On Tuesday, the Washington Examiner ran an op-ed penned by Chairman of the House Natural Resources Committee Rob Bishop (R-Utah) where he argued there is no greater threat to the checks and balance system of federal government “than the repeated abuse of the Antiquities Act in the designation of national monuments.” The Antiquities Act (Act) was signed into law by Theodore Roosevelt in 1906, and gives the executive branch the authority to create national monuments from federal lands by Presidential proclamation.
The Act is the subject of frequent controversy, and constitutionalists have long argued it is an egregious abuse of Presidential power. This issue came to a head in December 2016 with President Obama’s decision to designate the Bears Ears mesas in Utah a national monument. The move was heavily criticized at the time by President-Elect Donald Trump and state officials, including Gary Herbert, Governor of Utah. In response to the Bears Ears designation, President Trump directed Secretary of the Interior Ryan Zinke to review the size and scope of national monuments larger than 100,000 acres created under the Obama and Clinton Administrations, seeking recommendations for monuments that should be scaled back by Congress.
On Wednesday, the House Natural Resources Committee voted 23-17 to advance H.R. 3990, legislation that would limit the authority granted by the Act. H.R. 3990, the National Monument Creation and Protection Act, was introduced on October 6, 2017 by Chairman Bishop, and would limit unilateral monument designations by the President to 640 acres, require designations between 640 to 10,000 acres to be reviewed by the National Environmental Policy Act (NEPA), and designations between 10,000 and 85,000 acres would require approval from all county commissioners, state legislatures, and governors representing the affected areas. In addition to the support of Chairman Bishop, the bill enjoys five co-sponsors, including Representative Tom McClintock (R-Elk Grove) and Representative Doug LaMalfa (R-Richvale).
In addition, The Improved National Monument Designation Process Act (S. 33) was introduced in January 2017 by Senator Lisa Murkowski (R-Alaska) and 27 additional Republican senators, but has shown no movement in the Senate Energy and Natural Resources Committee. S. 33 would require an Act of Congress, approval by affected state legislatures, and a certification of compliance with NEPA before public land may be declared a national monument. A bill introduced in the Senate by Sen. Mike Lee (R-Utah), the National Monument Designation Transparency and Accountability Act of 2017 (S. 132), would amend Title 54 of the United States Code to provide for Congressional and State approval of national monuments. In addition, there are two alternative bills in the House which would reform the Act by amending Title 54. The MAST Act (H.R. 1489), introduced by Representative Don Young (R-Alaska) and the National Monument Designation Transparency and Accountability Act (H.R. 2284) introduced by Representative Raul Labrador (R-Idaho). Neither bill has received much support or movement in the House.