The Antiquities Act’s Potential for Executive Abuse Unites Conservatives and Progressives Alike

In recent years, the executive branch has used the Antiquities Act to place restrictions on federal lands without the approval of state and local officials. While the Antiquities Act and the broad powers that it grants to the president is the source of the problem, reforming the Act provides a rare occasion for bi-partisan agreement.

The Antiquities Act, which authorizes the president to declare national monuments on federal lands, allows a fair amount of discretion in the use of federal power. In 1996, President Bill Clinton designated the nearly 1.9 million-acre Grand Staircase-Escalante in Utah a national monument. This designation sparked controversy because of the vast size of the landmass and the lack of local input solicited when making the decision.

Two decades later, President Obama declared the 1.35 million-acre Bears Ears in Utah a national monument, with the support of a limited group of tribal organizations and leaders but opposed by Governor Gary Herbert, the state legislature and local residents. The Utah congressional delegation was in the midst of developing a compromise to demarcate part of the area as wilderness while allowing resource extraction in other areas. However, before a compromise could be reached, President Obama exercised his authority under the Antiquities Act in what critics saw as an overreach of presidential authority. More on Bears Ears can be found in an ALEC article, Battle for Bears Ears.

The Trump Administration has sought to shrink designations for both monuments – a move that was applauded in the ALEC article, Secretary Zinke Shouldn’t Stop with Bears Ears and is currently tied up in the courts with the most recent decision ruling against his administration. The president’s actions also inadvertently united conservatives and progressives who share the view that the executive branch enjoys too much discretion in designating and reducing monuments. While both groups differ on how much land should be protected under the Antiquities Act, they stand together in a belief that the Act allows the executive branch to wield too much power over America’s public lands.

Another example of unity can be found among hunters, who pride themselves on being conservationists who want to preserve public lands, including national monuments, while simultaneously advocating for their right to hunt.  Hunters agree on the need to restrict the broad executive discretion that the Antiquities Act affords and believe that the best way to preserve the land is to leave it to locals in the state who have first-hand experience and knowledge of how to best maintain it.

The Act’s original purpose was to protect objects of historical, cultural or scientific significance located on federal lands. The law explicitly provides that the amount of land reserved by the president for the protection and preservation of dictated monuments is to be limited to “the smallest area compatible with the proper care and management of the objects to be protected.” This definition affords quite a bit of executive discretion – perhaps too much discretion. And controversial designations have brought into question how much authority the president should have to apply this law unilaterally without congressional input.

For more in-depth analysis on the Antiquities Act, check out the latest report from The Center for Growth and Opportunity, Monumental Debate: What Past Reforms of the Antiquities Act Can Teach Us about Current Controversies. Additionally, a separate policy recommendation paper from The Center suggests potential remedies to limit the executive discretion conferred by the Antiquities Act, including increased congressional oversight of monument designations and changes, as well as appropriate consultation with relevant stakeholders before a monument designation or change is made. That policy recommendation paper, Executive Discretion and the Antiquities Act, can be found here.

ALEC has long held that federally managed lands can be served just as well by states that are more familiar with the specific environment and conditions concerning protected lands. And the two reports published by The Center for Growth and Opportunity are welcome additions to the debate on the best way to manage the nation’s vast public lands.