- I. Introduction
- II. The Antiquities Act’s Trump Problem
- III. The Antiquities Act in Action
- IV. Other Approaches to Regulating Federal Lands
- V. Finding an Alternative Approach to Conservation
- VI. Conclusion
Since its 1906 passage, the Antiquities Act (the Act) has created controversy. The Act empowers the President to unilaterally set aside federal lands to promote the preservation of areas of historic, prehistoric, biologic, and geologic interest with few limitations. The Act does not specify whether such monuments can be subsequently modified, diminished, or revoked. That fact was brought to the fore by former President Trump when he shrunk the Bears Ears National Monument by 85% and approximately halved the Grand Staircase-Escalante National Monument on December 4, 2017.
The Antiquities Act is key to promoting conservation. Although there are other means to protect artifacts, wildlife, and areas of natural beauty, monuments play a unique role in the use and allocation of federal land in the United States. Like national parks, the government can restrict certain activities such as grazing that would inhibit conservation efforts. Unlike national parks, a monument is created by presidential proclamation rather than congressional legislation. Given the ease with which the Act affords presidents the power to create monuments, it has proven popular. Since the Act’s passage, presidents have named or expanded national monuments 150 times, withdrawing substantial amounts of federal land from commercial development. In addition to the Act’s granting of unilateral authority to create monuments, there is also a lack of judicial oversight and perceived irrevocability. The courts have interpreted the President’s authority to withdraw lands broadly, avoiding questioning the necessary scale of the monuments or second-guessing the President’s intentions. The Act does not contain clear language whether a president may shrink or abolish a monument named by his or her predecessor. To date, the Supreme Court has not definitively ruled on that question—though many legal scholars construe the Act as not delegating that authority. That uncertainty weighs heavily on western states, which contain the majority of the 615 million acres of federal land. As it stands today, these states have little recourse through the courts even if they suffer economic or other injury as a result of the creation of a monument.
The Act fulfills a conservatory purpose that would otherwise be unmet by other legislation, but its broad discretion and lack of legislative and regulatory oversight create challenges for a wide number of land users. To promote conservation without unduly restricting economic activity, a legislative solution rather than a judicial one is needed to address the shortcomings of the Act as it stands today. This Note outlines how the Act evolved and how it could be amended or replaced to better promote federal land-use policy interests. In Part II, this Note demonstrates how the Trump Administration tried to use the Act to reshape federal land-use policy and the key questions raised by the Administration’s actions. Part III then discusses the history of the Act as well as outlines the relatively sparse judicial history. Next, this Note argues that the Act is necessary to promote U.S. conservational goals in Section V.A. Lastly, it analyzes how current land-use legislation and policy balance the tradeoff between economic and environmental considerations and then proposes a framework to evaluate potential legislative fixes for the Act in Section V.B.
II. The Antiquities Act’s Trump Problem
President Donald Trump’s decision to shrink the Bears Ears National Monument by 85% and simultaneously halve the Grand Staircase-Escalante National Monument brought to light the perils of promoting conservation through presidential fiat. Bears Ears and Grand Staircase-Escalante were only two of several monuments under review by the Trump Administration. Trump was not the first president to shrink a monument. Several others have reduced the size of or otherwise modified monuments designated by their predecessors. However, the Trump Administration’s Executive Order to “conduct a review of all Presidential designations or expansions of designations under the Antiquities Act made since January 1, 1996,” was much broader than prior attempts to diminish or revoke existing monuments. The order included scrutinizing twenty-seven monuments and exceeded the scope of his predecessors’ actions by a wide margin. Perhaps unsurprisingly, President Trump’s announcement was challenged almost immediately in the courts. At the heart of the dispute is not only whether the President has authority under the Act to unilaterally shrink or terminate national monuments, but also what constitutes appropriate use for public lands—and whether the Act as it is written today is the most appropriate manner to promote federal land policy interests.
If the Supreme Court were to definitively hold that the Act does or does not permit the President to modify, diminish, or revoke a prior monument designation, many broader questions about conservation policy for federal lands would remain. For example, if the Court held that future presidents were empowered to revoke existing monuments with limited opportunity for judicial review, it could substantially limit prior Administrations’ ability to carry out long-term conservation policy. If instead the Court held that once set-aside, future presidents had little or no ability to modify or revoke existing national monuments, substantial portions of federal land could be excluded from future oil and gas, minerals, and other natural resources development—potentially impacting domestic economic policy with little oversight. Either holding—or the continued uncertainty of no holding at all—would disproportionately impact the regional economies of western states, including Alaska. Despite his electoral defeat, the potential impact of President Trump’s actions on future U.S. land‑use policy could be great, extending well beyond the Bears Ears and Grand Staircase-Escalante National Monuments.
III. The Antiquities Act in Action
To better understand how the monuments the Trump Administration sought to diminish were created, Section III.A discusses the Act’s legislative history and presidential use. Section III.B then discusses how plaintiffs injured by the Act often fail to find redress through the courts. Those plaintiffs’ suits show how softening the blunter edges of the Act is a challenge requiring a legislative solution, not a judicial one.
A. A New Approach to Conservation
Congress likely did not foresee the broad applications of the Act when it was passed in 1906. Prior to the Act’s passage, Congress debated restricting the President’s power to withdraw land by limiting monuments to only 320 or 640 acres. Moreover, Congress’s intent was not to preserve wide swaths of wilderness across the United States. It intended the Act to protect areas of archeological interest in the southwest, many of which had been looted by those seeking Native American artifacts—the antiquities in the name of the Act. The Gila Cliff Dwellings National Monument likely resembled what many of the Act’s proponents intended. It consists of only 533 acres and prominently features 13th century Mogollon homes built into the rocks. Similarly, the Gila monument promotes targeted preservation of indigenous artifacts with the monument being surrounded by the nonartifact‑containing Gila National Forest. That allows for conservation of sensitive artifacts in a small portion of federal land, while permitting multiple uses such as recreation and grazing across the larger area.
In contrast, most monuments today are not of archeological interest but often ones of biologic or geologic interest. While some are relatively small, such as El Morrow in New Mexico, originally affecting only 160 acres, many are substantially larger. For example, President William Howard Taft withdrew 160 square miles to create Navajo National Monument in Arizona. Katmai in Alaska originally impacted 1,700 square miles when it was created in 1918. President Jimmy Carter later expanded Katmai by 2,140 square miles in 1978. Katmai, now a national park and preserve, covers 4.5 million acres, roughly 7,000 square miles. These larger monuments have led to substantial local opposition.
While the President may withdraw lands unilaterally, such power is not completely without limits. Even though the Act empowers Presidents to create monuments at their discretion, Congress retains the power to restrict that authority. Congress has primarily used this authority following the creation of contentious monuments. In reaction to perceived presidential land grabs, Congress has infrequently passed legislation limiting future withdrawals in specific areas. For example, when Congress created the Grand Tetons National Park, it also barred future monuments in Wyoming in response to local opposition to President Franklin Delano Roosevelt’s creation of the Jackson Hole National Monument. Similarly, the Alaska National Interest Lands Conservation Act (ANILCA) requires congressional approval for the creation of monuments in Alaska over 5,000 acres and was enacted following President Jimmy Carter’s proclamation of seventeen new monuments in the state in 1978. Despite limited success in Alaska and Wyoming, Congress has not substantially restricted the President’s authority to proclaim new monuments or reversed the creation of unpopular monuments. Since the enactment of ANILCA, the number of monuments and the amount of land set aside for conservation has continued to increase, and Congress has not acted. When subsequent land-use legislation was passed that limited or modified the Executive Branch’s ability to restrict the use of federal land, the power granted to the President under the Act remained virtually untouched.
B. The Attempts to Find a Judicial Solution for a Legislative Problem
Despite its repeated use and wide-ranging effects on federal land management with little oversight, the Act has been subject to infrequent litigation. Following its 1906 passage, the first suit did not reach the Supreme Court until 1920. Generally, the Court has been deferential to the President’s power to proclaim and preserve monuments. More pertinent to the Trump Administration, the Court has not reviewed whether the President has full discretion to modify, diminish, or revoke a prior monument following the 1976 passage of the Federal Land Policy and Management Act (FLPMA).
