Executive Abuse of the Antiquities Act

October 4, 2017

We are here to talk about executive abuses of the Antiquities Act.

All told, presidents have used this law to cordon off tens of millions of acres of public land from recreation and economic activity—and they have done this with shockingly little regard for the actual Americans who work and live near these areas.

For years, gatherings like this one were weighed down by a sense of resignation . . . By the sense that, however hard we struggled, we were always in a defensive crouch, bracing for the next executive order . . . the next million-acre monument to issue forth from the president’s pen.

Happily, there’s no need for pessimism today. As a result of last year’s election, we finally have the political power to do something about the Antiquities Act. To get at the root of the problem.

Our unified Republican government has a rare opportunity to prove to millions of Americans in the West that their concerns matter, too. That they are represented in this town, too—not just the environmental groups whose privileged members live here and vacation there.

If we can prove this by curbing abuses of the Antiquities Act, we will begin to bridge the “urban-rural” divide that is so apparent in our politics. So apparent that it looms like a chasm in our discourse.

Public lands issues inflame relations between the American people and the federal government, as they have going back at least to the nineteenth century.

In my home state of Utah, the public’s distrust of Washington is rooted not in ideology, but experience . . . the experience of living in a state where a whopping two-thirds of the land is owned by the federal government and managed by unaccountable agencies that are either indifferent, or downright hostile, to the interests of local communities they are supposed to serve.

The Antiquities Act is an important part of that experience.

For a short, innocuous-sounding law, it contains much of what I came to Washington to fight.

That’s because at its core, the Antiquities Act takes power away from the people and their representatives, while giving it to the president, unelected bureaucrats, and wealthy special interests.

It might help to give a little bit of background.

The Antiquities Act was signed into law by Teddy Roosevelt in 1906.

As its name suggests, the law was intended to protect mainly objects of historic and cultural interest. The word “antiquities,” after all, applies to man-made artifacts. Pottery. Coins. Statues of nude discus throwers. Things like that.

In particular, our Antiquities Act was intended to protect American Indian archeological sites from treasure hunters, who were disturbing the sites in search of prizes.

In order to defend America’s cultural heritage, the law authorized the president to declare sites on public land as “national monuments,” subject to greater restrictions on their use.

But this authorization did not give the president carte blanche. The monuments were supposed to be modest in size . . . narrowly tailored to the purpose of preservation.

In fact, the law provides that monuments shall be [QUOTE] “confined to the smallest area compatible with the proper care and maintenance of the objects to be protected.”

Early versions of the bill even limited monuments to around 640 acres in size.

But as you all know, modest laws passed with the best of intentions can be twisted over time to serve big government.

Utahns have learned this lesson repeatedly through bitter experience.

Last December, in the eleventh hour of his presidency, President Obama used the Antiquities Act to rope off millions of acres of federal land as new national monuments.

As part of this “midnight monument spree,” President Obama designated 1.3 million acres in southern Utah as the Bears Ears National Monument.

Utahns, who opposed the monument by supermajority margins at the time it was created, were indignant. And none were more indignant than the residents of San Juan County, where the monument is located.

San Juan locals were rightly fearful of what a monument would mean for their future. If Bears Ears turned out like other monuments across the country, it would mean the loss of economic opportunity in an already struggling county. It would mean closed roads and closed ranches.

Yes, Utahns were indignant about President Obama’s midnight monument—but we were not surprised. We had been through this ordeal twenty years before, under President Bill Clinton.

In September 1996, President Clinton roped off 1.7 million acres in southern Utah as an election-year sop to the environmentalist wing of the Democratic Party. This vast tract of land is known today as the Grand Staircase-Escalante National Monument.

Like Obama, Clinton didn’t bother consulting with Utah’s leaders or locals before making this proclamation—in fact, he didn’t notify Utah’s congressional delegation until the day before the announcement.

And the best part? When the announcement was made, it took place in Arizona, over 100 miles from the Utah state border. They chose to avoid Utah so that protests didn’t spoil the president’s campaign photo-op.

Now, the saying goes that “one’s an incident and two’s a coincidence,” but I’ve been around long enough to know a trend when I see one.

Two times in as many decades, a majestically aloof executive has annexed a tract of land in Utah larger than the state of Delaware.

