Presenter: Professor Mark Squillace, Director, Natural Resources Law Center, University of Colorado School of Law
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Squillace, Mark

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Colorado Law

University of Colorado Law School Colorado Law Scholarly Commons Celebrating the Centennial of the Antiquities Act (October 9) 2006 10-9-2006 SLIDES: The Monumental Legacy of the Antiquities Act of 1906: The Rainbow Bridge National Monument in Context Mark Squillace Follow this and additional works at: https://scholar.law.colorado.edu/celebrating-centennial-of-antiquities-act  Part of the Administrative Law Commons, Courts Commons, Historic Preservation and Conservation Commons, Indian and Aboriginal Law Commons, Land Use Law Commons, Law and Society Commons, Legislation Commons, Natural Resources and Conservation Commons, Natural Resources Law Commons, Natural Resources Management and Policy Commons, Place and Environment Commons, President/Executive Department Commons, Public Policy Commons, and the Recreation, Parks and Tourism Administration Commons Citation Information Squillace, Mark, "SLIDES: The Monumental Legacy of the Antiquities Act of 1906: The Rainbow Bridge National Monument in Context" (2006). Celebrating the Centennial of the Antiquities Act (October 9). https://scholar.law.colorado.edu/celebrating-centennial-of-antiquities-act/3 Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.  The Antiquities Act was originally conceived to protect public lands from looting   But Interior wanted the President to have authority to establish national parks    Congress resisted, but Interior officials drafted the bill that became the Antiquities Act without amendment Edgar Lee Hewett Binger Hermann, GLO  Commissioner, 1893-1903 John F. Lacey, Iowa Congressman William Alford (W.A.) Richards GLO Commissioner, 1903-1907  Richard Wetherill    The President  … is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest … situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve thereof parcels of land the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.  Devil’s Tower (1906) (the first national monument)  Grand Canyon (Grand Canyon Nat’l Park) (1908)  Mount Olympus (Olympic Nat’l Park) (1909)  Mukuntuweap (Zion Nat’l Park) (1909)  Sieur de Monts (Acadia Nat’l Park) (1916)  Bryce Canyon (Bryce Canyon Nat’l Park) (1923)  Fort Wood (Statue of Liberty) (1924)  Glacier Bay (Glacier Bay Nat’l Park) (1925)  Arches (Arches Nat’l Park) (1929)  Death Valley (Death Valley Nat’l Park) (1933)  Capitol Reef (Capitol Reef Nat’l Park) (1937) 215 Presidential Proclamations  128 National Monuments in 28 states, several territories, and the District of Columbia  What makes a monument?  Ownership or control of land  “Smallest areas compatible with the proper care and management of the objects”  A “reservation” of land   What is the process for establishing a monument?   Can a monument be abolished or modified by proclamation?    Federal ownership or control    of land   Buck Island National Monument, U.S. Virgin Islands  Papahānaumokuākea Marine National Monument  (Northwestern Hawaiian Islands)  Marianas Trench Marine National Monument  Pacific Remote Islands Marine National Monument  Rose Atoll Marine National Monument  All monuments designated in the “exclusive economic zone,” which extends 200 nautical miles from shore (territorial seas  extend only 12 miles from shore)    Historic landmarks or other “objects of historic or scientific interest” Metate Arch - Grand Staircase-Escalante National Monument   “[I]t is the greatest eroded canyon in the United States, if not the world, . . . affords an unexampled field for geologic study, is regarded as one of the great natural wonders….      Cameron v. United States, 252 U.S. 450, 455 (1920)  “It is rough sagebrush, grazing land, and some lakes but there is no particular reason it should be included in the Park Service, and this land has been used and is beneficial for livestock, and for farming purposes and nothing more.”    Wyoming Congressman Frank Barrett    Authority to “reserve” federal land allows the President to establish any restrictions necessary to accomplish the monument’s  purpose The Sonoran Desert National Monument  The property clause of the U.S. Constitution gives the Congress the “power to … make all needful rules … respecting the …property belonging to the United States.” Art. IV, § 3, cl. 2.    Under the Antiquities Act, the Congress has delegated to the President the power “to declare” national monuments “by public proclamation.”    A monument becomes a monument simply by the President declaring it to be so  Consider Pelican Island NWR in Florida (established 1903)  Should the designation of a national monument be preceded by notice and comment or some other public process?  Current law requires no process   Has led opponents of the law to propose amendments that would –  Require notice and public comment opportunities before designation  Require NEPA compliance  Establish a Congressional review and approval process  Consistent with fundamental tenets of democratic government   Assures opportunity for local involvement in decisions   Will lead to better, or at least more informed, decisions  Republican system of government does not always honor majoritarian views  Democratic decisions will not lead to rational social choices (Arrow’s theorem)   Issues are not local and do not simply affect the present generation; they are national and impact future generations   Decisions are subject to public process, review, and revision at the legislative level  Congress can repeal a reservation improvidently made; it can’t restore an area once it has been destroyed   Presidential decisions often made without public process  A 1938 Attorney General Opinion says no.  