The Right Way Forward on the Antiquities Act

If we can’t rescind the act entirely,  Congress can enact a law to prevent future Antiquities Act abuses.

As I previously discussed here, the Antiquities Act is probably unconstitutional, and by modifying the size of two monuments, President Trump has reined in its worst excesses. But the law remains While no president has ever undone a national monument designation entirely, as John Yoo and Todd Gaziano explain in a study published by the American Enterprise Institute, previous presidents have downsized national monuments on 18 occasions and modified the management of a number of other monuments. No presidential action to downsize or change the management of a monument has ever been successfully challenged in the courts, however, so it is likely Trump’s actions are legal and will withstand judicial scrutiny. Trump has yet to act on Zinke’s other recommended monument changes and it is unclear if he will.

Although I think Trump’s actions are justified and, indeed, that he should reverse and rescind more monument designations, in truth no president’s actions alone can fix the problems inherent to the dictatorial, entirely undemocratic, and arguably unconstitutional Antiquities Act. As Trump and other presidents before him have shown, what one president establishes as a monument, later presidents can modify.

Indeed, Trump himself yielded to the siren song luring Presidents to declare national monuments. Less than a year after he dramatically reduced the size of two national monuments, he designated 525 acres in Kentucky, once the site of a civil war camp and depot, the Camp Nelson National Monument.

The Antiquities Act has been amended twice since 1950. The backlash against President Franklin Roosevelt’s 1943 designation of the Jackson Hole National Monument resulted in a law requiring congressional consent for the future creation or enlargement of monuments in Wyoming. After President Jimmy Carter used the Antiquities Act to create 56 million acres of national monuments in Alaska, the law was revised to prohibit presidents from designating more than 5,000 acres of Alaskan land as a national monument without congressional consent.

These were piecemeal efforts and didn’t fundamentally reform the act itself. Since that time, the capture of the Democratic Party by radical environmentalists, and the narrow, increasingly partisan divide in Congress has prevented it from limiting presidents’ national monument designations.

If we can’t rescind the act entirely, I suggest Congress enact a law to prevent future Antiquities Act abuses by requiring congressional authorization and approval from the legislature of the state where the proposed monument would be located before land is designated, or within 60 days of an area being designated, a national monument. The law should also prohibit any part of the exclusive economic zone—the coastal waters over which the United States has jurisdiction—from being designated a marine national monument without approval of Congress and state legislatures within 100 miles of the proposed monument.

Alternatively, Congress could limit the size of future national monument declarations to the same 5,000 acres established for Alaska. This, at least, would put other states on the same footing as Alaska and restrain the vainglorious attempts by presidents to burnish their environmental legacies on the backs of “we the people.”

Trump’s Monumental Course Reversal

Trump rightly scaled back the Grand Staircase/Escalante and Bears Ears monuments.

 

As part of his program to remove the government’s boot-heel off the neck of state governments and American workers and businesses, candidate Donald Trump promised to review and, where appropriate, reverse where he felt it was justified, national monuments declared not just by Obama but going back two decades. As I discussed here, using the Antiquities Act has been a favorite technique of many presidents to satisfy pressures from environmentally powerful constituents

Within months of taking office, Trump issued an executive order directing then-Interior Department secretary Ryan Zinke to review all presidential monument designations or expansions of more than 100,000 acres since January 1, 1996, to ensure they were limited strictly to the smallest area necessary to care for the objects or features to be protected. At the time, Trump called the size and number of national monuments created by Obama “an egregious abuse of power.

Going back to January 1, 1996, was not coincidental. At that time President Bill Clinton created the 1,880,461-acre Grand Staircase Escalante National Monument, in Utah, also against the state’s entire congressional delegation’s wishes. The Grand Staircase declaration was as controversial in its time as the 2016 Bears Ears designation by Obama.

By September 2017, Zinke recommended the president shrink the size and/or modify the management of at least 10 national monuments. In particular, Zinke recommended reducing the size of Bears Ears and Grand Staircase-Escalante national monuments in Utah, Nevada’s Gold Butte, and Oregon’s Cascade-Siskiyou. He also recommended shrinking two marine monuments in the Pacific Ocean and amending the proclamations for 10 monuments to allow for various commercial activities previously allowed in these areas but now restricted.

