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National Monuments and the Antiquities Act
Carol Hardy Vincent
Specialist in Natural Resources Policy
Kristina Alexander
Legislative Attorney
March 29, 2011
Congressional Research Service
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www.crs.gov
R41330
CRS Report for Congress
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repared for Members and Committees of Congress
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National Monuments and the Antiquities Act
Summary
The Antiquities Act of 1906 authorizes the President to proclaim national monuments on federal
lands that contain historic landmarks, historic and prehistoric structures, or other objects of
historic or scientific interest. The President is to reserve “the smallest area compatible with the
proper care and management of the objects to be protected.” The act was designed to protect
federal lands and resources quickly, and Presidents have proclaimed about 130 monuments.
Congress has modified many of these proclamations and has abolished some monuments.
Congress also has created monuments under its own authority.
Presidential establishment of monuments sometimes has been contentious—for example,
President Franklin Roosevelt’s creation of the Jackson Hole National Monument in Wyoming
(1943); President Carter’s massive Alaskan withdrawals (1978); and President Clinton’s
establishment of 19 monuments and enlargement of three others (1996-2001). The Obama
Administration’s consideration of areas for possible monument designation has renewed
controversy over the Antiquities Act.
Issues have included the size of the areas and types of resources protected; the effects of
monument designation on land uses; the level and types of threats to the areas; the inclusion of
nonfederal lands within monument boundaries; the act’s limited process compared with the public
participation and environmental review aspects of other laws; and the agency managing the
monument.
Opponents have sought to revoke or limit the President’s authority to proclaim monuments. The
112th Congress is currently considering proposals to limit the President’s authority to create
monuments. Some bills——H.R. 845 (Montana), H.R. 846 (Idaho), and S. 144 (Nevada)—would
block monuments from being declared by the President in a particular state. One bill——H.R.
302—would require state approval before a monument was proclaimed by the President.
Others—H.R. 817 and S. 122—would require congressional approval. Two other bills would
require congressional approval and also would create extensive procedures for the President and
the Secretary of the Interior to follow before a monument could be designated by the President—
H.R. 758; S. 407. Monument supporters favor the Antiquities Act in its present form, asserting
that the public and the courts have upheld monument designations and that many past
designations that initially were controversial have come to be supported. They contend that the
President needs continued authority to promptly protect valuable resources on federal lands from
potential threats.
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Contents
Introduction ................................................................................................................................ 1
The Antiquities Act of 1906 ........................................................................................................ 1
Monument Issues and Controversies ........................................................................................... 3
Monument Size..................................................................................................................... 4
Establishment Criteria ........................................................................................................... 5
Inclusion of Nonfederal Lands .............................................................................................. 6
Effects on Land Use .............................................................................................................. 7
“Consistency” of Antiquities Act with NEPA and FLPMA..................................................... 8
Monument Management ....................................................................................................... 9
Administration Activity............................................................................................................. 10
Legislative Activity................................................................................................................... 11
Contacts
Author Contact Information ...................................................................................................... 12
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Introduction
Presidential establishment of national monuments under the Antiquities Act of 1906 (16 U.S.C.
§§ 431-433) has protected valuable sites, but also has been contentious. Litigation and legislation
related to the law have been pursued throughout its history. To give one historical example,
displeasure with President Franklin Roosevelt’s proclaiming of the Jackson Hole National
Monument in Wyoming in 1943 prompted litigation on the extent of presidential authority under
the Antiquities Act, and led to a 1950 law prohibiting future establishment of national monuments
in Wyoming unless Congress made the designation.1 As another example, President Carter’s
establishment of monuments in Alaska in 1978 also was challenged in the courts and led to a
statutory requirement for congressional approval of land withdrawals2 in Alaska larger than 5,000
acres.3 President Clinton’s proclamation of the Grand Staircase-Escalante National Monument in
1996 triggered several lawsuits, a law authorizing land exchanges,4 and proposals to amend or
revoke presidential authority under the Antiquities Act. President George W. Bush’s designation
of a marine national monument in 2009 led to a legal challenge claiming that fishing rights had
been lost. To date, no court challenges have succeeded in undoing a presidential designation.
Additionally, initial opposition to some monument designations has turned to support over time.
Some controversial monuments later were enlarged and redesignated as national parks by
Congress, and today are popular parks with substantial economic benefit to the surrounding
communities. For instance, the Grand Canyon National Monument, proclaimed in 1908 and the
subject of a legal challenge, is now a world-famous national park.
