Op-ed: Look to History to Reform The Antiquities Act

Devils Tower, known to Native Americans as Bear Lodge, is an 870-foot butte composed of igneous rock. Long before it featured on Close Encounters of the Third Kind, the Wyoming landmark was the first national monument declared by President Teddy Roosevelt on Sept. 24, 1906.

This was not the only “first” for Wyoming under the Antiquities Act, the law which authorizes presidents to designate national monuments. In 1950, Congress responded to perceived presidential overreach by making it the first state to be exempt from the Antiquities Act.

In its 113-year history, the Antiquities Act has gone through several cycles of controversy, reform and relative harmony. Today, we are again in a period of controversy, with western communities objecting to the large size of new monuments, fishers objecting to the designation of ocean monuments, and, most recently, tribes and environmentalists objecting to President Donald Trump’s reduction of two Utah monuments.

If the cycle repeats, reform is on the horizon. If so, past reforms provide essential insights for evaluating future ones. Policymakers can learn three lessons.

First, when the president’s power is reduced, Congress takes a greater interest in the management of federal lands. Since the Wyoming exemption from the Antiquities Act in 1950, Congress has designated more than 3 million acres as protected wilderness areas, more than a tenth of the state. In Alaska, the other state where the president’s monument power is curtailed, Congress has designated nearly 64 million acres as wilderness. This is significantly more congressional engagement than is seen in other states where the Antiquities Act continues to apply. For example, the state closest to Wyoming in size and amount of federal land is Oregon and Congress has designated a third more wilderness in Wyoming than in Oregon.

Second, explicit limits on presidential power are adequate at constraining abuses. In Alaska, Congress has forbidden the president from withdrawing more than 5,000 acres for any monument without Congress’ approval. Despite speculation that the president might make an end-run around this limit by designating many smaller monuments, such circumvention has not occurred. Instead, campaigns to protect vast landscapes in Alaska have been directed to Congress, such as the ongoing legislative back-and-forth over the Arctic National Wildlife Refuge.

Finally, the fears that limits on the president’s power would lead to the damaging of priceless artifacts and other resources have not come to fruition because federal laws prevent such destruction. Indeed, the United States Forest Service has described one of these laws, the Archaeological Resources Protection Act, as “replac[ing] the Antiquities Act” for purposes of protecting historical artifacts. According to the Government Accountability Office, the primary challenges for protecting unique resources on federal land are the lack of an inventory of such resources and limited funds for enforcement. Monument designation solves neither of these challenges.

CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.