Blog By: Mary jocelyn

Arising from the ashes of years of dueling philosophies[i] and failed legislative attempts to protect the west’s antiquities from treasure hunters, rose the Antiquities Act of 1906.[ii] The Act bestowed on the President the power to proclaim national monuments, but only those objects he deemed significant historical or scientific value for the American people.[iii] After a century of litigation, the Supreme Court has resolved that the Antiquities Act is a proper delegation of Congress’s plenary authority over public lands that appropriately vest limited authority to the President, guided by intelligible principles.[iv] So long as the President (1) declares an “object”; and (2) defines the “smallest area compatible with the proper care and maintenance,” the courts have no reason, or authority, to say otherwise.[v]

Jurisprudence resulting from the first principle’s resolution grants broad discretion to the president, yielding to the President’s construction of an object or set of objects.[vi] However, much remains to determine what is the smallest area compatible and how it should be operationalized.[vii] But a judicial review of proclamations is so narrow that challenges to statutory violations can only consider infirmities within the proclamation’s text.[viii] Recent challenges have failed present these opportunities because they focus solely on the smallest area compatible, ignoring that it is necessarily dependent on the proper care and management.[ix] Arguably, what and how can only be resolved when considering proper care and management.

To determine this, courts should first look precisely at the President’s purpose within the proclamation: preservation or conservation. Applying these purposes would yield drastically different strategies for what constitutes proper care and management and serve as the implicit rules for all objects within the proclamation. After analyzing the plain meaning, a critical delineation between the two purposes becomes clear: conservation invites human interaction while preservation protects from human activity.[x] This is where proper care and management strategies diverge, each with different interface goals for the entire proclamation.

Next, courts must analyze the relationship between the proclamation’s purpose and the reason individual objects are circumscribed within. A unique challenge presents when some individual objects are components of another object, for example, a butte or species within a landscape.[xi] While the subset may have additional goals guided by their reasons, it cannot violate any of the superset’s goals, as this would run afoul of proper care and management and yield infirmities within the proclamation.[xii] Applying this analysis to some of the largest national monuments yields interesting results regarding what conforms to the act's standards.

Turning to the controversial Bears Ears National Monument (BENM), President Biden directs preservation for the “striking landscapes, unique landforms, and rare and important plant and animal species” exceeding one million acres in Utah.[xiii] His intent to return the BENM “far from the degrading touch of man”[xiv] could not be more transparent, supported by phaseout grazing permits and a prohibition on other economic activities such as mining.[xv] Protecting and preserving these objects requires an area that pushes current human activity out and prevents any new activity from encroaching within its boundaries.[xvi]

Running afoul of this very intent, though, are the specific items and their relationship to humankind. Broad landscapes juxtaposed with their subset of individualized objects lying within, make their proper care and management paradoxical to their preservation. By their very nature, preserving the cultural and spiritual sites imposes rules on the subset of objects within the vast landscape.[xvii] They not only invite human activity but require it by the need to use the land in its cultural and spiritual exercise.[xviii] Conforming to the constraints of the Act’s narrow judicial review, the incongruencies between the superset landscape and many of the cultural and spiritual subsets become facially clear.[xix] Accordingly, the BENM proclamation fails to adhere to the standards of the Antiquities Act.[xx]

On the other hand, the Mariana Trench Marine National Monument (MTMNM), nearly fifty times larger than BENM, conforms to the Act’s standards.[xxi] President Bush directed the conservation of almost fifty million submerged acres near Guam.[xxii] Akin to the landscapes of BENM, the Mariana ridge and trench is a broadly defined superset with many individualized objects.[xxiii] But unlike the cultural and spiritual objects in BENM, there are only objects of scientific importance that require no human interaction to manifest their value.[xxiv] In fact, many of the object’s depths actually dissuade it.[xxv] Yet, these individualized goals do not run contrary to the MTMNM’s purpose and interface goals.[xxvi] Therefore, the MTMNM conforms to the Act’s standards.

Assessing these monuments illustrates that it is not the size that matters; it is the size relative to the proper care and management derived from the proclamation’s purpose. As the D.C. Circuit so kindly pointed out, only when the infirmity exists within the proclamation can the court render it exceeding its statutory authority.[xxvii] Until the strategy changes to focus on the relationship of proper care and management to the smallest area compatible, little to no progress can be made to answer the Chief Justice’s what and how.[xxviii]

[i] The movement to protect the natural resources and historical treasures of the Nation was led by two competing philosophies: preservation and conservation. See James Rasband et al., Natural Resources Law and Policy 638-39 (Found. Press, 3rd ed. 2016) (discussing John Muir’s preservationists and Gifford Pinchot’s conservationist movements).

[ii] See generally 54 U.S.C. § 320301 (emphasis added); see also Carol Vincent, National Monuments and the Antiquities Act 4 (Cong. Rsch. Serv. Nov. 28, 2022) (discussing the concerns over theft and destruction); Ronald F. Lee, The Antiquities Act of 1906 47 (1970) (describing the phased legislative history on the Antiquities Act).

