Roberts Invites Antiquities Act Cases

Excerpt from a Greenwire article today:

Chief Justice John Roberts this week openly urged opponents of sprawling national monuments to continue their legal fight, suggesting the Supreme Court may be eager to take a fresh look at precedent it first set a century ago.

The Supreme Court declined on Monday to weigh in on whether President Obama exceeded his authority under the Antiquities Act when he created a marine national monument in the Atlantic Ocean (Greenwire, March 22).

But in a four-page statement, Roberts questioned how presidents have implemented the law and suggested other cases that might be better suited to Supreme Court intervention.

In his statement, Roberts wondered whether presidents have abused the 1906 law by ignoring a provision requiring that monuments be “limited to the smallest area compatible with the care and management of the objects to be protected.”

“Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint,” Roberts wrote. “A statute permitting the President in his sole discretion to designate as monuments ‘land-marks,’ ‘structures,’ AND ‘objects’ — along with the smallest area of land compatible with their management — has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.”

27 thoughts on “Roberts Invites Antiquities Act Cases”

  1. Yup! Cows, oil & gas, condominiums and 2×4’s are definitely much more important than protecting cultural resources, clean air, high quality drinking water or anything else!
    Such folly but Roberts of course is a GOP appointee! Did he ever work with James Watt?

    • Aren’t judges supposed to interpret the law? That leaves the Congress to make things clearer if they think the Courts misinterpreted. And what federal land are condos built on?

    • I take it that you read the Chief Justice’s statement and are resting your conclusion on an informed basis.

      Or perhaps you didn’t read it and instead picked up a talking point from Twitter?

  2. This sounds like an activist judge who has a strong opinion about something that he knows less about than our elected officials.

    • Did you read the Chief Justice’s statement?

      If you did, you will have seen that he knows quite a bit about the history of the Antiquities Act.

      If you didn’t, then on what do you base your opinion that the Chief Justice is uninformed?

      • We discussed the Antiquities Act in 2018:

        Here’s something I wrote back then. IMHO, presidents have gone far beyond the original intent of the law.

        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.

        • Thanks for posting that. That is also the essence of the Chief Justice’s statement. I gather that the critics in this thread didn’t read it before offering uninformed opinions.

        • I was referring to the facts of whatever designation is at issue, where courts are supposed to defer to the administrative branch of government’s expertise, and I said “less informed” not “uninformed.”

          • Okay, now I better understand your original point. Thank you.

            Although federal agencies are better placed than are courts to understand the protection needs and historical value of, for example, Anasazi ruins, the question that Chief Justice Roberts raises is whether the Antiquities Act permits one person—the president—to designate any federal territory as a national monument, no matter how tenuous its connection to any antiquities, as Congress would have understood the meaning of the word antiquity in 1906, assuming that antiquity is the operative term in the Antiquities Act of 1906.

            This matter raises what appellate courts call a mixed question of law and fact. Making the legal part of the determination is what the Supreme Court exists for. But with regard to the factual part, yes, it might remand the case for further proceedings in the federal district court, and that court would undoubtedly receive fact-based evidence, including an administrative record, in deciding whether this structure or that rock painting is an antiquity. But it might be forbidden, by virtue of a higher court’s decision, to decide whether thousands of square miles of ocean floor is an antiquity.

            So, though your original post confuses Justice Roberts’s review of relevant law with an assertion that he wants to decide something about, for example, a ruin at Hovenweep National Monument, you are not wholly incorrect.

            • We can talk about what “antiquities” means, but here is the statutory language at issue:

              The President may also reserve “parcels of land as a part of the national monuments,” but those parcels must “be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

              I don’t see how a court is going to second-guess the “proper care and management of the objects to be protected.” “Proper” seems to be entirely at the discretion of the President.

              More to Roberts’ point, he said, “And while we have suggested that an “ecosystem” and “submerged lands” can, under some circumstances, be protected under the Act, see Alaska v. United States, 545 U. S. 75, 103 (2005), we have not explained how the Act’s corresponding “smallest area compatible” limitation interacts with the protection of such an imprecisely demarcated concept as an ecosystem.”

              I don’t think a court should have the job of making the substantive decision about what is “proper” protection for an ecosystem. (I’m sure Sharon agrees.) Nor should it interpret the law to categorically forbid any particular size of designation.

