In thinking about this, I was reminded of a line from The Adventures of Tom Sawyer:
The less there is to justify a traditional custom, the harder it is to get rid of it.
That sums up the Antiquities Act, and its abuse by recent Presidents, perfectly.
If you’re unfamiliar with that statute, it was enacted in 1906, at a time when the federal government was shifting from a policy of disposing of as many federally owned lands to private owners as possible to one of retaining as much as possible. That’s why the federal government owns essentially no land in the eastern states, but most of the land in the western states. The federal government owns less than .5% of New York, but more than 80% of Nevada.
Thus, in 1906, the federal government owned vast lands in the west but it didn’t know much about them or have a system in place to manage them. What it did know, however, was that much of it was former Indian territory containing priceless historical artifacts, which were being plundered. To address that problem, it enacted the Antiquities Act to authorize the President to declare “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments and reserve small areas of federal land for their protection. But for decades, Presidents have abused this authority in the belief that protecting large areas for environmental reasons would add to their legacy.
We’ve come a very long way in the last 110 years. Today, there is a vast administrative apparatus set up to manage federal lands. Congress has adopted several statutes to manage these lands, most notably the Federal Lands Policy and Management Act. There’s an alphabet soup of federal agencies to regulate them, including the BLM, USFS, NPS, DOD, and FWS. They’ve adopted a thicket of regulations to ensure that the use of these lands is sustainable and has minimal adverse environmental impacts.
In addition to federal regulations, our appreciation of environmental impacts has improved mightily since 1906. As a result, states regulate better and industry self-regulates in response to consumer demand. Modern technology has also contributed by increasing productivity while also reducing environmental impact, which is why deforestation is being replaced by reforestation in the U.S.
The same is true in the ocean, a focus of recent monument designations. Although fish have been the classic example of the Tragedy of the Commons—the overconsumption of unowned resources, due to the incentives to use them up before others do. The Magnuson-Stevens Act has set up a collaborative regulatory regime in which fishermen, states, environmentalists, and federal regulators develop and enforce fishing quotas to ensure sustainability. As a part of that process, fishermen have reduced their impacts, by transitioning to better fishing methods and equipment.
Despite all of this, Presidents (and many environmentalists) insist that it’s more urgent than ever that more and even larger monuments be established. Why? The threats that the Antiquities Act was intended to address are greatly reduced, because the most important archaeological sites were protected long ago. Environmental protection has also greatly improved, due to both better government regulation and growing private interest in the environment. Yet, the traditional custom of Antiquities Act abuse is harder to get rid of.
This should concern anyone worried about individual liberty. The Antiquities Act allows the President to designate monuments at whim, destroying any economic activity in the area without any procedural protections or obligation to consider state and public input. That’s dangerous in any circumstances, but less so when the power is limited to small monuments to protect archaeological artifacts. But when it’s used to wall off hundreds of millions of acres simply because one man believes it may be better for the environment, the risk grows as gargantuan as many of the recent monuments have been.