Revisiting the Antiquities Act

Late last month, Rep. Greg Walden, R-Ore., introduced a bill that would require congressional approval of any national monument in Oregon. Under the century-old Antiquities Act, presidents may establish national monuments unilaterally.

Walden believes the Obama administration may be planning to do just that. As evidence, a recent news release points to a leaked Department of Interior memo that "details plans to unilaterally lock up 700,000 acres of the Owyhee Desert in Oregon and Nevada."

Walden's bill (HR 5135) is undoubtedly a long shot. But the debate it encourages is one that should occur. The Antiquities Act, approved in 1906, wasn't intended to encourage presidents to set aside huge swaths of public land. As its language indicates, it was supposed to protect "historic or prehistoric ruin(s) or monument(s), or any object(s) of antiquity, situated on lands owned or controlled by the Government of the United States."

And because it was intended to protect antiquities, rather than, say, wilderness areas, its scope was supposed to be modest. National monuments, according to the act, were "in all cases" to be "confined to the smallest area compatible with proper care and management of the objects to be protected."

Presidents haven't always used the act modestly, though. In 1996, President Bill Clinton famously used the Antiquities Act to create the 1.8 million-acre Canyons of the Escalante National Monument, precluding the exploitation of massive coal reserves in the process. The designation of such a huge area occurred despite opposition from Utah's entire congressional delegation, including Rep. James Hanson, who called it "the biggest land grab in the nation." But the opinions of those elected to represent Utah didn't matter, just as the opinions of those elected to represent Oregon wouldn't matter if President Barack Obama decided to lock up part of the Owyhee Desert.

Protection of some kind may have been warranted 14 years ago in Utah, and the same could be true of the Owyhee today. But the process matters. If those who favor protection over other uses, including economic development, have a good case to make, then why not require congressional approval? Congress must approve wilderness areas, after all. Sure, it's harder for preservationists to prevail if they need congressional buy-in, but the process guarantees the sort of public involvement and cooperation that a president can ignore when using the Antiquities Act.

Involving Congress also would give residents of states targeted for monument treatment a powerful say in the outcome. When it comes to establishing a monument in Oregon, it stands to reason that the opinions of Oregon's congressional members will carry the greatest weight. And the opinions of those members are more likely than not to reflect those of their constituents.

There's nothing at all novel about weighing public opinion in individual states before taking federal action that would affect them. In fact, the climate bill introduced this week in the Senate does just that. Addressing concerns about offshore oil drilling, the bill would allow states to kill any federal drilling within 75 miles of their coastlines. This proposal gives individual states far more power than Walden's bill would.

It also raises a question that Congress should explore: If it's OK for nearby states to kill federally authorized energy exploration, then shouldn't it be OK for Congress members to shape proposals that would prevent economic development on federal land within states they represent?

Share This Story