              • Jon, in many cases courts have second-guessed agency discretion. I can’t remember all the reasons they thought it was OK to do that. Maybe we should start a list?

                • But keep in mind: the Antiquities Act doesn’t apply to agencies – it applies to POTUS. This is not a situation where a court can second guess agency discretion, because an agency isn’t involved. Instead, the AA vests the president “in his discretion” to designate monuments. The courts have nearly unanimously held that that discretion is almost unlimited, provided that there are “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” at issue (which can be all kinds of things, including seamounts and native biodiversity), and that the monument is “confined to the smallest area compatible with proper care and management of the objects,” which can still be quite large if necessary to protect the objects.

                    • Basically, yes. And the answer from the courts has been that POTUS has fairly unbounded discretion, at least with respect to the facts of the cases that have reached the courts.

                    • Does POTUS have the authority to set any limits on the Antiquities Act? Or does Congress have the only say in the matter?

                    • @SteveWilent re: Does POTUS have the authority to set any limits on the Antiquities Act? Or does Congress have the only say in the matter?

                      Only Congress can amend the Antiquities Act. POTUS can not use the authority, as did the last POTUS, but s/he cannot make changes to the law.

                    • I meant, Does _SCOTUS_ have the authority to set any limits on the Antiquities Act? Could SCOTUS make a ruling based on its interpretation of Congress’s “intent” the Antiquities Act?

                    • @anonymous re: I meant, Does _SCOTUS_ have the authority to set any limits on the Antiquities Act? Could SCOTUS make a ruling based on its interpretation of Congress’s “intent” the Antiquities Act?

                      Sure: SCOTUS’ job is to “say what the law is.” But they’ve done that for years, and the contours of the law are fairly clear.

                  • Often times we see things like “viewsheds” and “buffer zones” included into such plans, claiming it “protects the integrity of the site”.

                    One example of excess ‘protection’ is the Giant Sequoia National Monument, where 300,000 acres are set aside, to ‘protect’ about 30,000 acres of sequoias. That idea has not worked well, ecologically-speaking.

  3. From the earlier post: The Antiquities Act “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;”…

    Remember, Roosevelt designated the volcanic Devils Tower in Wyoming as the first National Monument. It is not an antiquity as Roberts defines it, but an “object of scientific interest”. Perhaps underwater seamounts and canyons are too.

    • Teri, but what would actually not then be of “scientific interest”? To someone, somewhere, looking at some plant, animal, bacterium, fungus, and so on…

      • Yep, a point that President’s since Roosevelt have made. Oh, yeah, Roosevelt also declared Grand Canyon a National Monument….

    • Terri as I remember Devils Tower encompasses pretty much the tower itself, likewise the original Grand Canyon Monument was just the canyon. Later the Grand Canyon was enlarged twice or three. Now I sometimes read of preservationist efforts for areas “close to” the park.

      I think the point is that Monument designations are being used by Presidents on their way out the door, when they no longer need the votes of senators for legislation, to leave a large legacy. Because it’s done by proclamation there’s no need to accommodate the wrong sorts of user groups. Mountain bikes and paleontology ok, ATVs, hunting, dispersed camping a big no go. To the tune of millions of acres.

      Not sure what proper care is, but funding levels lower than was had in the 1980s probably isn’t it.

  4. And this article is about Obama’s action under the AA. Here’s a link to an article about the latest on Trump’s modification of Obama’s Bear’s Ears Monument (not sure the link will work, but you can google it) :

    “… On January 9, 2020, we moved for summary judgment. While we were awaiting the district court’s decision, Trump’s presidency ended, and President Biden took office promising to restore protections to national monuments. On his first day in office, President Biden issued an executive order initiating a review of Trump’s rollbacks to Bears Ears, Grand Staircase–Escalante, and Northeast Canyons and Seamounts. We are urging President Biden to fulfill his promise and swiftly restore full protections to all three monuments.

    Given the possibility of presidential action, the Biden administration has requested—and the district court has granted—a stay of the court proceedings. In the meantime, however, the lands excised from Bears Ears remain at risk of long-lasting harm. The court has therefore ordered the federal government to provide plaintiffs with timely notice before beginning a range of potentially harmful developments within these vulnerable lands.”

    So the argument of Presidential power is not only size of the initial Monument, but whether subsequent Presidents can modify the declaration later. I’m rather surprised the Antiquities Act has not been taken away by Congress as it’s a political football used by both parties.


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