In Cameron v. United States, the plaintiff argued that the President had no authority to create a monument covering the Grand Canyon that infringed on the plaintiff’s preexisting lode mining claim. While the Court discussed the mineral law applicable to the mining claim at length, it quickly and unanimously dismissed the plaintiff’s arguments that the President lacked the power to reserve land under the Act, stating “[t]he act under which the President proceeded empowered him to establish reserves embracing objects of historic or scientific interest. The Grand Canyon, as stated in his proclamation, is an object of unusual scientific interest.” Subsequent Supreme Court cases reviewing the President’s power under the Act have been few and far between. For example, in Cappaert v. United States, the Court held that the President could reserve water rights on neighboring private lands that threatened an underground pool at Devil’s Hole, now part of the Death Valley Monument. When such cases have occurred, the Court has frequently expanded, not limited, the scope of the Act.
Circuit and district court cases have also upheld the President’s broad authority under the Act to proclaim new national monuments. The courts have limited their review to whether a president has facially exercised his discretion under the Act. Courts have deferred to the President on whether the land in question contains areas of historic, prehistoric, biologic, and geologic interest. They have also deferred to the President on whether a monument includes only the minimum amount of land compatible with the proclamation’s espoused conservation goals such as preserving an area’s natural beauty or protecting wildlife. The courts’ deferential treatment is unlikely to change considering the broad and clear language of the statute. Furthermore, if the Supreme Court were to hold that the President also retains unfettered power to substantially modify, diminish, or revoke existing monuments, many environmental groups would find themselves in a similar situation to would-be federal land users today. Conservationists looking to protect culturally important or environmentally sensitive areas could find themselves unable to meaningfully challenge a monument’s diminishment or revocation as seen at Bears Ears. The lack of litigation—and the lack of plaintiffs’ success—indicates that judicial resolution is unlikely. Only by changing the statute through legislative means can Congress fully address the limited judicial reviewability, lack of oversight or limitations, and potential irreversibility.
IV. Other Approaches to Regulating Federal Lands
The lack of clarity from the courts requires a legislative solution to the Act’s challenges. To better assess how the Act could be amended or replaced, it is important to understand how the federal government has addressed competing interests through land-use legislation. Section IV.A illustrates the Act’s distinctiveness by comparing it with other contemporaneous land‑use legislation. Sections IV.B, IV.C, and IV.D then show how the federal government has balanced the tradeoffs between conservation and other potentially economically beneficial uses in more modern land-use legislation.
A. Contemporaneous Legislation
The Antiquities Act is notable for its failure to include a process to modify, diminish, or revoke the President’s withdrawal of public lands—a characteristic not seen in other land-use legislation passed in the late nineteenth and early twentieth centuries. For example, the Pickett Act of 1910 specified that the withdrawal of lands for various purposes was revocable by the President or Congress. Similarly, the Forest Service Organic Act of 1897 permitted the President to modify prior orders establishing forest reserves including reducing the area of the prior reservation or revoking it altogether. National park legislation does not permit for presidential modification. Unlike monuments, however, national parks are created by Congress, not the President. That precludes executive discretion to modify or diminish the amount of land under conservation in those parks.
B. The Federal Land Policy and Management Act
Unlike the Antiquities Act, and more similar to the Pickett Act and the Forest Service Organic Act, modern land-use legislation like the FLPMA often specifies how, when, and by whom a withdrawal of land can be later modified or revoked. Passed in 1976, the FLPMA restricts the withdrawal of public lands of over 5,000 acres in aggregate without congressional approval to only twenty years, not in perpetuity. Moreover, for withdrawals over 5,000 acres, the FLPMA requires the Secretary of the Interior to provide to Congress inter alia:
(1) a clear explanation of the proposed use of the land which led to the withdrawal; (2) an inventory and evaluation of the current natural resource uses and values of the site and adjacent public and nonpublic land . . . including particularly aspects of use that might cause degradation of the environment, and also the economic impact of the change in use on individuals, local communities, and the Nation; (3) an identification of present users of the land involved, and how they will be affected by the proposed use; (4) an analysis of the manner in which existing and potential resource users are incompatable with or in conflict with the proposed use; . . . (8) a statement indicating the effect of the proposed uses, if any, on State and local government interests and the regional economy; (9) a statement of the expected length of time needed for the withdrawal; (10) the time and place of hearings and of other public involvement concerning such withdrawal; . . . and (12) a report . . . [on] general geology, known mineral deposits, past and present mineral production, mining claims, mineral leases, evaluation of future mineral potential, present and potential market demands.
The FLPMA also restricts the duration of withdrawals of less than 5,000 acres depending on use. Additionally, the FLPMA requires the Secretary to publish a notice in the Federal Register and provide opportunity for public hearing for any nonemergency withdrawal, irrespective of the size of the withdrawal. In the case of emergencies, the Secretary is empowered to immediately withdraw the land for up to three years. The FLPMA also provides for multiple uses for public lands, not just conservation. The FLPMA provides a clear approach that the federal government can take to balance its own policy interests with state and local government interests, economic impacts, and long-term conservation of resources. The FLPMA allows for public input and judicial oversight through an administrative process, which is mostly missing from the Antiquities Act.
The FLPMA could provide guidance on how to promote conservation without overly burdening regional economies, acting as a blueprint for future, conservation-specific, land-use legislation. There is clear overlap with the goals of the Antiquities Act and the FLPMA, with the latter stating that it is the policy of the United States to manage lands in a manner that protects “scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that . . . will preserve and protect certain public lands in their natural condition.”
C. The Marine Protection, Research, and Sanctuaries Act
The Marine Protection, Research, and Sanctuaries Act (the MPRSA) is also structured distinctly from the Antiquities Act, providing more opportunities for oversight and public redress. The MPRSA, passed in 1972, authorizes the creation of marine sanctuaries, each with their own set of regulations that prohibit actions including discharging material into the sanctuary, offshore construction and disruption of the seabed, as well as the exploration and development for the extraction of oil, gas, and other minerals. While the MPRSA does not include a specific provision for modification, it does provide an administrative process through the Office of National Marine Sanctuaries to designate marine sanctuaries, opening the creation of sanctuaries to judicial oversight. That administrative process includes public notice through the Federal Register as well as a public comment period prior to finalization of any rules. The MPRSA also sets out standards for the Secretary of Commerce to evaluate when designating sanctuaries, such as determining whether the area is of special national significance, and whether existing state and federal authorities are inadequate to ensure conservation. These requirements as set out in the MPRSA allow for the protection of sensitive ocean areas with conservational, recreational, ecological, or similar value without the broad discretion afforded to the President under the Antiquities Act.
D. The Outer Continental Shelf Lands Act
However, not all modern land-use legislation sets out a clear process for executive land withdrawals. Akin to the Antiquities Act, the Outer Continental Shelf Lands Act (the OCSLA) permits the President to remove public lands from leasing for oil, gas, and mineral exploration, development, and extraction with little administrative oversight. The OCSLA simply says that “[t]he President of the United States may, from time to time, withdraw from disposition any of the unleased lands of the outer Continental Shelf,” though historically withdrawals under the OCSLA have often been temporary.
Despite the permissive language of the OCSLA, it is distinct from the Antiquities Act in three key ways. First, the OCSLA applies to submerged lands and the underlying minerals, not to the ocean water itself. Even if land is withdrawn under the OCSLA, it may be used for navigation or fishing if not for mineral extraction. Second, Congress likely did not intend for the OCSLA withdrawals to be irrevocable, and in fact viewed the President’s authority under the OCSLA as similar to that of the Pickett Act, granting the President authority to temporarily, not permanently, withdraw lands. Lastly, the President’s withdrawal power under the OCSLA applies to unleased lands, meaning that the substantial portion of the outer continental shelf currently leased for oil and gas activity likely cannot be withdrawn until the leases expire.
Although leases under the OCSLA generally last through either their primary term or until oil and gas production ceases, the Bureau of Ocean Energy Management (BOEM) is empowered to suspend or cancel active leases—potentially expanding the President’s power to withdraw lands from use under the Act. Under the OCSLA, however, BOEM has authority to suspend a lease if one of several criteria are met, such as when it is in the national interest, when there is “a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life),” or when it is necessary to comply with judicial decrees.
