Fending off presidential land grabs.
In 1906 President Theodore Roosevelt got the Antiquities Act (AA) passed in Congress, legislation designed to protect archeological sites, and giving presidents executive power for preservation purposes. But the ever-shrewd TR knew that the new law would be useful to do more than just preserve ancient Indian settlement sites or shards of pottery. For good or ill, the only Republican president who is admired by modern Greens used it to close off vast tracts of the American West to economic development or “exploitation.” Roosevelt preserved some choice pieces of real estate with the AA, such as initially naming as a national monument the future Grand Canyon National Park.
On his way out of office in 1929, Calvin Coolidge signed legislation creating a smaller version (96,000 acres) of the Grand Teton National Park in Wyoming than we know today. In 1943 Franklin Roosevelt used Cousin Teddy’s AA to create the adjacent 221,000-acre Jackson Hole National Monument in Wyoming, but failed due to legalities to include 35,000 acres that the Rockefeller family tried to donate to the federal government with the idea that it would be preserved. This designation was controversial in Wyoming, and Republican Congressman Frank Barrett got a bill through both houses of Congress that would have abolished the new national monument. FDR pocket vetoed it. There was a media-attracting demonstration of sorts when local ranchers led by sometime cowboy actor Wallace Beery drove 500 cattle across the new national monument. The Rockefeller lands were finally transferred to the federal government in 1949 after the Rockefellers threatened to sell them at fair market value if the government didn’t accept them, and in 1950 Harry Truman signed a bill merging the original national park with the national monument and the Rockefeller donation, thus creating the modern Grand Teton National Park that we know today. Wyoming had the last laugh. One item in the bill forbade future presidents from using executive power to establish national monuments in Wyoming without Congressional approval. No new national monument has been designated in Wyoming since that 1950 legislation.
In 1980, Jimmy Carter in another last minute deal before leaving office, and after wrangling with Congress for most of his term, signed into law the Alaska National Interest Land Act (ANILCA), which set aside a staggering 100+ million acres, creating or revising 15 national parks plus additional wilderness areas. He originally invoked the AA in 1978 to put 56 million acres under national monument designation by executive fiat. Forty million acres of the original 100+ million were initially left alone, but later were included in the legislation. After the national monument designation there were demonstrations across Alaska, and Carter was burned in effigy in Fairbanks. In sheer acreage, this legislation broke records. But the tradeoff in the bill was that — similar to Wyoming’s exemption — any future designations in Alaska larger than 5,000 acres would also require Congressional approval.
In 1996, Bill Clinton famously blindsided Utah’s then-governor Mike Leavitt and the state’s congressional delegation by issuing an executive order creating the 1.7 million acre Grand Staircase-Escalante National Monument in southern Utah. It was his reelection year, and Clinton did it to enhance his green credentials with environmentalists. There had been rumors of the upcoming designation a couple of weeks before, but Secretary of the Interior Bruce Babbitt had assured Utah public officials that they were false. Babbitt served the Clinton Administration in his post for its entire eight year tenure, unusual for an Interior Secretary. He saw through 15 such designations, mostly in the West.
Lately, current Interior Secretary Ken Salazar has outlined 14 possible new western sites that could eventually be considered for national monument status, including two in Utah (San Rafael Swell and Cedar Mesa). In Washington for the recent National Governors Association meeting, Utah Governor Gary Herbert met with Salazar, and told the Salt Lake Tribune that the Interior Secretary “assured me that there is nothing being fast-tracked….no midnight surprise of ‘hey, we just created a new monument,’” But their previous experience with Clinton-Babbitt has left Beehive State GOP pols — and that’s most of them — skeptical.
According to Salt Lake City’s Deseret News, Senator Bob Bennett has lately introduced a bill designed to exempt Utah “from a president’s power to create or expand national monuments there.” Bennett’s co-sponsor is his fellow Utah Senator Orrin Hatch, who told the paper: “To hear that this administration may follow in President Clinton’s footsteps is one more major disappointment from a president who was supposed to bring about change, but instead seems intent on going down that same old path.” Bennett: “The Obama Administration continues to put the needs of environmentalists, who want to keep the public away from public lands, above the needs and desires of Utahans.” Rep. Rob Bishop, R-Utah, will introduce similar legislation on the House side. But given the current makeup of the U.S. Congress, this legislation — with its protest aspects — will likely go nowhere.
All this begs the question as to the constitutionality of legislation such as the Antiquities Act. How can a president by executive fiat create national monuments in some states, but in others — such as Wyoming, Alaska, and maybe in the future, Utah — has powers limited by Congressional legislation? Are any of the legal nuances involved here in violation of the 10th Amendment?
I don’t know, I’m not a constitutional scholar. Chief Justice Roberts?
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