[iii] See 54 U.S.C. § 320301(a)-(b).

[iv] See Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1137 (D.C. Cir. 2002).

[v] See Tulare Cnty. v. Bush, 185 F.Supp.2d 18, 25 (D.D.C. 2001).

[vi] See Cameron v. United States, 252 U.S. 450, 455-56 (1920) (expanding historical and scientific objects to include landscapes); see also Cappaert v United States, 426 U.S. 129, 143 (1976) (expanding scientific objects to include ecosystems).

[vii] See Mass. Lobstermen's Ass'n v. Raimondo, 945 F.3d 535 (D.C. Cir. 2019), cert. denied, 141 S. Ct. 979 (2021) (C.J. Roberts’ statement respecting the denial of certiorari discussing how to measure the smallest area compatible and by what standard remain unanswered).

[viii] Mountain States, 306 F.3d at 1137.

[ix] The preposition with creates a dependency relationship between “smallest area compatible” and “proper care and management.” The plain language defines this as (a) used as a function word to indicate a participant in an action, transaction, or arrangement; (b) used as a function word to indicate the object of attention, behavior, or feeling; (c) in the performance, operation, or use of; (d) in the judgment or estimation of. See with, Merriam-Webster Dictionary https://www.merriam-webster.com/dictionary/with (last visited Jan. 12, 2023) [https://perma.cc/4EXE-Y4ZT].

[x] See Preservation, Nat’l Geographic Educ., https://education.nationalgeographic.org/resource/preservation (last visited Jan. 23, 2023) [https://perma.cc/K6EX-S7XT]; see also preservation, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/preservation (last visited Jan. 23, 2023) [https://perma.cc/V5UF-8BL4]; c.f. conservation, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/conservation (last visited Jan. 23, 2023) [https://perma.cc/6HHS-MHGQ].

[xi] See, e.g. Proclamation No. 10285, 86 Fed. Reg. 57321 (Oct. 15, 2012) (expanding the Bears Ears National Monument).

[xii] Set Theory is a branch of mathematics that describes collections of objects and their relationships to each other. Sets are a list of objects, members, or elements that all have the same characteristics. Subsets are derived sets from a parent set, also known as supersets. These have more specific characteristics unique to just the subset. However, they must also contain the original characteristics of their superset. For example, a common set is the Counting Numbers (1, 2, 3, 4, 5…) with a subset being all prime numbers (1, 3, 5, …). See generally Set Theory, Internet Encyclopedia of Phil., https://iep.utm.edu/set-theo/ (last viewed Jan. 24, 2023) [https://perma.cc/3Q48-X2DB].

[xiii] See Proclamation No. 10285, supra note xi.

[xiv] See Lukas Keel, Frenemies John Muir and Gifford Pinchot, Humanities: The Magazine of the National Endowment for the Humanities, (Winter 2020) (describing John Muir’s thoughts for preservation) (last accessed Jan. 23, 2023) https://www.neh.gov/article/frenemies-john-muir-and-gifford-pinchot.

[xv]See Bears Ears Nat’l Monument, supra note xi.

[xvi] Landscape, Nat. Geo., https://education.nationalgeographic.org/resource/landscape/ (last visited Mar. 14, 2023) [https://perma.cc/6TY9-EASV].

[xvii] See Frank Matero, Heritage, Conservation, And Archaeology: An Introduction, Archaeological Inst. of Am. (June 18, 2008), https://www.archaeological.org/heritage-conservation-and-archaeology-an-introduction/ [https://perma.cc/U7ZX-BABU].

[xviii] See id.

[xix] See BEARS EARS NATIONAL MONUMENT MANAGEMENT, Bureau of Land Mgmt., https://www.blm.gov/programs/national-conservation-lands/utah/bears-ears-national-monument (last visited Mar. 14, 2023) [https://perma.cc/3T27-HU24].

[xx] Randy Parker, Monument Review, MS-1530, UT. Farm Bur. Federation, extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.utahfarmbureau.org/ArticleFile/File/DFBF0CE6-E2CC-4B3E-92EA-10E3DA11F05D/Bears%20Ears%201.pdf (last visited Feb. 24, 2023).

[xxi] Proclamation No. 8335, 74 Fed. Reg. 1555 (Establishing the Marianas Trench National Monument).

[xxii] Guam, U.S. Fish & Wildlife Serv., https://www.fws.gov/national-monument/marianas-trench-marine (last visited Jan. 26, 2023) [https://perma.cc/7MZC-LLCY].

[xxiii] George W. Bush, Establishment of the Marinas Trench Marine National Monument, Exec. Off. of the Pres. (Jan. 6, 2009), https://www.federalregister.gov/documents/2009/01/12/E9-496/establishment-of-the-marianas-trench-marine-national-monument [https://perma.cc/X5TK-UDFR].

[xxiv] See id.

[xxv] See id.

[xxvi] See id.

[xxvii] Mountain States, 306 F.3d at 1136.

[xxviii] Mass. Lobstermen's Ass'n v. Raimondo, 141 S. Ct. 979, 980-81 (2021).