The Secretary of the Interior may cancel a lease after it has been suspended for five years or more after holding a hearing and finding that either the continued activity would “probably cause serious harm or damage to life (including fish and other aquatic life),” or “the advantages of cancellation outweigh the advantages of continuing such lease or permit in force.” If the Secretary cancels an existing lease, the lessee is entitled to damages reflecting the lesser of either the fair value of the lessee’s rights upon the date of cancellation, or the leasing, exploration, development and interest costs less the lessee’s revenue from the lease. Cancelling existing leases and then withdrawing the now‑unleased acreage from future leasing could permanently remove public lands from oil and gas development. However, even if the President were to withdraw those lands, the President would be limited by the regulatory and economic terms set out by the OCSLA. The OCSLA’s clear process for withdrawals combined with its requirements to compensate the former lessee provides substantially more oversight and restrictions on withdrawals than the authority afforded to the President under the Antiquities Act.
V. Finding an Alternative Approach to Conservation
While the Antiquities Act promotes the conservation of areas of historic, prehistoric, biologic, and geologic interests, the Act also provides the President with broad discretion in a manner distinct from other land-use legislation. As discussed in Sections III.A and III.B, the President’s discretion is subject to little administrative or judicial oversight and little to no clarity over revocability of existing monuments. The President’s unfettered power to withdraw federal lands—potentially irrevocably—burdens many western states that contain a substantial amount of federal land that has limited use once incorporated into a monument.
The existence of other wide-reaching land-use legislation leads to two interrelated questions. First, is the Act necessary to promote conservation? After all, many other laws provide the Executive Branch, if not the President per se, the authority to remove federal lands from public use. Second, can other contemporaneous and modern land-use legislation be used as a guide to amend or replace the Act to achieve the same conservation goals, while reducing the Act’s negative externalities? Part V addresses both questions. Section V.A discusses how conservation could be promoted without the Act. Section V.B then outlines how the Act could be amended or replaced to better promote conservation while reducing negative externalities.
A. An Essential Part of U.S. Conservation Policy
It is reasonable to ask if the Act were repealed without any replacement, would the sky fall? Or perhaps more aptly in the case of mineral extraction, would the ground be broken asunder? Some legal scholars have argued it would not because Congress has delegated the President authority to withdraw lands for conservation purposes through other legislation. However, the President’s power to protect federal lands under most existing legislation is temporary, and usually targeted at specific types of land or restricting certain types of uses. Congressional action is needed to conserve substantial amounts of land outside of the Act, whether through the FLPMA or by the creation of a new national park.
Despite the potential bottlenecks for congressional protection, the current National Park System encompasses over 423 sites, of which eighty-five are monuments—indicative of extensive bipartisan interest in land conservation for both natural and historical purposes. However, some of the largest—and most controversial—reservations of public lands have been achieved through the Act. To the degree that Congress has acted to retroactively convert monuments into parks, or to restrict presidential power under the Act at all, it has often been minimal. For example, although the creation of Jackson Hole National Monument led to a lawsuit by the State of Wyoming and multiple failed congressional attempts to abolish the monument, Congress later passed a bill adding the monument to the existing Grand Teton National Park decades after the initial proclamation. Similarly, even though Congress restricted future presidential actions to create large-scale monuments in Alaska following the passage of ANILCA, the law also created most of the national parklands in the state, some of which were converted monuments. Although there has been controversy over the creation of new monuments or expansions of existing ones, it has not translated to the diminishment of many by Congress.
The Act appears to promote conservation that would otherwise be politically difficult if not entirely infeasible. It is hard to imagine that Congress would pass future legislation to create monuments of the scale of Katmai without significant outside pressure caused by direct constituent backlash towards congresspersons from an affected state and the limited incentives for other members of Congress to act. Under the Act, the President may be one of the most effective sources of that very type of pressure that can force Congress to act. The lack of congressional action to overturn existing monuments makes it appear that Congress tacitly supports the President’s conservation agenda to at least some degree. The President may be able to pressure Congress to conserve large areas of land without the Act, but the Act may be one of the simplest because of its lack of restrictions. As noted, the President appears empowered to protect large tracts of offshore lands under the OCSLA, but to date a president has not withdrawn large tracts of onshore federal lands permanently outside of the Antiquities Act. Considering the number of national battlefields, historical parks and sites, as well as national memorials, Congress has demonstrated its willingness to preserve relatively small areas of historical or archeological interest, but the Act is one of the most direct ways of conserving extraordinarily large areas of biologic and geologic interest. Therefore, repealing the Act in full would likely dramatically reduce the federal government’s ability and effectiveness in protecting sensitive areas in the future, making the Act perhaps not indispensable, but certainly a core part of U.S. conservation policy.
B. Balancing Conservation and Economic Development
Comparing the Antiquities Act to other contemporaneous land-use legislation such as the Pickett Act and the Forest Service Organic Act as well as more modern land-use legislation, such as the FLPMA, the MPRSA, and the OCSLA, evinces that there are less burdensome alternatives to promoting conservation that balances environmental and social considerations with state, local, economic, and individual interests without granting the President unchecked power. This Section identifies the range of interests that the federal government has protected through land-use legislation, outlines negative externalities of the Antiquities Act in comparison to other existing legislation, and proposes potential compromises to balance both federal policy interests and those externalities.
1. The Antiquities Act Undermines U.S. Land-Use Policy.
Through various legislation, the federal government espouses a land policy pursuing wide-ranging economic and noneconomic benefits for U.S. citizens such as mineral extraction, grazing, hunting, and fishing. Often the benefits to the public are noted but not quantified, particularly for legislation promoting conservation or recreation. But even legislation aimed at economic activities does not necessarily quantify the proposed benefits, though estimates can be made, and some of the benefits are calculated retroactively. For example, the OCSLA cites its purpose as simply providing for federal jurisdiction over submerged lands of the outer continental shelf. However, mineral leasing, rental, royalty and other revenues from the Gulf of Mexico alone were $9.2 billion, $12 billion, and $3.7 billion in fiscal years 2018, 2019, and 2020 respectively—a substantial economic benefit. The FLPMA perhaps outlines the purpose of federal land policy most clearly, noting that the public lands should be managed for sustainable, long-term use for multiple purposes in a manner such that the federal government, on behalf of the taxpayer, receives fair market value. Through a patchwork of agencies, primarily the Bureau of Land Management, Forest Service, Fish and Wildlife Service, and National Park Service, the federal government can and does further those broad policy goals through public (and competitive) leasing, providing grazing access as well as furnishing recreational sites.
Because the Antiquities Act is aimed at promoting conservation rather than economic development, monuments often exclude many other nonconservation or nonrecreational activities. Nor is there any requirement that the President should consider or assess the economic and noneconomic costs of creating the monument. When preserving smaller monuments, similar to those envisioned by legislators prior to the passage of the Act, the exclusion of other activities likely poses minimal costs. However, if a monument covers over a thousand square miles, particularly in areas containing substantial natural resources, the withdrawal could have a substantial negative impact on the local community. Combined with the fact that the federal government owns land in predominantly western states, any negative impacts would be regionally concentrated. To the degree that overall federal policy seeks to achieve a balance between land-use and conservation, the fact that the Act grants the President substantial independence and discretion allows the President to side-step those policy ambitions.
Presidential incentives can vary based on term and overall political climate. Without substantive judicial or regulatory oversight, the promotion of U.S. land policy interests under the Antiquities Act may be only coincidental. For example, the amount of tourism revenue generated by the Grand Staircase‑Escalante National Monument for the Southern Utah and Northern Arizona economies today was likely incidental to President Bill Clinton’s policy objectives when he named the monument shortly before his reelection. Therefore, the lack of regulatory process combined with the discretion afforded to the President by the Act undermines a more coherent approach to asserting federal land policy interests. Land-use legislation should try to balance both commercial use and conservation. Instead, the Act allows an individual administration’s interests to supersede a more comprehensive approach to managing and protecting federal lands.
2. The Antiquities Act Causes Negative Externalities.
Negative externalities of federal land-use legislation include the loss of economic use through commercial or industrial development, as well as noneconomic losses including restrictions on state and local governments promoting their own regional interests. Neither type of loss is readily quantifiable. Despite owning over a quarter of all lands within the United States, quantifying the value of federal land is difficult. A 2009 estimate pegged it as close to $1.8 trillion for the lower forty-eight alone, though it has likely grown significantly since then. That estimate is a static one as changes in federal land-use policy could increase the value of both federal lands as well as adjacent, privately and state-owned lands.
