September 16, 2020

Update on the Journey to Protect Bears Ears and the Antiquities Act

Update 10/8/21: As one of President Biden’s first acts in Office, he issued Executive Order on January 20, 2021 directing the Secretary of the Interior to review the revocation of the Bears Ears National Monument, Grand Staircase-Escalante National Monument, and the Northeast Canyons and Seamounts National Monument. Secretary Haaland completed the review and submitted a report to the President with recommendations for actions consistent with the Antiquities Act. On October 8, 2021, President Biden issued proclamations restoring the boundaries and protections of Bears National Monument, Grand Staircase-Escalante National Monument in Utah, and the Northeast Canyons and Seamounts Marine National Monument off the coast of Massachusetts. With this action, Bears Eras is restored to its original acreage of 1.36 million acres, protecting its archaeological resources, prehistoric cliff dwellings, paleontological resources, and sites sacred to many Native American tribes.

The Antiquities Act of 1906 is the nation’s oldest law intended to protect historic features on federal public lands. Passed to address the problem of looting of archaeological sites and artifacts on public lands, it grants authority to the president to designate federally owned “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments. It was signed into law by President Theodore Roosevelt, who used its authority to designate iconic sites like Wyoming’s Devils Tower and Arizona’s Petrified Forest. However, from its inception, use of the Antiquities Act has been controversial. Arguments about how best to use public lands (preservation versus extractive uses) and who should decide (state governments versus the federal government or local interests versus the broader American public) have repeatedly arisen. These conflicts continue to play out today in the ongoing legal fight over the Bears Ears National Monument.

Since 2007, the National Trust has worked, together with a range of partners, to support the establishment of the Bears Ears National Monument. The federal lands in the region of southeast Utah included in the monument contain sites sacred to multiple Native American tribes. The cultural landscape includes the twin buttes that give the area its name, as well as natural wonders like the Valley of the Gods. The area is also rich with archaeological resources, cliff dwellings, paleontological resources, and scenic vistas.

Following years of advocacy urging additional protections for this area, on December 28, 2016, former President Obama designated a 1.35 million-acre national monument to be managed jointly by the Bureau of Land Management and the U.S. Forest Service. Uniquely, the monument designation also established the Bears Ears Commission, intended to consist of tribally designated members from the Hopi Nation, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe of the Uintah Ouray, and Zuni Tribe. This was the first time that the Antiquities Act was used to establish a national monument with the explicit goal of ensuring that tribal expertise and knowledge would be considered by the federal agencies in making management decisions.

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However, before management planning processes for the new monument began, on April 26, 2017, President Trump issued an Executive Order requiring the Secretary of Interior to review all national monuments of over 100,00 acres in size that were designated since 1996. That review process resulted in a report recommending revising the boundaries of several national monuments, including Bears Ears. On December 4, 2017, President Trump acted on these recommendations by cutting 85% of the land from the Bears Ears National Monument.

This is far from the first time that monument designations under the Antiquities Act have been litigated. After signing the Act into law, President Theodore Roosevelt used his new executive authority to designate eighteen monuments, including the Grand Canyon at over 800,000 acres. This designation resulted in the first litigation under the Act, in a case brought by Arizona Senator Ralph H. Cameron, whose financial interests were impacted by the designation. At issue in the case was whether the designation violated the Antiquities Act’s language stating that monuments should “be confined to the smallest area compatible with proper care and management of the objects to be protected.” The U.S. Supreme Court ultimately affirmed action as within the authority granted under the Act. Despite the clear outcome in this case, challenges to use of the Antiquities Act had only just begun.

In 1943, President Franklin Roosevelt established the Jackson Hole National Monument adjacent to Grand Teton National Park in Wyoming. While many local residents, and leadership from the National Park Service, welcomed the new monument, the state of Wyoming strenuously opposed the designation, including through an unsuccessful legal challenge. Eventually, the monument lands were merged into Grand Teton National Park through compromise legislation passed by Congress in 1950 that included a provision amending the Antiquities Act to prohibit designations of new monuments in Wyoming without congressional approval.

Despite this history of early failures in challenging use of the Antiquities Act, legal challenges have continued. Cases have been brought related to Devil’s Hole, part of Death Valley National Monument in Nevada, against Gates of the Arctic National Monument and other monuments in Alaska, and against Canyons of the Ancients National Monument in southwest Colorado, the Hanford Reach National Monument in southern Washington, and the Ironwood Forest National Monument in southern Arizona, among others. Currently, in addition to the Bears Ears litigation, cases are also pending challenging President Trump’s decision to drastically cut the size of Grand Staircase Escalante National Monument and challenging President Obama’s designation of the Northeast Canyons and Seamounts National Monument.

Even with this history of past litigation, the current lawsuit challenging the revocation of Bears Ears raises a previously undecided legal issue. The plaintiffs are arguing that the Antiquities Act does not grant presidential authority to revoke national monument designations, because Congress reserved that authority for itself. Article IV the U.S. Constitution vests Congress with sole authority “to dispose of and make all needful rules and regulations” about property held by the United States. Congress may delegate some of its sole constitutional authority over federal property to the Executive Branch and did so under the Antiquities Act. The text of the Act states that the “President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” Whether this language from Congress allows the president not just to make monument declarations–as stated in the statute’s plain text–but also to revoke existing monuments, is the primary question currently before the courts.

Following the resolution of several initial matters, including questions over the appropriate venue to decide the case, the Bears Ears case is now fully briefed and a decision by the U.S. District Court in the District of Columbia could be released at any time. Because of the significance of the legal issues in the case, appeals are anticipated no matter the outcome at the district court level. The National Trust remains committed to working with our partners to protect the cultural landscape of Bears Ears National Monument, as well as the integrity of the Antiquities Act. We will keep the historic preservation community informed as this issue moves through the courts.

Sharee Williamson is a former senior associate general counsel at the National Trust.

This May, our Preservation Month theme is “People Saving Places” to shine the spotlight on everyone doing the work of saving places—in big ways and small—and inspiring others to do the same!