On December 5, 2017, Trump reduced the size of the Grand Staircase-Escalante Monument by approximately 800,000 acres, to just over 1 million  acres, and shrunk the Bears Ears National Monument from 1.35 million acres to 201,876 acres. Surrounded by Utah’s entire congressional delegation, Gov. Gary Herbert, most of the state’s legislature, and Zinke at a December 5, 2017 ceremony in Utah’s capital in Salt Lake City, Trump said his decision to shrink the monument was a matter of being faithful to the letter of the law and of fairness to the people of Utah.

“I’ve spoken with many state and local leaders … who care very much about conserving land and are gravely concerned about this massive federal land grab,” Trump said. “[I]t never should have happened. I am signing this order to end abuses and return control to the people.

“Some people think that the natural resources of Utah should be controlled by a small handful of very distant bureaucrats located in Washington,” Trump continued. “And guess what? They’re wrong!” Trump’s actions were praised by Utah politicians

Then Utah’s senior U.S. senator, Orrin Hatch (R), praised Trump for considering the desires of the state’s residents. “I’m thrilled and grateful to President Trump and Secretary Zinke for giving Utahns a voice in the protection of Utah lands,” Hatch said in statement. “The president’s proclamation represents a balanced solution and a win for everyone on all sides of this issue

“It also represents a new beginning in the way national monuments are designated, paving the way for more local input and taking into account the actual letter and intent of the Antiquities Act, which calls for the ‘smallest area compatible with proper care and management of the objects to be protected,’” Hatch said.

R. J. Smith, a senior fellow with the National Center for Public Policy Research, says Clinton’s and Obama’s monument declarations were nothing more than attempts to circumvent Congress and unilaterally establish de facto national parks

“These designations really protected nothing, since the lands were already owned and managed by the federal government,” said Smith. “The goal of the designations had been to convert multiple-use public lands into de facto national parks and wilderness areas, preventing traditional uses such as recreation, grazing, and any other economic uses of natural resources

“Prior presidents usurped the authority of Congress to designate parks and wildernesses, disenfranchised people in the affected states, and destroyed the economic well-being and tax base of much of rural America in the process,” Smith said. “I hope Trump continues to substantially downsize, or preferably eliminate, other national monuments.”

Monumental Abuse of the Antiquities Act, Part I

Congress originally passed the law as an emergency measure to prevent the looting of antiquities on Indian lands.

By H. Sterling Burnett

The 1906 Antiquities Act was one of the most ill-considered laws ever written, giving presidents dictatorial power to declare large swaths of the public’s land off limits to a variety of uses normally allowed on federal lands. Under President Barack Obama, this power turned into a monument acquisition spree.

The Antiquities Act grants the president discretionary power “to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest … to be national monuments.” Congress originally passed the law as an emergency measure to prevent the looting of antiquities on Indian lands. It was intended, as the debate surrounding it shows, only to be used when public lands or artifacts faced immediate threats of destruction and the normal pace of congressional action might take too long to prevent harm.

The law limits the scope of a monument to “the smallest area compatible with the proper care and management of the objects to be protected.” Those limits have proved to be a sad joke, providing virtually no limit on the president’s power at all since the president can decide what the smallest area necessary for protection is.

The Antiquities Act also authorized the federal government to control if not outright take state and privately owned lands as necessary to protect the integrity of a monument.

If there was ever a justification for the Antiquities Act, that time is long gone. The process of creating a national monument bypasses legislative consent and routinely contradicts the desires of the people in the states where the monuments are designated, those who suffer most directly from the new limits placed economic and recreational activities on the land. Hundreds of millions of acres have been placed off limits as monuments, with each designation providing a photo op for the president. He smiles for the camera, while somewhere someone’s access is taken, someone’s hunting and fishing grounds are gone, someone’s land has been grabbed, someone’s life’s work is wiped out, the productive use of the land is limited, and the American dream of ranchers, farmers, miners, and oil and gas workers are dashed.

Only four Presidents—Richard Nixon, Gerald Ford, Ronald Reagan, and George H.W. Bush—have refrained from declaring national monuments since the Antiquities Act became law. In this post I will discuss President Obama’s monument spree, and will discuss in subsequent posts Presidents Trump’s reaction and a way forward.

In his second term in office, President Obama designated more monuments (26) than any president before him breaking the previous record (18) held by President Theodore Roosevelt, who signed the Antiquities Act into law.

