Interior Secretary Ryan Zinke is clearly someone who does his homework. He spent a great deal of time reviewing the new 1.5 million acre Bears Ears National Monument in Southeastern Utah.
On June 12 he concluded that the land in question is “drop-dead gorgeous country and that it merits some degree of protection.” But he said that designating the land, including some Utah property, as a monument would hinder multiple uses of the land. This, he said, was “not in accordance with the intention of the Antiquities Act.”
The Antiquities Act gives the president questionable authority
The Antiquities Act has been a major vehicle for presidential overreach throughout its 111-year history. And Utah has been one of its primary victims.
Signed into law by President Theodore Roosevelt on June 8, 1906, the act gives the president the power to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments.”
It also demands that the national monuments “in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”
Utahns are ignored when the president decrees their land a national monument
In 1996, Bill Clinton used the act to create the Grand Staircase-Escalante National Monument. It won some environmentalists over to his reelection. But it was created with no local input and against the fierce opposition of Utah’s entire congressional delegation, including Bill Orton, the state’s only Democratic congressman. He lost his seat largely as a result of his inability to stop Clinton’s action. Further, the monument permanently locked up billions of dollars worth of clean-burning coal on the Kaiparowits Plateau.
Even though this happened more than 20 years ago, it’s still a raw, fresh memory to Utahns near the area.
Granted, the Bears Ears designation is had been welcomed by some local Indian tribes. And it wasn’t quite the same kind of ambush that took place in 1996. Even Secretary Zinke recognizes that this area “merits some degree of protection.” The universal consensus seems to be that Bears Ears is deserving of some federal protection – but the controversy focuses on what level and by what means would be most appropriate. And that the Antiquities Act is not the right tool for this particular job.
President Trump’s administration’s decision on Bears Ears respects states’ rights
There are two problems with using the act in this case. The first is that a great deal of the Bears Ears Monument lies on state land, not federal land. All of that was confiscated by executive fiat. The second is that it is impossible to reasonably claim that the land so designated represents “the smallest area compatible with proper care and management” of the protected lands.
But the power granted to the president under the Antiquities Act is so sweeping and so arbitrary that there is no effective way to appropriately counter the overreach of the designation. The two times Congress has managed to reduce the scope of national monuments have been almost Herculean efforts. They are vastly outnumbered by the volume of monuments that presidents have created in the meantime.
The Antiquities Act should either be drastically scaled back or repealed entirely. It is a credit to the Trump administration and its sensible Interior secretary that this possibility is finally under active consideration.
Editor’s Note: Originally published on June 28, 2017, this piece is topical again today with President Trump’s visit to Utah to cut the size of the Bears Ears National Monument from 1.5 million acres to 228,784 acres. Additionally, a monument designed by President Bill Clinton, Grand Staircase Escalante National Monument, was cut in half, to about 1,006,341 acres.
(Photo of Donald Trump speaking at the Iowa Republican Party’s 2015 Lincoln Dinner at the Iowa Events Center in Des Moines, Iowa by Gage Skidmore used with permission.)