National Monument Issues

CRS Report for Congress
National Monument Issues
Carol Hardy Vincent
Specialist in Natural Resources
Resources, Science, and Industry Division
Presidential creation of national monuments under the Antiquities Act of 1906
often has been contentious. Controversy was renewed over President Clinton’s creation
of 19 monuments and expansion of 3 others. Issues have related to the size of the areas
and types of resources protected, the inclusion of non-federal lands within monument
boundaries, restrictions on land uses, and the manner in which the monuments were
created. The Bush Administration reviewed President Clinton’s monument actions and
continues to develop management plans for some of the monuments. Congress has
considered measures to limit the President’s authority to create monuments and to alter
particular monuments. Monument supporters assert that these changes are not warranted
and that the courts and segments of the public have supported monument designations.
This report will be updated to reflect changes.
Presidential establishment of national monuments under the Antiquities Act of 1906
(16 U.S.C. §§431-433) has protected valuable sites, but also has been contentious.
President Clinton used his authority 22 times to proclaim 19 new monuments and to
enlarge 3 others (see Appendix). With one exception, the monuments were designated
during President Clinton’s last year in office, on the assertion that Congress had not acted
quickly enough to protect federal land.
The establishment of national monuments by President Clinton raised concerns,
including the authority of the President to create large monuments; impact on
development within monuments; access to monuments for recreation; and lack of a
requirement for environmental studies and public input in the monument designation
process.1 Lawsuits challenged several of the monuments on various grounds, described
below. The Bush Administration examined monument actions of President Clinton and
the Interior Department is developing management plans for DOI-managed monuments.
Recent Congresses have considered, but not enacted, bills to restrict the President’s

1 For more information, see CRS Report RL30528.
Congressional Research Service ˜ The Library of Congress

authority to create monuments and to establish a process for input into monument
decisions. Monument supporters assert that changes to the Antiquities Act are neither
warranted nor desirable, courts have supported presidential actions, and segments of the
public support such protections.
The Antiquities Act of 1906
The Antiquities Act of 1906 authorizes the President to proclaim national
monuments on federal lands that contain “historic landmarks, historic and prehistoric
structures, and other objects of historic or scientific interest.” The act does not specify
particular procedures for creating monuments. It was a response to concerns over theft
and destruction of archaeological sites, and was designed to provide an expeditious means
to protect federal lands and resources. Congress later limited the President’s authority in
Wyoming (16 U.S.C. §431a) and Alaska (16 U.S.C. §3213).
Presidents have designated about 120 national monuments, totaling more than 70
million acres, although most of this acreage is no longer in monument status. Congress
has abolished some monuments outright, and converted many more into other
designations. For instance, Grand Canyon initially was proclaimed a national monument,
but was converted into a national park. Congress itself has created monuments on federal
lands, and has modified others. President Clinton’s 19 new and 3 enlarged monuments
comprise about 5.9 million federal acres. Only President Franklin Delano Roosevelt used
his authority more often — 28 times — and only President Jimmy Carter created more
monument acreage — 56 million acres in Alaska.
Monument Issues and Controversies
Various issues regarding presidentially-created monuments have generated both
controversy and lawsuits. Issues have included the size of the areas and types of resources
protected, the inclusion of non-federal lands within monument boundaries, restrictions on
land uses that may result, the manner in which the monuments were created, the selection
of the managing agency, and other legal issues. Courts have upheld both particular
monuments and the President’s authority to create them. For instance, a court dismissed
challenges to Clinton monuments which were based on improper delegation of authority
by Congress; size; lack of specificity; non-qualifying objects; increased likelihood of
harm to resources; and alleged violations of the National Forest Management Act of 1976
(NFMA, 16 U.S.C. §1601 et seq.), Administrative Procedure Act (APA, 5 U.S.C. §5512
et seq.), and National Environmental Policy Act (NEPA, 42 U.S.C. §4321 et seq.). In
another case, a court found that plaintiffs did not allege facts sufficient to support the
court’s inquiry into whether the President might have acted beyond the authority given
him in the Antiquities Act.3

2 Tulare County v. Bush, Civ. No. 00-2560 (D.C. D.C., September, 2001), aff’d 306 F. 3d 1138
(D.C.Cir 2002), rehearing en banc denied, 317 F. 3d 227 (D.C.Cir. 2003), cert. denied 540 U.S.

