National Monuments and the Antiquities Act

The Antiquities Act of 1906 (54 U.S.C. §§320301-320303) 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. Presidents have proclaimed a total of 157 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 D. Roosevelt’s creation of the Jackson Hole National Monument in Wyoming (1943) and President Clinton’s establishment of 19 monuments and expansion of 3 others (1996-2001). President Obama’s designation of new monuments (29 in total) and enlargement of others (5 in total) renewed debate 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 lack of public participation, congressional and state approval, and environmental review requirements in the act; and selection of the managing agency.

On occasion, presidential monument designations have prompted changes in law to restrict the President’s authority to proclaim monuments, particularly in individual states. Critics of the existing authority continue to seek to limit or revoke the President’s authority. The 115th Congress is considering proposals to limit the President’s authority to proclaim monuments. Among their other provisions, some of these bills seek to

bar the President from declaring monuments in particular areas—H.R. 243 and S. 22 (Nevada);

clarify that in conflicts between the Antiquities Act and the Magnuson Stevens Fishery Conservation and Management Act, the latter law would take precedence—H.R. 200;

make the President’s authority subject to congressional approval, the pertinent state legislature, and the National Environmental Policy Act—S. 33 and S. 132;

restrict monument proclamations in areas of the exclusive economic zone—S. 33; and

bar the Administration from implementing restrictions on public use of a national monument until certain conditions are met—S. 33 and S. 132.

Monument advocates favor the Antiquities Act in its present form. They assert that the public has supported and courts have upheld designations by the President and that many past presidential designations that initially were controversial have come to be supported. They contend that the President needs continued authority to act promptly to protect valuable resources on federal lands from potential threats.

National Monuments and the Antiquities Act

January 30, 2017 (R41330)
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Contents

Summary

The Antiquities Act of 1906 (54 U.S.C. §§320301-320303) 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. Presidents have proclaimed a total of 157 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 D. Roosevelt's creation of the Jackson Hole National Monument in Wyoming (1943) and President Clinton's establishment of 19 monuments and expansion of 3 others (1996-2001). President Obama's designation of new monuments (29 in total) and enlargement of others (5 in total) renewed debate 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 lack of public participation, congressional and state approval, and environmental review requirements in the act; and selection of the managing agency.

On occasion, presidential monument designations have prompted changes in law to restrict the President's authority to proclaim monuments, particularly in individual states. Critics of the existing authority continue to seek to limit or revoke the President's authority. The 115th Congress is considering proposals to limit the President's authority to proclaim monuments. Among their other provisions, some of these bills seek to

  • bar the President from declaring monuments in particular areas—H.R. 243 and S. 22 (Nevada);
  • clarify that in conflicts between the Antiquities Act and the Magnuson Stevens Fishery Conservation and Management Act, the latter law would take precedence—H.R. 200;
  • make the President's authority subject to congressional approval, the pertinent state legislature, and the National Environmental Policy Act—S. 33 and S. 132;
  • restrict monument proclamations in areas of the exclusive economic zone—S. 33; and
  • bar the Administration from implementing restrictions on public use of a national monument until certain conditions are met—S. 33 and S. 132.

Monument advocates favor the Antiquities Act in its present form. They assert that the public has supported and courts have upheld designations by the President and that many past presidential designations that initially were controversial have come to be supported. They contend that the President needs continued authority to act promptly to protect valuable resources on federal lands from potential threats.


National Monuments and the Antiquities Act

Introduction

Presidential establishment of national monuments under the Antiquities Act of 1906 (54 U.S.C. §§320301-320303) has protected sites with historic and scientific values, but it has also been contentious.1 Various issues regarding presidentially created monuments have generated controversy, lawsuits, statutory changes, and legislative proposals to limit the President's authority. Concerns have centered on the size of the areas and types of protected resources, 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.

Monument advocates favor the Antiquities Act in its present form. They believe that the act serves an important purpose in preserving resources for future generations and that the President needs continued authority to act promptly to protect valuable resources on federal lands from potential threats. They assert that the public has supported and courts have upheld designations by the President and that many past presidential designations that initially were controversial have come to be supported.

Litigation and legislation related to the law have been pursued throughout its history. To give one historical example, displeasure with President Franklin D. Roosevelt's proclaiming of the Jackson Hole National Monument in Wyoming in 1943 (which became Grand Teton National Park) 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.2 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 withdrawals 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.5 President George W. Bush's designation of a marine national monument led to a legal challenge claiming that fishing rights had been lost.6 To date, no court challenges have succeeded in undoing a presidential designation.

Initial opposition to some monument designations has turned to support over time. Some controversial monuments later were 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.

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. President Obama's use of national monument authority 34 times, including designation of 29 new monuments and enlargement of 5 others, has fostered debate about 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 proper care and management of the objects to be protected."7 Congress subsequently limited the President's authority by requiring congressional authorization for extensions or establishment of monuments in Wyoming,8 and by making withdrawals in Alaska exceeding 5,000 acres subject to congressional approval.9

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. Sixteen of the 19 Presidents since 1906 created 157 monuments, including the Grand Canyon, Grand Teton, Zion, Olympic, the Statue of Liberty, and the Chesapeake and Ohio Canal.10 President Franklin D. Roosevelt used his authority the most often (36 times),11 and President Obama proclaimed the most monument acreage (about 554 million, primarily in two expanded marine monuments).12 For a comparison of President Obama's and President Franklin D. Roosevelt's use of the monument authority, see Appendix A. For information on the use of the authority by all Presidents since 1906, see Appendix B.

Monuments vary widely in size. While roughly half of the presidential monument proclamations involved fewer than 5,000 acres, they have ranged from less than 1 acre to about 283 million acres.13

Modification of Monuments

Through the authority in the Antiquities Act, Presidents have modified national monuments established by earlier presidential proclamation. Such modifications included enlargement or diminishment of monument boundaries. For instance, four Presidents enlarged the Muir Woods National Monument following its establishment in 1908, and three Presidents diminished Mount Olympus National Monument following its establishment in 1909.14 The Antiquities Act does not expressly authorize a President to abolish a national monument established by an earlier presidential proclamation, and no President has done so. There have been no court cases deciding the issue of the authority of the President to abolish a national monument.15

Congress has created national monuments on federal lands on numerous occasions under its constitutional authority to enact legislation regarding federal lands.16 This authority is not defined or limited by the provisions of the Antiquities Act. For instance, Congress could enact legislation providing more land uses than are typical for national monuments created by the President, such as allowing new commercial development, or could choose to provide additional protections. Some believe that such 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 outright and converted others into different protective designations, such as national parks.17 Approximately half of the current national parks were first designated as national monuments.

