This is the fourth part of my series on the history of the Antiquities Act. Parts 1, 2 and 3 are linked below
part 1
http://www.dailykos.com/...
part 2
http://www.dailykos.com/...
part 3
http://www.dailykos.com/...
By 1976, the Antiquities Act had been in place for 70 years. several court cases had not only upheld its legality, but expanded its scope and extended the powers of the president under the act to the point where it ranks as the second-strongest power of the office. Congress had struck back at use of the Act by imposing limits in Wyoming in 1950 as part of its creation of Grand Teton national park, a move that flew in the face of the federal court ruling in Wyoming vs Franke 5 years prior. from 1950-76 there were only a handful of monuments added , and Congress abolished a number of monuments in the early to mid-1950s. Nixon became the first president not to use the Act, and President Ford only used the Act twice to expand existing monuments. But it was the battle over the incredible expanse of Alaska, and Carters decision to revive the Antiquities Act by using it to set a large chunk of the state aside, that would bring the Act back into public conscience and set off a huge fight over the Act
Alaska is the nations largest state at over 665000 miles in area. 69% of the state is federally owned, second in percentage only to Nevada (84%). however, prior to Carter, only a couple areas- Glacier Bay, Katmai, and the park then known as Mount McKinley- had been set aside as monuments or parks. Eisenhower had set aside a large area in the Arctic as the Arctic Wildlife refuge in 1960, but a refuge is not a monument. In addition Alaska has two national forests, the 5.4M acre Chugach national Forest and the 16.8M acre Tongass National Forest, both created by President Theodore Roosevelt in 1907. but a forest is not a monument, even though Forests can contain monuments within them. there had been attempts under the Johnson Administration by Interior Secretary Stewart Udall to conserve other areas in Alaska. Udall had proposed Johnson create 17 monuments, including a Mount McKinley National monument, adjoining the existing national park that would have covered 2.2 million acres, and Gates of the Arctic which would have covered 4.1 million acres. Johnson refused to create those monuments, and it wasnt until in the mid-70s, that those areas, and others, would be brought back for consideration as possible protected areas.
in 1971 Congress passed the Alaska Native Claims Settlement Act or ANSCA, which granted the Alaska Native peoples the right to 44 million acres of federal land. the Act also gave the Secretary of the Interior nine months to withdraw as much as 80 million acres of public lands for inclusion in the Parks forests and refuge systems, and Secretary Morton ended up proposing in 1973 that 83.5M acres be included in those systems.Congress thus had 5 years from the date of the Secretary's recommendation, December 17, 1973, to pass legislation regarding those lands. this meant Congress had until December 17, 1978 to act. Congress however failed to pass legislation setting the areas aside, and it was obvious by November 1978 that Congress would not pass the legislation by the deadline of December 17th. So the Carter administration took several actions. first Secretary Andrus withdrew 105 million acres for 3 years under the terms of the 1976 Federal Land Policy and management Act (FLPMA) and the Agriculture secretary withdrew 11 million for a 2 year period under the same act. Finally on December 1st, Carter invoked the Antiquities Act, and created 17 monuments, covering 56 million acres. the sheer number of monuments (17) and combined size of them ( 56 million acres) drew enormous outcry from Alaska and its residents. the residents hung Carter in effigy and staged several acts of civil disobedience in the new monuments. Alaska sued in court as did the Anaconda Copper Company. The state claimed in Alaska vs Carter that Carter was subject to the requirement under NEPA to issue an environmental impact statement for each of the monuments. the Anaconda Copper company went further, claiming Carters monuments had exceeded the scope of the Act in creating such large monuments in both size (all but 2 were over 1 million acres, Wrangell St Elias was almost ELEVEN million acres in size) and number. in both cases, the courts ruled in Carters favor, in Alaska vs Carter , finding that the President was not subject to NEPAs requirements, as those requirements apply to federal agencies, but not the President, who has a unique standing within the government, as the head of the executive branch, and in Anaconda Copper Company vs Andrus finding that the president had been within his discretion to create them, as monuments number and size are part of the presidents discretion, and that Carter had provided sufficient reasons in his proclamations to uphold the monuments.
