More on the Antiquities Act

Bears Ears National Monument designated by President Obama

Following up Sunday's post on the Antiquities Act, I'd like to note an interesting post on the topic by Nick Bryner at Legal Planet. There's a lot of straght legal analysis, but a large dose of legal history as well. Bryner takes on an AEI "white paper" written by John Yoo and Todd Gaziano:

First, Yoo and Gaziano seek to re-frame the history and past judicial decisions on the Antiquities Act in order to make an argument about the purpose of the Act. The authors raise the argument that the Act has been “abused” for the purpose of effectively creating new, large national parks, and that the large size of some monuments designated throughout the Act’s history runs counter to the statute. Their claim purports to be rooted in textual analysis of the Act, but relies on an assumption due to the context of “earlier and contemporaneous bills” that would have “limited monument designation to 320 or 640 acres (page 3). The Act instead provides that monuments “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” Yoo and Gaziano posit that the lack of a size limit “provide[s] flexibility for special situations and not to allow a million-acre designation” (page 3). Contemporaneous history, however, also points to officials in the Interior Department who favored broad empowerment of the President to set aside public lands, and suggests that these officials had a hand in adding the Act’s more expansive language of “other objects of historic or scientific interest” to meet this goal. No court has ever invalidated a presidential designation of a national monument — from the Grand Canyon under Teddy Roosevelt (its status as a national monument, prior to conversion to a national park, was upheld by the Supreme Court against mining claims in Cameron v. United States), to the Giant Sequoia NM under Clinton (upheld by the DC Circuit in Tulare County v. Bush).

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The purpose and context of the Antiquities Act, including congressional action and inaction over the past century, suggest that a one-way ratchet — presidential designation, with significant reduction or revocation only by Congress — is exactly what was intended. Congress was concerned that historical, archaeological, and natural or scenic resources could be damaged or lost, and devised a delegation to the President to act quickly when needed to preserve those resources, leaving Congress the opportunity to deliberate on a longer-term solution for the area in question, if it so decided. On 10 occasions, Congress has reversed those presidential decisions; far more often, it has concurred or built upon the President’s actions by expanding monuments or re-defining them as national parks. This is how the process is supposed to work. Antiquities Act designations do not, as critics say, cut off debate or circumvent the democratic process. They simply alter the status quo in favor of conservation — a precautionary approach. If Congress studies the matter and decides to change or abolish the monument to allow for different uses of the land, it has the power to do so through the usual legislative process; until that action is taken, objects of historic or scientific interest are protected.