Monument Issues and Controversies

Presidential authority to create monumentsand the recent application of that authority by President Obamahas 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),18 the environmental reviews required by the National Environmental Policy Act (NEPA),19 and the public participation requirements of NEPA, FLPMA, and other laws. Another focus is the lack of a requirement for state or congressional approval prior to presidential monument proclamations. 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. Still others also have challenged the size of the areas and types of resources that would be protected. In recent years, Congress has considered measures to restrict the President's authority. (See the section below on "Legislative Activity.")

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.20 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 monument designations, for the protections they afford and the recreational, preservation, and economic benefits that such designations sometimes bring. They also note that courts have supported presidential actions.

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."21 Many monuments have been quite small, but several Presidents have established large monuments, especially in Alaska and in marine areas. Examples of large monuments include Katmai, established in 1918 with 1.1 million acres; Glacier Bay, created in 1925 with 1.4 million acres; many of the Alaska monuments proclaimed in 1978,22 the largest being Wrangell-St. Elias, with nearly 11 million acres; and Grand Staircase-Escalante, established in 1996 with 1.7 million acres. President George W. Bush established large marine monuments, namely the Papahanaumokuakea Marine National Monument (which includes the Northwestern Hawaiian Islands), with approximately 89.5 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. At the time, the Bush Administration claimed that the latter three areas formed the largest protected ocean area in the world.23 More recently, President Obama expanded the Pacific Remote Islands Marine National Monument in 2014 by 261.3 million acres and the Papahanaumokuakea Marine National Monument in 2016 by 283.4 million acres.24

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 although 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 by not specifically capping the size of monument designations, 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 size was necessary to protect the "object" in question—the canyon. Defenders also note that after considering the issue in the early 1900s, Congress 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.

The courts have deferred to the President's judgment as to the proper size for a monument. For example, a lawsuit challenging the Giant 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.25 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."26 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 Clinton Administration.27 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. Among the broad purposes they cite are 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" broadly 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 decision addressing one of the first national monuments proclaimed—the Grand Canyon—the Supreme Court upheld the President's authority under the Antiquities Act.28 The Court found that the act gave the President the authority to preserve lands with cultural or scientific interest.29 Since then, courts have given 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.30 The courts also have ruled that the act may protect natural wonders and wilderness values.31

Inclusion of Nonfederal Lands

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 Federal Government."32 Private and other nonfederal landowners have donated land under this provision, and the President subsequently designated national monuments that included the donated lands. Typically the monument designation occurs quickly following the land donation. Land donation has occurred for both early and more recent presidential proclamations. As an early example, Secretary of the Interior James R. Garfield accepted the private donation of a redwood forest in California on December 31, 1907, and on January 9, 1908, President Theodore Roosevelt proclaimed the area the Muir Woods National Monument. More recently, former Secretary of the Interior Ken Salazar accepted donations leading to the establishment of some monuments by President Obama, including the César E. Chávez National Monument in California.

It remains untested whether relinquishment of nonfederal lands must be voluntary (via donation, purchase, or exchange) or whether the President can convert private property to federal property through condemnation when establishing a national monument. To date, no presidential declaration of a monument has converted private property to federal property. 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."33 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."34

In addition, in some cases, private or other nonfederal lands are contained within the outer boundaries of a proclaimed monument, although the ownership does not change by the monument designation. Such inclusions are a source of controversy. The Clinton Administration indicated that the monument designation does not apply to nonfederal lands; the then-Solicitor of the Department of the Interior (DOI) asserted this view in 1999 testimony before Congress. His testimony stated that the Antiquities Act applies only to federal lands and that monument designations cannot bring state or private lands into federal ownership.35 Some monument proclamations have stated that nonfederal lands will become part of the monument if the federal government acquires title to the lands.36

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 certain types of development might be incompatible with the purposes for which the monument was created or constrained by management of the surrounding federal lands.37 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.38

Effects on Land Use

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. 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.

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. A 1945 legal challenge to the Jackson Hole National Monument was premised on the state's loss of revenue from taxes and grazing fees.39 Courts have found that, for monuments established under the Antiquities Act, agencies are afforded broad rights to protect the resources of the site and the loss of income is not a legal basis to reject a monument designation.40

At least since 1996,41 monument proclamations typically have had explicit protections for valid existing rights for land uses,42 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. Some fear that mineral exploration and extraction activities may have to adhere to a higher standard of environmental review, and may have a higher cost of mitigation, to ensure compatibility with the monument designation.

Most of these recent 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 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, President Clinton's proclamation of the Giant Sequoia National Monument (in 2000) expressly precluded future timber production, 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.43 Some assert that restrictions are needed to protect the environmental, scenic, and recreational attributes of forests preserved under the Antiquities Act. Logging supporters 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. Otherwise, the agency's management plan for a monument typically addresses 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 restricted or prohibited commercial and recreational fishing. President Obama's expansion and establishment of marine national monuments appears to have enhanced focus on the potential effect of monument designations on fishing.44 In addition, monument designation provisions on grazing have been controversial in some cases, with some asserting that grazing has been unnecessarily curtailed and others claiming 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 or restricting future mineral exploration, timber development, or other activities. Some contend 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.45 Others allege that the public interest value of continued environmental and resource protection outweighs any temporary economic benefit that could result from development. Some monument advocates support more restrictions on development.

"Consistency" of Antiquities Act with NEPA and FLPMA

The Federal Land Policy and Management Act of 1976 authorized the Secretary of the Interior to make certain land withdrawals under specified procedures.46 In enacting FLPMA, Congress also repealed much of the express and implied withdrawal authority previously granted to the President by several earlier laws.

