Is the Antiquities Act broken? Utah congressman thinks so

Utah’s Rep. Bishop has proposed a sweeping reform to the act, one that opponents say would break the landmark law and presidential powers to conserve valuable lands.

(Francisco Kjolseth | Tribune file photo) A measuring stick far below keeps track of the depth of the Hansen Cave Lake that make up the far end of the introduction to caving tour at Mt. Timpanogos and where Martin Hansen conducted tours in the late 1800s. The side tour gives those 14 and older a chance to experience caving away from the developed trail and cave lights. With a helmet lamp and a ranger to guide you visitors experience tight spots that force you to crawl and scramble.

Rep. Rob Bishop joked with reporters last year that he hoped President Barack Obama would designate Bears Ears National Monument so he could use such an act of presidential “overreach” to rein in the Antiquities Act.
A longtime critic of the 1906 law that gives presidents unilateral power to set aside federal land, the Utah Republican got his sarcastic wish Dec. 28, when Obama proclaimed the monument on 1.35 million acres surrounding Bears Ears Buttes in San Juan County.
Now, some 10 months later, Bishop is making good on his threat with a proposal introduced in Congress that would severely curtail the ability of presidents to establish monuments while giving them authority to diminish existing ones.

FILE - In this April 23, 2016, file photo, Rep. Rob Bishop, R-Utah, speaks in Salt Lake City. House Republicans are moving to restrict the president’s ability to protect millions of acres of federal land considered historic, geographically significant or culturally important. Bishop said presidents of both parties have misused the 1906 Antiquities Act to create oversized monuments that hinder energy development, grazing and other uses. Bishop, chairman of the House Natural Resources Committee, introduced a bill that would prevent presidents from designating monuments larger than 85,000 acres and grant veto power to states and local officials for monuments larger than 10,000 acres. The GOP-controlled resources panel approved the bill on Oct. 11, 2017, 23-17, sending it to the House floor. (AP Photo/Rick Bowmer, File)

“No longer would we have to blindly trust the judgment or fear the whims of any president,” he told reporters in an Oct. 11 phone call explaining his “National Monument Creation and Protection Act.
“It will provide a reasonable degree of consultation with local stakeholders and an open public process,” Bishop said. “It strengthens the authority of the president to protect actual antiquities without disenfranchising people.”
His bill would narrow the Antiquities Act’s scope and impose thresholds on the size of future monuments, barring designations exceeding 85,000 acres, and require approval by local and state political leaders.
WHAT BISHOP’S BILL WOULD DO<br>• Narrow the definition of what the Antiquities Act protects to simply “objects of antiquity.”<br>• Require varying levels of analysis and local support, depending on the size of designation.<br>• No review needed for monuments less than 640 acres and are more than 50 miles from an existing monument.<br>• Up to 5,000 acres, a designation requires a review under the National Environmental Policy Act, or NEPA.<br>• If it exceeds 5,000 acres, a designation requires an Environmental Assessment or Environmental Impact Statement.<br>• Designations between 10,000 to 85,000 acres require support from the relevant counties, the governor and state Legislature.<br>• Authorize presidents to reduce monuments. Reductions exceeding 85,000 acres require NEPA analysis and approval from relevant counties, the governor and state Legislature.<br>• Bar monument designations within 50 miles of an existing monument or designations exceeding 85,000 acres.<br>• Bar monument designations that capture non-federal in-holdings without the owners’ written consent.<br>• Authorizes “emergency” designations needed to “prevent imminent and irreparable harm.” Such designations can be in effect for just one year and the land may not be subject to future designations.<br>
Shortly after its introduction, the House Natural Resources Committee, which Bishop heads, advanced his proposal on a party-line vote in the face of criticism from conservation, outdoor industry and sporting groups.

’Desperate need of reform’

While Bishop has framed his proposal as a way to inject transparency and public process into monument creation, critics contend he is engaging in his own brand of overreach by disempowering presidents to safeguard the nation’s cultural and natural treasures.
“If you have to jump though these processes, we have taken away the ability to act swiftly, which was one of the main points of the Antiquities Act,” said University of Utah law professor John Ruple.
Ruple said expansive monument declarations have never been unusual, noting that 53 past designations exceeded 100,000 acres, starting with the Grand Canyon in 1908. In 25 cases, Congress ratified these monuments by raising their status.
”The Grand Canyon would not be protected under Bishop’s bill,” Ruple said. “Our very first monument [Devils Tower] was a geological feature. To say this isn’t what Congress intended ignores 100 years of history.”

