In Defense of the Antiquities Act

San Juan National Historical Park, shown here, is near land conservationists hope becomes a national monument, which could become reality under the Antiquities Act. |

The Antiquities Act has itself become old.

Old, at least, by American standards -- June 8 marked the 106th birthday of one of this nation's most significant environmental initiatives.

What makes the act (16 USC 431-433) so profound is that it grants the president discretionary power to set aside portions of our public lands as national monuments so as to protect those "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...."

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Its chief proponents in the late 19th century were historians, scientists, and archaeologists infuriated by the routine pillaging of ancient ruins across the southwest; the rampant desecration of sacred sites.

These professionals found sympathetic politicians, most notably Representative John Lacey (R-Iowa) who floor-managed every step of the way as the bill as it worked its way through hearings, committees, and votes, until its passage in 1906. So dedicated and diligent was he that the bill is often referred to as the Lacey Act.

But the person most closely associated with it as a living document actually is the president whose signature turned it into law: Theodore Roosevelt.

The Antiquities Act is the perfect Teddy piece of legislation: it authorized the executive branch to manage the public lands more carefully and regulate the uses to which they are put; it heightened Americans' awareness of the need for greater sensitivity to and more efficient stewardship of the nation's cultural landmarks and environmental resources, all matters of great concern to this devoted conservationist and prolific historian of the West; and it enhanced the clout of the presidency.

He knew exactly what to do with this congressionally sanctioned authority, too. During the last six months of 1906, Roosevelt announced the establishment of four national monuments -- Devils Tower in Wyoming; El Morro in New Mexico; and two in Arizona, Montezuma Castle and Petrified Forest.

Roosevelt was just getting warmed up: in 1907 he added another five national monuments; the next year he signed off on an additional eight, including Muir Woods and the Grand Canyon (later rededicated as a national park); his run concluded in March 1909, when two days before he left the White House, Roosevelt brought Washington's Mount Olympus into the fold. He set a very high standard.

TR's commitments today rankle those who populate his former political home, the Republican Party. Its current members happily forget that the Antiquities Act was a GOP initiative signed by one of its most formidable presidents. They're delighted not recall that the founding chief of the Forest Service, Gifford Pinchot, like Stephen Mather, the founding director of the National Park Service -- the two agencies then responsible for protecting national monuments -- were staunch Republicans (the Bureau of Land Management did not yet exist).

They have no memory that elephants once were bright green.

President Barack Obama used the Antiquities Act to form Fort Ord National Monument on the Central Coast of California. | Photo: Courtesy The White House

How did these political pachyderms change their colors? Thanks to two Roosevelts. Teddy bolted from the party in the run up to the 1912 election, lashing out at its fat-cat cronyism and launching the Bull Moose ticket, a move that torpedoed William Howard Taft's reelection bid. With no home inside the GOP, progressives began to shift to the Democratic column, especially with the emergence of Franklin D. Roosevelt as that party's 1932 standard bearer.

Like his cousin, FDR pursued an active conservation agenda, aided by a Great Depression that allowed him to use public funds to purchase abandoned farms and ranches for new national forests and grasslands; and then hired through the Civilian Conservation Corps and other initiatives thousands of men and women to plant anew the cutover and heavily grazed terrain, repairing the land and people.

Along the way he also added 11 new national monuments, the last of which, Jackson Hole in Wyoming, generated a furious counter-attack. Angered that the president had invoked the Antiquities Act only after Congress had refused to enlarge Grand Teton National Park, legislators pushed through a measure to abolish the new national monument. FDR vetoed it.

As a compromise, after court challenges failed to decertify the president's actions, Congress finally folded the Jackson Hole acreage into the adjacent national park. But its enabling legislation contained a provision prohibiting any future use of the Antiquities Act in Wyoming, which Roosevelt accepted.

This battle royal neatly illustrates the striking that occurred in terms of which party dominated national conservation policy. Democrats had captured what Republican once controlled -- the political conviction that conservation was a social necessity, that the federal government should advance environmental protections, and that the president was the Conservationist-in-Chief.

Greater Canyonlands, land surrounding Canyonlands National Park in Utah, is eyed as a possible national monument. | Photo: 12fh/Flickr/Creative Commons License
Having conceded this high ground, the GOP were left to allege that whenever the chief executive makes use of the Antiquities Act he has been undercutting congressional prerogatives and states rights.