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, the 94th Congress did not explicitly repeal or amend the Antiquities Act, despite extensive consideration of executive withdrawal authorities. Supporters of the Antiquities Act assert that Congress intended 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.47 However, neither NEPA nor FLPMA applies to the actions of a President (as opposed to an action of an agency),48 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 evaluation, economic information, and public input.

Others counter that such changes would impair the ability of the President to act quickly to protect objects and lands, thereby avoiding possible damage to the resources. 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.49

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 (UT) and assigned the Bureau of Land Management (BLM) its management. It was 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. As another example, on September 21, 2012, President Obama established the Chimney Rock National Monument (CO) with the Forest Service as the managing agency. In most cases, the monuments were assigned to be managed by the agency responsible for the area before the monument designation, although that was not always the case. For example, although the area (in ID) proclaimed as the Minidoka Internment National Monument was managed by the Bureau of Reclamation before designation, the proclamation designating the monument changed management 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 D. Roosevelt consolidated management of national monuments in the NPS.50 Following the 1933 consolidation, it was not until 1978 that a presidentially created monument was managed by an 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.51

The Supreme Court has suggested that it is proper to switch management of federal lands among federal agencies. 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."52 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.53 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.54

President Obama's Monument Proclamations

President Obama designated 29 new national monuments in 17 states, the District of Columbia, and the Atlantic Ocean, off the coast of New England. They ranged in size from 0.12 acres to 1.6 million acres. President Obama also enlarged five monuments in California and Oregon, off the California Coast, and in marine areas. Enlargements ranged from 1,665 acres to 283.4 million acres. Brief information on each monument is included in Appendix C.

The Obama Administration usually cited support for the establishment of the monuments—for instance, from government officials, businesses and local communities, or other stakeholders. Most of the areas that President Obama designated as monuments were first proposed for some sort of protective designation in legislation. In addition, some Members and segments of the public have advocated for additional monument designations in their states.55

However, some federal and other governmental officials, communities, and stakeholders have expressed opposition to monuments established by the President.56 Concerns center on the process used to create monuments, particularly whether there was sufficient consultation with, and support from, Congress, local and state governments, residents of the affected areas, and the general public. Other concerns relate to restrictions on land uses in new monuments, the frequency with which the President used his monument authority, and the size of some of the larger monuments, among other issues.

Legislative Activity

Given the recurring controversies over presidential establishment of national monuments, recent Congresses have evaluated whether to abolish, limit, or retain unchanged the President's authority to establish monuments under the Antiquities Act. 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 and/or state 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.

In the 115th Congress, Members have introduced bills to restrict the President's authority to proclaim national monuments. For instance, some bills would prohibit the President from establishing or expanding national monuments in particular states. One bill would make the President's authority to designate monuments subject to approval of Congress, the pertinent state legislature, and NEPA; restrict monument proclamations in the exclusive economic zone; and impose conditions on agency implementation of restrictions on monument use. Yet another measure seeks to clarify that the Magnuson Stevens Fishery Conservation Act takes precedence in any conflicts with the Antiquities Act. As previously noted, other Members and segments of the public have opposed legislation in recent Congresses that would restrict the President's authority to establish national monuments. (See the section above on "Monument Issues and Controversies.")

Table 1, below, identifies selected provisions of pending bills and lists bills with the indicated provisions.

Table 1. 115th Congress Bills to Restrict the President's Authority to Proclaim National Monuments: Selected Provisions

(As of January 27, 2017)

Provisions

Bills

Prohibit the President from establishing or expanding national monuments in particular states or counties

H.R. 243 and S. 22 (Nevada)

Restrict monument proclamations in areas of the exclusive economic zonea

S. 33

Make the President's authority to designate monuments subject to congressional approval

S. 33 and S. 132

Require the pertinent state legislature's consent for a presidentially proposed national monument

S. 33 and S. 132

Make the President's authority to designate monuments subject to NEPA

S. 33 and S. 132

Bar the Secretary of the Interior from implementing restrictions on public use of a national monument until after "an appropriate review period" for public input and congressional approvalb

S. 33 and S. 132

Clarify that in conflicts between the Antiquities Act and the Magnuson Stevens Fishery Conservation and Management Act, the latter law would take precedence

H.R. 200

Source: Created by CRS from the Legislative Information System (LIS), 115th Congress, as of January 27, 2017.

Notes: This table briefly describes selected provisions of bills. For the complete provisions of the referenced bills, see the bill text at Congress.gov.

a. S. 33 prohibits monument designation unless certain conditions are met.

b. S. 33 applies to monuments designated in the exclusive economic zone and also to the Secretary of Commerce.

Appendix A. Use of Monument Authority in the Antiquities Act: Comparison of Two Presidents

Table A-1. Number and Type of Presidential Proclamations:
President Franklin D. Roosevelt and President Barack Obama

(number of uses and acreage)

President

Monument Established

Monument Enlarged

Monument Diminished

Monument Restrictions Modified

Total Monument Proclamations

 

No.

Millions of Acres

No.

Millions of Acres

No.

Millions of Acres

No.

Millions of Acres

No.

Millions of Acres

Franklin D. Roosevelt

11

1.5

20

1.5a

4

0.1b

1

N/A

36

3.1

Barack Obama

29

8.8

5

544.7c

0

0

0

0

34

553.6

Source: Prepared by CRS, based primarily on National Park Service (NPS) data at https://www.nps.gov/archeology/sites/antiquities/monumentslist.htm, dated December 8, 2016, and subsequent monument proclamations.

Notes: This table reflects the number of times each of the two Presidents used the authority in the Antiquities Act to issue monument proclamations, the primary purpose of the proclamations (e.g., to establish a monument), and the acreage of the proclamations. Each proclamation pertained to one monument.

The table does not reflect a 1941 proclamation by President Franklin D. Roosevelt, under his authority in the Antiquities Act, to expand the Ocmulgee National Monument. The President had established the monument in 1936, under specific authority provided in a 1934 law.

N/A = not available.