FILE - In this Feb. 22, 2005, file photo, with the North Rim in the background, tourists hike along the South Rim of the Grand Canyon in Grand Canyon, Ariz. Heavy damage to a pipeline supplying water to lodges, campgrounds and employee housing on the North Rim of the Grand Canyon will limit some services to the landmark's less popular side when it opens later this month, officials said Wednesday, May 3, 2017. (AP Photo/Rick Hossman)

But Rep. Paul Gosar, R-Ariz., whose district includes part of Grand Canyon, complains the Antiquities Act “is broken and in desperate need of reform.” Presidents have invoked the law 233 times to “lock up” 800 million acres of land and ocean, Gosar told reporters.
“One day you wake up and the president announces that he or she has decided that the land you or your community needs or uses is being confiscated,” said Gosar, chairman of the Congressional Western Caucus. “This power the president has seized isn’t just unpopular among legal scholars who know this was not Congress’ initial intent. It is firmly rejected by the communities and local governments that have been victimized by this law.”
Bishop said his proposed 85,000-acre limit matches the average size of monuments established by Theodore Roosevelt, the first of 16 presidents of both parties to wield the Antiquities Act’s broad authority. Depending on the acreage, under his bill, designations greater than 640 acres could require review under the National Environmental Policy Act, or NEPA, and approval from local and state political leaders.

‘Extraordinary treasures’

Bishop’s bill enjoys the support of Utah Gov. Gary Herbert, who has complained that Bears Ears and the 1.7 million-acre Grand Staircase-Escalante designations ignored the wishes of local leaders. The historic context since the Antiquities Act’s passage 111 year ago has changed and now there are a dozen statutes and agencies to protect cultural and natural treasures on public lands, according to Herbert’s spokesman Paul Edwards.
Bishop’s reform “creates a tiered approach that allows for greater public input into decisions we think Utah would benefit from,” Edwards said. It would “modernize” the Antiquities Act, aligning it with transparent processes the public has come to expect.
“Utah has benefited enormously from [past] use of the Antiquities Act to identify extraordinary treasures that were under threat,” Edwards said. “There were a number of places a century ago, prior to the passage of other acts, that were very important to have a robust presidential authority in place.”
American Fork Canyon in the 1910s was such a place.
Back then, the gemstone onyx was a popular material for home furnishings, such as countertops and mantles. Looking to cash in on that demand, the Duke Onyx Mining Co., based in Chicago, raided the beautiful formations dangling from the ceilings of Hansen Cave, one of three connected caves in the Wasatch Mountains’ American Fork Canyon.

“Of course, it wan’t onyx. It was calcite,” said Jim Ireland, superintendent of what became Timpanogos Cave National Monument. But the mistake didn’t prevent extensive damage that locals did not want to see repeated in the two other caves.
In 1922, President Warren Harding complied with their petition, proclaiming the 250-acre monument. Though hardly among Utah’s “Mighty Five” parks, the caves are toured by 75,000 people a year, and 1.5 million drive through to visit the canyon.
Timpanogos is a good example of the agility the Antiquities Act gives presidents to act.
“The locals saw there was a threat and asked for protection,” Ireland said. “It took three weeks for the order to come down.”
Yet it is doubtful the caves’ colorful formations would qualify for protection under Bishop’s reforms. The 1906 law protects “objects of historic or scientific interest,” a provision that Bishop contends past presidents misapplied to cover wide swaths of landscapes and ecosystems.

