred in earnest in the 1880’s. That is when the literature began forewarning that bureaucrats and the academic community were becoming concerned about the loss of ‘antiquities’ on public lands.

            The movement grew roots when President Benjamin Harrison established the first timberland reserves under the General Land Office (GLO). The voice in the American wilderness at that time was Dr. Thomas Wilson who collaborated with an Interior attorney to convince a congressman he held the key for preserving arrowheads and pottery shards.

            Unbeknownst to the professor, the GLO had its own idea about preserving such sites. Disappointing to them, many of those lands weren’t under their 46 million acre forest purview. All they could do was to convince Congress to create a national park (Yellowstone had been created in 1872).

            The problem was that path was an agonizingly slow, unwieldy process. In order to save those features ‘before they were lost’, something more nimble had to be created.

            The GLO Commissioners, Binger Hermann and his successor, W.A. Richards, conceived the idea of getting Congress to give the president a tool to fast track that protection into their authority.

            In February, 1900 the first legislative attempt was made. Problems arose. Westerners didn’t agree those special places were so important and they didn’t want to give the president authority to act on parcels of land that exceeded 320 acres. They sent a clear signal. Any lands considered for preservation over a half section would be debated in Congress.

            The next hurdle arose when Gifford Pinchot, in a similar agency manipulation, convinced Congress to move all the forest reserves to the Department of Agriculture. The empire builders over at Interior lost their inside opportunity to put the United States into the cultural preservation business.

            Enter the next golden haired environmental planner. His name was Edgar Lee Hewett. Hewett was an archeologist. He recognized the stumbling block created by the parcel sizes. He addressed the issue by crafting wording that all such designations “shall be confined to the smallest area compatible with the proper care and management of the objects.”

            John Lacey of Iowa was sought to carry the bill. Lacey convinced the skeptical westerners that the purpose of the bill was “to preserve these old objects … the cave dwellers and the cliff dwellers.” With his influence, the Antiquities Act was passed in June, 1906.

            Four months later the very promise Lacey had made was breached when Teddy Roosevelt used his new authority naming Devils Tower in northeastern Wyoming as the nation’s first monument.

            Preservation without Representation

            John Lacey stands out in the preservation annals as the archetype of leaders who have no hint of the meaning of states’ rights. He was willing to make landmark land designation decisions just as long as it didn’t impact his state. By the time a national monument was designated in Iowa, 83 other national monuments were created by his legislation. He never suggested or backed a single designation in his own backyard.

            The precedent was set in the West. Three states caught most of the Roosevelt attention. They were California, Arizona, and New Mexico.

            The willingness of California to endure constitutional perversion by the President remains a matter of historical curiosity, but the ability of Arizona and New Mexico to defend themselves was another matter. They didn’t have congressional representation. They were not yet extended statehood. Congress was still debating the wisdom of inviting that society of smelly aborigines and ne’er-do-wells to the union!

            The practice of preservation without representation was discovered. It continues today.

            Roosevelt opened the floodgates and ignored any notion of the promise of ‘smallest area compatible with proper care’. In a tiff with Congress, he boldly converted 800,000 acres of the Grand Canyon into a national monument in 1908. He used the excuse of scientific value in the act as his authority. Arizona watched incredulously without any congressional defense.

            There was a firestorm of western response, but no legislative action was taken. The damage was done. The breach had been created and precedent had been set.

Noting that, Roosevelt expanded the breach by proclaiming 615,000 acres of Washington’s Olympic Peninsula as Mount Olympus National Monument. Unlike the domination of tourism at the Grand Canyon, that monument had protesters in the form of mining and timber interests. They were the Americans who coined the term “lock-up” when referring to federal land grabs.

They continued to object to the size and scope of the land grab into the Wilson administration, but that new age progressive aided in the expanding assault by refusing to challenge the actions taken by his predecessor. In affect, he blessed the actions and initiated a fraternity courtesy toward administrative fiat on matters of what we must now describe as presidential environmental dabbling … the pass time of executive privilege.

In the history of the Antiquities Act, there is a common theme. As the distance increases away from the original 13 colonies, presidents tend to get bolder and schemes get grander. With recent Obama designations, seven of the original colonies now have a monument.  There are 11 Antiquity monuments in those states, and, without exception, they fit the model of ‘smallest area compatible with proper care …” They comprise forts, a canal, Edison’s lab, an ‘African’ burial ground, Governors Island Castle, Father Millet’s cross, and, most recently, an underground railroad. There is not a single grand land scheme.

