Bypassing Congress, the Obama administration designated three new areas as “National Monuments.”
In February President Obama designated three new national monuments. While two of the designations — the Honouliuli Internment Camp in Hawaii and Chicago’s Pullman Park District — are relatively small areas, at 21,000 acres, the Brown’s Canyon monument around the Arkansas river in Colorado represents a significant federal lockup of land.
Colorado Senator Michael Bennett (D) told the Washington Times (Feb. 19) President Obama gave him with assurances existing uses will be protected. What the President says and what the law allows may be two different things and others are less confident in the President’s assurances.
History: Monument Objections.
But Rep. Ken Buck (R-CO) scolded the President for making the designation without the consent of Congress. “He is not king. No more acting like King Barrack,” Buck told the Times. “This is not how we do things in the U.S. Actions like this lead the American people to view Mr. Obama’s presidency as an imperial presidency.”
Buck overstates the case. With the passage of the 1906 Antiquities’ Act, Congress granted the President the power, by proclamation, to restrict the use of particular public land owned by the federal government. The Act has been used over a hundred times since its passage. The Act was intended to allow the President to set aside certain valuable public natural areas for: “… the protection of objects of historic and scientific interest.” The Act states areas of the monuments are to be confined to the smallest area compatible with the proper care and management of the objects to be protected.
Keeping Monument Open for Business
A number of previous President’s monument designations have been controversial, in no small part because a monument designation precludes various economic uses of the area designated a monument. Presidential powers under the Act have been reduced twice. The proclamation of Jackson Hole National Monument in 1943 was very unpopular, as a result, the 1950 law incorporating Jackson Hole into an enlarged Grand Teton National Park amended the Antiquities Act, requiring Congressional consent for any future creation or enlargement of National Monuments in Wyoming. After President Jimmy Carter used of the act to create fifty-six million acres of National Monuments in Alaska, Congress enacted he Alaska National Interest Lands Conservation Act requiring Congressional ratification of the use of the Antiquities Act in Alaska for withdrawals of greater than 5,000 acres.
Buck is certainly correct recent monument declarations have been controversial and fought, without success, in court. Beginning with the designation of Utah’s Grand Staircase Escalante as a national monument in 1996, the Clinton and Obama Administrations have used the Antiquities Act of 1906 to create national monuments without the formal approval of state officials or members of the congressional delegation from state where designations were made – not having support of the state’s Congressional declarations was virtually unheard of before President Clinton.
In its eight years in office, the Bush Administration never attempted to overturn the monument designation of federal land in Utah.
Neither the Colorado Cattlemen’s Association (CAA) nor the Public Lands Council (PLC) put much stock in the Administration’s assurances, concerning the continuation of existing uses in Brown Canyon.
The Fowler Tribune (February 22) quotes Tim Canterbury, chair of the Public Lands Council (PLC) saying, “We worked in good-faith with former Senator Udall and others, to find a way to prevent a presidential declaration. We stand by the fact that a presidential declaration is not in the best interest of the agricultural community; and we sincerely hope that the President and his administration have heard our concerns and will ensure that the rule-making process addresses the concerns of landowners and ranchers, allowing ranches that have been in operation for generations to continue.”
” Now, all we can do is ask for a seat at the table, and hope that the voices of ranchers will be heard and respected in the designations implementation process,” said Canterbury.
Among the provisions the CAA and the PLC want written into the rules for the management of Brown canyon are a continuation of motorized access for permit holders for range improvement, water maintenance and stock management; explicit language allowing cattle and sheep producers to trail their livestock to and from their federal grazing allotments through portions of the designated area; the allowance of active weed control; language ensuring any changes in the numbers of authorized livestock are based on facts, not on the whims of land managers; language ensuring permits are transferable to new permittees/owners as was the case prior to designation of the national monument; and language expressly recognizing preexisting water rights as recognized in current federal rules and state laws.
In short, the CAA and the PLC want to prevent the new designation from following the path of some previous monuments by voiding existing rights and contract provisions making it difficult to nearly impossible to continue public resource use such as grazing on the newly declared monument.
Bonner R. Cohen, Ph. D. ([email protected]), is a senior fellow at the National Center for Public Policy Research in Washington, D.C, and H. Sterling Burnett, Ph.D. ([email protected]) is a research fellow in energy and the environment at The Heartland Institute.
A version of this article originally appeared at CFACT.org.