Antiquities Act

Posted: Aug 31, 2010

The Antiquities Act of 1906, codified with amendments at 16 U.S.C. §§ 431-33 (2008), allows the president to issue proclamations designating land as national monuments. Such monuments are permanent and can be made without congressional or citizen input. Congress can also create monuments or incorporate existing monuments into other land protection systems, although such actions would be taken outside the scope of the Antiquities Act.

Antiquities Act proclamations generally provide for a level of protection necessary for “proper care and management” of the monument. Additional protection for a given monument is provided by the laws governing the federal agency that manages it. The National Park Service (NPS), the Bureau of Land Management (BLM), the U.S. Forest Service (Forest Service), and the U.S. Fish and Wildlife Service (USFWS) all manage monuments as part of their respective land protection systems, and other state and federal agencies are also involved in the management of some monuments.

There are currently more than 100 national monuments, ranging from large landscape and habitat preservation designations in the western U.S. and Alaska to smaller historic, prehistoric, cultural, and archeological monuments scattered around the country. Thus, objects ranging from the Statue of Liberty in New York to the Grand Staircase in Utah share the national monument designation. A full list of monuments – in the form of an interactive map – can be found on the website of the National Park Service’s Archeology Program.  Another interactive map, provided by Headwaters Economics, provides information on the economic vitality of communities adjacent to national monuments.

Image
NPS Archeology Program, http://www.nps.gov/history/archeology/sites/antiquities/images/fullMap.gif

Key Concepts

Objects to be Protected

There are two basic requirements for an area of land to be eligible for designation as a national monument under the Antiquities Act:

  • The land must contain “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”
  • The land must be “owned or controlled by the Government of the United States.”

Presidents have used the Antiquities Act to protect not only historic and scientific objects, but also for large scale natural preservation. To date, both Congress and courts have declined to define the limits of what is and is not a historic landmark, a historic or prehistoric structure, or an object of historic or scientific interest. Thus, while most monuments contain well defined landmarks, structures, and other objects of historic or scientific interest, the Act is also used to protect broad landscapes. For example, in a contentious 1943 proclamation that set the tone for later controversies, President Franklin Roosevelt simply stated that the area around Jackson Hole in Wyoming “contains historic landmarks and other objects of historic and scientific interest” without specifying what those objects and landmarks were. The proclamation was upheld in court, and certain subsequent monument proclamations have similarly relied on a broad interpretation of the Antiquities Act.

The second requirement, that land must be owned or controlled by the federal government, has also never been clarified by Congress and the courts. Although every monument is on federal land, some have contained partially or completely surrounded non-federal tracts of land. This has led to congressional legislation to support monuments; for example, after President Bill Clinton designated the Grand Staircase-Escalante National Monument in Utah in 1996,Congress passed the Utah Schools and Lands Exchange Act of 1998 to trade federally owned land elsewhere in the state for state-owned land contained in the monument.

Size of National Monuments

Under the Antiquities Act, monuments must be “the smallest area compatible with the proper care and management of the objects to be protected.” While this language may appear to limit the size of potential monuments, the broad range of objects that can be protected and judicial deference have allowed presidents to designate large monuments. Currently, the largest national monument is the Papahānaumokuākea Marine National Monument, covering about 90 million acres – mostly ocean – in the north-western Hawaiian islands. On land, large monuments include the Grand Canyon-Parashant National Monument in north-western Arizona, at one million acres; the Grand Staircase-Escalante National Monument in southern Utah, at 1.9 million acres; and Admiralty Island National Monument in Alaska, at 955 thousand acres, itself part of a 56 million acre designation and expansion of 17 national monuments in 1978.

Uses of National Monuments under the Antiquities Act

Uses of the national monuments are governed by presidential proclamations and by the regulations, executive orders, and laws affecting managing federal agencies.