813 (2003). See also Utah Ass’n of Counties v. Bush, 316 F. Supp. 2d 1172 (D.Ut. 2004).

3 Mountain States Legal Foundation v. Bush, Civ. No. 00-2072 (D.C. D.C., 2001); aff’d 306 F.

3d 1132 (D.C.Cir. 2002); rehearing en banc denied, 2003 U.S. App. LEXIS 1728 (D.C.Cir.

2003), cert denied, 540 U.S. 812 (2003).

Monument Size and Objects Protected. Critics assert that large monuments
violate the Antiquities Act, in that the President’s authority was intended to be narrow and
limited. The monuments designated by President Clinton range in size from 2 acres to
1,870,800 acres. Defenders argue that the Antiquities Act gives the President discretion
to determine the acreage necessary to ensure protection of the designated resources, while
reserving “the smallest area compatible with the proper care and management of the
objects to be protected” (16 U.S.C. §431). Critics also contend that President Clinton
used the Antiquities Act for impermissibly broad purposes, such as general conservation
and scenic protection. Supporters counter that the act’s wording — “other objects of
historic or scientific interest” — grants broad discretion to the President. Further, some
claim that the Antiquities Act is designed to protect only objects that are immediately
endangered or threatened, but others note that the Antiquities Act lacks such a specific
requirement. To date, the courts have upheld the authority of the President on these
Inclusion of Non-Federal Lands. Non-federal lands are contained within the
boundaries of some national monuments. Some state and private landowners have been
concerned that development of such non-federal land is, or could be, more difficult
because it might be judged incompatible with monument purposes or constrained by
management of surrounding federal lands. Monument supporters note that concerned
state and local landowners can pursue land exchanges with the federal government.
Effects on Land Uses. State and local officials and other citizens have been
concerned that monument designation can limit or prohibit development on federal lands.
They argue that local communities are hurt by the loss of jobs and tax revenues that result
from prohibiting or restricting future mineral exploration, timber development, or other
activities. The potential effect of monument designation on energy development has been
particularly contentious, given the current emphasis on energy production. Subject to
valid existing rights, most of the recent proclamations bar new mineral leases, mining
claims, prospecting or exploration activities, and oil, gas, and geothermal leases, by
withdrawing the lands within the monuments from entry, location, selection, sale, leasing,
or other disposition under the public land laws, mining laws, and mineral and geothermal
leasing laws. Further, the FY2006 Interior, Environment, and Related Agencies
Appropriations Act (P.L. 109-54) continued a ban on using funds for energy leasing
activities within the boundaries of national monuments as they were on January 20, 2001,
except where allowed by the presidential proclamations that created the monuments.
Mineral activities that would be allowed may have to adhere to a higher standard of
environmental regulation to ensure compatibility with the monument designation and
purposes. Others claim that monuments have positive economic impacts, including
increased tourism, recreation, and relocation of businesses in those areas. Some maintain
that development is insufficiently limited because recent monument proclamations
typically have preserved valid existing rights for particular uses, such as mineral
development, and continued certain activities, such as grazing.
Some recreation groups and other citizens have opposed restrictions on recreation,
such as hunting and off-road vehicle use. Proclamations typically have restricted some
such activities to protect monument resources, and additional restrictions are being
considered for management plans in development.