Various issues regarding presidentially created monuments have generated controversy, lawsuits,
and legislative proposals to limit the President’s authority. Issues include the size of the areas and
types of resources protected, the level and types of threats to the areas, the inclusion of nonfederal
lands within monument boundaries, restrictions on land uses that may result, the manner in which
the monuments were created, and the selection of the managing agency. Recent Congresses have
considered, but not enacted, bills to restrict the President’s authority to create monuments and to
establish a process for input into monument decisions. Monument supporters assert that changes
to the Antiquities Act are neither warranted nor desirable. They believe that the act serves an
important purpose in preserving resources for future generations. Additionally, courts have
supported presidential actions. The Obama Administration’s interest in exploring areas for
national monument designation has renewed controversies and legislative efforts in the 112th
Congress to restrict the President’s authority to proclaim national monuments.
The Antiquities Act of 1906
The Antiquities Act of 1906 authorizes the President to proclaim national monuments on federal
lands that contain “historic landmarks, historic and prehistoric structures, and other objects of
historic or scientific interest.” The President is to reserve “the smallest area compatible with the
1 16 U.S.C. § 431a.
2 A withdrawal is an action that restricts the use or disposition of public lands.
3 This provision was enacted as part of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA), P.L.
96-487; see 16 U.S.C. § 3213.
4 P.L. 105-335.
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proper care and management of the objects to be protected.”5 Congress subsequently limited the
President’s authority by requiring congressional authorization for extensions or establishment of
monuments in Wyoming,6 and by making withdrawals in Alaska exceeding 5,000 acres subject to
congressional approval.7
The Antiquities Act was a response to concerns over theft from and destruction of archaeological
sites and was designed to provide an expeditious means to protect federal lands and resources.
President Theodore Roosevelt used the authority in 1906 to establish Devil’s Tower in Wyoming
as the first national monument. Fifteen of the 19 Presidents8 since 1906 have created 128
monuments in total, including the Grand Canyon, Grand Teton, Zion, Olympic, the Statue of
Liberty, and the Chesapeake and Ohio Canal.9 President Franklin Roosevelt used his authority the
most often—on 28 occasions. President George W. Bush proclaimed the most monument
acreage, virtually all in marine areas. Many areas initially designated as national monuments were
later made into national parks.
Monuments vary widely in size. While about half of the presidential monument proclamations
involved less than 5,000 acres, they have ranged from less than 1 acre to about 89 million acres.10
Congress, too, may create national monuments on federal lands, and has done so on many
occasions. Supporters of congressional, rather than presidential, action note that Congress has
unlimited authority under the Constitution to make rules regarding federal lands,11 and is not
restricted by the Antiquities Act. For instance, Congress could allow more land uses than are
typical for national monuments created by the President, such as by allowing new commercial
development, or could choose to provide additional protections. Some believe that legislation (as
opposed to presidential action) is more likely to involve the input of local and other citizens.
Congress also has modified monuments (including those created by the President), for instance,
by changing their boundaries. Congress has abolished some monuments outright12 and converted
others into different protective designations, such as national parks. Almost half of the current
national parks were first designated as national monuments.13
5 16 U.S.C. § 431.
6 16 U.S.C. § 431a.
7 16 U.S.C. § 3213.
8 Since 1906, the Presidents who have not used this authority are Richard M. Nixon, Ronald Reagan, George H. W.
Bush, and Barack Obama.
9 Monuments created by Presidents from 1906 through 2006 are listed chronologically on the website of the National
Park Service at http://www.nps.gov/archeology/sites/antiquities/MonumentsList.htm.
10 The African Burial Ground National Monument, established by President George W. Bush in 2006 in New York
City, is 0.345 acres. The Papahanaumokuakea Marine National Monument, proclaimed by President George W. Bush,
is approximately 89 million acres in the Pacific Ocean. The largest national monument proclaimed on land was the
Wrangell-St. Elias National Monument in Alaska, with 10.95 million acres. It was redesignated as a national park and
national preserve two years after it was proclaimed.
11 U.S. Const. Art. IV, sec. 3: “The Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United States ....”
12 For example, the Fossil Cycad National Monument in South Dakota was abolished by an Act of August 1, 1956, and
the area was transferred to the Bureau of Land Management to be administered under the public land laws. As another
example, the Papago Saguaro National Monument in Arizona was abolished by an Act of April 7, 1930, and the area
was conveyed to the state of Arizona for park, recreational, and public purposes.
13 See the list of monuments created by Presidents from 1906 through 2006 on the website of the National Park Service
(continued...)
