Over the past two decades, presidents from both major American political parties have used the Antiquities Act of 1906 to set aside 11 million acres of land and 760 million acres of oceans as marine monuments. The Bears Ears and Grand Staircase-Escalante national monuments were created under the Obama and Clinton administrations and encompass more than 3 million acres.
When President Donald Trump took office, he charged his secretary of the interior, Ryan Zinke, to review the national monuments created over the past 25 years. In his report, Zinke recommended shrinking several national monuments, including Bears Ears and Grand Staircase-Escalante — a decision that has been challenged in courts by environmental and recreational groups and by Native American tribes.
The creation of national monuments is especially contentious because these lands are set aside using executive orders, thereby avoiding the normal democratic process in federal lawmaking. President Barack Obama’s designation of Bears Ears in Utah was opposed by the governor, the state Legislature and Utah’s entire congressional delegation. Prior to Obama’s decision, a private group launched the Public Land Initiative, with the goal of reaching a “Grand Bargain” over Bears Ears. The proposed legislation would have protected some areas of the region in exchange for opening other areas to resource development. Obama’s executive order creating the Bears Ears monument ignored these recommendations entirely.
In response to this abuse of executive authority, legislation was introduced by Rep. Rob Bishop (R-Utah) to overhaul the Antiquities Act. That legislation would limit the size of monuments a president can designate via executive order and impose strict limits on which “antiquities” the law can be used to protect. Some critics have proposed repealing the Antiquities Act entirely.
Conflict over our national monuments reveals a fundamental flaw in our democratic system: the emergence of an imperial presidency and emasculation of Congress. Citizens have lost faith in both the executive and legislative branches of the federal government to manage the 640 million acres of land in the public domain. The federal government now controls roughly one-third of all the land area in the country, and in some Western states, such as Utah, the federal government controls more than half the land.
These resources, including $55 trillion in oil and natural gas reserves on public lands, are underutilized. Federal agencies manage these lands inefficiently, incurring sizable losses each year. Conflicts over land policy, such as that over Bears Ears and Grand Staircase-Escalante, end up in court, wasting millions of dollars. The outcome of federal land policy is that Western states are left with large portions of their land controlled by the federal government, with little influence over how the lands are used.
Compared with the federal government, states have proved to be better managers of public lands in achieving multiple objectives. Utah, for example, privatized a significant share of the public lands it received through land grants. On the lands retained in the public sector, Utah provides for multiple uses, including resource development and recreational uses. Utah has also proved to be a good steward of state lands that have unique biodiversity, geological formations, natural landscapes and/or cultural antiquities.
Since the Sagebrush Rebellion was launched in the 1970s, different interest groups have challenged the federal government’s control of public lands, through the courts and legislation. Earlier in 2017, U.S. Sen. James Inhofe (R-Oklahoma) introduced Senate Bill 335, the Land Freedom Act of 2017, which authorizes a state with an established oil and gas leasing program to take responsibility from the federal government for leasing and regulating the exploration and development of oil, gas and other forms of energy in the state. These states would be responsible for collecting federal royalties and revenues. They would not be subject to the Administration Procedure Act, the Endangered Species Act of 1973 or the National Environmental Policy Act of 1969.
Similarly, the Republican Party’s platform states, “Congress shall immediately pass universal legislation providing for a timely and orderly mechanism requiring the federal government to convey certain federally controlled public lands to the states.”
It is time for a new Grand Bargain that would give the citizens most impacted by federal land grabs and federal land ownership final say in the disposition of public lands. Using the Public Land Initiative model, Western states could form a compact of the states to draft a new Homestead Law, which would provide for the devolution of land and resources in the public domain to the states. State legislatures could then enact laws for the management of these public lands.
A new Grand Bargain could be a win-win outcome for the federal government as well. By shifting management to the states, the federal government could eliminate agencies now managing public lands. The revenue received by the federal government from the sale and leasing of public lands could then be earmarked for debt reduction. Thus, reverse revenue sharing could result in downsizing the federal government, rather than the endless expansion of federal bureaucracies. A new Grand Bargain could also restore the federalist system to something closer to that envisioned by the Founding Fathers when they wrote the 10th Amendment.
Barry W. Poulson (email@example.com) is emeritus professor of economics at the University of Colorado at Boulder.