Meet America's—and a flyfisher's—best conservation weapon
Last Friday the Utah State Senate joined the House to approve a resolution asking President Trump to abolish the Bears Ears National Monument. In December, former president Obama used the Antiquities Act to convey protected status on 1.35 million acres in southeastern Utah, a move that prompted fierce opposition and backlash from local republican lawmakers.
While the Bears Ears area isn’t exactly an epicenter for angling, its status does affect some fisheries. Dustin Carlson, a local angler and former owner of the online retailer Fishwest claims that protecting the area could have significant impact on the long-term health of part of the San Juan River and Lake Powell.
Looking more broadly, however, three National Monuments were created since 2013 that protect productive fisheries: the San Juan Islands National Monument in Washington, Brown’s Canyon National Monument in Colorado, and the Katahdin Woods and Waters National Monument in Maine. The outcome of upcoming legislative battles could, potentially, have implications for those areas, particularly in Maine where, like in Utah, the designation was enacted amid significant local opposition.
The bigger picture though, is that we’re seeing attempts to undermine previously established federal land protections. Most of us expect expanded development on public lands in the coming months and years, but the prospect of attempting to undo previous legislation in this manner is unprecedented.
The most troubling figure in this story isn’t Trump (for once); it’s Rob Bishop. Bishop is the U.S. Representative for Utah’s 1st congressional district and chairman of the House Committee on Natural Resources. If his name sounds familiar, that’s probably because Bishop has been one of the loudest, and most powerful, voices calling for transfer of federally controlled public lands. He’s also publicly calling for Trump to undo Bears Ears, and, even more unnerving, lobbying for a constitutional amendment abolishing the Antiquities Act. In fact, Bishop has said, “If anyone here likes the antiquities act the way it is written, die. It is the most-evil act ever invented.” If he’s successful, presidents will no longer have the ability to create National Monuments, perhaps the most important tool in the story of American conservation.
In 1906, under the presidency of Theodore Roosevelt, congress passed the Antiquities Act in response to rampant looting of cultural sites in the American Southwest. Its original intent was to authorize the president, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible proper care and management of the objects to be protected.
Every president that followed Teddy (with the exceptions of Nixon, Reagan, and H.W. Bush) has created new National Monuments. The Act gave unilateral power to the executive office for situations where expediency was essential to preserving sensitive areas with historic or scientific importance. Wilderness or National Park status requires congressional approval, a process that moves slowly even without partisan gridlock. Many of the most iconic National Parks began as Monuments before congress later decided to grant them more significant status–The Grand Canyon, Arches, and Grand Teton, to name a few. The last president to have one of his monuments upgraded, however, was Jimmy Carter. Though other monuments have been given National Park status since then, not a single piece of land that has been designated as a monument since 1978 has gone on to become a National Park.
Over the course of his presidency, Obama employed the Antiquities Act 29 times, more than any previous president, to create National Monuments. The wisdom of that liberal use of the act can be debated, but under his watch congress approved exactly one National Park (Pinnacles, in California in 2013). In 2009 congress voted to create 56 wilderness areas. Since then, there have been a total of 11 new wilderness designations, and not a single one since August 7, 2015. That wilderness, in the Boulder-White Cloud Mountains of Idaho, only worked through gridlock because the White House was threatening to designate it as a National Monument.
Congressional appetite for conserving wild places has clearly shrunk in the past eight years. If any president hopes to successfully set aside land in the current or foreseeable future political climate, The Antiquities Act is his (or her) only tool.
The State of Utah and Representative Bishop have their work cut out for them. According to a 2016 report by the Congressional Research Service, “The Antiquities Act does not expressly authorize a president to abolish a national monument established by an earlier presidential proclamation, and no president has done so.” A 1938 opinion by the US Attorney General supports this position. According to a different Congressional Research Service report, “Numerous Presidents have modified previously created monuments.” So by current legal precedent, Trump can shrink monuments, but he can’t get rid of them. This precedent has never been challenged in court, however, so it’s possible that the new administration could try and change it through judicial review.
The Antiquities Act has changed over the past 110 years in the wake of previous contentious designations. After Franklin Roosevelt created Grand Teton National Monument in 1943 (now the majority of the National Park), congressional anger was so fierce that they successfully changed the Act so that no other monuments could be created in Wyoming without congressional approval. A similar resolution passed in the late 70s after President Carter created numerous, massive monuments in Alaska. Congress also does have the power to abolish National Monuments, though that’s only happened twice and not since 1956.
In short, the Antiquities Act is an incredibly powerful and important tool for conservation. For the moment it remains strong, but the rumblings in Utah may signal a looming threat. The primary power of that threat does not reside in the tiny hands of our Commander in Chief, at least not yet. This fight will most likely play out in the House of Representatives, and we should all be on the look out for any legislation that seeks to modify or abolish the Antiquities Act.
Normally a state resolution like the one passed last week in Utah, that is more symbolic than substantive, wouldn’t generate much national attention. But on Wednesday, Patagonia Inc. pulled out of the Outdoor Retailer trade show in Salt Lake City, in protest of the resolution. In a public statement, the company called on others in the industry to boycott the show as well and threatened not to return to Utah unless the state changes its stance toward land conservation.