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Monument Issues and Controversies
Presidential authority to create monuments has generated concern among some Members of
Congress, state and local officials, user groups, and others. Controversies in Congress are focused
on a perceived lack of consistency between the Antiquities Act and the policies established in
other laws, especially the land withdrawal provisions of the Federal Land Policy and
Management Act of 1976 (FLPMA),14 the environmental reviews required by the National
Environmental Policy Act (NEPA),15 and the public participation requirements of NEPA,
FLPMA, and other laws. Criticism also has been expressed by those who oppose restrictions on
land uses, both extractive (e.g., mining) and recreational (e.g., off-road vehicle use), as a result of
monument proclamations. Critics also have challenged the size of the areas and types of resources
that would be protected.
Among the monument measures considered during recent Congresses were bills to impose
restrictions on presidential authority, such as those to limit the size or duration of withdrawals; to
prohibit or restrict withdrawals in particular states; to encourage public participation in the
monument designation process; to revoke the President’s authority to designate monuments or
require congressional approval of some or all monument designations; or to promote presidential
creation of monuments in accordance with certain federal land management and environmental
laws. Measures also were introduced to change land uses within monuments and to alter
monument boundaries.
Supporters of the Antiquities Act assert that changes to the act are neither warranted nor
desirable. They contend that previous Congresses that focused on this issue were correct in not
repealing the Antiquities Act. They note that Presidents of both parties have used the authority for
over a century to protect valuable federal lands and resources expeditiously, and they defend the
President’s ability to take prompt action to protect areas that may be vulnerable to looting,
vandalism, commercial development, and other permanent changes. While the Secretary of the
Interior can make temporary emergency withdrawals of BLM lands,16 there is no comparable
authority with respect to national forest lands or other federal lands. Defenders also note that
some past designations that initially were contentious have come to be widely supported over
time. They contend that large segments of the public support land protection, such as through
monument designations, for the recreational, preservation, and economic benefits that such
designations often bring.
A primary objection to national monuments is that the declaration changes the property from
being federal land available for multiple uses to being a national monument with possible
restricted uses. The legal challenge to the Grand Teton National Monument was premised on the
state’s loss of revenue from taxes and grazing fees.17 Courts have found that, for monuments
(...continued)
at http://www.nps.gov/archeology/sites/antiquities/MonumentsList.htm.
14 43 U.S.C. § 1701 et seq. This law applies primarily to the lands managed by the Bureau of Land Management and
actions taken by the Secretary of the Interior, although some provisions also apply to the lands managed by the Forest
Service and the Secretary of Agriculture.
15 42 U.S.C. § 4321 et seq.
16 43 U.S.C. § 1714.
17 Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945).
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established under the Antiquities Act, agencies are afforded broad rights to protect the resources
of the site, and that the loss of income is not a legal basis to reject a monument designation.18 The
broad rights to protect monument resources at the time of creation can include water rights.19
Monument Size
In establishing a national monument, the President is required by the Antiquities Act to reserve
“the smallest area compatible with the proper care and management of the objects to be
protected.”20 Many monuments have been quite small, but several Presidents have established
large monuments, especially in Alaska. Examples of large monuments include Katmai,
established in 1918 with 1.1 million acres; Glacier Bay, created in 1925 with 1.4 million acres;
most of the Alaska monuments proclaimed in 1978, the largest being Wrangell-St. Elias, with
nearly 11 million acres; and Grand Staircase-Escalante, established in 1996 with 1.7 million
acres. Most recently, President George W. Bush established large marine monuments, namely the
Papahanaumokuakea Marine National Monument, with approximately 89 million acres; the
Marianas Trench Marine National Monument, with 60.9 million acres; the Pacific Remote Islands
Marine National Monument, with 55.6 million acres; and the Rose Atoll Marine National
Monument, with 8.6 million acres.21 The Bush Administration claimed that the latter three areas
formed the largest protected ocean area in the world.22
Critics assert that large monuments violate the Antiquities Act, in that the President’s authority
regarding size was intended to be narrow and limited. They charge that Congress intended the act
to protect specific items of interest, especially archaeological sites and the small areas
surrounding them. They support this view with the legislative history of the act, in which
proposals to limit a withdrawal to 320 or 640 acres were mentioned but not enacted. They
contend that some of the monument designations were greater than needed to protect particular
objects of value, and that the law was not intended to protect large swaths of land or ocean.
Defenders observe that the Antiquities Act gives the President discretion to determine the acreage
necessary to ensure protection of the resources in question, which can be a particular
archaeological site or larger features or resources. The Grand Canyon, for example, originally
was a national monument measuring 0.8 million acres; President Theodore Roosevelt determined
that this large size was necessary to protect the “object” in question—the canyon. Defenders also
note that after considering the issue in the early 1900s, Congress deliberately rejected proposals
to restrict the President’s authority to set the size of the withdrawal. Further, they assert that
preserving objects of interest may require withdrawal of sizeable tracts of surrounding land to
preserve the integrity of the objects and the interactions and relationships among them.