Consistency of Antiquities Act with NEPA and FLPMA. Critics of the
Antiquities Act argue that its use is inconsistent with the intent of the Federal Land Policy
and Management Act of 1976 (FLPMA, 43 U.S.C. §1701 et seq.) to restore land
withdrawal policy to Congress. A withdrawal restricts the use or disposition of public
lands, e.g., for mineral leasing. In enacting FLPMA, Congress repealed much of the
President’s withdrawal authority and limited the ability of the Secretary of the Interior to
make land withdrawals. It required congressional review of secretarial withdrawals
exceeding 5,000 acres,4 and contains notice and hearing procedures for withdrawals.
Supporters note that in enacting FLPMA, Congress did not repeal or amend the
Antiquities Act and thus desired to retain presidential withdrawal authority.
Critics of the Antiquities Act also assert that there has been insufficient public input
and environmental studies on presidentially-created monuments, and favor amending the
Antiquities Act to require public and scientific input similar to that required under NEPA,
FLPMA, and other laws. Others counter that such changes would impair the ability of
the President to act quickly and could result in resource impairment or additional
expense. They assert that Presidents typically consult in practice, and that NEPA applies
only to proposed actions that might harm the environment and not to protective measures.
Monument Management. Whereas previously the National Park Service (NPS)
had managed most monuments, President Clinton selected the Bureau of Land
Management (BLM) and other agencies to manage many of the new monuments. Some
critics have expressed concern that the BLM lacks sufficient expertise or dedication to
land conservation to manage monuments. President Clinton chose BLM where its own
lands were involved, to increase the agency’s emphasis on land protection, and possibly
both to protect the lands and manage them for multiple uses. Mineral development,
timber harvesting, and hunting are the principal uses that would be legally compatible
with BLM management but not with management by the NPS. Grazing also typically is
allowed on BLM lands, but often precluded on NPS lands.
Other Legal Issues. The “Property Clause” of the Constitution (Article IV, sec.
3, cl. 2) gives Congress the authority to dispose of and make needed rules and regulations
regarding property belonging to the United States. Some have asserted that the
Antiquities Act is an unconstitutionally broad delegation of Congress’ power, because the
President’s authority to create monuments is essentially limitless since all federal land has
some historic or scientific value. A court dismissed a suit raising this issue, and this
holding was affirmed on appeal. (See note 2).
The recent monument designations renewed discussion of whether a President can
modify or eliminate a presidentially-created national monument. While it appears that
a President can modify a monument, it has not been established that the President, like
Congress, has the authority to revoke a presidential monument designation. (For more
information, see CRS Report RS20647.)
Administrative and Legislative Activity

4 The provision in FLPMA is likely to be an unconstitutional “legislative veto” under INS v.
Chadha, 462 U.S. 919 (1983), because it authorizes the termination of an executive action other
than by act of Congress. However, there have been no rulings on this particular provision.

