This is the third part of my series on the history of the Antiquities Act. parts 1 and 2 are linked below
part 1
http://www.dailykos.com/...
part 2
http://www.dailykos.com/...
This diary will focus on the period from 1920-1976 and will take us up to the Carter Administration. Its use of the Act will be covered in part 4- Carter, Alaska, and the War over the Antiquities Act.
After the Supreme Court upheld the Act in Cameron vs US, the presidents basically had a blank check to go to the Antiquities Act well as often as the president wished. from 1920-45, presidents created many more monuments: Harding created 8, including Bryce Canyon,Coolidge 13, including the Statue of Liberty, Hoover 9, including Death Valley, FDR created 11, and expanded a further 17. Congress has the ability to overturn Court rulings by either congressional legislation, or constitutional amendment, but Congress has not acted to overturn Cameron, and a Constitutional amendment banning new national monuments would never get anywhere close to the 2-3rds support in either house of Congress , to say nothing of the 38 states needed to put it into effect, or public or presidential support. an amendment that in essence codified the Act permanently into the Constitution, however, would very likely gain the support needed to become part of the Constitution.
Over the course of the 1920s, the presidents made liberal use of the Act, and not just its ability to create new monuments, but expand existing ones as well. Harding added to both Muir Woods and Pinnacles in California, Coolidge added onto pinnacles, as well as Aztec Ruins and Chaco Canyon in New Mexico, and Hoover, added on to Pinnacles, Aztec Ruins and Petrified Forest in Arizona. Coolidge was the first to conserve the Statue of Liberty, which was originally called Fort Wood, as well as set aside Glacier Bay.
But Congress, beginning in 1930, began to unmake some of these monuments, which is one of the few checks on the Presidents power under the act- the president may create new monuments, and grow or shrink existing ones, but the president may not unmake them, only Congress can do that. Papago Saguaro in Arizona, which had been created as a monument in 1914 by Wilson, was abolished in 1930 by Congress because many in Congress did not consider the area as worthy of monument status, andthe land of the former monument was divided between Arizona, the city of Tempe and a entity then known as the Water Users Association (now the Salt River project). it is today a city park divided between Phoenix and Tempe and covering nearly 1500 acres. Other abolishments would follow in the coming decades, Lewis and Clark NM in Montana in 1937 (it became Montana's first state park, today its called Lewis and Clark Caverns State park and covers about 3000 acres), Patrick Henry in Virginia in 1944, Father Millet Cross in New York in 1949, Holy Cross and Wheeler NMs in Colorado in 1950, Shoshone Caverns in Wyoming in 1954, Old Kasaan in Alaska in 1955, and Castle Pinckney (South Carolina), Fossil Cycad (South Dakota) and Verendyre (North Dakota) in 1956. in the vast majority of these cases, the monuments were small, remote, and either poorly cared for (the cycads in Fossil Cycad were all stolen by visitors , vandals, or colleges, requiring the now obsolete monument be unmade) or simply could not draw the visitation necessary to keep their monument status.
the number of unmade monuments however is very small compared to the number created by the presidents over this time period-30 up to 1933, 41 if FDR's are included. prior to 1933, most monuments were managed by the Park Service or Forest Service, with the War Department managing 9 monuments from 1910-25. Generally having monuments spread between 3 agencies did not prove to be very workable, and there was considerable infighting between the two Service agencies, as many within the Forest Service saw an effort by the Park Service to gain control of all forest service monuments. FDR actually proposed merging the 2 agencies in the late 30s to create a new Conservation department, but Congress did not approve the change, nor did it make FDR's Civilian Conservation Corp permanent despite its widespread (at or near 80%) approval by the public. in 1933 FDR transferred the War Department monuments to the park service and included military parks like Gettysburg and Vicksburg into the park system. The Antiquities Act does not require monuments be managed by a specific agency, and Carters designation of a couple Alaska monuments as Fish and Wildlife monuments would stir controversy, but that will be covered in part 4.