18 Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945).
19 Cappaert v. United States, 426 U.S. 128 (1976) (regarding Death Valley National Monument); High Country
Citizens’ Alliance v. Norton, 448 F. Supp. 2d 1235 (D. Colo. 2006) (referring to Black Canyon of the Gunnison
National Monument).
2016 U.S.C. § 431.
21 All monument sizes listed are approximate. Also, the sizes of marine monuments typically have been identified in
square miles, rather than acres. A square mile is equal to 640 acres.
22 For information on protection of ocean areas, including current issues, programs, and administrative and
congressional action, see CRS Report RL32154, Marine Protected Areas: An Overview, by Harold F. Upton and
Eugene H. Buck.
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The courts have deferred to the President’s judgment as to the proper size for a monument. For
example, the lawsuit challenging the Grand Sequoia National Monument was based in part on the
monument’s size (327,769 acres) not being “the smallest area compatible with proper care and
management,” as required by the act.23 The court found no factual basis for the argument that the
size did not meet the standards of the act.
Establishment Criteria
Under the Antiquities Act, the President can establish monuments on federal land containing
“historic landmarks, historic and prehistoric structures, and other objects of historic or scientific
interest.”24 Some proclamations have identified particular objects needing protection, while others
have referred more generally to scenic, scientific, or educational features of interest.
Presidents sometimes have cited threats to resources (e.g., natural and cultural) to support
establishing monuments, although imminent threat is not expressly required by the Antiquities
Act. In his remarks designating the Grand Staircase-Escalante National Monument, for instance,
President Clinton expressed concern about work underway for a large coal mining operation that,
he asserted, could damage resources in the area. Sometimes the noted threats appear less
immediate, as for the lands included in the Grand Canyon-Parashant Monument (proclaimed
January 11, 2000) which “could be increasingly threatened by potential mineral development,”
according to the Administration.25 In other cases, threats were reported by the press or private
organizations. For instance, the National Trust for Historic Preservation had identified the
(subsequently proclaimed) President Lincoln and Soldiers’ Home National Monument as one of
the country’s most endangered historic properties.
Presidential creation of monuments in the absence of immediate threats to resources troubles
those who believe that the law is intended to protect objects that are in immediate peril of
permanent harm. They contend that Presidents have established monuments to support
environmental causes, limit development, and score political gains, among other reasons. Those
who contest those charges note that the Antiquities Act lacks a requirement that objects be
immediately threatened or endangered. Others cite the pervasive dangers of development and
growth, looting, and vandalism as sufficient grounds for contemporary presidential action.
Some critics charge that, because the original purpose of the act was to protect specific objects,
particularly objects of antiquity such as cliff dwellings, pueblos, and other archeological ruins
(hence the name “Antiquities Act”), Presidents have used the act for excessively broad purposes,
such as general conservation, recreation, scenic protection, or protection of living organisms.
These purposes, they contend, are more appropriate for a national park or other designation
established by Congress. Supporters of current presidential authority counter that the act does not
limit the President to protecting ancient relics, and maintain that “other objects of historic or
scientific interest” is broad wording that grants considerable discretion to the President.
Courts, including the U.S. Supreme Court, have upheld under the Antiquities Act both the
designation of particular monuments and the President’s authority to create monuments. In a
23 Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002).
24 16 U.S.C. § 431.
25 The White House, Office of the Press Secretary, Grand Canyon-Parashant National Monument, January 11, 2000.
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decision addressing one of the first national monuments proclaimed—the Grand Canyon—the
Supreme Court upheld the President’s authority under the Antiquities Act.26 The Court found that
the act gave the President the authority to preserve lands with cultural or scientific interest.27
Since then, courts have given great deference to this presidential authority, holding that courts
have only a limited review of a presidential proclamation provided that it states the natural or
historic interest and that the area is the minimum amount needed to protect those interests.28 The
courts also have ruled that the act may protect natural wonders and wilderness values.29
Inclusion of Nonfederal Lands
It is an unresolved issue whether the Antiquities Act allows the President to declare a national
monument on lands not owned by the federal government. To date, no presidential declaration of
a monument has converted private property to federal property. However, some private inholdings
occur within national monuments.
