Summary: President Obama recently declared the Organs Mountain-Desert Peaks as a national monument only months after the House of Representatives passed a bill that would curtail his authority to do so under the Antiquities Act. In order to appease critics of broad executive authority, President Obama must use the Antiquities Act in a manner that does more for local communities than simply place nearby public lands under increased federal regulation.

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By  Andrew W. Minikowski

On May 21, President Barack Obama designated the Organs Mountain-Desert Peaks region of New Mexico as the United States’ latest national monument. The Organs Mountain region is home to a robust diversity o f wildlife, numerous distinct plant species, and countless archaeological sites, ranging from the early indigenous period to the Twentieth Century. By declaring Organs Mountain as a national monument, President Obama has ensured that its lands will be federally protected and preserved for the benefit of wildlife, ecosystems, and the American public. Despite being met with resounding praise from conservationists and outdoor recreationists, President Obama’s declaration was also attacked by critics of overbroad Executive authority and the means by which the President made his declaration: the Antiquities Act of 1906.

The Antiquities Act allows the President to withdraw federal public lands from general use and set them aside as national monuments if doing so protects “objects of historic and scientific interest.” President Theodore Roosevelt almost immediately implemented his authority under the Act to preserve two of the United States’ most iconic national monuments: Devil’s Tower and the Grand Canyon. The Executive withdrawal power under the Antiquities Act initially attracted little criticism, especially after the Supreme Court’s 1915 decision in United States v. Midwest Oil Co. in which the President’s broad power to withdraw public lands from use was affirmed. However, with the passage of the Federal Land Policy and Management Act (FLPMA) in 1976, Congress revoked all executive withdrawal authority except that granted under the Antiquities Act. Thus, the Antiquities Act remains as the last vestige of Presidential withdrawal power over the public lands, a power that was upheld by the Supreme Court’s 1976 decision in Cappaert v. United States . Because the Antiquities Act essentially allows the President to bypass the lengthy Congressional process of creating a new national park, the Act has been a prime target for critics of broad executive authority.

This March members of the House of Representatives rallied behind Utah Congressman Rob Bishop (R) in an attempt to defang the President’s broad discretion under the Antiquities Act. The aptly named Ensuring Public Involvement in the Creation of National Monuments Act (H.R. 1459) would limit the President to designating only one national monument per state per term without the authorization of Congress. The declaration of national monuments beyond that would require the President to submit the proposed monument to Congress for approval. Furthermore, the proposed bill would reclassify withdrawals under the Antiquities Act as “major federal actions” and thereby trigger exhaustive review under the National Environmental Policy Act (NEPA). After passing the House, the Senate referred the bill to the Committee on Energy and Natural Resources where it remains pending further action.

The motivations of Representative Bishop and the other House members supporting H.R. 1459 were likely inspired by the contentious relationship between the states and the federal government regarding activity on the public lands. Because large swathes of the Western states are owned by the federal government, much Western economic activity takes place on the public lands. By declaring portions of the public lands as national monuments, the President effectively removes such lands from the multiple-use mandate of FLPMA and deprives the states of any economic benefit that was being garnered from activity—be it mining, logging, or ranching—that was occurring on those lands.

Therefore, President Obama’s decision to declare Organs Mountain and ten other sites as national monuments seems almost a retort to Congressional clamoring against the Antiquities Act. However, it would appear that in doing so President Obama is not deaf to the economic concerns of Westerners. The economic impact of national parks and monuments was a central theme in the President’s statement accompanying his declaration. The President noted that “continuing to set aside federal land for outdoor recreation will drive critical revenue for […] local communities.” President Obama’s words are not mere empty rhetoric either. The White House was quick to provide a deluge of statistics demonstrating the economic benefit of recreation on the public lands, noting that 6.1 million American jobs are in the outdoor recreation industry and that visits to the public lands were responsible for adding $50 billion to the national economy in the last fiscal year. In regard to Organs Mountain specifically, the President observed that the national monument designation could swell the local economy by as much as 70% and that public land recreation in New Mexico already contributes $170 million to the state economy annually. Thus, the President’s designation of Organs Mountain attempts to use the Antiquities Act in a way that reconciles the agendas of conservation advocates and Westerners concerned with their local economies.

Ultimately, it is unlikely that H.R. 1459 will pass the Senate or that even if it did, President Obama would sign it into law. However, the rhetoric employed by President Obama when designating Organs Mountain shows that his administration is willing to wield the Antiquities Act in a manner that attempts to do more for communities than just set aside natural wonders for future generations. By construing the withdrawal power of the Antiquities Act in a fashion that addresses the economic concerns of Americans, it is possible that President Obama can prevent Presidential authority under the Act from becoming an antiquity itself.

Andrew W. Minikowski is a third year Juris Doctor and Master of Environmental Law and Policy student at Vermont Law School. Prior to law school, he studied English and Economics at Eastern Connecticut State University. Andrew is the current Editor-in-Chief of the Vermont Journal of Environmental Law and a member of Vermont Law’s National Environmental Law Moot Court team. He hopes to enter the field of natural resource law and enjoys spending his spare moments birdwatching, botanizing, backpacking, and reading.

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