How do you make a national monument in southeastern Utah? If you are the president, you can issue a proclamation. Under the Antiquities Act of 1906, the president can declare federal lands (or marine areas) as national monuments to protect them from destruction by commercial use or development.
On December 28, 2016, President Obama signed a proclamation designating 1.35 million acres of federal land in southeastern Utah as the “Bears Ears” national monument. Many stunning features characterize this area of the country, from sandstone formations to buttes and deep canyons. The proclamation will protect ancient stone dwellings, petroglyphs, burial grounds and sacred sites. In January, the Salt Lake Tribune reported on some of the area’s finest features.
Some members of Congress – notably the chair of the House Natural Resources Committee, Representative Rob Bishop of Utah – are angered by this action. Several members have expressed their opposition to President Obama’s declaration, declaring it “overstepping” his authority and outside the intent of the law.
The opposing arguments run counter to settled law, reviewed by several Supreme Court cases which have held that the Antiquities Act was adopted by Congress to protect natural areas – particularly those that are held sacred by Native Americans – from commercial development. Conflict about the application of this law is inevitable. Debates over particular declarations have been repeated for more than 100 years as every president but three used the power to set aside lands and maritime areas in need of protection.
Recently, Senator Hatch (UT) registered his opposition, explaining on the Senate floor his frustration that the President’s action had gone around the will of the state legislature, the governor, local residents and a local school district. He recounted his meeting with President Trump, urging a solution.
President Trump has now issued an executive order that directs the Department of the Interior to review the national monument designations of large tracts of land made by previous presidents since 1996 – that would be Presidents Clinton, George W. Bush, and Obama. The House Natural Resources Committee, Subcommittee on Federal Lands, has scheduled a hearing on “Consequences of Executive Branch Overreach of the Antiquities Act” for May 2nd.
Can a President or the Congress abolish a national monument? legal scholars such as Law Professor Christine Klein of the University of Florida, for example, acknowledge that this question has never been definitively answered in the courts, but see abolition as an unlikely outcome.
Even so, Congress has acted many times to protect fragile lands. This year, for example, the “Wild Olympics Wilderness and Wild and Scenic Rivers Act of 2017” (H.R. 1285) by Representative Kilmer (WA-6) comes before the House Natural Resources Committee. Similar in effect to a national monument declaration, this bill would protect large areas of land and rivers under the Wilderness Act and the Wild and Scenic Rivers Act. Senator Murray (WA) has introduced an identical bill, S. 483. See Bills We’re Watching for more information.
