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Three Past Presidents Invited to House Natural Resources Hearing on Antiquities Act Overreach

Gabriella Hoffman
by Gabriella Hoffman Read Profile arrow_right_alt

Yesterday, House Natural Resources Committee Ranking Republican Rob Bishop (R-Utah) issued three individual letters to former Presidents Bill Clinton, George W. Bush, and Barack Obama asking them to appear before the committee to talk about the Antiquities Act of 1906 and if they overstepped bounds regarding Section II of the law.

The letters addressed different areas of overreach as it pertains to Section II of existing law.

For Bush’s letter, Rep. Bishop noted the introduction of marine monuments under his administration and how Bush “… designated over 323,437 square miles of ocean. These permanent, unilateral designations lack the level of scientific rigor, direct industry input, transparency, and necessary time and deliberation that is essential to sound, scientifically-based policy-making decisions.”

For Obama, Bishop noted the 44th president had used his presidential authority to proclaim 34 national monuments that sectioned off 553,559,880 acres of public lands during his eight years in the White House—especially pointing to his actions on Bears Ears in Utah without the consultation of Utah’s delegation or locals.

For Clinton, Bishop pointed out his designation of 1.9 million acres that were carved out for Grand Escalante Staircase in Utah. He called Clinton’s actions on the national monument “politically motivated” to assist the Clinton-Gore re-election efforts in 1996.

What is a National Monument?

The debate over national monuments is a wedge issue that divides hunters, anglers, hikers, and other outdoor enthusiasts. It especially pits sportsmen against one another.

I know I have disagreements with some of my outdoor industry friends over these designations, but we can debate them civilly and cogently. Radical environmentalists, however, are quick to lambast any deviation on this debate. That’s disappointing but not surprising.

Much of the noise surrounding this debate over national monuments is rooted in confusion as to what constitutes a national monument. Many believe it’s the same as a National Park. Others have no idea which agencies manage them and who or which branch of government designates them.

Where I find rare agreement with Outside Magazine is their explanation of national monuments:

The primary difference lies in the reason for preserving the land: National parks are protected due to their scenic, inspirational, education, and recreational value. National monuments have objects of historical, cultural, and/or scientific interest, so their content is quite varied. 

On the bureaucratic bent, the National Parks Service oversees all parks and some monuments. However, the U.S. Forest Service, U.S. Fish and Wildlife Service, National Oceanic and Atmospheric Administration, the Department of Defense, and Bureau of Land Management may also supervise monuments, depending on the location of the lands and the reason for their protection. Some of these agencies are better than others at providing visitor information. Congress designates national parks; in general, presidential proclamations establish national monuments.

Moreover, presidents cannot designate national monuments on private lands—only place designations on federal government-owned land public lands. It should also be noted not all national monuments fall under the purview of the National Park Service (NPS) system.

Many Sportsmen Supported Review of National Monument Designations, Believe They Can Limit Hunting and Fishing Opportunities

On April 26, 2017, President Trump ordered former Interior Secretary Ryan Zinke to review at least 27 national monuments exceeding 100,000 acres in size through Executive Order 13792. It reviewed all national monuments created since 1996.

On August 24, 2017, Zinke sent his findings to the White House and said the process was rooted in trying to “restore trust in the multiple-use mission of the Department and to give rural communities a voice in federal land management decisions.”

“No President should use the authority under the Antiquities Act to restrict public access, prevent hunting and fishing, burden private land, or eliminate traditional land uses, unless such action is needed to protect the object,” said Secretary Zinke.“The recommendations I sent to the president on national monuments will maintain federal ownership of all federal land and protect the land under federal environmental regulations, and also provide a much needed change for the local communities who border and rely on these lands for hunting and fishing, economic development, traditional uses, and recreation.”

After his review, Zinke said in December 2017 his findings led him to conclude it’s best to keep the national monuments in question in federal hands. He announced the addition of three new national monuments, as well. His recommendations included:

Keep federal lands federal –  the report does not recommend that a single acre of federal land be removed from the federal estate. If land no longer falls within a monument boundary it will continue to be federal land and will be managed by whichever agency ​managed the land before designation

Add three new national monuments – Secretary Zinke recommended beginning a process to consider three new ​national monuments: The Badger II Medicine Area (Montana), Camp Nelson (Kentucky), and the Medgar Evers Home (Mississippi).

Modify the boundaries and management of four monuments – Bears Ears, Grand Staircase, Cascade-Siskiyou, and Gold Butte National Monuments

Expand access for hunting and fishing – Maintain an ongoing review to ensure ​public ​access​ to encourage more hunting and fishing in monuments 

After an executive order was issued noting many national monuments would be reviewed, some sportsmen’s and most environmental groups lambasted the decision. Prior to that, groups like Patagonia declared President Trump “stole our land”— a headline distributed to and printed in publication after publication. Goodness gracious. This made it seem like only one view of national monument designation reviews was accepted.

However, support for review of designations did come from many of the state wildlife agencies.

In a letter to the House Western Caucus, both Arizona Game and Fish Commission and the Arizona Game and Fish Department expressed support for President Trump’s Executive Order 13792 calling for the review of national monument designations. Why? They weren’t consulted on many designations and say it interrupted their day-to-day operations:

Recent monument designations in Arizona covered under the EO lacked upfront and effective coordination with the state wildlife management agency, a necessity for effective conservation of the public’s wildlife resources. As a result, the state has experienced a systematic loss of diverse recreational opportunities and an erosion of the Arizona Game and Fish Department’s ability to proactively manage wildlife. Project delays, elevated costs, increased man-hours, and legal challenges impact the Department’s ability to carry out statutory authorities and state trust responsibilities, and threaten significant contributions to the state’s economy from wildlife-related recreation. An inability to properly manage wildlife populations and their habitats results in decreased biodiversity, reduced hunter opportunities, and loss of revenues that directly support conservation and local communities.