Quantifying the cost of economic underdevelopment faces tremendous uncertainties. For example, if the 1002 area of the Alaska National Wildlife Refuge (ANWR) is fully developed following the lease sales specified in the 2017 Tax Cuts and Jobs Act, oil production could peak between 560,000 barrels per day and 1.2 million barrels per day. That range is larger than Alaska’s current daily production. The value of federal land holdings in Alaska would likely increase substantially if local authorities could determine whether they wanted to convert the land from wilderness to oil and gas production, and this could provide ancillary benefits to adjacent lands by increasing throughput into Alaska pipelines, of particular regional importance to the state. The creation of monuments has also benefited communities, partially replacing the revenue that would otherwise come from commercial development. That makes it more difficult to accurately estimate the potential net economic costs. Alaska illustrates the sheer scale of the potential costs and benefits of national monuments. In 2018, almost three million visitors to Alaskan national parks spent over $1.3 billion—a sizeable sum, though less than the nearly $2.1 billion in state petroleum revenue. Outside of Alaska, the math proves more difficult due to the lower concentration of oil and gas resources on federal lands as well as the adjacency of federal land to urban and suburban areas, which could be potential sources of tourism revenue, partially offsetting some declines in other revenues. It has been estimated that the number of jobs and businesses near fourteen monuments designated between 1996 and 2014 grew by 8.5% and 10% on average, respectively, though those numbers should be treated as suggestive rather than conclusive. The averages likely mask a wide range of outcomes and any economic losses from undeveloped mineral resources could prove difficult or even impossible to quantify ex ante.
The loss in regional autonomy also cannot reasonably be quantified. Federal land-use policy inherently limits how individuals, as well as state and local governments, can use federally owned land. But federal interests are not always contrary to local interests. For example, Inupiat leaders have had conflicted approaches to oil and gas development on the North Slope and offshore of Alaska with some supporting and others opposing new leasing and projects. That conflict was reflected in the regulatory scrutiny applied to offshore exploration. As the North Slope Borough Mayor Charlotte Brower noted, outsiders coveting “wilderness areas and romantic notions of what the Arctic should be” has led to a paternalistic approach that disenfranchises the residents of the areas to be protected. The ability for North Slope communities to influence how federal land is used would only worsen if a president withdrew lands under the Antiquities Act. If a president created a new North Slope monument, the Inupiat would have little or no ability to debate the merits of economic benefits versus potential losses due to spills and impacts on whaling. To the degree that the Antiquities Act side-steps federal land policy as discussed in Section V.B.1, it also circumvents potentially meaningful local stakeholder engagement in federal land policy whether through regulatory processes or the courts. Though perhaps not something that can be put in terms of dollars and cents, the ability to shape federal land policy promotes state welfare in way that a unilaterally created monument may not.
3. A Modest Proposal to Amend the Act.
The Antiquities Act fulfills a conservatory purpose that would otherwise be unmet by alternative legislation. However, its broad discretion and lack of regulatory and judicial oversight creates challenges for a wide number of land users. Those challenges could be avoided if the Act was amended to create guiderails to limit unilateral presidential action. Amending or replacing the Act would need to accomplish three things to promote conservation efforts while reducing the drawbacks created by its expansive authority granted to the President. First, the President would need to retain the ability to unilaterally select potentially large areas of federal land for withdrawal. If anything, the Act has led to the creation of sizeable national monuments, some of which retained their scale even after being converted to National Parks by Congress. It is difficult to believe that such conservation efforts could be achieved without granting the President similar withdrawal power as established in the Act. Second, the authority should be near-permanent, but the withdrawal should be based on enumerated standards and only subject to future modification, diminishment, or revocation through a clearly delineated process. The temporary withdrawal powers afforded under the FLPMA likely cannot properly address areas of historic, prehistoric, biologic, and geologic interest sufficiently because of the nature of their sensitivities. Threatened wildlife and indigenous artifacts that have existed in a region for thousands of years would hardly be protected by a 10‑ or 20-year development moratorium. However, those standards should require the President to qualify, and to the degree possible quantify, the benefits and costs of creating or expanding a monument—including identifying the disparate impacts of the costs on the local community versus broader regional or national benefits. Third, there must be meaningful judicial oversight based on the amended Act’s enumerated standards. If anything, the most problematic issue posed by the Act is the apparent lack of addressability short of new legislation. Proposing new standards and processes for creating a new monument or later modifying, diminishing, or revoking one would allow the judiciary to better evaluate a president’s use or abuse of his or her discretion.
The FLPMA, the MPRSA, and the OCSLA can provide a blueprint for future amendments. A full regulatory process may impinge on the President’s effectiveness at conserving areas of interest, but some limitations on presidential action could prove beneficial in the long run. For example, Congress could more clearly outline the limits of presidential power and require reporting similar to the FLPMA. An amended Antiquities Act or a replacement act could specify that prior to naming a new monument, the President must provide a report to Congress detailing (1) how the land is currently being used, (2) why that use would not be compatible with conservation, (3) the economic and noneconomic impacts on the local community, and (4) any potential mineral or other natural resources whose value would be foregone by the government if the land was withdrawn. Furthermore, Congress could require that the benefits of any proposed withdrawal must outweigh its costs, and that any such withdrawal must be predicated on whether the current use of the land would likely cause harm to areas of historic, prehistoric, biologic, and geologic interest. Specifying the President’s powers in this manner would result in the retention of much of the Antiquities Act’s conservation benefits, while more effectively limiting new monuments to the least negatively impactful area compatible with providing those benefits. It would also allow the judiciary a greater opportunity to evaluate whether the President’s actions comported with Congress’s intent.
Of course, the creation of monuments is only one issue posed by the Antiquities Act. A clear process for modification, diminishment, or revocation of monuments is also needed. If the President was required to provide a report to Congress as outlined in the previous paragraph, it would be reasonable to allow for a future president to subsequently modify, diminish, or revoke an existing monument if the original cost/benefit analysis no longer held true, or if some types of land use were later determined to not conflict with protecting the monument’s areas of interest. That would prevent the President from arbitrarily modifying a monument but would allow modification if the monument no longer served its original intended purpose. Providing such a process could head off the current legal limbo created in part by the Trump Administration by providing for modification with limitations—thus preventing the unilateral termination of environmental protection afforded by the Antiquities Act, while acknowledging that land-use needs change over time based on circumstances and popular sentiment. Congress can increase support for conservation by all stakeholders and promote more and better targeted conservation in the future by creating a more balanced approach to creating as well as revoking monuments.
When President Donald Trump shrunk the Bears Ears National Monument by 85% and simultaneously halved the Grand Staircase-Escalante National Monument in December 2017, he opened up a debate about not only the scope of the Antiquities Act, but also whether unilateral presidential power to create and expand national monuments promotes conservation and other federal land policy interests. Since its passage in 1906, the Antiquities Act has empowered presidents to withdraw federal lands covering areas of historic, prehistoric, biologic, and geologic interest from other uses with few limitations. This stands in marked contrast to subsequent modern land-use legislation, which often limits executive power to withdraw land in scale, scope, duration, or all three. Furthermore, the Court has interpreted the Act to afford the President wide discretion, limiting opportunities for judicial oversight or redress. The broad scope of the Act seems contrary to public policy interests, affording stakeholders limited means to influence the use of adjacent federal lands. While federal conservation efforts would likely be harmed immensely if the Act were repealed, modifying it to more clearly define the President’s authority (or lack thereof), as well as provide opportunities for judicial review and monument modification, could preserve the Act’s benefits while reducing its negative externalities, both economic and noneconomic. After 105 years, it may be time to end—or at least amend—the monuments men.
Roberto Iraola, Proclamations, National Monuments, and the Scope of Judicial Review Under the Antiquities Act of 1906, 29 Wm. & Mary Env’t L. & Pol’y Rev. 159, 166–69 (2004).
Section 2 of the Antiquities Act provides for the President to create national monuments with few limitations, stating in full:
Sec. 2. That the President of the United States is hereby authorized, in his discretion, 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, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected: Provided, That when such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is hereby authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.