The Antiquities Act initially states that it applies to lands owned or controlled by the federal
government. However, it also states that, where the objects to be preserved are on privately
owned lands, the property “may be relinquished to the Government.”30 It is not clear whether
relinquishment must be voluntary (via donation, purchase, or exchange) or may include
condemnation. Courts have only discussed the issue as a side matter to the dispute they were
resolving. In two such cases, the courts have indicated that relinquishment should be interpreted
as a voluntary surrender of property. The more recent decision, in 2008, stated that the Antiquities
Act “does not authorize government officials forcibly to take private property to provide such
care or to enter private land.”31 In 1978, the Supreme Court described the Antiquities Act as
applying solely to federal property: “A reservation under the Antiquities Act thus means no more
than that the land is shifted from one federal use, and perhaps from one federal managing agency,
to another.”32
In some cases, nonfederal lands are contained within the outer boundaries of a monument,
although the ownership does not change by the monument designation. This inclusion is a source
of controversy. The Clinton Administration indicated that the monument designation does not
apply to nonfederal lands. The Solicitor of the Department of the Interior (DOI) asserted this view
in 1999 testimony before Congress, stating that the Antiquities Act applies only to federal lands
and that monument designations cannot bring state or private lands into federal ownership.33
26 Cameron v. United States, 252 U.S. 450 (1920).
27 Ibid., p. 455.
28 Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002) (regarding Giant Sequoia National Monument).
29 Mountain States Legal Foundation v. Bush, 306 F.3d 1132, 1138 (D.C. Cir. 2002) (regarding six monuments in four
states).
30 16 U.S.C. § 431.
31 Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008).
32 California v. U.S., 436 U.S. 32, 40 (1978) (regarding Channel Islands National Monument).
33 Testimony of John D. Leshy, at House Committee on Resources, Subcommittee on National Parks and Public Lands,
hearings on H.R. 1487, The National Monument NEPA Compliance Act, 106th Cong., 1st sess., June 17, 1999, p. 53 and
p. 55.
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Some monument proclamations have stated that nonfederal lands will become part of the
monument if the federal government acquires title to the lands from the current owners.34
Some, however, note that, while private or state-owned lands are technically not part of the
monument, development of such land located within monuments is difficult because such
development might be incompatible with the purposes for which the monument was created or
constrained by management of the surrounding federal lands.35 Monument supporters note that if
state or private landowners within a monument fear or experience difficulties, they can pursue
land exchanges with the federal government. Some monument proclamations have authorized
land exchanges to further the protective purposes of the monument.36
Effects on Land Use
The overriding management goal for all monuments is protection of the objects described in the
proclamations. Monument designation can limit or prohibit land uses, such as development or
recreational uses. Limitations or prohibitions may be included in the proclamations themselves,
accompanying administration statements, management plans developed by the agencies to govern
monument lands, agency policies, or other sources. Some use issues may not arise for particular
monuments given their distinctive characteristics, for instance, their small size or water-based
nature. In general, existing uses of the land that are not precluded by the proclamations, and do
not conflict with the purposes of the monument, may continue.
Monument proclamations since 1996 typically have had protections for valid existing rights37 for
land uses, but the extent to which designations may affect existing rights is not always clear. A
common concern is that monument designation potentially could result in new constraints on
development of existing mineral and energy leases, claims, and permits. There are fears that
mineral activities may have to adhere to a higher standard of environmental review, and will have
a higher cost of mitigation, to ensure compatibility with the monument designation.
Most of these monument proclamations have barred new mineral leases, mining claims,
prospecting or exploration activities, and oil, gas, and geothermal leases, subject to valid existing
rights. This has been accomplished by language to withdraw the lands within the monuments
from entry, location, selection, sale, leasing, or other disposition under the public land laws,
mining laws, and mineral and geothermal leasing laws.
Another concern is whether commercial timber cutting will be restricted as a result of
designation. For instance, future timber production was expressly precluded in the Giant Sequoia
34 Nearly all of President Clinton’s monument proclamations had such a provision. See, for example, the monument
proclamations for the Agua Fria, Canyons of the Ancients, Sonoran Desert, and Upper Missouri River Breaks National
Monuments. These monument proclamations are on the website of the BLM, under the respective monument listings,
at http://www.blm.gov/wo/st/en/prog/blm_special_areas/NLCS/monuments.html.
35 See, for example, Wilkenson v. Department of the Interior, 634 F. Supp. 1265 (D. Col. 1986) (federal government
could not completely restrict travel on a pre-existing right of way through a national monument).