Presidential proclamations can specify allowed and prohibited uses pursuant to the Antiquities Act’s “proper care and management” language. Thus, activities like mining and logging are generally prohibited. Even off site activities, such as water pumping, can be prohibited if they interfere with the purpose for which the monument was established. Additionally, under the Antiquities Act permits are required “for the examination of ruins, the excavation of archaeological sites, and the gathering of objects of antiquity” in national monuments. Such permits are to be issued by the department of the federal agency managing a given monument to “recognized scientific or educational institutions.”

While uses of national monuments must be consistent with the Antiquities Act, they also must be consistent with the law governing managing agencies. Thus, the agency selected to manage a monument can have a significant impact on permitted uses; more information on this can be found in Process Essentials: Managing Agencies.

Presidential Discretion

Presidential Authority

Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945) was the first case to explicitly analyze the president’s authority under the Antiquities Act.  The court held that:

If there be evidence in the case of a substantial character upon which the President may have acted in declaring that there were objects of historic or scientific interest included within the area, it is sufficient upon which he may have based a discretion. For example, if a monument were to be created on a bare stretch of sage-brush prairie in regard to which there was no substantial evidence that it contained objects of historic or scientific interest, the action in attempting to establish it by proclamation as a monument, would undoubtedly be arbitrary and capricious and clearly outside the scope and purpose of the Monument Act.

In the few cases in which courts have reviewed Antiquities Act proclamations, courts have recognized that the president has a high degree of discretion. Under the Antiquities Act itself, creation of a monument is “in [the president’s] discretion.” Although as presidential proclamations uses of the Antiquities Act are not subject to the Administrative Procedures Act of 1946, courts have applied the “arbitrary and capricious” standard of review found in that Act to monument designations and have declined to weigh evidence for or against a monument’s eligibility or size. Notably, to date no court has held that a president abused his discretion in creating a national monument. 

Process Essentials

Process Essentials: National Monument Creation

An Antiquities Act withdrawal is procedurally simple. To create a national monument the president simply has to issue a presidential proclamation, which is similar to an executive order. Such proclamations are published in the Federal Register. In fact, some presidents have caused controversy by creating national monuments without giving significant notice to even the host state; for example, President Bill Clinton informed Utah’s political leaders of his decision to create the Grand Staircase-Escalante National Monument shortly before publicly announcing the new monument.

As could be expected in establishing national monuments, some presidents have caused controversy either with the size of the monument, the location, or even the choice of managing agency. For more information on these controversies, see Controversies: Specific Applications of Antiquities Act Proclamations. As a result of these controversies, Congress has twice reduced presidents’ power under the Antiquities Act; withdrawals in Wyoming require congressional approval and withdrawals in Alaska similarly require approval if they are greater than 5,000 acres.

Antiquities Act proclamations generally do not have to comply with other federal laws. Although similar to withdrawals of federal land from the public domain under the Federal Land Policy and Management Act of 1976 (FLPMA) in that they close land to development, Antiquities Act proclamations do not have to comply with that Act’s procedural and congressional notice requirements, described in the Red Lodge Clearinhgouse section on FLPMA. Additionally, the procedural process and public notice requirements of the National Environmental Policy Act (NEPA)do not apply.

Notably, while the Antiquities Act requires that monuments be created only on federal land, some monuments have surrounded non-federal land. There has not been significant litigation on whether this constitutes a taking. However, in at least one situation, Congress directly compensated the owner of land surrounded by a monument; for more information, see the section on the Grand Staircase-Escalante National Monument in Controversies: Specific Applications of the Antiquities Act.

Process Essentials: Prior Rights on Monument Land

Once created, monuments are generally subject to already established private land usage rights, so long as the uses are consistent with proper care and management of the monument as required by the Antiquities Act. Additionally, proclamations can specify what uses are consistent with monument care and management. Inconsistent uses are generally prohibited. 