Carter in truth could have, and likely should have, gone further than he did in setting areas aside in Alaska. he threatened after 1978 to create more monuments in the state unless Congress acted, but did not act on his threat.despite the many monuments he did create, both Bristol Bay, which contains the worlds largest salmon fishery, and ANWR, the refuge created by Eisenhower, were not included among the monuments. Congress' reaction to Carters proclamations in passing the Alaska National Interests Lands Conservation Act (ANILCA) in 1980, has made creating monuments in Alaska much harder. While ANILCA accepted the monuments Carter created, in converting many of them to national parks or preserves or wildlife refuges, section 1326 of ANILCA imposed a 5000 acre limit on new monuments, and that limit precludes making large land monuments, although areas created prior to 1980 and monuments which consist solely of marine areas would appear to be exempt from the 5000 acre limit. like in Wyoming, Congress overreached in imposing this new limit, as Alaska still has several areas worthy of monument status, that wont receive the designation from Congress any time soon, and the proper conservation of those areas will require monuments be millions of acres in size at minimum. The courts had specifically upheld presidential authority to create monuments in both those cases, and it is quite likely that a court case involving a Alaskan land monument bigger than 5000 acres would result in the monument being upheld and in so doing, overturning section 1326s limit. overturning section 1326 of ANILCA, either by Congress repealing it or by the courts striking it down in a court case, and thus restoring full presidential authority in Alaska, would almost certainly result in Bristol Bay and ANWR gaining monument status and becoming the nations largest land monuments - Bristol Bays watershed alone is 40000 sq miles, 10000 sq miles bigger than ANWR, and ANWR's 19.3 million acres are more than 6 million more acres than Wrangell St Elias National Park the current largest protected land area in the country.
the outcry over Carters use of the Act led to another stretch afterwards where few monuments were made, in fact both Reagan and Bush 41 did not use the Act at all, the six monuments created between 1980 and 1996 were all made by Congress, - Mount St Helens in 1982, El Maipais in 1987, Poverty Point and Hagerman Fossil Beds in 1988 and Petroglyph and Newberry in 1990. only one monument has been made in Alaska since 1980, the portions of the battlefields involved in the 1942 Japanese invasion of the Aleutians were set aside in 2008 as part of the World War II Valor in the Pacific monument by Bush 43 which included areas in Hawaii and California as well. It would not be until President Clinton acted in 1996 that another presidential monument would be created and that will be covered in part 5- Clinton Utah and the Supreme Court.
Carters use of the Act had many detractors in the state and there have been several attempts by Representative Don Young and Senator Murkowski to exempt the state from the Act entirely over the years since. none of these attempts have succeeded,fortunately, and indeed, Congress should be barred from exempting states, in whole or part, from the Act or imposing size limits. Congress already has all the authority it needs, it can abolish monuments it does not approve of, or withhold funding from monuments it does not like, those means are more than enough. what Congress should do is pass legislation recognizing the Act as permanent, the Presidents powers under the act to create monuments as permanent and as applying to all federal lands and waters within the United States and to increase the penalties for vandalizing federal property under the act to say 100000 dollars per violation. Congress should also create a 30 day review period after the president acts, so that the boundaries and status of the monuments get reviewed by the legislature. Congress is limited to review of the monuments involved in the proclamation , and if Congress fails to act within the 30 day timeframe, the boundaries and status set by the President in his proclamation become the default setting. its basically a put up or shut up provision , and most likely Congress will uphold the monuments, most of the time.
This concludes Part 4 of the series. The next part of the history of the Act will focus on Clinton and leading up to Presidents Bush and Obama with the 6th and final part focusing on Obama and the future of the Act. As Always, I look forward to input , feedback and comments. See You in the Comments!