36 President Clinton’s monument proclamations typically contained such a provision. See, for example, the monument
proclamations for the Agua Fria, Canyons of the Ancients, Sonoran Desert, and Upper Missouri River Breaks National
Monuments. These monument proclamations are on the website of the BLM, under the respective monument listings,
at http://www.blm.gov/wo/st/en/prog/blm_special_areas/NLCS/monuments.html.
37 The term valid has been interpreted by the Supreme Court in the context of a mine within a national monument as
meaning there were valuable, workable deposits of ore present. Cameron v. United States, 252 U.S. 450 (1920).
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National Monument proclaimed by President Clinton in 2000, although certain then-current
logging contracts could be completed. In many other cases, the proclamations have implied,
through a general prohibition against removing any “feature” of the monuments, that timber
cutting is precluded.38 Some assert that restrictions are needed to protect the environmental,
scenic, and recreational attributes of forests preserved under the Antiquities Act. Logging
supporters do not address the protection provisions of the act directly, but assert that forests can
be used sustainably and that concerns raised by environmentalists as grounds for limiting
commercial timber operations do not reflect modern forestry practices.
Motorized and mechanized vehicles off-road are prohibited (except for emergency or authorized
purposes) under the proclamations for many newer monuments, particularly those issued by
President Clinton. Otherwise, the management plans for monuments typically address whether to
allow vehicular travel on designated routes or in designated areas, or to close routes or areas to
vehicular use in those monuments where such use is not expressly prohibited. In some areas that
have become monuments, off-road vehicles have been allowed, at least in some places.
Other concerns have included the possible effects of monument designation on hunting, fishing,
and grazing. Some proclamations have restricted such activities to protect monument resources,
and monument management plans may impose additional restrictions. For instance,
proclamations for some marine monuments established by President George W. Bush have
restricted or prohibited commercial and recreational fishing. Provisions on grazing have been
controversial in some cases, with some asserting that grazing has been unnecessarily curtailed
while others claim that grazing has not been sufficiently limited to prevent ecological damage.
States and counties frequently have viewed restrictions on federal lands in their jurisdictions as
threats to economic development. They maintain that local communities are hurt by the loss of
jobs and tax revenues that results from prohibiting/restricting future mineral exploration, timber
development, or other activities. Some believe that limitations on energy exploration could leave
the United States more dependent on foreign oil.
Advocates of creating monuments claim that economic benefits resulting from designation,
including increased tourism, recreation, and attracting new businesses and residents, may exceed
the benefits of traditional economic development. Others allege that the public interest value of
continued environmental protection outweighs any temporary economic benefit that could result
from development. Some want more restrictions on development.
“Consistency” of Antiquities Act with NEPA and FLPMA
The Federal Land Policy and Management Act of 1976 (FLPMA) authorizes the Secretary of the
Interior to make certain land withdrawals under specified procedures. In enacting FLPMA,
Congress not only limited the ability of the Interior Secretary to make withdrawals, but repealed
much of the express and implied withdrawal authority previously granted to the President by
several earlier laws.
38 President Clinton’s monument proclamations typically contained such a provision. See, for example, the monument
proclamations for the Agua Fria, Canyons of the Ancients, Sonoran Desert, and Upper Missouri River Breaks National
Monuments. These monument proclamations are on the website of the BLM, under the respective monument listings,
at http://www.blm.gov/wo/st/en/prog/blm_special_areas/NLCS/monuments.html.
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Critics of the Antiquities Act maintain that the act is inconsistent with FLPMA’s intent of
restoring control of public land withdrawals to Congress. They assert that Congress is the
appropriate body to make and implement land withdrawal policy and that Congress intended to
review and retain veto control over all executive withdrawals exceeding 5,000 acres. On the other
hand, in enacting FLPMA, Congress did not explicitly repeal or amend the Antiquities Act,
despite extensive consideration of all executive withdrawal authorities. Supporters of the act
assert that it was the clear intent of Congress to retain presidential withdrawal authority under the
Antiquities Act.
Similarly, critics note that monuments have been proclaimed without the environmental studies
required of agencies for “major federal actions” under NEPA, or the review of a public purpose
and opportunity for public participation that FLPMA provides. However, neither NEPA39 nor
FLPMA applies to the actions of a President (as opposed to an action of an agency), and the
Antiquities Act is silent as to the procedures a President must follow to proclaim a new
monument. Some want to add procedures for environmental review and public participation to the
monument designation process so that significant withdrawals (with resulting effects on existing
uses) would not be made without scientific, economic, and public input.
Others counter that such changes would impair the ability of the President to take action quickly
to protect objects and lands, thereby avoiding possible damage to the resources.40 They assert that
participation requirements are not needed in law because Presidents typically consult with
government officials and the public before establishing monuments. Some believe that NEPA
requirements are unnecessary for monument designation because once monuments are created,
detailed management plans are developed in accordance with NEPA.
