On Monday, President Donald Trump visited Utah to announce the largest reductions to national monuments in U.S. history. His order will shrink two national monuments, Bears Ears and Grand Staircase–Escalante, by roughly 2 million acres in total. The decision has drawn the ire of environmental groups and Democratic legislators but has been applauded by Republican lawmakers and locals who want the land to remain open to multiple uses. Legal challenges to the action have already been filed.
But for every fit of rage over Trump’s executive decision, there is an equal and opposite reaction against the creation of national monuments, in which presidents can restrict land use across vast swaths of the rural West — all without congressional approval. Whether you agree with Trump’s monument reductions or not, it’s time to put aside our selective outrage over executive authority and roll back the century-old law that got us into this situation in the first place.
The fight centers on the use of the Antiquities Act of 1906, a Progressive Era law that allows presidents to unilaterally set aside federal lands to protect objects of historical, cultural, or scientific significance. The act was designed mainly to prevent looting of Indian artifacts, and designations made under it were to be confined to “the smallest area compatible with proper care and management” of the protected objects.
In recent decades, however, the 111-year-old law has been abused as a large-scale conservation policy issued by presidential proclamation. Since 1996, both Republican and Democratic presidents have used it to set aside more than 11 million acres of land, as well as about 760 million acres of ocean as marine monuments. President Barack Obama, no stranger to executive authority, used the act to create more national monuments than any other president.
To see why such designations are so controversial, look no further than Bears Ears. Obama created the 1.35 million-acre monument in the final weeks of his presidency despite opposition from Utah’s governor, its state legislature, and its entire congressional delegation. A legislative proposal, known as the Public Land Initiative, sought to reach a “grand bargain” that would protect some areas of the region in exchange for opening other lands for resource development. That effort, which was several years in the making, was upended by Obama’s unilateral designation.
Such is the reality of the Antiquities Act. With just the stroke of a pen, the president can avoid the democratic processes inherent to federal lawmaking and dictate land-use restrictions on locals halfway across the continent. (In its Bears Ears announcement, the Obama White House tweeted an image of the wrong area, posting a picture of Arches National Park, which is 120 miles away). And because such designations usually happen in the final days of an administration, others are left to deal with the consequences. After all, if it was good policy, it wouldn’t require an eleventh-hour presidential proclamation.
The law also undermines the potential for compromise, which is at the heart of the legislative process. Why would environmental groups come to the bargaining table in good faith when they could instead simply lobby the White House to declare a monument? With a powerful tool like the Antiquities Act at their disposal, there’s no need to waste time finding a sensible middle ground. The same could be said of the Trump administration’s monument reductions. As long as such decisions can be made by presidential fiat (assuming Trump’s proclamation withstands legal challenges), any effort may last only as long as the sitting president’s term in the West Wing.
Earlier this year, Trump instructed Interior Secretary Ryan Zinke to review 27 large monuments created since 1996. In his final report, which was released on Tuesday, Zinke recommends shrinking several other monuments, such as Gold Butte in Nevada and Cascade-Siskiyou in Oregon and California. Zinke also recommends a relaxation of restrictions in some monuments to allow more livestock-grazing, timber-harvesting, and commercial fishing.
But lasting reform will require action from Congress. And that may be coming. The U.S. House Natural Resources Committee recently approved a bill from Rob Bishop (R., Utah) to overhaul the Antiquities Act by limiting the size of monuments that a president can designate via executive authority. Under Bishop’s bill, designations larger than 640 acres would require public input. Larger monuments, up to a maximum of 85,000 acres, would also need approval from the local and state lawmakers impacted by the designations.
The proposed legislation would also clarify the scope of the Antiquities Act by imposing strict limits on which “antiquities” the law can be used to protect. Whereas past presidents have used the act to conserve such things as geological formations and natural landscapes and even to protect biological diversity, 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 powers to reduce the size of monuments made by their predecessors — a legal question that Trump is already testing.
In the end, the best outcome would be to reform the Antiquities Act to put an end once and for all to its abuse by lame-duck, legacy-seeking presidents. There is a right way to set aside large areas of federal land in a relatively permanent way, and it’s through legislative action — just as national parks and federal wilderness areas are created. Executive actions that seek to bypass that process are, and should be, prone to fail.
Originally appeared at National Review Online.
