On December 28, 2016, President Barack Obama designated over 1.5 million acres for two new national monuments — Bears Ears in Utah and Gold Butte in Nevada. The Bears Ears monument covers 1.35 million acres–a region larger than the state of Delaware, and the Gold Butte monument covers about 300,000 acres. Obama’s decision limits access and activities on vast amounts of land, reducing the ability of state lawmakers and the citizens to have a say over how these public lands are used. The federal government controls 25 percent of all land in the United States–50 percent of land west of the Rocky Mountains and 85 percent of the land in Nevada.
President Obama used the Antiquities Act of 1906 to reduce access to federal lands 29 times during his presidency. Only Franklin D. Roosevelt has used this authority more frequently.
The Antiquities Act was created to allow the president to keep historical or prominent archeological sites from being immediately destroyed when such destruction might occur too quickly for Congress to prevent. Because the monument designations in Utah and Nevada do not present an emergency, they should fall under Congress’s purview rather than the President’s.
According to the Congressional Research Service, future Presidents, such as Donald Trump, have the ability to “diminish” the size of monument designations, but no President has tried to un-designate a monument.[i] Thus, an option to deal with President Obama’s land grab is to limit its scope by narrowing the Bears Ears monument to a few hundred acres, which would protect the actual site but would not take up the entire 1.35 million acres that President Obama designated. In fact, the Antiquities Act was designed to protect archaeological sites and historic landmarks that “in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”[ii]
State Attorney Generals can also file lawsuits against the federal government, which has already been announced in the case of Utah.[iii]
For future land grabs by presidents, Congress could amend the Antiquities Act to limit the president’s power to truly extraordinary times when a national treasure must be protected immediately and to allow Congress to revisit the president’s decision at a later date.[iv]
Obama’s Environmental Legacy
President Obama has taken 554,590,000 acres of land and sea out of use for private citizens and out of the deliberative processes of government—far more than any other President, as the chart below shows.[v] Presidents from Teddy Roosevelt to Lyndon B. Johnson used the act sparingly. Ronald Reagan, Richard Nixon and George H. W. Bush did not use it at all. Bill Clinton used it to set aside 5.7 million acres of land in his final days in office. George W. Bush used it to set aside over 200 million acres. But, President Obama is on his way toward tripling George W. Bush’s record.
President Obama may decide to either match President Roosevelt’s record with a 30th designation, or exceed it by doing two more before leaving office on January 20. Administration officials are looking at an expansion of the California Coastal National Monument and Oregon’s Cascade-Siskiyou National Monument as well as the establishment of a monument in South Carolina to commemorate the Reconstruction era and two in Alabama to commemorate the civil rights era.
Conclusion
The Antiquities Act allows a politically unaccountable lame-duck president to arbitrarily make national policy as he leaves office. And, outgoing President Barack Obama is using the act to designate more land out of reach than any other president in American history. How easily it is to overturn these designations is yet to be determined.
[i] Congressional Research Service, National Monuments and the Antiquities Act, September 7, 2016, https://fas.org/sgp/crs/misc/R41330.pdf
[ii] Wall Street Journal, Trump Can Reverse Obama’s Last-Minute Land Grab, December 30, 2016, http://www.wsj.com/articles/trump-can-reverse-obamas-last-minute-land-grab-1483142922
[iii] National Review, Reversing Obama’s Last Minute Land Grab, January 2, 2017, http://www.nationalreview.com/article/443462/trump-gop-aim-reverse-obamas-land-grab-utah-nevada-million-acres
[iv] The Hill, Obama’s last-minute land grabs only the tip of presidential excess, January 3, 2017, http://thehill.com/blogs/pundits-blog/the-administration/312436-confiscator-in-chief-obamas-last-minute-land-grab-an
[v] Washington Post, With new monuments in Nevada, Utah, Obama adds to his environmental legacy, December 28, 2016, https://www.washingtonpost.com/national/health-science/with-new-monuments-in-nevada-utah-obama-adds-to-his-environmental-legacy/2016/12/28/e9833f62-c471-11e6-8422-eac61c0ef74d_story.html?hpid=hp_no-name_no-name%3Apage%2Fbreaking-news-bar&tid=a_breakingnews&utm_term=.75bec815f63e
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