A prehistoric granary overlooks Cedar Mesa inside Bears Ears National Monument. A bill from Rep. Rob Bishop, R-Utah, aims to overhaul the federal Antiquities Act, which former President Barack Obama used to designate the new monument in December 2016. [Photo by Josh Ewing / Courtesy of Bears Ears Inter-Tribal Coalition]

A bill that would greatly reduce presidential powers to designate national monuments under the Antiquities Act is garnering criticism from progressives and environmental groups – and applause from conservatives and energy industry representatives.

The National Monument Creation and Protection Act, or H.R. 3990, advanced through the House Natural Resources Committee on Wednesday, Oct. 11, along party lines by a vote of 23-17. The bill is expected to pass the Republican-controlled U.S. House of Representatives.

Authored by committee chairman and Rep. Rob Bishop, R-Utah, the bill seeks to overhaul the 1906 law that gives presidents unilateral power to protect federal lands, and would subject any future designation larger than 640 acres to an environmental review.

A longtime opponent of the Antiquities Act, Bishop, in an op-ed for the Washington Examiner, said that contemporary use of the law poses a threat to constitutional government.

“Presidents have repeatedly flouted the rule of law and usurped the powers of Congress to arbitrarily cordon off millions of acres of land,” Bishop said.

If passed into law, H.R. 3990 would give current presidents the authority to reduce the size of existing monuments, require local approval for monuments over 85,000 acres, and would prohibit designations based on scenic value or natural geographic features.

Bishop said the intent of the Antiquities Act is clear, and that it was meant to protect objects of historic interest, while setting aside the smallest portion of land possible. He said that use of the act over the past 50 years has often amounted to abuse of the law and executive overreach.

“The act is not difficult to understand,” Bishop said. “It is not ambiguous. Any honest reading reveals that it was created to protect ‘landmarks,’ ‘structures,’ and ‘objects’ – not vast swaths of land.”

The last log on Bishop’s fire was former President Barack Obama’s December 2016 designation of the 1.35 million-acre Bears Ears National Monument in nearby San Juan County.

Applauded by conservationists and a coalition of Native American tribes, and reviled by many local residents and members of Utah’s congressional delegation, Bears Ears protects indigenous ancestral homelands that harbor tens of thousands of archaeological sites.

The monument is currently being considered for a large-scale reduction under a review ordered by the Trump administration.

Grand County Council chair Jaylyn Hawks said there is always room to improve processes, but doubts Bishop’s ability and commitment to those ends.

Hawks said she attended a 2015 Western Land Commissioners meeting where Bishop was recorded saying, “If anyone likes the Antiquities Act the way it is written, die. I need stupidity out of the gene pool.”

“Since hearing that public statement, it’s been difficult for me to take Mr. Bishop seriously as someone with enough perspective to write a balanced bill that will both address concerns of opponents of the Antiquities Act while protecting our public treasures,” Hawks said.

Hawks said she understands that there are people who feel the act has been used unfairly, but also grants that there are those who feel it has been used to protect artifacts and history that otherwise would have been lost.

Hawks said she believes the Antiquities Act has a critical place in the state of Utah.

“I am in full support of the Antiquities Act and the opportunities that it creates for areas to be placed under protection,” Hawks said.

Grand County Council member Curtis Wells said he is supportive of Bishop’s legislative efforts to bring the use of the Antiquities Act “back into the reasonable and practical framework that it was designed for.”

“Public land management decisions of the magnitude and scope of the Bears Ears designation should flow through Congress, not the executive branch,” Wells said.  

The Antiquities Act was passed by the U.S. Congress, and signed into law by former President Theodore Roosevelt, on June 8, 1906, in response to looting and desecration of archaeological sites in Chaco Canyon and Mesa Verde, near the Bears Ears region.

Roosevelt’s first use of the designation was to protect the large geographic feature known as Devils Tower in northeast Wyoming in 1906. He used the proclamation again in 1908 to designate what was then Grand Canyon National Monument.

Sixteen presidents from both political parties have invoked the act to designate more than 150 national monuments. Four of Utah’s “Mighty Five” national parks – Arches, Zion, Bryce and Capitol Reef – were all designated first as national monuments.

Grand County Republican Party chair Jeramy Day said he applauds Bishop’s efforts to create a more balanced process.

“The way it is now, it leaves decisions up to only one branch of government,” Day said. “It’s not a balanced approach.”

Day said that the Antiquities Act is counterintuitive to our form of representative government, and that it limits local input.

“With one stroke of a pen, a president can change an entire community overnight,” Day said.

Moab resident and Utah Sierra Club membership chair Marc Thomas said that the “misnamed National Monument Creation and Protection Act” would actually end the creation and protection of national monuments.

“Reducing unimpeded presidential proclamations that create monuments to 1 square mile of public land is laughable,” Thomas said.

Thomas said that under the bill’s criteria, none of Utah’s “Mighty Five” parks would have had qualifying “objects of antiquity,” and that the bill is out of step with the more than 3 million Americans who commented in favor of leaving monuments alone.

“We love our national monuments and parks and visit them by the millions every year,” Thomas said. “Consequently, the provisions in Rep. Bishop’s bill are unacceptable to Americans everywhere, the true owners of America’s public lands.”

Kathleen Sgamma of the Western Energy Alliance said her organization is supportive of Bishop’s bill to get the Antiquities Act back to its original intent of protecting threatened cultural resources.

Sgamma said that although oil and natural gas has not been affected very much by past monument designations, the alliance is concerned that a future “Keep-It-in-the-Ground president” could lock away areas with significant production in areas like the Uintah Basin or the San Juan Basin.

“The Antiquities Act has been abused well beyond that original intent, and has been used for large swaths of lands in a nondemocratic process,” Sgamma said. “Antiquities Act designations are the only major public lands actions that do not require environmental analysis under (the National Environmental Policy Act) and an open, public process. They don’t require input from local and state elected representatives of the people.”

Southern Utah Wilderness Alliance Media Director Mathew Gross said the precedent for setting aside large monuments based on scenic – or natural geographic features – was well established with Grand Canyon National Monument under Theodore Roosevelt in 1908.

“The president clearly has the authority under the Antiquities Act to designate monuments, and very early on the courts affirmed that a larger monument doesn’t mean the president is stepping beyond his legal authority,” Gross said.

Gross said the Bishop bill concedes that President Trump doesn’t have the authority to reduce or rescind a national monument, and that any effort by Trump to reduce Bears Ears or Grand Staircase is currently illegal.

“Rep. Bishop is more interested in ideology than common sense,” Gross said. “Americans love their national parks and monuments, yet Rep. Bishop’s bill would have made it impossible to protect many of the most revered parks and monuments in the United States.”

Law would diminish presidential power to designate national monuments