Antiquities Act of 1906
Legal Planet: “Politicians and Commentators Who Criticize Recent National Monuments Are Making Up Their Own Version of History”
By Sean Hecht (“Go Blue”), here.
But the idea that large monument designations are new or inappropriate is, much like other current right-wing narratives about the Environmental Protection Agency and other federal agencies, a false story based on false history. Bears Ears contains tens of thousands of culturally and archaeologically significant sites. In this case, as in others, preserving a large area of land is warranted in order to adequately protect unique ecological and cultural resources. Beyond that, the history of the Act’s application, and the history of court decisions interpreting the Act, demonstrate that since the Act’s enactment, Presidents have lawfully designated large monuments to protect landscapes, ecosystems, and natural features as well as culturally important sites.
I haven’t done the math to fact-check the claim by Secretary Zinke that “since the 1900s, when the Act was first used, the average size of national monuments exploded from an average of 422 acres per monument.” The claim is written so ambiguously that it may mean any number of things. But any cursory look at the history of monument designations reveals that this claim, and similar claims by Sen. Hatch and others, are false or extraordinarily misleading.
In fact, the Antiquities Act has been used to protect enormous areas of land since 1908, when President Roosevelt designated the 818,000-acre Grand Canyon National Monument. He also designated the 615,000-acre Mount Olympus National Monument in 1909, and the 60,000-acre Petrified Forest National Monument in 1906, within a few months of the passage of the Act.
And from HuffPo: “Why Trump Doesn’t Have The Power To Mess With National Monuments.”
Micro-Response on the Presidential Authority to Terminate or Diminish National Monuments
From one of the authors of the original paper:
It is true that there have been a number of proclamations diminishing monuments in the past but none of these have been challenged in court so no court has ever passed on the legality of these actions. Moreover, all of these actions were pre-FLPMA, which matters significantly here because FLPMA repealed the Midwest Oil decision. A 1935 Solicitor’s Opinion relied heavily on Midwest Oil to justify proclamations that diminished monuments. Post FLPMA, that justification is gone.
Original post here.
House Resources staff response.
New Scholarship Arguing, “Presidents Lack the Authority to Abolish or Diminish National Monuments”
Mark Squillace, Eric Biber, Nicholas S. Bryner, and Sean B. Hecht have posted “Presidents Lack the Authority to Abolish or Diminish National Monuments” on SSRN.
Here is the abstract:
By any measure, the Antiquities Act of 1906 has a remarkable legacy. Under the Act, 16 presidents have proclaimed 157 national monuments, protecting a diverse range of historic, archaeological, cultural, and geologic resources. Many of these monuments, including such iconic places as the Grand Canyon, Zion, Olympic, and Acadia, have been expanded and redesignated by Congress as national parks.
While the designation of national monuments is often celebrated, it has on occasion sparked local opposition, and led to calls for a President to abolish or shrink a national monument that was proclaimed by a predecessor. This article examines the Antiquities Act and other statutes, concluding that the President lacks the legal authority to abolish or diminish national monuments. Instead, these powers are reserved to Congress.