Thursday, August 31, 2017

The Antiquities Act is not a blank check to create federal land



...The Antiquities Act of 1906 made good sense when enacted. A lucrative market for original artifacts led to the widespread desecration of Native American burial sites across the West. The Act criminalized such acts on federal land. It also authorized the President to set aside national monuments to protect historical sites.

...The text and legislative history of the Antiquities Act, however, make clear the statute was not intended to set aside hundreds of millions of acres of federal land and water. The text cabins the executive’s discretion in two ways. First, the president may preserve only identifiable “objects” of historical or scientific interest. Second, adjacent land is limited “to the smallest area compatible with the proper care and management of the objects to be protected.”  

...In an era when procedural protections are a given, the Antiquities Act is an odd darling. It is a relic from a prior time when speed was of the essence and other land protection statutes did not exist. As Secretary Zinke explained, however, the act is not a blank check. Its text includes clear internal limitations and the Trump administration is right to review prior designations for executive largess.

Erin Hawley is a legal fellow at the Independent Women's Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John G. Roberts Jr.

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