Process Essentials: Managing Agencies and Levels of Protection

While monuments must be managed in accordance with their enabling presidential proclamations, the level of protection a monument is granted is also determined by the law governing the managing agency. For example, a monument put under the authority of the NPS would be managed for purposes of resource preservation and public enjoyment. Uses that conflicted with those purposes would be prohibited. In contrast, a monument managed by the Bureau of Land Management would be managed for the purposes of multiple uses, as dictated by the laws governing the BLM, although those uses would have to be consistent with care and management of the monument as established by the monument’s enabling proclamation. In general, this means that mineral leasing, mining, logging, and certain recreation activities are prohibited in national monuments. More information on the relationship between purposes, uses, and existing rights, and about the Antiquities Act in general, can be found in National Monuments and the Antiquities Act, a Congressional Research Service paper.

Of the more than 100 national monuments that have been established by presidents under the Antiquities Act, mostare managed by the NPS as part of the Park System. Until 1978, all monuments were managed by the NPS and so were subject to the laws governing that agency. The first non-NPS monuments were established by President Jimmy Carter in 1978; two of the Alaska monuments established in 1978 were managed by the Forest Service and two were managed by the USFWS. In particular, Forest Service management was controversial because uses like logging and mining were allowed in many national forests under Forest Service management practices. However, the NPS was given an advisory role in management and Congress affirmed the Forest Service’s management authority in 1980. After President Carter, President Bill Clinton made significant use of the BLM to manage monuments.

The authority of the president to select a management agency other than the NPS has been questioned, but has not been directly challenged in court and there are few laws relating to the president’s authority to select a managing agency.  Under a 1933 executive order that was supported by Congress, E.O. 6166, the president has the authority to transfer management of a new monument to the NPS. However, neither that executive order nor the Antiquities Act provides for selection of a managing agency other than the NPS.

For a detailed analysis of the laws governing management agency selection, please see Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473, 519-33 (2003), which can be found here on the National Park Service website.

The president can leave newly created monuments under the jurisdiction of Interior Department agencies that previously managed the land, as certain changes in agency function within that Department – including monument management – do not require congressional approval. Second, non-Interior Department agencies – most relevantly the Forest Service – can manage monuments as long as an Interior agency has some advisory role. The president could also potentially modify the E.O. 6166 to allow selection of a management agency or could create national monuments under FLPMA (which requires NEPA compliance) instead of the Antiquities Act.

It should be noted that, though the monument creation process is independent of FLPMA and NEPA requirements,once created national monuments are subject not only to the laws specific to their managing agencies, but other federal laws as well. This means that management plans generally must comply with NEPA requirements and the laws governing managing agencies.

National Park Service Monuments

Prior to 1978, all national monuments were managed by the NPS. While some early monuments were managed by other agencies – for example, the Department of War and the Forest Service – in 1933 President Franklin Roosevelt transferred all monuments to the NPS. Following that transfer, new monuments were added to the National Park System and management was passed from the previous managing agency – often the Forest Service or the BLM – to the NPS.

Under NPS management, monuments are managed for preservation and public access. Under the National Park Service Organic Act, codified at 16 U.S.C. §§ 1-18(f)(3), all land in the Park System – including national monuments – is to be managed “in light of the high public value and integrity of the National Park System,” and activities cannot be authorized if they are “in derogation of the values and purposes for which these various areas have been established.” In general, NPS management confers even greater protection than that conferred by presidential proclamations, as those are required to provide only for the “proper care and management” of monuments. While ordinarily Congress can specify uses beyond what is allowed under the National Park Service Organic Act in a park’s enabling legislation, in creating monuments with the Antiquities Act the president is limited to specifying uses necessary for proper care and management of the monument.

U.S. Forest Service Monuments

The Forest Service is the main non-Interior Department agency that manages national monuments. The Forest Service manages five monuments by itself, and one in conjunction with the BLM. These include two large monuments in Alaska and one in California, two monuments protecting erupted volcanoes in Oregon and Washington, and a monument protecting Giant Sequoia trees in California.  All but one of the national monuments managed by the Forest Service were created by Congress rather than under the Antiquities Act, and are thus managed in accordance with their enabling legislation as well as other law governing the Forest Service. GiantSequoia National Monument was created by President Bill Clinton in 2000 by proclamation and left under Forest Service management; the proclamation and the Forest Service’s interpretation is available on the monument’s website. Logging is generally prohibited in Giant Sequoia National Monument, as specified in the proclamation, but management is otherwise governed by the same laws that govern other areas of the national forests.