Republicans made extensive use of this one-time Democratic rhetoric to hammer Jimmy Carter after his December 1, 1978 hyper-signing ceremony, during which he created 15 new national monuments in Alaska. They did so again in 1996 to lambaste Bill Clinton after he put his signature on the act establishing Utah's Grand Staircase/Escalante National Monument.

The GOP has been making free use of this rhetoric, too, ever since it snagged control of the House in the 2010 by-elections. The chair and sub-committee chairs of the natural resource committee have just their positions launch attacks on such indispensable environmental legislation as the Wilderness Act (1964), the National Environmental Policy Act (1969), and the Endangered Species Act (1973).

But they and their minions seem to have a special disdain for the Antiquities Act. This spring and summer they have been trying once and for all to gut John Lacey's legislation.

Indeed, as an early, anti-106th birthday present, in April the GOP, and some of its conservative Democratic allies, pushed through Congress the so-called Sportsmen Heritage Act of 2012.

I wrote about some of its disturbing provisions in a previous column. Left undiscussed in that commentary was the anti-Antiquities Act language that did not make it into the final House version of the bill (but is in an amendment to the Senate's legislation, as yet unvoted on). It went directly after the president's ability to use the act, compelling the chief executive to secure approval from the relevant state legislatures (and governors) to alter the status of federal public land.

Should this make it into the final legislative text, and should Congress pass it, surely it will draw a presidential veto as a way to protect the chief executive's constitutional authority over federal property.

Not all western voters are enamored of such blunt assaults on the Antiquities Act. No sooner had the Sportsmen's Heritage Act surfaced, then local groups and a bipartisan array of political representatives in the states of Colorado, Washington, and Idaho began demanding that the president to use his Antiquities Act authority to announce the creation respectively of the proposed Boulder-White Clouds, Chimney Rock, Greater Canyonlands, San Juan Islands national monuments.

In each instance, the proponents have decried the actions of Reps. Doc Hastings and Rob Bishop -- Natural Resources chair and sub-chair, respectively -- in bottling up their representatives' efforts to secure legislative approval from the Natural Resource Committee. "Because of the difficulties in getting any legislation through the current Congress," argued Dan Randolph, executive director of the San Juan (CO) Citizens Alliace in the Durango Herald, "the push for national monument status has now shifted to asking President Barack Obama to designate the site through the Antiquities Act.... Chimney Rock, with its important historical and cultural significance, is a perfect example of what the act was intended to protect."

Images from the Elkhorn Ranch area in Theodore Roosevelt National Park. | Photo: Courtesy National Park ServiceAs frustrated, and with perhaps greater reason, is conservationist Tweed Roosevelt, one of TR's great grandsons. For years he has been fighting to expand the Theodore Roosevelt National Park in the rough Badlands of western North Dakota -- particularly acreage that surrounds Elkhorn Ranch, to which the future president had retreated in 1884 after the near-simultaneous deaths of his beloved wife and mother. Its solitude, which brought him such solace, is currently threatened by proposed gravel-pit operations and oil-and-gas drilling, which would be facilitated by the construction of new bridge across the Little Missouri River.

What better way to maintain this landscape's raw power and its historic claim on our cultural imagination, Tweed Roosevelt reasoned, than for President Obama to offer Antiquities Act protection to the landed legacy of our most important environmental president?

The call for a return to first principles that is embedded in Tweed Roosevelt's plea has its own appeal. It beguiles in another respect, too: if our 44th president acts as decisively as our 26th did, and does so by preserving Elkhorn Ranch and the other invaluable historic, cultural, and wild lands that the GOP has held hostage, he'll give the Antiquities Act a new lease on life.

Char Miller is the Director and W.M. Keck Professor of Environmental Analysis at Pomona College, author of "Public Lands, Public Debates: A Century of Controversy" (Oregon State University Press), and editor of "Cities and Nature in the American West." He comments every week on environmental issues. Read more of his columns here

About the Author

Char Miller is the Director and W.M. Keck Professor of Environmental Analysis at Pomona College, and author of numerous books, including "Public Lands, Public Debates: A Century of Controversy"
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A good friend wrote this important correction to my claim above that the Antiquities Act and the Lacey Act were one and the same. They're not. "The Lacey Act was a criminal law enacted in 1900 as a response to the killing of birds for plumage and the taking of migratory birds. The Lacey Act (16 USC 3371-3378) was later amended to cover all sales, importation, exportation, etc of protected wildlife." Apologies!