Antiquities Act of 1906, Pub. L. 59–209, 34 Stat. 225 [hereinafter Antiquities Act] (codified as amended at 54 U.S.C. § 320301) (emphasis in original).
Proclamation No. 9,681, 82 Fed. Reg. 58,081 (Dec. 4, 2017) [hereinafter Modifying the Bears Ears National Monument]; Proclamation No. 9,682, 82 Fed. Reg. 58,089 (Dec. 4, 2017) [hereinafter Modifying the Grand Staircase-Escalante National Monument]; see also Nadja Popovich, Bears Ears National Monument Is Shrinking. Here’s What Is Being Cut, N.Y. Times (Dec. 8, 2017), https://www.nytimes.com/interactive/2017/12/08/climate/bears-ears-monument-trump.html [https://perma.cc/CQ6F-VRWF] (outlining the Trump Administration’s diminishment of the Bears Ears and Grand Staircase-Escalante monuments and subsequent legal and public controversy).
See infra Section III.A (discussing the legislative history of the Antiquities Act and its use).
What Is a National Monument, Nat’l Parks Conservation Ass’n (May 3, 2017), https://www.npca.org/resources/3202-what-is-a-national-monument [https://perma.cc/PA4J-JDXJ].
Ryan K. Zinke, Final Report Summarizing Findings of the Review of Designations Under the Antiquities Act 4 (“The Act has been used to designate or expand national monuments on Federal lands more than 150 times. It has also been used at least 18 times by presidents to reduce the size of 16 national Monuments . . . .”).
1 George Cameron Coggins & Robert L. Glicksman, Public National Resources Law § 3:23 (2d ed. 2011) (“Executive discretion in statutory implementation.”); see infra Section III.A (discussing the Act’s judicial history).
1 Coggins & Glicksman, supra note 7; see also Proposed Abolishment of Castle Pinckney National Monument, 39 Op. Att’y Gen. 185, 188 (1938) (“While the President from time to time has diminished the area of national monuments established under the Antiquities Act . . . it does not follow from his power so to confine that area that he has the power to abolish a monument entirely.”). Although prior Administrations have modified or diminished monuments in the past, all were before the passage of the Federal Land Policy and Management Act of 1976, which expressly limits the modification, diminishment, or revocation of national monuments. Mark Squillace et al., Presidents Lack the Authority to Abolish or Diminish National Monuments, 103 Va. L. Rev. Online 55, 59–61 (2017); see also Federal Land Policy and Management Act of 1976, Pub. L. 94–579, 90 Stat. 2743, § 204 (“Withdrawals”) (1976) [hereinafter FLPMA] (codified as amended at 43 U.S.C. § 1714) (“The Secretary shall not . . . modify or revoke any withdrawal . . . creating national monuments . . . .”). The reference to the Secretary rather than the President in § 204(j) is anomalous and appears to be a drafting error. Squillace et al., supra, at 60.
Squillace et al., supra note 8, at 69 (“But the clear restriction on modifying or revoking a national monument designation—cemented by [the] FLPMA—indicates that a president cannot simply revisit a predecessor’s decision about how much public land should be protected.”); James R. Rasband, The Future of the Antiquities Act, 21 J. Land Res. & Env’t L. 619, 626–27 (2001) (“Because a monument is a withdrawal accomplished by a specific act of Congress, it seems likely that a court would deny a president the power to revoke a prior national monument designation.”). But see John Murdock, Monumental Power: Can Past Proclamations Under the Antiquities Act Be Trumped?, 22 Tex. Rev. L. & Pol. 349, 393–94 (2018) (discussing arguments by proponents of a revocation power under the Act); John Yoo & Todd Gaziano, Presidential Authority to Revoke or Reduce National Monument Designations, 35 Yale J. Reg. 617, 639 (2018) (“[T]he authority to execute a discretionary government power usually includes the power to revoke it—unless the original grant expressly limits the power of revocation.”).
Federal land holdings represent 60.9% of Alaska, 38.6% of Arizona, 45.4% of California, 36.2% of Colorado, 61.9% of Idaho, 80.1% of Nevada, 31.7% of New Mexico, 52.3% of Oregon, 63.1% of Utah, 46.7% of Wyoming, but only 24.7% of Washington, D.C., and 27.1% of the United States overall. Carol hardy Vincent et al., Cong. Res. Serv., R42346, Federal Land Ownership: Overview and Data 7–9 (2020).
See infra Section III.B (discussing the judicial history of the Antiquities Act).
Exec. Order No. 13,792, 82 Fed. Reg. 20,429, 20,429–30 (Apr. 26, 2017) (“Review of Designations Under the Antiquities Act”); see also Zinke, supra note 6, at 3–6 (outlining the history of the Antiquities Act and identifying monuments under review by the Department of the Interior in 2017); Julie Turkewitz et al., Here Are the 10 National Monuments the Interior Department Wants to Shrink or Modify, N.Y. Times (Sept. 18, 2017), https://www.nytimes.com/interactive/2017/09/18/climate/bears-ears-changes-monuments.html [https://perma.cc/372Y-HQRU] (summarizing Interior Secretary Ryan Zinke’s proposal to modify ten national monuments including Bears Ears).
Zinke, supra note 6, at 4.
Exec. Order No. 13,792, 82 Fed. Reg. at 20,429; Zinke, supra note 6, at 4–6.
Zinke, supra note 6, at 4–6.
Complaint at 1, Nat. Res. Def. Council, Inc. v. Trump, No. 17-cv-02606 (D.D.C. Dec. 7, 2017). Several suits have been filed against the Trump Administration regarding its use of the Antiquities Act, though no district court has issued a ruling on the cases as of March 2021. Courtney Tanner, Here’s a Breakdown of the 5 Lawsuits Filed Against Trump that Challenge His Cuts to 2 Utah National Monuments, Salt Lake Trib. (Dec. 10, 2017), https://www.sltrib.com/news/politics/2017/12/11/heres-a-breakdown-of-the-5-lawsuits-filed-against-trump-challenging-his-cuts-to-two-utah-national-monuments/ [https://perma.cc/E3L8-PVMQ]; Brian Maffly, Trump’s Monument Reduction Could Be Reversed Under Biden, Associated Press, Nov. 15, 2020, https://apnews.com/article/joe-biden-donald-trump-bears-utah-environment-dc66fa599c0868ccc34458467562ff1a [https://perma.cc/Z82X-KKQH].
See infra Section V.B.2 (discussing the negative externalities cause by the Antiquities Act).
Murdock, supra note 9, at 354 (“Indeed, few, if any, voting on the proposed Antiquities Act in 1906 would have anticipated its use on tracts covering thousands of square miles.”). For a more in-depth review of the history of the Antiquities Act and the push for land and archeological conservation in the late 19th and early 20th centuries, see Richard West Sellars, A Very Large Array: Early Federal Historic Preservation—The Antiquities Act, Mesa Verde, and the National Park Service Act, 47 Nat. Res. J. 267 (2007), outlining the Antiquities Act’s purpose within a broader set of contemporaneous conservation and preservation legislation, and Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473 (2003), discussing the history and use of the Antiquities Act as well as its subsequent controversy.
Murdock, supra note 9, at 355.
Id. at 354–55; Sellars, supra note 18, at 269.
Murdock, supra note 9, at 356; Gila Cliff Dwellings National Monument, N.M. Tourism Dep’t, https://www.newmexico.org/places-to-visit/regions/southwest/gila-cliff-dwellings/ [https://perma.cc/Q4EW-MBRJ] (last visited July 8, 2021).
Gila Cliff Dwellings National Monument, supra note 21.
See Gila National Forest Resource Management, USDA Forest Serv., https://www.fs.usda.gov/resources/gila/landmanagement/resourcemanagement [https://perma.cc/HY8Y-D28A] (last visited July 11, 2021); Gila National Forest Recreation, USDA Forest Serv., https://www.fs.usda.gov/recmain/gila/recreation [https://perma.cc/AKB5-AC3H] (last visited July 7, 2021).
Murdock, supra note 9, at 356. In fact, one of the first monuments declared was the Devils Tower in Wyoming, which was notable for its natural beauty rather than archeological significance. Id.
Archeology: National Monument Facts and Figures, Nat’l Park Serv., https://www.nps.gov/archeology/sites/antiquities/monumentslist.htm [https://perma.cc/JEJ7-79QJ] (last visited July 8, 2021).
