President Trump and the Antiquities Act- What the Future Holds

President Trump and the Antiquities Act-
What the Future Holds

by Jack Gavigan

 

My first experience with America’s National Monuments came last summer when my dad and I got lost in Western Colorado. That week, we decided to explore some areas of Northern New Mexico and Southern Colorado we had never been to before. Three days in, we headed north-west to visit Mesa Verde National Park. Although our time there was short: there was no denying that Mesa Verde was beautiful, but the large crowds and tour-groups were more than enough to make us start craving open space once again.

 

On a whim, we drove West into what we thought was purely BLM cattle-grazing land. An hour or so later, we took a turn down a rough gravel road and saw an unfamiliar sign in the distance. Pulling closer, we made out the words more clearly. It read, “Welcome to Canyon of the Ancients National Monument.” My dad and I were puzzled. Our map was a bit old- from the 90’s-and didn’t show anything at all in this area (only later would I found out that Canyon of the Ancients was created in 2000). For the next three hours before sunset, we had the privilege of hiking through some of the most beautiful and pristine wilderness I had ever been to- so was my introduction to the much-underrated national monument system.

 

The national monument designation came into existence as a result of the Antiquities Act of 1906.[1] Theodore Roosevelt was the first president to use the Act- giving national monument status to Wyoming’s Devils Tower, New Mexico’s Chaco Canyon, and even the Grand Canyon (the Grand Canyon was a national monument before it ever was a national park).[2] Since then, the Antiquities Act has been used by a majority of presidents in both political parties.[3]

 

A recent discussion about the future of the Antiquities Act was sparked by President Obama’s ‘midnight’ designation of multiple national monuments- including the controversial Bears Ears (1.35 million acres) and Gold Butte (300,000 acres) National Monuments.[4] In Utah and Nevada, where public land use is always a hot-button issue, some residents and their representatives are concerned enough about the Act’s consequences to call for its abolition.[5] Many opponents of the Antiquities Act, like Utah Rep. Bob Bishop, think President Trump is just the man for the job.[6] But what can really be done? Are Bears Ears and other national monuments at risk to lose their designations?

 

In the United States, Presidents almost always have the power to overturn former President’s executive orders through their own.[7] Since national monuments are signed into existence via executive order, many would presume that a future President could overturn this designation and essentially wipe the national monument off the map. It turns out that it’s not so simple. Because national monument designation is specifically permitted by a Congressionally-approved statute, simply overturning an executive order becomes much more challenging from a legal perspective.[8] President Trump would have no legal precedent to back him if chose to unilaterally abolish Bears Ears or Gold Butte, and would most certainly face a large public outcry from conservationists and the $887 billion dollar outdoor retail industry.[9]

 

A more legally feasible option for President Trump would be to decrease the size of the national monument in question. The Antiquities Act states that any proposed monument should have boundaries that, “be confined to the smallest area compatible with proper care and management of the objects to be protected.”[10] President Trump could potentially make the argument that Bears Ears or Gold Butte is unnecessarily large, exceeding the scope and purpose of the original Act. Former Presidents have done exactly this. John F. Kennedy removed about 4,000 acres from Bandelier National Monument in New Mexico and Woodrow Wilson removed 313,000 acres from Mount Olympus National Monument in 1915.[11]

 

Takeaways- the Future of the Antiquities Act

 

The primary reason that the Antiquities Act would be difficult to repeal is that, on a fundamental level, most Americans appreciate its outcomes. Monuments that were highly controversial a decade ago have become widely accepted, and over 80% of Westerners support the President’s power given in the Antiquities Act.[12] In addition, more and more Easterners are moving out West due in large part to the West’s expansive public lands and potential for recreation.[13]

 

Lastly, even if the Antiquities Act is never employed, it can be an asset to conservationists just by its existence. The very threat of a national monument designation can break stalemates and incite compromise from a wide range of stakeholders. In Idaho, the Boulder-White Clouds Mountains had been a controversial topic for decades, but with the threat of a President Obama national monument designation, Idaho legislators introduced a successful bill to create 275,000 new acres of designated wilderness in the contested area. [14]