Administrative Action. The Bush Administration examined the monument
actions of President Clinton, including whether to exclude private, state, or other non-
federal lands from the boundaries of newly-created monuments. There has been no
comprehensive Administration effort to redesignate the monuments with altered
boundaries. While the monument designation does not apply to these non-federal lands,
most of President Clinton’s monument proclamations stated that they will become part
of the monument if the federal government acquires title to the lands from the current
owners. Also, the Interior Department continues to develop management plans for new
monuments within its jurisdiction. Further, President Bush reestablished one monument
— the Governors Island National Monument in New York — on February 7, 2003.
Legislative Action. Legislation to amend the Antiquities Act of 1906 has not
been introduced thus far in the 109th Congress, but was considered in recent Congresses.
For instance, H.R. 2386 of the 108th Congress sought to amend the Antiquities Act to
make presidential designations of monuments exceeding 50,000 acres ineffective unless
approved by Congress within two years. The measure also would have established a
process for public input into presidential monument designations and required monument
management plans to be developed in accordance with the National Environmental Policy
Act of 1969. Other legislation in recent Congresses has sought to alter particular
monuments, for instance, to exclude private land from within their boundaries.
Appendix. Monuments Proclaimed by President Clinton 1
Date and NameStateAcreage 2Managing
Proclamation (Federal) Agency
9/18/96Grand Staircase-Utah1,870,800BLM
Proc. No. 6290Escalante
1/11/00Agua FriaArizona71,100BLM
Proc. No. 7263
1/11/00California CoastalCalifornia883BLM 3
Proc. No. 7264
1/11/00Grand Canyon-Arizona1,017,168BLM & NPS
Proc. No. 7265Parashant
1/11/00PinnaclesCalifornia7,900 4 NPS
Proc. No. 7266(expansion)
4/15/00Giant SequoiaCalifornia327,769Forest Service
Proc. No. 7295
6/9/00Canyons of the AncientsColorado163,892BLM
Proc. No. 7317
6/9/00 Cascad e-Siskiyou Oregon 52,947 BLM
Proc. No. 7318
6/9/00Hanford ReachWashington195,843FWS & 5
Proc. No. 7319DOE
6/9/00Ironwood ForestArizona129,022BLM
Proc. No. 7320
7/7/00President Lincoln &District of2U.S. Soldiers’ &6
Proc. No. 7329Soldier’s HomeColumbiaAirmen’s Home
11/9/00Craters of the MoonIdaho661,287 7 BLM & NPS
Proc. No. 7373(expansion)
11/9/00Vermilion CliffsArizona279,558BLM

Proc. No. 7374

1/17/01Buck Island ReefVirgin Islands18,135 8 NPS
Proc. No. 7392(expansion)
1/17/01Carrizo PlainCalifornia204,107BLM
Proc. No. 7393
1/17/01Kasha-Katuwe TentNew Mexico4,124BLM 9
Proc. No. 7394Rocks
1/17/01Minidoka InternmentIdaho73NPS 10
Proc. No. 7395
1/17/01Pompeys PillarMontana51BLM
Proc. No. 7396
1/17/01Sonoran DesertArizona486,603BLM 11
Proc. No. 7397
1/17/01Upper Missouri RiverMontana374,976BLM
Proc. No. 7398Breaks
1/17/01Virgin Islands CoralVirgin Islands12,708NPS
Proc. No. 7399Reef
1/19/01Governors IslandNew York2212Secretary of the
Proc. No. 7402Interior
Proc. No. 7647
Sources: Presidential proclamations, agency documents, and agency staff.
1. The following abbreviations are used: BLM: Bureau of Land Management; NPS: National Park Service;
FWS: Fish and Wildlife Service; DOE: Department of Energy; and DOD: Department of Defense.
2. Non-federal lands, such as state and private lands, are included within the boundaries of some of the
monuments but are not part of the monument and not reflected in this column. Further, these figures reflect
the current federal acreage, except in the case of the three monument expansions (Pinnacles, Craters of the
Moon, and Buck Island Reef).
3. The Monument is being managed cooperatively with the California State Department of Fish and Game
under a Memorandum of Understanding with the BLM, according to agency documents.
4. The expanded monument now consists of 24,503 acres.
5. To be managed by the FWS under existing agreements with the DOE, except that the DOE manages
certain lands. The FWS is to assume management of DOE lands if the DOE and FWS determine that the
lands have become suitable for management by that agency.
6. The Armed Forces Retirement Home (AFRH), through the U.S. Soldiers’ and Airmen’s Home, is to
manage the monument. The AFRH is to consult with the Secretary of the Interior through the NPS.
7. The expanded monument now consists of 739,682 acres.
8. The expanded monument now consists of 19,015 acres.
9. To be managed “in close cooperation with the Pueblo de Cochiti.”
10. The Secretary of the Interior is to manage the monument andtransfer administration to the NPS.
11. On November 6, 2001, BLM resumed management of lands being managed by DOD pursuant to a
military withdrawal.
12. President Bush reestablished this Monument with 22 acres.