The Antiquities Act authorizes the President to proclaim monuments; it does not authorize the president to revoke or modify monuments.   But Interior has not always adhered to this opinion  A 1915 opinion by Interior Solicitor says yes; a subsequent 1924 opinion said no; and opinions from 1935 and 1947 say yes.  Monuments  limited  to the “smallest area compatible with the proper care and management of the objects”  President may decide that a smaller area is all that is needed   Implied authority to modify monuments exists under United States v. Midwest Oil  “Smallest area compatible” restriction involves exercise of discretion.   “One-way” authority assures protection pending congressional action.   Congress expressly authorized modification of reservations in other laws (e.g., the Pickett Act) but did not do so in the Antiquities Act   Congress expressly repealed the President’s implied authority to reserve land recognized by the Supreme Court in United States v. Midwest Oil in 1976 (FLPMA)  Woodrow Wilson reduced Mount Olympus by more than 300,000 acres  Lobbied by mining and logging interests during WWI as necessary to support the war effort  Conservation groups decried the decision as the “rape of 1915”   Franklin Roosevelt reduced the Grand Canyon by more than 71,000 acres  Reduction in the size of the monument pushed by ranchers and local officials  Consider the places that might never have been protected but for the Antiquities Act  The Grand Canyon  Olympic National Park  Most of what is now the Grand Teton National Park  The Grand Staircase-Escalante National Monument  Local mining and ranching interests in Arizona strongly opposed the national monument.  Had there been no monument in 1908, mining and ranching interests would have become more entrenched and might well have blocked the legislation creating a national park in 1919  They surely would have limited its size and made inroads with their claims   Ralph Henry Cameron was a delegate from the Arizona territory from 1909-1912 and was elected Senator in 1920. He owned mining claims along the Bright Angel Trail.  His claims were most likely invalid but he used them as a pretense to charge access fees to tourists who wanted to hike down the trail  Opposed the monument but ultimately lost in the U.S. Supreme Court.  Cameron v. United States, 252 U.S. 450, 455 (1920)  The proclamation was issued just two days before Teddy Roosevelt left office  The monument was sought by Congressman Humphrey (from Tacoma) and Roosevelt approved it  Mining companies tried to get it repealed almost immediately, and aided by the timber industry, ultimately persuaded Woodrow Wilson to reduce it in size by half    The original Grand Teton National Park, set aside by an act of Congress in 1929, included only the Teton Range and six glacial lakes at the base of the mountains   The National Park Service proposed expansion of Yellowstone south to cover the Tetons in 1919  A bill passed in the House but died in the Senate due to opposition of Idaho Senator John Nugent and the livestock industry  Proclaimed by Franklin Roosevelt in 1943  Secured a major gift of land from J.D. Rockefeller, Jr.  Touched off a furor in Wyoming  Legislation passed to overturn proclamation vetoed by Roosevelt  Compromise leads to no more monuments in Wyoming   Clinton might have otherwise designated the Red Desert  1.7 million acres of red rock canyons and plateaus  Prized by conservation groups that were politically-marginalized in Utah   Sought for development by coal industry   Stronghold of ranchers Jacob Hamblin Arch     Photo of Labyrinth Canyon in the Glen Canyon before it was inundated by Lake Powell  “The place no one knew.”       Photo by Phil Pennington (1962) Glen Canyon Institute   The Antiquities Act may be the most effective land preservation law ever adopted anywhere  By authorizing the President to protect lands simply and unilaterally some of our most precious public lands have been preserved  The President’s authority under the Act is substantial but is subject to review both in Congress and the Courts  The fact that neither the Congress nor the Courts have ever overturned a major monument proclamation suggests that Presidents have used their authority wisely  Wallace Stegner has famously described our national parks as “the best idea we ever had.”  I would argue that this idea was made possible by the Antiquities Act of 1906 The Monumental Legacy of the Antiquities Act of 1906 37 Georgia Law Review 473 (2003)   Mark Squillace, Director Natural Resources Law Center University of Colorado Law School   Visit our website at http://www.colorado.edu/law/nrlc/  

SLIDES: The Monumental Legacy of the Antiquities Act of 1906: The Rainbow Bridge National Monument in Context

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SLIDES: The Monumental Legacy of the Antiquities Act of 1906: The Rainbow Bridge National Monument in Context

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