National Monument Issues
Released: 2006-02-07T00:00:00

Introduction

Presidential establishment of national monuments under the Antiquities Act of 1906 (16 U.S.C. Â§Â§431-433) has protected valuable sites, but also has been contentious. President Clinton used his authority 22 times to proclaim 19 new monuments and to enlarge 3 others (see Appendix ). With one exception, the monuments were designated during President Clinton's last year in office, on the assertion that Congress had not acted quickly enough to protect federal land.

The establishment of national monuments by President Clinton raised concerns, including the authority of the President to create large monuments; impact on development within monuments; access to monuments for recreation; and lack of a requirement for environmental studies and public input in the monument designation process. Lawsuits challenged several of the monuments on various grounds, described below. The Bush Administration examined monument actions of President Clinton and the Interior Department is developing management plans for DOI-managed monuments. Recent Congresses have considered, but not enacted, bills to restrict the President's authority to create monuments and to establish a process for input into monument decisions. Monument supporters assert that changes to the Antiquities Act are neither warranted nor desirable, courts have supported presidential actions, and segments of the public support such protections.

The Antiquities Act of 1906

The Antiquities Act of 1906 authorizes the President to proclaim national monuments on federal lands that contain "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest." The act does not specify particular procedures for creating monuments. It was a response to concerns over theft and destruction of archaeological sites, and was designed to provide an expeditious means to protect federal lands and resources. Congress later limited the President's authority in Wyoming (16 U.S.C. Â§431a) and Alaska (16 U.S.C. Â§3213).

Presidents have designated about 120 national monuments, totaling more than 70 million acres, although most of this acreage is no longer in monument status. Congress has abolished some monuments outright, and converted many more into other designations. For instance, Grand Canyon initially was proclaimed a national monument, but was converted into a national park. Congress itself has created monuments on federal lands, and has modified others. President Clinton's 19 new and 3 enlarged monuments comprise about 5.9 million federal acres. Only President Franklin Delano Roosevelt used his authority more oftenâ28 timesâand only President Jimmy Carter created more monument acreageâ56 million acres in Alaska.

Monument Issues and Controversies

Various issues regarding presidentially-created monuments have generated both controversy and lawsuits. Issues have included the size of the areas and types of resources protected, the inclusion of non-federal lands within monument boundaries, restrictions on land uses that may result, the manner in which the monuments were created, the selection of the managing agency, and other legal issues. Courts have upheld both particular monuments and the President's authority to create them. For instance, a court dismissed challenges to Clinton monuments which were based on improper delegation of authority by Congress; size; lack of specificity; non-qualifying objects; increased likelihood of harm to resources; and alleged violations of the National Forest Management Act of 1976 (NFMA, 16 U.S.C. Â§1601 et seq .), Administrative Procedure Act (APA, 5 U.S.C. Â§551 et seq .), and National Environmental Policy Act (NEPA, 42 U.S.C. Â§4321 et seq .). In another case, a court found that plaintiffs did not allege facts sufficient to support the court's inquiry into whether the President might have acted beyond the authority given him in the Antiquities Act.

Monument Size and Objects Protected

Critics assert that large monuments violate the Antiquities Act, in that the President's authority was intended to be narrow and limited. The monuments designated by President Clinton range in size from 2 acres to 1,870,800 acres. Defenders argue that the Antiquities Act gives the President discretion to determine the acreage necessary to ensure protection of the designated resources, while reserving "the smallest area compatible with the proper care and management of the objects to be protected" (16 U.S.C. Â§431). Critics also contend that President Clinton used the Antiquities Act for impermissibly broad purposes, such as general conservation and scenic protection. Supporters counter that the act's wordingâ"other objects of historic or scientific interest"âgrants broad discretion to the President. Further, some claim that the Antiquities Act is designed to protect only objects that are immediately endangered or threatened, but others note that the Antiquities Act lacks such a specific requirement. To date, the courts have upheld the authority of the President on these issues.

Inclusion of Non-Federal Lands

Non-federal lands are contained within the boundaries of some national monuments. Some state and private landowners have been concerned that development of such non-federal land is, or could be, more difficult because it might be judged incompatible with monument purposes or constrained by management of surrounding federal lands. Monument supporters note that concerned state and local landowners can pursue land exchanges with the federal government.

