Shawn Regan
...The Antiquities Act has, in effect, become a tool for the executive branch to impose wide-ranging conservation protections by presidential fiat. Since 1996, more than 11 million acres of land have been designated as national monuments, primarily in rural western areas, and about 760 million acres of ocean as marine monuments. Past presidents have used the act to justify setting aside geological formations and natural landscapes and even to protect biodiversity, as in the case of Oregon’s Cascade-Siskiyou monument, created by President Bill Clinton in 2000. President Barack Obama was especially fond of the act, using it to create more monuments than any other president.
...But regardless of how the legal action shakes out, one thing should be noted: The lands in question are still federally owned. Despite Patagonia’s claim that Trump “stole your land,” the lands remain public. Monument or not, they are still subject to strict laws, such as the National Environmental Policy Act and the Endangered Species Act. And, like all public lands, they remain protected through other, yet-broader federal laws such as the Archaeological Resources Protection Act, created in 1979 to protect ancient artifacts on public land from looting or desecration, and the National Historic Preservation Act, established in 1966 to protect historic structures on federal property.
In light of past monument abuses, Trump’s efforts to downsize monuments and loosen land-use restrictions may indeed be righting the wrongs of prior administrations. But what’s really needed is an overhaul of the Antiquities Act, and that may be on its way. This fall the House Natural Resources Committee approved a bill, introduced by Bishop, that would limit the size of monuments that can be designated by unilateral executive authority. Monuments of more than 640 acres would require public input, and large monuments, up to a maximum of 85,000 acres, would need approval from local and state lawmakers.
The proposed legislation would also clarify the scope of the Antiquities Act by limiting the types of resources that it can be used to protect. Bishop’s bill would define “objects of antiquity” as “relics,” “artifacts,” “skeletal remains,” “fossils,” and “certain buildings” already constructed. The bill would also codify the president’s power to reduce the size of monuments designated by predecessors.
Regardless of the bill’s outcome, the Antiquities Act should be recognized as an ineffective and inappropriate law that is incompatible with our American system of government, which typically rejects such wide-ranging executive authority. If nothing else, this much should be clear: If monument designations were good public policy, they wouldn’t require presidential proclamations. The same, of course, could be said of Trump’s unilateral monument reductions, should they withstand legal challenges. As long as such decisions are made by presidential decree, any particular outcome will be hopelessly uncertain and may last only as long as a president’s tenure in the White House — and that’s hardly an effective conservation strategy.
The only real solution is to get rid of the antiquated law that got us in this position in the first place. Congress should make the Antiquities Act a thing of the past and require that national monuments be established through individual legislative action, as is the case with national parks and federal wilderness areas. After all, if government is simply the word for the things we do together, as progressives like to tell us, then let’s actually govern together — even when it comes to our land-conservation policies.
– Mr. Regan is a research fellow at the Property and Environment Research Center in Bozeman, Montana.
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