Congress originally considered putting all monuments into the Park Service when it created the Park Service in 1916, but the final draft of the Organic act simply gave jurisdiction over the monuments that were in the Interior Department at the time, and not those in the Forest Service or War Department. President Hoover asked the Attorney General in 1929 whether he had the executive authority to transfer management of monuments in the war and Agriculture department to the park Service. the Attorney General reported that in his opinion, Hoover lacked the authority because in the Antiquities Act, Congress had intended monuments be managed by the agency who had managed the lands prior to monument status, and at the time monuments were managed by 3 different agencies. Hoover, however ignored the attorney general opinion and transferred Arches NM(which he created in 1929) from the General Land Office (now BLM) to the Park Service, and he moved Bandolier monument in 1932 from the Forest Service to the Park service. Congress granted the president the authority to move monuments from one department to another in 1933, and FDR used that authority to move all War department areas into the Park Service. this executive order - number 6, 166- was protested fiercely by the Forest Service which saw 15 of its monuments moved into the Park Service. there is some question about the scope of EO 6166, whether it applies to all monuments both pre- and post-1933, or simply those in existence at the time. presidents since FDR have used the EO to move monuments into the Park Service from other agencies. there would be inter-agency agreements between Agriculture and Interior in the 70s and an Office of legal Counsel opinion in 1980 to clarify the EO, but for the moment, the monuments remained in the park Service.
FDR would continue to create and expand monuments over his tenure, but it would prove to be one in Wyoming, that would result in the second major court case involving the Antiquities Act, and an overreach by Congress. John D Rockefeller JR, son of billionaire and Robber baron John D Rockefeller, had donated large tracts of land to the government to create parks like Acadia in Maine, and was secretly buying up land in Wyoming to create a new park. Wyoming, then as now, is extremely suspicious of federal action, given that 42% of the state is owned the feds. part oif the outcry after Jackson holes creation in 1943 was because of Rockefeller's secrecy, it is likely some landowners in the area would not have sold to him if they had known he was intending to create a park with the land. Rockefeller had started buying land in Wyoming in 1927 at the request of park Service Director Stephen Mather, and the extent of Rockefeller's lands was 32117 acres out of a monument covering 221610 acres. or just under 14.5% of the land. in addition the monument contained 17000 acres of private lands, called inholdings. FDRs declaration only happened after Rockefeller wrote to him stating that he would dispose of the land by the end of 1943 if the government did not accept the land. Congress had refused several times to incorporate the lands in an expansion of Grand Teton, which had been created in 1929 but which had not initially included the valley of Jackson Hole, much of which was included in the monument FDR designated in 1943.
the outcry in Wyoming after the monument was declared was loud and furious, and Wyoming Rep Frank Barrett quickly introduced legislation to repeal the monumentt, and senator Joseph O'Mahoney considered it ' a violation of the sovereign rights of Wyoming', and violation of the prerogative of Congress. the anti-federal sentiment in the testimony by Wyoming Representatives and Senators was blatant and visceral, declaring the monument to be ' a Pearl Harbor- like blow". Such rhetoric was ridiculous, as declaration of a monument is absolutely nothing like an act of war, and by that time in 1943, monuments had been created across the country, including a number in Wyoming, for 37 years, the right to crate monuments as a presidential prerogative was by then long established. Congress ended up voting to abolish Jackson Hole, and not surprisingly FDR vetoed it by pocket veto, and Congress was unable to override the veto. Wyoming sued in federal court and challenged the monuments creation. the case Wyoming vs Franke, was heard in the federal district for Wyoming in February 1945. Wyoming challenged that FDR had exceeded his authority under the act and that the area of the monument contained no objects of scientific or historical importance.
the court found in favor of the government and upheld the monument, reasoning it had only limited review of monument creation, as the president, being the recipient of delegated authority by Congress, was the sole judge of how to carry out his duties under the law, and the dispute was an argument between the legislature and president which the court had no right to intervene in. The court did propose a scenario where a monument creation would not be valid - such as a area of bare sagebrush with no history of having anything of historic or scientific value within the area, which would, upon creation as a monument, violate the act as it would be an arbitrary and capricious move ie fickle and subject to change. the ruling for the government in Franke further solidified the presidents powers under the act, as the courts interpretation held that courts only had very limited review and unless the president set aside an area without obvious historic or scientific importance, the courts would uphold any monuments in deference to the president.