Id. Today, Navajo is much smaller. Although President Taft initially withdrew 160 square miles in 1909, he later shrunk the monument to only 360 acres in 1912. Id.
Katmai National Park and Preserve, Alaska, Nat’l Park Serv., https://www.nps.gov/archeology/sites/antiquities/profileKatmai.htm [https://perma.cc/GWU3-3YNH] (last visited July 6, 2021).
Murdock, supra note 9, at 351, 361, 363.
Id. at 355–56, 361–63.
Monuments have proven contentious for many reasons such as size or location. Withdrawals by lame-duck presidents have also been controversial. For example, Utah Senator Wallace Bennett claimed that President Lyndon B. Johnson’s last-minute expansion of the Arches and Capitol Reef National Monuments was a “last gasp attempt to embalm a little more land in the West,” though Bennett failed in overturning the creation of the monuments. Rasband, supra note 9, at 619 (first citing Gordon Elliot White, Hearings Due on Land Plan, Deseret News B1 (Jan. 22, 1969); and then citing Bennett Blasts LBJ ‘Land Grab’ to Expand 2 Monuments in Utah, Salt Lake Trib. § 2 at 17 (Jan. 22, 1969)); see Nat’l Park Serv., supra note 25.
Murdock, supra note 9, at 361–62; see also Grand Teton National Park Act, Pub. L. No. 787, 64 Stat. 849 [hereinafter Grand Teton Act] (codified as amended in scattered sections of 16 U.S.C.) (“[N]o further extension or establishment of national parks or monuments in Wyoming may be undertaken except by express authorization of the Congress.”), repealed in part by National Park Service and Related Programs Act, ch. 3203, § 1866, 128 Stat. 3094, 3274.
Murdock, supra note 9, at 362–63; see also Alaska National Interest Lands Conservation Act, Pub. L. 96-487, 94 Stat. 2371 (1980) [hereinafter ANILCA] (codified as 16 U.S.C. §§ 3103–3233) (restricting Executive Branch to withdrawals of less than 5,000 acres unless Congress passes a joint resolution of approval within one year of the withdrawal).
Brent J. Hartman, Extending the Scope of the Antiquities Act, 32 Pub. Land & Res. L. Rev. 153, 169 (2011) (“Congress has introduced bills to specifically limit or repeal the Antiquities Act, but Congress has rarely succeeded.”).
Over fifty monuments have been established since ANILCA’s passage in 1980. Nat’l Park Serv., supra note 25.
Squillace et al., supra note 8, at 59–60 (“[The] FLPMA left unchanged the President’s authority to create national monuments under the Antiquities Act, and included language confirming that Congress alone may modify or abolish monuments.”).
Murdock, supra note 9, at 358–60 (discussing the limited litigation history of the Antiquities Act).
Cameron v. U.S., 252 U.S. 450 (1920). Cameron’s case is discussed more in depth in Mark Squillace’s The Monumental Legacy of the Antiquities Act of 1906. Squillace, supra note 18, at 490–92. While Cameron’s argument revolved around his mining claims, it appears he intended to use his claim to charge tourists a toll to access the Bright Angel Trail after his state-conferred tolling rights expired rather than exploit any mineral deposits. Id. at 490–91.
Murdock, supra note 9, at 360.
Squillace et al., supra note 8, at 59–64.
Cameron, 252 U.S. at 454–55. The monument in question was not small, covering more than 800,000 acres. Squillace, supra note 18, at 490. Furthermore, the Grand Canyon National Monument was one of eighteen announced by President Theodore Roosevelt in the span of three years, setting the stage for the broader, more permissive use of the Act to further a president’s conservation agenda. Id. (“The Grand Canyon National Monument was important not only because of its significance to our national heritage, but also because it spawned the lawsuit that seemed destined from the start to secure the expansive interpretation of the Antiquities Act that would make the Act’s legacy possible.”).
Cameron, 252 U.S. at 454–56 (internal quotations marks omitted).
Murdock, supra note 9, at 358–60.
Cappaert v. U.S., 426 U.S. 128, 128, 131, 133, 147 (1976) (“We hold . . . when the United States reserved Devil’s Hole, it acquired by reservation water rights . . . sufficient to maintain the level of the pool to preserve its scientific value and thereby implement Proclamation No. 2961.”).
See supra notes 39–43.
See, e.g., Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1137 (D.C. Cir. 2002) (holding that the Antiquities Act did not apply solely to “rare and discrete man-made objects, such as prehistoric ruins and ancient artifacts,” but also land based on the precedent set in Cameron); Tulare Cnty. v. Bush, 185 F. Supp. 2d 18, 25 (D.D.C. 2001), aff’d, 306 F.3d 1138 (D.C. Cir. 2002) (holding that while the court could review whether a president exercised his discretion in accordance with the standard, it could not review a president’s determinations or factual findings because Congress had granted him discretion). Roberto Iraola discusses appellate and district court holdings in greater detail in Proclamations, National Monuments, and the Scope of Judicial Review Under the Antiquities Act of 1906. Iraola, supra note 1, at 174–84.
Iraola, supra note 1, at 184–86.
Id. at 185–86.
Antiquities Act, supra note 2.
Squillace et al., supra note at 8, at 58 (“The narrow authority granted to the President to reserve land under the Antiquities Act stands in marked contrast to contemporaneous laws that delegated much broader executive authority to designate, repeal, or modify other types of federal reservations of public lands.” (emphasis omitted)).
Id.; see also Pickett Act, Pub. L. No. 303, 36 Stat. 847 (1910) (“That the President may . . . temporarily withdraw from settlement . . . any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.”) (repealed 1976).
Squillace et al., supra note 8, at 58 (noting that the Forest Service Organic Act permitted the President “to modify any Executive order that has been or may hereafter be made establishing any forest reserve, and by such modification may reduce the area or change the boundary lines of such reserve, or may vacate altogether any order creating such reserve”); see also Organic Act of 1897, ch. 2, 30 Stat. 11, 34 (1897) (codified as amended in scattered sections of 16 U.S.C.).
Edward Hale, Can the President Modify a Monument?, Regul. Rev. (Sept. 4, 2019), https://www.theregreview.org/2019/09/04/hale-can-president-modify-monument/ [https://perma.cc/K8LP-5EQN].
Note that under the FLPMA, the term withdrawal means more than simply remove from public use for purposes of conservation. It defines withdrawal more broadly as the “withholding [of] an area of Federal land from settlement, sale, location, or entry . . . for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program.” FLPMA, supra note 8, § 103(j).
Id. § 204(c) (“[A] withdrawal aggregating five thousand acres or more may be made . . . only for a period of not more than twenty years . . . .”).
Id. § 204(d).
Id. §§ 204(b), (h).
Id. § 204(e).
Id. § 102(a)(7).
Under the FLPMA, the Secretary or his delegate’s authority to withdraw public lands from use is reviewable under the Administrative Procedures Act. Id. § 204(c). This is distinct from the Antiquities Act, which authorizes the President to permanently withdraw lands without an administrative process. Antiquities Act, supra note 2.
FLPMA, supra note 8, § 102(a)(8).
Payton A. Wells, Note, Choose Your Laws Carefully: Executive Authority to Unilaterally Withdraw the United States Outer Continental Shelf from Leasing Disposition, 67 Duke L.J. 863, 875–76 (2018); see also Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. No. 92-532, 86 Stat. 1052 (1972) [hereinafter MPRSA] (codified as amended at 16 U.S.C. §§ 1431–1445) (regulating and providing for research into the dumping of waste into the ocean).
Wells, supra note 66, at 876; see also MPRSA, supra note 66; Regulations, NOAA: Nat’l Marine Sanctuaries, http://sanctuaries.noaa.gov/protect/regulations [https://perma.cc/W8BU-9PQW] (last visited July 7, 2021).
Wells, supra note 66, at 875–76.
Regulations, supra note 67.
MPRSA, supra note 66, § 302.
See Wells, supra note 66, at 876.
Outer Continental Shelf Lands Act, Pub. L. 212–345, 67 Stat. 462 (1953) [hereinafter OCSLA] (codified as 43 U.S.C. §§ 1331–1356) (governing the development of the outer continental shelf).
