May 3, 2017
Last week, President Trump signed an executive order requiring a review of the much-abused Antiquities Act. And for good reason. The past two presidents have run wild with the law.
President Obama, most recently, designated more national monuments covering a larger area than any prior president, more than 550 million acres, tripling the nation's total monuments area.
Before the ink on the executive order was dry, outdoor gear company Patagonia threatened to sue the President if he rescinds or shrinks an existing monument designation.
Patagonia's threat shouldn't surprise. Outdoor gear companies like Patagonia receive a huge implicit subsidy through federal land policies, according to Terry Anderson of the free-market Property and Environment Research Center.
The federal government spends millions every year to support recreation on federal lands, without earning much revenue in return. The government doesn't charge backpackers, campers, and hikers the cost of setting aside the lands they use or the cost of maintaining them. Consequently, according to a PERC study, the government returns less than thirty cents for every dollar it spends subsidizing regulation. And it has a $19 billion backlog for deferred maintenance.
Corporations like Patagonia, however, are raking it in. The outdoor recreation industry generates about $120 billion per year in revenues. As more wilderness areas are set aside, more wealthy and healthy people buy more outdoor gear. It's understandable these companies would be committed to setting aside more and more land—doing so increases their subsidy.
But Patagonia's claim that President Trump has no authority to reconsider or redraw the boundaries of existing monuments is flat out wrong. A recent study by Professor John Yoo and Pacific Legal Foundation's Todd Gaziano explains that the president has the same broad discretion to reconsider past monument designations as to create new ones.
Several presidents have significantly reduced the size of established monuments. Shortly after the Antiquities Act was enacted, for instance, President Taft reduced the size of the Navajo National Monument by nearly 90 percent.
The President's review of recent monuments is likely to turn up many questionable designations. The Antiquities Act has become so notorious for abuse the TV show The West Wing built an episode around it. Recent real-world examples do not disappoint.
The Antiquities Act limits monument designations to "lands owned or controlled by the Federal government." Yet presidents Bush and Obama designated huge monuments in the ocean, far from our nation's coasts.
In the last year of his term, President Obama designated a monument as large as the entire state of Connecticut more than one hundred miles off the coast from New England. He expanded a monument surrounding Hawaii to more than twice the size of Texas.
In March, during House Committee on Natural Resources, Rep. Garret Graves, R-La., asked how ocean monuments could be legal when the statute expressly says "lands." Graves is still waiting for an answer.
Pacific Legal Foundation is representing fishing groups from throughout the northeast challenging the monument in the Atlantic Ocean. Our case argues the monument is not only clearly unlawful, but its size undermines sustainable fishing and threatens to undermine conservation.
Although the Antiquities Act requires that land monuments be limited to "the smallest area" possible, monuments are routinely huge. President Trump's call for review was motivated, in part, by strong local opposition to President Obama's designation of 1.35 million acres around Bears Ears National Monument in his last few weeks in office.
The original intent of the Antiquities Act was to protect antiquities and historic structures. When it was enacted in 1906, Congress acted out of reasonable fears of looting Indian ruins on federal lands in the southwest. We've veered far from that intent.
Today, the Antiquities Act is primarily a means for presidents to unilaterally to lock up huge areas, securing their legacies with special interests like environmental groups and the outdoor companies like Patagonia.
Jonathan Wood is an attorney with the Pacific Legal Foundation.