This is the second part of my diary series on the History of the Antiquities Act. Part 1 can be found at the link below
http://www.dailykos.com/...
After the passage of the act in June 1906, President Roosevelt did not wait very long to create his first monument- Devils Tower in Wyoming was set aside in September. It was small- under 1400 acres- and like many monuments to come it was created out of land that had been set aside first as a forest or reserve. Other monuments followed, including El Morro Chaco Canyon and Gila Cliff Dwellings in New Mexico, Cinder Cone, Lassen Volcanic and Muir Woods, in California, and Montezuma Castle, Petrified Forest, and Tonto in Arizona. Of those first 10 monuments, none were larger than 60000 acres, and none encountered great public opposition. that was all to change on January 11, 1908.
The Grand Canyon had been proposed as a national park staring in the early 1880s, but Congress did not pass those early bills. It was set aside as a reserve in early 1893, by President Harrison under the Forest Reserve Act of 1891, which gave the president the power to create forest reserves. Harrison, Grover Cleveland, and William McKinley all used the Act to set aside millions of acres as reserves. but Teddy Roosevelt would outdo them all. Roosevelt first visited the Grand Canyon in 1903, and like so many both before him and after him, was staggered by its beauty. he expanded the area protected in the reserve and re-designated it as a Game Preserve in late 1906. But efforts to develop the canyon were ongoing, including logging and mining claims, and some, including Ralph Cameron, had built private toll roads and were charging visitors to access parts of the canyon. Roosevelt, conservationist that he was, wanted to stop those practices, so he took action by declaring the canyon a national monument.
the initial size of the declaration- 800000 acres- was massive, easily outstripping the prior largest monument(Petrified Forest- 60000 acres), in fact it was several times larger than all previous monuments combined. the outcry was immediate and loud. Cameron, who was elected as a territorial delegate for Arizona in 1908, had several mining claims spread throughout the canyon to support his toll road, filed suit in court. in truth Cameron's mining claims were not valid, indeed they blatantly violated the mining laws then in place. Cameron was unable to stop the monuments creation- once the president declares a monument, the monument goes into effect immediately- but he was able to win election to the Senate in 1920 and went to work feathering his own nest. Professor Joesph Sax described Cameron's conduct in a 1982 article as perhaps the' most scandalous case of a member of Congress using his office to protect private interests' in other words, his own. Cameron was able to block Congress from upgrading the Grand Canyon to a national park, at least initially.
Roosevelt left office in March 1909, one of his final acts as president was to create Mount Olympus national monument in Washington state. the monument, created 2 days before leaving office, covered 640000 acres, and thus was second in size only to the Grand Canyon. Mount Olympus was the first of many ' midnight monuments' to come. like with the Grand Canyon there was a big outcry by developers, unlike with the canyon, they were eventually able to to take a axe to the monument. besides granting the president the power to create monuments, the Antiquities Act also allows the president to modify monuments- to either enlarge them or shrink them. the vast majority of such modifications have been enlargements, however there have been a number of times where Presidents have carved out land from a monument. the biggest example of this is Wilson's action in 1915 to cut out over 300000 acres from Mount Olympus, essentially cutting the monument in half. Wilson acted largely due to pressure from developers and western congressmen. Congress would eventually restore most of those lands when it upgraded Mount Olympus to park status as Olympic National Park in 1938, the park today covers over 900000 acres.
Cameron's case challenging the creation of Grand Canyon wound its way through the courts , eventually reaching the Supreme Court in 1920. by then, however, the Act had been used by both President Taft and President Wilson. Taft created 10 monuments, including Mukuntuweap, which would be renamed Zion by Wilson and upgraded to park status late in 1919 by Congress. Wilson created or modified 17, and broke Roosevelt's record for largest monument when he created Katmai national monument in Alaska in 1918, Katmai covered nearly 1.1 million acres, making it the first monument over a million acres in size. while there was protest in Alaska in both the cases of Katmai and later Glacier Bay, as a territory, Alaska had no representation in Congress and could not protest. Even if it had been a state, it would not have mattered.The Grand Canyon remained a monument until 1919 thanks to opposition to park status from western Congressmen, finally Congress upgraded the canyon to a national park in February 1919.
the Supreme Court heard the Cameron case in January 1920 and reached its decision in April. monuments permit valid mining claims, so long as the claim is valid - ie there is enough mineral discovered to be a profitable mine, and the claim and discovery occurred prior to the monuments designation. Cameron had many claims spread out along the Bright Angel Trail, however, none of those claims were valid, indeed Interior Secretary Garfield had rejected the claims in 1909. Cameron argued that the Antiquities Act was invalid, that there was no authority under which the president could set areas aside. the Supreme Court ruled 9-0 against Cameron, finding that the canyon was an artifact of unusual scientific interest, that Roosevelt had been within his discretion to create the monument, and that the Antiquities Act granted the President the right to set areas aside , provided they were of historic or scientific importance.
this ruling set binding precedent for the courts, and is still binding today. the effect of this ruling was to greatly expand the powers of the President under the act, while wide and broad authority to create monuments was likely not what Congress had intended in passing the Act, the Courts ruling has not been overturned by Congress. this means that Congress accepted the Courts judgement, and is operating under the bounds set by Cameron. 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. It is one of those monuments Jackson Hole, that will come up in part 3 of this series- FDR ,Wyoming and Congressional Overreach.
In short, despite fierce western opposition, the Antiquities Act survived its first major test in court, and indeed was elevated in status to near-Amendment level importance. the ability of presidents to create monuments of any size or scope would not be challenged until 1944, but that is going to be covered in part 3.
there would be other challenges against the Act following Cameron, in 1944, 1978, and 2003, but the Act had passed its first test of legality, and with flying colors - it is relatively rare that the Supreme Court rules 9-0 on a case, whether on merits or otherwise, normally there is one or more dissents from the dissenting justice or justices. In the case of the Antiquities Act, the Court was in full agreement, and it is that agreement that has created binding precedent- to a degree few laws ever are, the Antiquities Act is settled law, and its legality has been upheld for nearly 100 years.
While there are still some that claim the Act is a violation of the Constitution in granting legislative power to the executive, the courts have found the Act is valid as it represents an ' intelligible principle'-that Congress may grant Presidents authority so long as the legislation provides instruction on how to use that authority and place some limits on it. in the Antiquities Act, the limits are: one-' the smallest area compatible with the proper care and management of the objects to be protected' , two- the fact that the lands must be federal- the President cannot declare a state area or private land as a monument, unless the state or private owners donate that land to the government for conservation purposes- three- Presidents cannot unmake monuments once created- that is left to Congress, which has very rarely done so. Further the court have found that the text of the Act is unambiguous- it plainly grants the president the power to set areas aside. regardless of whether Congress intended to grant such wide power or not, that is irrelevant in the courts judgement, by passing the Act, it granted that power, and that power should be countrywide as it was prior to 1950. that power applies not only to land, but marine areas as well, although marine monument are relatively recent and will come up in a later diary.
This concludes part 2 of the series. I look forward to the debate and discussion this diary brings, and the comments readers provide. See you in the Comments!