In general, the Forest Service manages its lands in accordance with the principle of multiple uses. This means that it’s up to forest administrators to determine whether recreation, logging, mining, or other uses will be permitted in a given area, although forest management plans must comply with both the NEPA process and other federal laws. And, in the case of national monuments, the Forest Service must comply with the Antiquities Act’s preservation requirement. For more information on forest management, see the Red Lodge Clearinghouse section on National Forest Management.

Bureau of Land Management Monuments

The BLM has the second largest number of national monuments after the NPS, with about 16 mostly large monuments concentrated in the West; two of these are co-managed with the NPS and one with the Forest Service. The BLM was also the last of the major land management agencies to get its own national monuments, having gotten its first monument – the Grand Staircase-Escalante National Monument in Utah – in 1996. The BLM’s monuments are part of the National Landscape Conservation System, which was established in 2000 by the agency and recognized by statute by the 111th Congress.

BLM monuments are currently managed under the laws governing the agency, described on the Red Lodge Clearinghouse section on the Federal Land Policy and Management Act. In general, BLM lands are managed for multiple uses and, unlike national forests or parks, are still part of the public domain. Thus, BLM monuments are protected by their enabling presidential proclamations, but the general statutes governing the BLM set a lower standard of protection, prohibiting only unnecessary or undue degradation.

Fish and Wildlife Service Monuments

The USFWS manages six monuments, most of which are not in the continental United States. These include several aquatic monuments in the Pacific, as well as a site on the Columbia River in Washington. Two of the USFWS monuments are managed with other agencies; one with the NPS and one with the National Oceanic and Atmospheric Administration. The USFWS’s first monuments were created in Alaska in 1978, although they were transferred to other agencies two years later. The Hanford Reach National Monument, created in 2000 on one of the last free flowing segments of the Columbia River in Washington, is the agency’s oldest monument.

USFWS monuments, like BLM monuments, are protected by their enabling presidential proclamations. Although the USFWS manages the National Wildlife Refuge System, which would confer a degree of protection similar to the National Park System, USFWS monuments are not part of that system.

Other Monument Management Agencies

Two other federal organizations, the National Oceanic and Atmospheric Administration (NOAA) and the Armed Forces Retirement Home, manage national monuments. The latter manages President Lincoln's Cottage at the Soldiers' Home in Washington, D.C., a small monument that was established in 2000. NOAA and the USFWS co-manage Papahānaumokuākea Marine National Monument, which was established in 2006, expanded in 2009, and covers about 140,000 square miles of ocean and ten islands in the northwestern Hawaiian Islands.

Controversies

Controversies: The Legal Validity of the Antiquities Act

The use of the Antiquities Act by presidents to create national monuments has been heavily criticized for not complying with other federal laws, for being an unconstitutional delegation of Congressional power, for limiting land uses, and often for failing to comply with the Antiquities Act itself. Despite criticism, courts have repeatedly upheld the Antiquities Act.

The U.S. Supreme Court has to date issued only three decision on the Antiquities Act, all upholding it.

  • In Cameron v. United States, 252 U.S. 450, 455-56 (1920), the Supreme Court upheld without analysis the Antiquities Act, simply stating that the Act serves as authority for monument reservations, in this case of the land containing the Grand Canyon in Arizona. The Supreme Court did not consider the Antiquities Act again for over 50 years.
  • In Cappaert v. United States, 426 U.S. 128, 141-42 (1976), the Court again upheld the Antiquities Act with minimal analysis, simply stating that a pool containing rare fish in Devil’s Hole cavern in Death Valley National Monument was an object “of historic or scientific interest.” That case also held that uses of the Antiquities Act, like other federal reservations, could implicitly reserve water rights necessary for the reservation’s purpose. Two years later the Court again upheld the Antiquities Act.
  • In United States v. California, 436 U.S. 32, 33-37 (1978), the Court again summarily upheld the Antiquities Act, this time as applied to land underlying water within the Channel Islands National Monument (now known as Channel Islands National Park, due to a 1980 congressional act).