Some figures do not sum to totals provided due to rounding.

a. The NPS source on which data in this table are based did not include the acreage of an expansion of the Katmai National Monument. Instead, an estimated 3,000 acres for this monument, included in this total, was derived from the NPS website at https://www.nps.gov/parkhistory/online_books/katm/adhi/chap3.htm.

b. This figure reflects a total of 71,906 acres for two of the four diminished monuments. The other two diminishments pertained to rights-of-way, for which no acreage estimate was included in the primary NPS source.

c. Two expanded marine national monuments (Pacific Remote Islands, with 261. 3 million acres, and Papahanaumokuakea Marine, with 283.4 million acres) account for nearly all this acreage. The other three expansions total 55,895 acres. Marine monument acreage was converted from square miles to acres by CRS.

Appendix B. Historical Use of Monument Authority in the Antiquities Act

Table B-1. Number and Type of Presidential Proclamations: From 1906 Enactment Through President Obama

President

Monument Established

Monument Enlarged

Monument Diminished

Monument Enlarged and Diminished

Other

Total Monument Proclamations

T. Roosevelt

18

0

0

0

0

18

Taft

10

1

3

0

2a

16

Wilson

13

3b

1

0

1c

18

Harding

8

2

0

0

0

10

Coolidge

13

5

1

0

0

19

Hoover

9

10d

0

0

0

19

F.D. Roosevelt

11

20

4

0

1e

36

Truman

1

9f

1

0

1g

12

Eisenhower

2

7

2

4

0

15

Kennedy

2

3

0

2

1h

8

Johnson

1

4i

0

0

0

5

Nixon

0

0

0

0

0

0

Ford

0

2

0

0

1j

3

Carter

15

2

0

0

0

17

Reagan

0

0

0

0

0

0

G.H.W. Bush

0

0

0

0

0

0

Clinton

19

3

0

0

0

22

G.W. Bush

6

0

0

0

2k

8

Obama

29

5

0

0

0

34

Total

157

76

12

6

9

260

Source: Prepared by CRS, based primarily on National Park Service (NPS) data at https://www.nps.gov/archeology/sites/antiquities/monumentslist.htm, dated December 8, 2016, and subsequent monument proclamations.

Notes: This table reflects the number of times each President used the authority in the Antiquities Act to issue monument proclamations and the primary purpose of the proclamations (e.g., to establish a monument). Each proclamation pertained to one monument.

The column entitled "Monument Enlarged and Diminished" reflects proclamations that added acreage to a monument and removed other acreage from the monument.

This table does not reflect a 1941 proclamation by President Franklin D. Roosevelt, under his authority in the Antiquities Act, to expand the Ocmulgee National Monument. The President had established the monument in 1936, under specific authority provided in a 1934 law. It is unclear as to the extent to which Presidents have used authority in the Antiquities Act under similar circumstances involving initial monument authorization by Congress. Such instances do not appear to be contained in the primary NPS source on which this table is based.

a. Reflects the transfer of acreage from one monument to the then General Land Office and the confirmation of the boundaries of another monument.

b. Includes the enlargement and renaming of one monument.

c. Reflects confirmation of the boundaries of a monument.

d. Includes the enlargement of one monument and designation of NPS as monument manager.

e. Reflects modification of restrictions.

f. Includes the resurvey and enlargement of one monument.

g. Reflects the resurvey and modification of one monument.

h. Reflects confirmation of the boundaries of one monument.

i. Includes the enlargement and renaming of one monument.

j. Reflects amendment of the description of one monument.

k. Reflects the reaffirmation of one monument and the renaming of another monument.

Appendix C. Summary of President Obama's Monument Proclamations

This appendix provides a chronological list of President Obama's 34 monument proclamations under the Antiquities Act. For additional information on a particular monument, see the pertinent proclamation identified in the footnotes.