Effects on Land Uses

State and local officials and other citizens have been concerned that monument designation can limit or prohibit development on federal lands. They argue that local communities are hurt by the loss of jobs and tax revenues that result from prohibiting or restricting future mineral exploration, timber development, or other activities. The potential effect of monument designation on energy development has been particularly contentious, given the current emphasis on energy production. Subject to valid existing rights, most of the recent proclamations bar new mineral leases, mining claims, prospecting or exploration activities, and oil, gas, and geothermal leases, by withdrawing the lands within the monuments from entry, location, selection, sale, leasing, or other disposition under the public land laws, mining laws, and mineral and geothermal leasing laws. Further, the FY2006 Interior, Environment, and Related Agencies Appropriations Act ( P.L. 109-54 ) continued a ban on using funds for energy leasing activities within the boundaries of national monuments as they were on January 20, 2001, except where allowed by the presidential proclamations that created the monuments. Mineral activities that would be allowed may have to adhere to a higher standard of environmental regulation to ensure compatibility with the monument designation and purposes. Others claim that monuments have positive economic impacts, including increased tourism, recreation, and relocation of businesses in those areas. Some maintain that development is insufficiently limited because recent monument proclamations typically have preserved valid existing rights for particular uses, such as mineral development, and continued certain activities, such as grazing.

Some recreation groups and other citizens have opposed restrictions on recreation, such as hunting and off-road vehicle use. Proclamations typically have restricted some such activities to protect monument resources, and additional restrictions are being considered for management plans in development.

Consistency of Antiquities Act with NEPA and FLPMA

Critics of the Antiquities Act argue that its use is inconsistent with the intent of the Federal Land Policy and Management Act of 1976 (FLPMA, 43 U.S.C. Â§1701 et seq .) to restore land withdrawal policy to Congress. A withdrawal restricts the use or disposition of public lands, e.g., for mineral leasing. In enacting FLPMA, Congress repealed much of the President's withdrawal authority and limited the ability of the Secretary of the Interior to make land withdrawals. It required congressional review of secretarial withdrawals exceeding 5,000 acres, and contains notice and hearing procedures for withdrawals. Supporters note that in enacting FLPMA, Congress did not repeal or amend the Antiquities Act and thus desired to retain presidential withdrawal authority.

Critics of the Antiquities Act also assert that there has been insufficient public input and environmental studies on presidentially-created monuments, and favor amending the Antiquities Act to require public and scientific input similar to that required under NEPA, FLPMA, and other laws. Others counter that such changes would impair the ability of the President to act quickly and could result in resource impairment or additional expense. They assert that Presidents typically consult in practice , and that NEPA applies only to proposed actions that might harm the environment and not to protective measures.

Monument Management

Whereas previously the National Park Service (NPS) had managed most monuments, President Clinton selected the Bureau of Land Management (BLM) and other agencies to manage many of the new monuments. Some critics have expressed concern that the BLM lacks sufficient expertise or dedication to land conservation to manage monuments. President Clinton chose BLM where its own lands were involved, to increase the agency's emphasis on land protection, and possibly both to protect the lands and manage them for multiple uses. Mineral development, timber harvesting, and hunting are the principal uses that would be legally compatible with BLM management but not with management by the NPS. Grazing also typically is allowed on BLM lands, but often precluded on NPS lands.

Other Legal Issues

The "Property Clause" of the Constitution (Article IV, sec. 3, cl. 2) gives Congress the authority to dispose of and make needed rules and regulations regarding property belonging to the United States. Some have asserted that the Antiquities Act is an unconstitutionally broad delegation of Congress' power, because the President's authority to create monuments is essentially limitless since all federal land has some historic or scientific value. A court dismissed a suit raising this issue, and this holding was affirmed on appeal. (See footnote 2 ).

The recent monument designations renewed discussion of whether a President can modify or eliminate a presidentially-created national monument. While it appears that a President can modify a monument, it has not been established that the President, like Congress, has the authority to revoke a presidential monument designation. (For more information, see CRS Report RS20647, Authority of a President to Modify or Eliminate a National Monument , by [author name scrubbed] (pdf).)

Administrative and Legislative Activity

Administrative Action

The Bush Administration examined the monument actions of President Clinton, including whether to exclude private, state, or other non-federal lands from the boundaries of newly-created monuments. There has been no comprehensive Administration effort to redesignate the monuments with altered boundaries. While the monument designation does not apply to these non-federal lands, most of President Clinton's monument proclamations stated that they will become part of the monument if the federal government acquires title to the lands from the current owners. Also, the Interior Department continues to develop management plans for new monuments within its jurisdiction. Further, President Bush reestablished one monumentâthe Governors Island National Monument in New Yorkâon February 7, 2003.

Legislative Action

Legislation to amend the Antiquities Act of 1906 has not been introduced thus far in the 109 th Congress, but was considered in recent Congresses. For instance, H.R. 2386 of the 108 th Congress sought to amend the Antiquities Act to make presidential designations of monuments exceeding 50,000 acres ineffective unless approved by Congress within two years. The measure also would have established a process for public input into presidential monument designations and required monument management plans to be developed in accordance with the National Environmental Policy Act of 1969. Other legislation in recent Congresses has sought to alter particular monuments, for instance, to exclude private land from within their boundaries.

Appendix. Monuments Proclaimed by PresidentÂ Clinton