It is time for the courts to rein in presidential abuse of the Antiquities Act.
It is time for the courts to rein in presidential abuse of the Antiquities Act.
P resident Biden does not have the power to unilaterally destroy small businesses, local economies, and long traditions just because they are tied to federal land. Yet he has claimed the authority to do just that.
Rather than work through Congress, President Biden last year declared that over 3 million acres of land in southern Utah — more than twice the size of Delaware — would now constitute two “national monuments.” He based this extravagant claim on the Antiquities Act, a modest statute that Congress enacted in 1906 so presidents could reserve small tracts of land to protect “Pueblo ruins” and other historically or geologically significant objects.
The president’s actions are illegal. And that is why my organization, BlueRibbon Coalition, is joining the State of Utah in suing, in U.S. District Court in Salt Lake City, to stop this abuse of power.
Suing with us are a rancher, a miner, and a member of Utah’s Native American community — all of whom will see their lives upended if these “monuments” are allowed to stand. The State of Utah filed its challenge to Biden’s monuments on August 24, and we filed our companion challenge the following day. We are grateful to our governor and attorney general for standing up to President Biden, and we are proud to join the fight for our traditional way of life.
President Biden’s monument designations are about pleasing his environmentalist supporters rather than protecting actual artifacts. Just reading the proclamations makes this clear.
Unconstrained by the Antiquities Act’s text, structure, and history, the president simply declared essentially everything within 3 million acres of Utah to be an “object of historic or scientific significance situated on federal land” (the relevant statutory phrase for what the act can protect).
Most absurdly, his proclamations declare that entire landscapes — one that is 1.87 million acres (Grand Staircase-Escalante), the other 1.36 million acres (Bears Ears) — are “objects of historic or scientific significance situated on federal land.” But landscapes are land. Nobody would describe a landscape as an “object,” much less an object “situated on federal land.”
The absurdity does not stop there. The proclamations also claim that ecosystems, habitats, and even animal species (bees, toads, bats, and more) are “objects” under the act.
But ecosystems and habitats — like landscapes — are part of the land, not “objects” that are “situated on” it. And animal species are living creatures that move around, not stationary objects that are “situated” somewhere. If the bats migrate, does the monument travel with them?
These proclamations make a mockery of the Antiquities Act. They take a carefully limited law enacted in 1906 and — to quote from a recent opinion by Chief Justice John Roberts — “transform it into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below sea.”
President Biden’s abuse of power will have — and is now having — profound practical consequences for the people in our community. In its simplest form, a “national monument” designation means lands that were once open for multiple uses for public benefit are now shut off to the public to accommodate the narrow interests of politically connected stakeholders.
Roads, trails, and campgrounds are being closed, preventing many of us from pursuing family pastimes and accessing lands that are central to our cultural and religious heritage. Ranchers’ livelihoods are now threatened by yet another layer of burdensome and pointless regulation that prevents them from properly caring for their cattle and feeding the American people.
Miners are being prohibited from pursuing valid mining claims — to the detriment of the local economy and American mineral and energy independence. And Native Americans are being blocked from using traditional areas and local resources integral to their spiritual identity.
In a further bitter irony, while the president has justified the monuments on conservationist grounds, the monuments are, in fact, terrible for conservation. Monument designations shine a glamorous spotlight on objects and areas that were better protected by obscurity.
Rather than protect our once-pristine lands, the monument designations have ushered in hordes of seasonal tourists who sully them. The designations’ restrictions further strip land-management authority from state and local governments, putting this authority in the hands of ill-equipped federal bureaucrats whose bosses reside in Washington, D.C., and are completely disconnected from the local communities affected by the monuments.
The designations are not only uprooting our lives, changing our communities, and cutting us off from our land, but they are also destroying the very lands and objects they are supposed to protect.
Unless the courts step in, these threats will soon be irreversible — not just to us, but to the rule of law. President Biden’s proclamations are the latest in a long line of attempted executive power grabs that take old or vague statutes and try to resolve major policy issues without broad support from the American people as expressed through their elected members of Congress.
The Supreme Court significantly tightened the reins on these abuses in the West Virginia v. EPA decision. It is time for the Supreme Court to rein in presidential abuse of the Antiquities Act.