Redge Johnson: Monuments are too big to manage and violate the Antiquities Act

Bears Ears and Grand Staircase do not meet the criteria for monument designation.

(Leah Hogsten | The Salt Lake Tribune) The Bears Ears buttes April 10, 2021.

“Any land reserved under the [Antiquities] Act must be limited to the smallest area compatible with the care and management of the objects to be protected. Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint. A statute permitting the President in his sole discretion to designate as monuments ‘landmarks,’ ‘structures,’ and objects ... has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.”

– Chief Justice John Roberts, Massachusetts Lobsterman’s Assoc. v. Raimondo, March 22, 2021

This non-binding statement by the chief justice was attached to the Supreme Court’s refusal to hear a case involving a 3.2 million-acre marine national monument off the coast of Massachusetts.

Within just six months of this admonition from Chief Justice Roberts, President Joe Biden proclaimed more than 3.2 million acres of Utah landscape as two national monuments: Grand Staircase-Escalante and Bears Ears. This vast area is more than twice the size of Delaware, hardly the “smallest area” to be managed.

As a result, the state of Utah and Kane and Garfield counties have filed a lawsuit in federal district court arguing the proclamations designating these reservations are unlawful, and cannot be squared with the plain language of the Antiquities Act.

Basically, we’re asking the court to determine whether these two vast reservations comport with the “smallest area compatible” restraint upon the president’s powers. We don’t believe it does and we’re hoping the court reverses these proclamations.

Contrary to a popular narrative, Utah absolutely supports the protection of cultural, archeological, paleontological and geological resources. We just don’t favor a president’s unilateral act creating enormous monuments.

History has already demonstrated that these vast designations actually put the supposedly “protected” resources at greater risk of vandalism, defacement and desecration. Without site-specific, discrete physical protections, the inevitable crowds generated by these monuments will lead to increased vandalism.

Utah also supports access to its public lands and their cultural resources. However, cultural sites experiencing heavy traffic must be protected with designated trails, signage, appropriate fencing and other means of protection along with sufficient personnel to safeguard sites from damage, none of which necessarily come with national monument designations. Otherwise, these precious places will be damaged.

Unfortunately, the Bureau of Land Management and U.S. Forest Service have often failed to enforce the several laws protecting archeological and paleontological resources enacted since the 1906 Antiquities Act — the Archeological Resources Protection Act, the Paleontological Resources Preservation Act, the National Historic Preservation Act and the Native American Graves Protection and Repatriation Act.

These laws apply with or without monument designation and the failure to fund enforcement of these laws has been an ongoing dilemma. In fact, national monument designations ironically make it more difficult for federal land agencies to comply with these laws by drawing more visitation to the vast areas without providing sufficient funding or law enforcement capacity.

Size matters, but so does specificity. The Antiquity Act requires monuments to be discrete “objects,” “structures,” or “landmarks,” of “historic or scientific interest.” In an apparent effort to justify the monuments, the proclamations list is generic, nondescript, animate and not affixed to the land. A proclamation that describes generic categories of things – both animate and inanimate – without identifying their location or number fails to satisfy the act’s requirements.

It appears that these monuments were reverse-engineered by stitching together a vast area and then filling the area in with ubiquitous items of marginal interest.

As noted, the state supports protecting archeological and paleontological sites that are of significant interest, many of which are within the Grand Staircase or Bears Ears. However, as recognized by Chief Justice Roberts, “No court of appeals has addressed the questions raised above about how to interpret the Antiquities Act’s ‘smallest area compatible’ requirement.” The state’s lawsuit will provide the opportunity for this much-needed review.

If the suit is successful, the state looks forward to working together with tribal nations, Congress, local governments and other interested parties on a permanent legislative solution for the lands and resources in both Grand Staircase and Bears Ears, a solution that will designate focused areas of conservation and provide sufficient ongoing funding and staffing for the protection of our cultural, paleontological and geological resources.

Redge Johnson

Redge Johnson is director of the Public Lands Policy Coordinating Office.