Monument Management
Although most monuments are managed by the National Park Service (NPS), both Congress and
the President have created monuments managed by other agencies. For example, in 1996
President Clinton created the Grand Staircase-Escalante National Monument and assigned its
management to BLM, the first such area administered by BLM. Also, President George W. Bush
selected the Fish and Wildlife Service (FWS), the National Oceanic and Atmospheric
Administration in the Department of Commerce, and other agencies to manage marine
monuments. In most cases, the monuments were assigned to be managed by the agency that had
responsibility for the area before the designation, although that was not always the case. For
example, although the area within the Minidoka Internment National Monument was managed by
the Bureau of Reclamation before designation, the proclamation designating the monument
changed the management authority to the NPS.
The President’s authority to choose a management agency other than NPS has been questioned.
Before 1933, monuments were managed by different agencies, but in that year President Franklin
Roosevelt consolidated management of national monuments in the NPS. Following the 1933
consolidation, it was not until 1978 that a presidentially created monument was managed by an
39 See Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978) (NEPA does not apply to presidential proclamation under
the Antiquities Act).
40 The status quo of BLM-managed lands could be maintained, because § 204(e) of FLPMA (43 U.S.C. 1714(e))
authorizes the Secretary to temporarily withdraw BLM lands for a period of up to two years. Comparable authority
does not exist with respect to lands managed by other agencies.
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agency other than the NPS. In 1978, two of the Alaska monuments created by President Carter
were directed to be managed by the Forest Service, part of the U.S. Department of Agriculture,
and two were managed by FWS. Assigning management to the Forest Service was controversial,
and the two monuments were ultimately given statutory direction for Forest Service
management.41
The Supreme Court has suggested that it is entirely proper to switch management of federal lands
among federal agencies. As noted earlier, in its decision regarding the Channel Islands National
Monument, the Court said that the Antiquities Act could mean that the “land is shifted from one
federal use, and perhaps from one federal managing agency, to another.”42 A 1980 opinion from
the Office of Legal Counsel (Department of Justice) appears to indicate that the President may
have some flexibility in choosing the managers of post-1933 monuments.43 Others also assert that
the authority of the President under the Antiquities Act carries with it discretion to choose the
managing agency. Some critics contend that management by an agency other than the NPS is an
illegal transfer of the current functions of the NPS. Others counter that establishing a new
monument under another agency would not constitute a reorganization because management of
current NPS units, and the general authority of the NPS to manage monuments, would be
unaffected. Even if placing management authority under a department other than the DOI might
constitute a reorganization, the President nevertheless might be able to move a function of the
NPS to other DOI agencies under congressionally approved authority allowing transfers of
functions within DOI.44
Administration Activity
Most Presidents since 1906 have used the authority in the Antiquities Act to establish or expand
national monuments. Recently, an Obama Administration evaluation of whether to designate or
expand national monuments drew controversy. In February 2010, an Administration “internal
draft” document regarding possible national monuments was obtained by some Members of
Congress.45
The internal draft document identified 13 sites for possible new monument designations and one
monument for possible expansion.46 The areas are in nine states: Arizona, California, Colorado,
Montana, Nevada, New Mexico, Oregon, Utah, and Washington. The document also identified
three areas in Alaska and Wyoming as worthy of protection, but as ineligible for monument
designation because of the restrictions in law on the President’s authority in those states.
41 The two monuments were given statutory approval as part of the Alaska National Interest Lands Conservation Act of
1980 (ANILCA), P.L. 96-487.
42 California v. United States, 436 U.S. 32, 40 (1978).
43 4B Op. Off. Legal Counsel 396 (February 8, 1980).
44 Reorganization Plan No. 3 of 1950. The plan is available on the web at http://www.law.cornell.edu/uscode/search/
display.html?terms=reorganization%20plan%20no.%203%20of%201950&url=/uscode/html/uscode05a/
usc_sup_05_5_10_sq4notes.html.
45 E&E News PM, Document Shows Obama Admin Exploring 14 New Monuments, February 18, 2010.
46 See Prospective Conservation Designation: National Monument Designations Under the Antiquities Act (undated),
internal draft, available online at http://robbishop.house.gov/UploadedFiles/states_for_designation.pdf.
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Concerns have centered on whether the Administration was planning to designate national
monuments without input from Congress, local and state governments, residents of the affected
areas, and the general public. Fear that the Administration had not intended to consult on its
monument considerations originated with the notation on the document that it was “not for
release,” although that notation could have been used because the document was a draft. Other
concerns have echoed the traditional conflicts regarding the establishment of monuments—effects
on land uses, monument size, and the type of objects protected.