In the months and even days before leaving office, Obama declared two of the largest, most controversial monument declarations of of any presidency. Over the objections of his fellow Democrats in Hawaii, he quadrupled the size of the Papahanaumokuakea Marine National Monument (PMNM), first created by President George W. Bush in 2006.

With its August 25, 2016, expansion, this monument became the largest protected reserve on Earth, comprising about 582,578 square miles, nearly double the size of Texas.

Obama expanded the monument despite the fact there was no pressing threat to the area and over the objections of many prominent Hawaiians and a federal regional fishing council. Obama’s action in Hawaii came despite pleas from former Hawaii Gov. George Ariyoshi (D), former U.S. Sen. Daniel Akaka (D), and former Gov. Ben Cayetano (D), who sent a letter to Obama requesting he not expand the monument. Further, the Western Pacific Regional Fishery Management Council (WPRFMC), federally designated to manage waters around the U.S. Pacific islands, said the expansion was not needed and Obama’s decision to expand the monument was not about protecting the environment but rather it “serves a political legacy.”

“Closing 60 percent of Hawaii’s waters to commercial fishing, when science is telling us that it will not lead to more productive local fisheries, makes no sense,” Edwin Ebisui Jr., chairman of WPRFMC, said in a statement.

Then, on December 28, 2016, literally days before turning over the White House to President Donald Trump, Obama designated two additionl  national monuments, preventing a variety of uses on 1.65 million acres of land in Nevada and Utah. He created the 1.35 million acre Bears Ears National Monument (BENM) in Utah and the 300,000 acre Gold Butte National Monument in Nevada. (By the way, 1.65  million acres is bigger than Long Island.)

Few people were surprised by Obama’s action in the Bears Ears’ case because he had been pushing for it for more than a year. Indeed, Utah’s state government, and its entire congressional delegation, had fought a national monument declaration for the area for years – showing there was no “emergency” justifying the Obama action to create the monument. Nothing had changed on the ground.

In declaring the monument, Obama ignored the pleas of the county governments which border the monument or with which it would exist. Utah’s Washington County Commission unanimously passed a resolution opposing the creation of the Bears Ears monument in San Juan County, Utah. The action came two weeks after commissioners in San Juan County passed a resolution on October 4 requesting Obama not put Bears Ears within the county’s borders. At 1.9 million acres, the moument would take up 37 percent of San Juan County’s land.

According to a report commissioned by the San Juan County Commissioners, establishing Bears Ears would preempt “18 established Federal, State and local land use planning efforts” and take “151,000 acres of Utah School and Institutional Trust Lands, vast areas of private inholdings, including 43 grazing allotments, no less than 661 appropriated water right diversion points, the sole operating uranium mill in the United States, multiple oil and gas production areas, and approximately 18,000 acres of patented property.”

As for Obama’s monument declaration in Nevada, its Republicans, including then Sen. Dean Heller, Rep. Cresent Hardy, and Rep. Mark Amodei all opposed the designation of the Gold Butte area as a national monument in Nevada.

“I am terribly disappointed with today’s news,” Heller said in a statement. “For years, I have urged for all new land designations, especially ones in Nevada, to be considered in an open and public congressional process [including] input from local parties, guarantee[ing] local needs are addressed. In the future, I will continue to fight for an open process utilizing congressional support to designate new national monuments.”

Fortunately, the next president had a better idea, which I will explain in a subsequent post.

Trump’s ESA Changes: A Good Start

Don’t let them tell you the Endangered Species Act has been a success.

 

Environmentalists’ knee-jerk reactions to the Trump administration’s regulatory  changes under the 1973 Endangered Species Act (ESA) were as predictable as they were misguided. Environmentalists claimed the changes violate the law and gut protections—leaving vulnerable species otherwise on the road to recovery at risk of annihilation. Sadly, the mainstream media, which seems to treat as revealed truth every study, press release, pronouncement, and tweet from environmentalists, especially if it’s critical of the Trump administration, parroted these claims.

History of Failure

Based on environmentalists’ and the press’s reactions, you would think the ESA had a glowing track record of success in bringing species back from the brink of extinction, but nothing could be further from the truth. Actually, the ESA has been a costly fiasco.

Since 1973, more than 2,470 species of plants and animals have been listed as “endangered” or “threatened” under the ESA. Federal, state, and local governments, as well as private individuals, have spent billions to help those species recover. People have been forbidden to build homes or businesses on their own land, told they must stop farming or logging, and road and hospital construction has been halted or delayed. Yet for all this effort, just 85 species have been removed from the Endangered Species List, representing only 3.4 percent of all species ever listed.