Id. § 12(a); see Nat. Res. Def. Council & Earthjustice, Briefer on Presidential Withdrawal Under OCSLA Sec. 12(a) 1, i (2016), https://www.nrdc.org/sites/default/files/briefer-on-ocsla-withdrawal-authority_20161121_0.pdf [https://perma.cc/M4HD-HCUR].
See OCSLA, supra note 72, § 3.
Wells, supra note 66, at 877 (citing Senate Reports that stated the OCSLA’s jurisdiction extended only to the seabed and subsoil but not the waters above).
Id. at 877–79 (noting that the OCSLA was passed prior to the repeal of the Pickett Act, and therefore Congress may have intended § 12(a) to vest the same modification and revocation power in the President as included in the Pickett Act).
OCSLA, supra note 72, § 12(a). This is not a minor limitation. Since 1954, the federal government has leased approximately 166 million acres for offshore energy development, primarily, but not exclusively, in the Gulf of Mexico, generating $83.3 billion in revenue for the government from lease bonuses alone, excluding royalties and rental fees. Bureau of Ocean Energy Mgmt., Dep’t of the Interior, Gulf of Mexico OCS Region Table 1. All Lease Offerings 1, 5 (2020), https://www.boem.gov/sites/default/files/documents/about-boem/Table 1 SwilerTable BOEM16Oct2020.pdf [https://perma.cc/AZY5-FAEZ]. There are currently 2,283 active leases in the federal waters of the Gulf of Mexico covering 12.1 million acres. GOM Interactive Lease Statistics Dashboard, Bureau of Ocean Energy Mgmt., https://www.boem.gov/gom-interactive-lease-statistics-dashboard [https://perma.cc/T324-SXBG] (last visited July 6, 2021). Additionally, while leases without production may expire after a fixed term of years varying by water depth, region, and award date (the “initial” or “primary” term), a substantial number of leases are held by production and will only expire once production ceases. Oil and Gas Leasing on the Outer Continental Shelf, Bureau of Ocean Energy Mgmt., https://www.boem.gov/sites/default/files/uploadedFiles/BOEM/Oil_and_Gas_Energy_Program/Leasing/5BOEMRE_Leasing101.pdf [https://perma.cc/KP92-JF6U] (“If a discovery is made within the initial term of the lease, the lease is extended for as long as oil and/or natural gas is produced in paying quantities or approved drilling operations are conducted.”); see infra note 78 (explaining the leasing process).
BOEM, part of the Department of the Interior, is the government agency responsible for leasing lands in the U.S. outer continental shelf for mineral extraction, including oil and gas exploration, development, and production. Oil and Gas Leasing on the Outer Continental Shelf, supra note 77. Leases are offered multiple times a year in different regions such as the Gulf of Mexico or Cook Inlet as part of a “Five Year Program.” 2017–2022 Lease Sale Schedule, Bureau of Ocean Energy Management, Bureau of Ocean Energy Mgmt., https://www.boem.gov/2017-2022-lease-sale-schedule [https://perma.cc/RX9H-XPMS] (last visited July 11, 2021) (outlining the current Five-Year Program). Following the adoption of the program, BOEM begins the lease sale process including requesting for areas of industry interest, development of a draft environmental impact statement, and publish a notice of sale in the Federal Register. Oil and Gas Leasing on the Outer Continental Shelf, supra note 77. BOEM subsequently holds the planned lease sale, awarding leases to the qualified bidder who offers the highest signature bonus for a given tract (referred to as a “block”) as long as the government determines that the bid meets or exceeds fair market value for the block. Id. The primary term duration and royalty has varied by lease sale vintage and water depth, stipulated in the lease agreement for each sale. Bureau of Ocean Energy Mgmt., Dep’t of the Interior, Final Gulf of Mexico Oil and Gas Region-Wide Lease Sale 251, August 15, 2018 Lease Terms and Economic Conditions 1 (2018), https://www.boem.gov/sites/default/files/oil-and-gas-energy-program/Leasing/Regional-Leasing/Gulf-of-Mexico-Region/Lease-Sales/251/Sale-251-Lease-Terms-Econ-Conditions.pdf [https://perma.cc/SD6G-GR7D] (illustrating lease terms and economic conditions for blocks of different water depths). The leasing agreement also “spells out requirements for surety bonds, royalty payments, rental payments, and assignment or other transfers of the lease or any partial interest.” Oil and Gas Leasing on the Outer Continental Shelf, supra note 77. The term of the lease may be extended if BOEM grants a suspension of production or operations. Id. If a commercial discovery is made and production commences, “the lease is extended for as long as oil and/or natural gas is produced in paying quantities.” Id.
Adam Vann, Cong. Rsch. Serv., RL33404, Offshore Oil and Gas Development: Legal Framework 15 (2018) (citing 43 U.S.C. § 1334(a)(1)).
Id. at 14–15 (citing 43 U.S.C. § 1334(a)(2)(A)(i)–(iii)).
Id. at 15 (“Upon cancellation, the OCSLA entitles lessees to certain damages. The statute calculates damages at the lesser of: (1) the fair value of the canceled rights on the date of cancellation or (2) the excess of the consideration paid for the lease, plus all of the lessee’s exploration- or development-related expenditures, plus interest, over the lessee’s revenues from the lease.”).
See id. at 3–5.
Iraola, supra note 1, at 163 (“[T]he Act confers upon the President the authority to designate national monuments without public participation, congressional review, or any other procedural prerequisite.”).
In general, the federal government owns a significantly higher proportion of the land in western states including Alaska. See supra note 10 and accompanying text.
For example, James R. Rasband has argued that the Antiquities Act may not be truly necessary for promoting conservation because there are alternative options even in an emergency. The FLPMA explicitly provides for emergency withdrawals, albeit for only three years rather than in perpetuity. After three years Congress would have to approve any permanent withdrawals. Rasband, supra note 9, at 630–31. Other laws also provide for emergency withdrawals. The OCSLA provides the executive branch the power to remove lands from leasing. OCSLA, supra note 72, § 12(a). However, as discussed in Section IV.D supra, it is unclear whether the OCSLA § 12(a) granted President Barack Obama the power to unilaterally withdraw millions of offshore unleased acres permanently from disposition. Wells, supra note 66, at 865–66. The United States District Court for the District of Alaska held that President Trump’s executive order attempting to undo that withdrawal was unlawful, but the case has yet to be heard by either the Ninth Circuit Court of Appeals or the Supreme Court. League of Conservation Voters v. Trump, 363 F. Supp. 3d 1013, 1030 (D. Alaska 2019).
See, e.g., FLPMA, supra note 8, § 204; OCSLA, supra note 72, § 12.
FLPMA, supra note 8, § 204; Quick History of the National Park Service, Nat’l Park Serv., https://www.nps.gov/articles/quick-nps-history.htm [https://perma.cc/CXX2-HHME] (last visited July 6, 2021).
Rocío Lower & Rebecca Watson, How Many National Parks Are There?, Nat’l Park Found.: Connect, https://www.nationalparks.org/connect/blog/how-many-national-parks-are-there [https://perma.cc/AN4P-M2ZH] (last visited July. 7, 2021). As previously noted, presidents have designated or expanded monuments over 150 times. Zinke, supra note 6, at 4. Several of those monuments were later converted into national parks, reducing the total number of monuments. See, e.g., Grand Teton Act, supra note 33 (“[T]he lands within the present Grand Teton National Park and a portion of the lands within the Jackson Hole National Monument, there is hereby established a new ‘Grand Teton National Park.’” (emphasis added)).
The proclamation of new monuments has often been faced with congressional or public outrage. Rasband, supra note 9, at 619.
Annette Hein, The Establishment of Grand Teton National Park, WyoHistory (Nov. 8, 2014), https://www.wyohistory.org/encyclopedia/establishment-grand-teton-national-park [https://perma.cc/S3MV-N72D].
Alaska National Interest Lands Conservation Act, Nat’l Park Serv., https://www.nps.gov/locations/alaska/anilca.htm [https://perma.cc/WUN8-RCES] (last visited July 7, 2021); ANILCA, supra note 34, § 202 (converting Glacier Bay and Katmai national monuments to national parks and expanding several parts of the National Park System in Alaska).
See supra notes 32–37 and accompanying text.
The park today covers close to 7,000 square miles. Katmai National Park and Preserve, Alaska, supra note 29.