Congress reacted to FDRs pocket veto by refusing to fund the monument. defunding a monument to show disapproval is relatively rare, as most times Congress will grumble about a monuments creation, but in the end will give out enough money so the monument can be effectively run. eventually Congress voted to expand Grand Teton in 1950 and put most of Jackson Hole into it. There was a catch however, and president Truman made in a mistake in signing off on the expansion. the catch was that no new monuments could be created in Wyoming without Congressional ok, and given how conservative Wyoming is, and how rarely Congress creates monuments on its own, the restriction is a de facto ban on monument creation. the ban , in my view, should have been vetoed by Truman and Congress told to re-pass the bill without the ban, as the presidents prerogative of monument creation trumps any states opposition to it. if a state does not like that a monument has been created in its borders, it can push for the monument to be defunded or abolished, as Wyoming did in 1944. But no state,or any part of it, should be exempt from the Antiquities Act, or be permitted to impose limits on the number of monuments within their borders or the size of monuments. the Act needs to apply to all parts of the country, as it did prior to 1950. Clifford Hansen, who had been Teton County Commissioner during the Jackson Hole controversy and was later a Senator for Wyoming, admitted that he had been wrong, that his concerns had not come to pass and Alan Simpson, another senator for Wyoming who had opposed the monument at the time, admitted that the monument and expanding the park was a great move in hindsight, and that he would have supported the monument if he had known it would have the economic impact it has had.
After the strurm und drang with Wyoming, monument creation by presidents slowed to a crawl. Truman created just 1 new monument Effigy Mounds in Iowa, and expanded a few others, including Muir woods, sitka (Alaska) and Death Valley. Eisenhower added 2- Edison Lab in New jersey and the Chesapeake and Ohio Canal which stretches into a number of states including west Virginia , Maryland as well as D.C. the monument, created as a midnight monument at the end of Eisenhower's terms, drew backlash from Congress and Colorado Rep Wayne Aspinall, who chaired the Interior Committee in the House, blocked the C&O Canal monument from getting any funding for 10 years, until 1971 when Congress relented and granted funding to the monument and renaming it to an historic park. Kennedy created 2- Russell cave in Alabama (its still Alabamas only national monument today) and Buck Island Reef in the Virgin Islands, the first monument to be created outside the Continental US. Johnson ceated just one, mrable Canyon in Arizona, which was later absorbed into Grand Canyon NP.
Nixon despite creating the Environmental protection agency and proposing 1 new national park area for each state- or 50 in all- to coincide with the country's 200th birthday in 1976, became the first president not to use the Antiquities Act during his time in office. Ford expanded Cabrillo NM in California and Buck Reef in the Virgins Islands. in the period from 1950-76 most of the conservation action was in Congress, who passed the Wilderness Act in 1964, and filled in the gaps in monument creation in the Nixon and Ford years by creating monuments via legislation. yet a major threat arose to the Antiquities Act during this period as well.In 1970 The Public Land Law Review Commission made a series of proposals to repeal many executive branch land withdrawal authorities dating from the late 19th and early 20th centuries, and among the recommendations, Recommendation 8 was to repeal the Antiquities Act in its entirety. the resulting law, the Federal Land Policy And Management Act, did repeal nearly all executive withdrawal authority as recommended by the commission, EXCEPT for the Antiquities act. why Congress did not repeal the Act is unknown,. but it is very likely any attempt to repeal the act would have been vetoed by the President. the president is not bound by FLPMA or the NEPA, because he is not an agency, but has his own set of powers that are separate from Congress and thus fall into the separation of powers.
By 1978, the Act had survived more than 70 years, including a number of court challenges and a serious attempt at repeal. But the largest use of the Act was yet to come, in the far north, which would revive echoes of the fight in Wyoming and result in the third major challenge to executive Authority under the Act. Whether Carter was right to act as he did, or whether he did not go far enough, will be discussed in part 4.
This concludes part 3 of the series. I look forward to the input and debate in the comments, and look forward to the input from the readers. See You in the Comments!