And a majority of the species removed from the list were taken off for reasons other than successful protection. Eighteen species had been improperly placed on it in the first place, due to data errors (18 species); 22 were foreign species given no protection by the ESA; 13 were recovered due to other laws or regulations, such as the banning of DDT; and, worst of all, 10 species were delisted because they became extinct while on the list, or were already extinct at the time they were listed.

In more than 46 years of existence, at best, the ESA is responsible for helping 16 species to recover—though it’s questionable whether the recovery of those species, which are mostly plants, is actually due to the ESA, since they existed almost entirely on federal land and were thus already protected. If the ESA were a school, it would have the worst graduation rate in history!

Project, Properties, Species at Risk

Although the ESA has almost entirely failed to recover species, it has been spectacularly successful in violating people’s property rights, in the process depriving many of them of their hopes and dreams. Simultaneously, ESA has harmed the very species it was intended to save.

For instance, in 2012 construction on a $15.1 million underpass in Texas was brought to a screeching halt when workers came across a single “bracken bat cave mesh weaver,” a blind, translucent spider that was thought to be extinct. There was just one big problem: The spider was so similar to another blind spider in the region that in order to confirm its identity, researchers killed it. In doing so, they may have killed the last remaining bracken bat cave mesh weaver in existence. Since that time, no other member of the species has been identified, and construction on the project was delayed for three years.

After the red-cockaded woodpecker was listed as endangered, many landowners in the Southeast began clearcutting their long-leaf pine trees, which is key habitat for the woodpecker. Why? They feared losing their property rights after watching their neighbors, in whose trees woodpeckers had established homes, lose their right to manage their property. Property values declined wherever woodpeckers appeared, and logging was undertaken at a feverish pace to avoid the woodpecker taking up residence on people’s land.

Since 2014, landowners in Thurston County, Washington, have had their ability to develop their property severely restricted due to the discovery of three subspecies of the Mazama pocket gopher, which has been twice listed as threatened under the ESA. To avoid being sued by the federal government, Thurston County now requires landowners who want to build on their property to determine whether their soils are suitable gopher habitat.

In one case, because inspectors discovered a single mound of dirt indicating the possible presence of gophers on an eight-acre parcel of land during a site review, Steve and Deborah McLain have been unable to get a permit to build a home on their property, despite offering to cede the acre surrounding the mound as protected gopher habitat. In another instance, a home developer had to fence off 64 percent of a one-acre lot to get a permit to build a home.

Reforms Aim to Reduce Costs, Improve Recovery

The regulatory reforms by the Interior Department (DOI) are aimed at reducing costs and focusing scarce agency resources to recover species that are most at risk of disappearing in the near term. Indeed, DOI is reversing a decades-old policy that mandated that threatened species (that is, species not as close to extinction as endangered species) receive the same protections as endangered species. The act itself had said that actions impacting threatened species should be judged on a case-by-case basis. However, previous administrations applied the same heavy-handed prohibitions intended for endangered species to threatened species.

From a regulatory perspective, this policy eliminated the significant difference between the two categories written into the law. In the process, it unjustly restricted property use even when the species purportedly being protected by the restrictions wasn’t t endangered. The restrictions meant resources were diverted from protecting species at near-term risk of extirpation to issuing regulations and enforcing restrictions for species not currently at risk of decline or extinction. It’s long past time the government corrected this ineffective, unfair policy.

A second reform revises how critical habitat for species recovery is designated. This reinstates a requirement that officials review areas currently occupied by an endangered species before reviewing uninhabited areas that might harbor endangered species in the future. The Obama administration had changed the habitat rule to impose equally stringent restrictions on potential habitats as well as occupied habitats. Specifically, the new rule states, “The Secretary will designate as critical habitat . . . specific areas outside the geographical area occupied by the species only upon a determination that such areas are essential for the conservation of the species … [and] there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species” [emphasis added]. The second provision clarifies, in accordance with a Supreme Court ruling, any area declared critical habitat actually be viable habitat.