Two times, this decision has been made without taking into account the concerns of local residents—indeed, the decisions proceeded over the express opposition of local residents.

And that opposition simmers to this day. Polling shows that 61 percent of residents in southern Utah want Grand Staircase reduced in size—and 68 percent want Bears Ears reduced.

In other words, the Utahns who live closest to these monuments are among those most likely to favor their reduction. They’re the ones who see the enervating effect of federal regulations on their communities every single day.

That fact touches on one of the real tragedies of Antiquities Act abuse, but more generally of our federal land regulations.

Failing to consult with the people who live and work around a potential monument isn’t just a breach of political etiquette—it isn’t just a tone-deaf photo-op.

It’s an attack on our republican form of government that weakens rural communities by robbing them of agency and opportunity on the surrounding lands.

Utah’s economy is built on the farm and agriculture industry. Livestock is the state’s single largest sector of farm income. But of the 45 million acres of rangeland in Utah, nearly three-quarters is owned and managed by the federal government.

Since the 1940s, federal agencies have slashed livestock grazing on rangelands in Utah by more than 50 percent—a policy of economic deprivation that accelerated after 1996 on land within the Grand Staircase monument.

I think most Americans would agree with me that federal land regulations in Utah are a case study in government-sponsored neglect, if not tyranny.

They bring to mind the line from the Declaration, where the colonists charge that King George had [QUOTE] “erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”

But for too many politicians—and for the radical environmental groups that fund their reelection—Bears Ears and Grand Staircase are textbook models for applying the Antiquities Act.

That is precisely why Congress and this administration need to fight back.

I am heartened by steps that have been taken so far by the Trump administration.

In April, the president ordered Interior Secretary Ryan Zinke to undertake a review of major monuments created in the last few decades.

After a four-day “listening tour” across southern Utah, Secretary Zinke submitted an interim report recommending a major reduction of the Bears Ears National Monument.

A final recommendation is being prepared as we speak.

Such a reduction would provide needed relief to Utahns. It would bring Bears Ears into line with the Antiquities Act by limiting it to the “smallest area compatible” with preservation of its treasures.

And such a reduction would be well-supported by history: Presidents have reduced the size of monuments by hundreds of thousands of acres, by as much as 89 percent of the original reservation.

But a reduction by presidential order is not enough, because presidential orders are reversible. As President Obama is finding out, if your legacy lives by executive power, it dies by executive power also.

So if Bears Ears is reduced, there will be nothing to stop future presidents from dramatically expanding the boundaries of existing monuments—or creating new monuments entirely.

What is needed is wholesale reform of the Antiquities Act, to return its monumental power back to where it belongs: To the people who reside closest to the proposed monuments. Local residents must have the ultimate say over whether their communities can be upended in this way.

At the very least, the Antiquities Act should be reformed so that Congress, the political body most responsive to the people, can review monument designations.

Reforming the Antiquities Act to limit the president’s authority is a no-brainer. It is a policy that is consistently supported by a majority of Utahns, and I am confident it is supported by a majority of residents in the intermountain West.

So I hope my colleagues in Congress will heed the outcry coming from the West. For too long, residents of those states have felt ignored—passed over by politicians more interested in helping coastal interest groups than them.

As we’ve seen too often, this failure of representation leads to anger—or at least to bewilderment.

I’m reminded of a letter I got from a young man in Utah last year. His name is Lane Palmer. I’d like to read portions of his letter to you.

This young man wrote, [QUOTE] “I live within five miles of the proposed Bears Ears National Monument . . . Is there even any legislation written for the [monument] yet? If not, why? . . .

“How can there be an argument for one side or the other if there's not even any legislation to show and explain what is going to happen exactly?”

A good point. Lane goes on.

[QUOTE] “It is in my best interest to protect the land, but it's also in my best interest to use the land and be productive . . . because that is our livelihood here in San Juan County.

“I was wondering if I could receive a copy of the legislation . . .  so I can read it for myself and not go off what others say.”

This letter crushes me.

Here is a young man who is concerned for his community. Who is trying to get informed about an issue that will affect his neighbors, his friends, and his family.

And the honest answer I have to give him as his elected representative is that Bears Ears was not the product of legislation at all. There wasn’t any formal debate in Congress about the monument.

Instead, there was a much-abused law from 1906, and a president with a pen and a phone.

It’s up to us to change that.


Thank you.