Federal appellate decisions have also upheld the Antiquities Act as a legitimate delegation of congressional power, and have upheld virtually every challenged monument as a valid exercise of the Act.

  • In Mountain States Legal Foundation v. Bush, 306 F.3d 1132 (D.C. Cir. 2002), the Court held that the Antiquities Act was a constitutional delegation of congressional land management power to the president because it articulated “intelligible principles to guide the president’s actions.”
  • In an opinion issued by the same court on the same day, Tulare County v. Bush, 306 F.3d 1138 (D.C. Cir. 2002), the Court upheld the creation of Giant Sequoia National Monument in California and held that the president does not have to provide a certain level of detail in the proclamation, that objects such as “ecosystems and scenic vistas” can be included in the proclamation, and that any challenger to a monument designation must specify how and why the monument is too large.

Thus, courts have broadly interpreted the Antiquities Act as granting very expansive power to the president.

Controversies: Specific Applications of Antiquities Act Proclamations

Three of the most significant Antiquities Act controversies are summarized below. A more detailed history of national monument controversies can be found on the NPS’s National Monument Proclamations website.

The 1943 Creation of the Jackson Hole National Monument

President Franklin Roosevelt’s 1943 proclamation creating Jackson Hole National Monument in Wyoming was the first Antiquities Act proclamation that resulted in major controversy. The monument was created by President Roosevelt to circumvent congressional refusals to expand Grand Teton National Park to include land acquired from John D. Rockefeller, Jr. In addition to the political circumstances surrounding its creation, the monument covered 221,610 acres and the presidential proclamation, instead of specifying what object of historic or scientific interest was being created, simply stated that the area “contains historic landmarks and other objects of historic and scientific interest.”

In response, Congress attempted to pass legislation to abolish the monument designation, but President Roosevelt unsurprisingly vetoed it. The proclamation also resulted in a lawsuit, which led to a 1945 federal trial court ruling that the question of whether the president overstepped the authority delegated by Congress under the Antiquities Act was not reviewable unless the president’s actions were arbitrary and capricious and lacked substantial supporting evidence. Thus, the court declined to weigh evidence for and against the monument’s size and eligibility. The decision, Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945) and described here at page 25, was not appealed, and its deference to the president has guided subsequent Antiquities Act litigation. Congress eventually incorporated the monument into Grand Teton National Park in 1950, and in the same legislation prohibited future Antiquities Act monuments in Wyoming.

The 1978 Creation of Alaska Monuments

President Jimmy Carter’s 1978 proclamation creating 56 million acres of national monuments in Alaska bore several similarities to the 1943 proclamation by President Roosevelt. The proclamation was made in response tocongressional inaction on lands of federal interest, was opposed by state leaders as limiting popular uses and going beyond the authority granted by the Antiquities Act, was upheld as a valid use of presidential power in court, and was later overridden by legislation that left the designated land protected. The 1978 proclamation, like the 1943 proclamation, also led to Congress imposing limits on future Antiquities Act proclamations in the state; future monuments in Alaska could be made only with congressional approval if they were larger than 5,000 acres. Further information on the events leading up to the proclamation can be found on the website of the National Parks Conservation Association

The Alaska v. Carter and Anaconda v. Andrus cases are not publicly available, but are discussed in Eric C. Runak, The Straw that Broke the Camel’s Back? Grand Staircase-Escalante National Monument Antiquates the Antiquities Act, 64 Ohio St. L.J. 669 (2003), available here on pages 19-20.

