More on Monuments and the Antiquities Act

What in an “object”?

Greenwire reports on controversy over a ~5,000 square-mile marine monument designated by the Obama admin: “Judge restarts lawsuit over Atlantic monument.”

Pacific Legal Foundation attorney Jonathan Wood: “Fishermen have waited a year for the government to respond to their lawsuit challenging a clear case of Antiquities Act abuse — locking fishermen out of an area of ocean as large as Connecticut.”

The 2016 proclamation states that “it is in the public interest to preserve the marine environment, including the waters and submerged lands, in the area to be known as the Northeast Canyons and Seamounts Marine National Monument, for the care and management of the objects of historic and scientific interest therein;”

Is this monument an “object”?

The proclamation cites the Antiquities Act, which “authorizes 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 Federal Government to be national monuments, and to reserve as a part thereof parcels of land, the limits of which shall be confined to the smallest area compatible with the proper care and management of the objects to be protected;”




10 thoughts on “More on Monuments and the Antiquities Act”

  1. Any chance that “object” as identified in this post is part of a legally defined self-referencing system?

    Here is a snip from a longer, if esoteric reference, just below:
    “…the autonomous system can only refer to itself; the arrow has been bent inwards and created a circular loop of self- creation….”

    … leading to the last notion mentioned previously, that of self-reference. From what has already been said, it becomes clear that any autopoietic system, in order to maintain its autopoiesis (organization), needs some form of closure (distinction) from its environment, thus stating its autonomy from this environment. Closure, autonomy and, in fact, autopoiesis require a production of a boundary through the boundary, that is, presently drawing a distinction with the help of past drawings of a distinction. Only then the system can interact with its environment without loss of identity (Varela, 1981: 15–17). In other words, autonomous, self- producing systems construct their environment (draw a distinction) in order to be and stay themselves. Autonomy as self-rule through closure and self-production (autopoiesis) leads to the insight that ‘the rules of operation are all self-contained, there is no possibility of referring to the outside from inside the system’ (Varela, 1997: 73). That is, the autonomous system can only refer to itself; the arrow has been bent inwards and created a circular loop of self- creation. Luisi (2003: 51) terms the autonomous identity of a closed autopoietic system as ‘auto- referential’, producing its own rules of existence. In such forms of closure, component interactions become fixed-point solutions1 of the autonomous system, where the fixed points are Eigenbehaviors or self-determined behaviors expressing systemic invariances against the environment specified by the system itself (von Foerster, 2003). The system exhibiting such Eigenbehaviors becomes ‘aware’ of itself through cognizing the drawing of the distinction between itself and its environment and the understanding of this distinction as an indication what the system is and what it is not. As Kauffman (1987: 53) puts it, ‘[t]he self appears, and an indication of that self that can be seen as separate from the self. Any dis- tinction involves the self-reference of “the one who distinguishes”. Therefore, self-reference and the idea of distinction are inseparable (hence concep- tually identical).’ So the ‘know it-self’ is crucial for identity construction, for only through this self-knowing the self thus constructed can detect the presence of something foreign, and in fact, itself is the only point of reference for a closed sys- tem (autopoietic system, autonomous system) to build discriminations of what it is not. Through self-reference, a system creates its own teleology and, by doing so, reproduce itself indefinitely (Weber and Varela, 2002: 120). To conclude on self-reference, it has multivalued meanings, appearing (i) as a procedure applied to itself, (ii) a reflexive domain of systemic invariances and (iii) a fixed point of a system’s Eigenbehaviors (Soto-Andrade and Varela, 1984: 18). …

  2. “Objects” of national monuments are found “therein.” They are normally listed in the proclamation. In this case:

    “This area (the canyon and seamount area) includes unique ecological resources that have long been the subject of scientific interest… The canyon and seamount area contains objects of historic and scientific interest that are situated upon lands owned or controlled by the Federal Government. These objects are the canyons and seamounts themselves, and the natural resources and ecosystems in and around them.” The proclamation then goes into greater detail on what comprises these natural resources and ecosystems.