In a column in The Hill, leaders from the Boone and Crockett Club, National Wild Turkey Federation, and Wild Sheep Foundation—all reputable sportsmen’s groups—argued national monument designations are well-intentioned but can lead to the loss of public lands’ conservation value and further restrict recreational hunting and fishing access:

Monuments are considered capstones of conservation, but important details have been overlooked. All monument designations are applied to existing federal public lands, which make it easy to proclaim conservation success on paper. But what goes into a true conservation success is a combination of actual work on the land and the appreciation the public gets by visiting the land. This requires professional conservation managers doing the work and people with varied recreational interests given opportunity to appreciate the results. Both need access for conservation to work.

While well intended, designation of large tracts of public lands as monuments without provision for access can lead to a loss of conservation value. Restricted recreational access and reduced management of wildlife habitats can lead to dwindling wildlife populations and less community involvement on the management of lands in their backyards.

In recent years, proclamations have removed guarantees for recreational access and hunting from management plans.

Rocky Mountain Elk Foundation also noted monument lands, with or without these designations, are still public lands:

With the Antiquities Act having been around for more than a century, there are numerous examples of how these designations have accommodated, improved and protected hunting, fishing and habitat admirably. Conversely, monument designations have also negatively impacted recreational access and state wildlife agencies’ ability to effectively manage fish and wildlife species and their habitats. And that’s why over-simplified statements like, “An attack on one monument is an attack on them all” don’t make a whole lot of sense. It is still a fact that with or without Monument designation, these lands are already public lands and will remain so only through due diligence and united sportsmen community focus.

The Antiquities Act of 1906 Gives the President Authority to Diminish National Monuments

Section II of the Antiquities Act of 1906 stipulates that only the smallest areas compatible—not millions of acres—can be designated as national monuments by presidents:

Sec. 2. That the President of the United States is hereby authorized, in his discretion, 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, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected: Provided, That when such objects are situated upon a tract covered by a bona fied unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is hereby authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.

Many have called for updates to the law, citing Section II and presidential overreach—which explains this announcement to bring in these three past presidents.

Republican members of the House Natural Resources Committee have said existing law allow the President unilateral powers to “create national monuments on federal lands where objects of antiquity are at risk – without public participation, congressional review, or fulfilling any procedural requirements.”

Those who oppose diminishing national monuments argue the Federal Land Policy and Management Act of 1976 limits presidential authority for national monument designations. However, Brookings Institution notes two flaws to this argument:

Moreover, they argued in December 2017 presidents—including President Donald Trump—have the presidential authority to shrink national monuments. He wasn’t the first to do it, they argued: Presidents Wilson, Eisenhower, Taft, Coolidge, and Truman also shrunk national monuments during their administrations.

The law isn’t foolproof —especially for preventing the looting of archeological sites:

Although the Antiquities Act proved to be a means of overseeing and coordinating educational and scientific archeological investigations on federal and Indian lands, it did not effectively prevent or deter deliberate, criminal looting of archeological sites on those lands. Problematic for many years, this situation became critical in the 1970s when several attempts by federal land managing agencies and prosecutors in the southwest to convict looters using the Antiquities Act resulted in disastrous court decisions. In two cases judges ruled that the terms of the act were unconstitutionally vague and therefore unenforceable (Collins and Michel 1985). This situation led to a concerted effort by archeologists and preservationists, their allies in the law enforcement community and several essential supporters in Congress to strengthen the legal protection of archeological resources. The eventual outcome was a new statute, the Archaeological Resources Protection Act of 1979, rather than an amendment of the Antiquities Act.

Efforts to Reform the Antiquities Act Going Forward

In fall 2017, Rep. Bishop — who served as chairman of the House Natural Resources Committee until Democrats retook the House of Representatives earlier this year—introduced The National Monument Creation and Protection Act (H.R. 3990).

This bill would have reduced presidential authority to designate national monuments. It also prescribed limits on public lands that qualify for such designations on the basis of “acreage, proximity to other national monuments, whether it has been reviewed by the Department of the Interior or Agriculture (USDA) under the National Environmental Policy Act, and whether it has been approved by each county and state within whose boundaries it will be located.”

This bill also stipulated, if passed, the President may reduce the size of any declared national monument “by 85,000 acres or less or by more than 85,000 acres only” if the reduction got approval from individual counties and states that have jurisdiction over the proposed monument in question. It would have been subject to review by the Department of Interior or U.S. Department of Agriculture under the National Environmental Policy Act of 1969, which was established so the three branches of government “give proper consideration to the environment” before undertaking federal action that could seriously impact the environment.

Will Clinton, Bush, and/or Obama Agree to Testify?

There’s no certainty any or all three past presidents will come testify about their use of the Antiquities Act during their respective administrations. However, if one does, it will be interesting to see if they lament excessive use of the law or stand by their actions to supersede Section II provisions of the Antiquities Act.

There should be a discussion on the rightful application of the Antiquities Act for national monument designations. For any future designations going forward, sportsmen’s groups and wildlife agencies should always be consulted—not left in the dark. Plus, millions of acres of public lands shouldn’t be taken from Western states. That’ll cause friction between the West and federal government—a relationship on the mend since the Trump administration came to power.

We’ll be watching if this hearing occurs here at The Resurgent.


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