Op-ed: Time to free America from the Antiquities Act

President Trump’s reductions to Bears Ears and Grand Staircase-Escalante national monuments are unsurprisingly controversial. Local communities that have decried the monuments’ effects on their economies and livelihoods are sure to rejoice; monument advocates will rue the loss. At this point, both sides should agree that the president holds too much power over national monuments. The Antiquities Act may have served an important purpose in its early history, but now that the American West is populated and antiquities are preserved by a smattering of federal and state laws, the time has come for the Antiquities Act to retire.

The Antiquities Act of 1906 was the brainchild of an assortment of lobbyists from American historical and anthropological associations as well as the Department of the Interior. Anthropologists and historians expressed concern that the rate of Western expansion would outpace Congress’ ability to protect significant areas. The Department of the Interior voiced similar concerns for scenic and scientifically unique sites.

Their lobbying efforts paid off, and Congress allowed the president to convert any federal land of “historic or scientific interest” into national monuments. To assure Western states the act would not be abused, legislators added the stipulation that monuments must be “the smallest area compatible with the proper care and management of the objects to be protected.” Currently clocking in at only five sentences, the act doesn’t offer much more guidance than that.

Notably, the act provides no institutional checks on the president’s power. There is no requirement that the executive consult state or local officials, the public or Congress before making a designation. While the “smallest area compatible” language of the act was intended to provide some limitation, courts are almost completely unwilling to review the substance of monument designations. Federal courts, for example, have insisted that “prob[ing] the reasoning which underlies” a designation would be “a clear invasion of the legislative and executive domains.” The president, in short, gets first and final say.

The entire American democratic experiment rests on a bedrock of checks and balances, mitigating the possibility that any one actor can usurp inordinate power. The Antiquities Act flies in the face of that principle. Residents of the rural West, where the vast majority of recent monuments over 100,000 acres reside, have known what that feels like for decades. The tables turned this week as monument supporters learned what if feels like to have something valuable swept out from underneath them by the stroke of a pen, as Bears Ears National Monument opponents experienced just one year ago.

The original justifications for the Antiquities Act are gone. Public land policy has developed a lot since the Antiquities Act’s time — we now have an entire suite of alternative designations and laws to protect public land, cultural artifacts and natural wonders. Bears Ears, for example, had both a wilderness area and a national forest within its original boundaries. Laws like the Archaeological Resources Protection Act of 1979 prohibit tampering with antiquities on federal lands. The development of the West has slowed substantially. Current national monuments can remain, but leaving designation power solely in any president’s hands make little sense in the modern day.

Congress already freed Wyoming from presidential abuse enabled by the Antiquities Act. To placate the state during the creation of Grand Teton National Park, President Truman and Congress exempted them from any further presidentially designated national monuments in 1950. No new national monuments can be made in Wyoming “except by express authorization of Congress,” and the state is better off for it.

Presidents Obama and Clinton both designated monuments right before leaving office, angering many rural Westerners. By undoing portions of those monuments, President Trump similarly angered environmentalists and recreationists. Both sides of the debate now have good reason to dislike unchecked presidential authority over our national monuments. Repealing the Antiquities Act is a crucial step in bringing order to public lands policy.

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.