The Administration subsequently expressed an intent to use a collaborative process in evaluating
areas for monument status. The Secretary of the Interior stated an interest in working with land
users, local governments, governors, and Congress with regard to using and protecting federal
lands.47 Others noted that the Administration’s intent to collaborate had been expressed on the
“internal draft” itself, which states at the outset that areas identified “may be good candidates for
National Monument designation under the Antiquities Act; however, further evaluations should
be completed prior to any final decision, including an assessment of public and Congressional
support.”48 Still others noted that agency draft documents typically are not available for release.
Legislative Activity
Given the recurring controversies over presidential establishment of national monuments,
Congresses have evaluated whether to abolish, limit, or retain unchanged the President’s authority
to establish monuments under the Antiquities Act. Legislation to require congressional approval
of presidential recommendations for national monuments has been considered over the past
decade or so. Some bills have sought to amend the Antiquities Act to make presidential
designations of monuments exceeding a certain size, such as 5,000 or 50,000 acres, ineffective
unless approved by Congress within two years.49 Some measures proposed to establish a process
for public input into presidential monument designations and to require presidential monument
designation to comply with NEPA and/or with monument management plans to be developed in
accordance with NEPA.50
Bills to restrict the President’s authority to proclaim national monuments have been introduced in
the 112th Congress. Some bills would prohibit the President from establishing or expanding
national monuments in particular states.51 Other bills focus on the authority for monument
designation. One bill, H.R. 302, would require the governor and state legislature to consent to a
monument before the President could designate it. Two bills, H.R. 817 and S. 122, would make
the President’s authority to designate monuments subject to congressional approval. S. 122 also
would require certification that the designation complied with NEPA, although the effect of that is
unclear since NEPA does not apply to either presidential or congressional actions.
47 E&E News PM, Obama Admin Has ‘No Secret Agenda’ on Monuments—Salazar, February 22, 2010.
48 Prospective Conservation Designation: National Monument Designations Under the Antiquities Act (undated),
internal draft, available online at http://robbishop.house.gov/UploadedFiles/states_for_designation.pdf.
49 See, for example, H.R. 2386 (108th Congress); H.R. 1127 (105th Congress); and S. 477 (105th Congress).
50 See, for example, H.R. 2386 (108th Congress); H.R. 1487 (106th Congress); and S. 691 (105th Congress).
51 See H.R. 845 (Montana); H.R. 846 (Idaho); S. 144 (Nevada). For examples of the same type of bill in the 111th
Congress, see H.R. 4703 (California); H.R. 4716 (Colorado); H.R. 4754 (Montana); H.R. 4675/S. 3041 (Nevada); H.R.
5135 (Oregon); and H.R. 4651/S. 3016 (Utah).
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Other legislation in the 112th Congress, H.R. 758 and S. 407, would require congressional
approval of a monument proclamation within two years, or the proclamation would be
ineffective. Further, if Congress did not approve the monument, the President would be barred
from issuing a monument proclamation that is “substantially similar” to it. The Senate bill
expressly states that it would not affect the current statutory limitations on the President in
creating monuments in Wyoming and Alaska.
H.R. 758 and S. 407 also would establish procedures for the President and the Secretary of the
Interior to follow before a proclamation could be implemented.52 They would amend the
Antiquities Act using similar language to require the President to prepare a report to Congress
discussing the economic impacts of the designation, including federal, local, and state tax
revenues lost or gained; impacts on existing uses such as hunting, grazing, horseback riding,
timber production, mining, and off highway vehicle use; and an analysis of the impact on energy
security, including an estimate of the number of barrels of oil, tons of coal, or cubic feet of
natural gas that would become unavailable if the monument were approved. Further, the bills
would create new procedures, including public hearings; notice and comment procedures;
publication of reports and comments; and notices to the governor and officials of local and tribal
governments. Both bills seek to restrict the size of the monument that the President could
designate, through changing the Antiquities Act from “the smallest area compatible with the
proper care and management of the objects to be protected” to “the smallest area necessary to
ensure” (S. 407) or “the smallest area essential to ensure” (H.R. 758) (emphasis added in all
examples).
Author Contact Information
Carol Hardy Vincent
Kristina Alexander
Specialist in Natural Resources Policy
Legislative Attorney
chvincent@crs.loc.gov, 7-8651
kalexander@crs.loc.gov, 7-8597
52 See also, H.R. 5580 (111th Congress).
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