As discussed in Section III.B, the President is empowered under the OCSLA to withdraw offshore federal lands from leasing, potentially permanently. See OCSLA, supra note 73, § 12(a).
The Act that established the Grand Teton National Park including the addition of Jackson Hole cites its purpose as “for public benefit and enjoyment.” Grand Teton Act, supra note 33. ANILCA emphasized its purpose to preserve for the benefit, education, and inspiration of the public, certain lands and waters in Alaska with scenic, historic, archeological, geological, scientific, wilderness, cultural, recreational, and wildlife value. ANILCA, supra note 34, § 101(a).
See, e.g., OCSLA, supra note 73; Natural Resources Revenue Data: Revenue, Dep’t of the Interior, https://revenuedata.doi.gov/downloads/revenue/ [https://perma.cc/2RU3-AZ84] (last visited Aug. 1, 2021) (revenue data by source and year is available as a spreadsheet download).
FLPMA, supra note 8, § 102(a)(7)–(9).
Vincent et al., supra note 10, at 21–22 (discussing the multiple, sometimes incompatible, uses for federal land).
Iraola, supra note 1, at 168–69 (noting that lands that acquire national monument status may have constraints on mineral and energy leasing, grazing, harvesting of timber, and hunting activities).
The Act only says that the President may proclaim a national monument at the President’s discretion, not that the President should balance the costs and the benefits of creating the monument. Antiquities Act, supra note 2, § 2.
See supra notes 18–30 and accompanying text.
See Vincent et al., supra note 10, at 7–8 (listing federal land holdings by state); discussion infra Section V.B.2.
This could prove particularly problematic for second-term or lame-duck presidents who might be looking to enhance their long-term environmental credentials rather than respond to more immediate constituent interests. For example, President Clinton created or expanded twenty-two monuments, covering six million acres, most of which were named just prior to or during his second term. Squillace, supra note 18, at 473–75.
Id. at 473–74.
Vincent et al., supra note 10, at 9 (noting that the federal government owns 27.1% of the land in the United States).
At 1.89 billion acres, William Larson estimated that federal land holdings represented 24% of the area and 8% of the value of all land in the lower forty-eight states in 2009. The analysis excluded Alaska, Hawaii, and submerged lands in the outer continental shelf. William Larson, New Estimates of Value of Land of the United States 14 (2015). Factoring in both the federal offshore holdings plus the federal land in Alaska and Hawaii as well as the increase in land value since 2009, federal land holdings could conceivably exceed $3 trillion, though there is a wide margin for error. See National Agricultural Statistics Service, Land Values: 2019 Summary 5 (2019) (estimating that on average, farmland in the United States had increased in value by 51% between 2009 and 2019). Of course, federal land holdings are quite diverse including urban land, farmland, as well as land containing mineral resources, so any one-to-one comparison to farmland value is more directional than concrete.
Dana Van Wagener, Analysis of Projected Crude Oil Production in the Arctic National Wildlife Refuge, Energy Info. Admin. (May 23, 2019), https://www.eia.gov/outlooks/aeo/anwr.php [https://perma.cc/R8NT-3KJS]. Note that production estimates could substantially change if rates of discovery, mean field size, or oil prices deviate from the report’s assumptions. The accuracy of these estimates is challenged by the relatively lackluster interest at the first ANWR lease sale, indicating perhaps the range should be shifted downwards. See Tegan Hanlon & Nat Herz, Major Oil Companies Take a Pass on Controversial Lease Sale in Arctic Refuge, NPR (Jan. 6, 2021, 3:19 PM), https://www.npr.org/2021/01/06/953718234/major-oil-companies-take-a-pass-on-controversial-lease-sale-in-arctic-refuge [https://perma.cc/U3EU-QB8C].
Alaska oil production, including both from the Cook Inlet and North Slope, averaged 466,000 barrels per day in 2019. Alaska Field Production of Crude Oil, Energy Info. Admin., https://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=pet&s=mcrfpak2&f=a [https://perma.cc/MT73-WWM3] (last visited Aug. 1, 2021).
Lower flow through the Trans Alaska Pipeline System, commonly referred to as TAPS, has led to operational problems such as increased corrosion and wax formation requiring investment in heaters and other technologies to improve flow assurance. Increased throughput would likely reduce the need for these investments and would lower the per-barrel cost of transporting oil by increasing pipeline utilization. See Alex Nussbaum, Pipeline Built to Survive Extremes Can’t Bear Slow Oil Flow, Bloomberg (Apr. 11, 2017), https://about.bnef.com/blog/pipeline-built-to-survive-extremes-cant-bear-slow-oil-flow/ [https://perma.cc/329D-RYET]; see also Alyeska Pipeline Serv. Co., Trans Alaska Pipeline System Flow Assurance Overview 4 (2021), https://www.alyeska-pipe.com/wp-content/uploads/2021/04/PP-Flow-Assurance-4-21-B.pdf [https://perma.cc/ZAU4-P39K].
Yellowstone tourism was estimated to create $642 million in economic benefits. Tourism to Yellowstone Creates $642 Million in Economic Benefits; Report Shows Visitor Spending Supports 7,000 Jobs in Local Economy, Nat’l Park Serv. (June 17, 2020), https://www.nps.gov/yell/learn/news/20025.htm [https://perma.cc/YL3A-8R5Y].
ANILCA’s Contribution Toward a Vibrant Alaska Economy, Nat’l Park Serv., https://www.nps.gov/locations/alaska/anilca-economy.htm [https://perma.cc/AFP2-7A92] (last visited July 11, 2021); Alaska Dep’t of Revenue, Revenue Sources Book Fall 2018 (2018).
Tourism to Yellowstone Creates $642 Million in Economic Benefits; Report Shows Visitor Spending Supports 7,000 Jobs in Local Economy, supra note 112.
Brian Maffly, Study: Shrinking National Monuments Could Cost Hundreds of Jobs, Salt Lake Trib., (Mar. 27, 2020, 3:48 PM), https://www.sltrib.com/news/environment/2020/03/27/national-monuments-like/ [https://perma.cc/FE8L-6VF4].
See, e.g., FLPMA, supra note 8, § 102(a) (outlining the purpose underlying the legislation).
Craig Welch, Why Alaska’s Inupiat Are Warming to Offshore Oil Drilling, Nat’l Geographic (May 22, 2015), https://www.nationalgeographic.com/news/2015/05/150522-Inupiat-Shell-offshore-oil-Arctic-Alaska-ocean-whale-sea/ [https://perma.cc/ED6R-DQQH].
North Slope Inupiat communities have supported onshore drilling in many places but often opposed onshore and offshore drilling in some sensitive areas including near ANWR because of threat to hunting and whaling. Id.
Celebrating 35 Years of ANILCA, Trustees for Alaska (Dec. 2, 2015), https://www.trustees.org/celebrating-35-years-of-anilca/ [https://perma.cc/BP5K-DMYQ] (noting that ANILCA led to the expansion, not diminishment of protected federal lands in Alaska).
The FLPMA limits withdrawals to less than 20 years without congressional approval. FLPMA, supra note 8, § 204 (c); see supra Section IV.B.
Murdock, supra note 9, at 360 (“In short, the Supreme Court has been extremely deferential to presidents regarding the creation of monuments.”); see supra Section III.B (discussing the limited scope for judicial review).
The FLPMA requires the Secretary to report proposed use of the land which led to the withdrawal, as well as current natural resource use, the impact on land users, as well as how current use of the land is incompatible with the purpose of withdrawal and the impact of the withdrawal on the region. See supra notes 60–65 and accompanying text. The OCSLA has similar requirements for the withdrawal of unleased offshore lands from leasing. OCSLA, supra note 73, § 12(a). MPRSA require that the Secretary of the Interior explain why an area is of “special national significance” due to its qualities and that existing state and federal authorities are inadequate to ensure conservation. MPRSA, supra note 66, § 303.
See supra Part II.
Modifying the Bears Ears National Monument, supra note 3, at 58,802; Modifying the Grand Staircase-Escalante National Monument, supra note 3.
Iraola, supra note 1, at 166–69.
See, e.g., FLPMA, supra note 8, § 204(c); MPRSA, supra note 66, § 304; OCSLA, supra note 73, § 12(a).
Murdock, supra note 9, at 360.