Frog Case Shows Reform Is Needed

The case of the dusky gopher frog highlights the need for this reform. In 2001, the U.S. Fish and Wildlife Service (FWS) listed the dusky gopher frog as endangered. At the time, only 100 adult frogs were known to exist in the wild, all in Mississippi. In 2011, FWS designated 6,477 acres stretching across Louisiana and Mississippi as “critical habitat” for the frog, empowering it to limit the uses of the land to help the species recover.

While this might on the surface seem within the intended purpose of ESA, there is a unique hitch in this case: The frog does not exist on the 1,544 acres of private land in Louisiana, has not existed there since 1965, and in its current condition, the land is not suitable for the frog’s habitation or survival. In other words, there ain’t no frogs there, and they can’t live there unless the landowners make costly changes to the land to make it suitable for the frogs.

FWS tried to extort the landowners into making a portion of their property suitable frog habitat, saying it would allow the property owners to develop 40 percent of their property if they undertook changes to alter the remaining 60 percent to make it suitable habitat for the frog. FWS estimated the required changes would cost the landowners $20.4 million. FWS said it would also allow owners to leave property in its current state, but by doing so, FWS would not allow any development, costing landowners $33.9 million in lost value. The mafia could provide no better an example of strong arm tactics!

The lands owners challenged FWS’ Louisiana critical habitat designation, and 18 states and a number of business groups—including the American Farm Bureau Federation, National Alliance of Forest Owners, National Mining Association, National Association of Home Builders, and U.S. Chamber of Commerce—backed their challenge.

Inexplicably, by a vote of eight to six, the U.S. Court of Appeals for the Fifth Circuit allowed FWS’ critical habitat designation to stand. As Fifth Circuit Judge Priscilla Owen noted in her dissenting opinion, FWS’ action was “unprecedented and sweeping” … “[It] re-writes the Endangered Species Act.”

Let’s be clear: The dusky frog is not in commerce, much less interstate commerce, so the federal government should not have jurisdiction over the frog or the property/habitat in question in the first place. Perhaps more importantly to the general public is the fact that if FWS’ habitat designation is allowed to stand, no person’s property is safe from being declared critical habitat for some endangered species; the government could force each and every one of us to expend resources to make our properties suitable for one “endangered” species or another.

Sound farfetched? Consider this: There are currently more than 1,650 species listed as endangered in the United States—with listings in all 50 states and the District of Columbia—but less than half, only 742 of them, have had critical habitat designated for their recovery. In addition, FWS has hundreds of ESA listing decisions pending, each of which, under the terms of the law, would require the designation of critical habitat. And for those species without critical habitat, before the Trump administration’s reforms, FWS had threatened that future designations “will likely increasingly use the authority to designate specific areas outside the geographical area occupied by the species at the time of listing.”

The Trump administration’s regulatory changes should prevent similar efforts, which violate the Constitution’s Fifth Amendment protections against uncompensated takings. If government wants to take a person’s land to expand a viable habitat, the landowner should be justly compensated. The same principle applies when government confiscates someone’s land for a military base, a road, or a school.

DOI’s rule changes don’t gut the ESA and won’t lead to the demise of any endangered (or threatened) species. However, the changes will help ESA operate more efficiently and lawfully.

Further Reforms to Make ESA Work

Although the Trump administration’s actions are legal and eminently reasonable, they still don’t get at the root of the problem of the ESA. The true cost of the ESA should be measured in houses, homeless shelters, and hospitals not built or significantly delayed; medical and technological discoveries not advanced; funds not available for education, crime control, health, or environmental matters; and in “protected” species lost or still on the list and declining.

ESA fails to protect species because it creates perverse incentives to destroy species and their habitat. More than 75 percent of the listed species depend on private land for all or part of their habitat. Yet if people provide suitable habitat for an endangered species, their land becomes subject to severe regulation and possible confiscation.

Property owners are faced with three undesirable options: kill an endangered species member—“shoot, shovel, and shut up”—destroy habitat before a species moves in, or lose the use and value of their land. Clinging to this approach condemns the very species ESA was passed to protect.

For 46 years the ESA has made property owners adversaries of endangered species. At a minimum, we must make property owners allies in species conservation. The fairest and most effective way to foster species recovery would be to reward people for managing their property in ways that attract endangered species. For instance, paying landowners when their property is restricted to protect species would be consistent with the Constitution’s requirement landowners be paid just compensation when their property is taken for public purposes, and it would keep them from being forced to choose between their own welfare and that of the endangered species.

 

Photo by Florian GIORGIO on Unsplash