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John D. Leshy: The facts about the Antiquities Act and the courts

Utah Gov. Spencer Cox is wrong to argue that the Supreme Court is likely to reverse any restoration of Utah’s national monuments.

FILE - In this Jan. 16, 2020, file photo Chief Justice of the United States, John Roberts walks to the Senate chamber at the Capitol in Washington. (AP Photo/Matt Rourke, File)

Utah Gov. Spencer Cox recently asserted that Chief Justice John Roberts cast grave doubt on President Biden’s authority to use the Antiquities Act to protect large areas of public lands in the Grand-Staircase and Bears Ears areas of southern Utah (“Chief Justice Offers Encouragement for Monument Reform,” Tribune, April 13).

Cox was referring to a memorandum Roberts filed last month when the court unanimously refused to hear a challenge to a lower court ruling upholding presidential establishment of a 3.2 million acre national monument off the Massachusetts coast.

Critics of the Antiquities Act have grossly exaggerated Roberts’s comments. His memo recognized that the act, in Roberts’s words, “vests” the president with “significant discretion” and “broad authority” that carries with it great “flexibility.” He then noted that the act’s language authorizing the president to protect “the smallest area” of public lands that is “compatible” with the “proper care and management of” the features to be protected has “ceased to pose any meaningful restraint.”

Roberts did not say this was an error that warrants correction by the judiciary; instead, he mildly suggested that it “may warrant consideration” by the court at some future time. His memo -- not joined by any other justice -- is a far cry from suggesting the court is poised to strike down whatever President Biden might do.

Roberts failed to mention that the question of how big a national monument can be is indeed a very old one, dating back to President Theodore Roosevelt’s 1908 establishment of the 800,000-acre Grand Canyon National Monument. In 1920, the Supreme Court rejected the claim that Roosevelt’s proclamation exceeded his Antiquities Act authority, noting that the protected area “has attracted wide attention among explorers and scientists, affords an unexampled field for geologic study, is regarded as one of the great natural wonders, and annually draws to its borders thousands of visitors.”

Remarkably, Roberts ignored this unanimous decision -- written by a Justice from Wyoming, Willis Van Devanter -- while blithely asserting that the Court has “never considered” how a large monument “can be justified under the Antiquities Act.”

Indeed, Roberts paid almost no attention to the act’s rich history. Since 1906, nearly every president -- including Republicans Theodore Roosevelt, William Howard Taft, Calvin Coolidge, Herbert Hoover, Dwight Eisenhower and George W. Bush -- has used the act to protect more than one hundred million acres of public lands onshore, and several hundred million acres of submerged public lands offshore.

Several other Supreme Court decisions and numerous lower court decisions (including a Utah federal court decision upholding President Clinton’s establishment of the Grand Staircase-Escalante national monument) have rejected every single challenge made to presidential use of the act. Congress itself has enlarged a number of these presidential monuments and put many of them in the national park system.

In short, Roberts’s solitary, offhand memo should not give President Biden pause as he considers what to do about the Utah monuments.

Cox himself notes that “everyone agrees with the need to conserve and protect these archeologically and culturally significant lands” in southern Utah. It should be easy for Biden to identify with sufficient precision those features of “historic or scientific interest” that deserve the act’s protection, and to explain why the lands being included in the national monuments are the “smallest area compatible with the proper care and management of the objects to be protected.” If he does, and his actions are challenged, the courts will almost certainly continue -- rather than ignore -- the unbroken, time-honored history of judicial deference to presidential actions under the Antiquities Act.

Any “reform” of the Antiquities Act must, in other words, come from Congress, not the courts.

| Courtesy John Leshy, op-ed mug.

John Leshy is emeritus professor at the University of California, Hastings College of the Law, and was solicitor (general counsel) of the Department of the Interior in the Clinton administration.

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