  • Fort Monroe National Monument in Virginia was designated on November 1, 2011. In establishing the 325-acre monument, the President stated that "Fort Monroe on Old Point Comfort in Virginia has a storied history in the defense of our Nation and the struggle for freedom."57
  • Fort Ord National Monument in California was designated on April 20, 2012. The purpose of the 14,651-acre Fort Ord National Monument is to maintain its historical and cultural significance, as well as attract tourists and recreationists and enhance the area's unique natural resources, according to the President.58
  • Chimney Rock National Monument in Colorado was designated on September 21, 2012. The President cited the "spiritual, historic, and scientific resources of great value and significance" in proclaiming the 4,726-acre monument.59
  • César E. Chávez National Monument in California was designated on October 8, 2012. The 10.5-acre monument "marks the extraordinary achievements and contributions to the history of the United States made by César Chávez and the farm worker movement that he led with great vision and fortitude," according to the President.60
  • First State National Monument in Delaware was designated on March 25, 2013. The 1,108 acres of the monument contain objects and areas of historic interest related to the settlement of Delaware and the role of Delaware as the first state to ratify the Constitution, according to the President.61
  • Charles Young Buffalo Soldiers National Monument in Ohio was designated on March 25, 2013. The 60-acre monument was established to commemorate the life and accomplishments of Colonel Charles Young, the highest-ranking African American commanding officer in the U.S. Army from 1894 until his death in 1922, the commander of a troop of Buffalo Soldiers, and the first African American superintendent of a national park, as described in the proclamation.62
  • Río Grande del Norte National Monument in New Mexico was designated on March 25, 2013. In proclaiming the monument, the President stated that protecting the 242,555-acre monument "will preserve its cultural, prehistoric, and historic legacy and maintain its diverse array of national and scientific resources, ensuring that the historic and scientific values of this area remain for the benefit of all Americans."63
  • San Juan Islands National Monument in Washington was designated on March 25, 2013. This 970-acre monument contains an archipelago of over 450 islands, rocks, and pinnacles in Washington's Puget Sound. According to the President, the area contains an "unmatched landscape," numerous wildlife species in diverse habitats, archaeological sites, and historic lighthouses and is a "refuge of scientific and historic treasures and a classroom for generations of Americans."64
  • Harriet Tubman–Underground Railroad National Monument in Maryland was designated on March 25, 2013. This 11,750-acre monument commemorates the life of Harriet Tubman, a leader of the Underground Railroad, and protects the landscape and historic features of the area in which she lived, worked, and later led enslaved African Americans to freedom, according to the proclamation.65
  • California Coastal National Monument was enlarged on March 11, 2014. President Obama added 1,665 onshore acres to this offshore monument, and named the expanded area the "Point Arena-Stornetta Unit." According to the proclamation, the area is of "significant scientific importance," and contains archeological and cultural sites and artifacts, a landscape shaped by "powerful geologic forces," and "spectacular wildlife," among other resources and values.66
  • Organ Mountains-Desert Peaks National Monument in New Mexico was designated on May 21, 2014. Among other attributes, the 496,330-acre monument includes mountain ranges and lowlands with archaeological resources; paleontological research areas; geologic features; historically significant areas; and diverse animals, vegetative communities, and ecosystems, according to the President.67
  • Pacific Remote Islands Marine National Monument was expanded on September 25, 2014, by approximately 261.3 million acres. The proclamation indicates that the expansion area includes opportunities for scientific study and research. It also identifies diverse species and habitats, such as deep-sea coral species, habitat and range for protected turtles, foraging habitat for seabird species, and an abundance of manta rays.68
  • San Gabriel Mountains National Monument in California was designated on October 10, 2014. In establishing the 346,177-acre monument, the President noted cultural, historic, and geologic features; recreational and scientific opportunities; and ecological diversity, among other distinctive elements.69
  • Browns Canyon National Monument in Colorado was designated on February 19, 2015. The 21,586-acre monument is described as an "iconic" landscape with diverse plants and wildlife and scientifically significant geological, ecological, riparian, cultural, and historic resources. It is also important for studying paleoecology, mineralogy, archaeology, and climate change, according to the President.70
  • Pullman National Monument in Illinois was designated on February 19, 2015. In proclaiming the 0.24-acre monument, the President cited the national significance and contemporary relevance of the Pullman Historic District, including its architecture, urban planning, transportation, labor relations, and social history.71
  • Honouliuli National Monument in Hawaii was designated on February 24, 2015. The 123-acre Honouliuli Internment Camp was used during World War II as a prisoner-of-war camp and an internment camp, with most of the internees of Japanese descent. The President called the area "a powerful reminder of the need to protect civil liberties in times of conflict, and the effects of martial law on civil society."72
  • Basin and Range National Monument in Nevada was designated on July 10, 2015. In preserving the cultural, prehistoric, and historic legacy of the 704,000-acre Great Basin area, the President noted the area's topography, geology, ecologically intact landscape, species diversity, archaeological resources, and a recent work of land art, among other features.73
  • Berryessa Snow Mountain National Monument in California was designated on July 10, 2015. The significance of the 330,780-acre site stems from its historic and prehistoric importance as well as its diversity of geologic, natural, cultural, plant and animal, scientific, and other resources, according to the proclamation.74
  • Waco Mammoth National Monument in Texas was designated on July 10, 2015. With 7.11 acres, the excavation site contains the remains of Columbian mammoths and other animals of the Pleistocene Epoch. The President cited the value of the area for further exploration and research.75
  • Mojave Trails National Monument in California was designated on February 12, 2016. Its 1.6 million acres are used for geological, ecological, and entomological research and contain paleontological resources, habitat for rare plant species and the threatened desert tortoise, and archeological records. The monument is also important for both transportation and military history, according to the proclamation.76
  • Sand to Snow National Monument in California was designated on February 12, 2016. The President called the 154,000 acre area an "ecological and cultural treasure" and noted its geologic and other geographic diversity, archaeological attributes, historic remains of communities, range of ecosystems and species, and scientific value.77
  • Castle Mountains National Monument in California was designated on February 12, 2016. The "outstanding natural, cultural, and historical values" of the 20,920 acres were highlighted in the proclamation, including its geology; relatively intact habitat and ecosystems; priority for scientific research; prehistoric rock art and archeological sites; and historic mining, ranching, and railroad uses.78
  • Belmont-Paul Women's Equality National Monument was designated in Washington, DC, on April 12, 2016. The President noted the role of the house at this 0.34-acre monument for its role in women's history, including as the home of the National Woman's Party and the staging area for legislation and other actions on behalf of women's political, social, and economic equality.79
  • Stonewall National Monument was designated on June 24, 2016, in New York. The significance of the 0.12-acre park (Christopher Park) stems from its role in the lesbian, gay, bisexual, and transgender (LGBT) civil rights movement. It forms part of a "historic landscape" that includes the Stonewall Inn, scene of the "uprising" that galvanized a movement for LGBT equality, according to the President.80
  • Katahdin Woods and Waters National Monument in Maine was designated on August 24, 2016. In establishing the 87,563-acre monument, the President noted its archaeological records of Native people, logging and other historic industrial infrastructure, significant biodiversity, ecosystems of scientific interest, and defining geologic and natural features.81
  • Papahanaumokuakea Marine National Monument was expanded on August 26, 2016, by 283.4 million acres. The President highlighted the geological and biological resources of the expansion area that are sacred to Native Hawaiians and that constitute "part of a highly pristine deep sea and open ocean ecosystem with unique biodiversity."82
  • Northeast Canyons and Seamounts Marine National Monument was designated on September 15, 2016. The 3.1-million-acre monument is composed of two units containing mountains and canyons, and has been an area of scientific exploration in recent decades. Features include habitat for protected and endangered species (such as sea turtles and whales), species of coral exclusive to the area, and other rare fish and invertebrates, according to the President.83
  • Bears Ears National Monument was designated on December 28, 2016, in Utah. In designating the 1.35 million-acre monument, the President highlighted the area's "extraordinary archaeological and cultural record that is important to us all," sacredness of the land to many Native American tribes, historic and prehistoric legacy, geology, paleontological resources, and diverse vegetation and wildlife species.84
  • Gold Butte National Monument in Nevada was designated on December 28, 2016. This 296,937-acre monument contains an "extraordinary variety of diverse and irreplaceable scientific, historic, and prehistoric resources," including plant and animal habitat, geological formations, rare fossils, sites from Native American history, and remnants of western ranching and mining, according to President Obama.85
  • Cascade Siskiyou National Monument was enlarged on January 12, 2017. The enlargement consisted of 47,624 acres, with 42,349 in Oregon and 5,275 in California.86 Diverse plant and animal species, ecological connectivity, hydrologic resources, historic trails, and opportunities for scientific study are among the features of the area set out in the proclamation.87
  • Birmingham Civil Rights National Monument in Alabama was designated on January 12, 2017. The purpose of the 0.88-acre monument is to protect the historic A. G. Gaston Motel, the headquarters of a civil rights campaign led by Dr. Martin Luther King, Jr., among others, which helped lead to the enactment of the Civil Rights Act of 1964.88
  • Freedom Riders National Monument in Alabama was designated on January 12, 2017. The 5.96-acre monument contains two related sites associated with the civil rights movement. They are a former Greyhound bus station and nearby area where, in 1961, an interracial group of Freedom Riders was attacked during a journey to test desegregation.89
  • Reconstruction Era National Monument in South Carolina was designated on January 12, 2017. The 15.56-acre monument contains four sites in Beaufort County, the birthplace of Reconstruction, where formerly enslaved people developed a thriving community during and after the Civil War.90
  • California Coastal National Monument was expanded on January 12, 2017. Six areas along the California coast were included in the expansion, which totaled 6,230 acres. These on- and off-shore areas include historic sites, ancient archaeological sites, unique geology, habitat for plants and animals, and marine wildlife, according to President Obama.91

