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Opinion: Here we go again. The monuments exist on shaky ground

The Antiquities Act gives presidents too much power, ignoring the many stakeholders whose needs should be considered

SHARE Opinion: Here we go again. The monuments exist on shaky ground
Ancient ruins in the Bears Ears National Monument.

Anasazi ruins that are over 700 years old are pictured in Mule Canyon in the Bears Ears National Monument in San Juan County on Friday, April 9, 2021.

Kristin Murphy, Deseret News

The presidential monument yo-yo has swung upward again in Utah, proving once again that, in a hyperpartisan atmosphere, nothing is permanent about a national monument designation.

This seemingly constant ebb and flow — Presidents Bill Clinton and Barack Obama created, respectively, the Grand Staircase-Escalante and Bears Ears monuments, President Donald Trump reduced them in size and now President Joe Biden has expanded them again — has no foreseeable end in sight.

That’s because well-meaning members of Congress in 1906 did something that flew in the face of America’s governing philosophy. They passed the Antiquities Act, which gives presidents the power to create national monuments without a public process and without a vote of Congress. 

At the time, lawmakers and President Teddy Roosevelt found ample reason to do so. So-called “pot hunters” were indiscriminately raiding sacred native American lands. News reports of the day said many relics from Utah cliff dwellings were put on display at the Chicago World’s Fair of 1893, then later auctioned at high prices.

The president, it was thought, needed the power to be nimble enough to declare monuments and protect relics without requiring a lengthy legislative process.

So Congress passed, and Roosevelt signed, the act, which specified that monuments should cover the smallest area necessary to protect such antiquities.

But Roosevelt and Congress lacked the foresight to understand what would happen next. Over time, presidents found the act to be a useful political tool to gain the support either of environmentalists or, as in Trump’s case, those who would open the land for extraction, ranching or other purposes.

Some say the mischief began with Clinton and the Grand Staircase-Escalante monument in Utah, which he announced from Arizona during his reelection campaign and without consulting any Utah politician. But that isn’t true.

In 1943, President Franklin D. Roosevelt created a monument at Jackson Hole that raised suspicions he was trying to do what Congress had refused to do — expand Grand Teton National Park. In the 1970s, President Jimmy Carter created a vast 56 million acres of national monuments in Alaska.

Both of those eventually led Congress to provide various exemptions from the Antiquities Act for Wyoming and Alaska. Utah’s political leaders have wistfully longed for similar exemptions for years, but Congress hasn’t obliged.

A better solution might be to fix the act so that it isn’t so un-democratic. Let presidents retain their power to create a monument, but require that the designation be rescinded unless Congress ratifies it during a certain time period. Or, better yet, allow the affected state legislature a say in each designation.

Even in Utah, a middle ground could be found. Nearly everyone involved seems to agree that parts of both monuments in question should be protected. Artifacts need protection. The sacred nature of the land ought to be given the highest level of consideration.

In an opinion piece for the Deseret News signed by all of Utah’s congressional delegation, it was said that Supreme Court Chief Justice John Roberts may be willing to consider the constitutionality of the act. A court decision could force a more nuanced approach to the creation of monuments. 

Unfortunately, it appears Biden gave little consideration to the concerns many Utah leaders and others expressed in hearings about the large footprints of Bears Ears and Grand Staircase-Escalante. He didn’t have to, despite having his interior secretary go through the exercise of conducting a review.

In the fall of 2017, the Deseret News sent editor Jesse Hyde to take a look at the monuments and those living near them. He spoke with rancher Heidi Redd, who first came to Indian Creek 50 years ago and rode a bit of the land with then-Interior Secretary Ryan Zinke when Zinke was there.

Uncertainty was the theme of the day, but not necessarily from the standpoint of the monument boundaries.

“We’ve opened a pandora’s box,” Redd said then. “Now that it’s been declared a monument, people are coming. So whether it’s the original designation of 1.3 million acres, or whether it’s reduced to 100,000 acres, people are going to come. The question is how do we protect the land?”

That question remains unresolved.