The proclamation was upheld in two separate court decisions on similar grounds as prior Antiquities Act proclamations. In Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978), the Court held that the president was not bound by the procedural requirements of NEPA. In Anaconda Copper Company v. Andrus, 14 Env't Rep. Cas. (BNA) 1853 (D. Alaska 1980), the Court upheld President Carter’s proclamations, reasoning that past decisions had taken an expansive view of the president’s authority under the Act and that, while there are limits on the president’s authority, higher courts have not yet defined what the limits are. 

President Carter’s Antiquities Act proclamations had the effect of motivating Congress to take action on the federal interest land, as the proclamations and related withdrawals placed limits on land use beyond what Congress may have imposed. In 1980, Congress passed the Alaska National Interest Lands Conservation Act, which left a few of the monuments in place but transferred most of the land to other classifications.

The 1996 Creation of the Grand Staircase-Escalante Monument--and Political Aftermath

President Bill Clinton’s 1996 proclamation creating the 1.7 million acre Grand Staircase-Escalante National Monument in southern Utah was criticized for many similar reasons as the 1943 and 1978 withdrawals. Apart from President Carter’s short lived Alaska monuments, the Grand Staircase-Escalante National Monument was the largest Antiquities Act monument yet created. Moreover, about 900,000 acres of the monument consisted of land that had been classified by the BLM as potential wilderness several years earlier, but Congress had not taken final action on classifying it as wilderness. Further, a company that held coal mining leases in the area that would become the monument began to take steps toward beginning extraction. In response, the Interior Department under President Clinton began to consider the idea of monument designation, and the President eventually designated the new monument on September 18, 1996. The announcing ceremony, of which Utah politicians had not been given advanced warning, was held at the Grand Canyon in Arizona.

Despite the barrage of criticism – President Clinton was reportedly hung in effigy in some small Utah towns where people worried that the monument would harm the local economy – the proclamation was upheld in court on similar grounds as past Antiquities Act proclamations. In Utah Association of Counties v. Bush, 316 F. Supp. 2d. 1172 (D. Utah 2004), a decision discussed in an appellate decision focused on procedural issues, Utah Association of Counties v. Bush, 455 F.3d 1094 (10th Cir. 2006), the Court upheld the Grand Staircase-Escalante National Monument’s creation as within the president’s authority under the Act, based in part on the recitation in the proclamation of various objects of scientific and historic interest. Congress actually enlarged the monument to 1.9 million acres in 1998 by trading federal land elsewhere in the state for now non-developable state owned land contained within the borders of the monument. Although Congress considered limits on future Utah monuments similar to those passed after the previous Wyoming and Alaska monument controversies, the limits were never passed.

draft document, part of which was leaked in early 2010 indicated that President Obama was considering similar actions to protect 14 areas with National Monument status. In response, several western legislators introduced bills to prohibit this and future administrations from designating new monuments in their state without express approval from Congress. Western congressional members introduced several additional non-binding resolutions calling on the Department of the interior to release the rest of the internal memo for public review and comment. For an analysis of the controversial communications, see "E-mails: Interior officials involved in national monument 'brainstorming,'" Great Falls Tribune, 7/6/10.

The debate over monument designation continued throughout the 112th Congress and emerged again in the 113th. Most bills were similar to the current H.R. 250, which would require congressional approval in addition to presidential declaration to establish a new national monument under the Antiquities Act. In a new tactic, Rep. Rob Bishop (R-Utah) introduced H.R. 1459, which would require an environmental review before a President could designate a new national monument using the Antiquities Act.

Laws

The Antiquities Act of 1906

16 U.S.C. sections 431-33

Monument Information

The National Park Service Archeology Program, Antiquities Act Information

The Archeology Program website provides general information about the Antiquities Act, as well as detailed information concerning topics related to the act.

The National Park Service Archeology Program, Monument Map

This interactive map shows the locations of national monuments, including those not managed by the NPS.

The Bureau of Land Management National Landscape Conservation System

This BLM website provides basic information on the NLCS, which includes all BLM-managed national monuments.

Copyright © 2014 Red Lodge Clearinghouse. All rights reserved.