Author Contact Information

[author name scrubbed], Specialist in Natural Resources Policy ([email address scrubbed], [phone number scrubbed])

Footnotes

1.

The text of the law had been codified at 16 U.S.C. §§431-433. It was recodified pursuant to P.L. 113-287 to 54 U.S.C §§320301-320303.

2.

54 U.S.C. §320301(d).

3.

A withdrawal is an action that restricts the use or disposition of public lands. 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.

5.

For instance, legislative proposals in the 104th Congress (1995-1996) included H.R. 4118, H.R. 4214, H.R. 4242, and S. 2150.

6.

Dettling v. United States, 983 F. Supp. 2d 1184 (D. Haw. 2013). The case pertained to the Papahanaumokuakea Marine National Monument, which was established in 2006 as the Northwestern Hawaiian Islands National Monument then redesignated in 2007 as the Papahanaumokuakea Marine National Monument.

7.

54 U.S.C. §320301.

8.

54 U.S.C. §320301(d).

9.

16 U.S.C. §3213.

10.

Since 1906, the Presidents who have not used this authority are Richard M. Nixon, Ronald Reagan, and George H. W. Bush. Monuments created by Presidents from 1906 through December 8, 2016, are listed chronologically on the website of the National Park Service at https://www.nps.gov/archeology/sites/antiquities/MonumentsList.htm. The information includes the President that proclaimed the monument and the size of the monument. The list also denotes when Presidents have issued proclamations affecting previously designated monuments, for instance to enlarge or diminish them, and when Congress has enacted related legislation, such as to redesignate them (e.g., as national parks).

11.

The 36 monument proclamations included the establishment of 11 monuments, enlargement of 20 monuments, diminishment of 4 monuments, and modification of restrictions in 1 monument.

12.

In 2014, President Obama expanded the Pacific Remote Islands Marine National Monument by approximately 261.3 million acres. In 2016, President Obama expanded the Papahanaumokuakea Marine National Monument by approximately 283.4 million acres. Thus, the two areas contain about 545 million acres of the 554 million acres proclaimed by the President.

13.

The Stonewall National Monument, established by President Obama in New York, is 0.12 acres. The Papahanaumokuakea Marine National Monument was established by President George W. Bush in 2006 with 89.5 million acres; President Obama's 2016 expansion of the monument adding approximately 283.4 million acres made the monument roughly 372.9 million acres. 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 in 1980, two years after it was proclaimed.

14.

Mount Olympus National Monument was later redesignated by law as Olympic National Park.

15.

For additional information on the authority of the President to modify or abolish monuments, see CRS Report R44687, Antiquities Act: Scope of Authority for Modification of National Monuments, by [author name scrubbed].

16.

U.S. Constitution, Article IV, Section 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.... "

17.

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 other public purposes.

18.

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.

19.

42 U.S.C. §§4321 et seq.

20.

Relatedly, under 43 U.S.C. §1714(e), the Secretary of the Interior has authority to make emergency withdrawals of federal lands, which are effective when made but expire at the end of three years. The lands return to their original designation unless permanent action is taken. Also, the Secretary of the Interior is authorized to make emergency withdrawals of federal lands not under Department of the Interior jurisdiction without the consent of the managing agency. 43 U.S.C. §1714(i).

21.

54 U.S.C. §320301(b).

22.

In 1978, President Carter proclaimed 15 new monuments and enlarged two in Alaska.

23.

For background information on protection of ocean areas, see CRS Report RL32154, Marine Protected Areas: An Overview, by [author name scrubbed].

24.

All marine monument sizes listed are approximate. The sizes of marine monuments typically have been identified in square miles, although the proclamation expanding the Pacific Remote Islands Marine National Monument was expressed in square nautical miles. Monuments on land have been expressed in acres. A square mile is equal to 640 acres, while a square nautical mile is equal to 847.5 acres.

25.

Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002).

26.

54 U.S.C. §320301(a).

27.

The White House, Office of the Press Secretary, Grand Canyon-Parashant National Monument, January 11, 2000.

28.

Cameron v. United States, 252 U.S. 450 (1920).

29.

Ibid., at 455.

30.

Tulare County v. Bush, 306 F.3d 1138, 1142 (D.C. Cir. 2002) (regarding Giant Sequoia National Monument).

31.

Mountain States Legal Foundation v. Bush, 306 F.3d 1132, 1138 (D.C. Cir. 2002) (regarding six monuments in four states).

32.

54 U.S.C. §320301(c).

33.

Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008).

34.

California v. United States, 436 U.S. 32, 40 (1978) (regarding Channel Islands National Monument).

35.

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.

36.

For instance, nearly all of President Clinton's monument proclamations had such a provision, including 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 BLM website under the respective monument listings, at http://www.blm.gov/wo/st/en/prog/blm_special_areas/NLCS/monuments.html.

37.