Old glove, new times

At a recent appearance before a sympathetic Heritage Foundation audience, Bishop romanticized his late father’s old baseball glove, handed down to him in 1969. The cherished family heirloom that remained wonderful to hold, Bishop said, but not so good for catching with.
“The Antiquities Act is my old glove. There is nostalgia to it, and there is romance to it,” Bishop told his audience. “There was a purpose to it, just like there was a purpose to that glove.”
But, like that glove, Bishop said, the Antiquities Act is no longer suited to its original purpose, allowing four of the past six presidents to abuse the law, with Obama the leading culprit. The former president made 34 designations, covering 5.7 million acres of land, or 540 million when ocean monuments are included.
“A fish is not an antiquity. A tree is not an antiquity,” Bishop said. “It was supposed to be an antiquity and something that was in danger, and it was supposed to be the smallest footprint possible.”
MONUMENT DESIGNATIONS IN UTAH, by U.S. president and year.<br>Theodore Roosevelt <br>1908 Natural Bridges — 120 acres<br>William Howard Taft<br>1909 Mukutuweap — 16,000 acres (President Wilson enlarged to 92,800 acres and Congress redesignated as Zion National Park in 1919)<br>1909 Natural Bridges expansion — 2,620 acres<br>1910 Rainbow Bridge — 160 acres<br>Woodrow Wilson<br>1915 Dinosaur — 80 acres<br>1918 Mukutuweap renamed Zion, enlarged by 76,800 acres (Congress redesigned the park in 1919, now covers 146,624 acres)<br>Warren Harding<br>1922 Timpanogos Cave — 250 acres<br>1923 Bryce Canyon — 7,440 acres (Congress in 1928 redesigned a park, which now covers 35,835 acres.)<br>1923 Hovenweep — 286 acres (now 447 acres)<br>Herbert Hoover<br>1929 Arches — 4,520 acres (it was enlarged by Presidents Roosevelt and Johnson, and diminished by President Eisenhower)<br>Franklin Roosevelt<br>1933 Cedar Breaks — 5,701 acres<br>1937 Capitol Reef — 37,060 acres<br>1937 Zion (Kolob section) —49,150 arches<br>1938 Dinosaur expansion — 203,885 acres. (Monument is now 283,885 acres)<br>1938 Arches expansion — 29,160 acres<br>John F. Kennedy<br>1962 Natural Bridges expansion — 5,236 acres (now covers 7,636 acres)<br>Lyndon Johnson<br>1968 Capitol Reef expansion —215,056 acres (Congress made a park in 1971, now covers 241,901 acres)<br>1969 Arches expansion — 48,943 acres (Congress in 1971 redesignated Arches as a national park, now covers 76,679 acres.)<br>Bill Clinton<br>1996 Grand Staircase-Escalante — 1.7 million acres<br>Barack Obama<br>2016 Bears Ears — 1.35 million acres<br>Source: National Park Service
His fix is to limit the law to actual “objects of antiquity,” such as the ancient artifacts and ruins the original bill was tailored to protect. The bill‘s approach has received a full-throated endorsement from the Sutherland Institute, a conservative think tank lobbying against Bears Ears.
“Monuments are going to be a football punted back and forth from now on, if we don’t come to a solution,” said Matt Anderson, who runs the Sutherland Institute’s Coalition for Self-Government in the West. “That’s what happens when one man with a phone and a pen is making all the decisions.”
Anderson agrees locals deserve a prominent voice.
“No one has a more vested interest in our public lands and national treasures than locals who depend on them and are tied to the history and culture in the antiquities where they live,” he said. “We live in a different time. People are more aware of the values of our public lands.”

Franciso Kjolseth | The Salt Lake Tribune Steep cliffs, narrow canyons and wildlife greet visitors to the famed landscape that is Zion National Park.

Critics fear Bishop’s proposed redefinition of objects to be protected excludes natural features — such as Zion, Grand Teton and Mount Olympus — features that history has shown to be wise and broadly accepted designations. While few can defend the invisible process Clinton used to designate Grand Staircase, big designations since have been the subject of open, inclusive processes, according to Ruple.
Subjecting monument designations to review under the National Environmental Policy Act is neither necessary or appropriate, he argued.
“That has the potential to handcuff the president when he needs to make time-sensitive decisions,” Ruple said.

‘No New Parks bill’

Numerous activist groups have denounced Bishop’s bill as the “No New Parks” bill — designed, they say, to enable oil, gas and mining interests to more readily exploit resources found in precious ecosystems owned by all Americans.
“While this tool needs to be used in the right way and in the right place, [this bill] does away with the tool altogether,” Trout Unlimited’s Steve Moyer and Corey Fisher, wrote in a letter to Bishop. “It does this by narrowing the scope of eligible lands to only those possessing relics, artifacts, skeletal remains, fossils and certain buildings, eliminating the ability to use the act to conserve fish and wildlife habitat, biodiversity, and traditional uses such as hunting and fishing.”
The wildlife group challenged Antiquities Act critics to develop lasting solutions to the West’s public lands controversies.
“Where there are challenges, let’s meet them,” said Fisher, Trout Unlimited’s public lands director. “But gutting the Antiquities Act doesn’t bring people together to find common ground. It only drives ideological wedges where we should be working together to conserve our public lands’ hunting and fishing heritage.”
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