 
 
Phillip comment:
I appreciate your use of a personal anecdote to begin your blog post. It allows for readers to relate more directly to the subject – in this case, the value of the Antiquities Act. I think some of the most interesting points you highlighted were the various obstacles President Trump could face in trying to undo Obama’s national monument designations. Due to the fact that national monument designations are approved by Congress, President Trump would have a difficult time overturning those designations. However, what is the motivation for reducing the acreage of existing monuments? In the Idaho case in the last paragraph, you stated that Idaho legislators created 275,000 acres of new wilderness. What deterred Idaho lawmakers from wanting the Boulder-White Clouds Mountains to be designated a national monument, and pushing for the national wilderness title?
 
Adrian comment:
Really interesting blog, super relevant topic. It will definitely be a pressing issue in the near future to see where the Antiquities Act is utilized in this current administration. After Obama’s legacy with the National Monument system, it will be telling about how the current administration views conservation with any decisions that are made to utilize the act.

 
ZaKerra comment:
I appreciated the personal connection to the topic and clear background about the Antiquities Act. this is not something I knew a lot about before reading this blog, and it was very informative. I think considering public support of existing policy is important in considering the future of many orders or legislation during the new administration. You’ve done a good job of laying out the possible outcomes of this change in the White House, and the power the president truly holds.
 
 

 

Citations

[1] National Park Service, American Antiquities Act of 1906, accessed on 4/10/2017, https://www.nps.gov/history/local-law/anti1906.htm

[2] National Parks Conservation Association, Monuments Protected Under the Antiquities Act, accessed on 4/10/2017, https://www.npca.org/resources/2658-monuments-protected-under-the-antiquities-act#sm.0001tcss6qbq9dn0uxj2k2m30izhn

[3] Ibid

[4] Andy Isaacson, Two New National Monuments Created in Utah and Nevada, accessed on 4/10.2017, http://news.nationalgeographic.com/2016/12/bears-ears-gold-butte-national-monument-utah-nevada/

[5] Kirk Siegler, Utah Representative Wants Bears Ears Gone and he Wants Trump to do it, accessed on 4/10/2017, http://www.npr.org/2017/02/05/513492389/utah-representative-wants-bears-ears-gone-and-he-wants-trump-to-do-it

[6] Erin Hawley, It’s Time to Abolish the Antiquities Act of 1906, accessed on 4/10/2017, http://www.nationallawjournal.com/id=1202778447352/Its-Time-to-Abolish-The-Antiquities-Act-of-1906?slreturn=20170310115105

[7] http://www.thisnation.com/question/040.html

[8] http://www.law.indiana.edu/publicland/files/national_monuments_modifications_CRS.pdf, p.3

[9] Outdoor Industry Association, Outdoor Recreation Economy, accessed on 4/25/2017, https://outdoorindustry.org/advocacy/

[10] National Park Service, American Antiquities Act of 1906, accessed on 4/10/2017, https://www.nps.gov/history/local-law/anti1906.htm

[11] Jennifer Yachnin, National Monuments, accessed on 4/10/2017, https://www.eenews.net/greenwire/2017/02/08/stories/1060049750

[12] Center for Western Priorities, Critics of National Monuments are Two Steps Behind Western Public Opinion, accessed on 4/10/2017, http://westernpriorities.org/2016/01/28/critics-of-national-monuments-are-two-steps-behind-western-public-opinion/

[13] James Rasband, The Future of the Antiquities Act, accessed on 4/10/2017, http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=1072&context=faculty_scholarship, p. 621

[14] U.S. Congressman Mike Simpson, Simpson’s Boulder White Clouds Bill Signed by President, accessed on 4/10/2017, http://simpson.house.gov/issues/issue/?IssueID=121113