See, e.g., Wilkenson v. Department of the Interior, 634 F. Supp. 1265 (D. Col. 1986) (federal government could not completely restrict travel on a preexisting right of way through a national monument).

38.

For instance, President Clinton's monument proclamations typically contained a land exchange provision, including 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 BLM website under the respective monument listings, at http://www.blm.gov/wo/st/en/prog/blm_special_areas/NLCS/monuments.html.

39.

Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945).

40.

Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945).

41.

No comprehensive examination was made of earlier monument proclamations.

42.

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).

43.

For instance, President Clinton's monument proclamations typically contained such a provision, including 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 BLM website under the respective monument listings, at http://www.blm.gov/wo/st/en/prog/blm_special_areas/NLCS/monuments.html.

44.

See, for example, Presidential Proclamation—Pacific Remote Islands Marine National Monument Expansion, September 25, 2014, at https://www.whitehouse.gov/the-press-office/2014/09/25/presidential-proclamation-pacific-remote-islands-marine-national-monumen. The proclamation prohibited commercial fishing within the boundaries of the monument expansion while permitting other types of fishing, such as for noncommercial, recreational, and scientific and research purposes.

45.

The potential economic benefits to local communities of national monument designation were discussed at a House subcommittee hearing on September 13, 2011. For testimony asserting beneficial economic impacts, see Ray Rasker, Executive Director, Headwaters Economics, at http://naturalresources.house.gov/uploadedfiles/raskertestimony09.13.11.pdf. For testimony asserting adverse impacts on communities, see Jerry Taylor, Mayor, Escalante City, Utah, at http://naturalresources.house.gov/uploadedfiles/taylortestimony09.13.11.pdf.

46.

FLPMA defined "withdrawal" as "withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program; or transferring jurisdiction over an area of Federal land, other than ''property'' governed by the Federal Property and Administrative Services Act, as amended (40 U.S.C. 472) from one department, bureau or agency to another department, bureau or agency." 43 USC 1702(j).

47.

For an overview and background on NEPA, see CRS Report RL33152, The National Environmental Policy Act (NEPA): Background and Implementation, by [author name scrubbed].

48.

See Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978) (NEPA does not apply to presidential proclamation under the Antiquities Act).

49.

As an example, the following article notes the views of monument supporters regarding public participation and NEPA. See Mathew J. Sanders, "Are National Monuments the Right Way to Manage Federal Public Lands?," Natural Resources & Environment, Summer 2016, 31(1), pp. 3-7.

50.

The consolidation of management of national monuments occurred under Executive Order 6166 of June 10, 1933. See Executive Order 6166, "Organization of Executive Agencies," June 10, 1933, at https://www.archives.gov/federal-register/codification/executive-order/06166.html.

51.

The two monuments were given statutory approval as part of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA), P.L. 96-487.

52.

California v. United States, 436 U.S. 32, 40 (1978).

53.

4B Op. Off. Legal Counsel 396 (February 8, 1980).

54.

Reorganization Plan No. 3 of 1950.

55.

For instance, in a letter of January 24, 2014, some Members of Congress expressed support to the Secretary of the Interior for additional monument designations under the Antiquities Act. The letter is available on the website of Democratic Members of the House Committee on Natural Resources at http://democrats.naturalresources.house.gov/sites/democrats.naturalresources.house.gov/files/2014.1.14.Antiquities%20Act.%20Jewell_1.pdf. In addition, on December 12, 2013, a coalition of groups asked the President to designate additional monuments that "conserve our diverse culture and heritage." The letter is available through the Environment and Energy News PM website at http://www.eenews.net/assets/2013/12/12/document_pm_02.pdf.

56.

For instance, in a letter of June 13, 2013, several Senators expressed to the President opposition to "unilateral" designation of national monuments. The letter is on the website of the Senate Committee on Environment and Public Works at http://www.epw.senate.gov/public/index.cfm/2013/6/post-43def03b-eb2d-28a3-e162-0da18ed75af1. In addition, on April 16, 2013, a witness representing the Public Lands Council, National Cattlemen's Beef Association, and Utah Cattlemen's association testified in favor of limiting the President's authority to proclaim monuments. See testimony of David Eliason, in U.S. Congress, House Committee on Natural Resources, Subcommittee on Public Lands and Environmental Regulation, hearings, 113th Cong., 1st sess., April 16, 2013, at http://www.gpo.gov/fdsys/pkg/CHRG-113hhrg80524/pdf/CHRG-113hhrg80524.pdf.

57.

See Presidential ProclamationEstablishment of the Fort Monroe National Monument, November 1, 2011, on the White House website at http://www.whitehouse.gov/the-press-office/2011/11/01/presidential-proclamation-establishment-fort-monroe-national-monument.

58.

See Presidential ProclamationEstablishment of the Fort Ord National Monument, April 20, 2012, on the White House website at http://www.whitehouse.gov/the-press-office/2012/04/20/presidential-proclamation-establishment-fort-ord-national-monument.

59.

See Presidential ProclamationEstablishment of the Chimney Rock National Monument, September 21, 2012, on the White House website at http://www.whitehouse.gov/the-press-office/2012/09/21/presidential-proclamation-establishment-chimney-rock-national-monument.

60.

See Presidential ProclamationEstablishment of the César E. Chávez National Monument, October 8, 2012, on the White House website at http://www.whitehouse.gov/the-press-office/2012/10/08/presidential-proclamation-establishment-cesar-e-chavez-national-monument.

61.

See Presidential ProclamationEstablishment of the First State National Monument, March 25, 2013, on the White House website at http://www.whitehouse.gov/the-press-office/2013/03/25/presidential-proclamation-first-state-national-monument.

62.

See Presidential ProclamationEstablishment of the Charles Young Buffalo Soldiers National Monument, March 25, 2013, on the White House website at http://www.whitehouse.gov/the-press-office/2013/03/25/presidential-proclamation-charles-young-buffalo-soldiers-national-monume.

63.

See Presidential ProclamationEstablishment of the Río Grande del Norte National Monument, March 25, 2013, on the White House website at http://www.whitehouse.gov/the-press-office/2013/03/25/presidential-proclamation-r-o-grande-del-norte-national-monument.

64.