On the other hand, five states out west are impacted by 60% of the designations. Alaska, California, Arizona, Utah, and New Mexico together have 80 of these Antiquity wonders.  New Mexico emerged as the state with the most examples of what John Lacey promised about the preservation of “those old cliff dwellers …”

Alaska has endured the greatest burden of the land based designations. After Congress adjourned in 1978, Jimmy Carter used his authority to ‘lock-up’ over 56 million acres of Alaska in 15 separate monument designations. Those lands were set to be offered back to the state for the purpose of homesteading and other claims. In time honored fashion, the secretary of Interior, in this case Cecil Andrus, convinced Carter he had to save those lands from the scourge of the citizenry.

Rightfully, Alaska was appalled.

The state’s senators offered legislation to scale the travesty back, but, ultimately, the state couldn’t prevail. What they did get was a legislative preclusion of any future presidential designations.

Wyoming scored a similar agreement. In a move to accept Jackson Hole private lands from one of his Gold Coast confederates, John D. Rockefeller, Jr., Roosevelt unleashed the wrath of the state. He vetoed the bill passed to abolish his actions. Congress finally intervened in 1950 moving the monument into Grand Teton National Park with the agreement that Wyoming would never again face such unilateral action.

The beat goes on

In southwestern New Mexico, that portion of the state where government ownership of lands equates to 87% of the landscape, yet another demand for national monument unmercifully plods along. This time a total of 600,000 acres of Dona Ana County is being subjected to the newest generation of environmental fervor ‘to save the lands’. In the planning led by membership of the county’s progressive county commission, city council, and professional wilderness lobbyists, not a single citizen who has duties, responsibilities, or investments on the land targeted got invited to the discussion. It was obvious greater plans can not be burdened by common needs.

In response, the district’s Congressman, Steve Pearce, offered legislation to finally correct the abuse of the Antiquities Act. The local liberal press hammered him.

“Nixing 100 years of Protection” the headline read.

It should have read …“Nixing 100 years of tyranny”

The postscript: perversion of the Antiquities Act expanded

On May 21, 2014, President Barack Hussein Obama signed into law by presidential proclamation the Organ Mountain Desert Peaks National Monument. The worst fear of every citizen who has a duty, a responsibility, or an investment on the 900 square mile footprint of the monument came to pass.

There are 95 families directly impacted by the pending protective restrictions on the land, and every citizen in the county will be forever affected by the longer term fallout. There are also over 500 points of water on the greater backdrop of those lands that are there and maintained only because of the livestock industry that depends on those lands. That compares to five natural water sources. Not being a purpose of the proclamation, the livestock industry must wait for public scoping to solidify the management plan to reveal the real measures of restriction it faces. As a use in the action, ranchers have been told a grandmother in Miami Beach has as much to say about how the monument should be managed as they have.

As one of those livestock producers, the true common language of stewardship of the lands in question should be revealed only in law and in legislative action rather than mob action and environmental pact money. Over $2 million was waged against the diminishing community that created the customs and culture of these lands. There was no reasonable expectation that any similar defense could be raised in our behalf.

The shared values of decency and dignity assumed in the relationship between the elected senatorial office holders who implored the actions of the president and those emissaries of customs and culture are nonexistent. To our knowledge, not a single request for any measure of protection was accepted much less advocated by Senators Udall and Heinrich (Ds-NM). The intolerance and disrespect of those actions is symbolic of the greater assault being waged on heritage industries in every corner of our Union.

In the darkest hours of World War II, Winston Churchill stood before a joint session of Congress and reminded our leadership of the dangers of discord amongst the Allies. “It is in the dragging-out of the war at enormous expense, until the democracies are tired and bored or split, that the main hopes of (the enemies) must now reside”, he lectured. The eight year siege by New Mexico’s senatorial leadership against the local community in posturing to exploit the ultimate course around a legislative process defines the fear Churchill envisioned.

There is no constitutional victory in this presidential proclamation … the little guys were drawn and quartered, and, adding horrors to their constant fear … every similar designation has assured the fact most of them will not survive.

Stephen L. Wilmeth is a rancher from southern New Mexico. “The New Mexico Wilderness Alliance complete wilderness inventory, and thus Senator Tom Udall’s marching orders, totals 2,917,366 acres … local, rural communities have no stroke with this man unless they are on a colonia list.”