The Antiquities Act gives the president too much power and is due for reform, and it wasn’t the appropriate vehicle to protect Bears Ears. But there’s absolutely no question about the fact that Bears Ears needs to be protected.
Interior Secretary Ryan Zinke is clearly someone who does his homework. He spent a great deal of time reviewing the new monument, and he concluded that the land in question is “drop-dead gorgeous country and that it merits some degree of protection. But designating a monument that—including state land—encompasses almost 1.5 million-acres where multiple-use management is hindered or prohibited is not the best use of the land and is not in accordance with the intention of the Antiquities Act.”
The Antiquities Act has been a primary vehicle for presidential overreach throughout its 111-year history, and Utah has been one of its primary victims. In 1996, Bill Clinton used the act to create the Grand Staircase-Escalante National Monument in order to appease environmentalists prior to his reelection. The monument was created with no local input and against the fierce opposition of Utah’s entire congressional delegation, including Bill Orton, the state’s only Democratic congressman, who lost his seat largely as a result of his inability to stop Clinton’s campaign stunt. The monument permanently locked up billions of dollars worth of clean-burning coal on the Kaiparowits Plateau which would have been used to benefit Utah’s education system.
This all happened twenty years ago, but if you speak to people near the area, the wounds are still fresh.
Granted, the Bears Ears designation is somewhat different, in that it has been welcomed by the local tribes and wasn’t quite the same kind of ambush that took place in 1996. Even Secretary Zinke recognizes that this area “merits some degree of protection.” Indeed, the universal consensus is that Bears Ears ought to be protected, but the controversy focuses on what level and means of protection are most appropriate.
What should be obvious to everyone is that the Antiquities Act is not the right tool for this particular job.
The language of the Antiquities Act gives the president the power to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments.” It also demands that the national monuments “in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected.”
So, right off the bat, there are two problems here. The first is that a great deal of the Bears Ears Monument lies on state land, not federal land, all of which was confiscated by executive fiat. The second is that it is impossible to reasonably claim that the land so designated represents “the smallest area compatible with proper care and management” of the protected lands.
The problem is that the power granted to the president under the Antiquities Act is so sweeping and so arbitrary that there is no effective way to appropriately counter the overreach of the designation. The two times Congress has managed to reduce the scope of national monuments have been almost Herculean efforts, and they are vastly outnumbered by the volume of monuments that presidents have created in the meantime.
It is time that the Antiquities Act were either drastically scaled back or repealed entirely. While I have significant problems with much of what President Trump is doing, in this instance it is a credit to the Trump administration and its sensible Interior Secretary that this possibility is finally under active consideration.