See Presidential ProclamationEstablishment of the San Juan Islands National Monument, March 25, 2013, on the White House website at http://www.whitehouse.gov/the-press-office/2013/03/25/presidential-proclamation-san-juan-islands-national-monument.

65.

See Presidential ProclamationEstablishment of the Harriet Tubman–Underground Railroad National Monument, March 25, 2013, on the White House website at http://www.whitehouse.gov/the-press-office/2013/03/25/presidential-proclamation-harriet-tubman-underground-railroad-national-m.

66.

See Presidential Proclamation—Boundary Enlargement of the California Coastal National Monument, March 11, 2014, on the White House website at http://www.whitehouse.gov/the-press-office/2014/03/11/presidential-proclamation-boundary-enlargement-california-coastal-nation.

67.

See Presidential Proclamation—Organ Mountains-Desert Peaks National Monument, May 21, 2014, on the White House website at http://www.whitehouse.gov/the-press-office/2014/05/21/presidential-proclamation-organ-mountains-desert-peaks-national-monument.

68.

See Presidential Proclamation—Pacific Remote Islands Marine National Monument Expansion, September 25, 2014, on the White House website at http://www.whitehouse.gov/the-press-office/2014/09/25/presidential-proclamation-pacific-remote-islands-marine-national-monumen.

69.

See Presidential Proclamation—San Gabriel Mountains National Monument, October 10, 2014, on the White House website at http://www.whitehouse.gov/the-press-office/2014/10/10/presidential-proclamation-san-gabriel-mountains-national-monument.

70.

See Presidential Proclamation—Browns Canyon National Monument, February 19, 2015, on the White House website at https://www.whitehouse.gov/the-press-office/2015/02/19/presidential-proclamation-browns-canyon-national-monument.

71.

See Presidential Proclamation—Pullman National Monument, February 19, 2015, on the White House website at https://www.whitehouse.gov/the-press-office/2015/02/19/presidential-proclamation-pullman-national-monument.

72.

See Presidential Proclamation—Establishment of the Honouliuli National Monument, February 24, 2015, on the White House website at https://www.whitehouse.gov/the-press-office/2015/02/24/presidential-proclamation-establishment-honouliuli-national-monument.

73.

See Presidential Proclamation—Establishment of the Basin and Range National Monument, July 10, 2015, on the White House website at https://www.whitehouse.gov/the-press-office/2015/07/10/presidential-proclamation-establishment-basin-and-range-national.

74.

See Presidential Proclamation—Establishment of the Berryessa Snow Mountain National Monument, July 10, 2015, on the White House website at https://www.whitehouse.gov/the-press-office/2015/07/10/presidential-proclamation-establishment-berryessa-snow-mountain-national.

75.

See Presidential Proclamation—Establishment of the Waco Mammoth National Monument, July 10, 2015, on the White House website at https://www.whitehouse.gov/the-press-office/2015/07/10/presidential-proclamation-establishment-waco-mammoth-national-monument.

76.

See Presidential Proclamation—Establishment of the Mojave Trails National Monument, February 12, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/02/12/presidential-proclamation-establishment-mojave-trails-national-monument.

77.

See Presidential Proclamation—Establishment of the Sand to Snow National Monument, February 12, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/02/12/presidential-proclamation-establishment-sand-snow-national-monument.

78.

See Presidential Proclamation—Establishment of the Castle Mountains National Monument, February 12, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/02/12/presidential-proclamation-establishment-castle-mountains-national.

79.

See Presidential Proclamation—Establishment of the Belmont-Paul Women's Equality National Monument, April 12, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/04/12/presidential-proclamation-establishment-belmont-paul-womens-equality.

80.

See Presidential Proclamation—Establishment of the Stonewall National Monument, June 24, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/06/24/presidential-proclamation-establishment-stonewall-national-monument.

81.

See Presidential Proclamation—Establishment of the Katahdin Woods and Waters National Monument, August 24, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/08/24/presidential-proclamation-establishment-katahdin-woods-and-waters.

82.

See Presidential Proclamation—Papahanaumokuakea Marine National Monument Expansion, August 26, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/08/26/presidential-proclamation-papahanaumokuakea-marine-national-monument.

83.

This monument is located off the coast of New England. See Presidential Proclamation—Northeast Canyons and Seamounts Marine National Monument, September 15, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/09/15/presidential-proclamation-northeast-canyons-and-seamounts-marine.

84.

See Presidential ProclamationEstablishment of the Bears Ears National Monument, December 28, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/12/28/proclamation-establishment-bears-ears-national-monument.

85.

See Presidential ProclamationEstablishment of the Gold Butte National Monument, December 28, 2016, on the White House website at https://www.whitehouse.gov/the-press-office/2016/12/28/presidential-proclamation-establishment-gold-butte-national-monument.

86.

Acreage figures are taken from the Fast Facts and Q&A on the BLM website at https://www.blm.gov/programs/national-conservation-lands/national-monuments/oregon-washington.

87.

See Presidential ProclamationBoundary Enlargement of the Cascade-Siskiyou National Monument, January 12, 2017, on the White House website at https://www.whitehouse.gov/the-press-office/2017/01/12/presidential-proclamation-boundary-enlargement-cascade-siskiyou-national.

88.

See Presidential ProclamationsEstablishment of the Birmingham Civil Rights National Monument, January 12, 2017, on the White House website at https://www.whitehouse.gov/the-press-office/2017/01/12/presidential-proclamations-establishment-birmingham-civil-rights.

89.

See Presidential ProclamationsEstablishment of the Freedom Riders National Monument, January 12, 2017, on the White House website at https://www.whitehouse.gov/the-press-office/2017/01/12/presidential-proclamations-establishment-freedom-riders-national.

90.

See Presidential ProclamationsEstablishment of the Reconstruction Era National Monument, January 12, 2017, on the White House website at https://www.whitehouse.gov/the-press-office/2017/01/12/presidential-proclamations-establishment-reconstruction-era-national.

91.

See Presidential ProclamationBoundary Enlargement of the California Coastal National Monument, January 12, 2017, on the White House website at https://www.whitehouse.gov/the-press-office/2017/01/12/presidential-proclamation-boundary-enlargement-california-coastal.