  3. Yes, but I think the authors of the Antiquities Act did not see canyons and seamounts as “objects.” Section 1 of the act shows that they intended the act to apply to “any historic or prehistoric ruin or monument, or any object of antiquity.”

    Webster’s dictionary defines antiquities as:

    a : relics or monuments (such as coins, statues, or buildings) of ancient times
    [as in] a museum of Greek antiquities

    b : matters relating to the life or culture of ancient times
    [as in] the study of Germanic antiquities

    Perhaps Congress could pass a law that specifically gives presidents authority to proclaim and perhaps modify “national monuments” such as Bears Ears or the Northeast Canyons and Seamounts. But as I’ve suggested here before, we already have process for creating reserves of land: the Wilderness Act, for example — of course Congress can act to create National Parks and other designations.

    • I can’t find a Section 1 in the Antiquities Act sites I have visited. There is an introductory paragraph with the words you quote. Maybe that is Section 1. But in Section 2 The Antiquities Act expressly allows for Monument Designation on the basis of things addressed in the introductory wording but also “… other objects of historic or scientific interest …”

      I interpret the Act differently from your interpretation in allowing wide discretion relative to “scientific interest.” Neither of us are attorneys, and neither well schooled in case law in this matter. So we will just have to await other interpretations or case law disclosure.

    • My earlier comment on “self-referencing systems” was meant to imply that legal systems rely on their own definitions, etc. that may or may not square with commonly accepted terminology. A “Webster definition” may or may not hold sway in a court of law or the US Congress, but we need to be very careful in thinking that The Antiquities Act (Some call it the National Monuments Act) will stictly adhere to dictionary definitions, particularly when internal language suggests otherwise.

    • In a case challenging the President’s authority to designate the Grand Canyon as a national monument, the U.S. Supreme Court disagrees with you, Steve:

      “The defendants insist that the monument reserve should be disregarded on the ground that there was no authority for it creation. To this we cannot assent. The act under which the President proceeded empowered him to establish reserves embracing “objects of historic or scientific interest.” The Grand Canyon, as stated in his proclamation, “is an object of unusual scientific interest.” It is the greatest eroded canyon in the United States, if not in the world, is over a mile in depth, has attracted wide attention among explorers and scientists, affords an unexampled field for geologic study, is regarded as one of the great natural wonders, and annually draws to its borders thousands of visitors.

      Cameron v. United States, 252 U.S. 450

  4. Good feedback, Andy and Dave. I’m aware that several court cases have found “national monuments” to be withing the scope of the Antiquities Act. However, I maintain that creating “national monuments” as we know them today was not Congress’s intent Antiquities Act, and vague language has allowed presidents to violate the spirit of the act.

    What’s more, given that latitude, what’s to stop a president from designating a federal roadless area, for example, as a monument, with a management plan drawn up by the Forest Service calling for aggressive thinning and road building to protect and maintain the “objects” within it? Presidents Clinton and Obama did the opposite via presidential proclamation with the Cascade–Siskiyou National Monument, where active management is greatly restricted. Obama’s proclamation goes so far as to override the O&C Act. It will be interesting to see how the courts deal with that.

  5. Thanks for the helpful court cases. But we (regular people) can still disagree with the case law and even the Supremes. (e.g., Citizens United?). I know I disagree with case law and regulations implementing NFMA. Circuits can disagree with each other and the Supremes decide not to take on the case (are they both right, then?)… Courts are a part of the system, but not the system. “Separation of powers” and all that.

    • Dave – the term “object” used in the Antiquities Act would probably be called a “term of art” in the legal profession, which is itself a term of art: “a word or phrase that has a precise, specialized meaning within a particular field or profession.”

      Steve – I would say the same is true of “antiquities” as used in the Antiquities Act, because it doesn’t mean what the dictionary definition would mean. It has been redefined more broadly in the Act to include objects of “scientific interest.”

      On the other hand, the objects of national monuments must be “protected.” I don’t think that is a term of art, so designating a monument for the purpose of logging would be a stretch (even to protect it from fires, unless maybe the effect of fires would be permanent destruction of the “object” being protected). At best the FS would be faced with the same issues it has now unless it is also exempted from public land laws and NEPA.


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